Exhibit 2.1

Execution Version

AGREEMENT AND PLAN OF MERGER

Dated as of September 6, 2016

Among

AMERICAN FINANCE TRUST, INC.,

AMERICAN FINANCE OPERATING PARTNERSHIP, L.P.,

GENIE ACQUISITION, LLC,

American Realty Capital—Retail Centers of America, Inc.

and

American Realty Capital Retail Operating Partnership, L.P.

TABLE OF CONTENTS

EXHIBITS

Exhibit A - Directors of Parent

Exhibit B - List of Terminated Contracts

Exhibit C – Commitment Letter
Exhibit D – Company Specified Charter Amendments

Exhibit E – Third Amended and Restated Advisory Agreement

Exhibit F – Form of Amendment to the Parent Partnership Agreement

Exhibit G – Methodology for Computing the Redemption of Company Special Limited Partnership Interest

AGREEMENT AND PLAN OF MERGER (the “ Agreement ”), dated as of September 6, 2016, among AMERICAN FINANCE TRUST, INC., a Maryland corporation (the “ Parent ”), American Finance Operating Partnership, L.P., a Delaware limited partnership (the “ Parent Operating Partnership ”), GENIE ACQUISITION, LLC, a Delaware limited liability company and wholly-owned subsidiary of the Parent (the “ Merger Sub ”), American Realty Capital—Retail Centers of America, Inc. , a Maryland corporation (the “ Company ”) and American Realty Capital Retail Operating Partnership, L.P., a Delaware limited partnership (the “ Company Operating Partnership ”). Certain terms used herein shall have the meanings assigned to them in ARTICLE IX .

RECITALS

WHEREAS, the Company is a Maryland corporation operating as a real estate investment trust for U.S. federal income tax purposes that holds interests in properties through the Company Operating Partnership and is the sole general partner of the Company Operating Partnership;

WHEREAS, the Parent is a Maryland corporation operating as a real estate investment trust for U.S. federal income tax purposes that holds interests in properties through the Parent Operating Partnership and is the sole general partner of the Parent Operating Partnership;

WHEREAS, the parties hereto wish to effect a business combination transaction in which (i) the Company will be merged with and into the Merger Sub, with the Merger Sub being the surviving entity in the merger (the “ Merger ”), and in which each outstanding share of capital stock, $0.01 par value per share (the “ Company Share ”), of the Company will be converted into the right to receive the Merger Consideration provided herein, and (ii) the Company Operating Partnership will be merged with and into the Parent Operating Partnership, with the Parent Operating Partnership being the surviving entity (the “ Partnership Merger ” and together with the Merger, the “ Mergers ”) and in which each outstanding Company Partnership Unit will be converted into the right to receive, as applicable, Partnership GP Merger Consideration or Partnership OP Merger Consideration as provided herein;

WHEREAS, the board of directors of the Company (the “ Company Board ”), based on the unanimous recommendation of a special transaction committee thereof consisting solely of independent directors of the Company (“ Company Special Committee ”), has approved this Agreement, the Merger and the other transactions contemplated by this Agreement and declared that this Agreement, the Merger and the other transactions contemplated by this Agreement are advisable and in the best interests of the Company;

WHEREAS, the Company Board, based on the unanimous recommendation of the Company Special Committee, has directed that the Merger be submitted for consideration at a meeting of the Company’s stockholders and has resolved to recommend that the Company’s stockholders vote to approve the Merger;

WHEREAS, the board of directors of the Parent (the “ Parent Board ”), based on the unanimous recommendation of a special transaction committee thereof consisting solely of independent directors of the Parent (“ Parent Special Committee ”), has approved this Agreement, the Merger and the other transactions contemplated by this Agreement and declared that this Agreement, the Merger and the other transactions contemplated by this Agreement are advisable and in the best interests of the Parent;

WHEREAS, the Parent Board has, based on the unanimous recommendation of the Parent Special Committee, directed that the Merger and the issuance of Parent Common Shares as part of the Merger Consideration be submitted for consideration at a meeting of the Parent’s stockholders and has resolved to recommend that the Parent’s stockholders vote to approve the Merger and such issuance;

WHEREAS, each of (i) the Company, in its capacity as the sole general partner of the Company Operating Partnership, and (ii) the Parent, in its capacity as the sole general partner of the Parent Operating Partnership, has separately adopted and approved this Agreement, the Partnership Merger and the other transactions contemplated by this Agreement and declared that this Agreement, the Partnership Merger and the other transactions contemplated by this Agreement are advisable;

WHEREAS, the Parent, in its capacity as the sole member of Merger Sub, has approved this Agreement, the Merger and the other transactions contemplated by this Agreement and has taken all actions required for the execution of this Agreement by Merger Sub and the consummation by Merger Sub of the Merger and the other transactions contemplated by this Agreement;

WHEREAS, concurrently with the execution of this Agreement, and as a condition and inducement to the willingness of the Company to enter into this Agreement, Parent and Parent Operating Partnership have entered into the Third Amended and Restated Advisory Agreement with American Finance Advisors, LLC (f/k/a American Realty Capital Advisors V, LLC) attached hereto as Exhibit E (the “ Amended Advisory Agreement ”), which Amended Advisory Agreement shall become effective immediately upon consummation of the Mergers;

WHEREAS, concurrently with the execution of this Agreement, and as a condition and inducement to the willingness of the Company to enter into this Agreement, the Parent Partnership Agreement shall have been amended in the form attached hereto as Exhibit F (the “ Amended Parent Partnership Agreement ”), which Amended Parent Partnership Agreement shall become effective immediately upon consummation of the Partnership Merger; and

WHEREAS, the parties intend that for federal, and applicable state, income tax purposes (i) the Merger shall be treated as a “reorganization” within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended (the “ Code ”), and this Agreement is intended to be and is adopted as a “plan of reorganization” within the meaning of Treasury Regulation Section 1.368-2g and for purposes of Sections 354 and 361 of the Code, and (ii) the Partnership Merger shall qualify as and constitute an “asset-over” form of merger under Treasury Regulations Section 1.708-1(c)(3)(i) with the Surviving Partnership as the continuation of the Parent Operating Partnership and the termination of the Company Operating Partnership.

NOW, THEREFORE, in consideration of the representations, warranties, covenants and agreements contained in this Agreement, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the parties agree as follows:

Article I
THE MERGERS

Section 1.1.           The Mergers.

(a)          Upon the terms and subject to the conditions of this Agreement, and in accordance with the MGCL and the DLLCA, at the Effective Time, the Company shall be merged with and into the Merger Sub, whereupon the separate existence of the Company shall cease, and the Merger Sub shall continue under the name “Genie Acquisition, LLC” as the surviving entity in the Merger (the “ Surviving Company ”) and shall be governed by the laws of the State of Delaware. The Merger shall have the effects specified in the MGCL, the DLLCA and this Agreement. Without limiting the generality of the foregoing, and subject thereto, from and after the Effective Time, the Surviving Company shall possess all properties, rights, privileges, powers and franchises of the Company and the Merger Sub, and all of the claims, obligations, liabilities, debts and duties of the Company and the Merger Sub shall become the claims, obligations, liabilities, debts and duties of the Surviving Company.

(b)          Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the DRULPA, at the Partnership Merger Effective Time, the Company Operating Partnership shall be merged with and into the Parent Operating Partnership, whereupon the separate existence of the Company Operating Partnership shall cease, and the Parent Operating Partnership shall continue under its current name as the surviving entity in the Partnership Merger (the “ Surviving Partnership ”) and shall be governed by the laws of the State of Delaware. The Partnership Merger shall have the effects specified in the DRULPA and this Agreement. Without limiting the generality of the foregoing, and subject thereto, from and after the Partnership Merger Effective Time, the Surviving Partnership shall possess all properties, rights, privileges, powers and franchises of the Company Operating Partnership, and all of the claims, obligations, liabilities, debts and duties of the Company Operating Partnership shall become the claims, obligations, liabilities, debts and duties of the Surviving Partnership.

Section 1.2.           Closing . The closing of the Mergers (the “ Closing ”) will take place at the offices of Pepper Hamilton LLP, The New York Times Building, 620 Eighth Avenue, New York, NY 10018-1405 at 10:00 a.m., Eastern Time, no later than the third (3 ^rd ) Business Day after satisfaction or (to the extent permitted by applicable Law) waiver by the party or parties entitled to the benefits thereof of the conditions set forth in ARTICLE VI (other than those conditions that by their nature are to be satisfied by actions taken at the Closing, but subject to the satisfaction or waiver (to the extent permitted by applicable Law) of such conditions), or at such other place, time and date as shall be agreed in writing by the Company and the Parent. The date on which the Closing occurs is referred to in this Agreement as the “ Closing Date .”

Section 1.3.           Effective Time.

(a)          Prior to Closing, the parties to the Merger shall (i) cause articles of merger with respect to the Merger (the “ Articles of Merger ”) to be duly executed and filed with the State Department of Assessments and Taxation of Maryland (the “ SDAT ”) as provided under the MGCL, (ii) cause a certificate of merger with respect to the Merger (the “ Certificate of Merger ”) to be duly executed and filed with the Delaware Secretary as provided under the DLLCA, and (iii) make all other filings or recordings required under the MGCL or DLLCA to effect the Merger. The Articles of Merger and the Certificate of Merger shall specify that the Merger shall become effective at such time and on such date as the Merger Sub and the Company shall specify in the Articles of Merger and the Certificate of Merger (the time on the date that the Merger becomes effective being the “ Effective Time ”), it being understood that the parties to the Merger shall cause the Effective Time to occur on the Closing Date immediately prior to the Partnership Merger Effective Time.

(b)          Prior to Closing, the parties to the Partnership Merger shall (i) cause a certificate of merger with respect to the Partnership Merger (the “ Partnership Certificate of Merger ”) to be duly executed and filed with the Delaware Secretary as provided under the DRULPA and (ii) make all other filings or recordings required under the DRULPA to effect the Partnership Merger. The Partnership Certificate of Merger shall specify that the Partnership Merger shall become effective at such time and on such date as the Parent Operating Partnership and the Company Operating Partnership shall specify in the Partnership Certificate of Merger (the time on the date that the Partnership Merger becomes effective being the “ Partnership Merger Effective Time ”), it being understood that the parties to the Partnership Merger shall cause the Partnership Merger Effective Time to occur on the Closing Date immediately after the Effective Time.

(c)          If the consummation of the Merger prior to the consummation of the Partnership Merger (and, therefore, the Effective Time occurring prior to the Partnership Merger Effective Time), as is contemplated by this Agreement, would cause any of the parties to incur a materially greater amount of Transfer Taxes than would be incurred if the Merger were consummated following the consummation of the Partnership Merger (and, therefore, if the Effective Time were to occur following the Partnership Merger Effective Time), then, notwithstanding anything in this Agreement to the contrary, and with the written consent of the Parent and the Company (which consent shall not be unreasonably withheld, conditioned or delayed), the timing of the consummation of the Merger and Partnership Merger shall be re-ordered so that the Merger shall occur and be consummated following the consummation of the Partnership Merger (and, therefore, the Effective Time will occur following the Partnership Merger Effective Time).

Section 1.4.           Effects of the Mergers.

(a)          The Merger shall have the effects set forth in the DLLCA and MGCL.

(b)          The Partnership Merger shall have the effects set forth in the DRULPA.

Section 1.5.           Organizational Documents of the Surviving Company and the Surviving Partnership . Subject to Section 5.9(c) , at the Effective Time, the certificate of formation and limited liability company agreement of the Merger Sub, as in effect immediately prior to the Effective Time, shall be the certificate of formation and limited liability company agreement of the Surviving Company, until thereafter amended in accordance with applicable Law and the applicable provisions of such certificate of formation and limited liability company agreement. At the Partnership Merger Effective Time, the Amended Parent Partnership Agreement will become effective automatically, and the certificate of limited partnership of the Parent Operating Partnership as in effect immediately prior to the Effective Time and the Amended Parent Partnership Agreement shall be the certificate of limited partnership and partnership agreement of the Surviving Partnership, until thereafter amended in accordance with applicable Law and the applicable provisions of such certificate of limited partnership and partnership agreement.

Section 1.6.           Directors of the Parent . The directors of the Parent immediately following the Effective Time shall not exceed six (6) directors and shall be as set forth on Exhibit A hereto. Each such director shall hold office until the next annual meeting of stockholders and until their respective successors are duly elected and qualify, or their earlier death, resignation or removal.

Section 1.7.           Management of the Surviving Company . The Surviving Company shall be member-managed with the Parent as its sole member.

Section 1.8.           Subsequent Actions.

(a)          If at any time after the Effective Time, the Surviving Company shall determine, in its sole and absolute discretion, that any actions are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Company its right, title or interest in, to or under any of the rights or properties of the Company acquired or to be acquired by the Surviving Company as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the members, officers and managers of the Surviving Company shall be authorized to take all such actions as may be necessary or desirable to vest all right, title or interest in, to or under such rights or properties in the Surviving Company or otherwise to carry out this Agreement.

(b)          If at any time after the Partnership Merger Effective Time, the Surviving Partnership shall determine, in its sole and absolute discretion, that any actions are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Partnership its right, title or interest in, to or under any of the rights or properties of the Company Operating Partnership acquired or to be acquired by the Surviving Partnership as a result of, or in connection with, the Partnership Merger or otherwise to carry out this Agreement, then the general partner(s) of the Surviving Partnership shall be authorized to take all such actions as may be necessary or desirable to vest all right, title or interest in, to or under such rights or properties in the Surviving Partnership or otherwise to carry out this Agreement.

Article II
EFFECT OF THE MERGERS

Section 2.1.           Effect of the Mergers .

(a)          By virtue of the Merger and without any action on the part of the holder of any outstanding capital stock of or membership interests in the Company, the Parent or the Merger Sub:

(i)           Merger . At the Effective Time, each Company Share (including any Company Restricted Stock as provided under Section 2.1(d)(ii) , Company Share issued upon exercise of a Company Stock Option pursuant to Section 2.1(d)(i) and fractional shares) issued and outstanding immediately prior to the Effective Time (other than the Company Shares to be cancelled pursuant to Section 2.1(a)(iii) ) shall be converted into the right to receive (x) a number of Parent Common Shares equal to the Per Share Stock Amount (the “ Stock Consideration ”) and (y) cash from the Parent in an amount equal to the Per Share Cash Amount (the “ Cash Consideration ”). For purposes of this Agreement, “ Merger Consideration ” shall mean the aggregate of the Stock Consideration and the Cash Consideration.

(ii)          Fractional Shares . No fractional Parent Common Shares shall be issued with respect to the Merger. Notwithstanding any other provision of this Agreement, each holder of Company Shares converted pursuant to the Merger who would otherwise have been entitled to receive a fraction of a Parent Common Share shall receive, in lieu thereof, cash, without interest, in an amount equal to the product of (a) such fractional part of a Parent Common Share multiplied by (b) $24.17 (the “ Fractional Share Consideration ”).

(iii)         Cancellation of Shares . Each Company Share (including any fractional Company Share), issued and outstanding immediately prior to the Effective Time that is owned by the Parent, the Merger Sub or any of their respective Subsidiaries shall no longer be outstanding and shall automatically be canceled and shall cease to exist, and no consideration shall be delivered in exchange therefor.

(iv)        All Company Shares ( including all shares of Company Restricted Stock, all Company Shares issued upon exercise of Company Stock Options pursuant to Section 2.1(d) and all fractional Company Shares) converted pursuant to Section 2.1(a)(i) , when so converted, shall no longer be outstanding and shall automatically be canceled and shall cease to exist, and each holder of a Certificate or Book-Entry Share shall cease to have any rights with respect thereto, except the right to receive the Merger Consideration (including the Fractional Share Consideration) and any dividends or other distributions to which holders may be entitled in accordance with Section 2.2(e) , without interest.

(b)           Surviving Company . By virtue of the Merger and without any action on the part of the holder thereof, the membership interests of the Merger Sub issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding and constitute the only membership interests in the Surviving Company so that thereafter the Parent will be   the sole member of the Surviving Company.

(c)           Partnership Merger . By virtue of the Partnership Merger and without any action on the part of the holders of Company Partnership Units or Parent Partnership Units:

(i)          At the Partnership Merger Effective Time: (I) each Company OP Unit (other than Company OP Units and Company GP Units held by the Company) issued and outstanding immediately prior to the Partnership Merger Effective Time shall automatically be converted into 0.424 validly issued Parent OP Units (the “ Partnership OP Merger Consideration ”); (II) each Company OP Unit and Company GP Unit held by the Company issued and outstanding immediately prior to the Partnership Merger Effective Time shall automatically be converted into 0.385 validly issued Parent OP Units (collectively, the “ Partnership GP Merger Consideration ” and together with the Partnership OP Merger Consideration, the “ Partnership Merger Consideration ”); (III) each Company Class B Unit issued and outstanding immediately prior to the Partnership Merger Effective Time shall be converted into the Partnership OP Merger Consideration; and (IV) the Company Special Limited Partnership Interest shall be redeemed in exchange for an amount in cash computed in accordance with the methodology used in the preparation of Exhibit G to this Agreement, which depicts the redemption price as $3,261,093 assuming the Effective Time occurred on June 30, 2016.

(ii)         At the Partnership Merger Effective Time: (I) the general partnership interest of the Parent Operating Partnership (designated in the Parent Partnership Agreement as “Parent GP Units”), all of which are owned by the Parent, shall remain issued and outstanding and constitute the only general partnership interest in the Surviving Partnership; (II) the Parent OP Units issued and outstanding immediately prior to the Partnership Merger Effective Time shall remain issued and outstanding; (III) the Parent Special Limited Partnership Interest of the Parent Operating Partnership shall remain issued and outstanding and constitute the only special limited partnership interest in the Surviving Partnership; and (IV) the Parent Class B Units issued and outstanding immediately prior to the Partnership Merger Effective Time shall remain issued and outstanding and constitute the only Parent Class B Units in the Surviving Partnership.

(d)           Equity Awards .

(i)          If any Company Stock Option is outstanding at any time after the date hereof, the Company Parties shall take all actions required to terminate (effective prior to the Effective Time) each outstanding Company Stock Option (whether or not vested) in accordance with the Company’s 2011 Stock Option Plan, including by providing timely notice of termination to each holder of a Company Stock Option. Any holder of a Company Stock Option shall, upon receipt of such termination notice, have the right to exercise such holder’s Company Stock Option in accordance with the Company’s 2011 Stock Option Plan, and if any such holder exercises its Company Stock Option to acquire Company Shares and pays the exercise price thereof, such holder shall be entitled to receive the Merger Consideration payable with respect to such Company Shares in accordance with the terms and conditions of this Agreement, including Section 2.1(a) (and if any Company Stock Option is outstanding at any time after the date hereof and any such Company Stock Option is not exercised prior to the Effective Time, such Company Stock Option shall be forfeited in accordance with the Company’s 2011 Stock Option Plan).

(ii)         Immediately prior to the Effective Time, any then issued and outstanding shares of Company Restricted Stock shall become fully vested and the Company shall be entitled to deduct and withhold such number of Company Shares otherwise deliverable upon such acceleration to satisfy any applicable income and employment withholding Taxes. All Company Shares then outstanding as a result of the full vesting of the shares of Company Restricted Stock and the satisfaction of any applicable income and employment withholding Taxes shall have the right to receive the Merger Consideration in accordance with Section 2.1(a)(i) and the other terms and conditions of this Agreement.

(e)           Certain Adjustments .

(i)          If, before the Effective Time (and as permitted by ARTICLE IV ), the outstanding Company Shares, the Company GP Units or Company OP Units shall have been changed into a different number of shares or units, or a different class of shares or units by reason of any stock or unit dividend, subdivision, reorganization, reclassification, recapitalization, stock or unit split, reverse stock or unit split, combination or exchange of shares or units, or any similar event shall have occurred, then the Merger Consideration or Partnership Merger Consideration, as applicable, shall be appropriately and proportionately adjusted to provide to the holders of Company Shares, the Company GP Units or Company OP Units, as applicable, the same economic effect as contemplated by this Agreement prior to such event.

(ii)         If, before the Effective Time (and as permitted by ARTICLE IV ), the outstanding Parent Common Shares or the Parent OP Units shall have been changed into a different number of shares or units, or a different class of shares or units by reason of any stock or unit dividend, subdivision, reorganization, reclassification, recapitalization, stock or unit split, reverse stock or unit split, combination or exchange of shares or units, or any similar event shall have occurred, then the Merger Consideration or Partnership Merger Consideration, as applicable, shall be appropriately and proportionately adjusted to provide to the holders of Company Shares, the Company GP Units or Company OP Units, as applicable, the same economic effect as contemplated by this Agreement prior to such event.

Section 2.2.           Exchange Procedures.

(a)           Exchange Agent . Prior to the Effective Time, the Parent shall appoint a bank or trust company, which shall be reasonably acceptable to the Company, to act as paying agent and exchange agent (the “ Exchange Agent ”) for the exchange of the issued and outstanding Company Shares for the Merger Consideration.

(b)           Exchange Fund . At or before the Effective Time, the Parent shall deposit or cause the Merger Sub to deposit, with the Exchange Agent (i) Parent Common Shares in book-entry form issuable pursuant to Section 2.1(a)(i) equal to the aggregate Stock Consideration (excluding any Fractional Share Consideration), and (ii) cash in immediately available funds in an amount sufficient to pay the Cash Consideration, the Fractional Share Consideration, and any dividends or distributions to which holders of Company Shares may be entitled pursuant to Section 2.2(e) (such evidence of book-entry Parent Common Shares and cash amounts, the “ Exchange Fund ”), in each case for the benefit of the holders of Company Shares. Promptly after the Closing Date in accordance with the procedures set forth in Section 2.2(c) , the Parent shall, and shall cause the Surviving Company to, cause the Exchange Agent to make, and the Exchange Agent shall make, delivery of the Merger Consideration, including payment of the Fractional Share Consideration, and any dividends or distributions to which holders of Company Shares may be entitled pursuant to Section 2.2(e) , out of the Exchange Fund in accordance with this Agreement. The Exchange Fund shall not be used for any purpose that is not expressly provided for in this Agreement.

(c)           Exchange Procedures .

(i)          As promptly as practicable after the Effective Time and in no event later than three (3) Business Days following the Effective Time, the Parent shall, and shall cause the Surviving Company to, cause the Exchange Agent to mail to each holder of record of outstanding Company Shares that were converted into the right to receive the Merger Consideration pursuant to Section 2.1(a)(i) : (A) a letter of transmittal (“ Letter of Transmittal ”), in customary form and with such other provisions as reasonably agreed upon by the Company and the Parent prior to the Effective Time, which shall specify, among other things, that delivery shall be effected, and risk of loss and title to Company Shares represented by certificate (“ Certificates ”) or Company Shares registered in the transfer books of the Company in book-entry (“ Book-Entry Shares ”) shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of any Book-Entry Shares to the Exchange Agent; and (B) instructions for use in effecting the surrender of the Certificates or the transfer of Book-Entry Shares in exchange for the Merger Consideration.

(ii)         Upon (A) surrender of a Certificate (or affidavit of loss in lieu thereof) or transfer of any Book-Entry Share to the Exchange Agent, together with a properly completed and validly executed Letter of Transmittal or (B) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of transfer of a Book-Entry Share, and such other documents as may reasonably be required by the Exchange Agent, the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor the Merger Consideration for each Company Share formerly represented by such Certificate or Book-Entry Share pursuant to the provisions of this ARTICLE II plus any Fractional Share Consideration that such holder has the right to receive pursuant to the provisions of Section 2.1(a)(ii) and any amounts that such holder has the right to receive in respect of dividends or distributions to which holders of Company Shares may be entitled pursuant to Section 2.2(e) , by mail or by wire transfer after the Exchange Agent’s receipt of such Certificate (or affidavit of loss in lieu thereof) or “agent’s message” or other evidence, and the Certificate (or affidavit of loss in lieu thereof) so surrendered or the Book-Entry Share so transferred, as applicable, shall be forthwith cancelled. The Exchange Agent shall accept such Certificates (or affidavits of loss in lieu thereof) and Book-Entry Shares upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with customary exchange practices. Until surrendered or transferred as contemplated by this Section 2.2 , each Certificate and Book-Entry Share shall be deemed, at any time after the Effective Time, to represent only the right to receive, upon such surrender, the Merger Consideration as contemplated by this ARTICLE II . No interest shall be paid or accrued for the benefit of holders of the Certificates or Book-Entry Shares on the Merger Consideration or the Fractional Share Consideration payable upon the surrender of the Certificates or Book-Entry Shares and any dividends or distributions to which such holder may be entitled pursuant to Section 2.2(e) .

(iii)        In the event of a transfer of ownership of Company Shares that is not registered in the transfer records of the Company, it shall be a condition of payment that any Certificate or Book-Entry Share surrendered or transferred in accordance with the procedures set forth in this Section 2.2 shall be properly endorsed or shall be otherwise in proper form for transfer, and that the Person requesting such payment shall have paid any transfer Taxes and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate surrendered, or Book-Entry Share transferred, or shall have established to the reasonable satisfaction of the Parent that such Tax either has been paid or is not applicable.

(d)           Termination of Exchange Fund . Any portion of the Exchange Fund (including any interest and income received with respect thereto and any Fractional Share Consideration and any applicable dividends or other distributions with respect to Parent Common Shares) that remains undistributed to the former holders of Company Shares for twelve (12) months after the Effective Time shall be delivered to the Parent, upon demand, and any former holders of Company Shares prior to the Merger who have not theretofore complied with this ARTICLE II shall thereafter look only to the Parent and the Surviving Company (and only as general creditors thereof) for payment of the applicable Merger Consideration, subject to applicable abandoned property, escheat and other similar Laws.

(e)           No Further Ownership Rights in Capital Stock of the Company . The Merger Consideration (including the Fractional Share Consideration) issued upon exchange of the Company Shares in accordance with the terms of this ARTICLE II shall be deemed to have been issued in full satisfaction of all rights pertaining to the Company Shares, subject, however, to the obligation of the Surviving Company to pay, without interest and not more than 60 days following the Effective Time, any dividends or make any other distributions with a record date prior to the Effective Time that may have been declared or made by the Company on the Company Shares in accordance with the terms of this Agreement or prior to the date of this Agreement and which remain unpaid at the Effective Time and have not been paid prior to such exchange, and there shall be no further registration of transfers on the stock transfer books of the Company of the Company Shares that were outstanding immediately prior to the Effective Time.

(f)           No Further Ownership Rights in Partnership Interest of the Company Operating Partnership . The Partnership Merger Consideration issued upon conversion of the Company OP Units and Company GP Units in accordance with the terms of this ARTICLE II shall be deemed to have been issued in full satisfaction of all rights pertaining to the Company Partnership Units. At the Partnership Effective Time, the register of partnership interest holders of the Parent Operating Partnership shall be updated to reflect the issuance of Partnership Merger Consideration.

(g)           No Liability . None of the Company, the Merger Sub, the Parent, the Parent Operating Partnership, the Company Operating Partnership, the Surviving Company, the Surviving Partnership or the Exchange Agent shall be liable to any Person in respect of any Merger Consideration and/or Partnership Merger Consideration delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. Any amounts remaining unclaimed by holders of any such shares immediately prior to the time at which such amounts would otherwise escheat to, or become property of, any public official shall, to the extent permitted by applicable Law, become the property of the Parent, free and clear of any claims or interest of any such holders or their successors, assigns or personal representatives previously entitled thereto.

(h)           Withholding Rights . The Parent, the Merger Sub, the Parent Operating Partnership, the Surviving Company, the Surviving Partnership and the Exchange Agent shall be entitled to deduct and withhold from the Merger Consideration and/or the Partnership Merger Consideration otherwise payable pursuant to this Agreement such amounts as the Parent, the Merger Sub, the Parent Operating Partnership, the Surviving Company, the Surviving Partnership or the Exchange Agent, as the case may be, is required to deduct and withhold with respect to the making of such payment under the Code or any provision of state, local or foreign Tax Law. To the extent that amounts are so withheld by the Parent, the Merger Sub, the Parent Operating Partnership, the Surviving Company, the Surviving Partnership or the Exchange Agent, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made by the Parent, the Merger Sub, the Parent Operating Partnership, the Surviving Company, the Surviving Partnership or the Exchange Agent, as applicable.

Section 2.3.           Appraisal Rights . No dissenters’ or appraisal rights shall be available with respect to the Mergers or the other transactions contemplated by this Agreement.

Section 2.4.           Lost Certificates . If any Certificate shall have been lost, stolen or destroyed, then upon making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Parent, the posting by such Person of a bond in such reasonable and customary amount as the Parent may direct, as indemnity against any claim that may be made against it with respect to such Certificate, the Exchange Agent will issue in exchange for such lost, stolen or destroyed Certificate, the Merger Consideration to which the holder thereof is entitled pursuant to this ARTICLE II .

Section 2.5.           Further Assurances . If, at any time before or after the Effective Time, any of the parties hereto reasonably believes or is advised that any further instruments, deeds, assignments or assurances are reasonably necessary or desirable to consummate the Mergers or to carry out the purposes and intent of this Agreement at or after the Effective Time or the Partnership Merger Effective Time, as applicable, then the Company, the Company Operating Partnership, the Parent, the Parent Operating Partnership, the Merger Sub, the Surviving Partnership and the Surviving Company and their respective officers and directors shall execute and deliver all such proper instruments, deeds, assignments or assurances and do all other things reasonably necessary or desirable to consummate the Mergers and to carry out the purposes and intent of this Agreement.

Article III
REPRESENTATIONS AND WARRANTIES

Section 3.1.           Representations and Warranties of the Company . Except (a) as disclosed in the Company Disclosure Letter, with numbering corresponding to the numbering of this Section 3.1 (it being acknowledged and agreed that disclosure of any item in any Section or subsection of the Company Disclosure Letter with respect to any Section or subsection of this Section 3.1 shall be deemed disclosed with respect to any other Section or subsection of this Section 3.1 to the extent the applicability of such disclosure is reasonably apparent (it being understood that to be so reasonably apparent it is not required that the other Sections be cross-referenced)); provided that nothing in the Company Disclosure Letter is intended to broaden the scope of any representation or warranty of the Company made herein and no reference to or disclosure of any item or other matter in the Company Disclosure Letter shall be construed as an admission or indication that (1) such item or other matter is material, (2) such item or other matter is required to be referred to in the Company Disclosure Letter or (3) any breach or violation of applicable Laws or any Contract, agreement, arrangement or understanding to which the Company or any of the Subsidiaries of the Company is a party exists or has actually occurred), or (b) as disclosed in the Company SEC Documents publicly available, filed with, or furnished to, as applicable, the SEC on or after January 1, 2014 and prior to the date of this Agreement (excluding any risk factor disclosures contained in such documents under the heading “Risk Factors” and any disclosure of risks or other matters included in any “forward-looking statements” disclaimer or other statements that are cautionary, predictive or forward-looking in nature, which in no event shall be deemed to be an exception to or disclosure for purposes of any representation or warranty set forth in this Section 3.1 ), the Company Parties jointly and severally represent and warrant to the Parent Parties as follows:

(a)           Organization, Standing and Power . The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Maryland and has the requisite corporate power and authority to operate its assets and properties and to carry on its business as it is now being conducted. The Company is duly qualified or licensed to do business and is in good standing in each jurisdiction in which the nature of its business or the ownership, operations or leasing of its properties makes such qualification, licensing or good standing necessary, other than in such jurisdictions where the failure to be so qualified, licensed or in good standing would not, individually or in the aggregate, have a Company Material Adverse Effect.

(b)           Company Subsidiaries . Schedule 3.1(b) of the Company Disclosure Letter sets forth each Subsidiary of the Company and each other corporate or non-corporate subsidiary in which the Company owns any direct or indirect voting, capital profits or other beneficial interest (“ Other Company Subsidiary ”), including a list of each Subsidiary of the Company or Other Company Subsidiary that is a “qualified REIT subsidiary” within the meaning of Section 856(i)(2) of the Code (“ Qualified REIT Subsidiary ”) or a “taxable REIT subsidiary” within the meaning of Section 856(l) of the Code (“ Taxable REIT Subsidiary ”), together with (i) its respective jurisdiction of formation, (ii) each owner and the respective amount of such owner’s equity interest in such Subsidiary, (iii) a list of each jurisdiction in which such Subsidiary is qualified or licensed to do business and each assumed name under which such Subsidiary conducts business in any jurisdiction, and (iv) the classification for federal income tax purposes of each such Subsidiary and, to the Knowledge of the Company, each Other Company Subsidiary. All the outstanding shares of capital stock of each Subsidiary of the Company that is a corporation have been duly authorized and validly issued, are fully paid and nonassessable and are owned by the Company, by another Subsidiary of the Company or by the Company and another Subsidiary of the Company, free and clear of all Encumbrances, other than Permitted Liens, and, other than Permitted Liens, free of any preemptive rights or any other limitation or restriction (including any limitation or restriction on the right to vote, sell, transfer, register or otherwise dispose of the shares). All equity interests in each Subsidiary of the Company that is a partnership, limited liability company or business trust are owned by the Company, by another Subsidiary of the Company, or by the Company and another Subsidiary of the Company, free and clear of all Encumbrances, other than Permitted Liens, and, other than Permitted Liens, free of any preemptive rights or any other limitation or restriction (including any limitation or restriction on the right to vote, sell, transfer, register or otherwise dispose of the equity interests). There are no outstanding options, warrants or other rights to acquire ownership interests of or from any Subsidiary of the Company. Each Subsidiary of the Company that is a corporation is duly incorporated and validly existing under the laws of its jurisdiction of incorporation and has the requisite corporate power and authority to carry on its business as now being conducted, and each Subsidiary of the Company that is a partnership, limited liability company or business trust is duly organized and validly existing and in good standing under the laws of its jurisdiction of organization and has the requisite power and authority to carry on its business as now being conducted. Each Subsidiary of the Company is duly qualified or licensed to do business and is in good standing in each jurisdiction in which the nature of its business or the ownership, operation or leasing of its properties makes such qualification, licensing or good standing necessary, other than in such jurisdictions where the failure to be so qualified, licensed or in good standing would not, individually or in the aggregate, have a Company Material Adverse Effect. Except for interests in the Subsidiaries of the Company and investments in short-term investment securities, neither the Company nor any Subsidiary of the Company owns directly or indirectly any capital stock or other interest (equity or debt) in any other Person.

(c)           Capital Structure . Schedule 3.1(c) of the Company Disclosure Letter sets forth a true and complete list as of the close of business on the Business Day prior to the date hereof (the “ Measurement Date ”) of (i) the authorized capital stock of the Company, (ii) the issued and outstanding shares of capital stock of the Company, (iii) the number of shares of capital stock of the Company reserved for issuance pursuant to the terms of outstanding awards granted pursuant to the Company Stock Plans, (iv) the number of shares of capital stock of the Company available for grant under the Company Stock Plans and (v) the number of issued and outstanding Company Partnership Units. All outstanding shares of capital stock of the Company are, and all shares of capital stock reserved for issuance by the Company will be, upon issuance in accordance with the terms specified in the instruments or agreements pursuant to which they are issuable, duly authorized, validly issued, fully paid and nonassessable. None of the outstanding shares of capital stock of the Company are subject to or were issued in violation of, and none of the shares of capital stock of the Company reserved for issuance by the Company will be, upon issuance in accordance with the terms specified in the instruments or agreements pursuant to which they are issuable, subject to or issued in violation of, any preemptive right, purchase option, call option, right of first refusal, subscription or any other similar right. Schedule 3.1(c) of the Company Disclosure Letter sets forth a true and complete list, as of the Measurement Date, of all outstanding Company Stock Options and Company Restricted Stock under the Company Stock Plans, the number of shares of capital stock subject to each such option and outstanding Company Restricted Stock, the exercise price, date of grant and the names and of holders thereof. Each such option and Company Restricted Stock was granted in compliance in all material respects with all applicable Laws and all of the terms and conditions of the Company Stock Plans pursuant to which it was issued. As of the Measurement Date, except as set forth on Schedule 3.1(c) of the Company Disclosure Letter, no shares of capital stock or other voting or non-voting securities of the Company were issued, reserved for issuance or outstanding. Except (i) for the shares of capital stock and the options as set forth on Schedule 3.1(c) of the Company Disclosure Letter, and (ii) as otherwise permitted under Section 4.1 , there are no outstanding securities, options, stock appreciation rights, warrants, calls, rights, commitments, agreements, arrangements or undertakings of any kind to which the Company or any Subsidiary of the Company is a party or by which such entity is bound, obligating the Company or any Subsidiary of the Company to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock, voting securities or other securities or ownership interests of the Company or any Subsidiary of the Company or obligating the Company or any Subsidiary of the Company to issue, grant, extend or enter into any such security, option, warrant, call, right, commitment, agreement, arrangement or undertaking. All dividends or distributions on securities of the Company or any Subsidiary of the Company that have been declared or authorized prior to the date of this Agreement have been paid in full. There are no outstanding bonds, debentures, notes or other indebtedness of the Company or any Subsidiary of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matter on which holders of shares of the Company may vote. There are no outstanding agreements to which the Company or any Subsidiary of the Company or any of their respective officers or directors is a party concerning the voting, sale, transfer or registration of any capital stock or other equity securities of the Company or any Subsidiary of the Company.

(d)           Authority; Noncontravention; Consents .

(i)          (A)         Each of the Company and the Company Operating Partnership has the requisite corporate or limited partnership power and authority, as applicable, to enter into this Agreement and each of the Ancillary Agreements to which it is a party and, subject to receipt of the Company Shareholder Approval, to consummate the Mergers and the other transactions contemplated by this Agreement and the Ancillary Agreements to which it is a party. The execution and delivery by each of the Company and the Company Operating Partnership of this Agreement and each of the Ancillary Agreements to which it is a party and the consummation by each of the Company and the Company Operating Partnership of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate and limited partnership action, as applicable, on the part of the Company and the Company Operating Partnership and, except for (x) the filing of the Articles of Merger with and acceptance for record of the Articles of Merger by the SDAT and the due filing of the Certificate of Merger with the Delaware Secretary, and (y) with respect to the Partnership Merger, the due filing of the Partnership Certificate of Merger with the Delaware Secretary, no other corporate or limited partnership proceedings on the part of the Company or the Company Operating Partnership, as applicable, are necessary to authorize this Agreement and the Ancillary Agreements to which it is a party or to consummate the transactions contemplated hereby and thereby, subject to receipt of the Company Shareholder Approval. Each of the Company and the Company Operating Partnership has duly executed and delivered this Agreement and each of the Ancillary Agreements to which it is a party and, assuming due authorization, execution and delivery by each of the Parent, the Merger Sub and the Parent Operating Partnership, constitutes a legally valid and binding obligation of each of the Company and the Company Operating Partnership, enforceable against the Company and the Company Operating Partnership in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at Law).

(B)         The Company Special Committee, at a meeting duly called and held, has, upon the unanimous vote of all its members, recommended that the Company Board approve this Agreement and the Ancillary Agreements to which the Company and Company Operating Partnership are a party and determined that the transactions contemplated hereby and thereby, including the Mergers, are advisable and in the best interests of the Company. The Company Board, based on the unanimous recommendation of the Company Special Committee, has (x) determined that the transactions contemplated by this Agreement and the Ancillary Agreements, including the Mergers, are advisable and in the best interests of the Company and are fair and reasonable to the Company and on terms not less favorable to the Company than those available from unaffiliated third parties and (y) directed that the Merger be submitted to a vote by the Company’s shareholders with the Company Board’s recommendation that the Company’s shareholders approve the Merger. As of the date hereof, the Company Board has not subsequently rescinded or modified, in any way, its determinations and approvals discussed above. In addition, the Company Special Committee has, at a meeting duly called and held, by unanimous vote of all its members, recommended that the Company Board approve, and the Company Board (based on the unanimous recommendation of the Company Special Committee) has approved, the Company Specified Charter Amendments, and the Company Board has determined the Specified Charter Amendments to be advisable, and directed that the Company Specified Charter Amendments be submitted to a vote by the Company’s shareholders with the Company Board’s recommendation that the Company’s shareholders approve the Company Specified Charter Amendments.

(ii)         Except as set forth on Schedule 3.1(d)(ii) of the Company Disclosure Letter, the execution and delivery of this Agreement and the Ancillary Agreements to which it is a party by each of the Company and the Company Operating Partnership do not, and the consummation of the transactions contemplated hereby and thereby and compliance by it with the provisions of this Agreement and the Ancillary Agreements to which it is a party will not, conflict with, or result in any violation or breach of, or default (with or without notice or lapse of time, or both) under, or require any consent, approval or notice under, or give rise to a right of termination, cancellation or acceleration of any material obligation or loss of a material benefit under, or result in the creation of any Encumbrance upon any of the properties or assets of the Company or any Subsidiary of the Company under, or result in the triggering of any payments pursuant to, (A) the Company Organizational Documents, (B) any loan or credit agreement, note, bond, mortgage, indenture, lease, franchise agreement, license agreement, Permit, Contract or other agreement or instrument applicable to the Company or any Subsidiary of the Company or their respective properties or assets, or (C) subject to compliance with the governmental filings and other matters referred to in Section 3.1(d)(iii) , any Laws applicable to the Company or any Subsidiary of the Company, or their respective properties or assets, other than, in the case of clause ( B ) or ( C ), any such conflicts, violations, defaults, rights or Encumbrances that would not, individually or in the aggregate, have a Company Material Adverse Effect.

(iii)        No material consent, approval, order or authorization of, or registration, declaration or filing with, any federal, state or local government or any court, administrative or regulatory agency or commission, governmental arbitrator or other governmental authority, instrumentality or agency, domestic or foreign (a “ Governmental Entity ”), is required by or with respect to the Company or any Subsidiary of the Company in connection with the execution and delivery of this Agreement and the Ancillary Agreements by the Company or the Company Operating Partnership or the consummation by any of the Company or the Company Operating Partnership of any of the transactions contemplated hereby and thereby, except for (A) the filings with the Securities and Exchange Commission (the “ SEC ”) of (1) a preliminary and definitive Joint Proxy Statement relating to the Company Shareholder Meeting and the Parent Shareholder Meeting and of a registration statement on Form S-4 pursuant to which the offer and sale of Parent Common Shares in the Merger will be registered pursuant to the Securities Act and in which the Joint Proxy Statement will be included as a prospectus, and declaration of effectiveness of the Form S-4 and (2) such reports under the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), as may be required in connection with this Agreement, the Mergers and the other transactions contemplated by this Agreement, (B) the filing of Articles of Merger with the SDAT, (C) the filing of the Certificate of Merger with the Delaware Secretary, (D) such filings with Governmental Entities to satisfy the applicable requirements of the Laws of states in which the Company and any Subsidiary of the Company are qualified or licensed to do business, as set forth on Schedule 3.1(d)(iii) of the Company Disclosure Letter, (E) approval from the New York Stock Exchange (“ NYSE ”) authorizing the listing of the Parent Common Shares to be issued pursuant to Merger, and (F) such other consents, approvals, orders, authorizations, registrations, declarations and filings (1) as are set forth on Schedule 3.1(d)(iii) of the Company Disclosure Letter or (2) which, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

(e)           SEC Documents; Financial Statements .

(i)          The Company has filed with the SEC all reports, schedules, forms, statements and other documents required to be filed by the Company since January 1, 2014 (as amended through the date hereof, the “ Company SEC Documents ”). All of the Company SEC Documents (other than preliminary material), as of their respective filing dates, were prepared in all material respects in accordance with, and complied in all material respects with, all applicable requirements of the Securities Act of 1933, as amended (the “ Securities Act ”), or the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Documents. None of the Company SEC Documents, at the time of filing, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except to the extent such statements have been modified or superseded by Company SEC Documents later filed by the Company. The Company does not have any outstanding and unresolved comments from the SEC with respect to any of the Company SEC Documents. No Subsidiary of the Company is subject to the periodic reporting requirements of the Exchange Act or is otherwise required to file any forms, reports, schedules, statements or other documents with the SEC, any foreign Governmental Entity that performs a similar function to that of the SEC or any securities exchange or quotation service. The Company has made available to the Parent copies of all material correspondence between the SEC, on the one hand, and the Company and any of the Subsidiaries of the Company, on the other hand, since January 1, 2014 through the date of this Agreement. At all applicable times, the Company has complied in all material respects with the applicable certification requirements in Sections 302 and 906 of the Sarbanes-Oxley Act of 2002 and rules and regulations promulgated thereunder, as amended from time to time (the “ Sarbanes-Oxley Act ”).

(ii)         The audited consolidated financial statements and unaudited consolidated interim financial statements of the Company and its Subsidiaries included or incorporated by reference in the Company SEC Documents (including, in each case, any notes or schedules thereto) complied, as of their respective dates of filing with the SEC, in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto (including, without limitation, Regulation S-X), were prepared in accordance with U.S. generally accepted accounting principles (“ GAAP ”) (except, in the case of unaudited interim financial statements, as permitted by Forms 10-Q or 8-K of the SEC) applied on a consistent basis during the periods and at the dates involved (except as may be indicated in the notes thereto) and fairly present in all material respects the consolidated financial condition of the Company and its Subsidiaries taken as a whole as of the dates thereof and consolidated results of operations and cash flows for the periods then ended (subject, in the case of unaudited interim financial statements, to the absence of notes and normal year-end adjustments). The books of account and other financial records of the Company and its Subsidiaries are accurately reflected in all material respects in the financial statements included in the Company SEC Documents. The Company has no Subsidiary which is not consolidated for accounting purposes.

(iii)        There are no material weaknesses in the design or operation of internal controls over financial reporting that are reasonably likely to adversely affect in any material respect the Company’s or any Subsidiary of the Company’s ability to record, process, summarize and report financial data, other than as publicly disclosed in the Company SEC Documents. The Company has established and maintains disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act) designed to provide reasonable assurances that material information relating to the Company, including its consolidated Subsidiaries, is made known to its principal executive officer and principal financial officer. The Company has evaluated the effectiveness of its disclosure controls and procedures and, to the extent required by applicable Law, presented in any applicable Company SEC Documents that is a report on Form 10-K or Form 10-Q, or any amendment thereto, its conclusions about the effectiveness of the disclosure controls and procedures as of the end of the period covered by such report or amendment based on such evaluation. To the Knowledge of the Company Parties, such disclosure controls and procedures are effective in timely alerting the Company’s principal executive officer and principal financial officer to information required to be included in the Company’s periodic reports required under the Exchange Act. Since the enactment of the Sarbanes-Oxley Act, neither the Company nor any Subsidiary of the Company has made any prohibited loans to any director or executive officer of the Company (as defined in Rule 3b-7 under the Exchange Act).

(iv)        Neither the Company nor any of its Subsidiaries is a party to, or has any commitment to become a party to, any joint venture, off-balance sheet partnership or any similar Contract (including any Contract or arrangement relating to any transaction or relationship between or among the Company or any of its Subsidiaries, on the one hand, and any unconsolidated Affiliate, including any structured finance, special purpose or limited purpose entity or Person, on the other hand), or any “off-balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K of the Securities Act), where the result, purpose or intended effect of such Contract is to avoid disclosure of any material transaction involving, or material liabilities of, the Company or any of its Subsidiaries in the Company’s or its Subsidiaries’ published financial statements or any of the Company SEC Documents.

(f)           Absence of Certain Changes or Events . Except as disclosed in the Company SEC Documents or on Schedule 3.1(f) of the Company Disclosure Letter, since December 31, 2015 (the “ Financial Statement Date ”) and through the date of this Agreement, and except in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (i) the Company and its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practices and there has not been a Company Material Adverse Effect, nor has there been any occurrence or circumstance that, individually or in the aggregate, has had, or would with the passage of time reasonably be expected to result in, a Company Material Adverse Effect, and (ii) other than in the ordinary course of business consistent with past practice, none of the Company or any of its Subsidiaries have taken any action that, if taken after the date hereof, would be in violation of Section 4.1 .

(g)           Litigation . Except as disclosed on Schedule 3.1(g) of the Company Disclosure Letter, there is no pending or, to the Knowledge of the Company Parties, threatened material Legal Action or material investigation pending by a Governmental Entity against or affecting (i) the Company or any Subsidiary of the Company or any asset of the Company or any asset of any Subsidiary of the Company or (ii) any director, officer or employee of the Company or any Subsidiary of the Company or other Person for whom the Company or any Subsidiary of the Company may be liable, nor is there any judgment, decree, injunction, rule or order of any Governmental Entity or arbitrator outstanding against the Company or any Subsidiary of the Company, other than any such Legal Action that does not (X) involve an amount in controversy in excess of $1,500,000 or (Y) seek material injunctive or other material non-monetary relief. Other than pursuant to the Company Organizational Documents or otherwise set forth on Schedule 3.1(g) , no Contract between the Company or any Subsidiary of the Company, on the one hand, and any current or former director, officer, employee or shareholder (or equivalent interest holder) of the Company or any Subsidiary of the Company, on the other hand, exists that provides for indemnification.

(h)           Taxes . Except as would not have, individually or in the aggregate, a Company Material Adverse Effect:

(i)          The Company and each Subsidiary of the Company have timely filed all U.S. federal and other material Tax Returns and reports required to be filed by it (after giving effect to any filing extension properly granted by a Governmental Entity having authority to do so). All such Tax Returns are true, correct and complete in all material respects. Neither the Company nor any other Person on behalf of the Company or any Subsidiary of the Company has requested any extension of time within which to file any Tax Return, which Tax Return has not yet been filed. The Company and each Subsidiary of the Company have paid (or the Company has paid on their behalf), within the time and manner prescribed by Law, all material Taxes due and payable by them (whether or not shown on such Tax Returns). The most recent financial statements contained in the Company SEC Documents filed with the SEC prior to the date of this Agreement reflect an adequate reserve for accrued liabilities or expenses for all Taxes due and payable by the Company and its Subsidiaries as a group for all taxable periods and portions thereof through the date of such financial statements. The Company and its Subsidiaries (as a group) have established on their books and records (which may, but are not required to, be reflected only on the books and records of the Company) reserves or accrued liabilities or expenses that are adequate for the payment of all material Taxes for which the Company or any Subsidiary of the Company is liable but which are not yet due and payable. The Company has incurred no liability for any Taxes under Sections 857(b), 860(c) or 4981 of the Code or Treasury Regulation Sections 1.337(d)-5, 1.337(d)-6 or 1.337(d)-7, including, without limitation, any Tax arising from a prohibited transaction described in Section 857(b)(6) of the Code and the excise tax on redetermined rents, redetermined deductions, redetermined TRS service income, and excess interest under Section 857(b)(7) of the Code; and neither the Company nor any of its Subsidiaries has incurred any liability for Taxes other than in the ordinary course of business and other than transfer or similar Taxes arising in connection with the sale of property. To the Knowledge of the Company Parties, no event has occurred, and no condition or circumstances exists, which presents a material risk that any Tax described in the preceding sentences will be imposed on the Company or any Subsidiary of the Company. No deficiencies for Taxes have been assessed in writing by a Governmental Entity against the Company or any of its Subsidiaries, and no requests for waivers of the time to assess any such Taxes have been granted and remain in effect or are pending. In the last three (3) years, no written claim has been proposed by any Governmental Entity in any jurisdiction where the Company or any Subsidiary of the Company do not file Tax Returns that the Company or any Subsidiary of the Company is or may be subject to Tax by such jurisdiction.

(ii)         The Company (A) for all of its taxable years beginning with the taxable year ended December 31, 2012 through the most recent December 31, has been subject to taxation as a real estate investment trust under the Code within the meaning of Section 856 of the Code (“ REIT ”) and has satisfied the requirements to qualify as a REIT for such years, (B) has operated, and intends to continue to operate through to the Effective Time of the Merger, in such a manner as to enable the Company to qualify as a REIT for its taxable year that will end with the Merger, and (C) has not taken or omitted to take any action which could reasonably be expected to result in a challenge by the Internal Revenue Service (“ IRS ”) to its status as a REIT, and, to the Knowledge of the Company Parties, no such challenge is pending or threatened in writing. Each Subsidiary of the Company or Other Company Subsidiary that files Tax Returns as a partnership (or as a disregarded entity), for U.S. federal income tax purposes has, since inception, been classified for federal income tax purposes as a partnership (or as a disregarded entity) and not as a corporation or as an association taxable as a corporation, or a “publicly traded partnership” within the meaning of Section 7704(b) of the Code that is treated as a corporation for U.S. federal income tax purposes under Section 7704(a) of the Code. Each Subsidiary of the Company or Other Company Subsidiary that is a corporation has been, since its formation, classified as a Qualified REIT Subsidiary, a Taxable REIT Subsidiary or a REIT.

(iii)        Neither the Company nor any Subsidiary of the Company is a party to any material pending action or proceeding, including any audit or contest, by any Governmental Entity with regard to Taxes or Tax Returns of the Company or any Subsidiary of the Company.

(iv)        Neither the Company nor any Subsidiary of the Company holds any asset the disposition of which, if occurring in a fully taxable transaction immediately following the Closing, would be subject to (or to rules similar to) Section 337(d) or 1374 of the Code or the regulations thereunder (assuming for this purpose that the “recognition period,” as defined in Section 1374, is in all cases 5 years), nor has it disposed of any such asset during its current taxable year.

(v)         Neither the Company nor any Subsidiary of the Company (A) is or has been at any time a member of an affiliated consolidated, combined or unitary group (other than a group the common parent of which is the Company or a directly or indirectly wholly owned Subsidiary of the Company) and (B) has any liability for the Taxes of any other Person other than the Company and such Subsidiaries of the Company under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, or by contract (other than Contracts entered into in the ordinary course of business the principal purpose of which is unrelated to Tax), or otherwise.

(vi)        Neither the Company nor any Subsidiary of the Company has participated in, or otherwise made a filing with respect to, any “listed transaction” within the meaning of Treasury Regulations § 1.6011-4(b)(2).

(vii)       None of the Company or any Subsidiary of the Company will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any (A) change in method of accounting for a taxable period ending on or prior to the Closing Date, (B) “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign Tax Law) executed on or prior to the Closing Date, (C) intercompany transactions or excess loss account described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, local or foreign Tax Law), (D) installment sale or open transaction disposition made on or prior to the Closing Date, (E) prepaid amount received on or prior to the Closing Date, or (F) cancellation of indebtedness income deferred pursuant to Section 108(i) of the Code the election of which was made on or prior to the Closing Date, in the case of (A), (C), (D), (E), and (F) outside of the ordinary course of business.

(viii)      The Company does not have any earnings and profits attributable to the Company or any other corporation for any non-REIT year within the meaning of Section 857 of the Code.

(ix)         Neither the Company nor any Subsidiary of the Company has made any payments, or is obligated to make any payments, or is a party to an agreement that could obligate it to make any payments that will not be deductible under Section 280G of the Code.

(x)          Neither the Company nor its Subsidiaries is or has been a party to any Tax allocation or sharing agreement or similar agreement or arrangement (other than any agreement or arrangement either solely between the Company and any Subsidiary of the Company, solely between or among any two or more Subsidiaries of the Company, or with customers, vendors, lessors or other third parties entered into in the ordinary course of business and not primarily related to Taxes) pursuant to which it will have any obligation to make any payments after the Closing.

(xi)         There are no Tax Protection Agreements for the Company or any Subsidiary of the Company currently in force or otherwise binding upon the Company or any Subsidiary of the Company. Neither the Company nor any Subsidiary of the Company has any current and outstanding Liability under any Tax Protection Agreement, and no Person has raised, or, to the Knowledge of the Company Parties, threatened to raise, a material claim against the Company or any Subsidiary of the Company under any Tax Protection Agreement.

(xii)        To the Knowledge of the Company Parties, all Taxes that the Company or its Subsidiaries are required by Law to withhold or collect, including Taxes required to have been withheld in connection with amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party and sales, gross receipts and use taxes, and withholding of Taxes pursuant to Sections 1441, 1442, 1445, 1446, 3402, and 1471 through 1474 of the Code or similar provisions under any foreign Laws, have been duly withheld or collected and, to the extent required, have been paid over to the proper Governmental Entities or, if not yet due, are held in separate bank accounts for such purpose. There are no material Encumbrances for Taxes upon the assets of the Company or its Subsidiaries except for statutory Encumbrances for Taxes not yet due.

(xiii)       Within the past two (2) years, none of the Company or any of its Subsidiaries has either been a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code or in a distribution which could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.

(xiv)      The Company is not aware of any fact or circumstance that could reasonably be expected to prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code.

(i)           Related Party Transactions . Schedule 3.1(i) of the Company Disclosure Letter sets forth a complete list as of the date hereof of all agreements, contracts and arrangements between the Company and any Subsidiary of the Company, on the one hand, and the Company’s Sponsor, Advisor or Affiliates of the Sponsor or Advisor, on the other hand. Except as set forth on Schedule 3.1(i) of the Company Disclosure Letter, there is no (i) loan outstanding from or to any employee, officer or director of the Company or any Subsidiary of the Company, (ii) employment or severance Contract or other arrangement with respect to severance with respect to any employee, officer or director of the Company or any Subsidiary of the Company, or (iii) any agreement to appoint or nominate any Person as a director of the Company or any Subsidiary of the Company. Except for compensation, benefits and advances received in the ordinary course of business by employees, directors or consultants of the Company or its Subsidiaries or as otherwise set forth on Schedule 3.1(i) of the Company Disclosure Letter, there are no arrangements or Contracts in effect as of the date hereof between the Company or any of its Subsidiaries, on the one hand, and any Person who is (i) an officer, director or Affiliate of the Company or any Subsidiary of the Company, (ii) Sponsor or an Affiliate of Sponsor, or any other Person in which Sponsor or any Affiliate of Sponsor owns an equity interest, or any officer, director or employee of the foregoing, (iii) any member of the “immediate family” (as such term is defined in Item 404 of Regulation S-K promulgated under the Securities Act) of the foregoing, (iv) a record or beneficial owner of 5% or more of the voting securities of the Company, (v) an associate (as defined in Rule 12b-2 under the Exchange Act) of the foregoing or (vi) an entity of which any of the foregoing is an Affiliate, on the other hand. True and materially complete copies of all such documents have been made available to the Parent prior to the date hereof and each such document is listed on Schedule 3.1(i) of the Company Disclosure Letter.

(j)           Opinion of Financial Advisor; No Brokers . The financial advisor identified on Schedule 3.1(j) of the Company Disclosure Letter has delivered its opinion, addressed to the Company Special Committee, to the effect that, as of the date of such opinion and subject to the qualifications, assumptions and limitations set forth therein, the aggregate consideration to be received by the holders of Company Shares (other than the Parent, the Merger Sub or any of their respective affiliates) in the Merger pursuant to this Agreement is fair to such holders from a financial point of view. It is agreed and understood that such opinion is for the Company Special Committee and may not be relied upon by the Parent, the Merger Sub or any of their respective Affiliates. The Company will provide to the Parent, solely for informational purposes, a photocopy of the written version of the opinion described in this Section 3.1(j) after receipt thereof by the Company. Except for the financial advisor identified on Schedule 3.1(j) of the Company Disclosure Letter, no broker, investment banker, financial advisor or other Person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of the Company or any Subsidiary of the Company.

(k)           Permits; Compliance with Laws .

(i)          The Company and its Subsidiaries, or the management companies for the Company Properties, own or possess all franchises, grants, easements, consents, certificates, permits, licenses, variances, authorizations, exemptions, orders, registrations and approvals of all Governmental Entities (the “ Permits ”) necessary for the Company and its Subsidiaries to own, lease and operate the properties and assets of the Company and its Subsidiaries or to carry on the business of the Company and its Subsidiaries as it is now being conducted by the Company and its Subsidiaries, except where the failure to have such Permits would not, individually or in the aggregate, have a Company Material Adverse Effect. All such Permits are in full force and effect, except for such failure to be in full force and effect as would not, individually and in the aggregate, have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of the Company has received notice that any suspension, modification or revocation of any Permit is pending or, to the Knowledge of the Company Parties, threatened nor, to the Knowledge of the Company Parties, do grounds exist for any such action, except for such suspensions, modifications or revocations as would not, individually or in the aggregate, have a Company Material Adverse Effect.

(ii)         Neither the Company nor any of its Subsidiaries has violated or failed to comply with any such Permit, or any Law, judgment, decree or order of any Governmental Entity applicable to its business, properties or operations, except for violations and failures to comply that would not, individually or in the aggregate, have a Company Material Adverse Effect.

(iii)        To the Knowledge of the Company Parties, neither the Company nor any Subsidiary of the Company nor any director, officer, agent or employee of the Company or any Subsidiary of the Company or any other Person on behalf of the Company or any Subsidiary of the Company has taken any action, directly or indirectly, that would constitute a violation in any material respect by such Persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “ FCPA ”) or other U.S. anti-corruption laws, including making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA or other U.S. anti-corruption laws.

(l)           Contracts .

(i)           Schedule 3.1(l)(i) of the Company Disclosure Letter contains a list of the following Contracts to which the Company or any Subsidiary of the Company is a party or by which their respective assets are subject to, in each case, as of the date hereof:

(A)         any lease, sublease, license or occupancy agreement of real property providing for annual rentals of $1,500,000 or more (the “ Material Company Leases ”);

(B)         any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture, which is not a wholly-owned Subsidiary of the Company;

(C)         any Contract relating to indebtedness for borrowed money (including guarantees) or pursuant to which any property or asset of the Company or any Subsidiary of the Company is mortgaged, pledged or otherwise subject to an Encumbrance, in each case in excess of $1,500,000, other than (x) accounts receivables and payables and (y) loans to direct or indirect wholly-owned Subsidiaries of the Company;

(D)         any Contract with current or ongoing obligations (as to the Company) currently required to be filed as an exhibit to the Annual Report of the Company on Form 10−K pursuant to Item 601(b)(10) of Regulation S−K under the Securities Act;

(E)         any Contract that purports to limit in any material respect the right of the Company or its Subsidiaries (1) to engage in any line of business, or (2) to compete with any Person or operate in any location;

(F)         any Contract providing for the sale or exchange of, or option, right of first refusal or offer, or similar right, to sell or exchange, any of the Company Properties, or for the purchase or exchange of, or option, right of first refusal or offer, or similar right to purchase or exchange, any real estate entered into in the past two (2) years or in respect of which the applicable transaction has not yet been consummated;

(G)         any Contract entered into in the past two (2) years in respect of which the applicable transaction has not yet been consummated for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets (other than Contracts referenced in clause (F) of this Section 3.1(l)(i) ) or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,500,000, in each case other than in the ordinary course of business and in a manner consistent with past practice;

(H)         any Contract pursuant to which the Company or any Subsidiary of the Company manages any real property or pursuant to which any other Person manages any real property owned by the Company or any Subsidiary of the Company pursuant to an agreement with the Company or any Subsidiary of the Company, on the one hand, and such other Person, on the other hand;

(I)         other than Contracts for ordinary repair and maintenance, any Contract relating to the development or construction of, or additions or expansions to, the Company Properties, under which the Company or any Subsidiary of the Company has, or expects to incur, an obligation in excess of $1,500,000 in the aggregate that has not been satisfied as of the date hereof;

(J)         any Contract under which the Company or any Subsidiary of the Company has continuing indemnification obligations relating to the settlement or proposed settlement of any Legal Action, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,500,000 in the aggregate;

(K)         any Contract that provides for any unpaid settlement or proposed settlement of any Legal Action in which the amount to be paid in settlement is in excess of $1,500,000;

(L)         any Contract that provides for a guarantee in an amount in excess of $1,500,000 of the obligations of any Person that is not the Company or any Subsidiary of the Company, other than any Contract providing for indemnification of Persons pursuant to Contracts entered into in the ordinary course of business; and

(M)         any Contract (other than Contracts referenced in clauses (A) through (L) of this Section 3.1(l)(i) ) that, by its terms, calls for payments by or Liability of the Company or any Subsidiary of the Company in excess of $1,500,000 other than any Contract under this clause (M) that, by its terms, is terminable within six (6) months of this Agreement (without termination fee or penalty).

The Contracts described in clauses (A) through (M) , including those required to be identified on Schedule 3.1(l)(i) of the Company Disclosure Letter and the Company Management Agreement Documents, in each case together with all exhibits and schedules thereto, are referred to as the “ Company Material Contracts .”

(ii)         Except for such breaches and defaults as would not, individually or in the aggregate, have a Company Material Adverse Effect, (A) neither the Company nor any Subsidiary of the Company is and, to the Knowledge of the Company Parties, no other party is in breach or violation of, or default under, any Company Material Contract and (B) none of the Company or any of its Subsidiaries has received any written claim of default under any such Company Material Contract. To the Knowledge of the Company Parties, each Company Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect. The Company has made available to the Parent true and complete copies of all Company Material Contracts, including any amendments or supplements thereto.

(m)           Environmental Matters .

(i)          The Company and each Subsidiary of the Company has obtained all Permits from Governmental Entities which are required in respect of its business, operations, assets or properties under any applicable Environmental Laws and the Company and each Subsidiary of the Company is in compliance with the terms and conditions of all such Permits and with any applicable Environmental Laws, except where failure to be in compliance would not, individually or in the aggregate, have a Company Material Adverse Effect, and there are no past or present actions, activities, circumstances, conditions, events or incidents that may prevent or interfere with such compliance in all material respects in the future;

(ii)         there is no Environmental Claim pending or threatened against the Company or any Subsidiary of the Company or, to the Knowledge of the Company Parties, against any Person whose Liability for any Environmental Claim the Company or any Subsidiary of the Company has or may have retained or assumed either contractually or by operation of Law, except for such Environmental Claims that would not, individually or in the aggregate, have a Company Material Adverse Effect;

(iii)        neither the Company nor any Subsidiary of the Company nor, to the Knowledge of the Company Parties, any other Person has placed, stored, deposited, discharged, buried, dumped, disposed of or released any Hazardous Substances produced by, or resulting from any of the Company’s or any of the Company’s Subsidiaries’ operations, at any Company Properties, except for inventories of such substances to be used, and wastes generated therefrom, in the ordinary course of business of the Company and the Subsidiaries of the Company (which inventories and wastes, if any, were and are stored or disposed of in accordance with applicable Environmental Laws), and except as would not, individually or in the aggregate, have a Company Material Adverse Effect; and

(iv)        neither the Company nor any Subsidiary of the Company has entered into or agreed to any consent decree or order or is subject to any outstanding judgment, decree or judicial order relating to compliance with Environmental Laws or the investigation, sampling, monitoring, treatment, remediation, removal or cleanup of Hazardous Substances with any Governmental Entity, and, to the Knowledge of the Company Parties, no investigation, litigation or other proceeding is pending or threatened with respect thereto. For purposes of this Agreement, “ Hazardous Substance ” shall mean any element, pollutant, contaminant, waste, compound, substance or material of any nature whatsoever (including, without limitation, any product) that is listed, classified, defined in or regulated pursuant to any Environmental Law or the subject of regulatory action by any Governmental Entity pursuant to any Environmental Law, including, without limitation, any petroleum and petroleum derivatives, by-product or additive (including crude oil and any fraction thereof), asbestos, radon gas, urea formaldehyde, asbestos or asbestos-containing material, lead or lead-based paints or materials, pesticides, polychlorinated biphenyls, radioactive materials, toxic mold, volatile organic compound or hazardous air pollutant. To the Knowledge of the Company Parties, the Company has made available to the Parent true and complete copies of all environmental reports and audits that are within the possession of the Company or within the possession or control of its Subsidiaries as of the date hereof, and to the Knowledge of the Company Parties, no other environmental reports or audits exist with respect to the Company, any Subsidiary of the Company or any Company Property.

(n)           The Company Properties .

(i)           Schedule 3.1(n)(i) (Part I) of the Company Disclosure Letter lists each parcel of real property currently owned or leased (as lessee, lessor, sublessee or sublessor), including ground leased, by the Company or any Subsidiary of the Company as of the date hereof, and sets forth the Company or applicable Subsidiary of the Company owning such property (the “ Company Properties ”). Except as disclosed in title insurance policies and reports (and the documents or surveys referenced in such policies and reports), copies of which policies and reports were made available for review to the Parent: (A) the Company or a Subsidiary of the Company owns fee simple title or leasehold title (as applicable) to the Company Properties, free and clear of pledges, claims, liens, charges, encumbrances and security interests of any kind or nature whatsoever, mortgages or deeds of trust, claims against title, charges which are liens, security interests or other encumbrances on title (“ Encumbrances ”), other than Permitted Liens; (B) except as has not had and would not, individually or in the aggregate, have a Company Material Adverse Effect, neither the Company nor any Subsidiary of the Company has received written notice of any violation of any Law affecting any portion of any of the Company Properties issued by any Governmental Entity; and (C) except as would not, individually or in the aggregate, have a Company Material Adverse Effect, neither the Company nor any Subsidiary of the Company has received notice to the effect that there are (1) condemnation or rezoning proceedings that are pending or threatened with respect to any of the Company Properties or (2) zoning, building or similar Laws, codes, ordinances, orders or regulations that are or will be violated by the continued maintenance, operation or use of any buildings or other improvements on any of the Company Properties or by the continued maintenance, operation or use of the parking areas. Schedule 3.1(n)(i) (Part II) of the Company Disclosure Letter sets forth a list of the address of each facility and real property which, as of the date of this Agreement, is under a binding Contract by the Company or a Subsidiary of the Company for purchase or which is required under a binding Contract to be leased or subleased by the Company or a Subsidiary of the Company after the date of this Agreement.

(ii)          Schedule 3.1(n)(ii) of the Company Disclosure Letter lists each management agreement in effect as of the date hereof pursuant to which any third party manages or operates any of the Company Properties on behalf of the Company or any Subsidiary of the Company pursuant to an agreement between such Person, on the one hand, and the Company or any Subsidiary of the Company, on the other hand, and describes the property that is subject to such management agreement, the Company or applicable Subsidiary of the Company that is a party, the date of such management agreement and each material amendment, guaranty or other agreement binding on the Company or applicable Subsidiary of the Company and relating thereto (collectively, the “ Company Management Agreement Documents ”). True, correct and complete copies of all Company Management Agreement Documents have been made available to the Parent. Each Company Management Agreement Document is valid, binding and in full force and effect as against the Company or the applicable Subsidiary of the Company and, to the Knowledge of the Company Parties, as against the other party thereto. As of the date hereof, neither the Company nor any Subsidiary of the Company owes any termination, cancellation or other similar fees or any liquidated damages to any third party manager or operator.

(iii)        The Company has not received written notice of, nor does the Company have any Knowledge of, any latent defects or adverse physical conditions affecting any of the Company Properties or the improvements thereon, except as would not, individually or in the aggregate, have a Company Material Adverse Effect.

(iv)        True and complete in all material respects copies of (i) the Material Company Leases, in each case in effect as of the date hereof, have been made available to the Parent. Except as set forth on Schedule 3.1(n)(iv) of the Company Disclosure Letter or as individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect, (1) neither the Company nor any Subsidiary of the Company is and, to the Knowledge of the Company Parties on the date hereof, no other party is in breach or violation of, or default under, any Material Company Lease, (2) neither the Company nor any Subsidiary of the Company is in receipt of any rent under any Company Lease paid more than thirty (30) days before such rent is due and payable (other than payment of first or last month’s rent), and (3) each Material Company Lease is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Company or any Subsidiary of the Company and, to the Knowledge of the Company Parties, with respect to the other parties thereto, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at Law). Neither the Company nor any Subsidiary of the Company is party to any oral Company Lease.

(o)           Personal Property . The Company and each Subsidiary of the Company have good and marketable title to, or a valid and enforceable leasehold interest in, all personal assets owned by the Company or each Subsidiary of the Company (as applicable). Neither the Company’s nor its Subsidiaries’ ownership of any such personal property is subject to any Encumbrances, other than Permitted Liens.

(p)           Insurance . With respect to each material insurance policy owned or held by the Company or any Subsidiary of the Company, to the Knowledge of the Company Parties, (i) the policy is legal, valid, binding and enforceable in accordance with its terms and is in full force and effect; (ii) neither the Company nor any Subsidiary of the Company is in breach or default (including any such breach or default with respect to the payment of premiums or the giving of notice), and no event has occurred that, with notice or the lapse of time or both, would constitute such a breach or default, or permit termination or modification, under the policy; (iii) as of the date hereof, no insurer on the policy has been declared insolvent or placed in receivership, conservatorship or liquidation; and (iv) as of the date hereof, no notice of cancellation or termination has been received, in each case, except as would not have, individually or in the aggregate, a Company Material Adverse Effect. The Company and its Subsidiaries maintain policies or binders of insurance covering risks and events and in amounts adequate for their respective businesses and operations to the extent customary in the industry in which they operate, and no such policies will terminate as a result of the consummation of the transactions contemplated by this Agreement and the Ancillary Agreements to which it is a party.

(q)           Information Supplied . None of the information contained in the Joint Proxy Statement related to the Company or any Subsidiary of the Company or that is provided by the Company or any Subsidiary of the Company for inclusion or incorporation by reference in the Form S-4 or any other document filed with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will (i) in the case of the Form S-4, at the time the Form S-4 becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) in the case of the Joint Proxy Statement, at the time of the mailing thereof or at the time the Company Shareholder Meeting is held, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, or (iii) with respect to any other document to be filed by the Company with the SEC in connection with the Merger or the other transactions contemplated by this Agreement, at the time of its filing with the SEC, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. The Form S-4 and the Joint Proxy Statement will (with respect to the Company, its officers and directors and the Subsidiaries of the Company) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act. Notwithstanding the foregoing provisions of this Section 3.1(q) , no representation or warranty is made by the Company with respect to information or statements made or incorporated by reference in the Form S-4, the Joint Proxy Statement or any other document to be filed by the Company with the SEC in connection with the Merger or the other transactions contemplated by this Agreement that were not supplied by or on behalf of the Company or the Subsidiaries of the Company.

(r)           Books and Records .

(i)          The books of account and other financial records of the Company and each Subsidiary of the Company are in all material respects true, complete and correct, have been maintained in accordance with good business practices, and are accurately reflected in all material respects in the financial statements included in the Company SEC Documents.

(ii)         The Company has made available to the Parent true, correct and complete copies of the Company Organizational Documents. Neither the Company nor any Subsidiary of the Company is, nor has the Company or any Subsidiary of the Company been, in violation of any of the Company Organizational Documents applicable to it in any material respect.

(s)           Labor Matters . Neither the Company nor any Subsidiary of the Company has, or has ever had, any employees.

(t)           Vote Required . The only vote of the holders of any class or series of the Company’s capital stock necessary (under applicable Law, this Agreement or otherwise) to approve the Company Specified Charter Amendments is the affirmative vote of a majority of all the votes entitled to be cast by holders of Company Shares. Assuming the Company Specified Charter Amendment Approval is obtained and the Company Specified Charter Amendments are effective prior to the Effective Time, the only vote of the holders of any class or series of the Company’s capital stock necessary (under applicable Law, this Agreement or otherwise) to approve the Merger, this Agreement, the Ancillary Agreements and the other transactions contemplated hereby and thereby is the Company Shareholder Approval. The consent of the Company, as the sole general partner of the Company Operating Partnership, is the only vote of partners of the Company Operating Partnership necessary to adopt and approve this Agreement and approve the Partnership Merger and the other transactions contemplated hereby.

(u)           No Undisclosed Material Liabilities . Except as set forth on Schedule 3.1(u) of the Company Disclosure Letter or as disclosed in the Company SEC Documents, there are no Liabilities of the Company or any of its Subsidiaries that would be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries in accordance with GAAP, and there is no existing condition, situation or set of circumstances that could reasonably be expected to result in such a Liability, other than: (i) Liabilities reserved for on the most recent balance sheet contained in the audited financial statements of the Company for the period ended December 31, 2015; (ii) Liabilities incurred in the ordinary course of business consistent with past practice of the Company subsequent to December 31, 2015 and (iii) such other Liabilities as would not, individually or in the aggregate, have a Company Material Adverse Effect.

(v)          Intellectual Property . To the Knowledge of the Company Parties (i) the conduct of the business of the Company and its Subsidiaries as currently conducted does not infringe upon or misappropriate the Intellectual Property rights of any other Person, and no claim has been asserted against the Company or any Subsidiary of the Company that the conduct of the business of the Company and its Subsidiaries as currently conducted infringes upon or may infringe upon or misappropriates the Intellectual Property rights of any other Person, except for any such infringement, misappropriation or claim that would not, individually or in the aggregate, have a Company Material Adverse Effect; and (ii) the Company or a Subsidiary of the Company owns or is licensed to use or otherwise has the right to use all Intellectual Property as currently used in, and as necessary to conduct the operation of its respective business, in accordance with the terms of any applicable license agreement, except where the failure to possess or have adequate rights to use such properties would not, individually or in the aggregate, have a Company Material Adverse Effect.

(w)           Benefit Plans; ERISA Compliance .

(i)          Other than the Company Stock Plans, neither the Company nor any Subsidiary of the Company has any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other employee benefit plan, arrangement or understanding (whether or not legally binding), including any “employee benefit plans,” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”), providing benefits to any current or former employee, officer or director of the Company or any Subsidiary of the Company or any Person affiliated with the Company under Section 414(b), (c), (m) or (o) of the Code.

(ii)         No director, officer or employee of the Company will become entitled to retirement, severance or similar benefits or to enhanced or accelerated benefits (including any acceleration of vesting or lapsing of restrictions with respect to equity-based awards) as a result of consummation of the transactions contemplated by this Agreement.

(iii)        No stock option granted by the Company under the Company Stock Plans (whether currently outstanding or previously exercised) has been granted with an exercise price that is less than the fair market value of the underlying stock on the date of grant, and no such stock option has been or would be, as applicable, subject to any Tax, penalty or interest under Section 409A of the Code.

(x)           Antitakeover Statutes . The Company and the Company Board (based on the unanimous recommendation of the Company Special Committee) have taken all action required to be taken by them to exempt this Agreement, the Mergers and the transactions contemplated hereby and thereby from the requirements of any “moratorium”, “control share”, “fair price”, “affiliate transaction”, “business combination” or other antitakeover Laws and regulations of any state.

(y)           Hart-Scott-Rodino Antitrust Improvements Act . In reliance upon, and subject to the accuracy of the representations and warranties provided in Section 3.2(z) , the Mergers and the transactions contemplated by this Agreement are exempt from any requirement to make any filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the implementing regulations thereto, 16 C.F.R. parts 801-803, because (i) the Company is a REIT and (ii) the Company Board has determined that the aggregate fair market value of the non-exempt assets of the Parent and the entities controlled by the Company is less than $78.2 million.

(z)           No Other Representations or Warranties . Except for the representations or warranties expressly set forth in this Section 3.1 , neither any Company Party nor any other Person on behalf of any Company Party has made, and each of the Parent Parties specifically disclaims that it is relying or has relied upon, any representation or warranty, expressed or implied, with respect to the Company or the Subsidiaries of the Company, their businesses, operations, assets, liabilities, condition (financial or otherwise), results of operations, future operating or financial results, estimates, projections, forecasts, plans or prospects (including the reasonableness of the assumptions underlying such estimates, projections, forecasts, plans or prospects) or the accuracy or completeness of any information regarding the Company or the Subsidiaries of the Company. In particular, without limiting the foregoing disclaimer, neither any Company Party nor any other Person makes or has made, and each of the Parent Parties specifically disclaims that it is relying or has relied upon, any representation or warranty to the Parent, the Merger Sub or any of their respective Affiliates or Representatives with respect to, except for the representations and warranties made by the Company Parties in this Section 3.1 , any oral or written information presented to the Parent, the Merger Sub or any of their respective Affiliates or Representatives in the course of their due diligence of the Company, the negotiation of this Agreement and the Ancillary Agreements to which it is a party or in the course of the transactions contemplated hereby. Notwithstanding anything contained in this Agreement to the contrary, each of the Company and the Company Operating Partnership acknowledges and agrees that none of the Parent Parties or any other Person has made or is making any representations or warranties relating to the Parent Parties whatsoever, express or implied, beyond those expressly given by the Parent Parties in Section 3.2 , including any implied representation or warranty as to the accuracy or completeness of any information regarding the Parent Parties furnished or made available to the Company Parties or any of their Representatives.

Section 3.2.           Representations and Warranties of the Parent and the Merger Sub . Except (a) as disclosed in the Parent Disclosure Letter, with numbering corresponding to the numbering of this Section 3.2 (it being acknowledged and agreed that disclosure of any item in any Section or subsection of the Parent Disclosure Letter with respect to any Section or subsection of this Section 3.2 shall be deemed disclosed with respect to any other Section or subsection of this Section 3.2 to the extent the applicability of such disclosure is reasonably apparent (it being understood that to be so reasonably apparent it is not required that the other Sections be cross-referenced); provided that nothing in the Parent Disclosure Letter is intended to broaden the scope of any representation or warranty of the Parent or the Merger Sub made herein and no reference to or disclosure of any item or other matter in the Parent Disclosure Letter shall be construed as an admission or indication that (1) such item or other matter is material, (2) such item or other matter is required to be referred to in the Parent Disclosure Letter or (3) any breach or violation of applicable Laws or any Contract, agreement, arrangement or understanding to which the Parent, the Merger Sub or any of the Subsidiaries of the Parent is a party exists or has actually occurred), or (b) as disclosed in the Parent SEC Documents publicly available, filed with, or furnished to, as applicable, the SEC on or after January 1, 2014 and prior to the date of this Agreement (excluding any risk factor disclosures contained in such documents under the heading “Risk Factors” and any disclosure of risks or other matters included in any “forward-looking statements” disclaimer or other statements that are cautionary, predictive or forward-looking in nature, which in no event shall be deemed to be an exception to or disclosure for purposes of any representation or warranty set forth in this Section 3.2 ), the Parent Parties jointly and severally represent and warrant to the Company Parties as follows:

(a)           Organization, Standing and Power . The Parent is a corporation duly organized, validly existing and in good standing under the laws of the State of Maryland and has the requisite corporate power and authority to operate its assets and properties and to carry on its business as it is now being conducted. The Merger Sub is a limited liability company formed, validly existing and in good standing under the laws of the State of Delaware and has the requisite limited liability company power and authority to operate its assets and properties and carry on its business as it is now being conducted. Each of the Parent and the Merger Sub is duly qualified or licensed to do business and is in good standing in each jurisdiction in which the nature of its business or the ownership, operations or leasing of its properties makes such qualification, licensing or good standing necessary, other than in such jurisdictions where the failure to be so qualified, licensed or in good standing would not, individually or in the aggregate, have a Parent Material Adverse Effect. Merger Sub has been formed solely for the purpose of engaging in the transactions contemplated hereby and, prior to the Effective Time, will have engaged in no other business activities and will have incurred no liabilities or obligations other than as contemplated herein or in connection with the transactions contemplated hereby.

(b)           Parent Subsidiaries . Schedule 3.2(b) of the Parent Disclosure Letter sets forth each Subsidiary of the Parent and each other corporate or non-corporate subsidiary in which the Parent owns any direct or indirect voting, capital, profits or other beneficial interest (“ Other Parent Subsidiary ”), including a list of each Subsidiary of the Parent or Other Parent Subsidiary that is a Qualified REIT Subsidiary or a Taxable REIT Subsidiary, together with (i) its respective jurisdiction of formation, (ii) each owner and the respective amount of such owner’s equity interest in such Subsidiary, (iii) a list of each jurisdiction in which such Subsidiary is qualified or licensed to do business and each assumed name under which such Subsidiary conducts business in any jurisdiction, and (iv) the classification for federal income tax purposes of each such Subsidiary and, to the Knowledge of the Parent, each Other Parent Subsidiary. All the outstanding shares of capital stock of each Subsidiary of the Parent that is a corporation have been duly authorized and validly issued, are fully paid and nonassessable and are owned by the Parent, by another Subsidiary of the Parent or by the Parent and another Subsidiary of the Parent, free and clear of all Encumbrances, other than Permitted Liens, and, other than Permitted Liens, free of any preemptive rights or any other limitation or restriction (including any limitation or restriction on the right to vote, sell, transfer, register or otherwise dispose of the shares). All equity interests in each Subsidiary of the Parent that is a partnership, limited liability company or business trust are owned by the Parent, by another Subsidiary of the Parent, or by the Parent and another Subsidiary of the Parent, free and clear of all Encumbrances, other than Permitted Liens, and, other than Permitted Liens, free of any preemptive rights or any other limitation or restriction (including any limitation or restriction on the right to vote, sell, transfer, register or otherwise dispose of the equity interests). There are no outstanding options, warrants or other rights to acquire ownership interests of or from any Subsidiary of the Parent. Each Subsidiary of the Parent that is a corporation is duly incorporated and validly existing under the laws of its jurisdiction of incorporation and has the requisite corporate power and authority to carry on its business as now being conducted, and each Subsidiary of the Parent that is a partnership, limited liability company or business trust is duly organized and validly existing and in good standing under the laws of its jurisdiction of organization and has the requisite power and authority to carry on its business as now being conducted. Each Subsidiary of the Parent is duly qualified or licensed to do business and is in good standing in each jurisdiction in which the nature of its business or the ownership, operation or leasing of its properties makes such qualification, licensing or good standing necessary, other than in such jurisdictions where the failure to be so qualified, licensed or in good standing would not, individually or in the aggregate, have a Parent Material Adverse Effect. Except for interests in the Subsidiaries of the Parent and investments in short-term investment securities, neither the Parent nor any Subsidiary of the Parent owns directly or indirectly any capital stock or other interest (equity or debt) in any other Person.

(c)           Capital Structure . Schedule 3.2(c) of the Parent Disclosure Letter sets forth a true and complete list as of the Measurement Date of (i) the authorized capital stock of the Parent, (ii) the issued and outstanding shares of capital stock of the Parent (“ Parent Common Shares ”), (iii) the number of shares of capital stock of the Parent reserved for issuance pursuant to the terms of outstanding awards granted pursuant to the Parent Stock Incentive Plans, (iv) the number of shares of capital stock of the Parent available for grant under the Parent Stock Incentive Plans and (v) the number of issued and outstanding Parent Partnership Units. All outstanding Parent Common Shares are, and all Parent Common Shares reserved for issuance will be, upon issuance in accordance with the terms specified in the instruments or agreements pursuant to which they are issuable, duly authorized, validly issued, fully paid and nonassessable. None of the outstanding Parent Common Shares are subject to or were issued in violation of, and none of the Parent Common Shares reserved for issuance by the Parent will be, upon issuance in accordance with the terms specified in the instruments or agreements pursuant to which they are issuable, subject to or issued in violation of, any preemptive right, purchase option, call option, right of first refusal, subscription or any other similar right. Schedule 3.2(c) of the Parent Disclosure Letter sets forth a true and complete list, as of the Measurement Date, of all outstanding options and Parent Restricted Stock under the Parent Stock Incentive Plans, the number of shares of capital stock subject to each such option and outstanding Parent Restricted Stock, the exercise price, date of grant and the names and of holders thereof. Each such option and Parent Restricted Stock was granted in compliance in all material respects with all applicable Laws and all of the terms and conditions of the Parent Stock Incentive Plans pursuant to which it was issued. As of the Measurement Date, except as set forth on Schedule 3.2(c) of the Parent Disclosure Letter, no shares of capital stock or other voting or non-voting securities of the Parent were issued, reserved for issuance or outstanding. Except (i) for the shares of capital stock and the options as set forth on Schedule 3.2(c) of the Parent Disclosure Letter, and (ii) as otherwise permitted under Section 4.2 , there are no outstanding securities, options, stock appreciation rights, warrants, calls, rights, commitments, agreements, arrangements or undertakings of any kind to which the Parent or any Subsidiary of the Parent is a party or by which such entity is bound, obligating the Parent or any Subsidiary of the Parent to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock, voting securities or other securities or ownership interests of the Parent or any Subsidiary of the Parent or obligating the Parent or any Subsidiary of the Parent to issue, grant, extend or enter into any such security, option, warrant, call, right, commitment, agreement, arrangement or undertaking. All dividends or distributions on securities of the Parent or any Subsidiary of the Parent that have been declared or authorized prior to the date of this Agreement have been paid in full. There are no outstanding bonds, debentures, notes or other indebtedness of the Parent or any Subsidiary of Parent having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matter on which holders of the Parent Common Shares may vote. There are no outstanding agreements to which the Parent or any Subsidiary of the Parent or any of their respective officers or directors is a party concerning the voting, sale, transfer or registration of any capital stock or other equity securities of the Parent or any Subsidiary of the Parent.

(d)           Authority; Noncontravention; Consents .

(i)          Each of the Parent, the Merger Sub and the Parent Operating Partnership has the requisite corporate, limited liability company or limited partnership power and authority, as applicable, to enter into this Agreement and each of the Ancillary Agreements to which it is a party and, subject to receipt of the Parent Shareholder Approval, to consummate the Mergers and the other transactions contemplated by this Agreement and the Ancillary Agreements to which it is a party. The execution and delivery by each of the Parent, the Merger Sub and the Parent Operating Partnership of this Agreement and each of the Ancillary Agreements to which it is a party and the consummation by each of the Parent, the Merger Sub and the Parent Operating Partnership of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate, limited liability company and limited partnership action, as applicable, on the part of the Parent, the Merger Sub and the Parent Operating Partnership and, except for (x) the filing of the Articles of Merger with and acceptance for record of the Articles of Merger by the SDAT and the due filing of the Certificate of Merger with the Delaware Secretary, and (y) with respect to the Partnership Merger, the due filing of the Partnership Certificate of Merger with the Delaware Secretary, no other corporate, limited liability company or limited partnership proceedings on the part of the Parent, the Merger Sub or the Parent Operating Partnership, as applicable, are necessary to authorize this Agreement and the Ancillary Agreements to which it is a party or to consummate the transactions contemplated hereby and thereby, subject to receipt of the Parent Shareholder Approval. Each of the Parent and the Parent Operating Partnership has duly executed and delivered this Agreement and each of the Ancillary Agreements to which it is a party and constitutes a legally valid and binding obligation of each of the Parent, the Merger Sub and the Parent Operating Partnership, enforceable against the Parent, the Merger Sub and the Parent Operating Partnership in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at Law).

(ii)         The Parent Special Committee, at a meeting duly called and held, has, upon the unanimous vote of all its members, recommended that the Parent Board approve this Agreement and the Ancillary Agreements to which the Parent, the Merger Sub and the Parent Operating Partnership are a party and determined that the transactions contemplated hereby and thereby, including the Mergers and issuance of Parent Common Shares as part of the Merger Consideration, are advisable and in the best interests of the Parent. The Parent Board, at a meeting duly called and held, has, upon the unanimous recommendation of the Parent Special Committee, with Edward M. Weil, Jr. having recused himself from voting, by unanimous vote of all of the independent directors serving on the Parent Board voting, (x) duly and validly authorized and approved the execution and delivery of this Agreement and the Ancillary Agreements to which the Parent, the Merger Sub and the Parent Operating Partnership are a party and determined that the transactions contemplated by this Agreement and the Ancillary Agreements, including the Mergers and issuance of Parent Common Shares as part of the Merger Consideration, are advisable and in the best interests of the Parent and (y) directed that the Merger and the issuance of Parent Common Shares as part of the Merger Consideration be submitted to a vote by the Parent’s shareholders with the Parent Board’s recommendation that the Parent’s shareholders approve the Merger and issuance of Parent Common Shares as part of the Merger Consideration. As of the date hereof, the Parent Board has not subsequently rescinded or modified, in any way, its determinations and approvals discussed above.

(iii)        Except as set forth on Schedule 3.2(d)(iii) of the Parent Disclosure Letter, the execution and delivery of this Agreement and the Ancillary Agreements to which it is a party by each of the Parent, the Merger Sub and the Parent Operating Partnership do not, and the consummation of the transactions contemplated hereby and thereby and compliance by it with the provisions of this Agreement and the Ancillary Agreements to which it is a party will not, conflict with, or result in any violation or breach of, or default (with or without notice or lapse of time, or both) under, or require any consent, approval or notice under, or give rise to a right of termination, cancellation or acceleration of any material obligation or loss of a material benefit under, or result in the creation of any Encumbrance upon any of the properties or assets of the Parent or any Subsidiary of the Parent under, or result in the triggering of any payments pursuant to, (A) the Parent Organizational Documents, (B) any loan or credit agreement, note, bond, mortgage, indenture, lease, franchise agreement, license agreement, Permit, Contract or other agreement or instrument applicable to the Parent or any Subsidiary of the Parent or their respective properties or assets, or (C) subject to compliance with the governmental filings and other matters referred to in Section 3.1(d)(iii) , any Laws applicable to the Parent or any Subsidiary of the Parent, or their respective properties or assets, other than, in the case of clause (B ) or ( C ), any such conflicts, violations, defaults, rights or Encumbrances that would not, individually or in the aggregate, have a Parent Material Adverse Effect.

(iv)        No material consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Entity, is required by or with respect to the Parent or any Subsidiary of the Parent in connection with the execution and delivery of this Agreement and the Ancillary Agreements to which it is a party by the Parent, the Merger Sub or the Parent Operating Partnership or the consummation by any of the Parent, the Merger Sub or the Parent Operating Partnership of any of the transactions contemplated hereby and thereby, except for (A) the filings with the SEC of (1) the Form S-4 relating to the issuance of the Merger Consideration and the declaration of effectiveness of the Form S-4, (2) the preliminary and definitive Joint Proxy Statement relating to the Parent Shareholder Meeting for the Parent Shareholder Approval, and (3) such reports under the Exchange Act as may be required in connection with this Agreement, the Mergers and the other transactions contemplated by this Agreement, (B) the filing of Articles of Merger with the SDAT, (C) the filing of the Certificate of Merger with the Delaware Secretary, (D) such filings with Governmental Entities to satisfy the applicable requirements of the Laws of states in which the Parent and any Subsidiary of the Parent are qualified or licensed to do business, as set forth on Schedule 3.2(d)(iv) of the Parent Disclosure Letter, (E) approval from the NYSE authorizing the listing of the Parent Common Shares to be issued pursuant to Merger, and (F) such other consents, approvals, orders, authorizations, registrations, declarations and filings (1) as are set forth on Schedule 3.2(d)(iv) of the Parent Disclosure Letter or (2) which, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.

(v)         The Parent Common Shares to be issued in exchange for the Company Shares in the Merger, when issued in accordance with the terms of this Agreement, will be duly authorized, validly issued, fully paid and nonassessable, with no personal Liability attaching to the ownership thereof and subject to no preemptive rights.

(e)           SEC Documents; Financial Statements .

(i)          The Parent has filed with the SEC all reports, schedules, forms, statements and other documents required to be filed by the Parent since January 1, 2014 (as amended through the date hereof, the “ Parent SEC Documents ”). All of the Parent SEC Documents (other than preliminary material), as of their respective filing dates, were prepared in all material respects in accordance with, and complied in all material respects with, all applicable requirements of the Securities Act or the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Parent SEC Documents. None of the Parent SEC Documents, at the time of filing, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except to the extent such statements have been modified or superseded by Parent SEC Documents later filed by the Parent. The Parent does not have any outstanding and unresolved comments from the SEC with respect to any of the Parent SEC Documents. No Subsidiary of the Parent is subject to the periodic reporting requirements of the Exchange Act or is otherwise required to file any forms, reports, schedules, statements or other documents with the SEC, any foreign Governmental Entity that performs a similar function to that of the SEC or any securities exchange or quotation service. The Parent has made available to the Company copies of all material correspondence between the SEC, on the one hand, and the Parent and any of the Subsidiaries of the Parent, on the other hand, since January 1, 2014 through the date of this Agreement. At all applicable times, the Parent has complied in all material respects with the applicable certification requirements in Sections 302 and 906 of the Sarbanes-Oxley Act.

(ii)         The audited consolidated financial statements and unaudited consolidated interim financial statements of the Parent and its Subsidiaries included or incorporated by reference in the Parent SEC Documents (including, in each case, any notes or schedules thereto) complied, as of their respective dates of filing with the SEC, in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto (including, without limitation, Regulation S-X), were prepared in accordance with GAAP (except, in the case of unaudited interim financial statements, as permitted by Forms 10-Q or 8-K of the SEC) applied on a consistent basis during the periods and at the dates involved (except as may be indicated in the notes thereto) and fairly present in all material respects the consolidated financial condition of the Parent and its Subsidiaries taken as a whole as of the dates thereof and consolidated results of operations and cash flows for the periods then ended (subject, in the case of unaudited interim financial statements, to the absence of notes and normal year-end adjustments). The books of account and other financial records of the Parent and its Subsidiaries are accurately reflected in all material respects in the financial statements included in the Parent SEC Documents. The Parent has no Subsidiary which is not consolidated for accounting purposes.

(iii)        There are no material weaknesses in the design or operation of internal controls over financial reporting that are reasonably likely to adversely affect in any material respect the Parent’s or any Subsidiary of the Parent’s ability to record, process, summarize and report financial data, other than as publicly disclosed in the Parent SEC Documents. The Parent has established and maintains disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act) designed to provide reasonable assurances that material information relating to the Parent, including its consolidated Subsidiaries, is made known to its principal executive officer and principal financial officer. The Parent has evaluated the effectiveness of its disclosure controls and procedures and, to the extent required by applicable Law, presented in any applicable Parent SEC Documents that is a report on Form 10-K or Form 10-Q, or any amendment thereto, its conclusions about the effectiveness of the disclosure controls and procedures as of the end of the period covered by such report or amendment based on such evaluation. To the Knowledge of the Parent, such disclosure controls and procedures are effective in timely alerting the Parent’s principal executive officer and principal financial officer to information required to be included in the Parent’s periodic reports required under the Exchange Act. Since the enactment of the Sarbanes-Oxley Act, neither the Parent nor any Subsidiary of the Parent has made any prohibited loans to any director or executive officer of the Parent (as defined in Rule 3b-7 under the Exchange Act).

(iv)        Neither the Parent nor any of its Subsidiaries is a party to, or has any commitment to become a party to, any joint venture, off-balance sheet partnership or any similar Contract (including any Contract or arrangement relating to any transaction or relationship between or among the Parent or any of its Subsidiaries, on the one hand, and any unconsolidated Affiliate, including any structured finance, special purpose or limited purpose entity or Person, on the other hand), or any “off-balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K of the Securities Act), where the result, purpose or intended effect of such Contract is to avoid disclosure of any material transaction involving, or material liabilities of, the Parent or any of its Subsidiaries in the Parent’s or its Subsidiaries’ published financial statements or any of the Parent SEC Documents.

(f)           Absence of Certain Changes or Events . Except as disclosed in the Parent SEC Documents or on Schedule 3.2(f) of the Parent Disclosure Letter, since the Financial Statement Date and through the date of this Agreement, and except in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (i) the Parent and its Subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practices and there has not been a Parent Material Adverse Effect, nor has there been any occurrence or circumstance that, individually or in the aggregate, has had, or would with the passage of time reasonably be expected to result in, a Parent Material Adverse Effect, and (ii) other than in the ordinary course of business consistent with past practice, none of the Parent or any of its Subsidiaries have taken any action that, if taken after the date hereof, would be in violation of Section 4.2 .

(g)           Litigation . Except as disclosed on Schedule 3.2(g) of the Parent Disclosure Letter, there is no pending or, to the Knowledge of the Parent, threatened material Legal Action or material investigation pending by a Governmental Entity against or affecting (i) the Parent or any Subsidiary of the Parent or any asset of the Parent or any asset of any Subsidiary of the Parent or (ii) any director, officer or employee of the Parent or any Subsidiary of the Parent or other Person for whom the Parent or any Subsidiary of the Parent may be liable, nor is there any judgment, decree, injunction, rule or order of any Governmental Entity or arbitrator outstanding against the Parent or any Subsidiary of the Parent, other than such Legal Action that does not (X) involve an amount in controversy in excess of $1,500,000 or (Y) seek material injunctive or other material non-monetary relief. Other than pursuant to the Parent Organizational Documents or otherwise set forth on Schedule 3.2(g) , no Contract between the Parent or any Subsidiary of the Parent, on the one hand, and any current or former director, officer, employee or shareholder (or equivalent interest holder) of the Parent or any Subsidiary of the Parent, on the other hand, exists that provides for indemnification.

(h)           Taxes . Except as would not have, individually or in the aggregate, a Parent Material Adverse Effect:

(i)          The Parent and each Subsidiary of the Parent have timely filed all U.S. federal and other material Tax Returns and reports required to be filed by it (after giving effect to any filing extension properly granted by a Governmental Entity having authority to do so). All such Tax Returns are true, correct and complete in all material respects. Neither the Parent nor any other Person on behalf of the Parent or any Subsidiary of the Parent has requested any extension of time within which to file any Tax Return, which Tax Return has not yet been filed. The Parent and each Subsidiary of the Parent have paid (or the Parent has paid on their behalf), within the time and manner prescribed by Law, all material Taxes due and payable by them (whether or not shown on such Tax Returns). The most recent financial statements contained in the Parent SEC Documents filed with the SEC prior to the date of this Agreement reflect an adequate reserve for accrued liabilities or expenses for all Taxes due and payable by the Parent and the Subsidiaries of the Parent as a group for all taxable periods and portions thereof through the date of such financial statements. The Parent and its Subsidiaries (as a group) have established on their books and records (which may, but are not required to, be reflected only on the books and records of the Parent) reserves or accrued liabilities or expenses that are adequate for the payment of all material Taxes for which the Parent or any Subsidiary of the Parent is liable but which are not yet due and payable. The Parent has incurred no liability for any Taxes under Sections 857(b), 860(c) or 4981 of the Code or Treasury Regulation Sections 1.337(d)-5, 1.337(d)-6 or 1.337(d)-7, including, without limitation, any Tax arising from a prohibited transaction described in Section 857(b)(6) of the Code and the excise tax on redetermined rents, redetermined deductions, redetermined TRS service income, and excess interest under Section 857(b)(7) of the Code; and neither the Parent nor any of its Subsidiaries has incurred any liability for Taxes other than in the ordinary course of business and other than transfer or similar Taxes arising in connection with the sale of property. To the Knowledge of the Parent, no event has occurred, and no condition or circumstances exists, which presents a material risk that any material Tax described in the preceding sentences will be imposed on the Parent or any Subsidiary of the Parent. No deficiencies for Taxes have been assessed in writing by a Governmental Entity against the Parent or any of its Subsidiaries, and no requests for waivers of the time to assess any such Taxes have been granted and remain in effect or are pending. In the last three (3) years, no written claim has been proposed by any Governmental Entity in any jurisdiction where the Parent or any Subsidiary of the Parent do not file Tax Returns that the Parent or any Subsidiary of the Parent is or may be subject to Tax by such jurisdiction.

(ii)         The Parent (A) for all of its taxable years beginning upon the first taxable year ending December 31, 2013 through the most recent December 31, has been subject to taxation as a REIT under the Code within the meaning of Section 856 of the Code and has satisfied the requirements to qualify as a REIT for such years, (B) has operated, and intends to continue to operate, in such a manner as to qualify as a REIT for its taxable year that will end December 31 of the year that includes the closing of the transactions contemplated hereby, and (C) has not taken or omitted to take any action which could reasonably be expected to result in a challenge by the IRS to its status as a REIT, and, to the Parent’s Knowledge, no such challenge is pending or threatened in writing. Each Subsidiary of the Parent or Other Parent Subsidiary that files Tax Returns as a partnership (or as a disregarded entity), for U.S. federal income tax purposes has, since inception, been classified for federal income tax purposes as a partnership (or as a disregarded entity) and not as a corporation or as an association taxable as a corporation, or a “publicly traded partnership” within the meaning of Section 7704(b) of the Code that is treated as a corporation for U.S. federal income tax purposes under Section 7704(a) of the Code. Each Subsidiary of the Parent or Other Parent Subsidiary that is a corporation has been, since its formation, classified as a Qualified REIT Subsidiary, a Taxable REIT Subsidiary or a REIT.

(iii)        Neither the Parent nor any Subsidiary of the Parent is a party to any material pending action or proceeding, including any audit or contest, by any Governmental Entity with regard to Taxes or Tax Returns of the Parent or any Subsidiary of the Parent.

(iv)        Neither the Parent nor any Subsidiary of the Parent holds any asset the disposition of which, if occurring in a fully taxable transaction immediately following the Closing, would be subject to (or to rules similar to) Section 337(d) or 1374 of the Code or the regulations thereunder (assuming for this purpose that the “recognition period,” as defined in Section 1374, is in all cases 5 years), nor has it disposed of any such asset during its current taxable year.

(v)         Neither the Parent nor any Subsidiary of the Parent (A) is or has been at any time a member of an affiliated consolidated, combined or unitary group (other than a group the common parent of which is the Parent or a directly or indirectly wholly owned Subsidiary of the Parent) and (B) has any liability for the Taxes of any other Person other than the Parent and such Subsidiaries of the Parent under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, or by contract (other than Contracts entered into in the ordinary course of business the principal purpose of which is unrelated to Tax), or otherwise.

(vi)        Neither the Parent nor any Subsidiary of the Parent has participated in, or otherwise made a filing with respect to, any “listed transaction” within the meaning of Treasury Regulations § 1.6011-4(b)(2).

(vii)       None of the Parent or any Subsidiary of the Parent will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any (A) change in method of accounting for a taxable period ending on or prior to the Closing Date, (B) “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign Tax Law) executed on or prior to the Closing Date, (C) intercompany transactions or excess loss account described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, local or foreign Tax Law), (D) installment sale or open transaction disposition made on or prior to the Closing Date, (E) prepaid amount received on or prior to the Closing Date, or (F) cancellation of indebtedness income deferred pursuant to Section 108(i) of the Code the election of which was made on or prior to the Closing Date, in the case of (A), (C), (D), (E), and (F) outside of the ordinary course of business.

(viii)      The Parent does not have any earnings and profits attributable to the Parent or any other corporation for any non-REIT year within the meaning of Section 857 of the Code.

(ix)         Neither the Parent nor any Subsidiary of the Parent has made any payments, or is obligated to make any payments, or is a party to an agreement that could obligate it to make any payments that will not be deductible under Section 280G of the Code.

(x)          Neither the Parent nor its Subsidiaries is or has been a party to any Tax allocation or sharing agreement or similar agreement or arrangement (other than any agreement or arrangement either solely between the Parent and any Subsidiary of the Parent or solely between or among any two or more Subsidiaries of the Parent, or with customers, vendors, lessors or other third parties entered into in the ordinary course of business and not primarily related to Taxes) pursuant to which it will have any obligation to make any payments after the Closing.

(xi)         There are no Tax Protection Agreements for the Parent or any Subsidiary of the Parent currently in force or otherwise binding upon the Parent or any Subsidiary of the Parent. Neither the Parent nor any Subsidiary of the Parent has any current and outstanding Liability under any Tax Protection Agreement, and no Person has raised, or, to the Knowledge of the Parent, threatened to raise, a material claim against the Parent or any Subsidiary of the Parent under any Tax Protection Agreement.

(xii)        To the Knowledge of the Parent, all Taxes that the Parent or its Subsidiaries are required by Law to withhold or collect, including Taxes required to have been withheld in connection with amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party and sales, gross receipts and use taxes, and withholding of Taxes pursuant to Sections 1441, 1442, 1445, 1446, 3402, and 1471 through 1474 of the Code or similar provisions under any foreign Laws, have been duly withheld or collected and, to the extent required, have been paid over to the proper Governmental Entities or, if not yet due, are held in separate bank accounts for such purpose. There are no material Encumbrances for Taxes upon the assets of the Parent or its Subsidiaries except for statutory Encumbrances for Taxes not yet due.

(xiii)       Within the past two (2) years, none of the Parent or any of its Subsidiaries has either been a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code in a distribution which could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.

(xiv)      The Parent is not aware of any fact or circumstance that could reasonably be expected to prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code.

(i)           Related Party Transactions . Schedule 3.2(i) of the Parent Disclosure Letter sets forth a complete list as of the date hereof of all agreements, contracts and arrangements between the Parent and any Subsidiary of the Parent, on the one hand, and the Parent’s Sponsor, Advisor or Affiliates of the Sponsor or Advisor, on the other hand. Except as set forth on Schedule 3.2(i) of the Parent Disclosure Letter, there is no (i) loan outstanding from or to any employee, officer or director of the Parent or any Subsidiary of the Parent, (ii) employment or severance Contract or other arrangement with respect to severance with respect to any employee, officer or director of the Parent or any Subsidiary of the Parent, or (iii) any agreement to appoint or nominate any Person as a director of the Parent or any Subsidiary of the Parent. Except for compensation, benefits and advances received in the ordinary course of business by employees, directors or consultants of the Company or its Subsidiaries or as otherwise set forth on Schedule 3.2(i) of the Parent Disclosure Letter, there are no arrangements or Contracts in effect as of the date hereof between the Parent or any of its Subsidiaries, on the one hand, and any Person who is (i) an officer, director or Affiliate of the Parent or any Subsidiary of the Parent, (ii) Sponsor or an Affiliate of Sponsor, or any other Person in which Sponsor or any Affiliate of Sponsor owns an equity interest, or any officer, director or employee of the foregoing, (iii) any member of the “immediate family” (as such term is defined in Item 404 of Regulation S-K promulgated under the Securities Act) of the foregoing, (iv) a record or beneficial owner of 5% or more of the voting securities of the Parent, (v) an associate (as defined in Rule 12b-2 under the Exchange Act) of the foregoing or (vi) an entity of which any of the foregoing is an Affiliate, on the other hand. True and materially complete copies of all such documents have been made available to the Parent prior to the date hereof and each such document is listed on Schedule 3.2(i) of the Parent Disclosure Letter.

(j)           Opinion of Financial Advisor; No Brokers . The financial advisor identified on Schedule 3.2(j) of the Parent Disclosure Letter has delivered its opinion, addressed to the Parent Special Committee, to the effect that, as of the date of such opinion and subject to the qualifications, assumptions and limitations set forth therein, the Merger Consideration to be paid by Parent in the Merger is fair, from a financial point of view, to Parent. It is agreed and understood that such opinion is for the Parent Special Committee and may not be relied upon by the Company Parties or any of their respective Affiliates. The Parent will provide to the Company, solely for informational purposes, a photocopy of the written version of the opinion described in this Section 3.2(j) after receipt thereof by the Parent. Except for the financial advisor identified on Schedule 3.2(j) of the Parent Disclosure Letter, no broker, investment banker, financial advisor or other Person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of the Parent or any Subsidiary of the Parent.

(k)           Permits; Compliance with Laws .

(i)          The Parent, the Merger Sub and each other Subsidiary of the Parent or the management companies for the Parent Properties, own or possess all Permits necessary for the Parent and its Subsidiaries to own, lease and operate the properties and assets of the Parent and its Subsidiaries or to carry on the business of the Parent and its Subsidiaries as it is now being conducted by the Parent and its Subsidiaries, except where the failure to have such Permits would not, individually or in the aggregate, have a Parent Material Adverse Effect. All such Permits are in full force and effect, except for such failure to be in full force and effect as would not, individually and in the aggregate, have a Parent Material Adverse Effect. Neither the Parent nor any Subsidiary of the Parent has received notice that any suspension, modification or revocation of any Permit is pending or, to the Knowledge of the Parent, threatened nor, to the Knowledge of the Parent, do grounds exist for any such action, except for such suspensions, modifications or revocations as would not, individually or in the aggregate, have a Parent Material Adverse Effect.

(ii)         Neither the Parent nor any of its Subsidiaries has violated or failed to comply with any such Permit, or any Law, judgment, decree or order of any Governmental Entity applicable to its business, properties or operations, except for violations and failures to comply that would not, individually or in the aggregate, have a Parent Material Adverse Effect.

(iii)        To the Knowledge of the Parent, neither the Parent, the Merger Sub nor any other Subsidiary of the Parent nor any director, officer, agent or employee of the Parent, any Subsidiary of the Parent or the Merger Sub or any other Person on behalf of the Parent, the Merger Sub or any Subsidiary of the Parent has taken any action, directly or indirectly, that would constitute a violation in any material respect by such Persons of the FCPA or other U.S. anti-corruption laws, including making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA or other U.S. anti-corruption laws.

(l)           Contracts .

(i)           Schedule 3.2(l)(i) of the Parent Disclosure Letter contains a list of the following Contracts to which the Parent or any Subsidiary of the Parent is a party or by which their respective assets are subject to, in each case, as of the date hereof:

(A)         any lease, sublease, license or occupancy agreement of real property providing for annual rentals of $1,500,000 or more (the “ Material Parent Leases ”);

(B)         any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture, which is not a wholly-owned Subsidiary of the Parent;

(C)         any Contract relating to indebtedness for borrowed money (including guarantees) or pursuant to which any property or asset of the Parent or any Subsidiary of the Parent is mortgaged, pledged or otherwise subject to an Encumbrance, in each case in excess of $1,500,000, other than (x) accounts receivables and payables and (y) loans to direct or indirect wholly-owned Subsidiaries of the Parent;

(D)         any Contract with current or ongoing obligations (as to the Parent) currently required to be filed as an exhibit to the Annual Report of the Parent on Form 10−K pursuant to Item 601(b)(10) of Regulation S−K under the Securities Act;

(E)         any Contract that purports to limit in any material respect the right of the Parent or its Subsidiaries (1) to engage in any line of business, or (2) to compete with any Person or operate in any location;

(F)         any Contract providing for the sale or exchange of, or option, right of first refusal or offer, or similar right, to sell or exchange, any of the Parent Properties, or for the purchase or exchange of, or option, right of first refusal or offer, or similar right to purchase or exchange, any real estate entered into in the past two (2) years or in respect of which the applicable transaction has not yet been consummated;

(G)         any Contract entered into in the past two (2) years in respect of which the applicable transaction has not yet been consummated for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets (other than Contracts referenced in clause (F) of this Section 3.2(l)(i) ) or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,500,000, in each case other than in the ordinary course of business and in a manner consistent with past practice;

(H)         any Contract pursuant to which the Parent or any Subsidiary of the Parent manages any real property or pursuant to which any other Person manages any real property owned by the Parent or any Subsidiary of the Parent pursuant to an agreement with the Parent or any Subsidiary of the Parent, on the one hand, and such other Person, on the other hand;

(I)         other than Contracts for ordinary repair and maintenance, any Contract relating to the development or construction of, or additions or expansions to, the Parent Properties, under which the Parent or any Subsidiary of the Parent has, or expects to incur, an obligation in excess of $1,500,000 in the aggregate that has not been satisfied as of the date hereof;

(J)         any Contract under which the Parent or any Subsidiary of the Parent has continuing indemnification obligations relating to the settlement or proposed settlement of any Legal Action, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,500,000 in the aggregate;

(K)         any Contract that provides for any unpaid settlement or proposed settlement of any Legal Action in which the amount to be paid in settlement is in excess of $1,500,000;

(L)         any Contract that provides for a guarantee in an amount in excess of $1,500,000 of the obligations of any Person that is not the Parent or any Subsidiary of the Parent, other than any Contract providing for indemnification of Persons pursuant to Contracts entered into in the ordinary course of business; and

(M)         any Contract (other than Contracts referenced in clauses (A) through (L) of this Section 3.2(l)(i) ) that, by its terms, calls for payments by or Liability of the Parent or any Subsidiary of the Parent in excess of $1,500,000 other than any Contract under this clause (M) that, by its terms, is terminable within six (6) months of this Agreement (without termination fee or penalty).

The Contracts described in clauses (A) through (M) , including those required to be identified on Schedule 3.2(l)(i) of the Parent Disclosure Letter and the Parent Management Agreement Documents, in each case together with all exhibits and schedules thereto, are referred to as the “ Parent Material Contracts .”

(ii)         Except for such breaches and defaults as would not, individually or in the aggregate, have a Parent Material Adverse Effect, (A) neither the Parent nor any Subsidiary of the Parent is and, to the Knowledge of the Parent, no other party is in breach or violation of, or default under, any Parent Material Contract, and (B) none of the Parent or any of its Subsidiaries has received any written claim of default under any such Parent Material Contract. To the Knowledge of the Parent, each Parent Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect. The Parent has made available to the Company true and complete copies of all Parent Material Contracts, including any amendments or supplements thereto.

(m)           Environmental Matters .

(i)          The Parent and each Subsidiary of the Parent has obtained all Permits from Governmental Entities which are required in respect of its business, operations, assets or properties under any applicable Environmental Laws, and the Parent and each Subsidiary of the Parent is in compliance with the terms and conditions of all such Permits and with any applicable Environmental Laws, except where failure to be in compliance would not, individually or in the aggregate, have a Parent Material Adverse Effect, and there are no past or present actions, activities, circumstances, conditions, events or incidents that may prevent or interfere with such compliance in all material respects in the future;

(ii)         there is no Environmental Claim pending or threatened against the Parent or any Subsidiary of the Parent, or, to the Knowledge of the Parent, against any Person whose Liability for any Environmental Claim the Parent or any Subsidiary of the Parent has or may have retained or assumed either contractually or by operation of Law, except for such Environmental Claims that would not, individually or in the aggregate, have a Parent Material Adverse Effect;

(iii)        neither the Parent nor any Subsidiary of the Parent nor, to the Knowledge of the Parent, any other Person has placed, stored, deposited, discharged, buried, dumped, disposed of or released any Hazardous Substances produced by, or resulting from any of the Parent’s or any of the Parent’s Subsidiaries’ operations, at any Parent Property, except for inventories of such substances to be used, and wastes generated therefrom, in the ordinary course of business of the Parent and its Subsidiaries (which inventories and wastes, if any, were and are stored or disposed of in accordance with applicable Environmental Laws), and except as would not, individually or in the aggregate, have a Parent Material Adverse Effect; and

(iv)        neither the Parent nor any Subsidiary of the Parent has entered into or agreed to any consent decree or order or is subject to any outstanding judgment, decree or judicial order relating to compliance with Environmental Laws or the investigation, sampling, monitoring, treatment, remediation, removal or cleanup of Hazardous Substances with any Governmental Entity, and, to the Knowledge of the Parent, no investigation, litigation or other proceeding is pending or threatened with respect thereto. To the Knowledge of the Parent, the Parent has made available to the Company true and complete copies of all environmental reports and audits that are within the possession of the Parent or within the possession or control of its Subsidiaries as of the date hereof, and to the Knowledge of the Parent, no other environmental reports or audits exist with respect to the Parent, any Subsidiary of the Parent or any Parent Property.

(n)           Parent Properties .

(i)           Schedule 3.2(n)(i) (Part I) of the Parent Disclosure Letter lists each parcel of real property currently owned or leased (as lessee, lessor, sublessee or sublessor), including ground leased, by the Parent or any Subsidiary of the Parent as of the date hereof, and sets forth the Parent or applicable Subsidiary of the Parent owning such property (the “ Parent Properties ”). Except as disclosed in title insurance policies and reports (and the documents or surveys referenced in such policies and reports), copies of which policies and reports were made available for review to the Parent: (A) the Parent or a Subsidiary of the Parent owns fee simple title or leasehold title (as applicable) to the Parent Properties, free and clear of Encumbrances, other than Permitted Liens; (B) except as has not had and would not, individually or in the aggregate, have a Parent Material Adverse Effect, neither the Parent nor any Subsidiary of the Parent has received written notice of any violation of any Law affecting any portion of any of the Parent Properties issued by any Governmental Entity; and (C) except as would not, individually or in the aggregate, have a Parent Material Adverse Effect, neither the Parent nor any Subsidiary of the Parent has received notice to the effect that there are (1) condemnation or rezoning proceedings that are pending or threatened with respect to any of the Parent Properties or (2) zoning, building or similar Laws, codes, ordinances, orders or regulations that are or will be violated by the continued maintenance, operation or use of any buildings or other improvements on any of the Parent Properties or by the continued maintenance, operation or use of the parking areas. Schedule 3.2(n)(i) (Part II) of the Parent Disclosure Letter sets forth a list of the address of each facility and real property which, as of the date of this Agreement, is under a binding Contract by the Parent or a Subsidiary of the Parent for purchase or which is required under a binding Contract to be leased or subleased by the Parent or a Subsidiary of the Parent after the date of this Agreement.

(ii)          Schedule 3.2(n)(ii) of the Parent Disclosure Letter lists each management agreement in effect as of the date hereof pursuant to which any third party manages or operates any of the Parent Properties on behalf of the Parent or any Subsidiary of the Parent pursuant to an agreement between such Person, on the one hand, and the Parent or any Subsidiary of the Parent, on the other hand, and describes the property that is subject to such management agreement, the Parent or applicable Subsidiary of the Parent that is a party, the date of such management agreement and each material amendment, guaranty or other agreement binding on the Parent or applicable Subsidiary of the Parent and relating thereto (collectively, the “ Parent Management Agreement Documents ”). True, correct and complete copies of all Parent Management Agreement Documents have been made available to the Company. Each Parent Management Agreement Document is valid, binding and in full force and effect as against the Parent or the applicable Subsidiary of the Parent and, to the Knowledge of the Parent, as against the other party thereto. As of the date hereof, neither the Parent nor any Subsidiary of the Parent owes any termination, cancellation or other similar fees or any liquidated damages to any third party manager or operator.

(iii)        The Parent has not received written notice of, nor does the Parent have any Knowledge of, any latent defects or adverse physical conditions affecting any of the Parent Properties or the improvements thereon, except as would not, individually or in the aggregate, have a Parent Material Adverse Effect.

(iv)        True and complete in all material respects copies of (i) the Material Parent Leases, in each case in effect as of the date hereof, have been made available to the Company. Except as set forth on Schedule 3.2(n)(iv) of the Parent Disclosure Letter or as individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect, (1) neither the Parent nor any Subsidiary of the Parent is and, to the Knowledge of the Parent on the date hereof, no other party is in breach or violation of, or default under, any Material Parent Lease, (2) neither the Parent nor any Subsidiary of the Parent is in receipt of any rent under any Parent Lease paid more than thirty (30) days before such rent is due and payable (other than payment of first or last month’s rent), and (3) each Material Parent Lease is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Parent or any Subsidiary of the Parent and, to the Knowledge of the Parent, with respect to the other parties thereto, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at Law). Neither the Parent nor any Subsidiary of the Parent is party to any oral Parent Lease.

(o)           Personal Property . The Parent and each Subsidiary of the Parent have good and marketable title to, or a valid and enforceable leasehold interest in, all personal assets owned by the Parent or each Subsidiary of the Parent (as applicable). Neither the Parent’s nor its Subsidiaries’ ownership of any such personal property is subject to any Encumbrances, other than Permitted Liens.

(p)           Insurance . With respect to each material insurance policy owned or held by the Parent or any Subsidiary of the Parent, to the Knowledge of the Parent, (A) the policy is legal, valid, binding and enforceable in accordance with its terms and is in full force and effect; (B) neither the Parent nor any Subsidiary of the Parent is in breach or default (including any such breach or default with respect to the payment of premiums or the giving of notice), and no event has occurred that, with notice or the lapse of time or both, would constitute such a breach or default, or permit termination or modification, under the policy; (C) as of the date hereof, no insurer on the policy has been declared insolvent or placed in receivership, conservatorship or liquidation; and (D) as of the date hereof, no notice of cancellation or termination has been received, in each case, except as would not have, individually or in the aggregate, a Parent Material Adverse Effect. The Parent and its Subsidiaries maintain policies or binders of insurance covering risks and events and in amounts adequate for their respective businesses and operations to the extent customary in the industry in which they operate, and no such policies will terminate as a result of the consummation of the transactions contemplated by this Agreement and the Ancillary Agreements to which it is a party.

(q)           Information Supplied . None of the information contained in the Joint Proxy Statement related to the Parent or any Subsidiary of the Parent or that is provided by the Parent or any Subsidiary of the Parent for inclusion or incorporation by reference in the Form S-4 or any other document filed with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will (i) in the case of the Form S-4, at the time the Form S-4 becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) in the case of the Joint Proxy Statement, at the time of the mailing thereof or at the time the Company Shareholder Meeting is held, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, or (iii) with respect to any other document to be filed by the Parent with the SEC in connection with the Merger or the other transactions contemplated by this Agreement, at the time of its filing with the SEC, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. The Form S-4 and the Joint Proxy Statement will (with respect to the Parent, its officers and directors and the Subsidiaries of the Parent) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act. Notwithstanding the foregoing provisions of this Section 3.2(q) , no representation or warranty is made by the Parent with respect to information or statements made or incorporated by reference in the Form S-4, the Joint Proxy Statement or any other document to be filed with the SEC in connection with the Merger or the other transactions contemplated by this Agreement that were not supplied by or on behalf of the Parent or the Subsidiaries of the Parent.

(r)           Books and Records .

(i)          The books of account and other financial records of the Parent and each Subsidiary of the Parent are in all material respects true, complete and correct, have been maintained in accordance with good business practices, and are accurately reflected in all material respects in the financial statements included in the Parent SEC Documents.

(ii)         The Parent has made available to the Company true, correct and complete copies of the Parent Organizational Documents. Neither the Parent nor any Subsidiary of the Parent is, nor has the Parent or any Subsidiary of the Parent been, in violation of any of the Parent Organizational Documents applicable to it in any material respect.

(s)           Labor Matters . Neither the Parent nor any Subsidiary of the Parent has, or has ever had, any employees.

(t)           Vote Required . The only vote of the holders of any class or series of the Parent’s capital stock necessary (under applicable Law, this Agreement or otherwise) to approve the transactions contemplated by this Agreement, the Ancillary Agreements to which it is a party and the other transactions contemplated hereby and thereby is the Parent Shareholder Approval. The consent of the Parent, as the sole general partner of the Parent Operating Partnership, is the only vote of the partners of the Parent Operating Partnership necessary to adopt and approve this Agreement and approve the Partnership Merger and the other transactions contemplated hereby.

(u)           No Undisclosed Material Liabilities . Except as set forth on Schedule 3.2(u) of the Parent Disclosure Letter or as disclosed in the Parent SEC Documents, there are no Liabilities of the Parent or any of its Subsidiaries that would be required to be reflected on a consolidated balance sheet of the Parent and its Subsidiaries in accordance with GAAP, and there is no existing condition, situation or set of circumstances that could reasonably be expected to result in such a Liability, other than: (i) Liabilities reserved for on the most recent balance sheet contained in the audited financial statements of the Parent for the period ended December 31, 2015; (ii) Liabilities incurred in the ordinary course of business consistent with past practice of the Parent subsequent to December 31, 2015 and (iii) such other Liabilities as would not, individually or in the aggregate, have a Parent Material Adverse Effect.

(v)          Intellectual Property . To the Knowledge of the Parent (i) the conduct of the business of the Parent and its Subsidiaries as currently conducted does not infringe upon or misappropriate the Intellectual Property rights of any other Person, and no claim has been asserted against the Parent or any Subsidiary of the Parent that the conduct of the business of the Parent and its Subsidiaries as currently conducted infringes upon or may infringe upon or misappropriates the Intellectual Property rights of any other Person, except for any such infringement, misappropriation or claim that would not, individually or in the aggregate, have a Parent Material Adverse Effect; and (ii) the Parent or a Subsidiary of the Parent owns or is licensed to use or otherwise has the right to use all Intellectual Property as currently used in, and as necessary to conduct the operation of its respective business, in accordance with the terms of any applicable license agreement, except where the failure to possess or have adequate rights to use such properties would not, individually or in the aggregate, have a Parent Material Adverse Effect.

(w)           Benefit Plans; ERISA Compliance .

(i)          Other than the Parent Stock Incentive Plans, neither the Parent nor any Subsidiary of the Parent has any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other employee benefit plan, arrangement or understanding (whether or not legally binding), including any “employee benefit plans,” within the meaning of Section 3(3) of ERISA, providing benefits to any current or former employee, officer or director of the Parent or any Subsidiary of the Parent or any Person affiliated with Parent under Section 414(b), (c), (m) or (o) of the Code.

(ii)         No director, officer or employee of the Parent will become entitled to retirement, severance or similar benefits or to enhanced or accelerated benefits (including any acceleration of vesting or lapsing of restrictions with respect to equity-based awards) as a result of consummation of the transactions contemplated by this Agreement.

(iii)        No stock option granted by the Parent under the Parent Stock Incentive Plans (whether currently outstanding or previously exercised) has been granted with an exercise price that is less than the fair market value of the underlying stock on the date of grant, and no such stock option has been or would be, as applicable, subject to any Tax, penalty or interest under Section 409A of the Code.

(x)           Antitakeover Statutes . The Parent and the Parent Board (based on the unanimous recommendation of the Parent Special Committee) have taken all action required to be taken by them to exempt this Agreement, the Mergers and the transactions contemplated hereby and thereby from the requirements of any “moratorium”, “control share”, “fair price”, “affiliate transaction”, “business combination” or other antitakeover Laws and regulations of any state.

(y)           Financing . The Parent will have at the Closing sufficient cash, available lines of credit or other sources of immediately available funds to make payment of all amounts to be paid by it hereunder at Closing and satisfy all related fees and expenses.  The Parent has furnished the Company with a true and complete copy of the executed Commitment Letter.  The Commitment Letter has not been amended or modified prior to the date hereof and the commitments contained in the Commitment Letter have not been withdrawn or rescinded in any respect.  The Parent has paid or caused to be paid in full any and all commitment or other fees required by the Commitment Letter that are due and payable as of the date hereof.  There are no conditions precedent related to the funding of the full amount of the commitments under the Commitment Letter other than as expressly set forth in this Agreement or the Commitment Letter.  The Parent knows of no facts or circumstances that are reasonably likely to result in any of the conditions set forth in the Commitment Letter not being satisfied. The Commitment Letter is binding and, on the date hereof, in full force and effect, is the legal, valid, binding and enforceable obligations of the Parent, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law), and no event has occurred that, with or without notice, lapse of time or both, would be reasonably expected to constitute a default or breach on the part of the Parent under any term or condition of the Commitment Letter.

(z)           Hart-Scott-Rodino Antitrust Improvements Act . In reliance upon, and subject to the accuracy of the representations and warranties provided in Section 3.1(y) , the Mergers and the transactions contemplated by this Agreement are exempt from any requirement to make any filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the implementing regulations thereto, 16 C.F.R. parts 801-803, because (i) the Company is a REIT and (ii) the Parent Board has determined that the aggregate fair market value of the non-exempt assets of the Parent and the entities controlled by the Company is less than $78.2 million.

(aa)          No Other Representations or Warranties . Except for the representations or warranties expressly set forth in this Section 3.2 , neither any Parent Party nor any other Person on behalf of the Parent Parties has made, and each of the Company Parties specifically disclaims that it is relying or has relied upon, any representation or warranty, expressed or implied, with respect to the Parent, the Merger Sub or the Subsidiaries of the Parent, their businesses, operations, assets, liabilities, condition (financial or otherwise), results of operations, future operating or financial results, estimates, projections, forecasts, plans or prospects (including the reasonableness of the assumptions underlying such estimates, projections, forecasts, plans or prospects) or the accuracy or completeness of any information regarding the Parent, the Merger Sub or the Subsidiaries of the Parent. In particular, without limiting the foregoing disclaimer, neither any Parent Party nor any other Person makes or has made, and each of the Company Parties specifically disclaims that it is relying or has relied upon, any representation or warranty to the Company or any of its Affiliates or Representatives with respect to, except for the representations and warranties made by the Parent Parties in this Section 3.2 , any oral or written information presented to the Company or any of its Affiliates or Representatives in the course of their due diligence of the Parent Parties, the negotiation of this Agreement and the Ancillary Agreements to which it is a party or in the course of the transactions contemplated hereby. Notwithstanding anything contained in this Agreement to the contrary, each of the Parent Parties acknowledge and agree that none of the Company Parties or any other Person has made or is making any representations or warranties relating to the Company Parties whatsoever, express or implied, beyond those expressly given by the Company Parties in Section 3.1 , including any implied representation or warranty as to the accuracy or completeness of any information regarding the Company Parties furnished or made available to the Parent Parties or any of their Representatives.

Article IV
COVENANTS

Section 4.1.           Conduct of Business by the Company.

(a)          During the period from the date of this Agreement to the earlier to occur of the Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 7.1 (the “ Interim Period ”), except as expressly contemplated by this Agreement or as required by applicable Law or with the prior written consent of the Parent, each Company Party agrees that it shall, and shall cause each of its Subsidiaries to, carry on its businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent therewith, use commercially reasonable efforts (i) to preserve intact its current business organization, goodwill, and ongoing businesses, (ii) to maintain the Company’s status as a REIT within the meaning of the Code, (iii) to preserve its current beneficial relationships with any Person with which the Company has material business relationships (including, without limitation, customers, suppliers, directors, officers and other employees if any), and (iv) to keep available the services of its officers and key employees, if any.

(b)          The Company Parties shall use their commercially reasonable efforts to (i) obtain the opinions of counsel referred to in Section 6.3(d) and Section 6.1(f) , (ii) deliver to Proskauer Rose LLP an officer’s certificate, dated as of the effective date of the Form S-4 and the Closing Date, respectively, and signed by an officer of the Company and the Company Operating Partnership with the knowledge necessary to make the representations contained therein, containing representations of the Company and the Company Operating Partnership as shall be reasonably necessary or appropriate to enable Proskauer Rose LLP to render the opinion described in Section 6.3(d) on the effective date of the Form S-4, satisfying the requirements of Item 601 of Regulation S-K under the Securities Act, and on the Closing Date (a “ Company REIT Representation Letter ”), and (iii) deliver to Proskauer Rose LLP an officer’s certificate, dated as of the effective date of the Form S-4 and the Closing Date, respectively, and signed by an officer of the Company with the knowledge necessary to make the representations contained therein, containing representations of the Company as shall be reasonably necessary or appropriate to enable Proskauer Rose LLP to render the opinion described in Section 6.1(f) on the effective date of the Form S-4, satisfying the requirements of Item 601 of Regulation S-K under the Securities Act, and on the Closing Date (a “ Company Reorganization Representation Letter ”).

(c)          Without limiting the generality of the foregoing, during the Interim Period, except as set forth on Schedule 4.1(c) of the Company Disclosure Letter or as otherwise expressly contemplated by this Agreement, the Plan or Merger and any Ancillary Agreements or as required by applicable Law, the Company Parties shall not, and shall cause each of such entity’s Subsidiaries, not to (and not to authorize or commit or agree to), unless the Parent, with the approval of the Parent Special Committee, shall otherwise consent in writing (which consent shall not be unreasonably withheld, conditioned or delayed):

(i)          (A)         except for regular monthly dividends as set forth on Schedule 4.1(c) of the Company Disclosure Letter, declare, set aside or pay any dividends on, or make any other distributions in respect of, any shares of capital stock of the Company (provided that the Company and its Subsidiaries shall be permitted to pay dividends and make distributions, including under Sections 858 and 860 of the Code, reasonably necessary for the Company to maintain its status as a REIT under the Code and avoid or reduce the imposition of any corporate level Tax or excise Tax under the Code), (B) split, combine or reclassify any capital stock, partnership interests or other equity interests or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of such capital stock, partnership interests or other equity interests, or (C) purchase, redeem or otherwise acquire any shares of capital stock, partnership interests or other equity interests of the Company or any of its Subsidiaries;

(ii)         except for the Company Specified Charter Amendments, amend the Company Organizational Documents;

(iii)        merge or consolidate with any Person;

(iv)        acquire or agree to acquire (by merger, consolidation or acquisition of stock or assets, or by lease or license) any real property, corporation, partnership or other business organization or division thereof (except of or from any Subsidiary of the Company), or acquire other assets, other than (A) supplies, equipment and investment securities or other assets in bona fide transactions, on arm’s-length terms in the ordinary course of business of the Company and its Subsidiaries in a manner that is consistent with past practice, (B) acquisitions set forth on Schedule 3.1(l)(i)(G) of the Company Disclosure Letter and (C) any acquisition of real property that does not exceed $50,000,000 in the aggregate;

(v)         take any action that could, or fail to take any action, the failure of which could, reasonably be expected to cause (A) the Company to fail to qualify as a REIT or (B) any Subsidiary of the Company or Other Company Subsidiary to cease to be treated as any of (1) a partnership or disregarded entity for U.S. federal income tax purposes or (2) a Qualified REIT Subsidiary or a Taxable REIT Subsidiary under the applicable provisions of Section 856 of the Code, as the case may be;

(vi)        issue, deliver or sell, or grant any option or other right in respect of, any shares of capital stock or debt securities, any other voting or redeemable securities of the Company or any Subsidiary of the Company or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or redeemable or convertible securities (“ Equity Equivalents ”), except to the Company or a Subsidiary of the Company and other than (x) the issuance of any shares of capital stock upon the exercise of stock options that are outstanding on the date of this Agreement in accordance with the terms of the Company Stock Plans, as in effect on the date of this Agreement; or (y) the issuance of any shares of capital stock upon the redemption of the Company OP Units in accordance with the terms of the Company Partnership Agreement, as in effect on the date of this Agreement;

(vii)       amend any term of any Company Shares or Equity Equivalents of the Company;

(viii)      sell, pledge, lease, dispose of, exclusively license or encumber or grant any third party any rights with respect to any property or assets, other than leases, licenses or sales of assets, securities, properties, interests or businesses in the ordinary course of business in a manner that is consistent with past practice and where the assets which did not, individually or in the aggregate, contribute more than 10% of the Company’s earnings before interest, taxes, depreciation and amortization for the fiscal year ending December 31, 2015;

(ix)         other than in the ordinary course of business and consistent with past practice (A) incur, create or assume any indebtedness or issue or amend the terms of any debt securities, (B) assume, guarantee or endorse, or otherwise become responsible for the obligations of any other Person or entity (other than any Subsidiary of the Company) for borrowed money, or (C) pledge, encumber or otherwise subject to an Encumbrance, other than a Permitted Lien, any Company Properties;

(x)          make any loans, advances or capital contributions to, or investments in, any other Person, other than in the ordinary course of business consistent with past practice or loans, advances or capital contributions to, or investments in, wholly owned Subsidiaries of the Company;

(xi)         other than in the ordinary course of business, (A) make, modify or rescind any material Tax election, (B) change any annual Tax accounting period if such change would result in material Taxes, (C) adopt or change any method of tax accounting except as required by applicable Law, if such change would result in material Taxes, (D) file or amend any material Tax Returns, (E) enter into any material closing agreement, (F) surrender any right to claim a material Tax refund, offset or other reduction in Tax liability, in each case, for an amount materially in excess of the amount accrued or reserved with respect to Taxes, or (G) agree to a waiver or extension of a statute of limitations with respect to Taxes;

(xii)        (A) change in any material manner any of its methods, principles or practices of accounting in effect at the Financial Statement Date, (B) initiate, settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes, except in the case of settlements or compromises in an amount not to exceed, individually or in the aggregate, $2,000,000, (C) apply for or enter into any private letter ruling, closing agreement, or other similar agreement, arrangement or determination related to Taxes, except, in the case of clause (A) or (C) , as may be required by the SEC, applicable Law or GAAP and with notice thereof to the Parent;

(xiii)       adopt or enter or make any commitment to adopt or enter into any employee benefit plan, program, policy or agreement that would be an “employee benefit plan” as defined in Section 3(3) of the ERISA if it were in existence as of the date of this Agreement;

(xiv)      take any action or exercise any discretion to accelerate the vesting or payment of, or to fund or in any other way secure the payment of, any award, compensation or benefit under any Company Stock Plan;

(xv)       initiate, settle or compromise any material Legal Action involving or against the Company or any of its Subsidiaries involving the payment of monetary damages by the Company or any of its Subsidiaries exceeding $2,000,000 in the aggregate, including any shareholder derivative or class action claims arising out of or in connection with the Mergers or the other transactions contemplated hereby, and excluding any Legal Action brought against the Parent Parties arising out of a breach or alleged breach of this Agreement by the Parent Parties;

(xvi)      amend or modify in any material respect or terminate (excluding terminations upon expiration of the term thereof in accordance with their terms) any Company Material Contracts or waive, release or assign any material rights, claims or benefits of it or its Subsidiaries under any Company Material Contract, or enter into any Contract that would have been a Company Material Contract had it been entered into prior to this Agreement, except in the ordinary course of business consistent with past practice;

(xvii)     enter into or amend or otherwise modify any Contract or transaction of the type described in Section 3.1(i) ;

(xviii)    (A) enter into or amend any employment, consulting, severance, retention, change in control, tax gross-up, deferred compensation, special or stay bonus, or any other agreement with any officer or director, employee or contractor of the Company or any Subsidiary of the Company, (B) increase the amount of compensation, bonus or other benefits payable to any current or former director, trustee, officer or other employee (other than in the ordinary course of business consistent with past practices) of the Company or the Subsidiaries of the Company, or (C) grant any severance or termination pay or benefits (or any increase in the amount of such pay or benefits) to any current or former director, trustee, officer or other employee of the Company or the Subsidiaries of the Company;

(xix)       adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any Subsidiary (other than the Mergers); or

(xx)        agree, resolve or commit to (A) do any action restricted by this Section 4.1 or (B) accept any restriction that would prevent the Company or any of its Subsidiaries from taking any action required by this Section 4.1 .

Notwithstanding anything to the contrary set forth in this Agreement, nothing in this Agreement shall prohibit (i) the Company from taking any action, at any time or from time to time, that in the reasonable judgment of the Company Board (based on the recommendation of the Company Special Committee), upon advice of counsel to the Company, is reasonably necessary for the Company to avoid or to continue to avoid incurring entity-level income or excise Taxes under the Code or to maintain its qualification as a REIT under the Code for any period or portion thereof ending on or prior to the Effective Time, including making dividend or distribution payments to shareholders of the Company in accordance with this Agreement or otherwise, or to qualify or preserve the status of any Subsidiary of the Company as a partnership or disregarded entity for U.S. federal income Tax purposes or as a Qualified REIT Subsidiary or Taxable REIT Subsidiary under the applicable provisions of Section 856 of the Code, as the case may be; and (ii) the Company from taking any action, at any time or from time to time, as the Company determines to be necessary to (A) be in compliance at all times with all of its obligations under any Tax Protection Agreement, and (B) avoid liability for any indemnification or other payment under any Tax Protection Agreement; provided, however, that if the Company or any Subsidiary of the Company proposes to take any action pursuant to this paragraph, the Company shall promptly notify Parent and consider in good faith any reasonable request of Parent to take such actions as will reduce any adverse effects on Parent or its direct or indirect owners or affiliates.

Section 4.2.           Conduct of Business by the Parent and the Merger Sub.

(a)          During the Interim Period, except as expressly contemplated by this Agreement or as required by applicable Law or with the prior written consent of the Company, each Parent Party agrees that it shall, and shall cause each of its Subsidiaries to, carry on its businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent therewith, use commercially reasonable efforts (i) to preserve intact its current business organization, goodwill and ongoing businesses, (ii) to maintain the Parent’s status as a REIT within the meaning of the Code, (iii) to preserve its current beneficial relationships with any Person with which the Parent has material business relationships (including, without limitation, customers, suppliers, directors, officers and other employees if any), and (iv) to keep available the services of its officers and key employees, if any.

(b)          The Parent Parties shall use their commercially reasonable efforts to (i) obtain the opinions of counsel referred to in Section 6.2(d) and Section 6.1(f) , (ii) deliver to Proskauer Rose LLP an officer’s certificate, dated as of the effective date of the Form S-4 and the Closing Date, respectively, and signed by an officer of the Parent and the Parent Operating Partnership with the knowledge necessary to make the representations contained therein, containing representations of the Parent and the Parent Operating Partnership as shall be reasonably necessary or appropriate to enable Proskauer Rose LLP to render the opinion described in Section 6.2(d) on the effective date of the Form S-4, satisfying the requirements of Item 601 of Regulation S-K under the Securities Act, and on the Closing Date (a “ Parent REIT Representation Letter ”), and (iii) deliver to Proskauer Rose LLP an officer’s certificate, dated as of the effective date of the Form S-4 and the Closing Date, respectively, and signed by an officer of the Parent with the knowledge necessary to make the representations contained therein, containing representations of the Parent as shall be reasonably necessary or appropriate to enable Proskauer Rose LLP to render the opinion described in Section 6.1(f) on the effective date of the Form S-4, satisfying the requirements of Item 601 of Regulation S-K under the Securities Act, and on the Closing Date (a “ Parent Reorganization Representation Letter ”).

(c)          Without limiting the generality of the foregoing, during the Interim Period, except (A) solely in the case of subsections (iii), (iv), (vi), (ix), (xvi), (xix) and (xx) below, in each case, to the extent required in connection with the entry into and consummation of the Other Strategic Transactions, (B) as required or otherwise necessary or advisable to effectuate the Mergers and all transactions contemplated by this Agreement and the Ancillary Agreements, including issuances of securities or the incurrence of indebtedness to fund the Mergers and transactions contemplated by this Agreement and Ancillary Agreements and pay related costs and expenses, or (C) as otherwise set forth on Schedule 4.2 of the Parent Disclosure Letter or as otherwise expressly contemplated by this Agreement, the Plan or Merger and any Ancillary Agreements, the Parent Parties shall not, and shall cause each of such entity’s Subsidiaries not to (and not to authorize or commit or agree to), unless the Company, with the approval of the Company Special Committee, shall otherwise consent in writing (which consent shall not be unreasonably withheld, conditioned or delayed):

(i)          (A)         except for regular monthly dividends as set forth on Schedule 4.2(c) of the Parent Disclosure Letter, declare, set aside or pay any dividends on, or make any other distributions in respect of, any shares of capital stock of the Parent (provided that Parent and its Subsidiaries shall be permitted to pay dividends and make distributions, including under Sections 858 and 860 of the Code, reasonably necessary for the Parent to maintain its status as a REIT under the Code and avoid or reduce the imposition of any corporate level Tax or excise Tax under the Code), (B) split, combine or reclassify any capital stock, partnership interests or other equity interests or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of such capital stock, partnership interests or other equity interests, or (C) purchase, redeem or otherwise acquire any shares of capital stock, partnership interests or other equity interests of the Parent or any Subsidiary of the Parent;

(ii)         amend the Parent Organizational Documents;

(iii)        merge or consolidate with any Person;

(iv)        acquire or agree to acquire (by merger, consolidation or acquisition of stock or assets, or by lease or license) any real property, corporation, partnership or other business organization or division thereof (except of or from any Subsidiary of the Parent), or acquire other assets, other than (A) supplies, equipment and investment securities or other assets in bona fide transactions, on arm’s length terms in the ordinary course of business of the Parent and its Subsidiaries in a manner that is consistent with past practice, (B) acquisitions set forth on Schedule 3.2(l)(i)(G) of the Parent Disclosure Letter and (C) any acquisition of real property that does not exceed $50,000,000 in the aggregate;

(v)         take any action that could, or fail to take any action, the failure of which could, reasonably be expected to cause (A) the Parent to fail to qualify as a REIT or (B) any Subsidiary of the Parent or Other Parent Subsidiary to cease to be treated as any of (1) a partnership or disregarded entity for U.S. federal income tax purposes or (2) a Qualified REIT Subsidiary or a Taxable REIT Subsidiary under the applicable provisions of Section 856 of the Code, as the case may be;

(vi)        issue, deliver or sell, or grant any option or other right in respect of, any shares of capital stock or debt securities, any other voting or redeemable securities of the Parent or any Subsidiary of the Parent or any Equity Equivalents of the Parent, except to the Parent or a Subsidiary of the Parent and other than (x) the issuance of any shares of capital stock pursuant to any distribution reinvestment plan or upon the exercise of stock options that are outstanding on the date of this Agreement in accordance with the terms of the Parent Stock Incentive Plans, as in effect on the date of this Agreement; or (y) the issuance of any shares of capital stock upon the redemption of the Parent OP Units in accordance with the terms of the Parent Partnership Agreement as in effect on the date of this Agreement;

(vii)       amend any term of any Parent Common Shares or Equity Equivalents of the Parent;

(viii)      sell, pledge, lease, dispose of, exclusively license or encumber or grant any third party any rights with respect to any property or assets, other than leases, licenses or sales of assets, securities, properties, interests or businesses in the ordinary course of business in a manner that is consistent with past practice and where the assets which did not, individually or in the aggregate, contribute more than 10% of the Parent’s earnings before interest, taxes, depreciation and amortization for the fiscal year ending December 31, 2015;

(ix)         other than in the ordinary course of business and consistent with past practice (A) incur, create or assume any indebtedness or issue or amend the terms of any debt securities, (B) assume, guarantee or endorse, or otherwise become responsible for the obligations of any other Person or entity (other than any Subsidiary of the Parent) for borrowed money, or (C) pledge, encumber or otherwise subject to an Encumbrance, other than a Permitted Lien, any Parent Properties;

(x)          make any loans, advances or capital contributions to, or investments in, any other Person, other than in the ordinary course of business consistent with past practice or loans, advances or capital contributions to, or investments in, wholly owned Subsidiaries of the Parent;

(xi)         other than in the ordinary course of business, (A) make, modify or rescind any material Tax election, (B) change any annual Tax accounting period if such change would result in material Taxes, (C) adopt or change any method of tax accounting except as required by applicable Law, if such change would result in material Taxes, (D) file or amend any material Tax Returns, (E) enter into any material closing agreement, (F) surrender any right to claim a material Tax refund, offset or other reduction in Tax liability, in each case, for an amount materially in excess of the amount accrued or reserved with respect to Taxes, or (G) agree to a waiver or extension of a statute of limitations with respect to Taxes;

(xii)        (A) change in any material manner any of its methods, principles or practices of accounting in effect at the Financial Statement Date, (B) initiate, settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes, except in the case of settlements or compromises in an amount not to exceed, individually or in the aggregate, $2,000,000, (C) apply for or enter into any private letter ruling, closing agreement, or other similar agreement, arrangement or determination related to Taxes, except, in the case of clause (A) or (C) , as may be required by the SEC, applicable Law or GAAP and with notice thereof to the Parent;

(xiii)       adopt or enter or make any commitment to adopt or enter into any employee benefit plan, program, policy or agreement that would be an “employee benefit plan” as defined in Section 3(3) of the ERISA if it were in existence as of the date of this Agreement;

(xiv)      take any action or exercise any discretion to accelerate the vesting or payment of, or to fund or in any other way secure the payment of, any award, compensation or benefit under the Parent Stock Incentive Plan;

(xv)       initiate, settle or compromise any material Legal Action involving or against the Parent or any of its Subsidiaries involving the payment of monetary damages by the Company or any of its Subsidiaries exceeding $2,000,000 in the aggregate, including any shareholder derivative or class action claims arising out of or in connection with the Mergers or the other transactions contemplated hereby, and excluding any Legal Action brought against the Company Parties arising out of a breach or alleged breach of this Agreement by the Company Parties;

(xvi)      amend or modify in any material respect or terminate (excluding terminations upon expiration of the term thereof in accordance with their terms) any Parent Material Contract or waive, release or assign any material rights, claims or benefits of it or its Subsidiaries under any Parent Material Contract, or enter into any Contract that would have been a Parent Material Contract had it been entered into prior to this Agreement, except in the ordinary course of business consistent with past practice;

(xvii)     enter into or amend or otherwise modify any Contract or transaction of the type described in Section 3.2(i) ;

(xviii)    (A)         enter into or amend any employment, consulting, severance, retention, change in control, tax gross-up, deferred compensation, special or stay bonus, or any other agreement with any officer or director, employee or contractor of the Parent or any Subsidiary of the Parent, (B) increase the amount of compensation, bonus or other benefits payable to any current or former director, trustee, officer or other employee (other than in the ordinary course of business consistent with past practices) of the Parent or the Subsidiaries of the Parent, (C) grant any severance or termination pay or benefits (or any increase in the amount of such pay or benefits) to any current or former director, trustee, officer or other employee of the Parent or the Subsidiaries of the Parent;

(xix)       adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Parent, the Merger Sub or any such entity’s Subsidiary (other than the Mergers); or

(xx)        agree, resolve or commit to (A) do any action restricted by this Section 4.2 or (B) accept any restriction that would prevent the Parent, the Merger Sub or any such entity’s Subsidiary from taking any action required by this Section 4.2 .

Notwithstanding anything to the contrary set forth in this Agreement, nothing in this Agreement shall prohibit (i) the Parent from taking any action, at any time or from time to time, that in the reasonable judgment of the Parent Board (based on the recommendation of the Parent Special Committee), upon advice of counsel to the Parent, is reasonably necessary for the Parent to avoid or to continue to avoid incurring entity-level income or excise Taxes under the Code or to maintain its qualification as a REIT under the Code for any period or portion thereof ending on or prior to the Effective Time, including making dividend or distribution payments to shareholders of the Parent in accordance with this Agreement or otherwise, or to qualify or preserve the status of any Subsidiary of the Parent as a partnership or disregarded entity for U.S. federal income Tax purposes or as a Qualified REIT Subsidiary or Taxable REIT Subsidiary under the applicable provisions of Section 856 of the Code, as the case may be; and (ii) the Parent from taking any action, at any time or from time to time, as the Parent determines to be necessary to (A) be in compliance at all times with all of its obligations under any Tax Protection Agreement, and (B) avoid liability for any indemnification or other payment under any Tax Protection Agreement; provided, however, that if the Parent, the Merger Sub or any Subsidiary of the Parent proposes to take any action pursuant to this paragraph, the Parent shall promptly notify the Company and consider in good faith any reasonable request of the Company to take such actions as will reduce any adverse effects on the Company or its direct or indirect owners or affiliates.

Section 4.3.           Control of Other Party’s Business . Nothing in this Agreement will give the Parent Parties, directly or indirectly, the right to control the Company Parties or direct the business or operations of the Company Parties prior to the Effective Time. Nothing contained in this Agreement will give the Company Parties, directly or indirectly, the right to control the Parent Parties or direct the business or operations of the Parent Parties prior to the Effective Time. Prior to the Effective Time, the Parent Parties and the Company Parties will exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over their respective operations and the operations of their respective Subsidiaries. Nothing in this Agreement, including any of the actions, rights or restrictions set forth herein, will be interpreted in such a way as to place any of the Parent Parties or the Company Parties in violation of applicable Law.

Article V
ADDITIONAL COVENANTS

Section 5.1.           Preparation of the Registration Statement and the Joint Proxy Statement; Shareholder Meetings.

(a)          The Parent shall use commercially reasonable efforts to prepare and file with the SEC a registration statement on Form S-4 under the Securities Act with respect to the Parent Common Shares issuable in the Merger (the “ Form S-4 ”) as soon as practicable following the execution of this Agreement. The Company and the Parent shall cooperate and use commercially reasonable efforts to promptly prepare, for inclusion in the Form S-4, a proxy statement with respect to each of the Company Shareholder Meeting and the Parent Shareholder Meeting in connection with the Merger (the “ Joint Proxy Statement ”). The Company and the Parent shall furnish all information concerning such party and its Affiliates to the other (including the Parent Special Committee and the Company Special Committee), and provide such other assistance as may reasonably be requested by the Parent or the Company (including the Parent Special Committee and the Company Special Committee) in connection with the preparation, filing and distribution of the Form S-4 and Joint Proxy Statement. The respective parties will cause the Joint Proxy Statement and the Form S-4 to comply as to form in all material respects with the applicable provisions of the Securities Act, the Exchange Act and the rules and regulations promulgated thereunder. The Company and the Parent shall use commercially reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as reasonably practicable and to keep the Form S-4 effective as long as necessary to consummate the Mergers and other transactions contemplated hereby. The Parent shall take all action required to be taken under any applicable state securities or “Blue Sky” laws in connection with the issuance of the Parent Common Shares in the Merger, and the Company shall furnish all information concerning the Company, its Subsidiaries and shareholders as may be reasonably requested in connection with any such action. Except for annual, quarterly and current reports filed or furnished with the SEC under the Exchange Act, which may be incorporated by reference therein (but subject to Section 5.6 ), no filing of, or amendment or supplement to, the Form S-4 and no response to SEC comments thereon shall be made by the Parent without the Company’s prior consent (which shall not be unreasonably withheld, conditioned or delayed) and without providing the Company the opportunity to review and comment thereon, and the Parent shall give reasonable and good faith consideration to any comments thereon made by the Company and its counsel. The Parent will advise the Company, promptly after it receives notice thereof, of the time when the Form S-4 has become effective or any supplement or amendment has been filed, the issuance of any stop order, the suspension of the qualification of the Parent Common Shares issuable in connection with the Merger for offering or sale in any jurisdiction, or any oral or written request by the SEC or other applicable securities regulator for amendment of the Joint Proxy Statement, the Form S-4 or comments thereon and responses thereto or requests by the SEC for additional information, and will promptly provide the others with copies of any written communication from the SEC or any state securities commission. The Company will advise the Parent, promptly after it receives notice thereof, of any oral or written request by the SEC or other applicable securities regulator for amendment of the Joint Proxy Statement, or comments thereon and responses thereto or requests by the SEC for additional information, and will promptly provide the others with copies of any written communication from the SEC or any state securities commission. Each of the Company and the Parent shall use its commercially reasonable efforts to respond as promptly as practicable to any comments from the SEC with respect to the Joint Proxy Statement or the Form S-4. If at any time prior to the Effective Time any information relating to the Parent Parties or the Company Parties, or any of their respective Affiliates, officers or directors, should be discovered by the Parent or any Company which should be set forth in an amendment or supplement to the Form S-4 or Joint Proxy Statement so that it would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC or other applicable securities regulator and, to the extent required by Law, disseminated to the shareholders of the Company. All filings by each of the Parent and the Company with the SEC in connection with the transactions contemplated hereby, including all mailings to the shareholders of each of the Parent and the Company in connection with the Merger and transactions contemplated by this Agreement, shall be subject to the reasonable prior review and comment by each of the Parent and the Company (including the Parent Special Committee and Company Special Committee).

(b)          As promptly as practicable following the date of this Agreement, the Company shall, in accordance with applicable Law and the Company Organizational Documents, establish a record date, duly call, give notice of, convene and hold a meeting of its shareholders (including any adjournments or postponements thereof, the “ Company Shareholder Meeting ”) for the purpose of obtaining the Company Shareholder Approval and the Company Specified Charter Amendment Approval. As promptly as reasonably practicable after the Form S-4 is declared effective under the Securities Act, the Company will cause the Joint Proxy Statement to be mailed to its shareholders and hold the Company Shareholder Meeting. Except to the extent that the Company Board (based on the recommendation of the Company Special Committee) shall have withdrawn, qualified or modified its approval or recommendation of this Agreement or the Merger in compliance with Section 5.4(d) , Section 5.4(e) and Section 5.4(f) , the Company Board shall recommend to holders of the Company Shares that they approve the Merger and the transactions contemplated by this Agreement and the Ancillary Agreements and shall include such recommendations in the Joint Proxy Statement (the “ Company Recommendation ”) and shall also recommend to holders of the Company Shares that they approve the Company Specified Charter Amendments. Subject to Section 5.4(d) , Section 5.4(e) and Section 5.4(f) , the Company will use commercially reasonable efforts to solicit or cause to be solicited from the shareholders of the Company proxies in favor of the approval of the Merger and the transactions contemplated by this Agreement and the Ancillary Agreements, as well as the Company Specified Charter Amendments, and will take all other action necessary or advisable to secure the vote or consent of the shareholders of the Company required by this Agreement and applicable Law to obtain such approvals. Notwithstanding the foregoing provisions of this Section 5.1(b) , if, on the date for which the Company Shareholder Meeting is scheduled, the Company has not received proxies representing a sufficient number of Company Shares to obtain the Company Specified Charter Amendment Approval or the Company Shareholder Approval, whether or not a quorum is present, the Company shall have the right to make one or more successive postponements or adjournments (but in no event beyond the date that is two Business Days prior to the Outside Date) of the Company Shareholder Meeting solely for the purpose of and for the times reasonably necessary to solicit additional proxies for the Company Specified Charter Amendment Approval and Company Shareholder Approval.

(c)          As promptly as practicable following the date of this Agreement, the Parent shall, in accordance with applicable Law and the Parent Organizational Documents, establish a record date, duly call, give notice of, convene and hold a meeting of its shareholders (including any adjournments or postponements thereof, the “ Parent Shareholder Meeting ”) for the purpose of obtaining the Parent Shareholder Approval. As promptly as reasonably practicable after the Form S-4 is declared effective under the Securities Act, the Parent will cause the Joint Proxy Statement to be mailed to its shareholders and hold the Parent Shareholder Meeting. Except to the extent the Parent Board (based on the recommendation of the Parent Special Committee) shall have withdrawn, qualified or modified its approval or recommendation of the Merger and issuance of the Parent Common Shares to be issued in the Merger in compliance with Section 5.5(b) , the Parent Board shall recommend to holders of the Parent Common Shares that they approve the Merger and issuance of the Parent Common Shares to be issued in the Merger and shall include such recommendations in the Joint Proxy Statement (the “ Parent Recommendation ”). Subject to Section 5.5(b) , the Parent will use commercially reasonable efforts to solicit or cause to be solicited from the shareholders of the Parent proxies in favor of the approval of the Merger and issuance of the Parent Common Shares to be issued in the Merger and will take all other action necessary or advisable to secure the vote or consent of the shareholders of the Parent required by this Agreement and applicable Law to obtain such approvals. Notwithstanding the foregoing provisions of this Section 5.1(c) , if, on the date for which the Parent Shareholder Meeting is scheduled, the Parent has not received proxies representing a sufficient number of Parent Common Shares to obtain the Parent Shareholder Approval, whether or not a quorum is present, the Parent shall have the right to make one or more successive postponements or adjournments (but in no event beyond the date that is two Business Days prior to the Outside Date) of the Parent Shareholder Meeting solely for the purpose of and for the times reasonably necessary to solicit additional proxies for the Parent Shareholder Approval.

(d)          The Parent shall promptly prepare and file with the NYSE a listing application covering the Parent Common Shares issuable in the Merger, and use all commercially reasonable efforts to obtain, prior to the Effective Time, approval for the listing of such Parent Common Shares.

Section 5.2.           Access to Information; Confidentiality.

(a)          Subject to the requirements of confidentiality agreements with third parties, upon 24 hours prior written notice, each of the Company Parties on the one hand, and the Parent Parties, on the other hand, shall, and the Company Parties and the Parent Parties shall cause each of their Subsidiaries to, afford to the other parties and their officers, employees, accountants, counsel, financial advisors and other Representatives, reasonable access during normal business hours during the Interim Period, to all their respective properties, books, contracts, commitments, personnel and records and, during such period, the Company Parties, on the one hand and the Parent Parties on the other hand, shall, and shall cause each of their Subsidiaries to furnish promptly to the other parties (a) a copy of each report, schedule, registration statement and other document filed by such party during such period pursuant to the requirements of federal or state securities laws, (b) a copy of each debt agreement, ground lease, owner’s or leasehold title insurance policy, existing survey, financial report of the Company Properties or Parent Properties as applicable, property improvement plan for the Company Properties or Parent Properties, as applicable, and existing environmental audit for the Company Properties and Parent Properties, as applicable, and (c) all other information concerning its business, properties and personnel as other party may reasonably request, including financial statements, Tax Returns, leases, certificates of occupancy, tax statements, service agreements, license or franchise agreements and Permits. Notwithstanding the foregoing, neither the Company Parties nor the Parent Parties shall be required by this Section 5.2 to provide the other party or the Representatives of such other party with access to or to disclose information (w) relating to the consideration, negotiation and performance of this Agreement and related agreements, (x) to the extent such information is subject to the terms of a confidentiality agreement with a third party entered into prior to the date of this Agreement (provided, however, that the withholding party shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure), (y) the disclosure of which would, based on the advice of counsel, violate any Law or fiduciary or legal duty (provided, however, that the withholding party shall use its commercially reasonable efforts to make appropriate substitute arrangements to permit reasonable disclosure not in violation of any Law or fiduciary or legal duty) or (z) to the extent such information, based on the advice of counsel, is subject to any attorney-client, attorney work product or other legal privilege (provided, however, that the withholding party shall allow for such access or disclosure to the maximum extent that does not result in a loss of any such attorney-client, attorney work product or other legal privilege). Each of the parties hereto will use its commercially reasonable efforts to minimize any disruption to the businesses of the other parties that may result from the requests for access, data and information hereunder.

(b)          Each of the Company Parties and Parent Parties shall comply with the terms of the Confidentiality Agreement with respect to all information concerning the other party provided to their respective officers, employees, accountants, counsel, financial advisors and other Representatives and Affiliates.

Section 5.3.           Commercially Reasonable Efforts; Notification.

(a)          Upon the terms and subject to the conditions set forth in this Agreement, each of the Company Parties and Parent Parties agrees to use its commercially reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other in doing, all things necessary, proper or advisable to fulfill all conditions applicable to such party pursuant to this Agreement and to consummate and make effective the Mergers and the other transactions contemplated hereby, including (i) the obtaining of all necessary actions or nonactions, waivers, consents and approvals from Governmental Entities and the making of all necessary registrations and filings and the taking of all reasonable steps as may be necessary to obtain an approval, waiver or exemption from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging the Mergers, this Agreement, the Ancillary Agreements, or the consummation of any of the other transactions contemplated hereby or thereby, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed, and (iii) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by and to fully carry out the purposes of this Agreement and the Ancillary Agreements. In connection with and without limiting the foregoing, (x) the Company Parties shall take all action necessary so that no “fair price,” “business combination,” “moratorium,” “control share acquisition” or any other anti-takeover statute or similar statute enacted under state or federal laws of the U.S. or similar statute or regulation (a “ Takeover Statute ”) is or becomes applicable to the Mergers, this Agreement, the Ancillary Agreements, or any of the other transactions contemplated hereby and thereby, and (y) if any Takeover Statute becomes applicable to the Mergers, this Agreement, the Ancillary Agreements, or any of the other transactions contemplated hereby or thereby, each of the Company Parties and Parent Parties shall take all action necessary so that the Mergers may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such Takeover Statute on the Mergers or the consummation of any of the other transactions contemplated hereby.

(b)          Subject to applicable Law and the instructions of any Governmental Entity, each of the Company Parties and Parent Parties shall keep each other reasonably apprised of the status of matters relating to the completion of the transactions contemplated hereby, including promptly furnishing the others with copies of notices or other written communications received by any of the Company Parties or Parent Parties or any of their respective Subsidiaries, from any Governmental Entity and/or third party with respect to such transactions, and, to the extent practicable under the circumstances, shall provide the other party and its counsel with the opportunity to participate in any meeting with any Governmental Entity in respect of any filing, investigation or other inquiry in connection with the transactions contemplated hereby.

(c)          The Parent shall use its commercially reasonable efforts to take, or cause to be taken, all actions and do, or cause to be done, as promptly as possible, all things necessary, proper or advisable to arrange and obtain the Debt Financing on the terms and conditions described in the Commitment Letter, including maintaining in effect the Commitment Letter and using commercially reasonable efforts to, as promptly as possible, (i) satisfy, or cause to be satisfied, on a timely basis all conditions to the Parent and/or the Merger Sub obtaining the Debt Financing set forth therein, (ii) negotiate and enter into definitive agreements with respect thereto on the terms and conditions contemplated by the Commitment Letter (including any related flex provisions) or on other terms that are (x) reasonably acceptable to the Financing Sources and (y) in the aggregate not materially less favorable, taken as a whole, to the Parent and/or the Merger Sub than those set forth in the Commitment Letter, (iii) cause its senior management and the senior management of its other Affiliates, if applicable, to cooperate with the marketing and/or syndication efforts of the Financing Sources for the Debt Financing, (iv) timely prepare the necessary information memoranda or other offering documents or marketing materials with respect to the Debt Financing, (v) commence the marketing and/or syndication activities contemplated by Commitment Letter as promptly as practicable, and (vi) consummate the Debt Financing at or prior to Closing. If any portion of the Debt Financing becomes, or would reasonably be expected to become, unavailable on the terms and conditions contemplated in the Commitment Letter (after taking into account any applicable flex terms), the Parent shall use its commercially reasonable efforts to arrange to obtain alternative financing, including from alternative sources, on terms in the aggregate not materially less favorable to the Parent and the Merger Sub than the Debt Financing contemplated by the Commitment Letter in an amount sufficient to replace any unavailable portion of the Debt Financing (“ Alternative Financing ”) to the extent necessary to make the representations and warranties in Section 3.2(y) to be true and correct in all material respects as of the Closing Date as promptly as practicable following the occurrence of such event and the provisions of this Section 5.3 and Section 3.2(y) shall be applicable to the Alternative Financing, and, for the purposes of this Section 5.3 and Section 5.18 , all references to the Debt Financing shall be deemed to include such Alternative Financing, all references to the Commitment Letter or other Debt Financing Documents shall include the applicable documents for the Alternative Financing and all references to the Financing Sources shall include the Persons providing or arranging the Alternative Financing and other applicable Persons consistent with the definition of the term “ Financing Sources ”. The Parent and the Merger Sub shall each (A) comply in all material respects with the Commitment Letter and each of the Debt Financing Documents, (B) enforce in all material respects its rights under each Debt Financing Document and (C) not permit, without the prior written consent of the Company, any material amendment or modification to be made to any Debt Financing Document or the fee letter referred to in the Commitment Letter that (individually or in the aggregate with any other amendments, modifications or waivers) would reasonably be expected to (I) delay or prevent the Closing, (II) make the funding of any portion of the Debt Financing (or satisfaction of any condition to obtaining any portion of the Debt Financing) materially less likely to occur or (III) adversely impact the ability of the Parent or the Merger Sub to enforce its rights against any other party to any Debt Financing Document. Each of the Parent and the Merger Sub acknowledge and agree that the obtaining of the Debt Financing, or any Alternative Financing, is not a condition to the Closing and reaffirms its respective obligations to consummate the transactions contemplated by this Agreement irrespective and independently of the availability of the Debt Financing or any Alternative Financing, subject to fulfillment or waiver of the conditions set forth in ARTICLE VI . In the event that the Parent and the Merger Sub fail to consummate the transactions contemplated hereby within three (3) Business Days (unless the Parent and the Company have agreed to a later Closing time, in which event, as of one Business Day following such time) after satisfaction (or waiver by the party or parties entitled to the benefit thereof) of the conditions set forth in Sections 6.1 and 6.2 (other than those conditions that by their nature are to be satisfied by actions taken at the Closing) and after receipt by Parent of a letter from the Company indicating that it is ready and willing to close and (ii) as of such time, the Parent and the Merger Sub shall not have obtained the Debt Financing or any Alternative Financing, the Company shall be entitled to terminate this Agreement pursuant to Section 7.1(c)(i) and the Parent shall be obligated to pay the Termination Fee to the Company in accordance with Section 7.4(e) , subject to the limitations set forth in Section 7.4(g ).

(d)          The Parent shall give the Company prompt written notice (i) of any breach or default (or any event or circumstance that, with or without notice, lapse of time or both, would reasonably be expected to result in breach or default) by any party to the Commitment Letter or other Debt Financing Document of which the Parent becomes aware, (ii) if and when the Parent becomes aware that any portion of the Debt Financing contemplated by the Commitment Letter may not be available for the purposes of the Debt Financing, (iii) of the receipt of any written notice or other written communication from any Person with respect to any (x) actual or potential breach, default, termination or repudiation by any party to the Commitment Letter or other Debt Financing Document or (y) material dispute or disagreement between or among any parties to the Commitment Letter or other Debt Financing Document (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Debt Financing or the Debt Financing Documents), (iv) if for any reason the Parent believes in good faith that it or the Merger Sub will not be able to obtain any portion of the Debt Financing on the terms, in the manner and from the sources contemplated by the Commitment Letter (including any related flex terms) or the definitive agreements with respect thereto and (v) of any expiration or termination of the Commitment Letter or other Debt Financing Document.

(e)          Notwithstanding anything to the contrary in this Agreement, in connection with obtaining any approval or consent from any Person (other than any Governmental Authority) with respect to the Mergers, none of the parties hereto, any of the other Company Parties or any of the other Parent Parties, or any of the their respective Representatives, shall be obligated to pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any Liability or other obligation to such Person (unless expressly required by a written agreement that was entered into prior to the date hereof with such Person). The parties shall cooperate reasonably with respect to accommodations that may be requested or appropriate to obtain such consents.

Section 5.4.           No Solicitation of Transactions.

(a)          Notwithstanding anything to the contrary contained in this Agreement but subject to Section 5.4(e) and Section 5.4(f) , during the period beginning on the date of this Agreement and continuing until 11:59 p.m. (New York City time) on October 21, 2016 (the “ Go Shop Period End Time ”), the Company, the Subsidiaries of the Company and their respective Representatives may and shall have the right to, directly or indirectly: (i) initiate, solicit, encourage or facilitate any inquiries or the making of any proposal, offer or other action that constitutes, or could reasonably be expected to lead to, any Acquisition Proposal, including by way of (A) contacting third parties, (B) broadly disseminating public disclosure or (C) providing access to the properties, offices, assets, books, records and personnel of the Company and the Subsidiaries of the Company and furnishing non-public information pursuant to (but only pursuant to) one or more Acceptable Confidentiality Agreements; provided, however, that the Company has previously or substantially contemporaneously furnished, made available or provided access to such non-public information to the Parent; (ii) enter into, continue or otherwise participate in any discussions or negotiations with any Person relating to, or in furtherance of such inquiries, proposals, offers or other actions or to obtain, an Acquisition Proposal; (iii) release any Person from, or refrain from enforcing, any standstill agreement or similar obligation to the Company or any of the Subsidiaries of the Company; and (iv) disclose to the shareholders of the Company any information required to be disclosed under applicable Law. For purposes of this Agreement, the term “ Go Shop Bidder ” shall mean any Person (including its controlled Affiliates and Representatives) that submits a proposal or offer regarding an Acquisition Proposal not later than the Go Shop Period End Time that has not been withdrawn and that the Company Special Committee determines prior to the Go Shop Period End Time (or in the case of any Acquisition Proposal received less than two (2) Business Days before the date of the Go Shop Period End Time, not later than two (2) Business Days after the Go Shop Period End Time), has resulted in, or could be reasonably expected to result in, a Superior Proposal. No later than two (2) Business Days after the Go Shop Period End Time, the Company shall notify the Parent in writing of the identity of each Go Shop Bidder and provide to the Parent (x) a copy of any related Acquisition Proposal made in writing and any other written material terms or proposals provided (including, to the extent not included therein, a copy of the acquisition agreement and any related transaction documents and financing commitments, if any) to the Company or any Company Subsidiary and (y) a written summary of the material terms of any related Acquisition Proposal not made in writing (including any material terms proposed orally or supplementally).

(b)          Except as permitted by, and subject to, Section 5.4(d) , Section 5.4(e) and Section 5.4(f) , and except with respect to a Go Shop Bidder, from and after the Go Shop Period End Time, the Company shall not, and shall cause each of its Subsidiaries not to, and shall not authorize or permit any of its Representatives to, (i) initiate, solicit, knowingly encourage or facilitate any inquiries or the making of any proposal, offer or other action that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations with any Person, or furnish to any Person other than the Parent any non-public information, in furtherance of such inquiries or to obtain an Acquisition Proposal, (iii) release any Person from or fail to enforce any standstill agreement or similar obligation to the Company or any of the Subsidiaries of the Company, (iv) withdraw, modify or amend the Company Recommendation in any manner adverse to the Parent or the Merger Sub or fail to make the Company Recommendation or fail to include the Company Recommendation in the Joint Proxy Statement, (v) approve, endorse or recommend any Acquisition Proposal, (vi) enter into any agreement in principle, arrangement, understanding, contract or agreement (whether binding or not) relating to an Acquisition Proposal, or (vii) take any action to exempt any Person from any Takeover Statute or similar restrictive provision of the Company Organizational Documents for purposes of facilitating an Acquisition Proposal (any event described in clause (iv), clause (v) , clause (vi) or clause (vii) , whether taken by the Company Board or a committee thereof, a “ Company Change in Recommendation ”). For the avoidance of doubt, after the Go Shop Period End Time until the receipt of the Company Shareholder Approval, the Company, its Subsidiaries and their respective Representatives may continue to take any of the actions described in Section 5.4(a) with respect to any proposals or offers regarding any Acquisition Proposal submitted by a Go Shop Bidder on or before the Go Shop Period End Time or with respect to any amended or modified proposal or offer with respect to any such Acquisition Proposal submitted by a Go Shop Bidder after the Go Shop Period End Time if the Company Special Committee has determined in good faith following consultation with its legal and financial advisors that such Acquisition Proposal (as may be amended or modified) is or could be reasonably expected to result in a Superior Proposal; provided that a Go Shop Bidder shall cease to be a Go Shop Bidder if the negotiations between the Company and such Go Shop Bidder with respect to the Acquisition Proposal that resulted in such Go Shop Bidder becoming a Go Shop Bidder shall have been terminated. The Company agrees that in the event any Representative of the Company or any Subsidiary of the Company takes any action on behalf of the Company that, if taken by the Company, would constitute a material violation of this Section 5.4(b) , then the Company shall be deemed to be in violation of this Section 5.4(b) for all purposes of this Agreement.

(c)          Except as permitted by, and subject to, Section 5.4(b) , Section 5.4(d) , Section 5.4(e) and Section 5.4(f) , after the Go Shop Period End Time, the Company shall, and shall cause each of its Subsidiaries and their respective Representatives to, immediately cease any discussions, negotiations or communications with any Person (other than Go Shop Bidders and the Parent) with respect to any Acquisition Proposal or potential Acquisition Proposal and immediately terminate all physical and electronic data room access previously granted to any such Person (other than Go Shop Bidders and the Parent).

(d)          If, from and after the Go Shop Period End Time and prior to receipt of the Company Shareholder Approval, the Company or any of its Subsidiaries or their respective Representatives receives a bona fide written Acquisition Proposal which has not been initiated, solicited, encouraged or facilitated in violation of Section 5.4(b) , and which the Company Special Committee has determined in good faith following consultation with its legal and financial advisors is or could be reasonably expected to result in a Superior Proposal, the Company and its Subsidiaries or any of their respective Representatives thereafter may take the following actions: (i) furnish, make available or provide access to non-public information with respect to the Company and its Subsidiaries to the Person who made such Acquisition Proposal and such Person’s Representatives (provided that the Company (A) has previously furnished, made available or provided access to such non-public information to the Parent and (B) furnishes, makes available or provides access to such non-public information pursuant to an Acceptable Confidentiality Agreement), (ii) participate in negotiations regarding such Acquisition Proposal, and (iii) disclose to the shareholders of the Company any information required to be disclosed under applicable Law. From and after the Go Shop Period End Time, in the event the Company, any of its Subsidiaries or any of their respective Representatives receives from a Person (including a Go Shop Bidder) or group of related Persons (x) an Acquisition Proposal or an amended or modified proposal or offer with respect to any such Acquisition Proposal, (y) any request for information relating to the Company or its Subsidiaries from a Person who informs the Company or any of its Subsidiaries that it is considering making or has made an Acquisition Proposal or (z) any inquiry or request for discussions or negotiations regarding any Acquisition Proposal, the Company shall promptly notify the Parent of (but in no event more than 48 hours following) such receipt. Such notification shall include, to the extent then known, the identity of the parties and a copy of such Acquisition Proposal, inquiry or request or, if not made in writing, a written description of the material terms thereof. The Company shall keep the Parent apprised on a current basis of (and in any event no later than 24 hours after) any material developments, discussions and negotiations concerning, any such Acquisition Proposal, inquiry or request, including by furnishing copies of any documentation and written correspondence that supplements or amends any such Acquisition Proposal, inquiry or request. Notwithstanding anything to the contrary in this Agreement, but subject to the preceding three sentences, nothing herein shall prohibit the Company, its Subsidiaries and their respective Representatives from contacting in writing any Person submitting an Acquisition Proposal (that was not the result of a violation of this Section 5.4 ) solely to clarify the terms of the Acquisition Proposal for the sole purpose of the Company Board (or the Company Special Committee) informing itself about such Acquisition Proposal. Neither the Company nor any of its Subsidiaries shall, after the date of this Agreement, enter into any confidentiality agreement that would prohibit it from providing such information to the Parent.

(e)          At any time prior to receipt of the Company Shareholder Approval, the Company Board may, if the Company Board determines in good faith after consultation with its legal advisor (and based on the recommendation of the Company Special Committee) that the failure to do so would be reasonably likely to be inconsistent with directors’ duties under applicable Law, (i) upon receipt by the Company of an Acquisition Proposal that constitutes a Superior Proposal (whether or not from a Go Shop Bidder), make a Company Change in Recommendation (and the Company may so terminate this Agreement in accordance with Section 7.1(c)(ii) of this Agreement and enter into an agreement relating to, or for the implementation of, such Superior Proposal); or (ii) otherwise make a Company Change in Recommendation in response to a Company Intervening Event in circumstances not involving an Acquisition Proposal; provided that:

(A)         in the case of a Company Change in Recommendation under clause (i) of this Section 5.4(e) , (1) such Acquisition Proposal did not result from the Company’s breach of its obligations under this Section 5.4 , and (2) the Company Board has determined in good faith, after consultation with its legal and financial advisors (and based on the recommendation of the Company Special Committee), that such Acquisition Proposal constitutes a Superior Proposal and, after consultation with its legal advisor, that the failure of the Company to terminate this Agreement in accordance with Section 7.1(c)(ii) or make a Company Change in Recommendation, as the case may be, would be inconsistent with directors’ duties under applicable Law, taking into account all adjustments to the terms of this Agreement that have been offered by the Parent pursuant to Section 5.4(e)(D) ;

(B)         in the case of a Company Change in Recommendation under clause (ii) of this Section 5.4(e) , the Company Board has determined in good faith, after consultation with its legal advisor (and based on the recommendation of the Company Special Committee), that failure of the Company to make a Company Change in Recommendation would be reasonably likely to be inconsistent with directors’ duties under applicable Law, taking into account all adjustments to the terms of this Agreement that have been offered by the Parent pursuant to Section 5.4(e)(D) ;

(C)         the Company has notified the Parent in writing that the Company Board intends to make a Company Change in Recommendation or enter into an agreement related to the Superior Proposal, attaching the most current version of such agreement (including any amendments, supplements or modifications) to such notice (a “ Company Change Notice ”); and

(D)         during the three (3) Business Day period following the Parent’s receipt of a Company Change Notice, the Company shall have offered to negotiate with (and, if accepted, negotiated in good faith with), and shall have caused its respective financial and legal advisors to offer to negotiate with (and, if accepted, negotiate in good faith with), the Parent in making adjustments to the terms and conditions of this Agreement such that (1) in circumstances involving or relating to an Acquisition Proposal, the Superior Proposal ceases to be a Superior Proposal; provided that any amendment, supplement or modification to any Acquisition Proposal shall be deemed a new Acquisition Proposal and the Company may not terminate this Agreement pursuant to Section 7.1(c) or make a Company Change in Recommendation pursuant to clause (i) of this Section 5.4(e) unless the Company has complied with the requirements of this Section 5.4(e) with respect to each such new Acquisition Proposal including sending a Company Change Notice with respect to each such new Acquisition Proposal (except that the new negotiation period under this Section 5.4(e)(D) shall be two (2) Business Days instead of three (3) Business Days), and (2) in circumstances not involving an Acquisition Proposal, as may be proposed by the Parent.

(f)          Nothing in this Section 5.4 or elsewhere in this Agreement shall prevent the Company Board or the Company, directly or indirectly, from (i) taking and disclosing to the shareholders of the Company a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act with respect to an Acquisition Proposal, making any required disclosure to the shareholders of the Company under applicable Law, including Rule 14d-9 promulgated under the Exchange Act or Item 1012(a) of Regulation M-A or (ii) making any disclosure to the shareholders of the Company if the Company Board determines in good faith after consultation with its legal advisors (and based on the recommendation of the Company Special Committee) that the failure to do so would be inconsistent with directors’ duties under applicable Law; provided, however, that a Company Change in Recommendation may only be effected in accordance with Section 5.4(e) .

Section 5.5.           Parent Change in Recommendation .

(a)          Except as permitted by, and subject to, Section 5.5(b) , from and after the date of this Agreement, the Parent shall not withdraw, modify or amend the Parent Recommendation in any manner adverse to the Company or fail to make the Parent Recommendation or fail to include the Parent Recommendation in the Joint Proxy Statement (such event, whether taken by the Parent Board or a committee thereof, a “ Parent Change in Recommendation ”).

(b)          At any time prior to receipt of the Parent Shareholder Approval, the Parent Board may, if the Parent Board determines in good faith after consultation with its legal and financial advisors (and based on the recommendation of the Parent Special Committee) that the failure to do so would be reasonably likely to be inconsistent with directors’ duties under applicable Law, make a Parent Change in Recommendation in response to a Parent Intervening Event; provided that:

(i)          the Parent Board has determined in good faith, after consultation with its legal advisors (and based on the recommendation of the Parent Special Committee), that failure of the Parent to make a Parent Change in Recommendation would be reasonably likely to be inconsistent with directors’ duties under applicable Law, taking into account all adjustments to the terms of this Agreement that have been offered by the Company pursuant to Section 5.5(b)(iii) ;

(ii)         the Parent has notified the Company in writing that the Parent Board intends to make a Parent Change in Recommendation (a “ Parent Change Notice ”); and

(iii)        during the three (3) Business Day period following the Company’s receipt of a Parent Change Notice, the Parent shall have offered to negotiate with (and, if accepted, negotiated in good faith with), and shall have caused its respective financial and legal advisors to offer to negotiate with (and, if accepted, negotiate in good faith with), the Company in making adjustments to the terms and conditions of this Agreement as may be proposed by the Company.

Section 5.6.           Public Announcements . Except (a) with respect to any Company Change in Recommendation or Parent Change in Recommendation made in accordance with the terms of this Agreement and (b) with respect to disclosures that are consistent with prior disclosures made in compliance with this Section 5.6 , the parties hereto will consult with each other (including, in the case of the Company, the Company Special Committee and, in the case of the Parent, the Parent Special Committee) before issuing, and provide the Company Special Committee and Parent Special Committee, the opportunity to review and comment upon, any press release or other public statements with respect to the Mergers or the other transactions contemplated hereby, and shall not issue any such press release or make any such public statement prior to such consultation, except as may be required by applicable Law, court process or stock exchange rules or regulations. The parties agree that the initial press release to be issued with respect to the execution of this Agreement will be in the form agreed to by the parties hereto and approved by the Company Special Committee and the Parent Special Committee.

Section 5.7.           Transfer Taxes . The parties hereto shall cooperate in (a) the preparation, execution and filing of all returns, questionnaires, applications or other documents regarding any real property transfer or gains, sales, use, transfer, value added stock transfer and stamp taxes, any transfer, recording, registration and other fees, any similar taxes and any related interests, penalties and additions to tax (together, “ Transfer Taxes ”) which become payable in connection with the Mergers and (b) attempting to minimize the amount of Transfer Taxes. From and after the Effective Time, the Surviving Company and the Surviving Partnership shall pay or cause to be paid, without deduction or withholding from the Merger Consideration and Partnership Merger Consideration respectively, all Transfer Taxes.

Section 5.8.           Certain Transactions.

(a)           Termination of Advisory and Related Party Contracts . On or prior to the Effective Time, the Company shall terminate, without liability to the Company or its Subsidiaries, the contracts listed on Exhibit B attached hereto pursuant to termination agreements entered into on the date hereof or otherwise, in form and substance reasonably acceptable to the Parent (the “ Termination Agreements ”).

(b)           Company Stock Plans . On or prior to the Effective Time, the Company shall take any and all actions necessary or appropriate to terminate each Company Stock Plan, in each case in form and substance reasonably acceptable to the Parent.

(c)           Company Share Repurchase Program and DRIP . The Company shall take all actions required to terminate, effective prior to the Effective Time, the Company Share Repurchase Program and DRIP, including by providing timely notice of termination in form and substance reasonably acceptable to the Parent, and, from and after the date of this Agreement, the Company shall not repurchase or issue any of its capital stock thereunder.

Section 5.9.           Indemnification of Directors, Officers, Employees or Agents of the Company.

(a)           Indemnification Rights . From and after the Effective Time, to the fullest extent permitted under applicable Law, the Parent and the Surviving Company (the “ Indemnifying Parties ”) shall indemnify, defend and hold harmless each Person who is now, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer, director or agent of the Company and its Subsidiaries (each, an “ Indemnified Party ”) against all losses, claims, damages, liabilities, fees, expenses, judgments and fines arising in whole or in part out of actions or omissions in their capacity as such occurring at or prior to the Effective Time (including in connection with the transactions contemplated by this Agreement), and shall reimburse each Indemnified Party for any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such losses, claims, damages, liabilities, fees, expenses, judgments and fines as such expenses are incurred, subject to the Surviving Company’s receipt of an undertaking by such Indemnified Party to repay such legal and other fees and expenses paid in advance if it is ultimately determined in a final and nonappealable judgment of a court of competent jurisdiction that such Indemnified Party is not entitled to be indemnified under applicable Law; provided, however, that the Surviving Company will not be liable for any settlement effected without the Surviving Company 's prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed).

(b)           Liability Coverage . The Surviving Company shall, and Parent shall cause the Surviving Company to, obtain and maintain for a period of six (6) years from and after the Effective Time “run-off” or “tail” director and officer liability coverage for the benefit of the directors, officers and agents of the Company and its Subsidiaries without reduction of existing coverage under, and having terms not less favorable to the insured persons, than the director and officer liability insurance coverage presently maintained by the Company.

(c)           Certificate of Formation and Limited Liability Company Agreement of Surviving Company . The certificate of formation and limited liability company operating agreement of the Surviving Company shall contain provisions no less favorable with respect to indemnification, advancement or expenses and exculpation of present and former directors, officers, or agents of the Company and any of its Subsidiaries than are presently set forth in the certificate of incorporation and by-laws of the Company or the Company Advisory Agreement as in effect on the date of this Agreement. From and after the Effective Time, the Parent and the Merger Sub agree that all rights to indemnification, advancement of expenses and exculpation by the Company now existing in favor of each Indemnified Party as provided in the Company Organizational Documents and the Company Advisory Agreement as in effect on the date of this Agreement shall be assumed by the Surviving Company without further action, at the Effective Time and shall survive the Merger and remain in full force and effect in accordance with their terms, and in the event that any proceeding is pending or asserted or any claim made during such period, until the final disposition of such proceeding or claim.

(d)           Successors and Assigns . The provisions of this Section 5.9 are intended to be for the benefit of, and shall be enforceable by, each indemnified party, his or her heirs and his or her personal representatives and shall be binding on all successors and assigns of the Parent and the Surviving Company. The Parent agrees to pay all costs and expenses (including fees and expenses of counsel) that may be incurred by any indemnified party or his or her heirs or his or her personal representatives in successfully enforcing the indemnity or other obligations of the Parent or the Surviving Company under this Section 5.9 . The provisions of this Section 5.9 shall survive the Merger and are in addition to any other rights to which an indemnified party may be entitled. In the event that the Parent, the Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or Surviving Company or entity of such consolidation or merger or (ii) transfers all or substantially all of its business, properties or assets to any Person, then, and in each such case, to the extent necessary, a proper provision should be made so that the successors and assigns of the Parent, the Surviving Company or any of their respective successors or assigns, as the case may be, shall assume the obligations set forth in this Section 5.9 , which obligations are expressly intended to be for the irrevocable benefit of, and shall be enforceable by, each indemnified party covered hereby.

Section 5.10.          Litigation . The Company Parties shall give prompt notice to the Parent Parties, and the Parent Parties shall give prompt notice to the Company Parties, of any Legal Action commenced or, to such party’s Knowledge, threatened against, relating to or involving such party or any Subsidiary of the Company or Subsidiary of the Parent, respectively, which relate to this Agreement, the Mergers or the other transactions contemplated by this Agreement. The Company Parties shall give the Parent Parties the opportunity to reasonably participate in the defense and settlement of any stockholder litigation against the Company Parties and/or their directors relating to this Agreement and the transactions contemplated hereby, and no such settlement shall be agreed to without the Parent’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed). The Parent Parties shall give the Company Parties the opportunity to reasonably participate in the defense and settlement of any stockholder litigation against the Parent Parties and/or their directors relating to this Agreement and the transactions contemplated hereby, and no such settlement shall be agreed to without the Company’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed).

Section 5.11.          Section 16 Matters . Prior to the Effective Time, each of the parties shall take all such steps as may be required to cause (a) any dispositions of Company Shares (including derivative securities with respect to Company Shares) resulting from the Merger and the other transactions contemplated by this Agreement, by each individual who will be subject to the reporting requirements of Section 16(a) of the Exchange Act with respect to the Company immediately prior to the Effective Time to be exempt under Rule 16b-3 promulgated under the Exchange Act and (b) any acquisitions of the Parent Common Shares (including derivative securities with respect to the Parent Common Shares) resulting from the Merger and the other transactions contemplated by this Agreement, by each individual who may become subject to the reporting requirements of Section 16(a) of the Exchange Act with respect to the Parent to be exempt under Rule 16b-3 promulgated under the Exchange Act.

Section 5.12.          Dividends . In the event that a dividend or distribution with respect to the Company Shares or the Company OP Units permitted under the terms of this Agreement has (i) a record date prior to the Effective Time and (ii) has not been paid as of the Effective Time, the holders of Company Shares or Company OP Units, as applicable, shall be entitled to receive such distribution from the Company immediately prior to the time such shares are exchanged pursuant to ARTICLE II of this Agreement.

Section 5.13.          Certain Tax Matters .

(a)          Each of the Parent and the Company shall use their commercially reasonable efforts to cause the Merger to qualify as a reorganization within the meaning of Section 368(a) of the Code, including by executing and delivering the Parent Reorganization Representation Letter and Company Reorganization Representation Letter, respectively, and reporting consistently for all federal, state, and local income Tax or other purposes. None of the Parent or the Company shall take any action, or fail to take any action, that would be reasonably expected to cause the Merger to fail to qualify as a reorganization within the meaning of Section 368(a) of the Code.

(b)          The Company, as general partner of the Company Operating Partnership, shall adjust the Gross Asset Value (as defined in the Company Partnership Agreement) of the assets of the Company Operating Partnership immediately prior to the consummation of the transactions contemplated in Section 1.1 in accordance with Treasury Regulations Section 1.704-1(b)(2)(iv)(f) and paragraph (b) of the definition of Gross Asset Value, and the capital accounts of the partners of the Company Operating Partnership who were partners immediately prior to the consummation of the transactions contemplated in Section 1.1 shall be adjusted to reflect such adjustment to the Gross Asset Value of the assets of the Company Operating Partnership in accordance with the terms of the Company Partnership Agreement.

Section 5.14.          FIRPTA Certificate . On the Closing Date, prior to the Mergers, the Company shall deliver to the Parent a duly executed certificate, dated as of the Closing Date, that, to the Knowledge of the Company Parties (and, if necessary and appropriate, relying on representations of Persons independent of the Company), the Company is a “domestically controlled qualified investment entity” within the meaning of Section 897(h)(4)(B) of the Code. The Company Operating Partnership shall have used commercially reasonable efforts to obtain from each Person that constitutes and is treated as a partner (and is not a “disregarded entity”) for United States federal income tax purposes of the Company Operating Partnership an affidavit of non-foreign status that complies with the Treasury Regulations under Section 1445 of the Code and, to the extent obtained, shall have delivered such affidavit to the Parent Operating Partnership.

Section 5.15.          Stock Exchange Listing . The Parent shall use commercially reasonable efforts to cause the Parent Common Shares to be issued in the Merger to be approved for listing on the NYSE prior to the Effective Time.

Section 5.16.          Updates.

(a)          From and after the date hereof until the Closing (or the earlier termination of this Agreement in accordance with its terms), the Parent Parties shall keep the Company Parties reasonably informed with respect to the status of any pending Other Strategic Transactions and shall provide the Company Parties with such information related to such transactions as the Company Parties may reasonably request from time to time (the “ Other Strategic Parties’ Confidential Information ”), subject to the execution by the Company of a confidentiality agreement on terms and conditions substantially similar to the Confidentiality Agreement and providing for (i) confidentiality and non-use covenants on the Company with respect to the Other Strategic Parties’ Confidential Information and (ii) provision permitting the Parent Parties to provide access of Other Strategic Parties to such Other Strategic Transaction to confidential information of the Company Parties so long as such Other Strategic Parties agree to be bound to similar confidentiality and non-use covenants as set forth in clause (i) above. Prior to the execution of any agreement related to any Other Strategic Transaction, the Parent Parties shall provide written notice to the Company Parties and make available to the Company Parties copies of all definitive documents related to such Other Strategic Transaction.

(b)          The Parent Parties shall have the right from time to time until three (3) Business Days prior to the anticipated Closing Date to supplement or amend the Parent Disclosure Letter with respect to any matter hereafter arising from Other Strategic Transactions, which if existing or known at the date of this Agreement would have been required to be set forth or described in the Parent Disclosure Letter. Any such updates shall not be deemed to have caused any breach of such representation or warranty and shall not be taken into account for purposes of determining whether or not the condition set forth in Section 6.3(a) has been satisfied.

Section 5.17.          Company Special Committee Outside Legal Counsel .   Notwithstanding anything to the contrary in this Agreement or any pre-existing engagement agreements between Arnold & Porter LLP and the Company, for the benefit of the Company Special Committee, all parties to this Agreement acknowledge and agree that: (i) regardless of whether Arnold & Porter LLP has been engaged by the Company Special Committee or by the Company to represent the Company Special Committee, Arnold & Porter LLP’s attorney-client relationship in connection with the preparation and negotiation of this Agreement and the consummation of the transactions contemplated hereby is with the Company Special Committee and not with the Company or any Subsidiary of the Company; (ii) as counsel to the Company Special Committee in connection with the preparation and the negotiation of this Agreement and the consummation of the transactions contemplated hereby, Arnold & Porter LLP has provided and will provide advice solely to the Company Special Committee, and not to the Company or any Subsidiary of the Company; (iii) to the extent that Arnold & Porter LLP has provided services as counsel to the Company Special Committee with, on behalf of or benefiting the Company in connection with the preparation and the negotiation of this Agreement and the consummation of the transactions contemplated by the Agreement, it has done so solely at the direction of and for the Company Special Committee; (iv) the attorney-client relationship with respect to Arnold & Porter LLP’s services in connection with the preparation and the negotiation of this Agreement and the consummation of the Transactions, including all related documents and communications, belong solely to the Company Special Committee; (v) only the Company Special Committee can waive any privilege relating to Arnold & Porter LLP’s services and work product for the Company Special Committee in connection with the preparation and the negotiation of this Agreement and the consummation of the transactions contemplated by this Agreement; and (vi) none of the attorney-client relationships or work product referred to or described in clauses (i) -( iv ) of this Section 5.17 are or shall be deemed to be assets of the Company or any Subsidiary of the Company, and all parties agree that the attorney-client relationship, documents and communications, and any privileges associated therewith shall not be transferred to any of the Parent Parties or any affiliate of the Parent Parties by reason of the Mergers and the other transactions contemplated hereby and all of which attorney-client relationships and work product are specifically excluded from the Mergers and the other transactions contemplated hereby.

Section 5.18.          Financing Cooperation .

(a)          Prior to the Closing, the Company shall and shall cause its Subsidiaries to, cause their respective officers and employees and use commercially reasonable efforts to cause their respective advisors, including legal and accounting advisers, to cooperate with the Parent in connection with the arrangement of the Debt Financing to the extent customary and reasonably requested by the Parent, including using commercially reasonable efforts to (i) furnish the Parent and its financing sources (including the Financing Sources) as promptly as reasonably practicable following the Parent’s request, with information (other than financial information, which is covered by clause (ii) below) regarding the Company Parties (including information to be used in the preparation of one or more information packages regarding the business, operations, financial projections and prospects of the Company Parties) customary for the arrangement of loans contemplated by the Debt Financing, to the extent reasonably available to the Company and reasonably requested in writing by the Parent to assist in preparation of customary information documents or lender presentations (as applicable) relating to such arrangement of loans, and including all information and data that is reasonably necessary to satisfy the conditions set forth in the Commitment Letter (other than financial information, which is covered by clause (ii) below) (collectively, the “ Marketing Material ”), (ii) furnish to the Parent and its financing sources (including the Financing Sources), as promptly as practicable, all financial statements, pro forma financial statements and other financial data and financial information of the Company Parties, in each case, to the extent reasonably available to the Company and reasonably requested by the Parent to the extent required under the Commitment Letter to consummate the Debt Financing at the time the Debt Financing is to be consummated, including (A) all information and data that is reasonably necessary to satisfy the conditions set forth in paragraphs 5 and 6 of Exhibit C to the Commitment Letter and (B) audited, interim and other financial statements and all customary information to be included in a bank information memorandum or customary offering memorandum, or as otherwise required in connection with the financings contemplated by the Commitment Letter (the information, data, financial statements, pro forma financial statements, business and other financial data and financial information referred to in this clause (ii), together with the authorization letters referred to in clause (xii) below, shall constitute the “ Financing Information ”), (iii) cause senior management of the Company to participate at reasonable times and upon reasonable notice in a reasonable number of meetings (including customary one-on-one meetings with the parties acting as lead arrangers, bookrunners or agents for, and prospective lenders and purchasers of the Debt Financing, drafting sessions, presentations, and due diligence sessions, (iv) reasonably assist the Parent and the Financing Sources in the preparation of bank information memoranda, offering memoranda, private placement memoranda and similar documents for any portion of the Debt Financing, (v) obtain title insurance surveys, comfort letters and legal opinions reasonably requested by the Parent, furnish to the Parent and the Financing Sources such documentation and other information regarding the business of the Company Parties required with respect to the Debt Financing under applicable “know your customer” and anti-money laundering rules and regulations necessary to satisfy the condition set forth in paragraph 7 of Exhibit C to the Commitment Letter, (vi) deliver any customary credit agreements and pledge and security documents and otherwise reasonably facilitate the granting of a security interest (and perfection thereof) in collateral, guarantees, mortgages, other definitive financing documents or other certificates, customary closing certificates (including a solvency certificate) and documents as may be reasonably requested by the Parent (provided that no obligation of any Company Party under any such agreement or other financing document shall be effective until the Effective Time), (vii) obtain customary authorization letters with respect to the bank information memoranda (including, without limitation, customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders) and consents of accountants to the use of their reports in any materials relating to the Debt Financing, (viii) reasonably assist in (A) the preparation and execution of one or more credit agreements, purchase agreements, currency or interest hedging agreements or (B) the amendment of any of the Company Parties’ currency or interest hedging agreements, in each case, on terms that are reasonably requested by the Parent in connection with the Debt Financing, (ix) cooperate reasonably with the due diligence of the Financing Sources to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company Parties, (x) take such actions as are reasonably requested by the Parent or the Financing Sources to facilitate the satisfaction of all conditions precedent to obtaining the Debt Financing set forth in the Commitment Letter to the extent within the control of the Company Parties (including (A) delivery to the Parent of the stock certificates of the Company Parties, if any, and (B) corporate actions to permit the consummation of the Debt Financing and to permit the proceeds thereof to be made available to the Company at Closing) and (xi) to the extent required by the Commitment Letter, take all actions as may be required or reasonably requested by the Parent or the Financing Sources in connection with the repayment of the existing third-party indebtedness for borrowed money of the Company Parties and the termination or release of all commitments or security interests related thereto, which repayment shall occur substantially concurrently with the Closing.

(b)          Notwithstanding anything in this Section 5.18 to the contrary, the Company Parties shall not be obligated to provide any Marketing Material or Financial Information the disclosure of which is prohibited by applicable Law or confidentiality obligations (to the extent not entered into in contemplation hereof), the Company Parties shall only be obligated under this Section 5.18 to deliver such Marketing Material and Financial Information to the extent they may be obtained from the books and records of the Company Parties without undue burden or expense, and in no event shall the Financial Information be deemed to include or shall the Company Parties otherwise be required to provide pro forma financial statements or pro forma adjustments related to the Debt Financing. The Company Parties shall not be required to provide any cooperation under this Section 5.18 that (i) causes any representation or warranty of the Company Parties in this Agreement to be breached, or (ii) causes any closing condition set forth in Article VI to fail to be satisfied or otherwise causes the breach of this Agreement or any Contract to which any Company Party is a party. In no event shall any Company Party be in breach of this Agreement because of the failure to deliver any Marketing Material or Financial Information pursuant to this Section 5.18 that is not currently readily available to the Company Parties on the date hereof or is not otherwise prepared in the ordinary course of business of the Company Parties at the time requested by the Parent or for the failure to obtain review of any of the Financial Information by its accountants.

(c)          In no event shall any Company Party be required to pay any commitment or similar fee or incur any Liability (including due to the act or omission of any Company Party or any of their respective directors, officers, employees or Representatives) or expense in connection with assisting the Parent in arranging the Debt Financing or as a result of any information provided by the Company Parties or any of their respective directors, officers, employees or Representatives in connection therewith. The Parent shall (i) promptly upon request by the Company, reimburse the Company for all out-of-pocket costs incurred in good faith by the Company Parties in connection with such cooperation and (ii) indemnify and hold harmless the Company Parties and their respective directors, officers, employees and Representatives from and against any and all losses, damages, liabilities, claims and other costs and expenses suffered or incurred by them in connection with the arrangement of the Debt Financing or providing any of the information utilized in connection therewith, other than any such losses, damages, liabilities, claims or other costs and expenses to the extent resulting from the gross negligence, willful misconduct or material breach of this Agreement by any of the foregoing.

(d)          The Company Parties will use commercially reasonable efforts to provide to the Parent and the Financing Sources such information as may be necessary so that the Financing Information and Marketing Material is true and correct in all material respects and does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which such statements are made, not misleading.

Article VI
CONDITIONS PRECEDENT

Section 6.1.           Conditions to Each Party’s Obligation to Effect the Mergers . The respective obligation of each of the Company Parties, on the one hand, and each of the Parent Parties, on the other hand, to effect the Mergers and to consummate the other transactions contemplated hereby is subject to the satisfaction or waiver by the Company (at the direction of the Company Special Committee) and the Parent (at the direction of the Parent Special Committee) on or prior to the Effective Time of the following conditions:

(a)           Shareholder Approvals . Each of the Company Shareholder Approval and the Parent Shareholder Approval shall have been obtained; and the Company Specified Charter Amendment Approval shall have been obtained.

(b)           No Injunctions or Restraints . No temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal restraint or prohibition preventing the consummation of the Mergers or any of the other transactions contemplated hereby shall be in effect.

(c)           Termination of Advisory and Related Party Contracts . The Termination Agreements entered into on the date hereof shall remain in effect and shall not have been amended or modified, or any of the Company’s or the Parent’s rights thereunder waived, except in each case to the extent each of the Company (acting at the direction of the Company Special Committee) and the Parent (acting at the direction of the Parent Special Committee) has approved in writing prior thereto such amendment, modification or waiver.

(d)           Form S-4 . The Form S-4 shall have been declared effective by the SEC under the Securities Act and no stop order suspending the effectiveness of the Form S-4 shall have been issued by the SEC and no proceedings for that purpose shall have been initiated or threatened by the SEC.

(e)           Listing . The Parent Common Shares to be issued in the Merger shall have been approved for listing on the NYSE.

(f)           Tax Opinion Relating to the Merger . The Parent and the Company shall each have received the written opinion of Proskauer Rose LLP dated as of the Closing Date and in form and substance reasonably satisfactory to each of the Parent and the Company, to the effect that, on the basis of facts, representations and assumptions set forth in such opinion, the Merger will qualify as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, Proskauer Rose LLP may rely upon the Company Reorganization Representation Letter and Parent Reorganization Representation Letter. The opinion conditions referred to in this Section 6.1(f) shall not be waivable after receipt of the Company Shareholder Approval and the Parent Shareholder Approval, unless further approval of the shareholders of the Company or the Parent, as the case may be, is obtained with appropriate disclosure.

Section 6.2.           Additional Conditions to Obligations of the Parent and the Merger Sub . The obligations of the Parent Parties to effect the Mergers and to consummate the other transactions contemplated hereby are further subject to the following conditions, any one or more of which may be waived by the Parent (acting at the direction of the Parent Special Committee):

(a)           Representations and Warranties . (i) Each of the representations and warranties of the Company set forth in Section 3.1(a) , Section 3.1(c) , Section 3.1(d)(i) and Section 3.1(j) of this Agreement shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date, as though made on and as of the Closing Date, except that the accuracy of such representations and warranties that by their terms speak as of the date of this Agreement or some other date will be determined as of such date and not as of the Closing Date and (ii) the other representations and warranties of the Company set forth in this Agreement shall be true and correct as of the Closing Date, as though made on and as of the Closing Date, except (x) that the accuracy of such representations and warranties that by their terms speak as of the date of this Agreement or some other date will be determined as of such date and not as of the Closing Date, and (y) where any such failure of the representations and warranties to be true and correct would not, individually or in the aggregate, have a Company Material Adverse Effect (without giving effect to any “materiality” or “Company Material Adverse Effect” qualifications contained therein). The Parent shall have received a certificate (which certificate may be qualified by knowledge to the same extent as such representations and warranties are so qualified) signed on behalf of the Company by the Company’s chief executive officer or chief financial officer to such effect.

(b)           Performance of Obligations of the Company . The Company shall have performed in all material respects its obligations required to be performed by it under this Agreement at or prior to the Effective Time, and the Parent shall have received a certificate signed on behalf of the Company by the Company’s chief executive officer or chief financial officer on behalf of the Company to such effect.

(c)           Absence of Changes . On the Closing Date, there shall not exist any event, circumstance or occurrence arising after the date of this Agreement, that, individually or in the aggregate, constitutes or would be reasonably expected to result in a Company Material Adverse Effect.

(d)           Tax Opinion Relating to REIT Status . The Company shall have received a written opinion of Proskauer Rose LLP on which the Parent shall be entitled to rely, dated as of the Closing Date and in form and substance reasonably satisfactory to the Parent, to the effect that, commencing with the Company’s taxable year that ended on December 31, 2012, the Company has been organized and operated in conformity with the requirements for qualification and taxation as a REIT under the Code and its actual method of operation has enabled the Company to meet, through the Effective Time, the requirements for qualification and taxation as a REIT under the Code, which opinion will be subject to customary exceptions, assumptions and qualifications and based on a Company REIT Representation Letter.

(e)           Effectiveness of Company Specified Charter Amendments . The Company Specified Charter Amendments shall have been filed with and accepted for record by the SDAT and shall be in full force and effect.

Section 6.3.           Additional Conditions to Obligation of the Company Parties . The obligations of the Company Parties to effect the Mergers and to consummate the other transactions contemplated hereby are further subject to the following conditions, any one or more of which may be waived by the Company (acting at the direction of the Company Special Committee):

(a)           Representations and Warranties . (i) Each of the representations and warranties of the Parent and the Merger Sub set forth in Section 3.2(a) , Section 3.2(c) , Section 3.2(d)(i) and Section 3.2(j) of this Agreement shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date, as though made on and as of the Closing Date, except that the accuracy of such representations and warranties that by their terms speak as of the date of this Agreement or some other date will be determined as of such date and not as of the Closing Date and (ii) the other representations and warranties of the Parent and the Merger Sub set forth in this Agreement shall be true and correct as of the Closing Date, as though made on and as of the Closing Date, except (x) that the accuracy of such representations and warranties that by their terms speak as of the date of this Agreement or some other date will be determined as of such date and not as of the Closing Date, and (y) where any such failure of the representations and warranties to be true and correct would not , individually or in the aggregate, have a Parent Material Adverse Effect (without giving effect to any “materiality” or “Parent Material Adverse Effect” qualifications contained therein). The Company shall have received a certificate (which certificate may be qualified by knowledge to the same extent as such representations and warranties are so qualified) signed on behalf of the Parent and the Merger Sub by the chief executive officer or the chief financial officer of the Parent to such effect.

(b)           Performance of Obligations of the Parent and Merger Sub . Each of the Parent and the Merger Sub shall have performed in all material respects its obligations required to be performed by it under this Agreement at or prior to the Effective Time, and the Company shall have received a certificate signed on behalf of the Parent by the Parent’s chief executive officer or chief financial officer on behalf of the Parent to such effect.

(c)           Absence of Changes . On the Closing Date, there shall not exist any event, circumstance or occurrence arising after the date of this Agreement, that individually or in the aggregate, constitutes or would be reasonably expected to result in a Parent Material Adverse Effect.

(d)           Tax Opinion Relating to REIT Status . The Parent shall have received a written opinion of Proskauer Rose LLP, or other counsel reasonably acceptable to the Company, on which the Company shall be entitled to rely, dated as of the Closing Date and in form and substance reasonably satisfactory to the Company, to the effect that, commencing with the Parent’s taxable year that ended on December 31, 2013, the Parent has been organized and operated in conformity with the requirements for qualification and taxation as a REIT under the Code and its actual method of operation has enabled the Parent to meet, and its proposed method of operation will enable the Parent to continue to meet (for the taxable year that will end December 31 of the year that includes the closing and subsequent years), the requirements for qualification and taxation as a REIT under the Code, which opinion will be subject to customary exceptions, assumptions and qualifications and based on a Parent REIT Representation Letter.

(e)           Directors of the Parent . Resolutions adopted by the Parent Board increasing the size of the Board and electing the two independent directors designated by the Company as of the Effective Time shall remain in full force and effect.

Article VII
TERMINATION, AMENDMENT AND WAIVER

Section 7.1.           Termination . This Agreement may be terminated and the Mergers and the other transactions contemplated hereby may be abandoned at any time prior to the Effective Time (the date of any such termination, the “ Termination Date ”):

(a)          by mutual written consent duly authorized by the Company Board (with the prior approval of the Company Special Committee) and the Parent Board (with the prior approval of the Parent Special Committee);

(b)          by either the Company (with the prior approval of the Company Special Committee) or the Parent (with the prior approval of the Parent Special Committee):

(i)          if any judgment, injunction, order, decree, ruling or action by any Governmental Entity of competent authority preventing the consummation of the Mergers shall have become final and nonappealable; provided, however, that a party that has willfully and materially breached a representation, warranty or covenant of such party set forth in this Agreement that has proximately contributed to the occurrence of such judgment, injunction, order, decree, ruling or action shall not be entitled to exercise its right to terminate under this Section 7.1(b)(i) ;

(ii)         if the Mergers shall not have been consummated before March 6, 2017 (the “ Outside Date ”); provided, however, that if, prior to January 6, 2017, the Form S-4 has not been declared effective by the SEC, then the Outside Date shall be extended on a daily basis until the Form S-4 has been declared effective by the SEC; provided further that the Outside Date shall be no later than April 21, 2017; and provided further, however, that any party that has willfully and materially breached a representation, warranty or covenant of such party set forth in this Agreement shall not be entitled to exercise its right to terminate under this Section 7.1(b)(ii) ;

(iii)        if, upon a vote taken at the Company Shareholder Meeting or any adjournment thereof, the Company Shareholder Approval is not obtained; provided that the right to terminate this Agreement pursuant to this Section 7.1(b)(iii) shall not be available to the Company if the failure to obtain the Company Shareholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of its obligations under Section 5.1 or Section 5.4 of this Agreement;

(iv)        if, upon a vote taken at the Parent Shareholder Meeting or any adjournment thereof, the Parent Shareholder Approval is not obtained; provided that the right to terminate this Agreement pursuant to this Section 7.1(b)(iv) shall not be available to the Parent if the failure to obtain the Parent Shareholder Approval shall have been caused by the action or failure to act of the Parent and such action or failure to act constitutes a material breach by the Parent of its obligations under Section 5.1 or Section 5.5 of this Agreement;

(c)          by the Company (with the prior approval of the Company Special Committee):

(i)          if a breach of any representation or warranty or failure to perform any covenant or agreement on the part of the Parent set forth in this Agreement has occurred that would cause any of the conditions set forth in Section 6.3(a) or Section 6.3(b) not to be satisfied, which breach or failure to perform cannot be cured or, if capable of cure, has not been cured by the earlier of twenty (20) days following written notice thereof from the Company to the Parent and two (2) Business Days before the Outside Date; provided , that the Company shall not have the right to terminate this Agreement pursuant to this Section 7.1(c)(i) if the Company is then in material breach of any of its representations, warranties, covenants or agreements so as to cause any of the conditions set forth in Section 6.2(a) or Section 6.2(b) not to be satisfied;

(ii)         if, prior to obtaining the Company Shareholder Approval, the Company Board (based on the recommendation of the Company Special Committee) approves and authorizes the Company to enter into a definitive agreement providing for the implementation of a Superior Proposal in a manner permitted under Section 5.4(e) ; provided, however, that this Agreement may not be so terminated unless concurrently with the occurrence of such termination the payment required by Section 7.4(b)(ii) is made in full to the Parent and the definitive agreement relating to the Superior Proposal is entered into, and in the event that such definitive agreement is not concurrently entered into and such payment is not concurrently made, such termination shall be null and void; or

(iii)        if, at any time prior to the Parent Shareholder Approval, the Parent, the Parent Board or any committee thereof, for any reason, shall have effected a Parent Change in Recommendation.

(d)          by the Parent (with the prior approval of the Parent Special Committee):

(i)          if a breach of any representation or warranty or failure to perform any covenant or agreement on the part of the Company set forth in this Agreement has occurred that would cause any of the conditions set forth in Section 6.2(a) or Section 6.2(b) not to be satisfied, which breach or failure to perform cannot be cured or, if capable of cure, has not been cured by the earlier of twenty (20) days following written notice thereof from the Parent to the Company and two (2) Business Days before the Outside Date; provided , that the Parent shall not have the right to terminate this Agreement pursuant to this Section 7.1(d)(i) if the Parent is then in material breach of any of its representations, warranties, covenants or agreements so as to cause any of the conditions set forth in Section 6.3(a) or Section 6.3(b) not to be satisfied;

(ii)         if, at any time prior to the Company Shareholder Approval, the Company, the Company Board or any committee thereof, for any reason, shall have effected a Company Change in Recommendation; or

(iii)        if, at any time prior to the Company Shareholder Approval, (A) the Company Board or any committee thereof shall have approved, adopted or publicly endorsed or recommended any Acquisition Proposal, (B) the Company enters into a Contract or agreement relating to an Acquisition Proposal (other than a confidentiality agreement entered into in compliance with Section 5.4(d) ), (C) a tender offer or exchange offer for any Company Shares that constitutes an Acquisition Proposal (other than by the Parent or any of its Affiliates) is commenced and the Company Board fails to recommend against acceptance of such tender offer or exchange offer by the shareholders of the Company and to publicly reaffirm the Company Recommendation within ten (10) Business Days of being requested to do so by the Parent, (D) the Company Board or any committee thereof fails to include the Company Recommendation in the Joint Proxy Statement, or (E) the Company shall have materially violated any of its obligations under Section 5.4 (or shall be deemed pursuant to the last sentence of Section 5.4(b) to have materially violated) any of its obligations under Section 5.4 (other than any immaterial or inadvertent violations thereof that did not result in an alternative Acquisition Proposal).

Section 7.2.           Notice of Termination . A terminating party shall provide written notice of termination to the other parties specifying with reasonable particularity the basis of such termination. If more than one provision in Section 7.1 is available to a terminating party in connection with a termination, a terminating party may rely on any and all available provisions in Section 7.1 for any such termination.

Section 7.3.           Effect of Termination . In the event of termination of this Agreement by either the Company or the Parent as provided in Section 7.1 , this Agreement shall forthwith become void and have no effect, without any Liability or obligation on the part of any party hereto (or any Representatives thereof), except that the provisions of Section 5.2(b) , this Section 7.3 , Section 7.4 and ARTICLE VIII and the definitions of all defined terms appearing in such section shall survive any such termination; provided, however, that, subject to Section 8.10 , nothing herein shall relieve any party hereto from Liability for fraud and nothing herein shall relieve the Company from Liability for any willful and material breach of any of its obligations under Section 5.4 .

Section 7.4.           Fees and Expenses.

(a)          Except as otherwise specified in this Agreement (including this Section 7.4 ), all out-of-pocket costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such cost or expense, whether or not the Mergers are consummated.

(b)          The Company agrees that if this Agreement shall be terminated:

(i)          by the Parent pursuant to Section 7.1(d)(ii) or Section 7.1(d)(iii) ;

(ii)         by the Company pursuant to Section 7.1(c)(ii) ; or

(iii)        by the Parent pursuant to Section 7.1(d)(i) ;

then, in each such case, the Company shall pay to the Parent the Termination Fee or, solely with respect to a termination by the Company pursuant to Section 7.1(c)(ii) or by the Parent pursuant to Section 7.1(d)(ii) or Section 7.1(d)(iii) , in each case in connection with the Company entering into or recommending a Superior Proposal with a Go Shop Bidder on or before the date that is fifteen (15) days following the Go Shop Period End Time, the Go Shop Termination Fee, as applicable, in immediately available funds to an account directed by the Parent, which payment shall be made (x) within three (3) Business Days of the Termination Date, in the case of a Termination Fee or Go Shop Termination Fee, as applicable, payable pursuant to Section 7.4(b)(i) ; (y) concurrently with, and as a condition to the effectiveness of, termination, in the case of a Termination Fee or Go Shop Termination Fee, as applicable, payable pursuant to Section 7.4(b)(ii) ; and (z) at the time of consummation of any transaction contemplated by an Acquisition Proposal, in the case of a Termination Fee payable pursuant to Section 7.4(b)(iii) .

(c)          The Company agrees that if this Agreement shall be terminated by the Company pursuant to Section 7.1(c)(ii) or by the Parent pursuant to Section 7.1(d)(ii) or Section 7.1(d)(iii) , in each case in connection with the Company entering into or recommending a Superior Proposal with a Go Shop Bidder on or before the date that is fifteen (15) days following the Go Shop Period End Time, then, in addition to payment of the Go Shop Termination Fee as contemplated by Section 7.4(b)(i) or Section 7.4(b)(ii) , the Company shall pay, within three (3) Business Days of the Termination Date, to the Parent the Parent Expenses in immediately available funds to an account directed by the Parent.

(d)          The Company agrees that if this Agreement shall be terminated by the Parent or the Company pursuant to Section 7.1(b)(iii) , then the Company shall pay, within three (3) Business Days of the Termination Date, to the Parent the Parent Expenses in immediately available funds to an account directed by the Parent.

(e)          The Parent agrees that if this Agreement shall be terminated by the Company pursuant to Section 7.1(c)(i) or Section 7.1(c)(iii) , then the Parent shall pay, within three (3) Business Days of the Termination Date, to the Company the Termination Fee in immediately available funds to an account directed by the Company.

(f)          The Parent agrees that if this Agreement shall be terminated by the Company or the Parent pursuant to Section 7.1(b)(iv) , then the Parent shall pay, within three (3) Business Days of the Termination Date, to the Company the Company Expenses in immediately available funds to an account directed by the Company.

(g)          Without limiting the rights set forth in Section 8.8 and notwithstanding anything in this Agreement to the contrary, except in the case of fraud or willful and material breach by the Company of any of its obligations under Section 5.4 as expressly set forth in Section 7.3 and subject to the limitations set forth in Section 8.10 , in the event that the Termination Fee, the Go Shop Termination Fee, the Company Expenses and/or the Parent Expenses becomes payable (and, for the avoidance of doubt, in no event shall any such amount be payable by the Financing Sources), as applicable, then such payment shall be the Company’s or the Parent’s, as applicable, and their respective Affiliates’ sole and exclusive remedy as liquidated damages for any and all losses or damages of any nature against the other parties hereto and against the Financing Sources and each of their respective Representatives in respect of this Agreement, the Debt Financing, any Ancillary Agreement, and the transactions contemplated hereby and thereby, including for any loss or damage suffered as a result of the termination of this Agreement, the failure of the Mergers to be consummated or for a breach or failure to perform hereunder (whether intentionally, unintentionally, or otherwise) or otherwise. The parties agree that the Termination Fee is not a penalty, but rather a reasonable amount that will compensate the payee(s) thereof for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions hereby. No Company Party shall have any rights or claims against any of the Financing Sources or any of their respective Affiliates relating to this Agreement, the Commitment Letter or the Debt Financing Documents or any of the transactions contemplated hereby or thereby (and the abandonment or termination thereof), or in respect of any oral representations made or alleged to be made in connection herewith or therewith, whether at law or equity, in contract, in tort or otherwise, and none of the Financing Sources or any of their respective Affiliates shall have any further Liability or obligation relating to or arising out of this Agreement or any of the transactions contemplated hereby (and the abandonment or termination thereof) or in respect of any oral representations made or alleged to be made in connection herewith or therewith.

(h)          For purposes of this Agreement:

(i)          “ Company Expenses ” means all reasonable, actual and documented out-of-pocket costs and expenses incurred prior to the termination of this Agreement by or on behalf of the Company (or its Affiliates) in connection with the entering into of this Agreement and the carrying out of any and all acts contemplated hereunder, including reasonable, actual and documented fees and expenses of counsel (including counsel to the Company Special Committee), investment banking firms, financial advisors, accountants, and consultants, up to an aggregate maximum amount of $5,000,000.

(ii)         “ Go Shop Termination Fee ” means an amount equal to $5,114,825.

(iii)        “ Parent Expenses ” means all reasonable, actual and documented out-of-pocket costs and expenses incurred prior to the termination of this Agreement by or on behalf of the Parent (or its Affiliates) in connection with the entering into of this Agreement and the carrying out of any and all acts contemplated hereunder, including reasonable, actual and documented fees and expenses of counsel (including counsel to the Parent Special Committee), investment banking firms, financial advisors, accountants, and consultants, up to an aggregate maximum amount of $5,000,000.

(iv)        “ Termination Fee ” means an amount equal to $25,574,125.

(i)          Each of the parties hereto acknowledges that the agreements contained in this Section 7.4 are an integral part of the transactions contemplated by this Agreement, and that without these agreements, the other parties would not enter into this Agreement. In the event that the Company shall fail to pay the Go Shop Termination Fee, the Termination Fee or the Parent Expenses, or the Parent shall fail to pay the Termination Fee or the Company Expenses, as the case may be, when due, the Company or the Parent, as the case may be, shall reimburse the Parent or the Company, as the case may be, for all reasonable costs and expenses actually incurred or accrued by the Parent or the Company, as the case may be (including reasonable fees and expenses of counsel) in connection with the collection under and enforcement of this Section 7.4 . Further, if the Company or the Parent, as the case may be, fails to timely pay any amount due pursuant to this Section 7.4 , and, in order to obtain the payment, the Parent or the Company, as the case may be, commences a suit which results in a judgment against the Company or the Parent, as the case may be, for the payment set forth in this Section 7.4 , the Company shall pay to the Parent, or the Parent shall pay to the Company, as the case may be, its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees) in connection with such suit, together with interest on such amount at the prime rate as reported in The Wall Street Journal in effect on the date such payment was required to be made through the date of payment. If payable, none of the Go Shop Termination Fee, the Termination Fee, the Parent Expenses and the Company Expenses shall be payable more than once pursuant to this Agreement.

Section 7.5.           Escrow of Termination Fees.

(a)          In the event that the Company or the Parent, as the case may be (the “ Paying Party ”), is obligated to pay the Termination Fee or the Go Shop Termination Fee, as the case may be, to the other (the “ Fee Recipient ”), the Paying Party shall pay to the Fee Recipient from the Termination Fee or the Go Shop Termination Fee, as the case may be, deposited into escrow in accordance with the next sentence, an amount equal to the lesser of (i) the Termination Fee or the Go Shop Termination Fee, as the case may be, and (ii) the sum of (1) the maximum amount that can be paid to the Fee Recipient without causing the Fee Recipient to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2)(A)(H) or 856(c)(3)(A)(I) of the Code (“ Qualifying Income ”), as determined by the Fee Recipient’s independent certified public accountants, plus (2) in the event the Fee Recipient receives either (A) a letter from the its counsel indicating that the Fee Recipient has received a ruling from the IRS described in Section 7.5(b) or (B) an opinion from the Fee Recipient’s outside counsel as described in Section 7.5(b) , an amount equal to the Termination Fee or the Go Shop Termination Fee, as the case may be, less the amount payable under clause (1) above. To secure the Paying Party’s obligation to pay these amounts, it shall deposit into escrow an amount in cash equal to the Termination Fee or the Go Shop Termination Fee, as the case may be, with an escrow agent selected by the Fee Recipient and on such terms (subject to Section 7.5(b) ) as shall be mutually agreed upon by the Fee Recipient and the escrow agent. The payment or deposit into escrow by the Paying Party pursuant to this Section 7.5(a) shall be made at the time the Paying Party is obligated to pay the Fee Recipient such amount pursuant to Section 7.4 by wire transfer.

(b)          The escrow agreement shall provide that the Termination Fee or the Go Shop Termination Fee, as the case may be, in escrow or any portion thereof shall not be released to the Fee Recipient unless the escrow agent receives any one or combination of the following: (i) a letter from the Fee Recipient’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to it without causing it to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Fee Recipient’s accountants revising that amount, in which case the escrow agent shall release such amount to the Fee Recipient, or (ii) a letter from the Fee Recipient’s counsel indicating that the Fee Recipient received a ruling from the IRS holding that the receipt by it of the Termination Fee or the Go Shop Termination Fee, as the case may be, would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code (or alternatively, the Fee Recipient’s outside counsel has rendered a legal opinion to the effect that the receipt by the Fee Recipient of the Termination Fee or the Go Shop Termination Fee, as the case may be, would constitute Qualifying Income, would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code or would not otherwise disqualify the Fee Recipient as a REIT), in which case the escrow agent shall release the remainder of the Termination Fee or the Go Shop Termination Fee, as the case may be, to the Fee Recipient. The parties hereto agree to amend this Section 7.5 at the request of the Fee Recipient in order to (x) maximize the portion of the Termination Fee or the Go Shop Termination Fee, as the case may be, that may be distributed to the Fee Recipient hereunder without causing the Fee Recipient to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (y) improve the Fee Recipient’s chances of securing a favorable ruling described in this Section 7.5(b) or (z) assist the Fee Recipient in obtaining a favorable legal opinion from its outside counsel as described in this Section 7.5(b) . The escrow agreement shall also provide that any portion of the Termination Fee or the Go Shop Termination Fee, as the case may be, remaining in escrow on the date that is five (5) years after the date the Termination Fee or the Go Shop Termination Fee, as the case may be, was deposited into escrow shall be released by the escrow agent to the Fee Recipient. Any costs and expenses of the escrow agent shall be borne solely by the Fee Recipient.

Section 7.6.           Amendment; Actions . This Agreement may be amended in writing by the Company (only upon approval of such action by the Company Special Committee) and the Parent (only upon approval of such action by the Parent Special Committee) at any time before or after the Company Shareholder Approval is obtained and prior to the Effective Time; provided, however, that, (a) after the Company Shareholder Approval is obtained, there shall be no amendment or waiver that by Law requires further approval by the shareholders of the Company without the further approval of such shareholders; and (b) after the Parent Shareholder Approval is obtained, there shall be no amendment or waiver that by Law requires further approval by the shareholders of the Parent without the further approval of such shareholders. From and after the date hereof, the Company Board shall act solely with the prior approval of the Company Special Committee with respect to any actions of the Company to be taken with respect to this Agreement, including any amendment, modification, or waiver of this Agreement. From and after the date hereof, the Parent Board shall act solely with the prior approval of the Parent Special Committee with respect to any actions of the Parent to be taken with respect to this Agreement, including any amendment, modification, or waiver of this Agreement. Notwithstanding anything in this Agreement to the contrary, none of this Section 7.6 and Sections 5.3(c) , 5.18 , 7.4(g) , 7.7 , 8.5 , 8.6 , 8.7 , 8.8 and 8.10 may be amended, modified, waived or terminated in a manner that is adverse in any respect to the Financing Sources without the prior written consent of the Financing Sources.

Section 7.7.           Extension; Waiver . At any time prior to the Effective Time, the Company (following approval of such action by the Company Special Committee), on the one hand, and the Parent (following approval of such action by the Parent Special Committee), on the other hand, may (a) extend the time for the performance of any of the obligations or other acts of any other party to this Agreement, (b) waive any inaccuracies in the representations and warranties of the other parties contained in this Agreement or in any document delivered pursuant to this Agreement or (c) subject to the proviso of Section 7.6 , waive compliance with any of the agreements or conditions of the other parties contained in this Agreement. Any agreement on the part of a party to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party. The failure of any party to this Agreement to assert any of its rights under this Agreement or otherwise shall not constitute a waiver of those rights, and no single or partial exercise of any right, remedy, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

Article VIII
GENERAL PROVISIONS

Section 8.1.           Nonsurvival of Representations and Warranties . None of the representations and warranties in this Agreement or in any instrument delivered pursuant to this Agreement shall survive the Effective Time. This Section 8.1 shall not limit any covenant or agreement of the parties which by its terms contemplates performance after the Effective Time.

Section 8.2.           Notices . All notices, requests, claims, demands and other communications under this Agreement shall be in writing and shall be deemed given if delivered personally, sent by overnight courier (providing proof of delivery) to the parties or sent by telecopy (providing confirmation of transmission) at the following addresses or telecopy numbers (or at such other address or telecopy number for a party as shall be specified by like notice):

(a)          if to the Parent, the Merger Sub or the Parent Operating Partnership to:

405 Park Avenue, 14th Floor
New York, New York, 10022
Attn: General Counsel
Fax: (646) 861-7743

with a copy to:

Pepper Hamilton LLP
3000 Two Logan Square
18 ^th and Arch Streets
Philadelphia, PA 19103-2799
Attn: Michael H. Friedman, Esquire
Fax: 215.981.4750

and

Proskauer Rose LLP
Three First National Plaza
70 West Madison, Suite 3800
Chicago, IL 60602-4342
Attn: Michael J. Choate
Fax: 312.962.3551

(b)          if to the Company or the Company Operating Partnership to:

405 Park Avenue, 14th Floor,
New York, New York, 10022
Attn: General Counsel
Fax: (646) 861-7743

with a copy to:

Arnold & Porter LLP
601 Massachusetts Ave, NW
Washington, DC 20001
Attn: Kevin J. Lavin, Esquire
Fax: 202.942.5999

and

Proskauer Rose LLP
Three First National Plaza
70 West Madison, Suite 3800
Chicago, IL 60602-4342
Attn: Michael J. Choate
Fax: 312.962.3551

All notices shall be deemed given only when actually received.

Section 8.3.           Interpretation . When a reference is made in this in this Agreement to an Article, Section, clause, Exhibit or Schedule, such reference is to an Article, Section or clause of, or an Exhibit or Schedule to, this Agreement, unless otherwise indicated. The table of contents and headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation” unless such phrase or a similar phrase already appears. Unless the context otherwise requires, the terms “party” and “parties” when used in this Agreement means a party or parties to this Agreement. The words “hereof,” “herein” and “hereunder” and words of similar import, when used in this Agreement, refer to this Agreement as a whole and not to any particular provision of this Agreement. References to the masculine, feminine or neuter gender in this Agreement include all genders. Unless the context otherwise requires, the use of “or” is not intended to be exclusive except when used together with the word “either” or otherwise for the purpose of identifying mutually exclusive alternatives. Any period of time hereunder ending on a day that is not a Business Day is extended to be the next Business Day. References to any statute, rule or regulation are to the statute, rule or regulation as amended, modified, supplemented or replaced from time to time (and, in the case of statutes, include any rules and regulations promulgated under the statute) and to any section of any statute, rule or regulation include any successor to the section. Unless the context otherwise requires, the definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms.

Section 8.4.           Counterparts . This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties.

Section 8.5.           Entire Agreement; No Third-Party Beneficiaries . This Agreement and the other agreements entered into in connection with the transactions contemplated hereby (a) constitute the entire agreement and supersedes all prior agreements and understandings, both written and oral, between the parties hereto with respect to the subject matter of this Agreement and (b) except for the provisions of ARTICLE II and Section 5.9 , are not intended to confer upon any Person other than the parties hereto any rights or remedies; provided, that the Financing Sources shall be intended third party beneficiaries of this Section 8.5 and Sections 5.3(c) , 5.18 , 7.4(g ), 7.6 , 7.7 , 8.6 , 8.7 , 8.8 and 8.10 .

Section 8.6.           Governing Law . This Agreement shall be governed by, and construed in accordance with, the laws of the State of Maryland, regardless of the laws that might otherwise govern under applicable principles of conflict of laws thereof. Notwithstanding the foregoing, each of the parties hereby further agrees, on behalf of itself and its Affiliates, that, any claims or causes of action against or involving any of the Financing Sources shall be governed by and construed in accordance with the laws of the State of New York.

Section 8.7.           Assignment . Neither this Agreement nor any of the rights, interests or obligations under this Agreement shall be assigned or delegated, in whole or in part, by operation of law or otherwise by any party without the prior written consent of the other parties (with the prior approval of the Company Special Committee in the case of the Company and with the prior approval of the Parent Special Committee in the case of the Parent); provided, that the Parent may assign its rights (but none of its obligations) hereunder to any Financing Source or its Affiliates in connection with the Debt Financing for collateral security purposes. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of, and be enforceable by, the parties and their respective successors and assigns.

Section 8.8.           Enforcement . The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that, prior to any termination of this Agreement pursuant to Section 7.1 , the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in any court of the U.S. located in the State of Maryland or in the United States District Court for the State of Maryland, this being in addition to any other remedy to which they are entitled at law or in equity. The parties further agree not to assert that a remedy of specific enforcement is unenforceable, invalid, contrary to Law or inequitable for any reason, nor to object to a remedy of specific performance on the basis that a remedy of monetary damages would provide an adequate remedy for any such breach. Each party further acknowledges and agrees that the agreements contained in this Section 8.8 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the other parties would not enter into this Agreement. Each party further agrees that no other party hereto or any other Person shall be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this Section 8.8 , and each party hereto irrevocably waives any right it may have to require the obtaining, furnishing or posting of any such bond or similar instrument. In no event shall the exercise of any party’s right to seek specific performance pursuant to this Section 8.8 reduce, restrict or otherwise limit the right of a party to terminate this Agreement pursuant to Section 7.1 . In addition, each of the parties hereto (a) consents to submit itself (without making such submission exclusive) to the personal jurisdiction of any federal court located in the State of Maryland or any United States District Court for the State of Maryland in the event any dispute arises out of this Agreement or any of the transactions contemplated by this Agreement and (b) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court. Notwithstanding the foregoing, each of the parties hereto hereby agrees, on behalf of itself and its Affiliates, that it will not bring or support any action, cause of action, claim, cross-claim or third-party claim of any kind or description, whether in law or in equity, whether in contract or in tort or otherwise, against or involving the Financing Sources in any way relating to this Agreement, the Debt Financing Documents, or any of the transactions contemplated hereby or thereby, including, without limitation, any dispute arising out of or relating in any way to the Debt Financing or the performance thereof, in any forum other than the Supreme Court of the State of New York, County of New York, or, if under applicable Law exclusive jurisdiction is vested in the federal courts, the United States District Court for the Southern District of New York (and the appellate courts thereof), and that the provisions of this Section 8.8 relating to the waiver of jury trial shall apply to any such action, cause of action, claim, cross-claim or third-party claim. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. (INCLUDING IN RESPECT OF ANY DEBT FINANCING OR ANY ACTION, PROCEEDING OR COUNTERCLAIM AGAINST OR INVOLVING THE FINANCING SOURCES).

Section 8.9.           Incorporation . The Company Disclosure Letter, the Parent Disclosure Letter and all Exhibits attached hereto and thereto and referred to herein and therein are hereby incorporated herein and made a part hereof for all purposes as if fully set forth herein.

Section 8.10.          Non-Recourse . None of the officers, directors or shareholders of the Company or the Parent or the officers or directors of the Merger Sub shall be personally bound or have any personal Liability hereunder. The parties hereto shall look solely to the assets of any other party or parties to this Agreement for satisfaction of any Liability of such party or other parties with respect to this Agreement. The parties hereto will not seek recourse or commence any action against any of the shareholders of any other party to this Agreement or any of their personal assets, and will not commence any action for money judgments against any of the directors or officers of any other party to this Agreement or seek recourse against any of their personal assets, for the performance or payment of any obligation of any other party. Notwithstanding anything to the contrary contained in this Agreement, each of the parties hereto (on behalf of itself and any of its Affiliates, directors, officers, employees, agents and Representatives) hereby waives any rights or claims against the Financing Sources in connection with this Agreement or the transactions contemplated hereby and each of the parties hereto (on behalf of itself and any of its Affiliates, directors, officers, employees, agents and Representatives) agrees not to commence any action or proceeding against any Financing Source in connection with this Agreement or the transactions contemplated hereby (it being understood that nothing in this Section 8.10 shall impair the Parent’s rights under the Commitment Letter). In furtherance and not in limitation of the foregoing waiver, it is acknowledged and agreed that no Financing Source shall have any Liability for any claims or damages in connection with this Agreement or the transactions contemplated hereby.

Section 8.11.          Severability . Whenever possible, each provision or portion of any provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable Law, but if any provision or portion of any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable Law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or portion of any provision in such jurisdiction, and this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision or portion of any provision had never been contained herein.

Article IX
CERTAIN DEFINITIONS

Section 9.1.           Certain Definitions . For purposes of this Agreement, the following terms shall have the following meanings.

“ Acceptable Confidentiality Agreement ” means a confidentiality agreement with such terms at least as favorable to the Company as the Confidentiality Agreement; provided that such confidentiality agreement shall permit compliance with Section 5.4 of this Agreement and need not contain any standstill or similar provision prohibiting the making of any Acquisition Proposal.

“ Acquisition Proposal ” means any proposal, offer, indication of interest or inquiry, whether in one transaction or a series of related transactions, relating to any (a) merger, consolidation, share exchange, business combination or similar transaction involving the Company or any Subsidiary of the Company that would constitute a “significant subsidiary” (as defined in Rule 1-02 of Regulation S-X), (b) sale, lease, exchange, mortgage, pledge, license, transfer or other disposition, by merger, consolidation, share exchange, business combination or any similar transaction, of any assets of the Company or any of the Subsidiaries of the Company representing 20% or more of the consolidated assets of the Company and the Subsidiaries of the Company, taken as a whole, as determined on a book-value basis, (c) issue, sale or other disposition by the Company or any of the Subsidiaries of the Company of (including by way of merger, consolidation, share exchange, business combination or any similar transaction) securities (or options, rights or warrants to purchase, or securities convertible into, such securities) representing 20% or more of the voting power of the outstanding Company Shares, (d) tender offer or exchange offer in which any Person or “ group ” (as such term is defined under the Exchange Act) shall acquire beneficial ownership (as such term is defined in Rule 13d-3 under the Exchange Act), or the right to acquire beneficial ownership, of 20% or more of the voting power of the outstanding Company Shares, (e) recapitalization, restructuring, liquidation, dissolution or other similar type of transaction with respect to the Company in which a third party shall acquire beneficial ownership of 20% or more of the shares of any class of voting securities of the Company, or (f) transaction that is similar in form, substance or purpose to any of the foregoing transactions; provided, however, that the term “Acquisition Proposal” shall not include (i) the Merger or any of the other transactions contemplated by this Agreement or (ii) any merger, consolidation, business combination, reorganization, recapitalization or similar transaction solely among the Company and one or more of the Subsidiaries of the Company or solely among the Subsidiaries of the Company.

“ Affiliate ” of any Person means another Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such first Person. For purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as applied to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of that Person, whether through the ownership of voting securities, by Contract or otherwise. Notwithstanding anything herein to the contrary, the Company and its Subsidiaries, on the one hand, and the Parent and its Subsidiaries, on the other hand, shall not be deemed to be Affiliates of each other.

“ Ancillary Agreements ” means the Termination Agreements, the Amended Advisory Agreement, the Amended Parent Partnership Agreement and all the other agreements and documents required or necessary for the consummation of Mergers and the other transactions contemplated by this Agreement.

“ Business Day ” means any day other than a Saturday, a Sunday or a day on which banks in New York, New York are authorized or obligated by law or executive order to close.

“ Commitment Letter ” means the commitment letter dated _______, between the Parent, UBS AG, Stamford Branch, UBS Securities LLC and Citizens Bank, N.A., and any fee letters or other related arrangements between the parties thereto, attached as Exhibit C hereto, pursuant to which UBS AG Stamford Branch and Citizens Bank, N.A. has advised the Parent that is prepared to provide up to an aggregate of $360,000,000 in debt financing to the Parent in order to finance the transactions contemplated by this Agreement, subject to the terms and conditions thereof.

“ Company Advisory Agreement ” shall mean the Third Amended and Restated Advisory Agreement, dated as of June 30, 2015 among the Company, Company Operating Partnership and American Realty Capital Retail Advisory, LLC.

“ Company Class B Unit ” shall mean a Company Partnership Unit designated in the Company Operating Partnership as a “Class B Unit” under the Company Partnership Agreement.

“ Company Disclosure Letter ” means the letter, dated the date hereof, delivered by the Company Parties pursuant to this Agreement disclosing certain information regarding the Company in connection with this Agreement.

“ Company GP Unit ” shall mean a Company Partnership Unit designated in the Company Operating Partnership as a “GP Unit” under the Company Partnership Agreement.

“ Company Intervening Event ” means a material event, effect, circumstance, change, development or state of facts that was not known to the Company Board prior to the execution of this Agreement (or if known, the magnitude or consequences of which were not known or reasonably foreseeable as of the date hereof), which event, effect, circumstance, change, development or state of facts, or any material consequence thereof, becomes known to the Company Board prior to the Effective Time; provided, however, that in no event shall the receipt, existence or terms of an Acquisition Proposal or any matter relating thereto or consequence thereof constitute a Company Intervening Event and in no event shall entry into agreements that provide for an Other Strategic Transaction or any matter relating thereto or consequence thereof constitute a Company Intervening Event.

“ Company Leases ” means all ground leases affecting the interest of the Company or any Subsidiary of the Company in the Company Properties and all leases or subleases to which the Company or any Subsidiary of the Company is a party as lessor or sublessor with respect to the Company Properties, together with all amendments, modifications, supplements, renewals, exercise of options and extensions related thereto.

“ Company Material Adverse Effect ” means any circumstance, development, effect, event, Liability or change that, individually or in the aggregate with all other circumstances, developments, effects, events, Liabilities or changes, is or is reasonably likely to (a) become materially adverse to the business, operations, properties, assets, liabilities, condition (financial or otherwise) or results of the operations of the Company or the Subsidiaries of the Company, on a consolidated basis taken as a whole, other than circumstances, developments, effects, events, Liabilities or changes arising out of or resulting from (i) changes in economic, market or business conditions generally in the U.S. or any other jurisdiction in which the Company or its Subsidiaries operate or in the U.S. or global credit, capital markets, financial or securities markets or changes in political or regulatory conditions generally, including changes in interest or exchange rates, (ii) changes, circumstances or events that, in each case, generally affect the real estate industry in the jurisdictions in which the Company or its Subsidiaries operate, (iii) changes or prospective changes in any Law or GAAP or the interpretation thereof following the date hereof, (iv) the negotiation, execution or announcement of this Agreement or the consummation of the transactions contemplated by this Agreement, including the impact thereof on relationships, contractual or otherwise, with landlords, tenants, joint venture partners, customers, suppliers, licensors, distributors, lenders, partners or employees, or compliance with the covenants set forth in this Agreement, (v) any action taken by the Company or any of its Subsidiaries that is required by this Agreement or any Ancillary Agreement or taken at the Parent’s written request, (vi) any decline in the market price, or change in trading volume, of the capital stock of the Company or any failure to meet publicly announced revenue or earnings projections or predictions or other financial or operating metrics, in and of itself (whether such projections, predictions or other metrics were made or prepared by the Company or independent third parties) or internal projections (it being understood and agreed that any circumstance, development, effect or event giving rise to such decline, change or failure may otherwise be taken into account in determining whether there has been a Company Material Adverse Effect) (vii) acts of war, sabotage or terrorism, or any escalation or worsening of any such acts of war, sabotage or terrorism threatened or underway as of the date of this Agreement, (viii) earthquakes, hurricanes, floods or other natural disasters, or (ix) any damage or destruction of any Company Properties that is substantially covered by insurance, which circumstance, development, effect, event, Liability or change, in the case of each of clauses (i) , (ii) and ( iii ), does not affect the Company and the Subsidiaries of the Company, taken as a whole, in a materially disproportionate manner relative to other participants in the real estate industry or (b) prevent, or is reasonably likely to prevent, the Company from performing, or materially impair the ability of the Company or the Company Operating Partnership to perform, its obligations under this Agreement or any Ancillary Agreement prior to the Outside Date.

“ Company Organizational Documents ” means the articles of incorporation and by-laws of the Company, the Company Partnership Agreement and the articles of incorporation, by-laws, certificate of formation, partnership agreements or other organizational documents of each of the Subsidiaries of the Company, collectively.

“ Company OP Unit ” shall mean a Company Partnership Unit designated in the Company Operating Partnership as an “OP Unit” under the Company Partnership Agreement.

“ Company Parties ” means the Company and the Company Subsidiaries, including the Company Operating Partnership.

“ Company Partnership Agreement ” shall mean the Second Amended and Restated Agreement of Limited Partnership of American Realty Capital Retail Operating Partnership, L.P., dated as of October 24, 2014, among the Company and American Realty Capital Retail Advisor, LLC, Lincoln Retail REIT Services, LLC and other Limited Partners, as in effect on the date hereof.

“ Company Partnership Unit ” shall have the meaning given to the term “Partnership Unit” in the Company Partnership Agreement.

“ Company Restricted Stock ” means any Company Shares granted pursuant to the Company’s Employee & Director Restricted Share Plan.

“ Company Shareholder Approval ” means the affirmative vote of the holders of a majority of the issued and outstanding Company Shares (excluding Company Shares beneficially owned by the Sponsor or any of its Affiliates or by any director or executive officer of the Company or the Sponsor or any of their respective Affiliates) to approve the Merger.

“ Company Share Repurchase Program ” means the Amended and Restated Share Repurchase Program of the Company adopted by the Company Board effective as of February 28, 2016.

“ Company Special Limited Partnership Interest ” shall have the meaning given to the term “Special Limited Partnership Interest” in the Company Partnership Agreement.

“ Company Specified Charter Amendments ” means those amendments to the Company’s Articles of Amendment and Restatement set forth on Exhibit D hereto.

“ Company Specified Charter Amendment Approval ” means the affirmative vote of the holders of a majority of the issued and outstanding Company Shares (excluding Company Shares beneficially owned by the Sponsor or any Subsidiary of the Sponsor or by any director or executive officer of the Company or the Sponsor) to approve the Company Specified Charter Amendments.

“ Company Stock Plans ” means those plans listed on Schedule 9.1(a) of the Company Disclosure Letter and include the Company’s 2011 Stock Option Plan and the Company’s Restricted Share Plan.

“ Company Stock Option ” shall mean any option to purchase Company Shares under the Company’s 2011 Stock Option Plan or otherwise.

“ Confidentiality Agreement ” means that certain confidentiality agreement between the Company and the Parent dated as of March 2, 2016.

“ Contract ” means any contract, agreement, license, note, bond, mortgage, indenture, commitment, lease, purchase order or other instrument or obligation.

“ Debt Financing ” means the debt financing incurred or intended to be incurred pursuant to the Commitment Letter.

“ Debt Financing Documents ” means the agreements, documents and certificates contemplated by the Debt Financing.

“ Delaware Secretary ” means the Secretary of State of the State of Delaware.

“ DLLCA ” shall mean the Delaware Limited Liability Company Act, as amended.

“ DRIP ” means the Distribution Reinvestment Plan of the Company, as amended.

“ DRULPA ” shall mean the Delaware Revised Uniform Partnership Act, as amended.

“ Environmental Claim ” means any claim, action, cause of action, investigation or written notice by any Person alleging potential Liability (including, without limitation, potential Liability for investigatory costs, cleanup costs, governmental response costs, natural resources damages, property damages, personal injuries, or penalties) arising out of, based on or resulting from (a) the presence or Release of any Hazardous Substances at any location, whether or not owned or operated by the applicable Person, or (b) circumstances forming the basis of any violation of or noncompliance with any Environmental Law.

“ Environmental Laws ” means all federal, state, local, foreign and common Laws and regulations relating to pollution or protection of human health or the environment, including without limitation, Laws relating to the exposure to, or Releases or threatened Releases of, Hazardous Substances or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, Release, transport or handling of Hazardous Substances and all Laws and regulations with regard to recordkeeping, notification, disclosure and reporting requirements respecting Hazardous Substances.

“ Financing Sources ” means the entities that have committed to provide or otherwise entered into agreements (including the Commitment Letter) with the Parent and/or its Affiliates in connection with the Debt Financing in connection with the transactions contemplated hereby and their respective Affiliates, including their respective former, current or future general or limited partners, direct or indirect shareholders, controlling Persons or equity holders, managers, members, directors, officers, employees, Affiliates, Representatives or agents or any former, current or future general or limited partner, direct or indirect shareholder, controlling Person or equityholder, manager, member, director, officer, employee, Affiliate Representative or agent of the foregoing or any successor or assign of the foregoing.

“ Intellectual Property ” means all U.S., state and foreign (a) patents, patent applications and statutory invention registrations, (b) trademarks, service marks, trade dress, logos, trade names, corporate names, domain names and other source identifiers, and registrations and applications for registration thereof, (c) copyrightable works, copyrights, and registrations and applications for registration thereof and (d) trade secrets under applicable Law, including confidential and proprietary information and know-how.

“ Knowledge ” where used herein with respect to (a) the Company Parties shall mean the actual knowledge of any of the persons named on Schedule 9.1(b) of the Company Disclosure Letter and (b) the Parent shall mean the actual knowledge of any of the persons named on Schedule 9.1(b) of the Parent Disclosure Letter.

“ Law ” means any federal, state, local or foreign statute, law, regulation, Permit, license, approval, authorization, rule, ordinance or code of any Governmental Entity, including any judicial or administrative interpretation thereof.

“ Legal Action ” means any legal action, claim, demand, order, injunction, decree, writ, arbitration, hearing, charge, complaint, investigation, examination, indictment, litigation, suit or other civil, criminal, administrative or investigative proceeding.

“ Liabilities ” means any and all debts, liabilities and obligations of any nature whatsoever, whether accrued or fixed, absolute or contingent, including those arising under any Law, those arising under any Contract, Permit or franchise and those arising as a result of any act or omission.

“ MGCL ” shall mean the Maryland General Corporation Law.

“ Other Strategic Transactions ” means, and includes: (i) a merger, consolidation or other business combination with any real estate investment trust sponsored by the Sponsor or one of its Affiliates (the “ Other Strategic Parties ”) with an aggregate purchase price of less than $250 million, including the fair value of assumed liabilities (a “ Combination ”); (ii) the issuance by the Parent of Parent Common Shares in, or to finance costs incurred and to be incurred in connection with, one or more Combinations; and (iii) the incurrence of secured and/or unsecured debt to finance costs incurred and to be incurred in connection with one or more Combinations.

“ Parent Class B Unit ” means a Parent Partnership Unit designated in the Parent Operating Partnership as a “Class B Unit” under the Parent Partnership Agreement.

“ Parent Disclosure Letter ” means the letter, dated the date hereof, delivered by Parent Parties pursuant to this Agreement disclosing certain information regarding the Parent and the Merger Sub in connection with this Agreement.

“ Parent Intervening Event ” means a material event, circumstance, change or development that was not known to the Parent Board prior to the execution of this Agreement (or if known, the consequences of which were not known or reasonably foreseeable), which event or circumstance, or any material consequence thereof, becomes known to the Parent Board prior to the Effective Time; provided, however, that in no event shall entry into agreements that provide for an Other Strategic Transaction or any matter relating thereto or consequence thereof constitute a Parent Intervening Event.

“ Parent Leases ” means all ground leases affecting the interest of the Parent or any Subsidiary of the Parent in the Parent Properties and all leases or subleases to which the Parent or any Subsidiary of the Parent is a party as lessor or sublessor with respect to the Parent Properties, together with all amendments, modifications, supplements, renewals, exercise of options and extensions related thereto.

“ Parent Material Adverse Effect ” means any circumstance, development, effect, event, Liability or change that individually or in the aggregate with all other circumstances, developments, effects, events, Liabilities or changes, is or is reasonably likely to (a) become materially adverse to the business, operations, properties, assets, liabilities, condition (financial or otherwise) or results of the operations of the Parent or the Subsidiaries of the Parent, on a consolidated basis taken as a whole, other than circumstances, developments, effects, events, Liabilities or changes arising out of or resulting from (i) changes in economic, market or business conditions generally in the U.S. or any other jurisdiction in which the Parent or its Subsidiaries operate or in the U.S. or global credit, capital markets, financial or security markets or changes in political or regulatory conditions generally, including changes in interest or exchange rates, (ii) changes, circumstances or events that, in each case, generally affect the real estate industry in the jurisdictions in which the Parent or its Subsidiaries operate, (iii) changes or prospective changes in any Law or GAAP or the interpretation thereof following the date hereof, (iv) the negotiation, execution or announcement of this Agreement or the consummation of the transactions contemplated by this Agreement, including the impact thereof on relationships, contractual or otherwise, with landlords, tenants, joint venture partners, customers, suppliers, licensors, distributors, lenders, partners or employees, or compliance with the covenants set forth in this Agreement, (v) any action taken by the Parent or any of its Subsidiaries that is required by this Agreement or any Ancillary Agreement or taken at the Company’s written request, (vi) any decline in the market price, or change in trading volume, of the capital stock of the Parent or any failure to meet publicly announced revenue or earnings projections or predictions or other financial or operating metrics, in and of itself (whether such projections, predictions or other metrics were made or prepared by the Parent or independent third parties) or internal projections (it being understood and agreed that any circumstance, development, effect or event giving rise to such decline, change or failure may otherwise be taken into account in determining whether there has been a Parent Material Adverse Effect), (vii) acts of war, sabotage or terrorism, or any escalation or worsening of any such acts of war, sabotage or terrorism threatened or underway as of the date of this Agreement, (viii) earthquakes, hurricanes, floods or other natural disasters, or (ix) any damage or destruction of any Company Properties that is substantially covered by insurance, which circumstance, development, effect, event, Liability or change, in the case of each of clauses (i) , (ii) , and (iii) , does not affect the Parent and the Subsidiaries of the Parent, taken as a whole, in a materially disproportionate manner relative to other participants in the real estate industry or (b) prevent, or is reasonably likely to prevent, the Parent from performing, or materially impair the ability of the Parent to perform, its obligations under this Agreement.

“ Parent OP Unit ” shall mean a Parent Partnership Unit designated in the Parent Operating Partnership as an “OP Unit” under the Parent Partnership Agreement.

“ Parent Organizational Documents ” means the articles of incorporation and by-laws of the Parent and the articles of incorporation, by-laws, certificate of formation, partnership agreements or other organizational documents of each of its Subsidiaries, collectively.

“ Parent Parties ” means the Parent, the Merger Sub and the Parent Operating Partnership.

“ Parent Partnership Agreement ” shall mean the Agreement of Limited Partnership of American Finance Trust Operating Partnership V, L.P., dated as of April 4, 2013, as in effect on the date hereof.

“ Parent Partnership Unit ” shall have the meaning given to the term “Partnership Unit” in the Parent Partnership Agreement.

“ Parent Restricted Stock ” means any Parent Common Shares granted pursuant to the Parent’s Amended and Restated Employee and Director Incentive Restricted Share Plan.

“ Parent Shareholder Approval ” means the affirmative vote of not less than a majority of the votes cast by the holders of Parent Common Shares entitled to vote at the Parent Shareholder Meeting (excluding Parent Common Shares beneficially owned by the Sponsor or any of its Affiliates or by any director or executive officer of the Parent or the Sponsor or any of their respective Affiliates) to approve the Merger and the issuance of Parent Common Shares as part of the Merger Consideration.

“ Parent Special Limited Partnership Interest ” shall have the meaning given to the term “Special Limited Partnership Interest” in the Parent Partnership Agreement.

“ Parent Stock Incentive Plans ” means those plans listed on Schedule 9.1 of the Parent Disclosure Letter.

“ Per Share Cash Amount ” means $0.95.

“ Per Share Stock Amount ” means 0.385 Parent Common Shares.

“ Permitted Liens ” means Encumbrances securing obligations disclosed in the consolidated balance sheets included in the Company SEC Documents or Parent SEC Documents, as applicable, mechanics and materialmen’s liens for amounts incurred in the ordinary course of business and which are not yet due and payable or are being contested in good faith, Encumbrances for Taxes not yet due and payable or which are being contested in good faith and for which the Company or the Parent, as applicable, has made adequate provision in accordance with GAAP, and easements, rights of way, restrictive covenants and other non-monetary Encumbrances that could not, individually or in the aggregate, have a Company Material Adverse Effect or a Parent Material Adverse Effect.

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

“ Release ” means any release, spill, emission, discharge, leaking, pumping, injection, deposit, disposal, dispersal, leaching or migration into the indoor or outdoor environment (including, without limitation, ambient air, surface water, groundwater and surface or subsurface strata) or into or out of any property, including the movement of Hazardous Substances through or in the air, soil, surface water, groundwater or property.

“ Representative ” of a Person means any officer, trustee, director, Affiliate, employee, investment banker, financial advisor, attorney, accountant, consultant, broker, finder or other agent or representative of such Person. In the case of the Parent, Representative shall also include American Finance Advisors, LLC and its employees, officers and directors. In the case of the Company, Representative shall also include American Realty Capital Retail Advisor, LLC and its employees, officers and directors.

“ Sponsor ” means AR Global Investments LLC or any successor thereto.

“ Subsidiary ” or “ Subsidiaries ” means any other Person or Persons that a Person directly or indirectly owns or has the power to vote or control 50% or more of any class or series of capital stock or equity interests of such Person or Persons.

“ Superior Proposal ” means a written Acquisition Proposal made by a third party (except for purposes of this definition, the references in the definition of “Acquisition Proposal” to “20%” shall be replaced with “50%”) which the Company Board (based on the recommendation of the Company Special Committee) determines in its good faith judgment (after consultation with its legal and financial advisors and after taking into account (a) all of the terms and conditions of the Acquisition Proposal and this Agreement (as it may be proposed to be amended by the Parent) and (b) the feasibility and certainty of consummation of such Acquisition Proposal on the terms proposed (taking into account all legal, financial, regulatory and other aspects of such Acquisition Proposal deemed relevant by the Company Board (based on the recommendation of the Company Special Committee) and conditions to consummation thereof) to be more favorable from a financial point of view to the shareholders of the Company (in their capacities as shareholders) than the Merger and the other transactions contemplated by this Agreement (as it may be proposed to be amended by the Parent)).

“ Taxes ” shall mean all taxes, charges, fees, levies and other assessments, including income, gross receipts, excise, property, sales, withholding (including dividend withholding and withholding required pursuant to Sections 1445 and 1446 of the Code), social security, occupation, use, service, license, payroll, franchise, transfer and recording taxes, windfall or other profits, capital stock, employment, worker’s compensation, unemployment or compensation, estimated, excise, ad valorem, stamp, value added, capital gains, duty or custom taxes, fees, charges or assessments, imposed by the U.S. or any Governmental Entity, whether computed on a separate, consolidated, unitary, combined or any other basis, and similar charges of any kind, however denominated (together with any and all interest, penalties, additions to tax and other additional amounts imposed with respect thereto) imposed by any Governmental Entity.

“ Tax Protection Agreement ” means any Contract, oral or written, to which a Person or any Subsidiary of such Person is a party in connection with the deferral of income Taxes of such Person or any Subsidiary of such Person, pursuant to which such Person or any Subsidiary of such Person has agreed to (i) maintain a minimum level of debt or continue a particular debt or (ii) retain or not dispose of assets if (A) such period of time has not since expired or (B) any applicable statute of limitations with respect to any Taxes that would result from a disposition of such assets at any time during such period has not since expired, or (iii) make or refrain from making Tax elections.

“ Tax Return ” means any return, report or similar statement, together with any attached exhibit or schedule that is provided or required to be provided to a Governmental Entity with respect to Taxes, including information returns, refunds claims, amended returns and declarations of estimated Tax.

“ U.S. ” means the United States of America.

Section 9.2.           Other Defined Terms . For purposes of this Agreement, the following terms have the respective meanings set forth in the section referenced opposite such term:

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed by their respective officers thereunto duly authorized, all as of the date first written above.

Exhibit A

DIRECTORS OF THE PARENT

Exhibit B

LIST OF TERMINATED CONTRACTS

Exhibit C

September 6, 2016

American Finance Operating Partnership, L.P.

405 Park Avenue, 14 ^th Floor

New York, New York 10022

Attention: Michael Weil

Project Bodhi
Bridge Facility Commitment Letter

Ladies and Gentlemen:

You have advised UBS Securities LLC (“ UBSS ”), UBS AG, Stamford Branch (“ UBSAG ”) and Citizens Bank, N.A. (“ Citizens ”, and together with UBSS and UBSAG, the “ Commitment Parties ”, “ us ” or “ we ”) that in connection with the proposed transactions described on Exhibit A hereto, including the Merger (as defined in Exhibit A), you will seek to establish a new bridge loan facility (the “ Bridge Facility ”), upon the terms set forth in this letter and the Summary of Terms and Conditions attached as hereto Exhibit B ( Exhibits A , B and C , together with this letter, collectively, this “ Commitment Letter ”) and subject solely to the conditions precedent set forth in Section 6 hereof.

Each of UBSAG and Citizens is pleased to advise you of its several (not joint) commitment to provide 50% and 50%, respectively, of the entire aggregate principal amount of the Bridge Facility (in such capacity, together, the “ Initial Lenders ”). For the avoidance of doubt, prior to the occurrence of the Delayed Draw Closing Date, the commitment of the Initial Lenders with respect to the initial funding of the Bridge Facility may be reduced (based on the amount of such commitments immediately prior to such reduction) to the extent set forth in the Summary of Terms and Conditions which is attached hereto as Exhibit B (the “ Term Sheet ”) under the heading “Mandatory Prepayments and Commitment Reductions”. Notwithstanding anything to the contrary contained in this Commitment Letter, the several (not joint) commitment of the Initial Lenders with respect to the initial funding of the Bridge Facility (as it may be reduced from time to time prior to the Delayed Draw Closing Date as described in the previous sentence) will be subject only to the satisfaction (or waiver by the Initial Lenders) of the conditions precedent set forth in Section 6 hereof.

In connection with the transactions described above, it is agreed that (a) UBSS and Citizens will act as joint lead arrangers and bookrunners (together, acting in such capacities, the “ Lead Arrangers ”) for the Bridge Facility, (b) UBSS will act as sole administrative agent (the “ Administrative Agent ”) for the Bridge Facility and (c) Citizens will act as syndication agent for the Bridge Facility; provided , that the Borrower agrees that UBSS may perform its responsibilities as a Lead Arranger or Administrative Agent through its affiliate, UBSAG.

It is further agreed that UBSS will have “left” placement in any marketing materials or other documentation used in connection with the Bridge Facility. You agree that no other agents, co-agents, arrangers, co-arrangers, bookrunners, co-bookrunners, managers or co-managers will be appointed in connection with the Bridge Facility, no other titles will be awarded and no compensation (other than that expressly contemplated by the terms and conditions set forth in the Commitment Letter and the Fee Letter referred to below) will be paid in connection with the Bridge Facility unless you and we shall so reasonably agree.

We intend to syndicate the Bridge Facility (including, in the discretion of the Lead Arrangers, all or part of the commitments of the Initial Lenders) to a group of lenders identified by us and reasonably acceptable to you (such acceptance not to be unreasonably withheld or delayed), including, without limitation, any relationship lenders designated by you and reasonably acceptable to the Lead Arrangers (together with the Initial Lenders, the “ Lenders ”). Notwithstanding any other provision of this Commitment Letter to the contrary, unless you agree in writing, (a) no Initial Lender shall be relieved, released or novated from its respective obligations hereunder (including its obligation to fund its respective commitment in respect of the Bridge Facility on the Delayed Draw Closing Date) in connection with any syndication, assignment or participation of the Bridge Facility, including its commitments in respect thereof, until the Delayed Draw Closing Date has occurred, (b) no assignment or novation shall become effective with respect to all or any portion of any Initial Lender’s commitments in respect of the Bridge Facility until the Delayed Draw Closing Date has occurred, and (c) each Initial Lender shall retain exclusive control over all rights and obligations with respect to its commitments in respect of the Bridge Facility, including all rights with respect to consents, modifications, supplements, waivers and amendments, until the Delayed Draw Closing Date has occurred and the initial funding under the Bridge Facility has been made.

The Lead Arrangers intend to commence syndication efforts promptly after the date hereof, and until the date that is the earliest of (x) the date all commitments in respect of the Bridge Facility are terminated and no Bridge Loans are outstanding, (y) 60 days after the Delayed Draw Closing Date and (z) the date on which this Commitment Letter expires or terminates in accordance with the terms hereof (such date, the “ Syndication Date ”), you agree to actively assist (and, solely to the extent permitted under the Merger Agreement, to use your commercially reasonable efforts to cause the Other MA Parties to actively assist) the Lead Arrangers in completing a syndication satisfactory to the Lead Arrangers and you. Such assistance shall include (A) your using commercially reasonable efforts to ensure that the syndication efforts benefit from your and your affiliates’ existing banking relationships (and, solely to the extent permitted under the Merger Agreement, using your commercially reasonable efforts to ensure that the syndication efforts benefit from the Other MA Parties and their affiliates’ existing banking relationships), (B) at reasonable times and with reasonable prior notice, direct contact between your senior management and advisors and the proposed Lenders (and, solely to the extent permitted under the Merger Agreement, using your commercially reasonable efforts to ensure such contact between senior management of the Other MA Parties and the proposed Lenders), (C) your preparing and providing (and, solely to the extent permitted under the Merger Agreement, using commercially reasonable efforts to cause the Other MA Parties to prepare and provide) to the Lead Arrangers all information with respect to you and your affiliates and the Other MA Parties and their affiliates and the Merger, including the financial information described on Exhibit C hereto and Projections (as defined below), as the Lead Arrangers may reasonably request in connection with the arrangement and syndication of the Bridge Facility and your assistance (and, solely to the extent permitted under the Merger Agreement, using your commercially reasonable efforts to cause the Other MA Parties to assist) in our preparation of one or more confidential information memoranda (each, a “ Confidential Information Memorandum ”) and other marketing materials to be used in connection with the syndication (all such information, memoranda and material, “ Information Materials ”), (D) your hosting, with the Lead Arrangers, of one or more meetings of prospective Lenders at times and locations to be mutually agreed (and, solely to the extent permitted under the Merger Agreement, using your commercially reasonable efforts to cause the officers of the Other MA Parties to be available for such meetings) and (E) your ensuring that there is no competing offering, placement, arrangement or syndication of any bank financing (other than asset-level non-recourse financing and any financing to refinance, replace or repay all or any portion of the Bridge Facility) or announcement thereof by or on behalf of you or any of your subsidiaries (and, solely to the extent permitted under the Merger Agreement, your using commercially reasonable efforts to ensure there is no competing offering, placement, arrangement or syndication of such bank financing, or announcement thereof, by or on behalf of the Other MA Parties or any of their subsidiaries) if such offering, placement or arrangement would materially and adversely impair the primary syndication of the Bridge Facility.

The Lead Arrangers (with your consent (not to be unreasonably withheld or delayed)) will manage all aspects of the syndication, including decisions as to the selection of institutions to be approached and when they will be approached, when commitments will be accepted, which institutions will participate, the allocation of the commitments among the Lenders and the amount and distribution of fees among the Lenders.

If requested by the Lead Arrangers, you agree to assist in our preparation of a version of each Confidential Information Memorandum or other Information Material (a “ Public Version ”) consisting exclusively of information with respect to you and your affiliates and the Merger (and, in the case of information with respect to the Other MA Parties, solely to the extent permitted under the Merger Agreement, to use commercially reasonable efforts to provide a version of such information) that is either publicly available or not material with respect to you and your affiliates, the Other MA Parties and their affiliates or any of your or their respective securities or the Merger for purposes of United States federal securities laws (such information, “ Non-MNPI ”). Such Public Versions, together with any other information prepared by you or the Other MA Parties or your or their affiliates or representatives and conspicuously marked “Public” (collectively, the “ Public Information ”) on the first page of any such information, may be distributed by us to prospective Lenders who have advised us that they wish to receive only Non-MNPI (“ Public Side Lenders ”). You acknowledge and agree that unless you promptly notify us otherwise ( provided that you shall have been given a reasonable opportunity to review such documents and comply with the U.S. Securities Exchange Commission requirements), (a) administrative materials for prospective Lenders such as lender meeting invitations and funding and closing memoranda, (b) term sheets and notifications of changes to the Bridge Facility’s terms and (c) other materials intended for prospective Lenders after the initial distribution of the Information Materials, including drafts and final versions of definitive documents with respect to the Bridge Facility shall, in each case, constitute Public Information; provided that all other information that is not specifically identified as “PUBLIC” (including any Projections (as defined herein)) shall be treated as being suitable only for posting to private Lenders.

In connection with our distribution to prospective Lenders of any Confidential Information Memorandum and, upon our request, any other Information Materials, you will execute and deliver to us a customary authorization letter authorizing such distribution and, in the case of any Public Version thereof or other Public Information, representing that it only contains Non-MNPI. Each Confidential Information Memorandum will be accompanied by a disclaimer exculpating you and us with respect to any use thereof and of any related Information Materials by the recipients thereof.

Notwithstanding anything to the contrary contained in this Commitment Letter or any other agreement or undertaking concerning the Bridge Facility, but without limiting your obligations to assist with syndication pursuant to this Section 3, none of the foregoing obligations under the provisions of this Section 3 nor the commencement, conduct or completion of the syndication contemplated by this Section 3 is a condition to the commitments, the obligations of the Initial Lenders hereunder or the funding of the Bridge Facility.

You hereby represent and warrant that (with respect to any information (x) relating to the Other MA Parties and their affiliates and (y) provided by another person that is not your affiliate, to your knowledge) (a) all written information (including all Information Materials), other than the Projections, information and reports prepared by third party advisors and information of a general economic or industry specific nature (the “ Information ”), that has been or will be made available to us by you or any of your representatives in connection with the transactions contemplated hereby, when taken as a whole, does not or will not, when furnished to us, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which such statements are made (giving effect to all supplements and updates thereto) and (b) the written financial performance projections, budgets, estimates and other forward-looking information (such financial projections and forward looking information being the “ Projections ”) that have been or will be made available to us by you or any of your representatives in connection with the transactions contemplated hereby have been or will be prepared in good faith based upon assumptions believed by you (or, if different, the preparer thereof) to be reasonable at the time made (it being recognized by the Commitment Parties that the Projections are merely a prediction as to future events and are not to be viewed as facts, that the Projections are subject to significant uncertainties and contingencies, and that actual results during the period or periods covered by any such Projections may differ from the projected results, and such differences may be material). You agree that if at any time prior to the Syndication Date, you become aware that any of the representations in the preceding sentence would be incorrect in any material respect if such Information or Projections were furnished at such time and such representations were remade, then you will (and, solely to the extent permitted under the Merger Agreement, will use commercially reasonable efforts to cause the Other MA Parties to) promptly supplement the Information and the Projections so that such representations when remade would be correct, in all material respects, under those circumstances.

For the avoidance of doubt, nothing contained in this Commitment Letter shall require you to provide any information to the extent that the provision thereof would violate any attorney-client privilege, law, rule or regulation, or any obligation of confidentiality binding on you, the Other MA Parties or your or their respective affiliates; provided that (x) in the case of any confidentiality obligation, you shall have used commercially reasonable efforts to obtain consent to provide such information, (y) you shall notify us if any such information is being withheld as a result of any such obligation of confidentiality (but solely if providing such notice would not violate such confidentiality obligation) and (z) for the avoidance of doubt, you and your applicable affiliates will still be obligated to make any applicable representations and warranties related to information set forth in this Commitment Letter and the Bridge Documentation. Notwithstanding anything in this Commitment Letter to the contrary, the only financial statements that shall be required to be provided to the Commitment Parties in connection with the syndication of the Bridge Facility shall be those required to be delivered pursuant to paragraphs 5 and 6 of Exhibit C . You understand that in arranging and syndicating the Bridge Facility we may use and rely on the Information and Projections without independent verification thereof. The accuracy of the foregoing representations and warranties, whether or not cured or supplemented, shall not be a condition to the obligations of the Initial Lenders hereunder, which obligations are subject solely to the satisfaction of the conditions specified in Section 6.

As consideration for the commitments and agreements of the Commitment Parties hereunder, you agree to pay or cause to be paid the nonrefundable fees described in the Fee Letter dated the date hereof and delivered herewith (the “ Fee Letter ”) on the terms and subject to the conditions set forth therein.

Each Initial Lender’s respective commitment to fund the Bridge Facility is subject solely to the satisfaction (or waiver by such Commitment Party) of the conditions set forth in this Section 6, in the Term Sheet under the heading “CERTAIN CONDITIONS - Initial Conditions” and in Exhibit C. Upon satisfaction (or waiver) of these conditions the closing and funding of the Bridge Facility required under this Commitment Letter shall occur.

Notwithstanding anything in this Commitment Letter, the Fee Letter or the Bridge Documentation to the contrary, (a) the only representations relating to you and the Other MA Parties and their subsidiaries and their respective businesses the accuracy of which shall be a condition to availability of the Bridge Facility shall be (i) such of the representations made by any Other MA Parties (or its affiliates) in the Merger Agreement as are material to the interests of the Lenders, but only to the extent that the accuracy of any such representation is a condition to the obligations of the Borrower (or an affiliate thereof) to close under the Merger Agreement or the Borrower (or an affiliate thereof) has the right to terminate its obligations, or decline to consummate the Merger, under the Merger Agreement as a result of a breach of such representations in the Merger Agreement (the “ Merger Agreement Representations ”) and (ii) the Specified Representations (as defined below), and (b) the terms of the Bridge Documentation shall be in a form such that they do not impair availability of the Bridge Facility if the conditions set forth in this Section 6, in the Term Sheet under the heading “CERTAIN CONDITIONS - Initial Conditions” and in Exhibit C are satisfied or waived (it being understood that, to the extent any Collateral (including the grant or perfection of any security interest in such Collateral and receipt by the Initial Lenders of any title searches or appraisals in respect of Collateral consisting of real property) (other than to the extent that a lien on such Collateral may be perfected by the filing of a financing statement under the Uniform Commercial Code with the Secretary of State (or analogous office) of the jurisdiction of formation of the Borrower and each Guarantor (other than Parent) or by the delivery of stock certificates or other equity certificates of subsidiaries of the Borrower that are part of the Collateral, if any, to the extent such stock certificates or other equity certificates have been received by a Loan Party prior to the Delayed Draw Closing Date after use of commercially reasonable efforts by the Loan Parties to procure such certificates) referred to in the Term Sheet that is required on the Delayed Draw Closing Date is not or cannot be provided on the Delayed Draw Closing Date, then the provision of such collateral shall not constitute a condition precedent to the availability of the Bridge Facility on the Delayed Draw Closing Date, but may instead be provided after the Delayed Draw Closing Date pursuant to arrangements to be mutually agreed but in any event not earlier than 90 days after the Delayed Draw Closing Date). For purposes hereof, “ Specified Representations ” means the representations and warranties referred to in the Term Sheet relating to corporate existence, power and authority in relation to the entering into, provision of guarantees and security under, and performance of, the Bridge Documentation, due authorization, execution and delivery of, and enforceability of, the Bridge Documentation, creation, validity and perfection of first priority liens under the security documents (subject to the limitations set forth in the preceding sentence and liens permitted under the Bridge Documentation), no conflicts of the Bridge Documentation with organizational documents of the Loan Parties or applicable laws, no conflicts of the Bridge Documentation or the Transactions with debt agreements relating to any material indebtedness for borrowed money of the Loan Parties and the Other MA Parties and their subsidiaries that will be Loan Parties after giving effect to the Merger, use of proceeds to finance the Transactions, Investment Company Act, solvency (which shall be substantially in the form of the representation set forth in the solvency certificate attached hereto as Exhibit D , and shall be deemed to apply as of the Delayed Draw Closing Date after giving effect to the Transactions, to the Borrower and its subsidiaries on a consolidated basis), Patriot Act, use of proceeds in violation of OFAC, FCPA or other applicable anti-terrorism or anti-money laundering laws, and Federal Reserve margin regulations. This paragraph, and the provisions herein, shall be referred to as the “ Limited Conditionality Provision ”.

You agree (a) to indemnify and hold harmless each Commitment Party, its affiliates and its respective directors, officers, employees, advisors, agents and other representatives (each, an “ indemnified person ”) from and against any and all losses, claims, damages and liabilities to which any such indemnified person (for the avoidance of doubt with respect to each Commitment Party, in its capacities set forth herein and not in any other separate capacity with respect to the Transactions) may become subject arising out of or in connection with this Commitment Letter, the Fee Letter, the Bridge Facility, the Transactions, the use of the proceeds thereof or the transactions contemplated hereby or any claim, litigation, investigation or proceeding (a “ Proceeding ”) relating to any of the foregoing, regardless of whether any indemnified person is a party thereto, whether or not such Proceedings are brought by you, your equity holders, affiliates, creditors or any other person, and to reimburse each indemnified person upon presentation of a summary statement for any reasonable and documented out-of-pocket legal or other expenses incurred in connection with investigating or defending any of the foregoing, provided that the foregoing indemnity will not, as to any indemnified person, apply to losses, claims, damages, liabilities or related expenses to the extent resulting from (x) the willful misconduct, bad faith or gross negligence of such indemnified person or its affiliates, or any of its or their respective directors, officers, directors, employees, agents, controlling persons, advisors or other representatives (collectively, the “ Related Parties ”) (as found by a final, non-appealable judgment of a court of competent jurisdiction), (y) a material breach of such indemnified person’s obligations under this Commitment Letter (as found by a final, non-appealable judgment of a court of competent jurisdiction) or (z) disputes solely between and among indemnified persons to the extent such disputes do not arise out of or in connection with any act or omission of you or any of your affiliates (other than any dispute involving an indemnified person acting in its capacity or fulfilling its role as an agent or arranger or similar role); provided , further , that you shall be responsible for the reasonable and documented out-of-pocket fees and expenses of only one counsel for all indemnified persons in connection with indemnification claims arising out of the same facts or circumstances and, solely in the case of an actual or potential conflict of interest, one additional counsel for the affected indemnified person and, if necessary or advisable, a single local counsel to the indemnified persons in each relevant jurisdiction and, solely in the case of an actual or potential conflict of interest, one additional external counsel in each applicable jurisdiction to the affected indemnified persons or similarly situated indemnified person and (b) regardless of whether the Delayed Draw Closing Date occurs, to reimburse each Commitment Party and its affiliates upon presentation of a summary statement for all reasonable and documented out-of-pocket expenses that have been invoiced prior to the Delayed Draw Closing Date or following termination or expiration of the commitments hereunder (including due diligence expenses (including, for avoidance of doubt, costs of any title searches or appraisals in respect of real property collateral incurred by the Commitment Parties, in each case, solely to the extent ordered after October 21, 2016), syndication expenses, travel expenses, and the fees, charges and disbursements of one primary counsel to each Commitment Party and, if necessary or advisable, a single local counsel to each Commitment Party in each relevant jurisdiction) incurred in connection with the Bridge Facility, the Transactions and any related documentation (including this Commitment Letter, the Fee Letter and the definitive financing documentation) or the administration, amendment, modification or waiver thereof. It is further agreed that the Commitment Parties shall only have liability to you (as opposed to any other person). No indemnified person shall be liable for any damages arising from the use by others of Information or other materials obtained through electronic, telecommunications or other information transmission systems, except to the extent any such damages are found by a final, nonappealable judgment of a court of competent jurisdiction to arise from the gross negligence, bad faith or willful misconduct of such indemnified person (or any of its Related Parties). None of the indemnified persons or you or any of your or their respective affiliates or the respective directors, officers, employees, advisors, and agents of the foregoing shall be liable for any indirect, special, punitive or consequential damages in connection with this Commitment Letter, the Fee Letter, the Bridge Facility, the Transactions or the transactions contemplated hereby, provided that nothing contained in this sentence shall limit your indemnification obligations with respect to third party claims to the extent set forth in this Section 7.

Notwithstanding the foregoing, each indemnified person will be obligated to refund and return promptly any and all amounts paid by you under the immediately preceding paragraph to the extent it has been determined by a court of competent jurisdiction in a final and non-appealable decision that such indemnified person is not entitled to payment of such amounts in accordance with the terms hereof.

You shall not be liable under this Commitment Letter for any settlement made by any indemnified person without your prior written consent (which consent shall not be unreasonably withheld or delayed). If any settlement is consummated with your written consent or if there is a final judgment in any such Proceedings, you agree to indemnify and hold harmless each indemnified person from and against any and all losses, claims, damages, liabilities and expenses by reason of such settlement or judgment in accordance with the provisions hereof. You further agree that you will not, without our prior written consent, settle or compromise or consent to the entry of any judgment in any pending or threatened Proceeding in respect of which indemnification may be sought hereunder (whether or not we or any other indemnified person is an actual or potential party to such Proceeding) unless such settlement, compromise or consent (a) includes an unconditional release of us and each other indemnified person from all liabilities and obligations arising therefrom in form and substance satisfactory to such indemnified person and (b) does not include any statement as to, or any admission of, fault, culpability or a failure to act by or on behalf of any indemnified person.

You acknowledge that each Commitment Party (or an affiliate thereof) is a full service securities firm and each such person may from time to time effect transactions, for its own or its affiliates’ account or the account of customers, and hold positions in loans, securities or options on loans or securities of you, the Other MA Parties or your or their respective affiliates and of other companies that may be the subject of the transactions contemplated by this Commitment Letter. In addition, no Commitment Party or any affiliate thereof will use confidential information obtained from you or your affiliates, the Other MA Parties or their affiliates or on your or their behalf by virtue of the transactions contemplated hereby in connection with the performance by such Commitment Party and its affiliates of services for other companies or persons and such Commitment Party and its affiliates will not furnish any such information to any of their other customers. You also acknowledge that no Commitment Party or any affiliate thereof has any obligation to use in connection with the transactions contemplated hereby, or to furnish to you, the Other MA Parties or your or their affiliates, confidential information obtained from other companies or persons.

You further acknowledge and agree that (a) no fiduciary, advisory or agency relationship between you and any Commitment Party is intended to be or has been created in respect of any of the transactions contemplated by this Commitment Letter, irrespective of whether any Commitment Party has advised or are advising you on other matters, (b) the Commitment Parties, on the one hand, and you, on the other hand, have an arm’s length business relationship that does not directly or indirectly give rise to, nor do you rely on, any fiduciary duty to you or your affiliates on the part of any Commitment Party, (c) you are capable of evaluating and understanding, and you understand and accept, the terms, risks and conditions of the transactions contemplated by this Commitment Letter, (d) you have been advised that each Commitment Party is engaged in a broad range of transactions that may involve interests that differ from your interests and that no Commitment Party has any obligation to disclose such interests and transactions to you, (e) you have consulted your own legal, accounting, regulatory and tax advisors to the extent you have deemed appropriate, (f) each Commitment Party has been, is, and will be acting solely as a principal and, except as otherwise expressly agreed in writing by it and the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for you, any of your affiliates or any other person or entity and (g) no Commitment Party has any obligation to you or your affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein or in any other express writing executed and delivered by such Commitment Party and you or any such affiliate. You agree you will not assert any claim relating to the transactions contemplated hereby against any indemnified person based on an alleged breach of agency or fiduciary duty. Please note that no Commitment Party or any affiliate thereof provides tax, accounting, regulatory or legal advice.

In addition, please note that UBSS (or an affiliate thereof) has been retained by the Borrower or the Other MA Parties as financial advisor (each in such capacity, a “ Financial Advisor ”) to the Borrower or the Other MA Parties in connection with the Merger. You agree to such retention, and further agree not to assert any claim you might allege based on any actual or potential conflicts of interest that might be asserted to arise or result from, on the one hand, the engagement of the Financial Advisor, and on the other hand, our and our affiliates’ relationships with you as described and referred to herein.

This Commitment Letter is delivered to you on the understanding that neither this Commitment Letter nor the Fee Letter nor any of their terms or substance shall be disclosed by you, directly or indirectly, to any other person except (a) (i) you, your affiliates, and your and your affiliates’ respective officers, directors, employees, members or partners (excluding, in any event, shareholders of any public company), attorneys, accountants, agents and advisors, in each case, on a confidential and need-to-know basis and (ii) this Commitment Letter and the Fee Letter (with respect to the Fee Letter, only in a redacted form that is satisfactory to the Lead Arrangers in their sole discretion) may be disclosed to the officers, directors, employees, members or partners (excluding, in any event, shareholders of any public company), attorneys, accountants, agents and advisors of the Other MA Parties and their subsidiaries and the Other MA Parties themselves, in each case, on a confidential and need-to-know basis, (b) in any legal, judicial or administrative proceeding, or as otherwise required by law, compulsory legal process or regulation or as requested by a governmental authority (in which case you agree, to the extent permitted by law, to inform us promptly in advance thereof), (c) this Commitment Letter and the existence and contents hereof (but not the Fee Letter or the contents thereof other than the existence thereof and the contents thereof as part of projections, pro forma information and a generic disclosure of aggregate sources and uses to the extent customary in marketing materials and other required filings) may be disclosed in any syndication or other marketing material in connection with the Bridge Facility or in connection with any public filing requirement, (d) the Term Sheet may be disclosed to potential Lenders and to any rating agency in connection with the Bridge Facility, (e) to the extent any such information becomes publicly available other than by reason of disclosure by you or your affiliates in breach of this Commitment Letter, (f) with the written consent of each Commitment Party (which consent shall not be unreasonably withheld or delayed, and which may be in the form of e-mail), and (g) to the extent necessary to enforce your rights and remedies hereunder or thereunder. Notwithstanding the foregoing, following your acceptance hereof, this Commitment Letter (but not the Fee Letter) may be filed with the Securities Exchange Commission, and thereafter the foregoing restrictions on the disclosure of the Commitment Letter (but not the Fee Letter) shall no longer apply. To the extent not earlier terminated, the provisions of this paragraph with respect to this Commitment Letter shall automatically terminate on the second anniversary of the date of this Commitment Letter.

Each Commitment Party shall use all information received by it in connection with the transactions contemplated hereby solely for the purposes of providing the services that are the subject of this Commitment Letter and shall treat confidentially all such information; provided , however , that nothing herein shall prevent any Commitment Party from disclosing any such information (a) to rating agencies in connection with having the Bridge Facility rated, (b) to any Lenders or participants or prospective Lenders or participants or any potential counterparty (or its advisors) to any swap or derivative transaction relating to the Borrower or any of its affiliates or any of their respective obligations, (c) in any legal, judicial, administrative proceeding or other compulsory process or as required by applicable law or regulations (in which case the applicable Commitment Party shall promptly notify you, in advance, to the extent permitted by law), (d) upon the request or demand of any regulatory authority having jurisdiction or any self-regulatory body having oversight over the applicable Commitment Party or its affiliates, (e) to the directors, officers, employees, legal counsel, independent auditors, professionals and other experts or agents of each Commitment Party (collectively, “ Representatives ”) who are informed of the confidential nature of such information and are or have been advised of their obligation to keep information of this type confidential, and the applicable Commitment Party shall be responsible for such persons’ compliance with this paragraph, (f) to any of its respective affiliates and such affiliates’ respective directors, officers, employees, legal counsel, independent auditors, professionals and other experts or agents ( provided that any such affiliate is advised of its obligation to retain such information as confidential, and the applicable Commitment Party shall be responsible for such persons’ compliance with this paragraph) solely in connection with Transactions and any related transactions contemplated hereby, (g) to the extent any such information becomes publicly available other than by reason of disclosure by a Commitment Party, its affiliates or Representatives in breach of this Commitment Letter or any confidentiality obligation known to such Commitment Party, such affiliate or such Representative, (h) for purposes of establishing a “due diligence” defense and (i) with your prior written consent (which consent shall not be unreasonably withheld or delayed, and which may be in the form of e-mail); provided that the disclosure of any such information to any Lenders or prospective Lenders or participants or prospective participants referred to above shall be made subject to the acknowledgment and acceptance by such Lender or prospective Lender or participant or prospective participant that such information is being disseminated on a confidential basis in accordance with the standard syndication processes of the applicable Commitment Party (which shall in any event be no less protective than customary market standards for dissemination of such type of information) or customary market standards for dissemination of such type of information. The provisions of this paragraph shall automatically terminate on the date that is two years immediately following the date of this Commitment Letter.

This Commitment Letter shall not be assignable by you without the prior written consent of each Commitment Party (and any purported assignment without such consent shall be null and void), is intended to be solely for the benefit of the parties hereto and the indemnified persons and is not intended to and does not confer any benefits upon, or create any rights in favor of, any person other than the parties hereto and the indemnified persons to the extent expressly set forth herein. Each Commitment Party reserves the right to employ the services of its affiliates or branches in providing services contemplated hereby and to allocate, in whole or in part, to their affiliates or branches certain fees payable to such Commitment Party in such manner as such Commitment Party and its affiliates or branches may agree in their sole discretion (which shall in no event increase the aggregate amount of fees payable by you or the Borrower hereunder). This Commitment Letter may not be amended or waived except by an instrument in writing signed by you and each Commitment Party. This Commitment Letter may be executed in any number of counterparts, each of which shall be an original, and all of which, when taken together, shall constitute one agreement. Delivery of an executed signature page of this Commitment Letter by facsimile or electronic transmission (e.g., “pdf’ or “tif’) shall be effective as delivery of a manually executed counterpart hereof. This Commitment Letter and the Fee Letter are the only agreements that have been entered into among us and you with respect to the Bridge Facility and set forth the entire understanding of the parties with respect thereto. This Commitment Letter and any claim or controversy arising hereunder or related hereto shall be governed by, and construed and interpreted in accordance with, the laws of the State of New York; provided that the interpretations of (a) a Company Material Adverse Effect, (b) the accuracy of any Merger Agreement Representation and whether as a result of a breach thereof you (or any of your affiliates) has the right to terminate its or their respective obligations under the Merger Agreement and (c) whether the Merger has been consummated in accordance with the Merger Agreement shall be governed by, and construed and interpreted in accordance with, the laws of the State of Maryland.

You and we hereby irrevocably and unconditionally submit to the exclusive jurisdiction of any state or Federal court sitting in the Borough of Manhattan in the City of New York over any suit, action or proceeding arising out of or relating to the transactions contemplated hereby, this Commitment Letter or the Fee Letter or the performance of services hereunder or thereunder. You and we agree that service of any process, summons, notice or document by registered mail addressed to you or us shall be effective service of process for any suit, action or proceeding brought in any such court. You and we hereby irrevocably and unconditionally waive any objection to the laying of venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding has been brought in any inconvenient forum. You and we hereby irrevocably agree to waive trial by jury in any suit, action, proceeding, claim or counterclaim brought by or on behalf of any party related to or arising out of the transactions contemplated hereby, this Commitment Letter or the Fee Letter or the performance of services hereunder or thereunder.

Each Commitment Party hereby notifies you that, pursuant to the requirements of the USA PATRIOT Act, Title III of Pub. L. 107-56 (signed into law on October 26, 2001) (the “ PATRIOT Act ”), it is required to obtain, verify and record information that identifies the Borrower and each Guarantor, which information includes names, addresses, tax identification numbers and other information that will allow each Commitment Party to identify the Borrower and each Guarantor in accordance with the PATRIOT Act. This notice is given in accordance with the requirements of the PATRIOT Act and is effective for each Commitment Party and each Lender.

This paragraph and the indemnification, fee, expense reimbursement, jurisdiction, venue, governing law, agreement not to assert conflicts, agreement not to assert fiduciary duty, syndication, waiver of jury trial and confidentiality provisions contained herein and in the Fee Letter shall remain in full force and effect regardless of whether definitive financing documentation shall be executed and delivered and notwithstanding the termination of this Commitment Letter or the commitments hereunder; provided that the provisions under the heading “Syndication” and “Information” shall terminate on the Syndication Date and the provisions under the heading “Confidentiality”, if not terminated pursuant to the succeeding proviso, shall terminate in accordance with their terms; provided , further , that your obligations under this Commitment Letter (other than your obligations with respect to (a) assistance to be provided in connection with the syndication thereof (including as to the provision of information and representations with respect thereto) and (b) confidentiality) shall automatically terminate and be superseded, to the extent comparable, by the provisions of the Bridge Documentation, and you shall automatically be released from all liability in connection therewith at such time, in each case to the extent the Bridge Documentation has comparable provisions with comparable coverage. Following the Acceptance Date, you may terminate the Initial Lenders’ commitments hereunder in full or in part at any time.

Each of the parties hereto agrees that each of this Commitment Letter and the Fee Letter is a binding and enforceable agreement (subject to the effects of bankruptcy, insolvency, fraudulent transfer, fraudulent conveyance, reorganization and other similar laws relating to or affecting creditors’ rights generally) with respect to the subject matter contained herein; it being acknowledged and agreed that the funding of the Bridge Facility is subject only to the applicable conditions set forth in Section 6, in the Term Sheet under the heading “CERTAIN CONDITIONS - Initial Conditions” and in Exhibit C .

If the foregoing correctly sets forth our agreement, please indicate your acceptance of the terms of this Commitment Letter and the Fee Letter by returning to UBSAG executed counterparts of this Commitment Letter and the Fee Letter not later than 11:59 p.m., New York City time, on September 6, 2016. This offer will automatically expire at such time if UBSAG has not received such executed counterparts in accordance with the preceding sentence. In the event that the Delayed Draw Closing Date does not occur on or before the Expiration Date, then this Commitment Letter and the commitments hereunder shall automatically terminate unless we shall, in our discretion, agree in writing to an extension. “ Expiration Date ” means the earliest of (i) April 21, 2017, (ii) the closing of the Merger without the use of the Bridge Facility and (iii) the termination of the Merger Agreement (as defined in Exhibit A hereto) prior to the closing of the Merger.

 
[Remainder of Page Intentionally Left Blank]

We are pleased to have been given the opportunity to assist you in connection with this important financing.

Commitment Letter Signature Page

Commitment Letter Signature Page

Accepted and agreed to as of the date first written above:

Commitment Letter Signature Page

Exhibit A

PROJECT BODHI
TRANSACTION SUMMARY

Capitalized terms used but not defined in this Exhibit A shall have the meanings set forth in the Commitment Letter to which this Exhibit A is attached and in Exhibits B and C , as applicable.

American Finance Trust, Inc. (“ Parent ”), the parent company of American Finance Operating Partnership, L.P. (the “ Parent Operating Partnership ” or the “ Borrower ”), has entered into an Agreement and Plan of Merger (together with all exhibits, schedules, attachments and disclosure letters thereto, the “ Merger Agreement ” (it being understood that such term shall also refer to the Merger Agreement as it may be amended, supplemented or otherwise modified in accordance with the provisions of Section 2 of Exhibit C), dated as of September 6, 2016, among Parent, Parent Operating Partnership, Genie Acquisition, LLC (“ Merger Sub ”), American Realty Capital-Retail Centers of America, Inc. (the “ Company ”) and American Realty Capital Retail Operating Partnership, L.P. (the “ Company Operating Partnership ”; and together with the Company, the “Other MA Parties”; and the Other MA Parties, collectively with Parent, the Parent Operating Partnership and Merger Sub, the “ Merger Parties ”). In connection therewith, it is intended that:

(a)            The Borrower will obtain the bridge facility (the “ Bridge Facility ”) as described in the Term Sheet.

(b)            The proceeds of the Bridge Facility received by the Borrower on the Delayed Draw Closing Date will be applied, directly or indirectly, by the Borrower (i) to refinance in full certain of the outstanding indebtedness of the Other MA Parties and their subsidiaries in connection with the consummation of the Transactions (including, without limitation, the unwinding of certain derivative arrangements entered into with respect to such indebtedness) (collectively, the “ Refinancing ”), (ii) to pay up to 10% of the Merger Consideration and the Partnership Merger Consideration (each as defined in the Merger Agreement), taken as a whole, and (iii) to pay any premiums, fees, costs and expenses incurred in connection with the Refinancing and the Merger (collectively, the “ Transaction Costs ”).

(c)            The Merger Parties will consummate the Merger in a manner consistent with the Merger Agreement, which will in any event result in (x) the merger of Merger Sub with and into the Company, with Merger Sub being the surviving entity, (y) the merger of the Company Operating Partnership with and into the Parent Operating Partnership, with the Parent Operating Partnership being the surviving entity and (z) the conversion of outstanding common stock of Company and the outstanding partnership units of the Company Operating Partnership into the right to receive the Merger Consideration and the Partnership Merger Consideration (each as defined in the Merger Agreement) (clauses (x), (y) and (z) together, the “ Merger ”).

The transactions described above are collectively referred to herein as the “ Transactions ”. For purposes of this Commitment Letter and the Fee Letter, “ Delayed Draw Closing Date ” shall mean the date, if any, of the consummation of the Merger, the satisfaction or waiver of the conditions set forth in Exhibit C and the funding of the Bridge Facility.

Exhibit B

Project Bodhi

$360.0 million

Bridge Facility

Summary of Terms and Conditions

Capitalized terms used but not defined herein shall have the meanings set forth in the Commitment Letter to which this Exhibit B is attached, as applicable. Set forth below is a summary of the principal terms and conditions for the Bridge Facility.

Exhibit C

Project Bodhi
Bridge Facility
Conditions

The availability of the Bridge Facility made on the Delayed Draw Closing Date to finance the Transactions shall be subject solely to the satisfaction (or waiver) of the following conditions (in each case, subject to the Limited Conditionality Provision) prior to the Expiration Date. Capitalized terms used but not defined herein have the meanings set forth in the Commitment Letter to which this Exhibit C is attached and in Exhibits A and B thereto.

1.           On the Delayed Draw Closing Date, each Loan Party party thereto shall have executed and delivered the definitive credit agreement with respect to the Bridge Facility and the Commitment Parties shall have received:

2.           The Merger shall be consummated pursuant to the Merger Agreement substantially concurrently with the funding of the Bridge Facility, and no provision thereof shall have been amended or waived by the Borrower or its affiliates, and no consent shall have been given thereunder by the Borrower or its affiliates, in any manner materially adverse to the interests of any Commitment Party or the Lenders without the prior written consent of each Commitment Party (such consent not to be unreasonably withheld or delayed) (it being agreed that (i) any amendment to the definition of Company Material Adverse Effect in the Merger Agreement shall be deemed material and adverse to the interests of the Commitment Parties and the Lenders for purposes hereof and (ii) any consent or waiver granted under the Merger Agreement in accordance with the express terms thereof shall not be considered an amendment, waiver or other modification of the Merger Agreement to the extent that the effect or result of such consent or waiver is not materially adverse to the interests of the Commitment Parties or the Lenders).

3.           On the Delayed Draw Closing Date, there does not exist any event, circumstance or occurrence arising after the date of the Merger Agreement that, individually or in the aggregate, constitutes or would reasonably be expected to result in a Company Material Adverse Effect (as defined in the Merger Agreement).

4.           Each Commitment Party shall have received (a) audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of each of (x) the Parent and its subsidiaries and (y) the Other MA Parties and their respective subsidiaries, in each case for the three most recently completed fiscal years ended at least 90 days before the Delayed Draw Closing Date and (b) unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of each of (x) the Borrower and its subsidiaries and (y) the Other MA Parties and their respective subsidiaries, in each case, for each subsequent fiscal quarter, if any, ended at least 45 days before the Delayed Draw Closing Date; provided that filing of the required financial statements on form 10-K and form 10-Q by the Parent or the Other MA Parties, as applicable, will satisfy the foregoing requirements.

5.           Each Commitment Party shall have received a pro forma unaudited consolidated balance sheet and related pro forma consolidated statement of income of the Parent and its subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 days prior to the Delayed Draw Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income).

6.           The Administrative Agent shall have received, at least 5 days prior to the Delayed Draw Closing Date (to the extent requested by the Administrative Agent in writing at least 10 days prior to the Delayed Draw Closing Date), all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act.

7.           Subject to the Limited Conditionality Provision, all actions necessary to establish that the Administrative Agent will have a perfected first priority security interest (subject to liens permitted under the Bridge Documentation) in the Collateral (other than, for the avoidance of doubt, (x) the provision of mortgages and other mortgage-related deliverables and (y) title searches and appraisals to the extent not expressly required pursuant to the terms hereof to be delivered on or prior to the Delayed Draw Closing Date)) shall have been taken.

8.           Subject to the Limited Conditionality Provision, each (i) Specified Representation shall be true and correct in all material respects (or in the case of any Specified Representation already qualified by materiality, in all respects) on and as of the Delayed Draw Closing Date, except that any Specified Representation that expressly relates to a given date or period shall be true and correct in all material respects (or in the case of any Specified Representation already qualified by materiality, in all respects) as of the respective date or for the respective period, as the case may be; provided that, to the extent that any Specified Representation is qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification, such qualification shall be deemed to refer to a “Company Material Adverse Effect” (as defined in the Merger Agreement) for purposes of any such representations and warranties made or deemed made on, or as of, the Delayed Draw Closing Date (or any date prior thereto), and (ii) Merger Agreement Representation shall be true and correct in all material respects (or in the case of any Merger Agreement Representation already qualified by materiality, in all respects) to the extent required by the Limited Conditionality Provision.

9.           The Borrower shall have ordered title searches for all Bridge Facility Properties on or prior to October 28, 2016, and delivered all such title searches received prior to the Delayed Draw Closing Date to the Lead Arrangers.

10.         The ratio of (a) the aggregate Bridge Commitments as of the Delayed Draw Closing Date (prior to giving effect to the incurrence of any Bridge Loans) to (b) the aggregate appraised value of the Bridge Facility Properties (net of the aggregate amount of any indebtedness or other amounts secured by encumbrances thereon (other than the Bridge Loans)) (as determined by FIRREA-Compliant Appraisals) for which FIRREA-Compliant Appraisals have been ordered by the Administrative Agent no later than November 4, 2016, and received by the Administrative Agent prior to the Delayed Draw Closing Date shall be no greater than 0.50 to 1.00; provided that, if the foregoing ratio cannot be satisfied as a result of both (i) the Administrative Agent not ordering such FIRREA-Compliant Appraisals on or prior to November 4, 2016 and (ii) the applicable Commitment Parties not receiving any such FIRREA-Compliant Appraisals on or before the Delayed Draw Closing Date, then notwithstanding anything herein to the contrary, the condition in this paragraph 10 shall be deemed waived by the Commitment Parties.

Exhibit D

FORM OF SOLVENCY CERTIFICATE

[                , 20        ]

I, [___________], certify that I am the duly appointed, qualified and acting chief financial officer of [__________], a [__________] (“ Company ”), and in such capacity, and not individually, that:

On the date hereof, after giving effect to the Transactions and the related transactions contemplated by the Bridge Documentation, Company and its subsidiaries, when taken as a whole on a consolidated basis, (a) have property with fair value greater than the total amount of their debts and liabilities, contingent (it being understood that the amount of contingent liabilities at any time shall be computed as the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability), subordinated or otherwise, (b) have assets with present fair salable value not less than the amount that will be required to pay their liability on their debts as they become absolute and matured, (c) will be able to pay their debts and liabilities, subordinated, contingent or otherwise, as they become absolute and matured and (d) are not engaged in business or a transaction, and are not about to engage in business or a transaction, for which they have unreasonably small capital.

The undersigned is familiar with the business and financial position of Company and its subsidiaries. In reaching the conclusions set forth in this Certificate, the undersigned has made such other investigations and inquiries as the undersigned has deemed appropriate, having taken into account the nature of the particular business anticipated to be conducted by Company and its subsidiaries after consummation of the transactions contemplated by the Bridge Documentation.

[ Remainder of this page intentionally left blank ]

IN WITNESS WHEREOF, the undersigned has hereunto signed his name as of the date first set forth above.

Solvency Certificate Signature Page

Exhibit D

AMERICAN REALTY CAPITAL – RETAIL CENTERS OF AMERICA, INC.

ARTICLES OF AMENDMENT

THIS IS TO CERTIFY THAT:

FIRST : The charter (the “Charter”) of American Realty Capital – Retail Centers of America, Inc., a Maryland corporation (the “Corporation”), is hereby amended by deleting Article XIV in its entirety and substituting in lieu thereof the following:

[INTENTIONALLY RESERVED]

SECOND : The Charter is hereby amended by deleting the following definitions in their entirety under the heading “DEFINITIONS” in Article IV of the Charter:

“ROLL-UP ENTITY” means a partnership, real estate investment trust, corporation, trust or similar entity that would be created or would survive after the successful completion of a proposed Roll-Up Transaction.

“ROLL-UP TRANSACTION” means a transaction involving the acquisition, merger, conversion or consolidation either directly or indirectly of the Company and the issuance of securities of a Roll-Up Entity to the holders of Common Shares. Such term does not include:

(a)      a transaction involving securities of a company that have been for at least twelve (12) months listed on a national securities exchange; or

(b)      a transaction involving the conversion to corporate, trust or association form of only the Company, if, as a consequence of the transaction, there will be no significant adverse change in any of the following:

(i)       the voting rights of the holders of the Shares;

(ii)      the term of existence of the Company;

(iii)     Sponsor or Advisor compensation; or

(iv)     the Company’s investment objectives.

THIRD : The foregoing amendments have been duly advised by the Board of Directors of the Corporation and approved by the stockholders of the Corporation as required by law.

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

IN WITNESS WHEREOF, the Corporation has caused these Articles of Amendment to be signed in its name and on its behalf by its Chief Executive Officer, President and Chairman of the Board of Directors and attested to by its Chief Financial Officer, Treasurer and Secretary on this ___th day of ________, 2016.

Exhibit E

Execution Version

THIRD AMENDED AND RESTATED

ADVISORY AGREEMENT

BY AND AMONG

AMERICAN FINANCE TRUST, INC.,

AMERICAN FINANCE OPERATING PARTNERSHIP, L.P.,

AND

AMERICAN FINANCE ADVISORS, LLC

Dated as of September 6, 2016

TABLE OF CONTENTS

ADVISORY AGREEMENT

THIS THIRD AMENDED AND RESTATED ADVISORY AGREEMENT (this “ Agreement ”) dated as of September 6, 2016, is entered into among American Finance Trust, Inc., a Maryland corporation (the “ Company ”), American Finance Operating Partnership, L.P., a Delaware limited partnership (the “ Operating Partnership ”), and American Finance Advisors, LLC, a Delaware limited liability company.

WITNESSETH

WHEREAS, the Company is a Maryland corporation created in accordance with Maryland General Corporation Law;

WHEREAS, the Company is the general partner of the Operating Partnership;

WHEREAS, the Company and the Operating Partnership desire to avail themselves of the experience, sources of information, advice, assistance and certain facilities of the Advisor and to have the Advisor undertake the duties and responsibilities hereinafter set forth, on behalf of, and subject to the supervision of the Board of Directors of the Company, all as provided herein;

WHEREAS, the Advisor is willing to render such services, subject to the supervision of the Board of Directors of the Company, on the terms and subject to the conditions hereinafter set forth;

WHEREAS, the Company, the Operating Partnership and the Advisor (i) entered into that certain Advisory Agreement, dated as of April 4, 2013 (the “ Original Agreement ”), (ii) amended and restated the Original Agreement on June 5, 2013 and as amended April 15, 2015 (the “ Amended and Restated Advisory Agreement ”) and (iii) amended and restated the Amended and Restated Advisory Agreement on April 29, 2015 (as amended by the First Amendment to Second Amended and Restated Advisory Agreement, dated as of January 18, 2016, the “ Second Amended and Restated Advisory Agreement ”);

WHEREAS, as of the date hereof, the Company and the Operating Partnership have entered into the Agreement and Plan of Merger (the “ Merger Agreement ”) with Genie Acquisition, LLC, American Realty Capital – Retail Centers of America, Inc. and American Realty Capital Retail Operating Partnership, L.P.; and

WHEREAS, in connection with the Merger Agreement, the Company, the Operating Partnership and the Advisor desire to amend and restate the Second Amended and Restated Advisory Agreement with the effectiveness conditioned on, subject to, and only at, the Effective Time (as defined in the Merger Agreement, and such date being the “ Effective Date ”), and in the event that Closing (as defined in the Merger Agreement) does not occur or the Merger Agreement is terminated, then this Third Amended and Restated Advisory Agreement shall not take effect and the Second Amended and Restated Advisory Agreement shall continue in full force and effect;

NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements contained herein, the parties hereto, intending to be legally bound as of the Effective Date, hereby agree as follows:

1.          DEFINITIONS. As used in this Agreement, the following terms have the definitions set forth below:

“ Acquisition Expenses ” means any and all expenses, incurred by the Company, the Operating Partnership, the Advisor or any of their Affiliates in connection with the selection, evaluation, acquisition, origination, making or development of any Investments, whether or not acquired, including, without limitation, legal fees and expenses, travel and communications expenses, brokerage fees, costs of appraisals, nonrefundable option payments on property not acquired, accounting fees and expenses, title insurance premiums and the costs of performing due diligence.

“ Adjusted Outstanding Shares ” means, for the applicable period, the number of shares of Common Stock, OP Units and other equity-based awards, excluding restricted stock units or any other equity based awards that are subject to performance metrics that are not currently achieved, outstanding on a daily weighted average basis during such period, adjusted as necessary to exclude the effect of dividends or distributions paid in shares of Common Stock, subdivision of outstanding shares of Common Stock into a greater number of shares, combination of outstanding shares of Common Stock into a smaller number of shares, any reclassification of shares of Common Stock, repurchases by the Company of shares of Common Stock and redemptions of shares of Common Stock.

“ Advisor ” means American Finance Advisors, LLC, a Delaware limited liability company, any successor advisor to the Company and the Operating Partnership, or any Person to which American Finance Advisors, LLC or any successor advisor subcontracts substantially all its functions. Notwithstanding the foregoing, a Person hired or retained by American Finance Advisors, LLC to perform property management and related services for the Company or the Operating Partnership that is not hired or retained to perform substantially all the functions of American Finance Advisors, LLC with respect to the Company and the Operating Partnership as a whole shall not be deemed to be an Advisor.

“ Affiliate ” or “ Affiliated ” means with respect to any Person, (i) any other Person directly or indirectly owning, controlling or holding, with the power to vote, ten percent (10%) or more of the outstanding voting securities of such Person; (ii) any other Person ten percent (10%) or more of whose outstanding voting securities are directly or indirectly owned, controlled or held, with the power to vote, by such Person; (iii) any other Person directly or indirectly controlling, controlled by or under common control with such Person; (iv) any executive officer, director, trustee or general partner of such Person; and (v) any legal entity for which such Person acts as an executive officer, director, trustee or general partner. For purposes of this definition, the terms “controls,” “is controlled by,” or “is under common control with” shall mean the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership or voting rights, by contract or otherwise.

“ Agreement ” has the meaning set forth in the preamble, and such term shall include any amendment or supplement hereto from time to time.

“ Amended and Restated Advisory Agreement ” has the meaning set forth in the recitals.

“ Articles of Incorporation ” means the charter of the Company, as the same may be amended from time to time.

“ Base Management Fee ” means the fees payable to the Advisor or its assignees pursuant to Section 10(g) .

“ Board of Directors ” or “ Board ” means the Board of Directors of the Company.

“ By-laws ” means the by-laws of the Company, as amended and as the same are in effect from time to time.

“ Cause ” means (i) fraud, criminal conduct, willful misconduct or illegal or negligent breach of fiduciary duty by the Advisor, or (ii) if any of the following events occur: (A) the Advisor shall breach any material provision of this Agreement, and after written notice of such breach, shall not cure such default within thirty (30) days or have begun action within thirty (30) days to cure the default which shall be completed with reasonable diligence; (B) the Advisor shall be adjudged bankrupt or insolvent by a court of competent jurisdiction, or an order shall be made by a court of competent jurisdiction for the appointment of a receiver, liquidator, or trustee of the Advisor, for all or substantially all its property by reason of the foregoing, or if a court of competent jurisdiction approves any petition filed against the Advisor for reorganization, and such adjudication or order shall remain in force or unstayed for a period of thirty (30) days; or (C) the Advisor shall institute proceedings for voluntary bankruptcy or shall file a petition seeking reorganization under the federal bankruptcy laws, or for relief under any law for relief of debtors, or shall consent to the appointment of a receiver for itself or for all or substantially all its property, or shall make a general assignment for the benefit of its creditors, or shall admit in writing its inability to pay its debts, generally, as they become due.

“ Change of Control ” means a change of control of the Company of a nature that would be required to be reported in response to the disclosure requirements of Schedule 14A of Regulation 14A promulgated under the Exchange Act, as enacted and in force on the date hereof, whether or not the Company is then subject to such reporting requirements; provided , however , that, without limitation, a Change of Control shall be deemed to have occurred if: (i) any “person” (within the meaning of Section 13(d) of the Exchange Act, as enacted and in force on the date hereof) is or becomes the “beneficial owner” (as that term is defined in Rule 13d-3, as enacted and in force on the date hereof, under the Exchange Act) of securities of the Company representing 9.8% or more of the combined voting power of the Company’s securities then outstanding; (ii) there occurs a merger, consolidation or other reorganization of the Company which is not approved by the Board of Directors; (iii) there occurs a sale, exchange, transfer or other disposition of substantially all the assets of the Company to another Person, which disposition is not approved by the Board of Directors; or (iv) there occurs a contested proxy solicitation of the Stockholders that results in the contesting party electing candidates to a majority of the Board of Directors’ positions next up for election.

“ Code ” means the Internal Revenue Code of 1986, as amended from time to time, or any successor statute thereto. Reference to any provision of the Code shall mean such provision as in effect from time to time, as the same may be amended, and any successor provision thereto, as interpreted by any applicable regulations as in effect from time to time.

“ Common Stock ” means the shares of the Company’s common stock, par value $0.01 per share.

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

“ Company Additional Agreements ” means, collectively, the Amended and Restated Property Management and the Amended and Restated Leasing Agreement, each executed on the date hereof between the Company and American Finance Properties, LLC, a Delaware limited liability company, and each effective only if and when this Third Amended and Restated Advisory Agreement becomes effective at the Effective Time as provided in Section 29 and as also provided in each such agreement.

“ Company Existing Property Management and Leasing Agreement ” means the Amended and Restated Property Management and Leasing Agreement executed on the date hereof among the Company, the Operating Partnership and American Finance Properties, LLC (formerly known as American Realty Capital Properties V, LLC), a Delaware limited liability company and effective only if and when this Third Amended and Restated Advisory Agreement becomes effective at the Effective Time as provided in Section 29 and as also provided in Section 6.13 of such agreement.

“ Contract Purchase Price ” means the amount actually paid for (including, without duplication, any indebtedness and fair market value of any liability assumed in) the purchase, development or construction of a Property or the amount of funds advanced under a Mortgage, or the amount actually paid for an Investment, in each case exclusive of Acquisition Expenses.

“ Core Earnings ” means the net income (loss), computed in accordance with GAAP, excluding (i) non-cash equity compensation expense, (ii) the Variable Management Fee, (iii) acquisition and transaction related fees and expenses, (iv) financing related fees and expenses, (v) depreciation and amortization, (vi) realized gains and losses on the sale of assets, (vii) any unrealized gains or losses or other non-cash items that are included in net income (loss) for the applicable reporting period, regardless of whether such items are included in other comprehensive income or loss, or in net income, (viii) one-time events pursuant to changes in GAAP and certain non-cash charges, (ix) impairment losses on real estate related investments and other than temporary impairment of securities, (x) amortization of deferred financing costs, (xi) amortization of tenant inducements, (xii) amortization of straight-line rent, (xiii) amortization of market lease intangibles, (xiv) provision for loan losses and (xv) other non-recurring revenue and expenses, in each case after discussions between the Advisor and the Independent Directors and approved by a majority of the Independent Directors.

“ Core Earnings Per Adjusted Share ” means, for the applicable period, Core Earnings divided by the Adjusted Outstanding Shares for such period.

“ Dealer Manager ” means Realty Capital Securities, LLC, or such other Person selected by the Board of Directors to act as the dealer manager for the Offering.

“ Dealer Manager Fee ” means the fee from the sale of Shares in a Primary Offering, payable to the Dealer Manager for serving as the dealer manager of such Primary Offering.

“ Director ” means a director of the Company.

“ Distributions ” means any distributions of money or other property by the Company to Stockholders, including distributions that may constitute a return of capital for U.S. federal income tax purposes.

“ Equity Proceeds ” means with respect to any period, the cumulative net proceeds of all common and preferred equity issued by the Company and its subsidiaries during such period, including: (1) any equity issued in exchange or conversion of exchangeable notes based on the stock price at the date of issuance; (2) any other issuances of equity, including but not limited to units in the Operating Partnership (excluding equity based compensation but including issuances related to an acquisition, investment, joint-venture or partnership); and (3) any cumulative Core Earnings in excess of cumulative distributions paid on common stock.

“ Exchange Act ” means the Securities Exchange Act of 1934, as amended from time to time, or any successor statute thereto. Reference to any provision of the Exchange Act shall mean such provision as in effect from time to time, as the same may be amended, and any successor provision thereto, as interpreted by any applicable regulations as in effect from time to time.

“ FINRA ” means the Financial Industry Regulatory Authority, Inc.

“ GAAP ” means United States generally accepted accounting principles, consistently applied.

“ Good Reason ” means: (i) any failure to obtain a satisfactory agreement from any successor to the Company or the Operating Partnership to assume and agree to perform obligations under this Agreement; or (ii) any material breach of this Agreement of any nature whatsoever by the Company or the Operating Partnership.

“ Gross Proceeds ” means the aggregate purchase price of all Shares sold for the account of the Company through an Offering, without deduction for Selling Commissions, volume discounts, any marketing support and due diligence expense reimbursement or Organization and Offering Expenses. For the purpose of computing Gross Proceeds, the purchase price of any Share for which reduced Selling Commissions are paid to the Dealer Manager or a Soliciting Dealer (where net proceeds to the Company are not reduced) shall be deemed to be the full amount of the offering price per Share pursuant to the Prospectus for such Offering without reduction.

“ Indemnitee ” has the meaning set forth in Section 20 .

“ Independent Director ” means a Director who is not and who has not been within the last two years, directly or indirectly associated with the Sponsor or the Advisor by virtue of ownership of an interest in the Sponsor, the Advisor or any of their Affiliates,

“ Insourced Acquisition Expenses ” means Acquisition Expenses incurred in connection with services performed by the Advisor or any of its Affiliates, including legal advisory expenses, due diligence expenses, personnel expenses, acquisition-related administrative and advisory expenses, survey, property, contract review expenses, travel and communications expenses and other closing costs.

“ Internalization ” has the meaning set forth in Section 18(b)(i) .

“ Internalization Fee ” means an amount equal to (i) $15,000,000 (the “ Fixed Amount ”); plus (ii) (x) 4.5 multiplied by the Subject Fees, if the effective date of Internalization is on or prior to December 31, 2028 or (y) 3.5 multiplied by the Subject Fees, if the effective date of Internalization is on or after January 1, 2029; plus (iii) 1.00% multiplied by (x) the Contract Purchase Price (not including any portion of such Contract Purchase Price funded solely with Equity Proceeds in respect of the period occurring on or prior to the end of the fiscal quarter in which the Notice Date occurs and previously increased the Variable Portion) of any Investment that is acquired (i.e., closing has occurred) after the end of the fiscal quarter in which the Notice Date occurs and prior to the effective date of Internalization and (y) without duplication, all Equity Proceeds in respect of the period following the end of the fiscal quarter in which the Notice Date occurs and prior to the effective date of Internalization.

“ Internalization Notice ” has the meaning set forth in Section 18(b)(i)(B) .

“ Internalization Stock ” has the meaning set forth in Section 18(b)(i)(D) .

“ Investments ” means any investments by the Company or the Operating Partnership, directly or indirectly, in Real Estate Assets, Real Estate Related Loans or any other asset.

“ Issuance Date ” has the meaning set forth in Section 15(b)(i)(D) .

“ Joint Ventures ” means the joint venture or partnership or other similar arrangements (other than between the Company and the Operating Partnership) in which the Company or the Operating Partnership or any of their subsidiaries is a co-venturer, limited liability company member, limited partner or general partner, which are established to acquire or hold Investments.

“ Listing ” means the listing of the Common Stock on a national securities exchange, or the inclusion of the Common Stock for trading in the over-the-counter-market.

“ Loans ” means any indebtedness or obligations in respect of borrowed money or evidenced by bonds, notes, debentures, deeds of trust, letters of credit or similar instruments, including mortgages and mezzanine loans.

“ Market Check ” means an analysis comparing (a) the amount of Insourced Acquisition Expenses paid in the previous calendar year to the Advisor or any of its Affiliates with (b) the projected amount of Acquisition Expenses for the following calendar year assuming that a Person other than the Advisor or its Affiliates performs substantially similar services for a substantially similar amount of Investments.

“ Mortgages ” means, in connection with mortgage financing provided by the Company, all of the notes, deeds of trust, security interests or other evidences of indebtedness, which are secured or collateralized by Real Property owned by the borrowers under such notes, deeds of trust, security interests or other evidences of indebtedness.

“ Notice ” has the meaning set forth in Section 22 .

“ Notice Date ” has the meaning set forth in Section 18(b)(i)(B) .

“ Offering ” means any public offering and sale of Shares pursuant to an effective registration statement filed under the Securities Act.

“ Operating Partnership ” has the meaning set forth in the preamble.

“ Operating Partnership Agreement ” means the Amended and Restated Agreement of Limited Partnership of the Operating Partnership, dated as of the date hereof, among the Company, American Finance Trust V Special Limited Partner, LLC, and the Advisor, as the same may be amended from time to time.

“ OP Units ” means units of limited partnership interest in the Operating Partnership.

“ Organization and Offering Expenses ” means all expenses (other than the Selling Commission and the Dealer Manager Fee) to be paid by the Company in connection with an Offering, including legal, accounting, printing, mailing and filing fees, charges of the escrow holder and transfer agent, charges of the Advisor for administrative services related to the issuance of Shares in an Offering, reimbursement of the Advisor for costs in connection with preparing supplemental sales materials, the cost of bona fide training and education meetings held by the Company (primarily the travel, meal and lodging costs of the registered representatives of broker-dealers), attendance and sponsorship fees and cost reimbursement for employees of the Company’s Affiliates to attend retail seminars conducted by broker-dealers and, in special cases, reimbursement to soliciting broker-dealers for technology costs associated with an Offering, costs and expenses related to such technology costs, and costs and expenses associated with facilitation of the marketing of the Shares and the ownership of Shares by such broker-dealer’s customers.

“ Original Advisory Agreement ” has the meaning set forth in the recitals.

“ Outside Date ” has the meaning set forth in Section 18(b)(i)(D)(4) .

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

“ Primary Offering ” means the portion of an Offering other than the Shares offered pursuant to the Company’s distribution reinvestment plan.

“ Property ” or “ Properties ” means, as the context requires, any, or all, respectively, of the Real Property acquired by the Company, directly or indirectly through joint venture arrangements or other partnership or investment interests.

“ Property Transaction ” means an acquisition, disposition or financing transaction for which a Specified Advisor had initiated discussions or negotiations prior to, and is subsequently consummated following, a Specified Transaction in which the Specified Agreement to which such Specified Advisor was a party is terminated.

“ Prospectus ” means a final prospectus of the Company filed pursuant to Rule 424(b) of the Securities Act, as the same may be amended or supplemented from time to time.

“ Real Estate Assets ” means any investment by the Company or the Operating Partnership in unimproved and improved Real Property (including fee or leasehold interests, options and leases), directly, through one or more subsidiaries or through a Joint Venture.

“ Real Estate Related Loans ” means any investments in mortgage loans and other types of real estate related debt financing, including, mezzanine loans, bridge loans, convertible mortgages, wraparound mortgage loans, construction mortgage loans, loans on leasehold interests and participations in such loans, by the Company or the Operating Partnership, directly, through one or more subsidiaries or through a Joint Venture.

“ Real Property ” means (i) land, (ii) rights in land (including leasehold interests), and (iii) any buildings, structures, improvements, furnishings, fixtures and equipment located on or used in connection with land and rights or interests in land.

“ Registration Statement ” has the meaning set forth in Section 18(b)(i)(D)(1) .

“ REIT ” means a corporation, trust, association or other legal entity (other than a real estate syndication) that is engaged primarily in investing in equity interests in real estate (including fee ownership and leasehold interests) or in loans secured by real estate or both, as defined pursuant to Sections 856 through 860 of the Code and any successor or other provisions of the Code relating to real estate investment trusts (including provisions as to the attribution of ownership of beneficial interests therein) and the regulations promulgated thereunder.

“ Sale ” or “ Sales ” means any transaction or series of transactions whereby: (i) the Company or the Operating Partnership directly or indirectly (except as described in other subsections of this definition) sells, grants, transfers, conveys, or relinquishes its direct or indirect ownership of any Real Estate Assets, Loan or other Investment or portion thereof, including the lease of any Real Estate Assets consisting of a building only, and including any event with respect to any Real Estate Assets that gives rise to a significant amount of insurance proceeds or condemnation awards; (ii) the Company or the Operating Partnership directly or indirectly (except as described in other subsections of this definition) sells, grants, transfers, conveys, or relinquishes its ownership of all or substantially all the direct or indirect interest of the Company or the Operating Partnership in any Joint Venture in which it is a co-venturer, member or partner; (iii) any Joint Venture directly or indirectly (except as described in other subsections of this definition) in which the Company or the Operating Partnership as a co-venturer, member or partner sells, grants, transfers, conveys, or relinquishes its direct or indirect ownership of any Real Estate Assets or portion thereof, including any event with respect to any Real Estate Assets which gives rise to insurance claims or condemnation awards; or (iv) the Company or the Operating Partnership directly or indirectly (except as described in other subsections of this definition) sells, grants, conveys or relinquishes its direct or indirect interest in any Real Estate Related Loans or portion thereof (including with respect to any Real Estate Related Loan, all payments thereunder or in satisfaction thereof other than regularly scheduled interest payments) and any event which gives rise to a significant amount of insurance proceeds or similar awards; or (v) the Company or the Operating Partnership directly or indirectly (except as described in other subsections of this definition) sells, grants, transfers, conveys, or relinquishes its direct or indirect ownership of any other asset not previously described in this definition or any portion thereof, but not including any transaction or series of transactions specified in clauses (i) through (v) above in which the proceeds of such transaction or series of transactions are reinvested by the Company in one or more assets within 180 days thereafter.

“ Second Amended and Restated Advisory Agreement ” has the meaning set forth in the recitals.

“ Securities Act ” means the Securities Act of 1933, as amended from time to time, or any successor statute thereto. Reference to any provision of the Securities Act shall mean such provision as in effect from time to time, as the same may be amended, and any successor provision thereto, as interpreted by any applicable regulations as in effect from time to time.

“ Selling Commission ” means the fee payable to the Dealer Manager and reallowable to Soliciting Dealers with respect to Shares sold by them in a Primary Offering.

“ Shares ” means the shares of beneficial interest or of common stock of the Company of any class or series, including Common Stock, that has the right to elect the Directors of the Company.

“ Soliciting Dealers ” means broker-dealers that are members of FINRA, or that are exempt from broker-dealer registration, and that, in either case, have executed soliciting dealer or other agreements with the Dealer Manager to sell Shares.

“ Specified Advisor ” means, with respect to any Specified Target, the entity that advises such Specified Target.

“ Specified Agreement ” means, with respect to any Specified Target, the advisory agreement in effect on the date hereof pursuant to which the applicable Specified Advisor provides advisory services to such Specified Target.

“ Specified Equity Value ” means, with respect to any Specified Transaction, an amount equal to the aggregate total consideration paid to the holders of common stock, preferred stock, convertible preferred stock or other equity of the Specified Target or of the operating partnership of such Specified Target that is the subject of the acquisition that constitutes such Specified Transaction; provided , that Specified Equity Value shall not include any consideration paid for or in redemption of “special limited partner interests” in the operating partnership of such Specified Target (“special limited partner interests” being understood to be interests in such partnerships similar in type to the interest designated in the Operating Partnership Agreement as the “Special Limited Partner Interest”).

“ Specified Increase ” means, with respect to any Specified Transaction, an amount equal to the Specified Equity Value of such Specified Transaction multiplied by (i) during the twelve (12) month period following such Specified Transaction, 0.0031, (ii) during the twelve (12) month period following the period described in clause (i), 0.0047 and (iii) thereafter, 0.0062.

“ Specified Target ” means, any REIT other than American Realty Capital-Retail Centers of America, Inc. that, as of the Effective Date, is advised by an entity that is wholly-owned (directly or indirectly) by the Sponsor or AR Capital, LLC.

“ Specified Transaction ” means, other than any Joint Ventures, the acquisition by the Company (whether by merger, consolidation or otherwise) of any Specified Target.

“ Sponsor ” means AR Global Investments, LLC, a Delaware limited liability company.

“ Stockholders ” means the holders of record of the Shares as maintained on the books and records of the Company or its transfer agent.

“ Subject Fees ” means (i) (x) (A) the actual Base Management Fee plus (B) the actual Variable Management Fee, in each of clauses (A) and (B), payable for the fiscal quarter in which the Notice Date occurs multiplied by (y) four (4) plus (ii) without duplication, the annual increase in the Base Management Fee resulting from Equity Proceeds in respect of the fiscal quarter in which the Notice Date occurs.

“ Termination Date ” means the date of termination of this Agreement.

“ Trading Day ” means a day on which the principal national securities exchange on which a security is listed or admitted to trading is open for the transaction of business or, if a security is not listed or admitted to trading on any national securities exchange, shall mean any day other than a Saturday, a Sunday or a day on which banking institutions in the State of New York are authorized or obligated by law or executive order to close.

“ Value ” means, with respect to any security, the average of the daily market price of such security for the ten consecutive Trading Days immediately preceding the date of such valuation. The market price for each such Trading Day shall be: (i) if the security is listed or admitted to trading on the NYSE or any national securities exchange, the last reported sale 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, regular way, on such day, (ii) if the security is not listed or admitted to trading on the NYSE or any national securities exchange, the last reported sale price on such day or, if no sale takes place on such day, the average of the closing bid and asked prices on such day, as reported by a reliable quotation source designated by the Advisor, or (iii) if the security is not listed or admitted to trading on the NYSE or any national securities exchange and no such last reported sale price or closing bid and asked prices are available, the average of the reported high bid and low asked prices on such day, as reported by a reliable quotation source designated by the Advisor, or if there shall be no bid and asked prices on such day, the average of the high bid and low asked prices, as so reported, on the most recent day (not more than ten days prior to the date in question) for which prices have been so reported; provided , that if there are no bid and asked prices reported during the ten days prior to the date in question, the value of the security shall be determined by the Advisor acting in good faith on the basis of such quotations and other information as it considers, in its reasonable judgment, appropriate. In the event the security includes any additional rights, then the value of such rights shall be determined by the Advisor acting in good faith on the basis of such quotations and other information as it considers, in its reasonable judgment, appropriate.

“ Variable Management Fee ” means the fees payable to the Advisor or its assignees pursuant to Section 10(f) .

2.          APPOINTMENT. The Company and the Operating Partnership hereby appoint the Advisor to serve as their advisor to perform the services set forth herein on the terms and subject to the conditions set forth in this Agreement and subject to the supervision of the Board, and the Advisor hereby accepts such appointment.

3.          DUTIES OF THE ADVISOR. The Advisor will use its reasonable best efforts to present to the Company and the Operating Partnership potential investment opportunities and to provide a continuing and suitable investment program consistent with the investment objectives and policies of the Company as determined and adopted from time to time by the Board. In performance of this undertaking, subject to the supervision of the Board and consistent with the provisions of the Articles of Incorporation, By-laws and the Operating Partnership Agreement, the Advisor, directly or indirectly, will:

(a)          serve as the Company’s and the Operating Partnership’s investment and financial advisor;

(b)          provide the daily management for the Company and the Operating Partnership and perform and supervise the various administrative functions necessary for the day-to-day management of the operations of the Company and the Operating Partnership;

(c)          investigate, select and, on behalf of the Company and the Operating Partnership, engage and conduct business with and supervise the performance of such Persons as the Advisor deems necessary to the proper performance of its obligations hereunder (including consultants, accountants, correspondents, lenders, technical advisors, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, builders, developers, property owners, property managers, real estate management companies, real estate operating companies, securities investment advisors, mortgagors, the registrar and the transfer agent and any and all agents for any of the foregoing), including Affiliates of the Advisor and Persons acting in any other capacity deemed by the Advisor necessary or desirable for the performance of any of the foregoing services (including entering into contracts in the name of the Company and the Operating Partnership with any of the foregoing);

(d)          consult with the officers and Directors of the Company and assist the Directors in the formulation and implementation of the Company’s financial policies, and, as necessary, furnish the Board with advice and recommendations with respect to the making of investments consistent with the investment objectives and policies of the Company and in connection with any borrowings proposed to be undertaken by the Company or the Operating Partnership;

(e)          subject to the provisions of Section 4 , (i) participate in formulating an investment strategy and asset allocation framework; (ii) locate, analyze and select potential Investments; (iii) structure and negotiate the terms and conditions of transactions pursuant to which acquisitions and dispositions of Investments will be made; (iv) research, identify, review and recommend acquisitions and dispositions of Investments to the Board and make Investments on behalf of the Company and the Operating Partnership in compliance with the investment objectives and policies of the Company; (v) arrange for financing and refinancing and make other changes in the asset or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with, Investments; (vi) enter into leases and service contracts for Real Estate Assets and, to the extent necessary, perform all other operational functions for the maintenance and administration of such Real Estate Assets; (vii) actively oversee and manage Investments for purposes of meeting the Company’s investment objectives and reviewing and analyzing financial information for each of the Investments and the overall portfolio; (viii) select Joint Venture partners, structure corresponding agreements and oversee and monitor these relationships; (ix) oversee, supervise and evaluate Affiliated and non-Affiliated property managers who perform services for the Company or the Operating Partnership; (x) oversee Affiliated and non-Affiliated Persons with whom the Advisor contracts to perform certain of the services required to be performed under this Agreement; (xi) manage accounting and other record-keeping functions for the Company and the Operating Partnership, including reviewing and analyzing the capital and operating budgets for the Real Estate Assets and generating an annual budget for the Company; (xii) recommend various liquidity events to the Board when appropriate; and (xiii) source and structure Real Estate Related Loans;

(f)          upon request, provide the Board with periodic reports regarding prospective investments;

(g)          make investments in, and dispositions of, Investments within the discretionary limits and authority as granted by the Board;

(h)          negotiate on behalf of the Company and the Operating Partnership with banks or other lenders for Loans to be made to the Company, the Operating Partnership or any of their subsidiaries, and negotiate with investment banking firms and broker-dealers on behalf of the Company, the Operating Partnership or any of their subsidiaries, or negotiate private sales of Shares or obtain Loans for the Company, the Operating Partnership or any of their subsidiaries, but in no event in such a manner so that the Advisor shall be acting as broker-dealer or underwriter; provided , however , that any fees and costs payable to third parties incurred by the Advisor in connection with the foregoing shall be the responsibility of the Company, the Operating Partnership or any of their subsidiaries;

(i)          obtain reports (which may, but are not required to, be prepared by the Advisor or its Affiliates), where appropriate, concerning the value of Investments or contemplated investments of the Company and the Operating Partnership;

(j)          from time to time, or at any time reasonably requested by the Board, make reports to the Board of its performance of services to the Company and the Operating Partnership under this Agreement, including reports with respect to potential conflicts of interest involving the Advisor or any of its Affiliates;

(k)          provide the Company and the Operating Partnership with all necessary cash management services;

(l)          deliver to, or maintain on behalf of, the Company copies of all appraisals obtained in connection with the investments in any Real Estate Assets as may be required to be obtained by the Board;

(m)          notify the Board of all proposed material transactions before they are completed;

(n)          effect any private placement of OP Units, tenancy-in-common (TIC) or other interests in Investments as may be approved by the Board;

(o)          perform investor-relations and Stockholder communications functions for the Company;

(p)          render such services as may be reasonably determined by the Board of Directors consistent with the terms and conditions herein; and

(q)          maintain the Company’s accounting and other records and assist the Company in filing all reports required to be filed by it with the Securities and Exchange Commission, the Internal Revenue Service and other regulatory agencies;

(r)          do all things reasonably necessary to assure its ability to render the services described in this Agreement.

Notwithstanding the foregoing or anything else that may be to the contrary in this Agreement, the Advisor may delegate any of the foregoing duties to any Person so long as the Advisor or its Affiliate remains responsible for the performance of the duties set forth in this Section 3 .

4.          AUTHORITY OF ADVISOR.

(a)          Pursuant to the terms of this Agreement (including the restrictions included in this Section 4 and in Section 9 ), and subject to the continuing and exclusive authority of the Board over the supervision of the Company, the Company, acting on the authority of the Board of Directors, hereby delegates to the Advisor the authority to perform the services described in Section 3 .

(b)          Notwithstanding anything herein to the contrary, all Investments will require the prior approval of the Board, any particular Directors specified by the Board or any committee of the Board specified by the Board, as the case may be.

(c)          If a transaction requires approval by the Independent Directors, the Advisor will deliver to the Independent Directors all documents and other information reasonably required by them to evaluate properly the proposed transaction.

(d)          The Board may, at any time upon the giving of Notice to the Advisor, modify or revoke the authority set forth in this Section 4 ; provided , however , that such modification or revocation shall be effective upon receipt by the Advisor and shall not be applicable to investment transactions to which the Advisor has committed the Company or the Operating Partnership prior to the date of receipt by the Advisor of such notification.

5.          FIDUCIARY RELATIONSHIP. The Advisor, as a result of its relationship with the Company and the Operating Partnership pursuant to this Agreement, has a fiduciary responsibility and duty to the Company, the Stockholders and the partners in the Operating Partnership.

6.          NO PARTNERSHIP OR JOINT VENTURE. Except as provided in Section 10(i) , the parties to this Agreement are not partners or joint venturers with each other and nothing herein shall be construed to make them partners or joint venturers or impose any liability as such on either of them.

7.          BANK ACCOUNTS. The Advisor may establish and maintain one or more bank accounts in the name of the Company or the Operating Partnership and may collect and deposit into any such account or accounts, and disburse from any such account or accounts, any money on behalf of the Company or the Operating Partnership, under such terms and conditions as the Board may approve; provided , that no funds shall be commingled with the funds of the Advisor; and, upon request, the Advisor shall render appropriate accountings of such collections and payments to the Board and to the auditors of the Company.

8.          RECORDS; ACCESS. The Advisor shall maintain appropriate records of all its activities hereunder and make such records available for inspection by the Directors and by counsel, auditors and authorized agents of the Company, at any time and from time to time. The Advisor shall at all reasonable times have access to the books and records of the Company and the Operating Partnership.

9.          LIMITATIONS ON ACTIVITIES. Notwithstanding anything herein to the contrary, the Advisor shall refrain from taking any action which, in its sole judgment, or in the sole judgment of the Company, made in good faith, would (a) adversely affect the status of the Company as a REIT, unless the Board has determined that REIT qualification is not in the best interests of the Company and its Stockholders, (b) subject the Company to regulation under the Investment Company Act of 1940, as amended, or (c) violate any law, rule, regulation or statement of policy of any governmental body or agency having jurisdiction over the Company, the Operating Partnership or the Shares, or otherwise not be permitted by the Articles of Incorporation or By-laws, except if such action shall be ordered by the Board, in which case the Advisor shall notify promptly the Board of the Advisor’s judgment of the potential impact of such action and shall refrain from taking such action until it receives further clarification or instructions from the Board. In such event, the Advisor shall have no liability for acting in accordance with the specific instructions of the Board so given.

10.         FEES.

(a)           [ Intentionally Omitted].

(b)           Limitation on Acquisition Expenses .

(i)          The total of all Acquisition Expenses payable in connection with the Company’s total portfolio of Investments and reinvestments, if any, shall be reasonable and shall not exceed an amount equal to four and one-half percent (4.5%) of the Contract Purchase Price of the Company’s total portfolio of Investments or four and one-half percent (4.5%) of the amount advanced for the Company’s total portfolio of Investments.

(ii)         The total of all Acquisition Expenses payable in connection with any Investment or any reinvestment shall be reasonable and shall not exceed an amount equal to four and one-half percent (4.5%) of the Contract Purchase Price of the Investment or four and one-half percent (4.5%) of the amount advanced for any Investment; provided , further , however , that a majority of the Directors (including a majority of the Independent Directors) not otherwise interested in the transaction may approve expenses in excess of these limits if they determine the transaction to be commercially competitive, fair and reasonable to the Company.

(iii)        [Intentionally Omitted].

(c)           [ Intentionally Omitted].

(d)           [ Intentionally Omitted].

(e)           [ Intentionally Omitted].

(f)           Variable Management Fee . The Company shall pay the Advisor a Variable Management Fee, payable quarterly in arrears, in an amount equal to (i) the product of (A) the Adjusted Outstanding Shares for the calendar quarter multiplied by (B) 15% multiplied by (C) the excess of Core Earnings Per Adjusted Share for the previous 3-month period over $0.375, plus (ii) the product of (X) the Adjusted Outstanding Shares for the calendar quarter multiplied by (Y) 10% multiplied by (Z) the excess of Core Earnings Per Adjusted Share for the previous 3-month period over $0.50.

(g)           Base Management Fee .

(i)          The Company shall pay the Advisor a Base Management Fee, payable on the first business day of each month following the Effective Date. Subject to Section 10(g)(ii) , the Base Management Fee shall be equal to (x) (i) $1,750,000 during the twelve (12) month period following the Effective Date, (ii) $1,875,000 during the twelve (12) month period following the period described in clause (i) and (iii) thereafter, $2,000,000 (the portion of the Base Management Fee described in this clause (x), the “ Fixed Portion ”); plus (y) an amount equal to (A) 1.25% of the Equity Proceeds in respect of the period following the Effective Date (other than in connection with a Specified Transaction), divided by (B) twelve (12) (the portion of the Base Management Fee described in this clause (y), the “ Variable Portion ”).

(ii)         In connection with any Specified Transaction consummated by the Company following the Effective Date, the Fixed Portion shall be increased by the Specified Increase for such Specified Transaction.

(h)           Payment of Fees .

(i)          In connection with the Variable Management Fee, the Company shall pay such fees to the Advisor or its assignees in cash, in Shares, or a combination of both, the form of payment to be determined in the sole discretion of the Advisor.

(ii)         The Base Management Fee shall be payable in the form determined, at the discretion of the Advisor, in cash, OP Units, Shares, or any combination thereof. Each OP Unit or Share shall be valued at the Value of a Share.

(i)           Exclusion of Certain Transactions .

(i)          If the Company or the Operating Partnership shall propose to enter into any transaction in which the Advisor, any Affiliate of the Advisor or any of the Advisor’s directors or officers has a direct or indirect interest, then such transaction shall be approved by a majority of the Board not otherwise interested in such transaction, including a majority of the Independent Directors.

(ii)         Neither the Company nor the Operating Partnership shall make Loans to the Advisor or any Affiliate thereof or certain of the Stockholders except Mortgages or loans to wholly owned subsidiaries of the Company. None of the Advisor nor any Affiliate thereof, or certain of the Stockholders shall make loans to the Company or the Operating Partnership, or to Joint Ventures, unless approved by a majority of the Directors (including a majority of the Independent Directors) not otherwise interested in such transaction as fair, competitive, and commercially reasonable, and no less favorable to the Company or Operating Partnership, as applicable, than comparable loans between unaffiliated parties.

(iii)        The Company and the Operating Partnership may enter into Joint Ventures with the Advisor or its Affiliates provided that (a) a majority of Directors (including a majority of Independent Directors) not otherwise interested in the transaction approves the transaction as being fair and reasonable to the Company or Operating Partnership, as applicable, and (b) the investment by the Company or Operating Partnership, as applicable, is on substantially the same terms as those received by other joint venturers.

(j)           Limitation on Insourced Acquisition Expenses .

(i)          The total of all Insourced Acquisition Expenses with respect to any Investment shall initially be fixed at, and shall not exceed, 0.50% of the Contract Purchase Price of the Investment or 0.50% of the amount advanced for an Investment, which the Company shall pay to the Advisor or its Affiliate at the closing of each Investment. For the avoidance of doubt, no payment in respect of Insourced Acquisition Expenses shall be made unless the Advisor or its Affiliates shall have performed services related to selecting, evaluating and acquiring an Investment, regardless of whether such Investment is ultimately acquired.

(ii)         The total of all Insourced Acquisition Expenses for any calendar year shall initially be fixed at, and shall not exceed, 0.50% of the Contract Purchase Price of the Investments acquired during such period or 0.50% of the amounts advanced for the Investments made during such period (to be prorated for any partial calendar year); provided , however , within a reasonable period of time following the end of each such calendar year, the Company shall perform a Market Check and provide the results thereof to the Advisor within a reasonable period of time and, if the result of the Market Check is that the projected amount of Acquisition Expenses that would be incurred if substantially similar services with respect to a substantially similar amount of properties were to be provided by a Person other than the Advisor or any of its Affiliates during the subsequent calendar year is lower than the amount of Insourced Acquisition Expenses paid to the Advisor or its Affiliates during the previous calendar year, either (A) the Advisor shall agree to reduce the cap on the Insourced Acquisition Expenses until the next Market Check such that the cap on Insourced Acquisition Expenses does not exceed the projected amount of Acquisition Expenses that would be incurred if substantially similar services with respect to a substantially similar amount of properties were to be provided by a Person other than the Advisor or any of its Affiliates during the subsequent calendar year or (B) the Company may outsource to a Person other than the Advisor or its Affiliate certain services previously provided by the Advisor or its Affiliates until the next Market Check.

11.         EXPENSES.

(a)          In addition to the compensation paid to the Advisor pursuant to Section 10 , the Company or the Operating Partnership shall pay directly or reimburse the Advisor, quarterly and in arrears, for all the expenses paid or incurred by the Advisor or its Affiliates in connection with the services it provides to the Company and the Operating Partnership pursuant to this Agreement, including, the following:

(i)          Organization and Offering Expenses, including third-party due diligence fees related to the Primary Offering, as set forth in detailed and itemized invoices; provided , however , that the Company shall not reimburse the Advisor to the extent such reimbursement would cause the total amount of Organization and Offering Expenses paid by the Company and the Operating Partnership to exceed two percent (2.0%) of the Gross Proceeds raised in all Primary Offerings;

(ii)         Acquisition Expenses, subject to the limitations set forth in Section 10(b) , and Insourced Acquisition Expenses, subject to the limitations set forth in Section 10(i) ;

(iii)        the actual cost of goods and services used by the Company and obtained from entities not Affiliated with the Advisor;

(iv)        interest and other costs for Loans, including discounts, points and other similar fees;

(v)         taxes and assessments on income of the Company or Investments;

(vi)        costs associated with insurance required in connection with the business of the Company or by the Board;

(vii)       expenses of managing and operating Investments owned by the Company, whether payable to an Affiliate of the Company or a non-affiliated Person;

(viii)      all expenses in connection with payments to the Directors for attending meetings of the Board and Stockholders;

(ix)         expenses associated with a Listing, if applicable, or with the issuance and distribution of Shares, such as selling commissions and fees, advertising expenses, taxes, legal and accounting fees, listing and registration fees;

(x)          expenses connected with payments of Distributions;

(xi)         expenses of organizing, revising, amending, converting, modifying or terminating the Company, the Operating Partnership or any subsidiary thereof or the Articles of Incorporation, By-laws or governing documents of the Operating Partnership or any subsidiary of the Company or the Operating Partnership;

(xii)        expenses of maintaining communications with Stockholders, including the cost of preparation, printing, and mailing annual reports and other Stockholder reports, proxy statements and other reports required by governmental entities;

(xiii)       administrative service expenses, including all costs and expenses incurred by the Advisor or its Affiliates in fulfilling its duties hereunder, including reasonable salaries and wages, benefits and overhead of all employees directly involved in the performance of such services; provided , however , that no reimbursement shall be made for costs of such employees of the Advisor or its Affiliates to the extent that such employees perform services for which the Advisor receives a separate fee; and

(xiv)      audit, accounting and legal fees.

(b)          Commencing upon the earlier to occur of (i) the fifth fiscal quarter after the Company makes its first Investment and (ii) six (6) months after the commencement of the initial Offering, expenses incurred by the Advisor on behalf of the Company and the Operating Partnership or in connection with the services provided by the Advisor hereunder and payable pursuant to this Section 11 shall be reimbursed (excluding Insourced Acquisition Expenses which shall be paid as described in Section 10(j)(i) of this Agreement), no less than monthly, to the Advisor.

12.         OTHER SERVICES. Should the Board request that the Advisor or any director, officer or employee thereof render services for the Company and the Operating Partnership other than set forth in Section 3 , such services shall be separately compensated at such customary rates and in such customary amounts as are agreed upon by the Advisor and the Board, including a majority of the Independent Directors, subject to the limitations contained in the Articles of Incorporation, and shall not be deemed to be services pursuant to the terms of this Agreement.

13.         OTHER ACTIVITIES OF THE ADVISOR. Except as set forth in this Section 13 , nothing herein contained shall prevent the Advisor or any of its Affiliates from engaging in or earning fees from other activities, including the rendering of advice to other Persons (including other REITs) and the management of other programs advised, sponsored or organized by the Sponsor or its Affiliates; nor shall this Agreement limit or restrict the right of any director, officer, member, partner, employee or stockholder of the Advisor or any of its Affiliates to engage in or earn fees from any other business or to render services of any kind to any other Person and earn fees for rendering such services; provided, however , that the Advisor must devote sufficient resources to the Company’s business to discharge its obligations to the Company under this Agreement. The Advisor may, with respect to any investment in which the Company is a participant, also render advice and service to each and every other participant therein, and earn fees for rendering such advice and service. Specifically, it is contemplated that the Company may enter into Joint Ventures or other similar co-investment arrangements with certain Persons, and pursuant to the agreements governing such Joint Ventures or arrangements, the Advisor may be engaged to provide advice and service to such Persons, in which case the Advisor will earn fees for rendering such advice and service.

The Advisor shall report to the Board the existence of any condition or circumstance, existing or anticipated, of which it has knowledge, which creates or could create a conflict of interest between the Advisor’s obligations to the Company and its obligations to or its interest in any other Person. If the Advisor, Director or Affiliates thereof have sponsored other investment programs with similar investment objectives which have investment funds available at the same time as the Company, the Advisor shall inform the Board of the method to be applied by the Advisor in allocating investment opportunities among the Company and competing investment entities and shall provide regular updates to the Board of the investment opportunities provided by the Advisor to competing programs in order for the Board (including the Independent Directors) to fulfill its duty to ensure that the Advisor and its Affiliates use their reasonable best efforts to apply such method fairly to the Company.

14.         THE AMERICAN REALTY CAPITAL NAME. The Advisor and its Affiliates have or may have a proprietary interest in the names “American Realty Capital,” “ARC”, “AR Capital” and “AR Global.” The Advisor hereby grants to the Company, to the extent of any proprietary interest the Advisor may have in any of the names “American Realty Capital,” “ARC”, “AR Capital” and “AR Global,” a non-transferable, non-assignable, non-exclusive, royalty-free right and license to use the names “American Realty Capital,” “ARC”, “AR Capital” and “AR Global” during the term of this Agreement. The Company agrees that the Advisor and its Affiliates will have the right to approve of any use by the Company of the names “American Realty Capital,” “ARC”, “AR Capital” and “AR Global,” such approval not to be unreasonably withheld or delayed. Accordingly, and in recognition of this right, if at any time the Company ceases to retain the Advisor or one of its Affiliates to perform advisory services for the Company, the Company will, promptly after receipt of written request from the Advisor, cease to conduct business under or use the names “American Realty Capital,” “ARC”, “AR Capital” and “AR Global” or any derivative thereof and the Company shall change its name and the names of any of its subsidiaries to a name that does not contain the names “American Realty Capital,” “ARC”, “AR Capital” and “AR Global” or any other word or words that might, in the reasonable discretion of the Advisor, be susceptible of indication of some form of relationship between the Company and the Advisor or any its Affiliates. At such time, the Company will also make any changes to any trademarks, servicemarks or other marks necessary to remove any references to the words “American Realty Capital,” “ARC”, “AR Capital” and “AR Global.” Consistent with the foregoing, it is specifically recognized that the Advisor or one or more of its Affiliates has in the past and may in the future organize, sponsor or otherwise permit to exist other investment vehicles (including vehicles for investment in real estate) and financial and service organizations having any of the names “American Realty Capital,” “ARC”, “AR Capital” and “AR Global” as a part of their name, all without the need for any consent (and without the right to object thereto) by the Company. Neither the Advisor nor any of its Affiliates makes any representation or warranty, express or implied, with respect to the names “American Realty Capital,” “ARC”, “AR Capital” and “AR Global” licensed hereunder or the use thereof (including without limitation as to whether the use of the names “American Realty Capital,” “ARC” and “AR Capital” will be free from infringement of the intellectual property rights of third parties. Notwithstanding the preceding, the Advisor represents and warrants that it is not aware of any pending claims or litigation or of any claims threatened in writing regarding the use or ownership of the names “American Realty Capital,” “ARC” and “AR Capital.”

15.         TERM OF AGREEMENT. This Agreement shall be in effect from the Effective Date through the twentieth (20 ^th ) anniversary of April 29, 2015 and shall be automatically renewed for an additional twenty-year term on each anniversary of such twentieth anniversary date.

16.         TERMINATION BY THE PARTIES. This Agreement may be terminated (i) in accordance with Section 18(b) or (ii) upon sixty (60) days’ prior written notice (a) by the Independent Directors of the Company or by the Advisor with Cause without penalty, (b) by the Advisor for Good Reason, or (c) by the Advisor upon a Change of Control; provided , that termination of this Agreement with Cause shall be upon forty-five (45) days’ prior written notice. The provisions of Sections 14 and 18 through 30 (inclusive) of this Agreement shall survive any expiration or earlier termination of this Agreement.

17.         ASSIGNMENT. This Agreement may be assigned by the Advisor (a) to an Affiliate of the Advisor, or (b) to any party with expertise in commercial real estate and, together with its Affiliates, over $100 million of assets under management. The Advisor may assign any rights to receive fees or other payments under this Agreement to any Person. This Agreement shall not be assigned by the Company or the Operating Partnership without the consent of the Advisor, except in the case of an assignment by the Company or the Operating Partnership to a Person which is a successor to all the assets, rights and obligations of the Company or the Operating Partnership, in which case such successor Person shall be bound hereunder and by the terms of said assignment in the same manner as the Company or the Operating Partnership, as applicable, is bound by this Agreement.

18.         PAYMENTS TO AND DUTIES OF ADVISOR UPON TERMINATION.

(a)           Amounts Owed . After the Termination Date, the Advisor shall be entitled to receive from the Company or the Operating Partnership within thirty (30) days after the effective date of such termination all amounts then accrued and owing to the Advisor, including all its interest in the Company’s income, losses, distributions and capital by payment of an amount equal to the then-present fair market value of the Advisor’s interest.

(b)           Internalization .

(i)          The Company shall have the right to internalize the services provided by Advisor hereunder (an “ Internalization ”) at any time during the term of this Agreement if:

(A)         more than 67% of the Independent Directors have approved such Internalization;

(B)         the Company has provided written notice to the Advisor of the approval described in clause (A) above (the “ Internalization Notice ” and the date the Internalization Notice is received by the Advisor, the “ Notice Date ”); provided , however , that the Notice Date shall not be earlier than January 1, 2018;

(C)         the effective date of Internalization is at least nine (9) months, but not more than fifteen (15) months, following the Notice Date; provided , that the Company shall have the option to extend the effective date of Internalization for an additional three (3) months if, fifteen (15) months following the Notice Date the Company is working in good faith to complete a transaction, Listing or Offering that the Company is undertaking in conjunction with the Internalization; provided , further , that in the event such three (3) month extension occurs, the Internalization Fee shall be calculated as if the Notice Date occurred in the fiscal quarter following the fiscal quarter in which the Notice Date actually occurred; and

(D)         the Company pays the Advisor the Internalization Fee in cash concurrently with the consummation of the Internalization; provided , however , that up to ten percent (10%) of the Internalization Fee may be payable in Shares of Common Stock (the Shares representing such ten percent (10%) portion, the “ Internalization Stock ” and the date such Internalization Stock is issued, the “ Issuance Date ”)); provided , further , that the Internalization Fee shall be paid entirely in cash unless all of the following conditions is met:

1.          the Company is eligible to file a resale registration on Form S-3 covering the Internalization Stock (the “ Registration Statement ”) as of the effective date of Internalization;

2.          as of the Issuance Date, the Company shall have an equity market cap of at least $1,600,000,000;

3.          the Registration Statement shall be effective no later than the Issuance Date; and

4.          the Issuance Date shall be not more than sixty (60) days following the effective date of Internalization (such date, the “ Outside Date ”).

(ii)         Any portion of the Internalization Fee payable in Internalization Stock shall instead be paid in cash within five (5) business days of the failure of any of the conditions set forth in Section 18(b)(i)(D) to be met (for the avoidance of doubt, the inability to determine the per-share price of the Internalization Stock by the Outside Date due to an insufficient average daily trading volume as contemplated by the following sentence shall be deemed to be a failure of the conditions set forth in Section 18(b)(i)(D) above. The Internalization Stock shall be issued at a per-share price equal to the volume weighted average price of a Share of Common Stock for the twenty (20) Trading Days ending with the last Trading Day prior to the Issuance Date; provided , however , that the average daily trading volume of Common Stock during such twenty (20) day period must be as least one hundred thousand (100,000) Shares.

(iii)        For the avoidance of doubt, an Internalization shall not be deemed to constitute Cause.

(c)           Advisor’s Duties . The Advisor shall promptly upon termination of this Agreement:

(i)          pay over to the Company and the Operating Partnership all money collected and held for the account of the Company and the Operating Partnership pursuant to this Agreement, after deducting any accrued compensation and reimbursement for its expenses to which it is then entitled;

(ii)         deliver to the Board a full accounting, including a statement showing all payments collected by it and a statement of all money held by it, covering the period following the date of the last accounting furnished to the Board;

(iii)        deliver to the Board all assets, including all Investments, and documents of the Company and the Operating Partnership then in the custody of the Advisor; and

(iv)        cooperate with the Company and the Operating Partnership to provide an orderly management transition.

19.         INCORPORATION OF THE ARTICLES OF INCORPORATION AND THE OPERATING PARTNERSHIP AGREEMENT. To the extent that the Articles of Incorporation or the Operating Partnership Agreement as in effect on the date hereof impose obligations or restrictions on the Advisor or grant the Advisor certain rights which are not set forth in this Agreement, the Advisor shall abide by such obligations or restrictions and such rights shall inure to the benefit of the Advisor with the same force and effect as if they were set forth herein.

20.         INDEMNIFICATION BY THE COMPANY AND THE OPERATING PARTNERSHIP.

(a)          The Company and the Operating Partnership, jointly and severally, shall indemnify and hold harmless the Advisor and its Affiliates, as well as their respective officers, directors, equity holders, members, partners, stockholders, other equity holders and employees (collectively, the “ Indemnitees ,” and each, an “ Indemnitee ”), from and against all losses, claims, damages, losses, joint or several, expenses (including reasonable attorneys’ fees and other legal fees and expenses), judgments, fines, settlements, and other amounts (collectively, “ Losses ,” and each, a “ Loss ”) arising in the performance of their duties hereunder, including reasonable attorneys’ fees, to the extent such Losses are not fully reimbursed by insurance, and to the extent that such indemnification would not be inconsistent with the laws of the State of New York, the Articles of Incorporation. Notwithstanding the foregoing, the Company and the Operating Partnership shall not provide for indemnification of an Indemnitee for any Loss suffered by such Indemnitee, nor shall they provide that an Indemnitee be held harmless for any Loss suffered by the Company and the Operating Partnership, unless all the following conditions are met:

(i)          the Indemnitee has determined, in good faith, that the course of conduct that caused the loss or liability was in the best interest of the Company and the Operating Partnership;

(ii)         the Indemnitee was acting on behalf of, or performing services for, the Company or the Operating Partnership;

(iii)        such Loss was not the result of negligence or willful misconduct by the Indemnitee; and

(iv)        such indemnification or agreement to hold harmless is recoverable only out of the Company’s net assets and not from the Stockholders.

(b)          Notwithstanding the foregoing, an Indemnitee shall not be indemnified by the Company and the Operating Partnership for any Losses arising from or out of an alleged violation of federal or state securities laws by such Indemnitee unless one or more of the following conditions are met:

(i)          there has been a successful adjudication on the merits of each count involving alleged securities law violations as to the Indemnitee;

(ii)         such claims have been dismissed with prejudice on the merits by a court of competent jurisdiction as to the Indemnitee; or

(iii)        a court of competent jurisdiction approves a settlement of the claims against the Indemnitee and finds that indemnification of the settlement and the related costs should be made, and the court considering the request for indemnification has been advised of the position of the Securities and Exchange Commission and of the published position of any state securities regulatory authority in which securities of the Company or the Operating Partnership were offered or sold as to indemnification for violation of securities laws.

(c)          In addition, the advancement of the Company’s or the Operating Partnership’s funds to an Indemnitee for legal expenses and other costs incurred as a result of any legal action for which indemnification is being sought is permissible only if all the following conditions are satisfied:

(i)          the legal action relates to acts or omissions with respect to the performance of duties or services on behalf of the Company or the Operating Partnership;

(ii)         the legal action is initiated by a third party who is not a Stockholder or the legal action is initiated by a Stockholder acting in such Stockholder’s capacity as such and a court of competent jurisdiction specifically approves such advancement; and

(iii)        the Indemnitee undertakes to repay the advanced funds to the Company or the Operating Partnership, together with the applicable legal rate of interest thereon, in cases in which such Indemnitee is found not to be entitled to indemnification.

21.         INDEMNIFICATION BY ADVISOR. The Advisor shall indemnify and hold harmless the Company and the Operating Partnership from Losses, including reasonable attorneys’ fees to the extent that such Losses are not fully reimbursed by insurance and are incurred by reason of the Advisor’s bad faith, fraud, willful misfeasance, intentional misconduct, gross negligence or reckless disregard of its duties; provided , however , that the Advisor shall not be held responsible for any action of the Board in following or declining to follow any advice or recommendation given by the Advisor.

22.         NOTICES. Any notice, report or other communication (each a “ Notice ”) required or permitted to be given hereunder shall be in writing unless some other method of giving such Notice is required by the Articles of Incorporation, the By-laws, and shall be given by being delivered by hand, by courier or overnight carrier or by registered or certified mail to the addresses set forth below: