Form 8-K
8-K — OFFICE PROPERTIES INCOME TRUST
Accession: 0001104659-26-076652
Filed: 2026-06-23
Period: 2026-06-17
CIK: 0001456772
SIC: 6500 (REAL ESTATE)
Item: Entry into a Material Definitive Agreement
Item: Termination of a Material Definitive Agreement
Item: Bankruptcy or Receivership
Item: Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant
Item: Unregistered Sales of Equity Securities
Item: Material Modifications to Rights of Security Holders
Item: Changes in Control of Registrant
Item: Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers: Compensatory Arrangements of Certain Officers
Item: Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year
Item: Other Events
Item: Financial Statements and Exhibits
Documents
8-K — tm2618043d2_8k.htm (Primary)
EX-4.1 — EXHIBIT 4.1 (tm2618043d2_ex4-1.htm)
EX-4.2 — EXHIBIT 4.2 (tm2618043d2_ex4-2.htm)
EX-4.3 — EXHIBIT 4.3 (tm2618043d2_ex4-3.htm)
EX-8.1 — EXHIBIT 8.1 (tm2618043d2_ex8-1.htm)
EX-10.1 — EXHIBIT 10.1 (tm2618043d2_ex10-1.htm)
EX-10.2 — EXHIBIT 10.2 (tm2618043d2_ex10-2.htm)
EX-10.3 — EXHIBIT 10.3 (tm2618043d2_ex10-3.htm)
EX-10.4 — EXHIBIT 10.4 (tm2618043d2_ex10-4.htm)
EX-99.1 — EXHIBIT 99.1 (tm2618043d2_ex99-1.htm)
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant
to Section 13 OR 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
June 17, 2026
OFFICE PROPERTIES INCOME TRUST
(Exact name of registrant as specified in its charter)
Maryland
001-34364
26-4273474
(State or other jurisdiction of
incorporation)
(Commission File
Number)
(IRS Employer
Identification No.)
Two
Newton Place, 255
Washington Street, Suite
300
Newton,
Massachusetts
02458-1634
(Address of principal executive offices)
(Zip Code)
(617) 219-1440
(Registrant’s telephone number, including area code)
N/A
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing
is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ Written communications pursuant to Rule 425 under the Securities
Act (17 CFR 230.425)
¨ Soliciting material pursuant to Rule 14a-12 under the Exchange
Act (17 CFR 240.14a-12)
¨ Pre-commencement communications pursuant to Rule 14d-2(b) under
the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement communications pursuant to Rule 13e-4(c) under
the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Title of each class
Trading Symbol(s)
Name of each exchange on which registered
Common Shares of Beneficial Interest
OPI
The Nasdaq Stock Market LLC
Indicate by check mark whether the registrant is an emerging
growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities
Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company ¨
If an emerging
growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with
any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
In this Current Report on Form 8-K (this
“Current Report”), the terms the “Company,” “we,” “us,” and “our” refer
to Office Properties Income Trust.
Introductory Note
As previously reported, on
October 30, 2025, the Company and its debtor affiliates (collectively, the “Debtors”, and upon effectiveness
of the Plan (as defined below), the “Reorganized Debtors”) each commenced with the United States Bankruptcy
Court for the Southern District of Texas (the “Bankruptcy Court”) a voluntary case (collectively, the “Chapter
11 Cases”) under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”). The
Chapter 11 Cases were jointly administered under the caption In re Office Properties Income Trust, et al., Case No. 25-90530.
As previously reported, on
April 21, 2026, the Debtors filed the Fourth Amended Joint Chapter 11 Plan of Reorganization of Office Properties Income Trust
and Its Debtor Affiliates (as may be amended, modified, or supplemented in accordance with its terms, the “Plan”).
On April 22, 2026, the Bankruptcy Court entered the Order Confirming Fourth Amended Joint Chapter 11 Plan of Reorganization of
Office Properties Income Trust and Its Debtor Affiliates (the “Confirmation Order”), confirming the Plan.
A summary of the material terms of the Plan and related matters is contained in the Company’s Current Report on Form 8-K filed
with the Securities and Exchange Commission (the “SEC”) on April 28, 2026.
On June 17, 2026 (the
“Effective Date”), the Plan became effective and the Debtors emerged from chapter 11 protection. The following
is a summary of the material transactions consummated on or about the Effective Date in connection with the Plan. This summary is qualified
in its entirety by reference to the full text of the Plan, the Confirmation Order, and the other documents referenced herein and filed
as exhibits to this Current Report.
Item 1.01. Entry into a Material Definitive
Agreement.
2029 Secured Exit Notes
On the Effective Date, the
Company issued senior secured notes in an aggregate principal amount of $420 million (the “2029 Secured Exit Notes”)
pursuant to an indenture (the “2029 Secured Exit Notes Indenture”) by and among the Company, as issuer, certain
of the Company’s subsidiaries, as guarantors, and U.S. Bank Trust Company, National Association, as trustee and collateral agent.
The 2029 Secured Exit Notes bear interest at a rate of 10.000% per annum, payable semi-annually in arrears on March 31 and September 30
of each year, and mature on June 17, 2031. The 2029 Secured Exit Notes are secured by (a) first lien security interests in
the properties which secured our previously outstanding 9.000% Senior Secured Notes due September 2029 (the “Old September 2029
Senior Secured Notes”) on a first lien basis, our previously unencumbered properties and certain other properties, (b) second lien security
interests in the properties which secured the Old September 2029 Senior Secured Notes on a second lien basis, (c) first lien
security interests in the equity interests of the entities which secured the Old September 2029 Senior Secured Notes on a first
lien basis, certain entities that previously guaranteed our previously outstanding 8.000% senior priority guaranteed unsecured notes
due 2030 (the “Old 2030 Priority Guaranteed Notes”) and certain other subsidiaries of the Company that did not previously
secure or guarantee any debt obligations, and (d) second lien security interests in the equity interests of the entities which secured
the Old September 2029 Senior Secured Notes on a second lien basis. The 2029 Secured Exit Notes are guaranteed by (i) the Company’s
subsidiaries that own the properties and entities which secure the 2029 Secured Exit Notes, (ii) the Company's subsidiaries whose
equity interests secure the 2029 Secured Exit Notes, and (iii) certain other subsidiaries of the Company.
The 2029 Secured Exit Notes
were issued in exchange for allowed claims relating to the Old September 2029 Senior Secured Notes, pursuant to which holders of
such claims received their pro rata share of $300 million in 2029 Secured Exit Notes, plus their pro rata share of $120 million in additional
2029 Secured Exit Notes and $98 million of newly issued common shares of beneficial interest, $.01 par value per share, of the Company
(the “Reorganized Common Equity”), or a combination thereof.
The foregoing description
of the 2029 Secured Exit Notes and the 2029 Secured Exit Notes Indenture does not purport to be complete and is qualified in its entirety
by reference to the full text of the 2029 Secured Exit Notes Indenture, a copy of which is attached as Exhibit 4.1 to this Current
Report and is incorporated herein by reference.
New 2027 Senior Secured Notes
On the Effective Date,
Office Properties Income Intermediate Holdco II Trust (the “New 2027 SPV”), a newly formed
bankruptcy-remote special purpose vehicle and a direct, wholly owned subsidiary of Office Properties Income Intermediate Holdco I
Trust (the “New 2027 Holdco”), which is a direct, wholly owned subsidiary of the Company, issued new
senior secured notes in an aggregate principal amount of $385 million (which amount is intended to be reduced by required, deferred
principal payments of $50 million in the aggregate (the “Deferred Payments”)) pursuant to an indenture (the
“New 2027 Senior Secured Notes Indenture”) by and among the New 2027 SPV, as issuer, the Company, as
limited parent guarantor, the New 2027 Holdco and certain other subsidiaries of the Company, as guarantors, and UMB Bank, N.A., as
trustee and collateral agent, in accordance with the terms of the settlement with an ad hoc group of holders of the Company’s
previously outstanding 3.250% Senior Secured Notes due 2027 (the “Old 2027 Senior Secured Notes”). The New
2027 Senior Secured Notes bear interest at a rate of 8.375% per annum, payable quarterly in arrears on March 31, June 30,
September 30 and December 31 of each year, and mature on December 31, 2029.
The New 2027 Senior Secured
Notes are secured by first lien security interests in substantially the same collateral that previously secured the Old 2027 Senior Secured
Notes and certain capital improvement and reserve accounts. The New 2027 Senior Secured Notes are guaranteed by (i) the Company,
solely with respect to (1) the $50 million of Deferred Payments and (2) any funds removed from the New 2027 SPV in contravention
of that certain settlement among the Debtors, the ad hoc group of holders of the Old 2027 Senior Secured Notes and an ad hoc group of
holders of the Old September 2029 Senior Secured Notes, (ii) the New 2027 Holdco, and (iii) the Company’s subsidiaries
that own the properties securing the New 2027 Senior Secured Notes.
The New 2027 Senior Secured
Notes were issued in exchange for an aggregate amount equal to $385 million, plus accrued and unpaid interest, fees, costs, and other
charges comprising the allowed claims relating to the Old 2027 Senior Secured Notes.
The foregoing description
of the New 2027 Senior Secured Notes and the New 2027 Senior Secured Notes Indenture does not purport to be complete and is qualified
in its entirety by reference to the full text of the New 2027 Senior Secured Notes Indenture, a copy of which is attached as Exhibit 4.2
to this Current Report and is incorporated herein by reference.
Amended RMR Management Agreements
On the Effective Date,
the Company entered into (a) a Third Amended and Restated Business Management Agreement (the “Amended Business
Management Agreement”) and (b) a Third Amended and Restated Property Management Agreement (the
“Amended Property Management Agreement” and, together with the Amended Business Management Agreement, the
“Amended RMR Management Agreements”), each with The RMR Group LLC (“RMR”). The
initial term of each Amended RMR Management Agreement will be five years, and the Company will pay RMR (i) an annual fee under
the Amended Business Management Agreement of $14 million for the first two years, and (ii) a 3% property management fee and 5%
construction supervision fee under the Amended Property Management Agreement, consistent with the Company’s prior property
management agreement with RMR. In addition, the Amended Business Management Agreement provides for (i) the issuance to RMR of
common shares equal to 2% of the Reorganized Common Equity on the Effective Date (the “Initial Equity
Compensation”) and (ii) the issuance to RMR of common shares equal to up to 8% of the Reorganized Common Equity
upon the satisfaction of certain financial and/or performance metrics to be determined by the Company’s board of trustees. The
Amended RMR Property Management Agreement also contains certain customary major decisions requiring the approval of a majority of
the Company’s board of trustees.
The foregoing description
of the Amended RMR Management Agreements does not purport to be complete and is qualified in its entirety by reference to the full text
of the Amended RMR Management Agreements, copies of which are attached as Exhibits 10.1 and 10.2 to this Current Report and are incorporated
herein by reference.
Amendment to the Secured Credit Facility
On the Effective Date, the
Company and certain of the Reorganized Debtors entered into the Waiver and Amendment No. 1 to the Second Amended and Restated Credit
Agreement (the “Credit Agreement Amendment”), with the lenders party thereto, and Wilmington Savings Fund Society,
FSB, as administrative agent (the “Credit Agreement”). Pursuant to the Credit Agreement Amendment, (a) all
of the defaults under the Credit Agreement arising out of the Chapter 11 Cases and related matters were permanently waived, (b) interest payable on borrowings under the Credit Agreement is at a rate of the secured overnight financing rate plus a margin of 550
basis points prior to and including December 31, 2026 and 750 basis points from and after January 1, 2027, and (c) the
Credit Agreement was ratified and confirmed and remains in full force and effect. The Credit Agreement continues to consist of (a) a
$325 million secured revolving credit facility, all of which remains outstanding and (b) a $100 million secured term loan. The obligations
under the Credit Agreement continue to be secured by the same collateral as it was prior to the commencement of the Chapter 11 Cases.
The foregoing description
of the Credit Agreement Amendment does not purport to be complete and is qualified in its entirety by reference to the full text of the
Credit Agreement Amendment, a copy of which is attached as Exhibit 10.3 to this Current Report and is incorporated herein by reference.
Preemptive Rights Agreement
On the Effective Date, the
Company entered into a Preemptive Rights Agreement (the “Preemptive Rights Agreement”) with certain holders
of allowed claims in respect of the Company’s previously outstanding unsecured notes who received more than 1% of the Reorganized
Common Equity (the “Preemptive Rights Shareholders”). Pursuant to the Preemptive Rights Agreement, the Company
granted customary preemptive rights to the Preemptive Rights Shareholders with respect to (a) any issuance by the Company of equity
securities in an offering not registered under the Securities Act of 1933, as amended (the “Securities Act”),
or (b) any issuance of debt securities or other indebtedness to certain former holders of the Old September 2029 Senior Secured
Notes, subject to certain exceptions, for so long as such Preemptive Rights Shareholder continues to hold at least 1.0% of the outstanding
the Company’s outstanding common shares.
The foregoing description
of the Preemptive Rights Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the
Preemptive Rights Agreement, a copy of which is attached as Exhibit 10.4 to this Current Report and is incorporated herein by reference.
Item 1.02. Termination of a Material Definitive
Agreement.
DIP Credit Agreement
On the Effective Date, the
Amended and Restated Secured Debtor-in-Possession Term Loan Credit Agreement (the “DIP Credit Agreement”),
by and among the Company, as borrower, the guarantors party thereto, Acquiom Agency Services LLC, as administrative agent and collateral
agent (the “DIP Agent”), and the lenders from time to time party thereto (the “DIP Lenders”),
which provided for a $125 million secured debtor-in-possession term loan facility (the “DIP Facility”), was
terminated in connection with the Company’s emergence from chapter 11 protection.
On the Effective Date, the
claims by the DIP Lenders or the DIP Agent were allowed in an aggregate amount equal to the outstanding principal amount of the loans
under the DIP Facility, plus all accrued and unpaid interest, fees, costs, and other charges through the Effective Date. Claims of the
DIP Lenders (excluding claims related to DIP fees (“DIP Fee Claims”)) were satisfied through the issuance of
shares of Reorganized Common Equity (the “DIP Equity Distribution”) at a conversion price of $12.60 per share.
DIP Fee Claims (consisting of an anchor capital commitment fee, an exit fee and an upfront fee) were satisfied through (1) in respect
of the anchor capital commitment fee and exit fee, a distribution of Reorganized Common Equity at a conversion price of $20.00 per share,
and (2) in respect of the upfront fee, a distribution of Reorganized Common Equity at a conversion price of $12.60 per share.
All obligations under the
DIP Credit Agreement and the DIP Facility have been satisfied, discharged, and terminated in full as of the Effective Date.
Old Common Shares
On the Effective Date, by
operation of the Plan, all agreements, instruments, and other documents evidencing the Company’s common shares of beneficial interest,
$.01 par value per share (the “Old Common Shares”), issued and outstanding immediately prior to the Effective
Date, and any rights of any holder in respect thereof, were deemed cancelled, discharged and of no force or effect.
Senior Notes Indentures
On the Effective Date,
by operation of the Plan, all obligations under each of the Company’s previously outstanding (i) Old 2027 Senior Secured
Notes, (ii) Old September 2029 Senior Secured Notes, (iii) 2.650% senior unsecured notes due 2026, (iv) 2.400%
senior unsecured notes due 2027, (v) the Old 2030 Priority Guaranteed Notes, (vi) 3.450% senior unsecured notes due 2031 and
(vii) 6.375% senior unsecured notes due 2050 (collectively, the “Old Senior Notes”), in each case
under the indentures governing the Old Senior Notes with U.S. Bank, National Association or the successor trustee thereto, were
cancelled.
Item 1.03. Bankruptcy or Receivership.
The information set forth
in the Introductory Note and Items 1.01, 1.02, 3.02 and 3.03 of this Current Report is incorporated herein by reference.
Information regarding the
assets and liabilities of the Company as of the most recent practicable date prior to confirmation is included in the Company’s
Quarterly Report on Form 10-Q for the three months ended March 31, 2026, filed with the SEC on May 22, 2026, which is incorporated
herein by reference.
Item 2.03. Creation of a Direct Financial Obligation
or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information set forth
in Item 1.01 of this Current Report relating to the 2029 Secured Exit Notes and the New 2027 Senior Secured Notes is incorporated herein
by reference.
Item 3.02. Unregistered Sales of Equity Securities.
Reorganized Common Equity
On the Effective Date, all
previously issued and outstanding Old Common Shares were cancelled and the Company issued the Reorganized Common Equity pursuant to the
Plan as follows:
(a) to holders of the Old September 2029 Senior Secured Notes;
(b) to holders of DIP Claims;
(c) to holders of claims in respect of the Company’s previously outstanding senior unsecured notes;
(d) to holders of the Old 2030 Priority Guaranteed Notes;
(e) to RMR pursuant to the Amended Business Management Agreement; and
(f) to holders of claims in respect of the Company’s previously outstanding senior unsecured notes who to holders of claims in respect
of the Company’s previously outstanding senior unsecured notes who exercised their rights to acquire an aggregate amount of $35
million of Reorganized Common Equity.
The Reorganized Common Equity
was issued without registration under the Securities Act in reliance upon section 1145(a) of the Bankruptcy Code (and in the case
of (e) above, section 4(a)(2) of the Securities Act). Such shares may be resold without registration under the Securities Act
by the recipients thereof pursuant to the exemption provided by section 4(a)(1) of the Securities Act, unless the holder is an “underwriter”
as defined in section 1145(b) of the Bankruptcy Code or an “affiliate” of the Company as defined in Rule 144(a)(1) under
the Securities Act.
The aggregate number of shares
of Reorganized Common Equity issued on the Effective Date was 21,953,577.
New Warrants
On the Effective Date, the
Company issued warrants (the “New Warrants”) to holders of claims in respect of the Company’s previously
outstanding senior unsecured notes pursuant to a warrant agreement (the “New Warrants Agreement”). The New Warrants
are exercisable for an amount of common equity of the Company equal to 5.0% of the Reorganized Common Equity outstanding as of the Effective
Date (after taking into account the Reorganized Common Equity issued or issuable as a result of the Initial Equity Compensation or the
exercise of the New Warrants). The New Warrants have an exercise price of $25.00 per share and are exercisable within seven years from
the Effective Date.
The New Warrants and the
shares of Reorganized Common Equity issuable upon exercise thereof were issued without registration under the Securities Act in reliance
upon section 1145(a) of the Bankruptcy Code.
The foregoing description
of the New Warrants and the New Warrants Agreement does not purport to be complete and is qualified in its entirety by reference to the
full text of the New Warrants Agreement, a copy of which is attached as Exhibit 4.3 to this Current Report and is incorporated herein
by reference.
Item 3.03. Material Modification to Rights
of Security Holders.
Cancellation of Existing Equity Interests
On the Effective Date, pursuant
to the Plan, all Old Common Shares were cancelled, released, discharged, and extinguished and are of no further force or effect. The Company
had 73,943,439 Old Common Shares issued and outstanding as of October 30, 2025. Holders of Old Common Shares did not receive any
distribution on account of such interests and such interests have no value.
Cancellation of Old Senior Notes
The information set forth
in Items 1.02 of this Current Report with respect to the Senior Notes Indentures is incorporated herein by reference. On the Effective
Date, pursuant to the Plan, all agreements, instruments, notes, certificates, and other documents evidencing any Old Senior Notes were
deemed cancelled, discharged, and of no further force or effect.
Item 5.01. Changes in Control of Registrant.
The information set forth
in the Introductory Note and Items 1.03, 3.02, 3.03 and 5.02 of this Current Report is incorporated herein by reference.
Upon the effectiveness of
the Plan on the Effective Date, all Old Common Shares were cancelled. As a result of the transactions effected under the Plan, immediately
following the Effective Date, certain holders of the Old September 2029 Senior Secured Notes and DIP Claims hold approximately 67%
of the Reorganized Common Equity, accounting for dilution on account of the Initial Equity Compensation to RMR under the Amended Business
Management Agreement.
Item 5.02. Departure of Directors or Certain
Officers; Election of Directors; Appointment of Certain Officers.
Departure of Trustees
On the Effective Date, Yael
Duffy, Donna D. Fraiche, Barbara D. Gilmore, William A. Lamkin, Timothy R. Pohl, Adam D. Portnoy, Jeffrey P. Somers and Mark A. Talley
resigned as trustees of the Company. None of the trustees resigned as a result of any disagreement with the Company on any matter relating
to its operations, policies or practices.
Election of Trustees
Effective as of the
Effective Date, Jonathan Heller, Jonathan Kolatch, William A. Lamkin, Adam D. Portnoy and Irvin Schlussel (each, a “New
Trustee”) were elected as members of the board of trustees of the Company. William A. Lamkin and Adam D. Portnoy are
the only trustees that served on the board of trustees prior to emergence. Effective as of the Effective Date, the board of
trustees appointed: (i) Jonathan Kolatch, William A. Lamkin and Irvin Schlussel to serve on the Audit Committee;
(ii) Jonathan Kolatch and Irvin Schlussel to serve on the Compensation Committee; and (iii) Jonathan Kolatch and Irvin
Schlussel to serve on the Nominating and Governance Committee.
Mr. Heller is the founder
and the Chief Executive Officer of Helix Partners Management LP (“Helix Partners”), a multi-billion dollar,
opportunistic, credit-focused investment manager that invests flexibly across the capital structure. Prior to founding Helix Partners
in December 2022, during his tenure at Canyon Partners, Mr. Heller was Chairman of the Board of CBL & Associates Properties, Inc.
(NYSE: CBL), a real estate investment trust owning and operating shopping malls and other retail properties, where he led a successful
post-reorganization debt restructuring. At Canyon Partners, Mr. Heller was a Partner and Senior Portfolio Manager responsible for
the firm’s investments in companies across a wide range of industries, including financial institutions, technology, retail and
consumer. Mr. Heller also has significant experience in various asset classes, including stressed and distressed corporate debt,
equities, municipal fixed income, real estate securities, and structured products. Prior to joining Canyon Partners in 2008, Mr. Heller
was a Senior Vice President at Cerberus Capital Management, L.P. (“Cerberus”) from 2004 to 2008. Prior to Cerberus,
Mr. Heller founded a hedge fund of funds, Double Arrow Capital Management. Mr. Heller began his career in 1996 as an accountant
at PricewaterhouseCoopers. Mr. Heller is a graduate of Yeshiva University in New York City (B.S., Accounting) and is a Certified
Public Accountant.
Mr. Kolatch currently
runs his family office, Jasper Lake, LLC. Mr. Kolatch founded Redwood Capital Management, LLC (“Redwood”)
in 2000 after a long career at Goldman Sachs, and served as Chief Executive Officer and Chief Information Officer at Redwood until his
retirement in 2020. Redwood is a hedge fund specializing in stressed and distressed credit. Prior to founding Redwood, Mr. Kolatch
worked at Goldman Sachs from 1982 to 1999 and became a Partner in 1994. From 1997 to 1999, Mr. Kolatch was head of the Goldman Sachs’
Credit Arbitrage Group which was a proprietary trading group focusing on distressed securities, high yield bonds, leveraged loans, and
emerging market debt. Prior to that, Mr. Kolatch was head of the high yield trading desk and head of distressed bond trading from
1992 through 1996. From 1985 to 1992, he held various positions within the High Yield Group, including sales, trading, and head of Corporate
Bond Research. Mr. Kolatch graduated summa cum laude from Columbia College in 1978. He received an M.B.A. from Harvard Business School
in 1982.
Mr. Schlussel is the
Chief Investment Officer at a private family office, where he oversees asset allocation and direct investments, since April 2021.
Previously, from April 2016 to March 2021, he served as Managing Director of Inglesea Capital, the family office of the late
Andrew Fredman, former Managing Partner of Fir Tree Partners. At Inglesea Capital, he led all public and private investments, including
real estate and related opportunities. Mr. Schlussel currently serves as a board observer at Chicago Bridge & Iron. His
career has focused primarily on corporate reorganizations, distressed debt, and event-driven investment strategies. Earlier in his career,
he held finance roles as an analyst at UBS and Paloma Partners. Mr. Schlussel graduated with honors from the Wharton School of the
University of Pennsylvania in 2003, earning a Bachelor of Science in Economics with a concentration in finance.
Mr. Lamkin is an Independent
Trustee on the Board of Trustees of Seven Hills Realty Trust. He previously served on the Board of Trustees of Tremont Mortgage Trust
from 2020 until it merged with Seven Hills Realty Trust in September 2021, and on the Board of Trustees of Select Income REIT from
2012 until it merged with a wholly owned subsidiary of the Company in December 2018. From 2003 to 2019, Mr. Lamkin was a Partner
in Ackrell Capital LLC, a San Francisco based investment bank, and served on the board of Ackrell SPAC Partners I Co. from 2020 to 2022.
Prior to 2003, he worked as a financial consultant and an investment banker, including serving as a Senior Vice President in the investment
banking division of ABN AMRO. Before entering the financial services industry, Mr. Lamkin was a practicing attorney. Mr. Lamkin
brings to the Company’s board of trustees extensive experience in, and knowledge of, the commercial real estate and investment banking
industries, with demonstrated management ability and experience in capital raising and strategic business transactions. Mr. Lamkin
has professional training, skills, and expertise in finance and legal matters.
Mr. Portnoy is the Chair
of the Board of Directors, a Managing Director, and the President and Chief Executive Officer of The RMR Group Inc. (“RMR
Inc.”), the President and Chief Executive Officer of RMR, and the sole trustee, an officer, and the controlling shareholder
of ABP Trust, which is the controlling shareholder of RMR Inc. As of the date hereof, he also serves as the Chair of the Board of Trustees
and a Managing Trustee of each of the following companies managed by RMR: Diversified Healthcare Trust, Industrial Logistics Properties
Trust, Service Properties Trust, and Seven Hills Realty Trust, and he is the sole director of AlerisLife Inc., Sonesta International Hotels
Corporation, and Tremont Realty Capital LLC, an SEC registered investment adviser. Prior to joining RMR in 2003, Mr. Portnoy held
various positions in the finance industry and public sector, including working as a banker at Donaldson, Lufkin & Jenrette and
ABN AMRO, working in private equity at the International Finance Corporation (a member of The World Bank Group) and DLJ Merchant Banking
Partners, and serving as Chief Executive Officer of a telecommunications company. Mr. Portnoy currently serves as Chair of the Board
of Directors of the Pioneer Institute, as a member of the executive committee of the Board of Directors of the Greater Boston Chamber
of Commerce, as Co-Chair of the Board of Directors of the Massachusetts Opportunity Alliance, Inc., as a member of the Board of Directors
of the Massachusetts High Technology Council, Inc., and as the Honorary Consul General of the Republic of Bulgaria to the Commonwealth
of Massachusetts. Mr. Portnoy graduated with a Bachelor’s degree in Public Policy from Occidental College in 1993.
For their services as trustees
of the Company, each New Trustee will be entitled to an annual cash compensation of $120,000. Pursuant to
our Amended Bylaws (as defined in Item 5.03), Mr. Portnoy was designated as the Manager Trustee, Mr. Heller was designated as
a Helix Partners Trustee, Mr. Kolatch was designed as a Redwood Capital Trustee and Mr. Schlussel was designated as the Unsecured
Creditor Trustee (as such terms are defined in Item 5.03). Except as provided in the preceding sentence, there is no arrangement or understanding
between each New Trustee and any other person pursuant to which such New Trustee was selected as a trustee of the Company.
As discussed above, Mr. Portnoy
is the sole trustee, an officer and the controlling shareholder of ABP Trust, which is the controlling shareholder of RMR Inc., the chair
of the board of directors, a managing director and the president and chief executive officer of RMR Inc. and an officer and employee of
RMR, the Company’s business and property manager. Except as provided in the preceding sentence, there are no transactions, relationships
or agreements between each New Trustee and the Company that would require disclosure pursuant to Item 404(a) of Regulation S-K promulgated
under the Securities Exchange Act of 1934, as amended. None of the New Trustees has a family relationship with any member of the board
of trustees or executive officer of the Company.
In connection with their election as trustees,
we entered into an indemnification agreement with each New Trustee, which agreement is on substantially the same terms as the indemnification
agreements we have entered with our prior trustees and our executive officers. We have previously filed a form of indemnification agreement
as Exhibit 10.1 to our Quarterly Report on Form 10-Q for the quarter ended September 30, 2025, which form is incorporated
herein by reference.
The officers of the Company
immediately before the Effective Date continue to serve as the officers of the Company as of the Effective Date.
Item 5.03. Amendments to Articles of Incorporation
or Bylaws.
On the Effective Date, pursuant
to the Plan, the Company amended and restated its Declaration of Trust (the “Amended Charter”) and Bylaws (the
“Amended Bylaws”). The Amended Charter and Amended Bylaws are similar in all material respects to the Company’s
prior declaration of trust and bylaws, with the following material changes:
Removal of Trustees.
The Amended Charter now provides that a trustee may be removed at any time with or without cause by the affirmative vote of the holders
of not less than two-thirds of the shares then outstanding and entitled to vote and that no Trustee may be removed by the board of trustees
without cause before June 17, 2027.
Corporate Opportunities.
The Amended Charter includes a new provision to the effect that neither the shareholders of the Company or any of their Related Persons
or Related Funds, nor any Non-Employee Trustee of the Company or his or her Related Persons (each as defined in the Amended Charter),
shall have any duty to refrain from (x) engaging in a corporate opportunity in the same or similar business activities or lines of
business as the Company or any of its Related Persons is engaged or proposes to engage, (y) making investments in any kind of property
in which the Company makes or may make investments or (z) otherwise competing with the Company or any of its Related Persons, and
provides that, to the fullest extent permitted by the Maryland law, no such person shall (A) be deemed to have acted in bad faith
or in a manner inconsistent with the best interests of the Company or its shareholders or to have acted in a manner inconsistent with
or opposed to any fiduciary duty to the Company or its shareholders or (B) be liable to the Company or its shareholders for breach
of any fiduciary duty, in each case, by reason of any such activities. The Amended Charter further provides that, to the fullest extent
permitted by law, any person purchasing or otherwise acquiring any interest in shares of the Company shall be deemed to have notice of
and to have consented to these provisions.
Amendments. The Amended
Charter now provides that any amendment thereto shall be (a) adopted by a majority of the trustees then in office and (b) approved
by the affirmative vote of not less than a majority of the shares then outstanding and entitled to vote thereon. The Amended Bylaws further
provide that, except as otherwise provided therein, an amendment thereto (a) shall be adopted by a resolution of a majority of the
trustees then in office, or (b) shall be approved by the affirmative vote of the holders of not less than a majority of the shares
then outstanding and entitled to vote thereon for all provisions. From the effective date of the Amended Bylaws until the Company’s
annual meeting of shareholders in 2028, any amendment to the provisions thereof governing the selection of trustees, the transfer restrictions
and amendments to the Amended Bylaws shall only be adopted by a majority of the trustees then in office (including, in the case of an
amendment to the provisions governing the selection of trustees, the affirmative vote of (w) a majority of the trustees appointed
by Helix Partners, if such amendment would reasonably be expected to result in the removal from office of, or otherwise adversely affect
the rights or protections of, one or more of the trustees appointed by Helix Partners, (x) all of the trustees appointed by Redwood,
if such amendment would reasonably be expected to result in the removal from office of, or otherwise adversely affect the rights or protections
of, one or more of the trustees appointed by Redwood, and (y) the Manager Trustee (as defined below), if such amendment would reasonably
be expected to result in the removal from office of, or otherwise adversely affect the rights or protections of, the Manager Trustee.
Special Meetings.
The Amended Bylaws now provide that special meetings of shareholders may be called by shareholders holding greater than 50% of the votes
entitled to be cast at such meeting.
Shareholder Actions by
Written Consent. The Amended Bylaws now provide that shareholders may take any action by unanimous written consent without a meeting.
Number of Trustees and
Board Composition. The Amended Bylaws provide that the number of trustees shall be up to seven until increased or decreased by the
board of trustees. From the effective date of the Amended Bylaws, the board of trustees will include: (i) up to three trustees initially
designated for appointment by Helix Partners, with such designation right consisting of (a) up to three trustees so long as Helix
Partners and its affiliates beneficially own 15% or more of the Company’s outstanding common shares, (b) up to two trustees
so long as Helix Partners and its affiliates beneficially own 10% or more of the Company’s outstanding common shares, and (c) up
to one trustee so long as Helix Partners and its affiliates beneficially own 5% or more of the Company’s outstanding common shares
(each, a “Helix Partners Trustee”); (ii) up to two trustees who are initially designated for appointment
by Redwood, with such designation right consisting of (a) up to two trustees so long as Redwood and its affiliates beneficially own
10% or more of the Company’s outstanding common shares and (b) up to one trustee so long as Redwood and its affiliates beneficially
own 5% or more of the Company’s outstanding common shares (each a “Redwood Capital Trustee”); (iii) until
the Company annual meeting of shareholders in 2028, provided that Amended Business Management Agreement remains in effect, one trustee
that is an employee, officer or director of RMR (the “Manager Trustee”) and (iv) until the one-year anniversary
of the Effective Date, one trustee initially designated for appointment by the Official Committee of Unsecured Creditors (the “Unsecured
Creditor Trustee”). Upon the designation and election by the board of trustees of each of the seven members of the board
of trustees pursuant to the preceding sentence, any trustee that is not a Helix Partners Trustee, a Redwood Capital Trustee, the Manager
Trustee or the Unsecured Creditor Trustee shall immediately resign from office. The Manager Trustee shall resign from the board of trustees
if the Amended Business Management Agreement is terminated, if the Manager Trustee becomes a director or officer of another publicly traded
office properties real estate investment trust or if for any other reason the Manager Trustee ceases to satisfy the conditions to qualification
for nomination under the Amended Bylaws, and thereafter RMR shall not have any right to appoint a replacement trustee.
For more information
regarding the Amended Charter and the Amended Bylaws, see the Company’s Registration Statement on Form 8-A filed with the
SEC on June 17, 2026.
Item 8.01. Other Matters.
The Company is filing as Exhibit 99.1
(which is incorporated by reference herein) a description of the material United States federal income tax considerations relating to
the Company’s qualification and taxation as a real estate investment trust for United States federal income tax purposes and the
acquisition, ownership and disposition of the Company’s Reorganized Common Equity. This description contained in Exhibit 99.1
replaces and supersedes prior descriptions of the federal income tax treatment of the Company and its shareholders to the extent they
are inconsistent with the description contained in this Current Report and any reference to a prior description shall be deemed to be
a reference to this description.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
Exhibit No.
Description of Exhibit
3.1 Articles of Amendment and Restatement of Office Properties Income Trust, dated June 17, 2026. (Incorporated by reference to
the Company’s Registration Statement on Form 8-A filed on June 17, 2026, File No. 001-34364.)
3.2 Fourth Amended and Restated Bylaws of Office Properties Income Trust, adopted June 17, 2026. (Incorporated by reference to the
Company’s Registration Statement on Form 8-A filed on June 17, 2026, File No. 001-34364.)
4.1 Indenture, dated as of June 17, 2026, among Office Properties Income Trust, certain subsidiary guarantors
party thereto, and U.S. Bank Trust Company, National Association, as trustee and collateral agent, relating to the 10.000% Senior Secured
Notes due 2031. (Filed herewith.)
4.2 Indenture, dated as of June 17, 2026, among Office Properties Income Intermediate Holdco II Trust,
Office Properties Income Trust, Office Properties Income Intermediate Holdco I Trust, certain subsidiary guarantors party thereto, and
UMB Bank, N.A., as trustee and collateral agent, relating to the 8.375% Senior Secured Limited OPI Guaranteed Notes due 2029. (Filed herewith.)
4.3 Warrant Agreement, dated as of June 17, 2026, between Office Properties Income Trust and CSC Delaware
Trust Company, as warrant agent (including forms of Warrant). (Filed herewith.)
8.1 Opinion of Sullivan & Worcester LLP as to certain tax matters. (Filed herewith.)
10.1 Third Amended and Restated Business Management Agreement, dated as of June 17, 2026, between Office
Properties Income Trust and The RMR Group LLC. (Filed herewith.)
10.2 Third Amended and Restated Property Management Agreement, dated as of June 17, 2026, between Office
Properties Income Trust and The RMR Group LLC. (Filed herewith.)
10.3 Waiver and Amendment No. 1 to the Second Amended and Restated Credit Agreement, dated as of June 17,
2026, among OPI WF Borrower LLC, Office Properties Income Trust, OPI WF Holding LLC, the lenders party thereto, and Wilmington Savings
Fund Society, FSB, as administrative agent. (Filed herewith.)
10.4 Preemptive Rights Agreement, dated as of June 17, 2026, by and among Office Properties Income Trust
and certain of its shareholders. (Filed herewith.)
23.1 Consent of Sullivan & Worcester LLP (contained in Exhibit 8.1).
99.1 Material United States Federal Income Tax Considerations. (Filed herewith.)
104 Cover Page Interactive Data File (embedded within the Inline XBRL document)
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
OFFICE PROPERTIES INCOME TRUST
By:
/s/
Brian E. Donley
Name:
Title:
Brian E. Donley
Chief Financial Officer and Treasurer
Dated: June 23, 2026
EX-4.1 — EXHIBIT 4.1
EX-4.1
Filename: tm2618043d2_ex4-1.htm · Sequence: 2
Exhibit 4.1
Execution Version
OFFICE PROPERTIES INCOME TRUST
THE SUBSIDIARY GUARANTORS NAMED HEREIN
and
U.S. Bank Trust Company, National Association,
as Trustee and Collateral Agent
Dated as of June 17, 2026
$420,000,000 10.000% Senior Secured Notes due 2031
TABLE OF CONTENTS
Page
ARTICLE One
Definitions and Other Provisions of General Application
1
Section 1.01.
Definitions
1
Section 1.02.
Officer’s Certificates and Opinions
21
Section 1.03.
Form of Documents Delivered to Trustee
22
Section 1.04.
Acts of Holders; Record Dates
22
Section 1.05.
Notices, Etc., to Trustee and Company
24
Section 1.06.
Notice to Holders; Waiver
24
Section 1.07.
Trust Indenture Act
25
Section 1.08.
Effect of Headings and Table of Contents
25
Section 1.09.
Successors and Assigns
25
Section 1.10.
Separability Clause
25
Section 1.11.
Benefits of Indenture
25
Section 1.12.
Governing Law and Jurisdiction
25
Section 1.13.
Legal Holidays
26
Section 1.14.
Language of Notices, Etc.
26
Section 1.15.
No Personal Liability
26
Section 1.16.
Notices
26
Section 1.17.
Counterparts
27
Section 1.18.
Waiver of Jury Trial
27
ARTICLE Two
INTEREST RATE; INTEREST PAYMENTS
28
Section 2.01.
Interest Rate; Interest Payments
28
ARTICLE Three
The Notes
28
Section 3.01.
Form and Dating
28
Section 3.02.
Denominations
28
Section 3.03.
Execution, Authentication, Delivery and Dating
29
Section 3.04.
Temporary Notes
29
Section 3.05.
Registration, Registration of Transfer and Exchange
30
Section 3.06.
Mutilated, Destroyed, Lost and Stolen Notes
31
Section 3.07.
Payment of Interest; Interest Rights Preserved
31
Section 3.08.
Persons Deemed Owners
33
Section 3.09.
Cancellation
33
Section 3.10.
Currency
33
Section 3.11.
ISIN/CUSIP Numbers
33
Section 3.12.
Amount
33
ARTICLE Four
Satisfaction and Discharge
34
Section 4.01.
Satisfaction and Discharge of Indenture
34
Section 4.02.
Application of Trust Money and Government Obligations
35
ARTICLE Five
Remedies
35
Section 5.01.
Events of Default
35
Section 5.02.
Acceleration of Maturity; Rescission and Annulment
37
Section 5.03.
Collection of Indebtedness and Suits for Enforcement by Trustee
38
Section 5.04.
Trustee May File Proofs of Claim
39
Section 5.05.
Trustee May Enforce Claims Without Possession of Notes
39
Section 5.06.
Application of Money Collected
39
Section 5.07.
Limitation on Suits
40
Section 5.08.
Unconditional Right of Holders to Receive Payment
40
Section 5.09.
Restoration of Rights and Remedies
41
Section 5.10.
Rights and Remedies Cumulative
41
Section 5.11.
Delay or Omission Not Waiver
41
Section 5.12.
Control by Holders
41
Section 5.13.
Waiver of Past Defaults
42
Section 5.14.
Undertaking for Costs
42
Section 5.15.
Waiver of Usury, Stay or Extension Laws
42
ARTICLE Six
The Trustee
42
Section 6.01.
Certain Duties and Responsibilities
42
Section 6.02.
Notice of Defaults
43
Section 6.03.
Certain Rights of Trustee
43
Section 6.04.
Not Responsible for Recitals or Issuance of Notes
46
Section 6.05.
May Hold Notes
46
Section 6.06.
Money Held in Trust
46
Section 6.07.
Compensation and Reimbursement
46
Section 6.08.
Conflicting Interests
47
Section 6.09.
Corporate Trustee Required; Eligibility
47
Section 6.10.
Resignation and Removal; Appointment of Successor
47
Section 6.11.
Acceptance of Appointment by Successor
49
Section 6.12.
Merger, Conversion, Consolidation or Succession to Business
49
Section 6.13.
[Reserved]
50
Section 6.14.
Appointment of Authenticating Agent
50
Section 6.15.
Rules by Trustee
52
ARTICLE Seven
Holders’ Lists and Reports by Trustee and Company
52
Section 7.01.
Company to Furnish Trustee Names and Addresses of Holders
52
Section 7.02.
Preservation of Information
52
ARTICLE Eight
Consolidation, Merger, Conveyance, Transfer or Lease
52
Section 8.01.
Company May Consolidate, Etc., Only on Certain Terms
52
Section 8.02.
Subsidiary Guarantor May Consolidate, Etc., Only on Certain Terms; Successor Substituted
53
ARTICLE Nine
AMENDMENT, SUPPLEMENT AND WAIVER
54
Section 9.01.
Without Consent of Holders
54
Section 9.02.
With Consent of Holders
56
Section 9.03.
Execution of Supplemental Indentures
57
Section 9.04.
Effect of Supplemental Indentures
57
Section 9.05.
Reference in Notes to Supplemental Indentures
57
ARTICLE Ten
Covenants
57
Section 10.01.
Payment of Principal, Premium and Interest
57
Section 10.02.
Maintenance of Office or Agency
57
Section 10.03.
Money for Notes Payments to Be Held in Trust
58
Section 10.04.
Statement by Officers as to Default
59
Section 10.05.
Existence
59
Section 10.06.
[Reserved]
59
Section 10.07.
Limitations on Incurrence of Debt and Issuance of Preferred Stock
59
Section 10.08.
[Reserved]
62
Section 10.09.
Limitations on Liens
62
Section 10.10.
Provision of Financial Information
62
Section 10.11.
Limitation on Collateral Asset Sales; Event of Loss
63
Section 10.12.
Post-Closing Mortgages
66
ARTICLE Eleven
Redemption of Notes
67
Section 11.01.
Redemption at the Option of the Company
67
Section 11.02.
Election to Redeem; Notice to Trustee
67
Section 11.03.
Mandatory Redemption
67
Section 11.04.
Selection by Trustee of Notes to Be Redeemed
67
Section 11.05.
Notice of Redemption
68
Section 11.06.
Deposit of Redemption Price
69
Section 11.07.
Notes Payable on Redemption Date
69
Section 11.08.
Notes Redeemed in Part
69
ARTICLE Twelve
SUBSIDIARY GUARANTEES
70
Section 12.01.
Subsidiary Guarantee
70
Section 12.02.
Limitation on Subsidiary Guarantor Liability
71
Section 12.03.
Execution and Delivery of Subsidiary Guarantee
71
Section 12.04.
Release of a Subsidiary Guarantor
72
Section 12.05.
Benefits Acknowledged
73
Section 12.06.
Waiver of Subrogation
73
Section 12.07.
Same Currency; No Set Off
73
Section 12.08.
Guarantee Obligations Continuing
74
Section 12.09.
No Merger or Waiver; Cumulative Remedies
74
Section 12.10.
Dealing with the Company and Others
74
Section 12.11.
Enforcement; Expenses
75
ARTICLE Thirteen
Defeasance and Covenant Defeasance
75
Section 13.01.
Company’s Option to Effect Defeasance or Covenant Defeasance
75
Section 13.02.
Defeasance and Discharge
75
Section 13.03.
Covenant Defeasance
76
Section 13.04.
Conditions to Defeasance or Covenant Defeasance
76
Section 13.05.
Deposited Money and Government Obligations to Be Held in Trust; Miscellaneous Provisions
78
Section 13.06.
Reinstatement
78
ARTICLE Fourteen
COLLATERAL AND SECURITY
79
Section 14.01.
The Collateral Agent
79
Section 14.02.
Acceptance of Security Documents and Intercreditor Agreements
85
Section 14.03.
Further Assurances
86
Section 14.04.
Release of Liens
86
Section 14.05.
Compensation and Indemnification
88
Section 14.06.
Intercreditor Agreements
88
Appendix
Appendix A – Provisions Relating to the Notes
Exhibits
Exhibit A – Form of Note
Exhibit B – Form of Transferee Letter of Representation
Exhibit C – Form of Supplemental Indenture
Exhibit D – Forms of Mortgage
Schedules
Schedule A – First Lien Collateral Properties
Schedule B – Credit Facility Properties
INDENTURE,
dated as of June 17, 2026, among Office Properties Income Trust, a real estate investment trust organized and existing under the
laws of the State of Maryland (the “Company”) having its principal office at Two Newton Place, 255 Washington Street,
Suite 300, Newton, Massachusetts 02458, the other entities (other than the Trustee (as defined below)) listed on the signature pages hereto
(the “Initial Subsidiary Guarantors”) and U.S. Bank Trust Company, National Association, a national banking organization
organized and existing under the laws of the United States, as Trustee (in such role, the “Trustee”) and Collateral
Agent (in such role, “Collateral Agent”).
RECITALS
WHEREAS,
the Company has duly authorized the creation and issuance of $420,000,000 aggregate principal amount of 10.000% Senior Secured Notes due
2031; and
WHEREAS,
the Company and the Initial Subsidiary Guarantors have duly authorized the execution and delivery of this Indenture (as defined herein).
NOW,
THEREFORE, THIS INDENTURE WITNESSETH for and in consideration of the premises and the purchase of the Notes by the Holders
thereof, it is mutually agreed, for the equal and proportionate benefit of all Holders of the Notes, as follows:
ARTICLE One
Definitions
and Other Provisions of General Application
Section 1.01. Definitions
For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
(a) the
terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
(b) [Reserved];
(c) all
accounting terms not otherwise defined herein have the meanings assigned to them in accordance with United States generally accepted accounting
principles;
(d) unless
otherwise specifically set forth herein, all calculations or determinations of a Person shall be performed or made on a consolidated basis
in accordance with generally accepted accounting principles;
(e) unless
the context otherwise requires, any reference to an “Article” or a “Section” refers to an Article or a Section,
as the case may be, of this Indenture; and
(f) the
words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Indenture
as a whole and not to any particular Article, Section or other subdivision.
“Acceptable Junior
Intercreditor Agreement” means a senior priority/junior priority intercreditor agreement with (together with other relevant
Persons) the lender(s) (or any collateral agent and/or other authorized representative with respect thereto) with respect to any
Debt which is by its terms secured by Permitted Junior Liens, which intercreditor agreement shall provide for the subordination of such
Permitted Junior Liens to the Liens securing the Notes and the related Guarantees on terms that are substantially similar to the provisions
of the Credit Facility First Lien/Second Lien Intercreditor Agreement (except with the Notes and the related Guarantees treated as the
senior Debt) and otherwise reasonably customary for intercreditor arrangements of such type (as determined in good faith by the Company).
“Acceptable Pari
Passu Intercreditor Agreement” means a pari passu intercreditor agreement with (together with other relevant Persons) the lender(s) (or
any collateral agent and/or other authorized representative with respect thereto) with respect to any Debt which is by its terms secured
by Permitted Pari Passu Liens, which intercreditor agreement shall provide for the equal ranking of such Permitted Pari Passu Liens to
the Liens securing the Notes and the related Guarantees on terms that are reasonably customary for intercreditor arrangements of such
type (as determined in good faith by the Company).
“Acceptable Senior
Intercreditor Agreement” means a senior priority/junior priority intercreditor agreement with (together with other relevant
Persons) the lender(s) (or any collateral agent and/or other authorized representative with respect thereto) with respect to any
Credit Facility, which intercreditor agreement shall (i) provide for the subordination of the Liens securing the Notes and the related
Guarantees on some or all of the Second Lien Collateral to the Liens securing such Credit Facility and (ii) grant to the holders
of the Notes and the related Guarantees only a residual interest in any remaining value of such Second Lien Collateral following repayment
in full of all obligations and the termination of all commitments under such Credit Facility, in each case on terms that are substantially
similar to the terms of the Credit Facility First Lien/Second Lien Intercreditor Agreement and otherwise reasonably customary for intercreditor
arrangements of such type (as determined in good faith by the Company).
“Acquired Debt”
means Debt of a Person (i) existing at the time such Person becomes a Subsidiary or (ii) assumed in connection with the acquisition
of assets from such Person, in each case, other than Debt incurred in connection with, or in contemplation of, such Person becoming a
Subsidiary or such acquisition. Acquired Debt is deemed to be incurred on the date of the related acquisition of assets from any Person
or the date the acquired Person becomes a Subsidiary.
“Act,”
when used with respect to any Holder, has the meaning specified in Section 1.04.
“Adjusted Total Assets”
has the meaning provided in Section 10.07(a).
“Affiliate”
of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified
Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative
to the foregoing.
2
“Affiliated Debt
Fund” means any Affiliate of a Permitted Holder that that is primarily engaged in, or advises funds or other investment vehicles
that are engaged in, making, purchasing, holding or otherwise investing in commercial loans, notes, bonds and similar extensions of credit
or securities in the ordinary course, so long as (i) any such Affiliated Lender is managed as to day-to-day matters (but excluding,
for the avoidance of doubt, as to strategic direction and similar matters) independently from such Permitted Holder, as applicable, and
any Affiliate of such Permitted Holder, as applicable, that is not primarily engaged in the investing activities described above, (ii) any
such Affiliate has in place customary information screens between it and such Permitted Holder, as applicable, and any Affiliate of such
Permitted Holder, as applicable, that is not primarily engaged in the investing activities described above, and (iii) none of the
Company or any of its Subsidiaries directs or causes the direction of the investment policies of such entity.
“Annual Debt Service”
as of any date means the maximum amount which is expensed in any 12-month period for interest on Debt of the Company and its Subsidiaries,
excluding amortization of debt discounts and deferred financing costs.
“Authenticating Agent”
means any Person authorized by the Trustee pursuant to Section 6.14 to act on behalf of the Trustee to authenticate the Notes.
“Authorized Newspaper”
means a newspaper, in the English language or in an official language of the country of publication, customarily published on each Business
Day, whether or not published on Saturdays, Sundays or holidays, and of general circulation in each place in connection with which the
term is used or in the financial community of each such place. Where successive publications are required to be made in Authorized Newspapers,
the successive publications may be made in the same or in different newspapers in the same city meeting the foregoing requirements and
in each case on any Business Day.
“Bankruptcy Law”
means Title 11, United States Bankruptcy Code of 1978, as amended, or any similar United States federal or state law relating to bankruptcy,
insolvency, receivership, winding-up, liquidation, reorganization or relief of debtors or any amendment to, succession to or change in
any such law.
“Board”
means either the board of trustees of the Company or any duly authorized committee of that board.
“Board Resolution”
means a copy of a resolution certified by a Secretary or Assistant Secretary of the Company to have been duly adopted by the Board and
to be in full force and effect on the date of such certification, and delivered to the Trustee.
“Business Day,”
when used with respect to any Place of Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions or trust companies in that Place of Payment are authorized or obligated by law or executive order to close.
“Capital Stock”
means, with respect to any Person, any capital stock (including preferred stock), shares, interests, participation or other ownership
interests (however designated, whether voting or non-voting) of such Person and any rights (other than debt securities convertible into
or exchangeable for capital stock), warrants or options to purchase any thereof.
3
“Cash Equivalents”
means:
(1) U.S.
dollars;
(2) securities
issued or directly and fully and unconditionally guaranteed or insured by the United States of America or any agency or instrumentality
thereof;
(3) certificates
of deposit, time deposits and eurodollar time deposits with maturities of one year or less from the date of acquisition, demand deposits,
bankers’ acceptances with maturities not exceeding one year and overnight bank deposits, in each case with any commercial bank having
capital and surplus of not less than $100.0 million;
(4) commercial
paper or other obligation rated, at time of purchase, at least “P-2” (or its equivalent) or better by Moody’s or “A-2”
(or its equivalent) or better by S&P;
(5) marketable
short-term money market and similar securities having a rating of at least “P-2” (or its equivalent) or better by Moody’s
or “A-2” (or its equivalent) or better by S&P;
(6) securities
issued or directly and fully and unconditionally guaranteed by any state, commonwealth or territory of the United States or any political
subdivision or taxing authority of any such state, commonwealth or territory or any public instrumentality thereof rated, at time of purchase,
at least “Baa3” (or the equivalent) by Moody’s, “BBB-” (or the equivalent) by S&P;
(7) repurchase
obligations for underlying securities of the types described in clauses (2), (3) or (6) entered into with any financial institution
meeting the qualifications specified in clause (3) above;
(8) Investments
with average maturities of 24 months or less from the date of acquisition in money market funds rated, at time of purchase, “AAA-”
(or the equivalent thereof) or better by S&P or “Aaa3” (or the equivalent thereof) or better by Moody’s; and
(9) investment
funds investing 90% of their assets in securities of the types described in clauses (1) through (8) above.
“CMBS Assets”
means any Property or any accounts receivable, revenue stream and other similar rights to payment with respect to such Property and any
other assets related thereto as well as any other assets and property to the extent capable of being included in securitization transactions
of the relevant type (as reasonably determined by the Company, which determination shall be conclusive) subject to a CMBS Facility that
are customarily sold or pledged in connection with mortgage-back securitization transactions and the proceeds thereof.
“CMBS Facility”
means any of one or more mortgage-back securitization financing facilities as amended, supplemented, modified, extended, renewed, restated
or refunded from time to time, the obligations of which are non-recourse (except for customary representations, warranties, covenants
and indemnities made in connection with such facilities) to the Company or any of its Subsidiaries (other than a CMBS Subsidiary), pursuant
to which a CMBS Subsidiary sells or grants a security interest in CMBS Assets that are customarily sold or pledged in connection with
mortgage-back securitization transactions to either.
4
“CMBS Subsidiary”
means any Subsidiary that solely engages only in one or more CMBS Facilities and other activities reasonably related or incidental thereto.
“Collateral”
means all of the Collateral Property and the Pledged Collateral, in each case, pledged as collateral to secure the Notes Obligations pursuant
to the terms of the Security Documents.
“Collateral
Asset Sale” means the sale, lease, conveyance, transfer, investment or other disposition (including any net lease or
sale-leaseback of an entire real property (including the improvements thereon)) of any assets constituting Collateral; but expressly excluding
the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company and the Subsidiary Guarantors
taken as a whole (which is governed by Section 8.01).
Notwithstanding the preceding provisions, none
of the following will be deemed to be a Collateral Asset Sale:
(i) a
sale, lease, conveyance or other disposition of assets constituting Collateral between or among (x) the Company or any Subsidiary
Guarantor and any other Subsidiary Guarantor or the Company, and (y) the Company or any Subsidiary Guarantor and any other Subsidiary
or entity; provided that any such sale, lease, conveyance or other disposition is made subject to any Mortgage securing such Collateral
and in the case of this clause (y), concurrently with such sale, lease, conveyance or other disposition, such Subsidiary or entity becomes
a Subsidiary Guarantor and expressly assumes all obligations as a Subsidiary Guarantor under the Note Documents pursuant to a supplemental
indenture or other documents or instruments in a form reasonably satisfactory to the Trustee;
(ii) any
transfer, assignment or other disposition deemed to occur in connection with the creation or granting of Liens not prohibited by Section 10.09;
(iii) sales,
leases, conveyances or other dispositions of property or assets constituting Collateral subject to foreclosure proceedings, an Event of
Loss or a surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind
with respect to the Collateral;
(iv) leasing,
subleasing, licensing, or sublicensing assets and easements in the ordinary course of business;
(v) dispositions
and/or termination of leases, subleases, licenses or sublicenses;
(vi) expirations
of any option agreement in respect of real or personal property;
(vii) any
lease, sublease, license, sublicense, easement, space lease, right to use or occupy, or other right to operate or conduct business or
any other similar arrangement of any kind in the ordinary course of business (including, for the avoidance of doubt, the amendment or
recast of any of the foregoing in effect on the Issue Date);
(viii) any
disposition or series of related dispositions of personal (but, for the avoidance of doubt, not real) property in the ordinary course
of business consistent with past practice for aggregate consideration in any single transaction or series of related transactions of not
greater than $500,000;
5
(ix) the
abandonment or other disposition of any patent, trademark or other intellectual property or application that is, in the good faith determination
of the Company, no longer economically reasonable to maintain or useful in the conduct of the business of the Company and its Subsidiaries,
taken as a whole;
(x) any
license, sublicense or other grant of rights in or to any trademark, copyright, patent or other intellectual property; and
(xi) any
disposition of CMBS Assets in connection with any Permitted CMBS Debt.
“Collateral
Property” means any First Lien Collateral Property or Credit Facility Property.
“Commission”
means the Securities and Exchange Commission.
“Company”
means the Person named as the “Company” in the first paragraph of this Indenture until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.
“Company Request”
or “Company Order” means a written request or order signed in the name of the Company by a managing trustee, its Chief
Executive Officer, its Chief Operating Officer, its Chief Financial Officer, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Controller, its Secretary or an Assistant Secretary, and delivered to the Trustee.
“Consolidated Income
Available for Debt Service” for any period means Earnings from Operations of the Company and its Subsidiaries plus amounts which
have been deducted, and minus amounts which have been added, for the following (without duplication):
(i) interest on Debt
of the Company and its Subsidiaries,
(ii) provision for taxes
of the Company and its Subsidiaries based on income,
(iii) amortization of
debt premium/discount and deferred debt issuance costs,
(iv) provisions for gains
and losses on properties and property depreciation and amortization,
(v) the effect of any
noncash charge resulting from a change in accounting principles in determining Earnings from Operations for such period and
(vi) amortization of
deferred charges.
6
“Corporate
Trust Office” means the principal office of the Trustee at which at any particular time its corporate trust business shall be
administered, which on the date hereof is located at Mail Code: MA-DM-CMNB, Lunken Operations Center, 5065 Wooster Road, Cincinnati,
OH 45226.
“corporation”
means a corporation, association, partnership, limited liability, joint-stock or other company, real estate investment trust or business
trust.
“Covenant Defeasance”
has the meaning specified in Section 13.03.
“Credit Facility”
means the credit facilities under, collectively,
(i) the
Second Amended and Restated Credit Agreement, dated as of January 29, 2024, as amended by that certain Waiver and Amendment No. to
Second Amended and Restated Credit Agreement, dated as of June 17, 2026, and as otherwise amended, restated, supplemented, waived,
replaced (whether or not upon termination, and whether with the original lenders or otherwise), restructured, repaid, refunded, refinanced
or otherwise modified from time to, including any agreement or indenture extending the maturity thereof, refinancing, replacing or otherwise
restructuring all or any portion of the Debt under such agreement or agreements or indenture or indentures or any successor or replacement
agreement or agreements or indenture or indentures or increasing the amount loaned or issued thereunder or altering the maturity thereof,
among OPI WF Borrower LLC, OPI WF Holding LLC, the Company, the guarantors named therein, the financial institutions named therein, and
Wilmington Savings Fund Society, FSB, as administrative agent (the “Credit Agreement”) and/or
(ii) whether or not the
agreements referred to in clause (i) remain outstanding, if designated by the Company to be included in the definition of “Credit
Facility,” one or more (A) debt facilities or commercial paper facilities, providing for revolving credit loans, term loans
or letters of credit, (B) debt securities, indentures or other forms of debt financing (including convertible or exchangeable debt
instruments or bank guarantees or bankers’ acceptances), and/or (C) instruments or agreements evidencing any other Debt, in
each case, with the same or different borrowers, guarantors or issuers or lenders or group of lenders, and, in each case, as amended,
supplemented, modified, extended, restructured, renewed, refinanced, restated, replaced or refunded in whole or in part from time to time.
“Credit
Facility First Lien/Second Lien Intercreditor Agreement” means that certain Subordination and Intercreditor Agreement, dated
as of June 17, 2026, by and among the Collateral Agent, Wilmington Savings Fund Society, FSB, the Company and certain other
Subsidiaries of the Company from time to time party thereto.
“Credit Facility Properties”
means the fee-owned real properties identified on Schedule B.
“Credit Facility Property Release”
has the meaning specified in Section 14.04(d).
“Custodian”
means any receiver, trustee, assignee, liquidator or other similar official under any Bankruptcy Law.
7
“Debt”
of the Company or any Subsidiary means, without duplication, any indebtedness of the Company or any Subsidiary, whether or not contingent,
in respect of:
(i) borrowed
money or evidenced by bonds, notes, debentures or similar instruments;
(ii) borrowed
money secured by any Lien existing on property owned by the Company or any Subsidiary, to the extent of the lesser of (x) the amount
of indebtedness so secured and (y) the Fair Market Value of the property subject to such Lien;
(iii) the
reimbursement obligations, contingent or otherwise, in connection with any letters of credit actually issued (other than letters of credit
issued to provide credit enhancement or support with respect to other indebtedness of the Company or any Subsidiary otherwise reflected
as Debt hereunder) or amounts representing the balance deferred and unpaid of the purchase price of any property or services, except any
such balance that constitutes an accrued expense or trade payable, or all conditional sale obligations or obligations under any title
retention agreement;
(iv) the
principal amount of all obligations of the Company or any Subsidiary with respect to redemption, repayment or other repurchase of any
Disqualified Stock; or
(v) any
lease of property by the Company or any Subsidiary as lessee which is reflected on the Company’s consolidated balance sheet as a
capitalized lease in accordance with generally accepted accounting principles,
to the extent, in the case
of items of indebtedness under (i) through (v) above, that any such items (other than letters of credit) would be properly classified
as a liability on the Company’s consolidated balance sheet in accordance with generally accepted accounting principles. Debt (1) excludes
any indebtedness (A) with respect to which a defeasance or covenant defeasance or discharge has been effected (or an irrevocable
deposit is made with a trustee in an amount at least equal to the outstanding principal amount of such indebtedness, the remaining scheduled
payments of interest thereon to, but not including, the applicable maturity date or redemption date, and any premium or otherwise as provided
in the terms of such indebtedness) in accordance with the terms thereof or which has been repurchased, retired, repaid, redeemed, irrevocably
called for redemption (and an irrevocable deposit is made with a trustee in an amount at least equal to the outstanding principal amount
of such indebtedness, the remaining scheduled payments of interest thereon to, but not including, such redemption date, and any premium)
or otherwise satisfied or (B) that is secured by cash or Cash Equivalents irrevocably deposited with a trustee in an amount, in the
case of this clause (B), at least equal to the outstanding principal amount of such indebtedness and the remaining scheduled payments
of interest thereon and (2) includes, to the extent not otherwise included, any obligation by the Company or any Subsidiary to be
liable for, or to pay, as obligor, guarantor or otherwise (other than for purposes of collection in the ordinary course of business),
Debt of another Person (other than the Company or any Subsidiary ) (it being understood that Debt shall be deemed to be incurred by the
Company or any Subsidiary whenever the Company or such Subsidiary shall create, assume, guarantee or otherwise become liable in respect
thereof).
8
“Defaulted Interest”
has the meaning specified in Section 3.07.
“Defeasance”
has the meaning specified in Section 13.02.
“Depositary” means, with respect
to Notes issuable in whole or in part in the form of one or more Global Notes, a clearing agency registered under the Exchange Act that
is designated to act as Depositary for such Notes as contemplated by the Indenture. The Depositary shall initially be The Depository Trust
Company, its nominees and their respective successors.
“Disqualified Stock”
means, with respect to any Person, any Capital Stock of such Person which by the terms of such Capital Stock (or by the terms of any security
into which it is convertible or for which it is exchangeable or exercisable), upon the happening of any event or otherwise,
(i) matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise (other than Capital Stock which is redeemable solely in exchange for Capital
Stock which is not Disqualified Stock or for Subordinated Debt),
(ii) is convertible into
or exchangeable or exercisable for Debt (other than Subordinated Debt or Disqualified Stock), or
(iii) is redeemable at
the option of the holder thereof, in whole or in part (other than Capital Stock which is redeemable solely in exchange for Capital Stock
which is not Disqualified Stock or for Subordinated Debt), in each case on or prior to the Stated Maturity of the principal of the Notes.
“Earnings from Operations”
for any period means
(i) net earnings, excluding
(1) gains and losses on
sales of investments,
(2) extraordinary items,
(3) gains and losses on
early extinguishment of debt,
(4) property valuation
losses, and
(5) equity in the earnings
and losses of Equity Method Investments, plus
(ii) to the extent not
included in net earnings, cash distributions received by the Company or its Subsidiaries from Equity Method Investments, in each case
as reflected in the financial statements of the Company and its Subsidiaries for such period, determined on a consolidated basis in accordance
with generally accepted accounting principles.
“Equity Interests”
means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible
into, or exchangeable for, Capital Stock).
9
“Equity Method Investments”
means equity securities that at the time of determination:
(i) are part of a class
of equity securities that is traded on a national or regional securities exchange or a recognized over-the-counter market;
(ii) are issued by an
entity (a) to which the Company’s manager at such time or an Affiliate of the Company’s manager at such time provides
management services, (b) that operates in a manner intended to qualify such entity for taxation as a “real estate investment
trust” under Sections 856 to 860 of the Internal Revenue Code of 1986, as amended, and (c) that is not a consolidated Subsidiary
of the Company; and
(iii) are or in any prior
period were accounted for in the consolidated financial statements of the Company using the equity method of accounting.
“Event of Default”
has the meaning specified in Section 5.01.
“Event
of Loss” means with respect to the Collateral any (i) casualty, loss, damage, destruction or other similar loss,
(ii) condemnation, taking or seizure by a governmental authority of assets or property, or any part thereof or interest therein,
for public or quasi-public use under the power of eminent domain, by reason of any public improvement or condemnation or (iii) settlement
in lieu of clause (ii) above.
“Event of Loss Redemption”
has the meaning specified in Section 10.11(c).
“Exchange Act”
means the Securities Exchange Act of 1934 and any statute successor thereto, in each case as amended from time to time.
“Expiration
Date” has the meaning specified in Section 1.04.
“Fair Market Value”
means the price that would be paid in an arm’s-length transaction between an informed and willing seller under no compulsion to
sell and an informed and willing buyer under no compulsion to buy, as determined by the Company in good faith.
“Fair Value”
means, for an Equity Method Investment, the lower of: (i) the original cost of such investment; or (ii) last reported sale price
on the exchange or market on which the class of equity securities of which the investment is a part is primarily traded at the time of
valuation.
“First
Lien Collateral” means all of the First Lien Collateral Properties and the First Lien Pledged Collateral, in each case,
pledged as collateral to secure the Notes Obligations pursuant to the terms of the Security Documents.
“First Lien Collateral
Asset Sale Redemption” has the meaning specified in Section 10.11(b).
“First
Lien Collateral Properties” means the fee-owned real properties identified on Schedule A.
“First
Lien Collateral Property Release” has the meaning specified in Section 14.04(c).
10
“First Lien Pledged
Collateral” has the meaning specified in the Pledge Agreement.
“Funded Debt”
means indebtedness for borrowed money or any obligation to be liable for, or to pay, as obligor, guarantor or otherwise such indebtedness.
“generally accepted
accounting principles” means, solely for purposes of determining compliance with any provision of Sections 10.07 and 10.08 which
requires the calculation of any financial ratio or percentage, generally accepted accounting principles in the United States of America,
which were in effect on July 20, 2017. For all other purposes, “generally accepted accounting principles” means generally
accepted accounting principles in the United States of America in effect from time to time.
“Government Obligations”
has the meaning specified in Section 13.04(a).
“Governmental Authority”
means any national, state or local government (whether domestic or foreign), any political subdivision thereof or any other governmental,
quasi-governmental, judicial, administrative, public or statutory instrumentality, authority, body, agency, bureau, commission, board,
department or other entity (including, without limitation, the Federal Deposit Insurance Corporation, the Comptroller of the Currency
or the Federal Reserve Board, any central bank or any comparable authority) or any arbitrator with authority to bind a party at law.
“Guarantee”
means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any indebtedness of any other Person
or any obligation, direct or indirect, contingent or otherwise, of such Person:
(i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such indebtedness of such other Person (whether arising by
virtue of partnership arrangements, or by agreement to keep-well, to purchase assets, goods, securities or services, to take-or-pay, or
to maintain financial statement conditions or otherwise); or
(ii) entered
into for purposes of assuring in any other manner the obligee of such indebtedness of the payment thereof or to protect such obligee against
loss in respect thereof (in whole or in part); provided, however, that the term “Guarantee” will not include endorsements
for collection or deposit in the ordinary course of business. The term “Guarantee” used as a verb has a corresponding meaning.
“Holder” means a Person in whose
name a Note is registered in the Security Register; provided that solely for purposes of the third paragraph of Section 1.04,
“Holder” shall include the “beneficial owner” of an interest in a Note.
“Indenture”
means this indenture as may be amended, restated, supplemented, modified, renewed, refunded, increased, extended, replaced in any
manner (whether upon or after termination or otherwise) or refinanced in whole or in part from time to time.
“Initial Default”
has the meaning specified in Section 5.02.
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“Intercreditor Agreements”
means the Credit Facility First Lien/Second Lien Intercreditor Agreement, any Acceptable Junior Intercreditor Agreement, any Acceptable
Senior Intercreditor Agreement and/or any Acceptable Pari Passu Intercreditor Agreement.
“Interest
Payment Date” has the meaning specified in Section 2.01(a).
“Issue Date” means June 17, 2026.
“Joint Venture Interests”
means assets of the Company and its Subsidiaries constituting an equity investment in real estate assets or other properties, or in an
entity holding real estate assets or other properties, jointly owned by the Company and its Subsidiaries, on the one hand, and one or
more other Persons not constituting Affiliates of the Company, on the other, excluding any entity or properties (i) which is a Subsidiary
or are properties if the co-ownership thereof (if in a separate entity) would constitute or would have constituted a Subsidiary, or (ii) to
which, at the time of determination, the Company’s manager at such time or an Affiliate of the Company’s manager at such time
provides management services. In no event shall Joint Venture Interests include equity securities that are part of a class of equity securities
that are traded on a national or regional securities exchange or a recognized over-the-counter market or any investments in debt securities,
mortgages or other Debt or Equity Method Investments.
“Latest Completed
Fiscal Quarter” has the meaning specified in Section 10.07(a)(i).
“Lien”
means, with respect to any asset, any mortgage, lien, charge, pledge, security interest or other encumbrance of any kind.
“Material Adverse
Effect” means any event, circumstance or condition that has had, or could reasonably be expected to have, a material adverse
effect on (a) the business, assets, liabilities, results of operations or financial condition of the Company and the Subsidiary Guarantors,
taken as a whole, (b) the ability of the Company and the Subsidiary Guarantors, taken as a whole, to perform their payment obligations
under this Indenture or (c) the rights and remedies of the Holders.
“Maturity,”
when used with respect to the Notes, means the date on which the principal of such Notes or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise,
but shall not include any date on which the payment of principal of such security is due and payable as a result of any contingent obligations
to repay, redeem or repurchase any such principal prior to the date originally scheduled for the payment thereof.
“Moody’s”
means Moody’s Investors Service, Inc. or any successor thereof.
“Mortgage”
means any mortgage, deed of trust or other agreement which conveys or evidences a Lien in favor of the Collateral Agent, for the benefit
of the Collateral Agent and the Trustee and the Holders of the Notes, on any Collateral Property substantially in the form of the mortgage
attached hereto as Exhibit D or such other form sufficient to convey or evidence a Lien in favor of the Collateral Agent,
for the benefit of the Collateral Agent and the Trustee and the Holders of the Notes, on any Collateral Property (in each case, as determined
in good faith by the Company).
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“Net Proceeds”
means, with respect to any Collateral Asset Sale or Event of Loss, the cash proceeds (including Cash Equivalents and cash proceeds subsequently
received (as and when received) in respect of non-cash consideration initially received), net of:
(i) selling
costs and out-of-pocket expenses (including reasonable broker’s fees or commissions, legal fees, transfer and similar taxes and
the Company’s good-faith estimate of any income (however, denominated), gross receipts, and franchise or similar taxes paid or payable
by the Company or a Subsidiary Guarantor or any of their respective Subsidiaries or joint ventures (including pursuant to tax sharing
arrangements or any tax distributions) in connection with such sale, lease, conveyance or other disposition),
(ii) amounts
provided as a reserve in accordance with generally accepted accounting principles against any liabilities under any indemnification obligation
or purchase price adjustment associated with such Collateral Asset Sale or Event of Loss (provided that to the extent and at the time
any such amounts are released from such reserve (other than in connection with a payment in respect of such liability), such amounts shall
constitute Net Proceeds),
(iii) the principal
amount, premium or penalty, if any, interest and other amounts on any Debt (other than the Notes) which is secured by the asset sold in
such Collateral Asset Sale or subject to the Event of Loss and which is required to be repaid or otherwise comes due as a result of such
Collateral Asset Sale or Event of Loss and is repaid (other than (x) any such Debt that is assumed by the purchaser of such asset
and (y) any such Debt which is secured by a Permitted Pari Passu Lien or Permitted Junior Lien on the asset sold in such Collateral
Asset Sale or subject to the Event of Loss),
(iv) repayments
of Debt which is secured by a Permitted Pari Passu Lien on the asset sold in such Collateral Asset Sale or subject to the Event of Loss
(limited to its proportionate share of such prepayment, based on the principal amount of such then outstanding Debt as a percentage of
the principal amount of all then-outstanding Notes and Debt which is secured by a Permitted Pari Passu Lien on the asset sold in such
Collateral Asset Sale or subject to the Event of Loss),
(v) cash escrows
(until released from escrow to the Company or any Subsidiary) of funds received pursuant to a Collateral Asset Sale or Event of Loss and
(vi) any charges,
payments or expenses incurred in connection with an Event of Loss (including, without limitation, (A) any exit or disposal costs,
(B) costs to replace, repair or reconstruct damaged Collateral subject to the Event of Loss or any associated environmental remediation
costs, charges or payments, (C) any penalties or fines, (D) any continuing or unsatisfied obligations of the Company or any
Subsidiary to tenants, operators or managers of such First Lien Collateral Property or Credit Facility Property and (E) any fees,
settlement payments or other charges related to any litigation or administrative proceeding resulting from such Event of Loss).
To the extent the amounts that must be netted
against any cash proceeds and Cash Equivalents cannot be reasonably determined by the Company with respect to any Event of Loss, such
cash proceeds and Cash Equivalents shall not be deemed received until such amounts to be netted are known by the Company.
13
“New
Intermediate Holdco 2029 Secured Notes” means Office Properties Income Intermediate Holdco II Trust’s 8.375% Senior
Secured Limited OPI Guaranteed Notes due 2029.
“Note Documents”
means this Indenture, the Notes, the related Guarantees, the Security Documents and the Intercreditor Agreements.
“Notes”
means the Company’s 10.000% Senior Secured Notes due 2031, issued under this Indenture, as amended or supplemented from time to
time.
“Notes Obligations”
means all obligations for principal, premium (if any), interest, if any, penalties, fees, indemnifications, reimbursements, damages, liabilities
and other amounts payable of the Company and the Subsidiary Guarantors under the Note Documents.
“Notice”
has the meaning specified in Section 1.17.
“Notice of Default”
means a written notice of the kind specified in Sections 5.01(d) and 5.01(g).
“Officer’s
Certificate” means a certificate signed on behalf of the Company by a managing trustee, the Chief Executive Officer, the Chief
Operating Officer, the Chief Financial Officer, the Controller, the President, a Vice President, the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary of the Company and delivered to the Trustee.
“Opinion of Counsel”
means a written opinion of legal counsel addressed to the Trustee. The counsel may be an employee of or counsel to the Company or any
Affiliate.
“Optional Redemption”
has the meaning specified in Section 11.01(a).
“Outstanding,”
when used with respect to Notes, means, as of the date of determination, all Notes theretofore authenticated and delivered under this
Indenture, except:
(i) Notes
theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(ii) Notes
for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other
than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for
the Holders of such Notes; provided that, if such Notes are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;
(iii) Notes
as to which Defeasance has been effected pursuant to Section 13.02 or satisfaction and discharge has been effected pursuant to Article Four;
and
14
(iv) Notes
which have been paid pursuant to Section 3.06 or in exchange for or in lieu of which other Notes have been authenticated and delivered
pursuant to this Indenture, other than any such Notes in respect of which there shall have been presented to the Trustee proof satisfactory
to it that such Notes are held by a bona fide purchaser in whose hands such Notes are valid obligations of the Company;
provided,
however, that solely in determining whether the Holders of the requisite principal amount of the Outstanding Notes have given,
made or taken any request, demand, authorization, direction, notice, consent, waiver or other action hereunder as of any date, or whether
a quorum is present at a meeting of Holders of Notes, (A) the principal amount of Notes which shall be deemed to be Outstanding shall
be the amount of the principal thereof which would be due and payable as of such date upon acceleration of the Maturity thereof, (B) if,
as of such date, the principal amount payable is not determinable, the principal amount of Notes which shall be deemed to be Outstanding
shall be the principal amount which would be due and payable at the Stated Maturity and (C) Notes owned by the Company or any other
obligor upon the Notes or any Affiliate (other than Notes owned by (x) a Permitted Holder or (y) an Affiliated Debt Fund) of
the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization, direction, notice, consent, waiver or other action, or upon
any such determination as to the presence of a quorum, only Notes that a Responsible Officer of the Trustee actually knows to be so owned
shall be so disregarded. Notes so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Notes and that the pledgee is not the Company
or any other obligor upon the Notes or any Affiliate of the Company or of such other obligor.
“Paying Agent” means any Person
authorized by the Company to pay the principal (and premium, if any) plus any interest on the Notes on behalf of the Company.
“Permitted Holder”
means (i) Redwood Capital Management LP; (ii) Helix Partners Management LP; (iii) any investment fund or vehicle managed,
sponsored or advised by the Persons specified in clauses (i) or (ii) or any Affiliates thereof, and any Affiliate of or successor
to any such investment fund or vehicle; (iv) any limited or general partners of, or other investors in, the Persons described in
clauses (i), (ii) or (iii) or any Affiliates thereof, or any such investment fund or vehicle; (v) any “group”
(as such term is used in Sections 13(d) and 14(d) of the Exchange Act as in effect on the Issue Date) of which any of the Persons
specified in clauses (i), (ii), (iii) or (iv) above is a member.
“Permitted Junior
Lien” means any Lien on all or a portion of any Collateral that ranks junior in priority to the Liens on the Collateral securing
the Notes and the related guarantees in accordance with the terms of an Acceptable Junior Intercreditor Agreement that secures Debt permitted
to be incurred pursuant to Section 10.07 of this Indenture.
“Permitted Liens”
means:
(i) Liens
securing the Notes Obligations;
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(ii) Liens
securing (1) taxes, assessments and other charges or levies imposed by any Governmental Authority (x) which are not then due
and payable or (y) if due and payable, which are being contested in good faith by appropriate proceedings and for which adequate
reserves have been established on the books of such Person in accordance with generally accepted accounting principles or (2) the
claims of materialmen, mechanics, carriers, warehousemen or landlords for labor, materials, supplies or rentals or other Charges (as defined
in the Forms of Mortgage attached hereto as Exhibit D) incurred in the ordinary course of business, in each case, (x) the
failure of which to pay would not reasonably be expected to result in a Material Adverse Effect or (y) if such Lien is the responsibility
of a financially responsible tenant, mortgagor or manager to discharge;
(iii) with
respect to any Property, Liens that are easements, covenants, conditions, rights-of-way, zoning restrictions, encroachments, encumbrances,
and rights or restrictions of record on the use of real property and other similar matters of record affecting title that do not (1) secure
obligations for the payment of money or (2) in the aggregate, materially impair the use of the affected property for its intended
purpose by the Company or any Subsidiary Guarantor in the normal conduct of such Person’s business;
(iv) Liens
granted by any tenant on its leasehold estate in a Property;
(v) the
interests of tenants, operators or managers of Properties;
(vi) judgment
liens (other than for the payment of taxes, assessments or other governmental charges) securing judgments and other proceedings not constituting
an Event of Default hereunder;
(vii) non-exclusive
licenses of intellectual property rights in the ordinary course of business;
(viii) matters
disclosed in any title report, commitment or policy provided to or obtained by Collateral Agent on or before Issue Date;
(ix) Permitted
Pari Passu Liens securing Debt in an aggregate principal amount at any time outstanding pursuant to this clause (ix) that does not
exceed $15,000,000, minus the principal amount of all other obligations outstanding at the time of such incurrence and secured by Permitted
Pari Passu Liens incurred under this clause (ix), plus the amount of customary closing fees, expenses, accrued and unpaid interest, premium
and other amounts to be paid in connection with the replacement or refinancing of Debt secured by Permitted Pari Passu Liens incurred
under this clause (ix);
(x) with
respect to First Lien Collateral, Permitted Junior Liens;
(xi) with
respect to Second Lien Collateral, Permitted Senior Liens, which, for the avoidance of doubt, may be senior in all respects to the Liens
securing the Notes, securing Debt pursuant to any Credit Facilities in an aggregate principal amount at any time outstanding not to exceed
(x) $425,000,000 plus (y) plus the amount of customary closing fees, expenses, accrued and unpaid interest, premium and other
amounts to be paid in connection with the replacement or refinancing of any Credit Facility (any such Debt, “Permitted Senior
Debt”);
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(xii) Liens
securing Permitted Refinancing Indebtedness; provided that (a) the Debt refinanced thereby was secured and (b) the Liens securing
such Permitted Refinancing Indebtedness does not have a higher priority than the Liens securing the Debt refinanced thereby;
(xiii) Liens
existing on the Issue Date, or provided for or required to be granted under the Plan (other than under the Credit Agreement or any Permitted
Senior Debt);
(xiv) Liens
on CMBS Assets incurred in connection with a Permitted CMBS Debt; and
(xv) Liens
to secure any modification, refinancing, refunding, extension, renewal or replacement (or successive refinancing, refunding, extensions,
renewals or replacements) as a whole, or in part, of any Debt secured by any Lien referred to in the foregoing clauses and this clause;
provided, however, that (a) such new Lien shall be limited to all or part of substantially the same property (or categories of property)
that secured the original Lien (plus improvements on such property) and the proceeds and products thereof, and (b) the Indebtedness
secured by such Lien at such time is not increased to any amount greater than the sum of (i) the outstanding principal amount or,
if greater, committed amount of the Indebtedness described under the foregoing clauses at the time the original Lien became a Permitted
Lien under this Indenture, and (ii) an amount equal to accrued and unpaid interest and premium (including tender premiums) thereon
plus other amounts paid, and fees and expenses incurred, in connection with such modification, refinancing, refunding, replacement, substitution,
renewal or extension.
“Permitted Pari Passu
Liens” means any Lien on all or a portion of any Collateral that ranks pari passu in priority with the Liens on the Collateral
securing the Notes and the related Guarantees in accordance with the terms of any Acceptable Pari Passu Intercreditor Agreement that secures
Debt permitted to be incurred under Section 10.07 of this Indenture.
“Permitted Refinancing
Indebtedness” means Debt of the Company or any of its Subsidiaries issued in exchange for, or the net proceeds of which are
used to, or which serves to, extend, refinance, modify, renew, replace, defease, discharge or refund other Debt of the Company or any
of its Subsidiaries (other than intercompany Debt); provided that:
(A) the principal amount
(or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value,
if applicable) of the Debt so extended, refinanced, modified, renewed, replaced, discharged or refunded except by an amount equal to accrued
and unpaid interest and premium (including tender premiums) thereon plus other amounts paid, and fees and expenses incurred, in connection
with such modification, refinancing, refunding, replacement, substitution, renewal or extension and by an amount equal to any existing
revolving commitments unutilized thereunder to the extent that the portion of any existing and unutilized revolving commitment being refinanced
was permitted to be drawn immediately prior to such refinancing and such drawing shall be deemed to have been made;
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(B) the Permitted Refinancing
Indebtedness has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of the Debt being
extended, refinanced, modified, renewed, replaced, defeased, discharged or refunded; and
(C) if the Debt being
extended, refinanced, modified, renewed, replaced, defeased, discharged or refunded is subordinated in right of payment to the Notes,
the Permitted Refinancing Indebtedness resulting from such extension, refinancing, modification, renewal, replacement, defeasance, discharge
or refund is subordinated in right of payment to the Notes on terms at least as favorable to Holders as those contained in the documentation
governing the indebtedness being extended, refinanced, modified, renewed, replaced, defeased, discharged or refunded.
For the avoidance of doubt,
Permitted Refinancing Indebtedness includes successive incurrences of Permitted Refinancing Indebtedness of the same Debt.
“Permitted Senior
Liens” means any Lien on all or a portion of any Second Lien Collateral that ranks senior to the Liens on the Second Lien Collateral
securing the Notes and the related Guarantees in accordance with the terms of the Credit Facility First Lien/Second Lien Intercreditor
Agreement or any Acceptable Senior Intercreditor Agreement.
“Person”
means any individual, corporation, partnership, limited liability company, joint venture, association, joint stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
“Place
of Payment” means the place or places where the principal of (and premium, if any) and any interest on the Notes are
payable as specified as contemplated by Section 10.02.
“Plan”
means the Fourth Amended Joint Chapter 11 Plan of Reorganization of Office Properties Income Trust and its Debtor Affiliates, confirmed
on April 22, 2026, together with any amendments, supplements or modifications thereto.
“Pledge Agreement”
means that certain Pledge Agreement dated as of the Issue Date, executed by the Company and certain of the Subsidiary Guarantors in favor
of the Collateral Agent for the benefit of the Collateral Agent, the Trustee and the Holders, as amended, restated, amended and restated,
supplemented or otherwise modified from time to time.
“Pledged Collateral”
has the meaning specified in the Pledge Agreement.
“Predecessor Note”
means every previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note; and, for the purposes
of this definition, any Note authenticated and delivered under Section 3.06 in exchange for or in lieu of a mutilated, destroyed,
lost or stolen Note shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Note.
“Preferred Stock”
means, with respect to any Person, any and all Capital Stock that has a preference on liquidation, dissolution or winding up or with respect
to distributions or dividends over any other class of Capital Stock, including preferred partnership interests, whether general or limited,
or such Person’s preferred or preference stock, whether outstanding on the Issue Date or issued thereafter, including all series
and classes of such preferred or preference stock.
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“Property”
means any parcel of real property, together with all improvements thereon.
“Qualified Appraisal”
means an appraisal conducted by a third party M.A.I. appraisal firm with a national, established reputation for the valuation of commercial
properties similar to the applicable First Lien Collateral Property or Credit Facility Property.
“Record Date”
for the interest payable on any Interest Payment Date, if any, means March 28 and September 12 (in each case, whether or not
a Business Day) immediately before such Interest Payment Date.
“Redemption Date”
means the date fixed for redemption of the Notes by or pursuant to this Indenture.
“Redemption Price”
means the price at which the Notes are to be redeemed pursuant to this Indenture.
“Responsible Officer,” when
used with respect to the Company, means the chairman or any vice-chairman of the board of directors, the chairman or any vice-chairman
of the executive committee of the board of directors, the president, any vice president, the secretary, any assistant secretary, the treasurer,
any assistant treasurer, the controller or any assistant controller or any other officer of the Company customarily performing functions
similar to those performed by any of the above designated officers; and when used with respect to the Trustee, means the chairman or any
vice-chairman of the board of directors, the chairman or any vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any assistant secretary, the treasurer, any assistant treasurer,
any trust officer or assistant trust officer, the controller or any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of his or her knowledge of and familiarity with the particular
subject and who, in each case, shall have responsibility for the administration of this Indenture.
“S&P”
means S&P Global Ratings, and any successor to its rating agency business.
“Second
Lien Collateral” means all of the Credit Facility Properties and the Second Lien Pledged Collateral, in each case, pledged
as collateral to secure the Notes Obligations pursuant to the terms of the Security Documents.
“Second
Lien Pledged Collateral” has the meaning specified in the Pledge Agreement.
“Secured Debt”
means Debt secured by a Lien on the property of the Company or its Subsidiaries.
“Securities Act”
means the Securities Act of 1933 and any statute successor thereto, in each case as amended from time to time.
“Security Documents”
means the Pledge Agreement, the Mortgages, any other documents granting or purporting to grant a Lien upon the Collateral in favor of
the Collateral Agent for its benefit, the benefit of the Trustee and the ratable benefit of the Holders as security for payment of the
Notes Obligations.
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“Security Register”
and “Security Registrar” have the respective meanings specified in Section 3.05(a).
“Special
Record Date” for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 3.07.
“Stated Maturity,”
when used with respect to the Notes or any installment of principal or interest thereon, means the date specified in the Notes as the
fixed date on which the principal of such Note or such installment of principal or interest thereon is due and payable, which, for the
avoidance of doubt, shall be June 17, 2031 with respect to the principal of the Notes.
“Subordinated Debt”
means Debt which by the terms of such Debt is subordinated in right of payment to the principal and interest and premium, if any, on the
Notes.
“Subsidiary”
means any corporation or other Person of which a majority of (i) the voting power of the voting equity securities or (ii) the
outstanding equity interests of which are owned, directly or indirectly, by the Company or one or more other Subsidiaries of the Company,
and which is required to be consolidated in accordance with generally accepted accounting principles. For the purposes of this definition,
“voting equity securities” means equity securities having voting power for the election of directors or persons serving comparable
functions as directors, whether at all times or only so long as no senior class of security has such voting power by reason of any contingency.
“Subsidiary Guarantee”
means, individually, any Guarantee of payment of the Notes by a Subsidiary Guarantor pursuant to the terms of Article Twelve of this
Indenture.
“Subsidiary Guarantor”
means each Initial Subsidiary Guarantor and any other Subsidiary of the Company that provides a Subsidiary Guarantee of the Notes in accordance
with this Indenture; provided that upon the release or discharge of such Person from its Subsidiary Guarantee in accordance with
this Indenture, such Person ceases to be a Subsidiary Guarantor.
“Total Assets”
as of any date means the sum of (i) the Undepreciated Real Estate Assets, (ii) the Fair Value of all Equity Method Investments
of the Company and its Subsidiaries and (iii) all other assets of the Company and its Subsidiaries on such date determined in accordance
with generally accepted accounting principles (but excluding accounts receivable and intangibles); provided that the portion of
Total Assets attributable to Equity Method Investments of the Company and its Subsidiaries may not exceed 35%.
“Trust Indenture
Act” means the Trust Indenture Act of 1939, as so amended.
“Trustee”
means the Person named as the “Trustee” in the first paragraph of this Indenture until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who
is then a Trustee hereunder.
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“UCC” means the Uniform Commercial
Code as in effect in any applicable jurisdiction.
“Undepreciated Real
Estate Assets” as of any date means the cost (original cost plus capital improvements) of real estate assets of the Company
and its Subsidiaries on such date, before depreciation and amortization, determined on a consolidated basis in accordance with generally
accepted accounting principles.
“Unsecured Debt”
means any Debt of the Company or its Subsidiaries which is not Secured Debt.
“Vice President,”
when used with respect to the Company or the Trustee, means any vice president, whether or not designated by a number or a word or words
added before or after the title “vice president.”
“Weighted Average
Life to Maturity” means, when applied to any Debt at any date, the number of years obtained by dividing: (a) the sum of
the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required
payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest
one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount of such
Debt.
Section 1.02. Officer’s
Certificates and Opinions
Except (x) in connection
with any action related to the issuance of the Notes on (or immediately promptly after) the Issue Date or (y) as otherwise specified
in this Indenture, upon any application or Company Order to the Trustee to take or refrain from taking any action under any provision
of this Indenture, the Company shall, upon request by the Trustee, furnish to the Trustee (i) an Officer’s Certificate stating
that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed action
have been complied with and (ii) an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent
have been complied with.
Every certificate or opinion
with respect to compliance with a condition or covenant provided for in this Indenture (except for certificates provided for in Section 10.04)
shall include
(i) a
statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating
thereto;
(ii) a
brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(iii) a
statement that, in the opinion of each such individual, such individual has made such examination or investigation as is necessary to
enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
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(iv) a
statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
Section 1.03. Form of
Documents Delivered to Trustee
In
any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by
only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons
as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion
of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations
by, counsel. Any such certificate or any Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate
or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual
matters is in the possession of the Company.
Where any Person is required
to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this
Indenture, they may, but need not, be consolidated and form one instrument.
Section 1.04. Acts
of Holders; Record Dates
Any request, demand, authorization,
direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument
or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments
(and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders
signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and (subject to Section 6.01) conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section.
The fact and date of the execution
by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a
notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him or her the execution thereof. Where such execution is by a signer acting in a capacity other than his or
her individual capacity, such certificate or affidavit shall also constitute sufficient proof of his or her authority. The fact and date
of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other
manner which the Trustee deems sufficient.
The ownership of Notes shall
be proved by the Security Register. Notwithstanding the foregoing, solely for purposes of determining whether any action to be taken or
consent to be given under this Indenture is authorized, an owner of a beneficial interest in a Global Note shall be treated as a Holder,
which ownership may be established through: (i) a DTC participant statement evidencing ownership, (ii) a broker statement accompanied
by an officer’s certificate or (iii) any other method acceptable to the Trustee.
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Any request, demand, authorization,
direction, notice, consent, waiver or other Act of the Holder of the Notes shall bind every future Holder of the Notes and the Holder
of every Note issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon
such Note.
The Company may set any day
as a record date for the purpose of determining the Holders of Outstanding Notes entitled to give, make or take any request, demand, authorization,
direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders of Notes;
provided that the Company may not set a record date for, and the provisions of this paragraph shall not apply with respect to,
the giving or making of any notice, declaration, request or direction referred to in the next paragraph. If any record date is set pursuant
to this paragraph, the Holders of Outstanding Notes on such record date, and no other Holders, shall be entitled to take the relevant
action, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder
unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Notes on such record
date. Nothing in this paragraph shall be construed to prevent the Company from setting a new record date for any action for which a record
date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action
by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken
by Holders of the requisite principal amount of Outstanding Notes on the date such action is taken. Promptly after any record date is
set pursuant to this paragraph, the Company, at its own expense, shall cause notice of such record date, the proposed action by Holders
and the applicable Expiration Date to be given to the Trustee in writing and to each Holder of Notes in the manner set forth in Section 1.06.
The Trustee may set any day
as a record date for the purpose of determining the Holders of Outstanding Notes entitled to join in the giving or making of (i) any
Notice of Default, (ii) any declaration of acceleration referred to in Section 5.02, (iii) any request to institute proceedings
referred to in Section 5.07(b) or (iv) any direction referred to in Section 5.12, in each case with respect to the
Notes. If any record date is set pursuant to this paragraph, the Holders of Outstanding Notes on such record date, and no other Holders,
shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record
date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders
of the requisite principal amount of Outstanding Notes on such record date. Nothing in this paragraph shall be construed to prevent the
Trustee from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon
the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding on the
date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Trustee, at the Company’s expense,
shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Company in
writing and to each Holder of Notes in the manner set forth in Section 1.06.
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With respect to any record
date set pursuant to this Section 1.04, the party hereto that sets such record date may designate any day as the “Expiration
Date” and from time to time may change the Expiration Date to any earlier or later day; provided that no such change
shall be effective unless notice of the proposed new Expiration Date is given to the other party in writing, and to each Holder of Notes
in the manner set forth in Section 1.06, on or prior to the existing Expiration Date. If an Expiration Date is not designated with
respect to any record date set pursuant to this Section 1.04, the party hereto that sets such record date shall be deemed to have
initially designated the 180th day after such record date as the Expiration Date with respect thereto, subject to its right to change
the Expiration Date as provided in this paragraph.
Without limiting the foregoing,
a Holder entitled hereunder to take any action hereunder with regard to the Notes may do so with regard to all or any part of the principal
amount of such Note or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or
any part of such principal amount.
Section 1.05. Notices,
Etc., to Trustee and Company
Any request, demand, authorization,
direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given
or furnished to, or filed with
(i) the
Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing
(which may be by electronic mail) to or with the Trustee at its Corporate Trust Office, Attention: Office Properties Income Trust; 10.000%
Senior Secured Notes due 2031; or
(ii) the
Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and delivered by electronic means of transmission or to the address listed in Section 1.16.
Section 1.06. Notice
to Holders; Waiver
Where this Indenture provides
for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each Holder affected by such event, at the address of such Holder as it appears in the Security
Register, not later than the latest date (if any), and not earlier than the earliest date (if any), prescribed for the giving of such
notice. Notwithstanding any other provision of this Indenture or the Notes other than a provision that expressly states that this paragraph
is not applicable to the Notes, when this Indenture or the Notes provides for notice of any event (including any notice of redemption)
to a Holder of Notes in global form (whether by mail or otherwise), such notice shall be sufficiently given if given to the Depositary
for the Notes (or its designee) pursuant to the customary procedures of such Depositary. In any case where notice to Holders is given
by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency
of such notice with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived in writing
by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
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In case by reason of the suspension
of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification
as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
Section 1.07. Trust
Indenture Act
Except with respect to specific
provisions of the Trust Indenture Act expressly referenced in the provisions of this Indenture, the Trust Indenture Act shall not be applicable
to, and shall not govern, this Indenture and the Notes.
Section 1.08. Effect
of Headings and Table of Contents
The Article and Section headings
herein and the Table of Contents hereof are for convenience only and shall not affect the construction hereof.
Section 1.09. Successors
and Assigns
All covenants and agreements
in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.
Section 1.10. Separability
Clause
In case any provision in this
Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
Section 1.11. Benefits
of Indenture
Nothing in this Indenture
or in the Notes, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders
of Notes any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 1.12. Governing
Law and Jurisdiction
This Indenture and the Notes
shall be governed by and construed in accordance with the laws of the State of New York.
The parties hereby (i) irrevocably
submit to the exclusive jurisdiction of any federal or state court sitting in the Borough of Manhattan, the city of New York, (ii) waive
any objection to laying of venue in any such action or proceeding in such courts, and (iii) waive any objection that such courts
are an inconvenient forum or do not have jurisdiction over any party.
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Section 1.13. Legal
Holidays
If any Interest Payment Date,
Redemption Date, including pursuant to a Collateral Asset Sale or Event of Loss for the Notes, or the Stated Maturity for the principal
of the Notes falls on a day that is not a Business Day, the payment otherwise payable on such day will be due and payable on the next
succeeding Business Day, and no interest will accrue thereon for the period from and after such Interest Payment Date, Redemption Date,
including pursuant to a Collateral Asset Sale or Event of Loss, or the Stated Maturity, as the case may be, through such next succeeding
Business Day.
Section 1.14. Language
of Notices, Etc.
Any request, demand, authorization,
direction, notice, consent or waiver required or permitted under this Indenture shall be in the English language, except that any published
notice may be in an official language of the country of publication.
Section 1.15. No
Personal Liability
THE AMENDED AND RESTATED DECLARATION
OF TRUST ESTABLISHING OFFICE PROPERTIES INCOME TRUST, DATED JUNE 8, 2009, AS AMENDED, AS FILED WITH THE STATE DEPARTMENT OF ASSESSMENTS
AND TAXATION OF MARYLAND, PROVIDES THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF OFFICE PROPERTIES INCOME TRUST SHALL BE
HELD TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, OFFICE PROPERTIES INCOME TRUST. ALL PERSONS
DEALING WITH OFFICE PROPERTIES INCOME TRUST IN ANY WAY SHALL LOOK ONLY TO THE ASSETS OF OFFICE PROPERTIES INCOME TRUST FOR THE PAYMENT
OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.
NO TRUSTEE, DIRECTOR, OFFICER,
MANAGER, EMPLOYEE, AGENT, INCORPORATOR, STOCKHOLDER, PARTNER OR MEMBER OF THE ISSUER OR ANY GUARANTOR, AS SUCH, SHALL HAVE ANY LIABILITY
FOR ANY OBLIGATIONS OF THE ISSUER OR ANY GUARANTOR UNDER THE NOTES OR THIS INDENTURE OR FOR ANY CLAIM BASED ON, IN RESPECT OF, OR
BY REASON OF, SUCH OBLIGATIONS OR THEIR CREATION, SOLELY BY REASON OF ITS STATUS AS A TRUSTEE, DIRECTOR, OFFICER, MANAGER, EMPLOYEE, AGENT, INCORPORATOR,
STOCKHOLDER OR MEMBER OF THE ISSUER OR A GUARANTOR. BY ACCEPTING A NOTE, EACH HOLDER WAIVES AND RELEASES ALL SUCH LIABILITY. THE WAIVER
AND RELEASE ARE PART OF THE CONSIDERATION FOR ISSUANCE OF THE NOTES.
Section 1.16. Notices
Notices to the Company or
any Subsidiary Guarantor shall be directed to it at Two Newton Place, 255 Washington Street, Suite 300, Newton, Massachusetts 02458-1634,
email: ir@opireit.com, Attention: President; notices to the Trustee shall be directed to it at Mail Code: MA-DM-CMNB, Lunken Operations
Center, 5065 Wooster Road, Cincinnati, OH 45226, email: james.byrnes@usbank.com, Attention: Corporate Trust Department, re: Office Properties
Income Trust 10.000% Senior Secured Notes due 2031, or as to any party, at such other address as shall be designated by such party in
a written notice to the other parties. All notices and communications (other than those sent to Holders of the Notes ) shall be deemed
to have been duly given: at the time delivered by hand, if personally delivered; five (5) calendar days after mailing if sent by
registered or certified mail, postage prepaid (except that a notice of change of address shall not be deemed to have been given until
actually received by the addressee); when receipt is acknowledged, if sent by e-mail or facsimile; and the next Business Day after timely
delivery to the courier, if sent by overnight air courier guaranteeing next day delivery.
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Section 1.17. Counterparts
This Indenture may be executed
in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. The words
“execution,” “signed,” “signature,” and words of like import in this Indenture or in any other certificate,
agreement or document related to this Indenture or the Notes shall include images of manually executed signatures transmitted by facsimile
or other electronic format (including, without limitation, “pdf”, “tif” or “jpg”) and other electronic
signatures (including, without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including,
without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall
be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based recordkeeping system
to the fullest extent permitted by applicable law, including the ESIGN Act of 2000, the New York State Electronic Signatures and Records
Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the
UCC. The Trustee shall have the right to accept and act upon any notice, instruction, or other communication, including any funds transfer
instruction, (each, a “Notice”) received pursuant to this Indenture by electronic transmission (including by e-mail,
facsimile transmission, web portal or other electronic methods) and shall not have any duty to confirm that the person sending such Notice
is, in fact, a person authorized to do so. Electronic signatures believed by the Trustee to comply with the ESIGN Act of 2000 or other
applicable law (including electronic images of handwritten signatures and digital signatures provided by DocuSign, Orbit, Adobe Sign or
any other digital signature provider identified by any other party hereto and acceptable to the Trustee) shall be deemed original signatures
for all purposes. Each other party to this Indenture assumes all risks arising out of the use of electronic signatures and electronic
methods to send Notices to the Trustee, including without limitation the risk of the Trustee acting on an unauthorized Notice and the
risk of interception or misuse by third parties. Notwithstanding the foregoing, the Trustee may in any instance and in its sole discretion
require that a Notice in the form of an original document bearing a manual signature be delivered to the Trustee in lieu of, or in addition
to, any such electronic Notice.
Section 1.18. Waiver
of Jury Trial
Each of the parties hereto
hereby waives the right to trial by jury with respect to any litigation directly or indirectly arising out of, under or in connection
with this Agreement.
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ARTICLE Two
INTEREST
RATE; INTEREST PAYMENTS
Section 2.01. Interest
Rate; Interest Payments
(a) Unless
previously redeemed, the Notes will bear interest at 10.000% per annum, payable semi-annually in arrears on March 31 and September 30
of each year, commencing September 30, 2026 (each of which shall be an “Interest Payment Date”), to the Persons
in whose names the Notes are registered in the Security Register at the close of business on the Record Date, which shall be March 28
or September 12 (in each case, whether or not a Business Day), as the case may be, immediately before such Interest Payment Date.
(b) Interest
on the Notes will be computed on the basis of a 360-day year consisting of twelve 30-day months.
(c) If
any scheduled Interest Payment Date, the Stated Maturity or any Redemption Date falls on a day that is not a Business Day, the applicable
payment will be made on the next Business Day and no interest will accrue thereon for the period from and after such Interest Payment
Date, the Stated Maturity or such Redemption Date.
ARTICLE Three
The
Notes
Section 3.01. Form and
Dating
Provisions relating to the
Notes are set forth in Appendix A, which is hereby incorporated in and expressly made a part of this Indenture. The Notes and the Trustee’s
(or the Authenticating Agent’s) certificate of authentication shall each be substantially in the form of Exhibit A attached
hereto, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture.
The Notes may have notations, legends or endorsements required by law, the rules of any securities exchange agreements to which the
Company is subject, if any, or usage; provided that any such notation, legend or endorsement is in form reasonably acceptable to
the Company. The Company shall approve the form of the Notes. Each Note shall be dated the date of its authentication. The terms and provisions
contained in the form of the Notes shall constitute and are hereby expressly made a part of this Indenture.
Section 3.02. Denominations
The Notes shall be issued
only in registered form without coupons and only in minimum denominations of $2,000 in principal amount and any integral multiples of
$1,000 in excess thereof.
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Section 3.03. Execution,
Authentication, Delivery and Dating
The Notes shall be executed
on behalf of the Company by a Responsible Officer of the Company. The signature of any of these officers on the Notes may be manual, electronic
(including DocuSign or other electronic platform) or facsimile.
Notes bearing the manual,
electronic (including DocuSign or other electronic platform) or facsimile signatures of individuals who were at any time the proper officers
of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to
the authentication and delivery of such Notes or did not hold such offices at the date of such Notes.
The
Company shall execute and, upon receipt of a Company Order, the Trustee shall authenticate (whether itself or via the Authenticating Agent),
which such authentication may be by manual, electronic (including DocuSign or other electronic platform) or facsimile signature, on (or
immediately promptly after) the Issue Date, Notes for original issue up to an aggregate principal amount of $420,000,000. With
respect to any additional Notes issued after the Issue Date as provided in Section 3.12 hereof, the Company shall execute and, upon
receipt of a Company Order, the Trustee shall authenticate (whether itself or via the Authenticating Agent), which such authentication
may be by manual, electronic (including DocuSign or other electronic platform) or facsimile signature, on (or immediately promptly after)
the applicable issue date of such additional Notes.
The Trustee may appoint an
Authenticating Agent reasonably acceptable to the Company to authenticate the Notes. Unless limited by the terms of such appointment,
any such Authenticating Agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication
by the Trustee includes authentication by any such agent. An Authenticating Agent has the same rights as any Security Registrar, co-Security
Registrar, Paying Agent or transfer agent to deal with the Company or an Affiliate of the Company.
No Note shall be entitled
to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Note a certificate of authentication
substantially in the form provided for herein executed by the Trustee by manual or electronic signature, and such certificate upon any
Note shall be conclusive evidence, and the only evidence, that such Note has been duly authenticated and delivered hereunder. Notwithstanding
the foregoing, if any Note shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company
shall deliver such Note to the Trustee for cancellation as provided in Section 3.09, for all purposes of this Indenture such Note
shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
Section 3.04. Temporary
Notes
Pending the preparation of
definitive Notes, the Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Notes which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of
the definitive Notes in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations
as the officers executing such Notes may determine, as evidenced by their execution of such Notes.
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If temporary Notes are issued,
the Company will cause definitive Notes to be prepared without unreasonable delay. After the preparation of definitive Notes, the temporary
Notes shall be exchangeable for definitive Notes upon surrender of the temporary Notes at the office or agency of the Company in a Place
of Payment, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Notes, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor one or more definitive Notes, of any authorized denominations and
of like tenor and aggregate principal amount. Until so exchanged, the temporary Notes shall in all respects be entitled to the same benefits
under this Indenture.
Section 3.05. Registration,
Registration of Transfer and Exchange
(a) The
Company shall cause to be kept at an office or agency to be maintained by the Company in accordance with Section 10.02 a register
(being the combined register of the Security Registrar and all transfer agents designated pursuant to Section 10.02 for the purpose
of registration of transfer of Notes and sometimes collectively referred to as the “Security Register”) in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Notes and the registration of transfers
of Notes. The Trustee is hereby appointed “Security Registrar” for the purpose of registering Notes and transfers of
Notes as herein provided.
(b) The
Notes shall be issued in registered form and shall be transferable only upon the surrender of a Note for registration of transfer and
in compliance with Appendix A. A transferee of the Notes shall be deemed to have represented and agreed to the matters as provided in
Appendix A. A transfer in violation of the requirements of Appendix A shall be void ab initio.
(c) Subject
to Section 3.05(b), upon surrender for registration of transfer of any Note at the office or agency of the Company maintained pursuant
to Section 10.02 for such purpose in a Place of Payment for that Note, the Company shall execute, and the Trustee shall authenticate
and deliver, in the name of the designated transferee or transferees, one or more new Notes, of any authorized denominations and of like
tenor and aggregate principal amount.
(d) All
Notes issued upon any registration of transfer or exchange of Notes shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Notes surrendered upon such registration of transfer or exchange.
(e) Every
Note presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee or any
transfer agent) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed, by the Holder thereof or the attorney of such Holder duly authorized in writing.
(f) No
service charge shall be made for any registration of transfer or exchange of Notes, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Notes,
other than exchanges pursuant to Section 3.04, 9.05 or 11.08 not involving any transfer.
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(g) If
the Notes are to be redeemed in part, the Company shall not be required (A) to issue, register the transfer of or exchange any Notes
during a period beginning at the opening of business 15 days before any selection of Notes to be redeemed and ending at the close of business
on the day of the mailing of the relevant notice of redemption, or (B) to register the transfer of or exchange any Note so selected
for redemption, in whole or in part, except the unredeemed portion of any Note being redeemed in part.
Section 3.06. Mutilated,
Destroyed, Lost and Stolen Notes
If any mutilated Note is surrendered
to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Note of like tenor
and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered
to the Company and the Trustee (a) evidence to their satisfaction of the destruction, loss or theft of any Note and (b) such
security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Note has been acquired by a bona fide purchaser, the Company shall execute and the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Note, a new Note of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
Notwithstanding the provisions
of the previous two paragraphs, in case any such mutilated, destroyed, lost or stolen Note has become or is about to become due and payable,
the Company in its discretion may, instead of issuing a new Note, pay such Note.
Upon the issuance of any new
Note under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may
be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Note issued pursuant
to this Section in lieu of any destroyed, lost or stolen Note shall constitute an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Note shall be at any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section are
exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Notes.
Section 3.07. Payment
of Interest; Interest Rights Preserved
Interest on any Note which
is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Note
(or one or more Predecessor Notes) is registered at the close of business on the Record Date for such interest.
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The Company shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on all overdue principal amounts at a rate equal to the
then applicable interest rate on the Notes to the extent lawful; the Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on all overdue installments of interest (without regard to any applicable grace period) at the same
rate to the extent lawful.
Any interest on any Note which
is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (or the corresponding succeeding Business Day)
(herein called “Defaulted Interest”) shall forthwith cease to be payable to the Holder on the relevant Record Date
by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided
in clause (a) or (b) below:
(a) The
Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Notes (or respective Predecessor Notes)
are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on the Notes
and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this Section 3.07 provided. Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and
not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company
of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be given to each Holder in the manner set forth in Section 1.06, not less than 10
days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Notes (or respective Predecessor Notes)
are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (b).
(b) The
Company may make payment of any Defaulted Interest on the Notes in any other lawful manner not inconsistent with the requirements of any
securities exchange on which such Notes may be listed, and upon such notice as may be required by such exchange, if, after notice given
by the Company to the Trustee of the proposed payment pursuant to this Section 3.07, such manner of payment shall be deemed practicable
by the Trustee.
Subject to the foregoing provisions
of this Section 3.07, each Note delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of
any other Note shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Note.
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Section 3.08. Persons
Deemed Owners
Prior to due presentment of
a Note for registration of transfer, the Company, each Subsidiary Guarantor, the Trustee and any agent of the Company, any Subsidiary
Guarantor or the Trustee may treat the Person in whose name such Note is registered as the owner of such Note for the purpose of receiving
payment of principal, premium, if any, and any interest (subject to Section 3.07), if any on, such Note and for all other purposes
whatsoever, whether or not such Note be overdue, and neither the Company, any Subsidiary Guarantor, the Trustee nor any agent of the Company,
any Subsidiary Guarantor or the Trustee shall be affected by notice to the contrary.
Section 3.09. Cancellation
All Notes surrendered for
payment, redemption, registration of transfer or exchange shall, if surrendered to any Person other than the Trustee, be delivered to
the Trustee and shall be promptly cancelled by it. The Company may at any time deliver to the Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or
to any other Person for delivery to the Trustee) for cancellation any Notes previously authenticated hereunder which the Company has not
issued and sold, and all Notes so delivered shall be promptly cancelled by the Trustee. No Notes shall be authenticated in lieu of or
in exchange for any Notes cancelled as provided in this Section 3.09, except as expressly permitted by this Indenture. All cancelled
Notes held by the Trustee shall be disposed of as directed by a Company Order or, in the absence of such a Company Order, in the Trustee’s
customary manner, which manner shall be communicated in writing to the Company.
Section 3.10. Currency
The principal of each Note
payable at its Maturity shall be paid against presentation and surrender thereof at the Corporate Trust Office, in such coin or currency
of the United States of America as at the time of payment is legal tender for the payment of public or private debts.
Section 3.11. ISIN/CUSIP
Numbers
The Company, in issuing the
Notes, may use “ISIN” and/or “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use such
“ISIN” and/or “CUSIP” numbers in notices of redemption as a convenience to Holders; provided that
any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained
in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Notes, and any such
redemption shall not be affected by any defect in or omission of such numbers. The Company will notify the Trustee of any change in “ISIN”
and/or “CUSIP” numbers.
Section 3.12. Amount
The aggregate principal amount
of Notes which may be authenticated and delivered under this Indenture on the Issue Date is $420,000,000.
The Issuer may after the Issue
Date, without notice to or consent of the Holders, create or issue additional Notes under this Indenture, provided such issuance otherwise
complies with the provisions of this Indenture, including Section 10.07 and 10.09 hereof. Any such additional Notes shall have the
same terms, and be part of the same series as, the Notes issued on the Issue Date. Unless the context requires otherwise, references herein
to the “Notes” includes any such additional Notes issued after the Issue Date.
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ARTICLE Four
Satisfaction
and Discharge
Section 4.01. Satisfaction
and Discharge of Indenture
This Indenture shall upon
Company Request cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of Notes herein
expressly provided for), and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(a) either
(i) all
Notes theretofore authenticated and delivered (other than (A) Notes which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 3.06 and (B) Notes for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 10.03)
have been delivered to the Trustee for cancellation; or
(ii) all
such Notes not theretofore delivered to the Trustee for cancellation
(A) have
become due and payable, or
(B) will
become due and payable at their Stated Maturity within one year, or
(C) are
to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (A), (B) or
(C) above, has deposited or caused to be deposited with the Trustee (i) money in an amount, or (ii) Government Obligations
which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later
than one day before the due date of any payment, money in an amount, or (iii) a combination thereof, in each case in an amount sufficient
to pay and discharge the entire indebtedness on such Notes not theretofore delivered to the Trustee for cancellation, for principal of
(and premium, if any) and any accrued and unpaid interest, if any, on, such Notes to the date of such deposit (in the case of Notes which
have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be; provided that with respect
to a Redemption Date, if all or a portion of the Redemption Price is based on or consists of a redemption premium that is required to
be calculated based on a treasury rate or other floating or adjustable rate a specified number of days prior to such Redemption Date,
the amount deposited shall be sufficient to the extent that the amount deposited with the Trustee is equal to such redemption premium
calculated as of the date of the notice of redemption, with any deficit on the Redemption Date only required to be deposited with the
Trustee on or prior to the Redemption Date (it being understood that any satisfaction and discharge shall be subject to the condition
subsequent that such deficit is in fact paid);
34
(b) the
Company has paid or caused to be paid all other sums payable hereunder by the Company; and
(c) the
Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction
and discharge of this Indenture, the obligations of the Company to the Trustee under Section 6.07, the obligations of the Trustee
to any Authenticating Agent under Section 6.14 and, if money shall have been deposited with the Trustee pursuant to subclause (ii) of
clause (a) of this Section, the obligations of the Trustee under Section 4.02 and the last paragraph of Section 10.03 shall
survive such satisfaction and discharge.
Section 4.02. Application
of Trust Money and Government Obligations
Subject to the provisions
of the last paragraph of Section 10.03, all money and Government Obligations (including the proceeds thereof) deposited with the
Trustee pursuant to Section 4.01 shall be held in trust and applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee
may determine, to the Persons entitled thereto, of the principal of (and premium, if any), and any interest on, such Notes for whose payment
such money has been deposited with the Trustee.
The Company shall hold harmless,
defend, pay and indemnify the Trustee from and against any tax, fee or other charge imposed on or assessed against the Government Obligations
deposited pursuant to Section 4.01 or the principal and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of Outstanding Notes. The indemnification provided by this Section 4.02 is
in addition to the indemnification provided in Section 6.07 and shall survive the resignation or removal of the Trustee and the termination
of this Indenture.
ARTICLE Five
Remedies
Section 5.01. Events
of Default
“Event of Default,”
means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary
or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body):
(a) default
in the payment of the principal of (and premium, if any) the Notes at the Stated Maturity, upon redemption or otherwise on the date specified
for payment in the applicable offer or notice;
35
(b) default
in the payment of any interest on the Notes when it becomes due and payable, and continuance of such default for a period of 30 days;
(c) [reserved];
(d) (i) default
in the performance of, or breach of, any covenant of the Company or any Subsidiary Guarantor in this Indenture (other than Section 10.12),
and continuance of such default or breach for a period of 60 days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of more than 25% in principal amount of the Outstanding Notes
a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of
Default” hereunder or (ii) default in the performance of, or breach of, Section 10.12, and continuance of such default
or breach for a period of 45 days;
(e) the
Company or a Subsidiary Guarantor, pursuant to or within the meaning of any Bankruptcy Law (i) commences a voluntary case, (ii) consents
to the entry of an order for relief against it in an involuntary case, or (iii) consents to the appointment of a Custodian of it
or for all or substantially all of its property;
(f) a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: (i) is for relief against the Company or
a Subsidiary Guarantor in an involuntary case, (ii) appoints a Custodian of the Company or a Subsidiary Guarantor or for all or substantially
all of its property, or (iii) orders the liquidation of the Company or a Subsidiary Guarantor, and the order or decree remains unstayed
and in effect for 90 days;
(g) a
default under any bond, debenture, note or other evidence of indebtedness for borrowed money of the Company or a Subsidiary Guarantor,
or under any mortgage, indenture or other instrument of the Company or a Subsidiary Guarantor under which there may be issued or by which
there may be secured any indebtedness for borrowed money of the Company or a Subsidiary Guarantor (or by any Subsidiary, the repayment
of which the Company or a Subsidiary Guarantor has guaranteed or for which the Company or a Subsidiary Guarantor is directly responsible
or liable as obligor or guarantor), whether such indebtedness now exists or shall hereafter be created, which default shall constitute
a failure to pay an aggregate principal amount exceeding $25,000,000 of such indebtedness when due and payable after the expiration of
any applicable grace period with respect thereto and shall have resulted in such indebtedness in an aggregate principal amount exceeding
$25,000,000 becoming or being declared due and payable prior to the date on which it would otherwise have become due and payable; provided,
however, that if there is no other senior indebtedness of the Company or the Subsidiary Guarantors, the maturity of which would be
accelerated by a default under any of the Company’s or the Subsidiary Guarantor’s indebtedness in an aggregate principal amount
of $25,000,000 or less, the references to $25,000,000 in this clause shall be replaced by the lesser of (i) the indebtedness cross-default
amount contained in the Company’s or the Subsidiary Guarantor’s then existing senior secured credit facility, if any, and
(ii) such other senior indebtedness, as long as such amount is greater than $25,000,000, not to exceed $50,000,000. Such default
shall not be an Event of Default if the indebtedness shall have been discharged, or such acceleration has been rescinded or annulled,
within a period of 10 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company
and the Trustee by the Holders of more than 25% in aggregate principal amount of the Outstanding Notes, a written notice specifying such
default and requiring the Company to cause such indebtedness to be discharged or cause such acceleration to be rescinded or annulled and
stating that such notice is a “Notice of Default” under this Indenture;
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(h) any
Subsidiary Guarantee of a Subsidiary Guarantor ceases to be in full force and effect (except as contemplated by the terms of this Indenture)
or is declared null and void in a judicial proceeding or any Subsidiary Guarantor denies or disaffirms its obligations under this Indenture
or its Subsidiary Guarantees, as the case may be;
(i) unless
such Liens have been released in accordance with the provisions of this Indenture or the Security Documents with respect to such Liens
or in accordance with the provisions of the applicable Intercreditor Agreement, the Liens in favor of the Holders with respect to Collateral
having a Fair Market Value in excess of $25,000,000 in the aggregate cease to be valid or enforceable and such default continues for 30
days, or the Company shall assert or any Subsidiary Guarantor shall assert, in any pleading in any court of competent jurisdiction, that
security interests with respect to Collateral having a Fair Market Value in excess of $25,000,000 in the aggregate is invalid or unenforceable
(except as contemplated by the terms of this Indenture or the applicable Security Documents or Intercreditor Agreement) and, in the case
of any Subsidiary Guarantor, the Company shall fail to cause such Subsidiary Guarantor to rescind such assertions within 30 days after
the Company has actual knowledge of such assertions; or
(j) failure
by the Company or any Subsidiary Guarantor to comply for 60 days after notice or such longer period as may be provided in the applicable
Security Documents with its other agreements contained in such Security Documents, in each case, except for a failure that would not be
material to the Holders and would not materially affect the value of the Collateral taken as a whole.
Section 5.02. Acceleration
of Maturity; Rescission and Annulment
If
an Event of Default (other than an Event of Default specified in Section 5.01(e) or 5.01(f)) occurs and is continuing, then
in every such case the Trustee (or Collateral Agent with respect to the Security Documents) or the Holders of not less than a majority
of the principal amount of the Outstanding Notes may exercise any enforcement rights and/or remedies with respect to and/or granted under
any of the Security Documents and/or declare the principal amount of the Notes plus accrued and unpaid interest, if any, to be
due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration
such principal amount shall become immediately due and payable. If an Event of Default specified in Section 5.01(e) or 5.01(f) occurs,
the principal amount of the Notes plus accrued and unpaid interest, if any, shall automatically, and without any declaration or other
action on the part of the Trustee or any Holder, become immediately due and payable.
37
At any time after such a declaration
of acceleration with respect to the Notes has been made and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Notes, by
written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if
(a) the
Company has paid or deposited with the Trustee a sum sufficient to pay
(i) the
principal of (and premium, if any) the Notes which have become due otherwise than by such declaration of acceleration and any interest
thereon,
(ii) to
the extent that payment of such interest is lawful, interest upon overdue interest on the Notes, and
(iii) all
sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel; and
(b) all
Events of Default, other than the non-payment of the principal on Notes which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 5.13.
No such rescission shall affect
any subsequent default or impair any right consequent thereon.
If a default for a failure
to report or failure to deliver a required certificate in connection with another default (such other default, the “Initial Default”)
occurs, then at the time such Initial Default is cured, the default for a failure to report or failure to deliver a required certificate
in connection with the Initial Default will also be cured without any further action and any default or Event of Default for the failure
to comply with the time periods prescribed under Section 10.10 or otherwise to deliver any notice or certificate pursuant to any
other provision of this Indenture shall be deemed to be cured upon the delivery of any such report required by Section 10.10 or such
notice or certificate, as applicable, even though such delivery is not within the prescribed period specified in this Indenture.
Section 5.03. Collection
of Indebtedness and Suits for Enforcement by Trustee
The Company covenants that
if:
(a) default
is made in the payment of interest on any Note when such interest becomes due and payable and such default continues for a period of 30
days, or
(b) default
is made in the payment of principal of (and premium, if any) the Notes at the Maturity thereof, the Company will, upon demand of the Trustee,
pay to it, for the benefit of the Holders of such Notes, the whole amount then due and payable on such Notes for principal of (and premium,
if any), and interest on the Notes, and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue
principal (and premium, if any) and on any overdue interest, and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel.
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If an Event of Default with
respect to the Notes occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights
of the Holders of Notes by such appropriate judicial proceedings as the Trustee shall deem reasonably necessary to protect and enforce
any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
Section 5.04. Trustee
May File Proofs of Claim
In case of any judicial proceeding
relative to the Company (or any other obligor upon the Notes), its property or its creditors, the Trustee shall be entitled and empowered,
by intervention in such proceeding or otherwise, to take any and all actions in order to have claims of the Holders and the Trustee allowed
in any such proceeding. In particular, the Trustee shall be authorized to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and,
in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due
it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts
due the Trustee under Section 6.07.
No provision of this Indenture
shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however, that the Trustee may, on behalf of the
Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors’ or other similar committee.
Section 5.05. Trustee
May Enforce Claims Without Possession of Notes
All rights of action and claims
under this Indenture or the Notes may be prosecuted and enforced by the Trustee without the possession of any of the Notes or the production
thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Notes in respect of which such judgment
has been recovered.
Section 5.06. Application
of Money Collected
Any money collected by the
Trustee or the Collateral Agent pursuant to this Article shall be applied in the following order and at the date or dates fixed by
the Trustee, subject to the terms of the Security Documents and the Intercreditor Agreements, and, in case of the distribution of such
money on account of principal or any premium or interest upon presentation of the Notes and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all
amounts due to the Trustee under Section 6.07 and to the Collateral Agent under Section 14.05;
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SECOND: To the payment of
the amounts then due and unpaid on the Notes for the principal of (and premium, if any), and any interest on, the Notes in respect of
which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the
amounts due and payable on such Notes for principal of (and premium, if any), and any interest, respectively; and
THIRD: To the Company.
Section 5.07. Limitation
on Suits
No Holder shall have any right
to institute any proceeding, judicial or otherwise, with respect to this Indenture or the Notes, or for the appointment of a receiver
or trustee, or for any other remedy under this Indenture or the Notes, unless
(a) such
Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Notes;
(b) the
Holders of not less than a majority in principal amount of the Outstanding Notes shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(c) such
Holder or Holders have offered, and if requested provided, to the Trustee reasonable indemnity against the costs, expenses and liabilities
to be incurred in compliance with such request;
(d) the
Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding;
and
(e) no
direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Notes;
it being understood and intended that no one or
more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture or any
Note to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference
over any other of such Holders or to enforce any right under this Indenture or any Note, except in the manner herein or therein provided
and for the equal and ratable benefit of all of such Holders.
Section 5.08. Unconditional
Right of Holders to Receive Payment
Notwithstanding any other
provision in this Indenture, the Holder of any Note shall have the right, which is absolute and unconditional, to receive payment of the
principal of (and premium, if any), and any interest on, such Note on the respective Stated Maturities expressed in such Note (or, in
the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not
be impaired without the consent of such Holder.
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Section 5.09. Restoration
of Rights and Remedies
If the Trustee or any Holder
has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned
for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination
in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder
and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
Section 5.10. Rights
and Remedies Cumulative
Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes in the last paragraph of Section 3.06, no
right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder,
or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 5.11. Delay
or Omission Not Waiver
No delay or omission of the
Trustee or of any Holder of any Notes to exercise any right or remedy accruing upon any Event of Default shall impair any such right or
remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or
by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or
by the Holders, as the case may be.
Section 5.12. Control
by Holders
The Holders of a majority
in principal amount of the Outstanding Notes shall have the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Notes; provided
that
(a) such
direction shall not be in conflict with any rule of law or with this Indenture,
(b) the
Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction, and
(c) the
Trustee need not take any action which might involve it in personal liability or be unjustly prejudicial to the Holders of Notes not consenting
(provided, that the Trustee shall not have an affirmative duty to determine whether such direction is prejudicial to any Holder).
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Section 5.13. Waiver
of Past Defaults
The Holders of not less than
a majority in principal amount of the Outstanding Notes may on behalf of the Holders of all the Notes waive any past default hereunder
with respect to such Notes and its consequences, except a default
(a) in
the payment of the principal of (and premium, if any) or interest on the Notes, or
(b) in
respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of each Holder
of Outstanding Notes affected.
Upon any such waiver, such
default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 5.14. Undertaking
for Costs
In any suit for the enforcement
of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee,
a court may require any party litigant in such suit to file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant; provided that this Section 5.14 shall not be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the Company.
Section 5.15. Waiver
of Usury, Stay or Extension Laws
The Company covenants (to
the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
ARTICLE Six
The
Trustee
Section 6.01. Certain
Duties and Responsibilities
The duties and responsibilities
of the Trustee shall be as provided by this Indenture. Notwithstanding the foregoing, no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it. The Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against
the Trustee. Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the provisions of this Section.
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Section 6.02. Notice
of Defaults
If a default occurs hereunder
with respect to the Notes of which a Responsible Officer of the Trustee has actual knowledge, the Trustee shall give the Holders of the
Notes notice of such default; provided, however, that in the case of any default of the character specified in clause
(d) of Section 5.01 with respect to the Notes, no such notice to Holders shall be given until at least 30 days after the occurrence
thereof. For the purpose of this Section, the term “default” means any event which is, or after notice or lapse of
time or both would become, an Event of Default with respect to the Notes.
Section 6.03. Certain
Rights of Trustee
Subject to the provisions of Section 6.01:
(a) the
Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, judgment, bond, debenture, note, other evidence of indebtedness
or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties, not only
as to due execution, validity and effectiveness, but also as to the truth and accuracy of any information contained therein;
(b) any
request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order, and any resolution
of the Board shall be sufficiently evidenced by a Board Resolution;
(c) whenever
in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering
or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, conclusively rely upon an Officer’s Certificate or Opinion of Counsel, or both;
(d) the
Trustee may consult with counsel of its own selection and the written advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the
Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;
(f) the
Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and,
if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney;
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(g) the
Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys
and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care
by it hereunder;
(h) the
Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it, or errors in judgment made, in good faith and
reasonably believed by it or any of its officers, employees or agents to be authorized or within the discretion or rights or powers conferred
upon it by this Indenture;
(i) the
Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proven that the Trustee
was negligent in ascertaining the pertinent facts, or acted with willful misconduct;
(j) the
Trustee shall not be deemed to know or be charged with knowledge of any default or Event of Default unless a Responsible Officer of the
Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee
at the Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture and the Event of Default;
(k) the
rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and the Person
employed to act hereunder;
(l) the
Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received
by it pursuant to Section 5.12 hereof. The Holders of a majority in aggregate principal amount of the outstanding Notes may direct
the time, method and place of conducting any proceeding for any remedy available to the Trustee or of exercising any trust or power conferred
on the Trustee. However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture or the Notes or that
the Trustee determines is unduly prejudicial to the rights of other Holders or would involve the Trustee in personal liability (it being
understood that the Trustee has no duty to determine if any directed action is prejudicial to any Holder); provided, however, that the
Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction. Prior to taking any such
action hereunder, the Trustee shall be entitled to indemnification satisfactory to it against all fees, losses, liabilities and expenses
(including attorney’s fees and expenses) that may be caused by taking or not taking such action;
(m) the
permissive rights of the Trustee to do things enumerated in this Agreement shall not be construed as a duty;
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(n) neither
the Trustee nor the Collateral Agent shall have any obligation to give, execute, deliver, file, record, authorize or obtain any financing
statements, notices, instruments, documents, agreements, consents or other papers as shall be necessary to (i) create, preserve,
perfect or validate the security interest granted to the Trustee or the Collateral Agent pursuant to the Indenture or other Note Documents
or (ii) enable the Trustee or the Collateral Agent to exercise and enforce its rights under the Indenture and the other Note Documents
with respect to such pledge and security interest. In addition, neither the Trustee nor the Collateral Agent shall have any responsibility
or liability (i) in connection with the acts or omissions of the Company in respect of the foregoing or (ii) for or with respect
to the legality, validity and enforceability of any security interest created in the Collateral or the perfection and priority of such
security interest;
(o) the
Trustee shall not be liable for any acts or omissions, except for such losses, damages or expenses which have been finally adjudicated
by a court of competent jurisdiction to have resulted from the Trustee's gross negligence or willful misconduct;
(p) in
no event shall the Trustee be responsible or liable for special, indirect, punitive, incidental or consequential loss or damage of any
kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood
of such loss or damage and regardless of the form of action;
(q) the
Trustee shall neither be responsible for, nor chargeable with, knowledge of the terms and conditions of any other agreement, instrument,
or document other than this Indenture, whether or not an original or a copy of such agreement has been provided to the Trustee;
(r) the
Trustee shall have no duty to know or inquire as to the performance or nonperformance of any provision of any other agreement, instrument,
or document other than this Indenture;
(s) neither
the Trustee nor any of its directors, officers, employees, agents or affiliates shall be responsible for nor have any duty to monitor
the performance or any action of the Company, Guarantors, Collateral Agent, or any of their directors, members, officers, agents, affiliates
or employee, nor shall it have any liability in connection with the malfeasance or nonfeasance by such party. Trustee may assume performance
by all such Persons of their respective obligations. The Trustee shall have no enforcement or notification obligations relating to breaches
of representations or warranties of any other Person;
(t) the
Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Indenture directly
arising out of or caused by circumstances beyond its control, including without limitation, any act or provision of any present or future
law or regulation or governmental authority; acts of God; earthquakes; fires; floods; wars; terrorism; civil or military disturbances;
sabotage; epidemics; riots; interruptions, loss or malfunctions of utilities, computer (hardware or software) or communications service
accidents; labor disputes; acts of civil or military authority or governmental actions; or the unavailability of the Federal Reserve Bank
wire or telex or other wire or communication facility; it being understood that the Trustee shall use its best efforts to resume performance
as soon as practicable under the circumstances; and
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(u) whether
or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section 6.03.
Section 6.04. Not
Responsible for Recitals or Issuance of Notes
The recitals contained herein
and in the Notes, except the Trustee’s certificates of authentication, shall be taken as the statements of the Company, and neither
the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Notes. Neither the Trustee nor any Authenticating Agent shall be accountable for
the use or application by the Company of Notes or the proceeds thereof.
Section 6.05. May Hold
Notes
The Trustee, any Authenticating
Agent, any Paying Agent, any Security Registrar or any other agent of the Company, in its individual or any other capacity, may become
the owner or pledgee of Notes and, subject to Sections 6.08 and 6.13, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.
Section 6.06. Money
Held in Trust
Money held by the Trustee
in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability
for interest on any money received by it hereunder except as otherwise agreed with the Company.
Section 6.07. Compensation
and Reimbursement
The Company agrees:
(a) to
pay to the Trustee and the Collateral Agent from time to time reasonable compensation for all services rendered by them hereunder or under
the other Note Documents (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of
an express trust);
(b) except
as otherwise expressly provided herein, to reimburse the Trustee and the Collateral Agent upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee or the Collateral Agent in accordance with any provision of this Indenture
or the Note Documents (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its gross negligence or willful misconduct;
(c) to
indemnify and release the Trustee and the Notes Collateral Agent and their officers, directors, employees, and agents (collectively, the
“Indemnified Parties”) for, and to defend and hold it or them harmless against, any loss, liability, action, suit or
proceedings at law or in equity, and any other expenses, fees or charges of any character or nature (including, without limitation, attorney’s
fees and expense and the costs of enforcement of this Indenture or any provision thereof), which an Indemnified Party may incur or with
which it may be threatened by reason of acting as or on behalf of the Trustee under this Indenture, except to the extent the same shall
have been finally adjudicated by a court of competent jurisdiction to have been directly caused by the Trustee's gross negligence or willful
misconduct on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including
the costs and expenses of defending the Indemnified Parties against any claim or liability in connection with the exercise or performance
of any of the Indemnified Parties’ powers or duties hereunder;
46
(d) the
terms of this indemnity and Section 6.07 shall survive the termination of this Indenture or the earlier resignation or removal of
the Trustee or the Notes Collateral Agent, as applicable; and
(e) to
secure the Company’s payment obligations in this Section 6.07, the Trustee and the Collateral Agent shall have a lien prior
to the Notes on all money or property held or collected by the Trustee or the Notes Collateral Agent other than money or property held
in trust to pay principal of and interest on particular Notes. Such lien shall survive the satisfaction and discharge of this Indenture.
The Trustee’s and the Collateral Agent’s respective right to receive payment of any amounts due under this Section 6.07
shall not be subordinate to any other liability or Indebtedness of the Company.
Section 6.08. Conflicting
Interests
If the Trustee has or shall
acquire a conflicting interest, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, this Indenture. The Trustee shall not be deemed to have a conflicting interest by virtue of being a
trustee under this Indenture with respect to the Notes and any other indentures of the Company.
Section 6.09. Corporate
Trustee Required; Eligibility
There shall at all times be
one (and only one) Trustee hereunder with respect to the Notes, which may be Trustee hereunder for the Notes. Each Trustee shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such, and has a combined capital and surplus of at least $50,000,000.
If any such Person publishes reports of condition at least annually, pursuant to law or to the requirements of its supervising or examining
authority, then for the purposes of this Section and to the extent permitted by the Trust Indenture Act, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.
If at any time the Trustee with respect to the Notes shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter specified in this Article.
Section 6.10. Resignation
and Removal; Appointment of Successor
No resignation or removal
of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable requirements of Section 6.11.
The Trustee may resign at
any time with respect to the Notes by giving written notice thereof to the Company. If the instrument of acceptance by a successor Trustee
required by Section 6.11 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the
Notes.
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The Trustee may be removed
at any time with respect to the Notes by Act of the Holders of a majority in principal amount of the Outstanding Notes, delivered to the
Trustee and to the Company.
If at any time:
(i) the
Trustee shall fail to comply with Section 6.08 after written request therefor by the Company or by any Holder who has been a bona
fide Holder of a Note for at least six months, or
(ii) the
Trustee shall cease to be eligible under Section 6.09 and shall fail to resign after written request therefor by the Company or by
any such Holder, or
(iii) the
Trustee shall become incapable of acting or shall be adjudged bankrupt or insolvent or a receiver of the Trustee or of its property shall
be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (A) the Company may
remove the Trustee with respect to all Notes, or (B) subject to Section 5.14, any Holder who has been a bona fide Holder of
a Note for at least six months may, on behalf of such Holder and all others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee with respect to all Notes and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign,
be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Notes,
the Company shall promptly appoint a successor Trustee or Trustees with respect to the Notes (it being understood that any such successor
Trustee may be appointed with respect to the Notes and that at any time there shall be only one Trustee with respect to the Notes) and
shall comply with the applicable requirements of Section 6.11. If, within one year after such resignation, removal or incapability,
or the occurrence of such vacancy, a successor Trustee with respect to the Notes shall be appointed by Act of the Holders of a majority
in principal amount of the Outstanding Notes delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 6.11, become the successor
Trustee with respect to the Notes and to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee
with respect to the Notes shall have been so appointed by the Company or the Holders of Notes and accepted appointment in the manner required
by Section 6.11, any Holder who has been a bona fide Holder of a Note for at least six months may, on behalf of such Holder and all
others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the
Notes.
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The Company shall give notice
of each resignation and each removal of the Trustee with respect to the Notes and each appointment of a successor Trustee with respect
to the Notes to all Holders of Notes in the manner provided in Section 1.06. Each notice shall include the name of the successor
Trustee with respect to the Notes and the address of its Corporate Trust Office.
Section 6.11. Acceptance
of Appointment by Successor
In case of the appointment
hereunder of a successor Trustee with respect to all Notes, every such successor Trustee so appointed shall execute, acknowledge and deliver
to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers
and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
In case of the appointment
hereunder of a successor Trustee with respect to the Notes, the Company, the retiring Trustee and such successor Trustee with respect
to the Notes shall execute and deliver an indenture supplemental hereto wherein such successor Trustee shall accept such appointment and
which shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee
all the rights, powers, trusts and duties of the retiring Trustee with respect to the Notes and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and such
successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of
the retiring Trustee with respect to the Notes to which the appointment of such successor Trustee relates; but, on request of the
Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder with respect to the Notes to which the appointment of such successor Trustee relates.
Upon request of any such successor
Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee
all such rights, powers and trusts referred to in the first or second preceding paragraph, as the case may be.
No successor Trustee shall
accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.
Section 6.12. Merger,
Conversion, Consolidation or Succession to Business
Any Person into which the
Trustee may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation
to which the Trustee shall be a party, or any Person succeeding to all or substantially all the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, provided such Person shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Notes shall have
been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Notes so authenticated with the same effect as if such successor Trustee had itself
authenticated such Notes.
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Section 6.13. [Reserved].
Section 6.14. Appointment
of Authenticating Agent
The Trustee may appoint an
Authenticating Agent or Agents with respect to the Notes which shall be authorized to act on behalf of the Trustee to authenticate Notes
issued upon original issue and upon exchange, registration of transfer or partial redemption thereof or pursuant to Section 3.06,
and Notes so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Any such appointment shall be evidenced by an instrument in writing signed by a Responsible Officer
of the Trustee, and a copy of such instrument shall be promptly furnished to the Company. Wherever reference is made in this Indenture
to the authentication and delivery of Notes by the Trustee or the Trustee’s certificate of authentication, such reference shall
be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall at
all times be a corporation organized and doing business under the laws of the United States of America, any State thereof or the District
of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000
and subject to supervision or examination by Federal or State authority. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section,
the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.
Any corporation into which
an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency
or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent; provided such corporation
shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
An Authenticating Agent may
resign at any time by giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency
of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company.
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Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company and
shall give notice of such appointment in the manner provided in Section 1.06 to all Holders of Notes with respect to which such Authenticating
Agent will serve. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights,
powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay
to each Authenticating Agent from time to time reasonable compensation for its services under this Section, and the Trustee shall be entitled
to be reimbursed for such payments, subject to the provisions of Section 6.07.
If an appointment with respect
to the Notes is made pursuant to this Section, the Notes may have endorsed thereon, in addition to the Trustee’s certificate of
authentication, an alternative certificate of authentication in the following form:
This is one of the Notes referred
to in the within-mentioned Indenture.
As Trustee
As Authenticating Agent
By
Authorized Signatory
If all of the Notes may not
be originally issued at one time, and if the Trustee does not have an office capable of authenticating Notes upon original issuance located
in a Place of Payment where the Company wishes to have Notes authenticated upon original issuance, the Trustee, if so requested by the
Company in writing (which writing need not comply with Section 1.02 and need not be accompanied by an Opinion of Counsel), shall
appoint in accordance with this Section an Authenticating Agent having an office in a Place of Payment designated by the Company
with respect to such Notes.
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Section 6.15. Rules by
Trustee
The Trustee may make reasonable
rules for any Act of Holders or a meeting of Holders of Notes.
ARTICLE Seven
Holders’
Lists and Reports by Trustee and Company
Section 7.01. Company
to Furnish Trustee Names and Addresses of Holders
The Company will furnish or
cause to be furnished to the Trustee
(a) semi-annually,
not later than 15 days after each Record Date or in the case of any Notes on which semi-annual interest is not payable, not more than
15 days after such semi-annual dates specified by the Trustee (which shall initially be the Interest Payment Dates), a list, in such form
as the Trustee may reasonably require, of the names and addresses of the Holders of Notes as of the Record Date or such semi-annual date,
as the case may be, and
(b) at
such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time such list is furnished;
excluding from any such list names and addresses
received by the Trustee in its capacity as Security Registrar.
Section 7.02. Preservation
of Information
The Trustee shall preserve,
in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the
Trustee as provided in Section 7.01 and the names and addresses of Holders received by the Trustee in its capacity as Security Registrar.
The Trustee may destroy any list furnished to it as provided in Section 7.01 upon receipt of a new list so furnished.
ARTICLE Eight
Consolidation,
Merger, Conveyance, Transfer or Lease
Section 8.01. Company
May Consolidate, Etc., Only on Certain Terms
The Company shall not consolidate
with or merge into any other Person or convey, transfer or lease all or substantially all of the properties and assets of the Company
and its Subsidiaries, taken as a whole, in any transaction or series of related transactions to any Person (other than a direct or indirect
wholly owned subsidiary of the Company), and the Company shall not permit any Person (other than a direct or indirect wholly owned subsidiary
of the Company) to consolidate with or merge into the Company, unless:
(a) The
Company is the surviving corporation (as defined herein) or, in case the Company shall consolidate with or merge into another Person or
convey, transfer or lease all or substantially all of its properties and assets to any Person, the Person formed by such consolidation
or into which the Company is merged or the Person which acquires by conveyance or transfer, or which leases, all or substantially all
of the properties and assets of the Company shall be a corporation (as so defined) organized and validly existing under the laws of the
United States of America, any State thereof or the District of Columbia and shall expressly assume, by a supplemental indenture or other
documents or instruments as may be executed and delivered to the Trustee and Collateral Agent, in form satisfactory to the Trustee and
Collateral Agent, the due and punctual payment of the principal of and any premium and interest on all the Notes and the performance or
observance of every covenant of this Indenture and all obligations under the Security Documents on the part of the Company to be performed
or observed;
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(b) immediately
after giving effect to such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become
an Event of Default, shall have happened and be continuing; and
(c) the
Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture or other document or instrument is required in connection with such transaction,
such supplemental indenture and any other documents or instruments as may be executed and delivered to the Trustee and Collateral Agent
comply with this Section 8.01 and that all conditions precedent herein provided for relating to such transaction have been complied
with.
Upon any consolidation of
the Company with, or merger of the Company into, any other Person or any conveyance, transfer or lease of all or substantially all of
the properties and assets of the Company and its Subsidiaries in accordance with this Section 8.01, the successor Person formed by
such consolidation or into which the Company is merged or to which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Person shall be relieved of
all obligations and covenants under this Indenture and the Notes.
Section 8.02. Subsidiary
Guarantor May Consolidate, Etc., Only on Certain Terms; Successor Substituted.
A Subsidiary Guarantor may
not consolidate with or merge into any other Person or convey, transfer or lease all or substantially all of its properties and assets
to any other Person (other than the Company or another Subsidiary Guarantor), and a Subsidiary Guarantor may not permit any other Person
(other than the Company or another Subsidiary Guarantor) to consolidate with or merge into it, unless:
(a) either
(1) the Subsidiary Guarantor is the surviving entity or (2) the Person formed by or surviving any such consolidation or merger
(if other than the Subsidiary Guarantor) or to which such conveyance, transfer or lease has been made is an entity organized and validly
existing under the laws of the United States, any state thereof or the District of Columbia, expressly assumes, by a supplemental indenture
or other documents or instruments as may be executed and delivered to the Trustee, in form satisfactory to the Trustee, all of the Subsidiary
Guarantor’s obligations under the Note Documents and any conveyance, transfer or lease of all or substantially all of its properties
is made subject to any Mortgages securing such properties;
53
(b) immediately
after giving effect to such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become
an Event of Default shall have happened and be continuing; and
(c) the
Company has delivered to the Trustee and the Collateral Agent an Officer’s Certificate and an Opinion of Counsel, each stating that
such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture or other document or instrument is required
in connection with such transaction, that such supplemental indenture and any other documents or instruments as may be executed and delivered
to the Trustee and Collateral Agent comply with this Section 8.02 and that all conditions precedent provided for in this Indenture
relating to such transaction have been complied with;
provided
that this Section 8.02 shall not apply to a transaction that complies with Section 10.11 or to a transaction pursuant to which
such Subsidiary Guarantor shall be released from its obligations under its Subsidiary Guarantee and this Indenture in accordance with
Section 12.04.
Upon any consolidation of
a Subsidiary Guarantor with, or merger of a Subsidiary Guarantor into, any other Person or any conveyance, transfer or lease all or substantially
all of the properties and assets of a Subsidiary Guarantor in accordance with this Section 8.02, the successor Person formed by such
consolidation or into which such Subsidiary Guarantor is merged or to which such conveyance, transfer or lease is made shall succeed to,
and be substituted for, and may exercise every right and power of, such Subsidiary Guarantor under the Note Documents with the same effect
as if such successor Person had been named as a Subsidiary Guarantor in this Indenture, and thereafter, except in the case of a lease,
the predecessor Subsidiary Guarantor shall be relieved of all obligations and covenants under this Indenture and its Subsidiary Guarantee.
ARTICLE Nine
AMENDMENT,
SUPPLEMENT AND WAIVER
Section 9.01. Without
Consent of Holders
Without the consent of any
Holders, the Company, the Trustee and the Collateral Agent, at any time and from time to time, may amend or supplement this Indenture,
the Security Documents, the Intercreditor Agreements, any Guarantee and the Notes, for any of the following purposes:
(a) to
evidence the succession of another Person to the Company or a Subsidiary Guarantor and the assumption by any such successor of the covenants
of the Company herein and in the Notes, its obligations under the Security Documents or any Intercreditor Agreement or the covenants of
such Subsidiary Guarantor herein, in its Subsidiary Guarantee or its obligations under the Security Documents or any Intercreditor Agreement;
(b) to
add to the covenants of the Company or any Subsidiary Guarantor for the benefit of the Holders of the Notes or to surrender any right
or power herein conferred upon the Company or any Subsidiary Guarantor;
(c) to
add any additional Events of Default for the benefit of the Holders of the Notes;
54
(d) to
add to or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of
the Notes in bearer form, registrable or not registrable as to principal, and with or without interest coupons, or to permit or facilitate
the issuance of any Notes in uncertificated form;
(e) to
add guarantees of or to secure the Notes or any guarantees thereof, including to add Collateral with respect to any or all of the Notes
and/or Guarantees;
(f) to
evidence the release of any Subsidiary Guarantor or any guarantor of the Notes in accordance with this Indenture;
(g) to
evidence and provide for the acceptance of appointment hereunder by a successor Trustee, a successor Collateral Agent or a successor paying
agent with respect to the Notes and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of this Indenture (including
Section 6.11 or Section 14.01, as applicable);
(h) to
cure any ambiguity, to correct or supplement any provision contained herein or in any indenture supplemental hereto which may be defective
or inconsistent with any other provision contained herein or in any supplemental indenture;
(i) to
supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the defeasance (whether
legal or covenant defeasance) or satisfaction and discharge of the Notes; provided that any such action shall not adversely affect
the interests of the Holders of the Notes in any material respect;
(j) with
respect to the Security Documents, as provided in the relevant Security Document;
(k) to
comply with the rules of any applicable Depositary;
(l) to
make any other provisions with respect to matters or questions arising under this Indenture, provided that such action pursuant
to this clause (l) shall not adversely affect the interests of the Holders of Notes in any material respect;
(m) to
provide for the succession of any parties to the Security Documents (and any amendments that are administrative or ministerial in nature)
in connection with an amendment, renewal, extension, substitution, refinancing, restructuring, replacement, supplement or other modification
from time to time that is not prohibited by this Indenture;
(n) to
add to or change or eliminate any provision of this Indenture as shall be necessary or desirable to qualify this Indenture under the Trust
Indenture Act or in accordance with any amendments to the Trust Indenture Act;
(o) to
release any Collateral from the Lien securing the Notes when permitted or required by the Security Documents, the Intercreditor Agreements
and/or this Indenture (including pursuant to Section 10.11 and Section 14.04);
55
(p) to
make, complete or confirm any grant of a Lien or security interest in any property or assets as additional Collateral securing the Notes
Obligations, including when permitted or required by this Indenture or the Security Documents; or
(q) to
execute or amend any Security Document or any Intercreditor Agreement (or any supplement or joinder to any of the foregoing) under circumstances
provided in this Indenture or therein.
Section 9.02. With
Consent of Holders
With the consent of the Holders
of not less than a majority in principal amount of the Outstanding Notes affected, by Act of said Holders delivered to the Company and
the Trustee, the Company, the Trustee and Collateral Agent may amend or supplement this Indenture, the Security Documents, the Intercreditor
Agreements, any Guarantee and the Notes for the purpose of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the Holders of Notes under this Indenture; provided, however,
that no such amendment or supplement shall, without the consent of the Holder of each Outstanding Note affected thereby:
(a) change
the Stated Maturity of the principal of, or any installment of principal or interest on, any Note, or reduce the principal amount or the
rate or timing of interest thereon, or reduce the amount (including the amount of any premium payable) due upon the redemption thereof,
or reduce the amount of the principal of a Note which would be due and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.02, or change the date on which any Note may be subject to redemption, or change any Place of Payment where,
or the coin or currency in which, any Note, premium, if any, or interest thereon is payable, or impair the right to institute suit for
the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption
Date) provided, however, that this clause shall not require the consent of the Holder of each Outstanding Note (and shall
only require the consent of Holders of not less than a majority in principal amount of the Outstanding Notes affected) to amend or supplement
Section 10.11 (or any definition related thereto);
(b) reduce
the percentage in principal amount of the Outstanding Notes, the consent of whose Holders is required for any such amendment or supplement,
or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences) provided for in this Indenture; and
(c) modify
any of the provisions of this Section, Section 5.08 or Section 5.13, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Note affected
thereby; provided, however, that this clause shall not be deemed to require the consent of any Holder with respect to changes in
the references to “the Trustee” or “the Collateral Agent” and concomitant changes in this Section or the
deletion of this proviso, in accordance with the requirements of this Indenture (including Section 6.11, Section 14.01 and clause
(g) of Section 9.01, as applicable).
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It
shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
Section 9.03. Execution
of Supplemental Indentures
The Trustee and the Collateral
Agent, as applicable, shall sign any amendment, supplement or waiver authorized pursuant to this Article Nine; provided that
the Trustee and the Collateral Agent may, but shall not be obligated to, enter into any such supplemental indenture which affects their
respective rights, duties or immunities under this Indenture or otherwise. In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee
and the Collateral Agent shall be entitled to receive, and (subject to Section 6.01) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture.
Section 9.04. Effect
of Supplemental Indentures
Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall
form a part of this Indenture for all purposes; and every Holder of Notes theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 9.05. Reference
in Notes to Supplemental Indentures
Notes authenticated and delivered
after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation
in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Notes
so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed
by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Notes.
ARTICLE Ten
Covenants
Section 10.01. Payment
of Principal, Premium and Interest
The Company covenants and
agrees that it will duly and punctually pay the principal of (and premium, if any), and any interest on, the Notes in accordance with
the terms of the Notes and this Indenture.
Section 10.02. Maintenance
of Office or Agency
The Company will maintain
in each Place of Payment for the Notes an office or agency where Notes may be presented or surrendered for payment, where Notes may be
surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Notes and
this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish
the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices
and demands.
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The Company may also from
time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations; provided, however, that no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for Notes for such purposes.
The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of
any such other office or agency.
Section 10.03. Money
for Notes Payments to Be Held in Trust
If the Company shall at any
time act as its own Paying Agent with respect to the Notes, it will, on or before each due date of the principal of (and premium, if any),
and any interest on, any of the Notes, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to
pay the principal of (and premium, if any), and any interest, so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall
have one or more Paying Agents for the Notes, it will, prior to each due date of the principal of (and premium, if any), and any interest
on, any Notes, deposit with a Paying Agent a sum sufficient to pay the principal of (and premium, if any), and any interest, so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to such principal of (and premium, if any), and interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each
Paying Agent for the Notes other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall
agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will during the continuance of any default by
the Company (or any other obligor upon the Notes) in the making of any payment in respect of the Notes, upon the written request of the
Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent for payment in respect of the Notes.
The Company may at any time,
for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct
any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.
58
Any money deposited with the
Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of (and premium, if any), and any
interest on, any Notes and remaining unclaimed for two years after such principal (and premium, if any) and any interest has become due
and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Note shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in an Authorized Newspaper in each Place of Payment, notice that such money
remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
Section 10.04. Statement
by Officers as to Default
The Company will deliver to
the Trustee, within 120 days after the end of each fiscal year of the Company ending after the date hereof, an Officer’s Certificate,
stating whether or not to the best knowledge of the signers thereof the Company is in default in the performance and observance of any
of the terms, provisions and conditions of this Indenture (without regard to any period of grace or requirement of notice provided hereunder)
and, if the Company shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge.
Section 10.05. Existence
Subject to Article Eight,
the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (charter
and statutory) and franchises; provided, however, that the Company shall not be required to preserve any such right
or franchise if the Board shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company.
Section 10.06. [Reserved].
Section 10.07. Limitations
on Incurrence of Debt and Issuance of Preferred Stock.
(a) The
Company will not, and will not permit any Subsidiary to, incur any additional Debt if, immediately after giving effect to the incurrence
of such additional Debt and the application of the proceeds therefrom, the aggregate principal amount of all outstanding Debt of the Company
and its Subsidiaries on a consolidated basis determined in accordance with generally accepted accounting principles is greater than 60%
of the sum of (without duplication):
(i) Total
Assets as of the end of the fiscal quarter covered by the Company’s quarterly or annual financial statements, as the case may be,
most recently delivered pursuant to Section 10.10 (such quarter, the “Latest Completed Fiscal Quarter”) prior
to the incurrence of such additional Debt; and
(ii) the
purchase price of any real estate assets or mortgages receivable acquired, and the amount of any securities offering proceeds received
(to the extent that such proceeds were not used to acquire real estate assets or mortgages receivable or used to reduce Debt), by the
Company or any Subsidiary since the end of such Latest Completed Fiscal Quarter, including those proceeds obtained in connection with
the incurrence of such additional Debt.
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“Adjusted Total Assets”
means the sum of (i) and (ii) above.
(b) The
Company will not, and will not permit any Subsidiary to, incur any additional Secured Debt if, immediately after giving effect to the
incurrence of such additional Secured Debt and the application of the proceeds therefrom, the aggregate principal amount of all outstanding
Secured Debt of the Company and its Subsidiaries on a consolidated basis determined in accordance with generally accepted accounting principles
is greater than 50% of Adjusted Total Assets.
(c) The
Company will not, and will not permit any Subsidiary to, incur any additional Debt if, immediately after giving effect to the incurrence
of such additional Debt and on a pro forma basis, including the application of the proceeds therefrom, the ratio of Consolidated Income
Available for Debt Service to Annual Debt Service for the four consecutive fiscal quarters most recently ended prior to the date on which
such additional Debt is to be incurred is less than 1.25 to 1.0, and calculated on the assumptions that:
(i) such
Debt and any other Debt incurred by the Company and its Subsidiaries on a consolidated basis since the first day of such four-quarter
period and the application of the proceeds therefrom, including to refinance other Debt, had occurred at the beginning of such period;
(ii) the
repayment, retirement or other discharge of any other Debt by the Company and its Subsidiaries on a consolidated basis since the first
day of such four-quarter period had occurred at the beginning of such period (except that, in making such computation, the amount of Debt
under any revolving credit facility shall be computed based upon the average daily balance of such Debt during such period);
(iii) in
the case of Acquired Debt or Debt incurred in connection with or in contemplation of any acquisition, including any Person becoming a
Subsidiary, since the first day of such four-quarter period, the related acquisition had occurred as of the first day of such period with
appropriate adjustments with respect to such acquisition being included in such pro forma calculation; and
(iv) in
the case of any acquisition or disposition by the Company and its Subsidiaries on a consolidated basis of any asset or group of assets
since the first day of such four-quarter period, whether by merger, stock purchase or sale, or asset purchase or sale, such acquisition
or disposition or any related repayment of Debt had occurred as of the first day of such period with the appropriate adjustments with
respect to such acquisition or disposition being included in such pro forma calculation.
If the Debt giving rise to
the need to make the foregoing calculation or any other Debt incurred after the first day of the relevant four-quarter period bears interest
at a floating interest rate, then, for purposes of calculating the Annual Debt Service, the interest rate on such Debt shall be computed
on a pro forma basis as if the average interest rate which would have been in effect during the entirety of such four-quarter period had
been the applicable rate for the entirety of such period.
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(d) The
Company will not permit any Subsidiary Guarantor or any Subsidiary of a Subsidiary Guarantor to incur any Funded Debt or issue any shares
of Disqualified Stock or Preferred Stock; provided that the foregoing limitations shall not apply to (x) any Permitted Senior
Debt or any Debt secured by Permitted Pari Passu Liens, the maturity date (or mandatory redemption date on such Preferred Stock, if applicable)
of which is not less than 180 days after the Stated Maturity of the Notes (the “Inside Maturity Limitation”), (y) any
Debt secured by Permitted Junior Liens, Unsecured Debt and/or Preferred Stock, subject to the Inside Maturity Limitation.
(e) Notwithstanding
the limitations contained in paragraphs (a), (b), (c) and (d) of this Section 10.07, the Company and its Subsidiaries may
incur:
(i) Permitted
Refinancing Indebtedness;
(ii) Permitted
Senior Debt;
(iii) Debt
in an aggregate principal amount at any time outstanding not in excess of $30.0 million;
(iv) any
Debt in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into
in the ordinary course of business;
(v) Debt
in existence on the date hereof (other than any Debt under the Credit Agreement), after giving effect to the Plan;
(vi) Debt
with respect to the New Intermediate Holdco 2029 Secured Notes and any guarantee thereof;
(vii) Debt
of Office Properties Income Intermediate Holdco II Trust (or any successor thereto) or any of its Subsidiaries permitted to be incurred
under the indenture governing the New Intermediate Holdco 2029 Secured Notes;
(viii) Debt
of any Subsidiary that (x) is not otherwise issued or guaranteed by the Company or any other Subsidiary, and (y) if secured
is secured solely by Property held by such Subsidiary; and
(ix) Debt
incurred under any CMBS Facility so long as the net cash proceeds of such Debt are substantially applied to redeem an aggregate principal
amount of Notes (together with accrued and unpaid interest thereon) equal to such net cash proceeds (“Permitted CMBS Debt”).
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Section 10.08. [Reserved].
Section 10.09. Limitations
on Liens.
The Company will not, and
will not cause or permit any of the Subsidiary Guarantors to, create, incur, assume or otherwise cause to exist or become effective any
Lien securing Debt upon any Collateral other than Permitted Liens.
Section 10.10. Provision
of Financial Information.
(a) The
Company shall file, furnish or otherwise publicly report (x) its annual and unaudited quarterly financial statements within (i) in
the case of its annual financial statements, 120 days after the end of the fiscal year to which they relate, and (ii) in the case
of its quarterly financial statements for each fiscal quarter other than the last fiscal quarter of each fiscal year, 60 days after the
end of the fiscal quarter to which they relate, and (y) with respect to the annual financial statements only, a report on the annual
financial statements by the Company’s independent registered public accounting firm.
(b) The
Company shall make available such information and such reports as set forth in clauses (a)-(d) above by posting such information
on its website, on Intralinks or any comparable password-protected online data system which shall require a confidentiality acknowledgment,
and shall make such information readily available to any Holder, any prospective investor in the Notes; provided that the Company
shall post such information thereon and make readily available any password or other login information to any such Holder or prospective
investor; provided, further, that such Holders or prospective investors shall agree to (i) treat all such reports (and
the information contained therein) and information as confidential, (ii) not use such reports and the information contained therein
for any purpose other than their investment or potential investment in the Notes and (iii) not publicly disclose any such reports
(and the information contained therein); provided further that (x) the Company may satisfy its obligations under Section 10.10(a) with
respect to financial information relating to the Company by furnishing financial information relating to any parent entity instead of
the Company so long as, to the extent such information relates to such Person and such Person has material operations, assets or liabilities
separate and apart from its ownership of the Company, such information is accompanied by consolidating information, which may be unaudited,
that explains in reasonable detail the differences between the information of such Person, on the one hand, and the information relating
to the Company and its Subsidiaries on a stand-alone basis, on the other hand, and (y) the Company shall be deemed to have furnished
the information referred to in Section 10.10(a) if such reports have been filed with the Commission
(c) The
Company shall furnish to prospective investors, upon their request, any information required to be delivered pursuant to Rule 144A(d)(4) under
the Securities Act so long as the Notes are not freely transferable under the Securities Act.
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(d) The
Trustee shall have no liability or responsibility for the filing, timeliness or content of any such reports, financial statements, documents
or information filed by the Company and delivery of such reports, financial statements, documents or information to the Trustee is for
informational purposes only and receipt of such shall not constitute constructive notice thereof or any information contained therein
or determinable from information contained therein, including the Company’s, any Guarantor’s or any other Person’s compliance
with any of its covenants under this Indenture or the Notes (as to which the Trustee is entitled to rely exclusively on Officer’s
Certificates delivered pursuant to this Indenture). The Trustee shall have no duty to review or analyze reports, financial statements,
documents or information delivered to it. The Trustee shall not be obligated to monitor or confirm, on a continuing basis or otherwise,
the Issuer’s compliance with this Section 10.10 or with respect to any reports or other documents filed with the SEC or posted
to or any website in accordance with the provisions of this Indenture.
Section 10.11. Limitation
on Collateral Asset Sales; Event of Loss.
(a) The
Company shall not, and shall not cause or permit any of the Subsidiary Guarantors to consummate a Collateral Asset Sale unless:
(i) the
Company (or the Subsidiary Guarantor, as the case may be) receives consideration (including by way of relief from or by any other Person
assuming responsibility for, any liabilities, contingent or otherwise) at the time of the Collateral Asset Sale at least equal to the
Fair Market Value (determined on the date of contractually agreeing to such sale) of the assets or properties issued or sold or otherwise
disposed of; and
(ii) at
least 75% of the consideration received in the Collateral Asset Sale by the Company or such Subsidiary Guarantor, as the case may be,
is in the form of cash or Cash Equivalents. Notwithstanding the foregoing, the Company or any Subsidiary Guarantor may consummate any
Collateral Asset Sale of any Second Lien Collateral that is permitted pursuant to the terms of any Credit Facility secured by a Permitted
Senior Lien on such Second Lien Collateral.
(b) Within
365 days after the receipt of any Net Proceeds from a Collateral Asset Sale or an Event of Loss, the Company may apply an amount equal
to the Net Proceeds from such Collateral Asset Sale or Event of Loss:
(i) to
prepay, repay, redeem or purchase the Notes or other Debt of the Company that ranks pari passu in right of payment with the Notes
(“Pari Passu Debt”) (provided, that in the case of any prepayment, repayment, redemption or purchase of Pari
Passu Debt, the Company shall equally and ratably reduce Notes via the redemption mechanics in Section 11.01, through open market
purchases (to the extent such purchases are at a purchase price at or above 100% of the principal amount thereof, plus accrued and unpaid
interest, if applicable), or by making an offer to all Holders to purchase their Notes at a price equal to 100% of the principal amount
thereof, plus accrued and unpaid interest, it being understood that if such offer is made, the offer amount will be deemed to have been
applied in compliance with this Section 10.11(b), regardless of whether such offer is accepted;
(ii) to
acquire all or substantially all of the assets of a Person, or a majority of the voting stock of such Person (provided, that such
assets or voting stock, as the case may be, become Collateral, and such Person, to the extent if becomes a Subsidiary of the Company becomes
a Subsidiary Guarantor);
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(iii) make
capital expenditures, acquire replacement property that will become Collateral, or repair or reconstruct Collateral;
(iv) for
working capital purposes and/or payment of ordinary course expenses, including any management fees, payable by the Company or any of its
subsidiaries;
(v) to
make required amortization payments with respect to Office Properties Income Intermediate Holdco II Trust’s 8.375% Senior Secured
Limited OPI Guaranteed Notes due 2029 and/or pay the 2027 Ad Hoc Group Support Fee (as described in Section 5.18 of the Plan); provided,
however, that the aggregate amount of payments applied with respect to this clause (v) shall be no more than $50 million; or
(vi) a
combination of any of the foregoing;
provided,
that a binding commitment to apply any Net Proceeds from a Collateral Asset Sale as set forth in clauses (ii) or (iii) of this
Section 10.11(b) shall be treated as a permitted application of such Net Proceeds from the date of such commitment so long as
the Company enters into such commitment with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment
within 180 days of the end of such 365-day period (an “Acceptable Commitment”); provided further, that if any
Acceptable Commitment is later cancelled or terminated for any reason before such funds are so applied or to the extent such funds are
not so applied within such 180-days, then, to the extent the 365-day period referred to in the first sentence of this clause (b) has
lapsed, such unapplied amount shall constitute Excess Proceeds (as defined below).
(c) If
the amount of Net Proceeds received from Collateral Asset Sales exceeds the amount invested, expended or applied as provided and within
the time periods set forth in Section 10.11(b), such excess amount will be deemed to constitute “Excess Proceeds.”
No later than the 20th Business Day following the date on which the aggregate amount of Excess Proceeds exceeds $20.0 million, the
Company shall make an offer to all Holders of Notes, and, if required by the terms of any Pari Passu Debt, to the holders of any such
Pari Passu Debt (an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari
Passu Debt (subject to any applicable authorized denomination) that may be purchased out of the Excess Proceeds at an offer price in cash
in an amount equal to 100% (or such equal or lower price as may be required by the agreements governing such Pari Passu Debt) of the principal
amount thereof, plus accrued and unpaid interest to, but not including, the date fixed for the closing of such offer, in accordance with
the procedures set forth in this Indenture and, in the case of Pari Passu Debt in accordance with the agreements governing such Pari Passu
Debt.
(d) To
the extent that the aggregate amount of Notes and Pari Passu Debt tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds,
the Company may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture.
If the aggregate principal amount of Notes and Pari Passu Debt tendered by such holders thereof exceeds the amount of Excess Proceeds,
the Trustee shall select the Notes and the agent for such Pari Passu Debt, as applicable, shall select such Pari Passu Debt to be purchased
by lot, pro rata or by any other method customarily authorized by clearing systems (so long as an authorized denomination results
therefrom) based on the accreted value or principal amount of the Notes or such Pari Passu Debt tendered. Additionally, the Company may,
at its option, make an Asset Sale Offer using funds in an amount equal to the amount of Net Proceeds from any Collateral Asset Sale at
any time after consummation of such Collateral Asset Sale; provided that such Asset Sale Offer shall be in an aggregate amount
of not less than $10.0 million. Upon completion of any Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
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(e) The
Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder
and all regulatory requirements, in each case to the extent such laws, regulations or regulatory requirements are applicable in connection
with the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations
or regulatory requirements conflict with the provisions of this Indenture, the Company will comply with the applicable securities laws
and regulations and regulatory requirements and shall be deemed not to have breached its obligations described in this Indenture by virtue
thereof.
(f) For
the purposes of this Section 10.11 (and no other provision), the following shall be deemed to be cash or Cash Equivalents:
(i) the
greater of the principal amount and carrying value of any liabilities (as reflected on the most recent balance sheet of the Company provided
hereunder or in the footnotes thereto), or if incurred, accrued or increased subsequent to the date of such balance sheet, such liabilities
that would have been reflected on the balance sheet of the Company (or in the footnotes thereto) if such incurrence, accrual or increase
had taken place on or prior to the date of such balance sheet, as determined in good faith by the Company, of the Company or any Subsidiary
Guarantor, other than liabilities that are by their terms subordinated to the Notes Obligations, that are assumed by the transferee of
any such assets (or are otherwise extinguished in connection with the transactions relating to such Collateral Asset Sale) pursuant to
a written agreement which releases the Company or such Subsidiary Guarantor from such liabilities; and
(ii) any
securities received by the Company or such Subsidiary Guarantor from such transferee that are converted by the Company or such Subsidiary
Guarantor into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing
of the applicable Collateral Asset Sale.
(g) Notwithstanding
anything to the contrary in this Indenture, the Company and its Subsidiaries shall not be required to apply the Net Proceeds from any
Collateral Asset Sale or Event of Loss with respect to any Second Lien Collateral pursuant to the provisions of this Section 10.11
in the event, and solely to the extent, that any Permitted Senior Debt secured by such Second Lien Collateral (x) requires the proceeds
from such Collateral Asset Sale or Event of Loss to be applied to any such Permitted Senior Debt or (y) is voluntarily redeemed,
repurchased, realized or otherwise repaid or prepaid with the proceeds of such Collateral Asset Sale or Event of Loss; provided, however,
that, after giving effect to any such application, redemption, repurchase, or payment, any remaining Net Proceeds shall be applied
pursuant to this Section 10.11.
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Section 10.12. Post-Closing
Mortgages.
(a) With
respect to each First Lien Collateral Property and Credit Facility Property (other than (i) the property located at 1760 Business
Center Drive, Reston, VA, for which the Company shall comply with the requirements of this Section 10.12 within 45 days after closing
of any sale of a portion of such property and (ii) the portion of the property located at 603 San Juan Avenue, Stockton, CA that
is subject to a ground lease as of the date hereof, for which the Company shall use reasonable best efforts to comply with the requirements
of this Section 10.12 within 90 days after the date hereof), the Company shall provide to the Collateral Agent, within 45 days after
the Issue Date, a Mortgage and any necessary UCC fixture filing in respect thereof, together with:
(i) evidence
that (A) counterparts of such Mortgage have been duly executed, acknowledged and delivered and such Mortgage and any corresponding
UCC or equivalent fixture filing (if applicable) are in form suitable for filing or recording in all filing or recording offices that
are reasonably necessary in order to create a valid and subsisting Lien on such First Lien Collateral Property or Credit Facility Property
in favor of the Collateral Agent for the benefit of the Trustee, the Collateral Agent and the Holders of the Notes each with a secured
amount equal to the principal amount of the Notes; provided, however, with respect to any First Lien Collateral Property or Credit
Facility Property located in a jurisdiction that requires payment of mortgage recording tax (or the equivalent), the Mortgages in such
jurisdictions will secure an amount equal to the value of such First Lien Collateral Property or Credit Facility Property, as applicable
(as determined by the Company as of the Issue Date), except that, with respect to the Credit Facility Property located in Washington,
D.C., the Mortgage will secure an amount equal to $3,900,000 (B) such Mortgage and any corresponding UCC or equivalent fixture filings
have been duly submitted for recording of filing, as applicable, and (C) all filing and recording taxes and fees have been paid or
otherwise provided for; and
(ii) fully
paid lender’s policies of title insurance in an amount commercially reasonable (as determined by the Company on the Issue Date)
issued by a nationally recognized title insurance company in the applicable jurisdiction that is selected by the Company, insuring the
relevant Mortgage as having created (x) in the case of each First Lien Collateral Property, a first priority valid and subsisting
Lien on the real property described therein with the ranking or the priority which it is expressed to have in such Mortgage and (y) in
the case of each Credit Facility Property, a second priority valid and subsisting Lien on the real property described therein with the
ranking or the priority which it is expressed to have in such Mortgage, in each case subject only to Permitted Liens, with such endorsements
as are customary and appropriate (as reasonably determined by the Company), which shall include a tie-in endorsement to the extent available
on commercially reasonable terms.
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ARTICLE Eleven
Redemption
of Notes
Section 11.01. Redemption
at the Option of the Company
(a) At
any time on or after the date hereof, the Company may redeem at its option (an “Optional Redemption”) on any one or
more occasions all or a part of the Notes upon not less than 10 nor more than 60 days’ notice, at a redemption price of 100% of
the principal amount of Notes to be redeemed plus accrued and unpaid interest thereon, if any, to, but not including, the applicable Redemption
Date (subject to the right of Holders of the Notes on the relevant Record Date to receive interest due on the relevant interest payment
date occurring on or prior to the Redemption Date).
(b) Any
redemption and notice of redemption may, at the Company’s discretion, be subject to the satisfaction of one more conditions precedent
as provided in Section 11.05.
(c) Nothing
in this Indenture will limit the Company’s or its Affiliates’ ability to repurchase or retire Notes other than by redemption,
whether by tender offer, exchange offer, open market repurchases, privately negotiated transactions or otherwise.
Section 11.02. Election
to Redeem; Notice to Trustee
In case of any redemption
at the election of the Company of less than all the Notes, the Company shall, at least 15 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date and the principal amount
of Notes to be redeemed.
Section 11.03. Mandatory
Redemption
The Notes shall not be subject
to mandatory redemption or any sinking fund payments.
Section 11.04. Selection
by Trustee of Notes to Be Redeemed
If less than all the Notes
are to be redeemed, not more than 60 days prior to the Redemption Date, the Trustee shall select the Notes to be redeemed from the Outstanding
Notes not previously called for redemption, on a pro rata basis, by lot or such other method as the Trustee shall deem appropriate
and which may provide for the selection for redemption of a portion of the principal amount of any Note, provided that the unredeemed
portion of the principal amount of any Note shall be in an authorized denomination (which shall not be less than the minimum authorized
denomination) for such Note. If less than all the Notes are to be redeemed, the Notes to be redeemed shall be selected not more than 60
days (subject to Section 11.05) prior to the Redemption Date by the Trustee, from the Outstanding Notes not previously called for
redemption in accordance with the preceding sentence.
The Trustee shall promptly
notify the Company in writing of the Notes selected for redemption as aforesaid and, in case of any Notes selected for partial redemption
as aforesaid, the principal amount thereof to be redeemed.
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The provisions of the two
preceding paragraphs shall not apply with respect to any redemption affecting only a single Note, whether such Note is to be redeemed
in whole or in part. In the case of any such redemption in part, the unredeemed portion of the principal amount of the Note shall be in
an authorized denomination (which shall not be less than the minimum authorized denomination) for such Note.
For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to the redemption of Notes shall relate, in the case of any Notes redeemed
or to be redeemed only in part, to the portion of the principal amount of such Notes which has been or is to be redeemed.
For so long as the Notes are
held by The Depository Trust Company (or another Depositary), the redemption of the Notes, including the selection of Notes to be redeemed,
shall be done in accordance with the policies and procedures of the Depositary.
Section 11.05. Notice
of Redemption
Notice of redemption shall
be given in the manner provided in Section 1.06 to the Holders of Notes to be redeemed not less than 10 nor more than 60 days prior
to the Redemption Date, except that any notice of redemption may be given more than 60 days prior to a Redemption Date if the notice is
issued in connection with a Defeasance of Notes pursuant to Article Thirteen hereof or a satisfaction and discharge of this Indenture
pursuant to Article Four hereof. In connection with any redemption of Notes, any such redemption may, at the Company’s discretion,
be subject to satisfaction of one or more conditions precedent. In addition, if such redemption or notice is subject to satisfaction of
one or more conditions precedent, such notice may state that, in the Company’s discretion, the Redemption Date may be delayed (including
more than 60 days after notice is given) until such time as any or all such conditions shall be satisfied (or waived by the Company in
its sole discretion), or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall
not have been satisfied (or waived by the Company in its sole discretion) by the Redemption Date, or by the Redemption Date so delayed.
All notices of redemption
shall state:
(a) the
Redemption Date,
(b) the
Redemption Price,
(c) if
less than all the Outstanding Notes are to be redeemed, the identification (and, in the case of partial redemption of any such Notes,
the principal amounts) of the Notes to be redeemed and, if less than all the Outstanding Notes are to be redeemed, the principal amount
of the Notes to be redeemed,
(d) that
on the Redemption Date the Redemption Price will become due and payable upon the Notes to be redeemed and, if applicable, that interest
thereon will cease to accrue on and after said date,
(e) the
place or places where such Notes are to be surrendered for payment of the Redemption Price,
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(f) the
applicable “ISIN” and/or “CUSIP” numbers, if any, and
(g) if
applicable, that such redemption may be subject to satisfaction of one or more conditions precedent.
A notice of redemption published
as contemplated by Section 1.06 need not identify the particular Notes to be redeemed.
Notice of redemption of Notes
to be redeemed at the election of the Company shall be given by the Company or, at the Company’s request, by the Trustee in the
name and at the expense of the Company.
Section 11.06. Deposit
of Redemption Price
On or before 11:00 a.m. Eastern
Time on any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 10.03 of this Indenture) an amount of money sufficient to pay the
Redemption Price of all the Notes which are to be redeemed on such Redemption Date.
Section 11.07. Notes
Payable on Redemption Date
Notice of redemption having
been given as aforesaid, the Notes so to be redeemed shall, on the Redemption Date, subject to any applicable conditions precedent, become
due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment
of the Redemption Price and accrued interest) such Notes shall cease to bear interest. Upon surrender of any of the Notes for redemption
in accordance with said notice, such Note shall be paid by the Company at the Redemption Price, together with accrued interest, if any,
to the Redemption Date; provided, however, installments of interest whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Notes, or one or more Predecessor Notes, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section 3.07.
If any Note called for redemption
shall not be so paid upon surrender thereof for redemption, the principal of and premium (if any) shall, until paid, bear interest from
the Redemption Date at the rate prescribed therefor in the Note.
Section 11.08. Notes
Redeemed in Part
Any Note which is to be redeemed
only in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement by,
or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or the attorney
of such Holder duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder
of such Note without service charge, a new Note or Notes of like tenor, of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Note so surrendered.
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ARTICLE Twelve
SUBSIDIARY
GUARANTEES
Section 12.01. Subsidiary
Guarantee.
Subject to this Article Twelve,
each of the Subsidiary Guarantors hereby jointly, severally and unconditionally guarantees, on a secured basis, to each Holder of Notes
authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability
of this Indenture, the Notes or the obligations of the Company under this Indenture or the Notes, that:
(a) the principal of,
premium, if any, and interest on the Notes shall be promptly paid in full when due, whether at Stated Maturity, upon redemption or repurchase,
by acceleration or otherwise, and all obligations of the Company to Holders of the Notes or the Trustee under this Indenture or the Notes
shall be promptly paid in full or promptly performed, as the case may be, all in accordance with the terms of this Indenture and the Notes;
and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall be
promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, upon
redemption or repurchase, by acceleration or otherwise. Failing payment when due of any amount so guaranteed or failing performance of
any other obligation so guaranteed for whatever reason, each Subsidiary Guarantor shall be obligated to pay, or to perform or cause the
performance of, the same immediately. Each Subsidiary Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
Each of the Subsidiary Guarantors
hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the
Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect
to any provisions of this Indenture or the Notes, the release of any other Subsidiary Guarantor, the recovery of any judgment against
the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge
or defense of a Subsidiary Guarantor. Each Subsidiary Guarantor hereby waives, to the extent permitted by applicable law, diligence, presentment,
demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding
first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged
except by complete performance of the obligations contained in the Notes and this Indenture.
Unless and until released
with respect to any Subsidiary Guarantor in accordance with Section 12.04 of this Indenture, this Subsidiary Guarantee shall remain
in full force and effect and continue to be effective should any petition be filed by or against the Company for liquidation or reorganization,
should the Company become insolvent or make an assignment for the benefit of creditors or should a custodian, trustee, liquidator or other
similar official be appointed for all or any part of the Company’s assets. If any Holder of the Notes or the Trustee is required
by any court or governmental authority or is otherwise required to return to the Company, any Subsidiary Guarantor or any custodian, trustee,
liquidator or other similar official acting in relation to the Company or such Subsidiary Guarantor, any amount paid by the Company or
such Subsidiary Guarantor to the Trustee or such Holder, the Notes and this Subsidiary Guarantee, to the extent theretofore discharged,
shall be reinstated in full force and effect. Each Subsidiary Guarantor further agrees (to the fullest extent permitted by law) that,
as between it, on the one hand, and the Holders of the Notes and the Trustee, on the other, (a) subject to this Article Twelve,
the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five of this Indenture, for the purposes
of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (b) in the event of any acceleration of such obligations as provided in such Article Five,
such obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose
of this Subsidiary Guarantee.
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Section 12.02. Limitation
on Subsidiary Guarantor Liability.
Each Subsidiary Guarantor,
and by its acceptance of Notes, each Holder of the Notes, hereby confirms that it is the intention of all such parties that the Subsidiary
Guarantee of such Subsidiary Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar Federal or state law to the extent applicable to any Subsidiary
Guarantee. To effectuate the foregoing intention, the Trustee, the Holders of the Notes and the Subsidiary Guarantors hereby irrevocably
agree that the obligations of each Subsidiary Guarantor under its Subsidiary Guarantee and this Indenture will be limited to the maximum
amount as will, after giving effect to all other contingent and fixed liabilities of such Subsidiary Guarantor that are relevant under
such laws, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any
other Subsidiary Guarantor in respect of the obligations of such other Subsidiary Guarantor under its Subsidiary Guarantee and this Indenture,
result in the obligations of such Subsidiary Guarantor under its Subsidiary Guarantee and this Indenture not constituting a fraudulent
conveyance or fraudulent transfer under such laws. Each Subsidiary Guarantor that makes a payment under its Subsidiary Guarantee is entitled
to a contribution from each other Subsidiary Guarantor in a pro rata amount based on the adjusted net assets of each Subsidiary Guarantor,
so long as the exercise of such right does not impair the rights of the Holders of the Notes under this Subsidiary Guarantee.
Section 12.03. Execution
and Delivery of Subsidiary Guarantee.
To evidence its Subsidiary
Guarantee set forth in Section 12.01 of this Indenture, each Subsidiary Guarantor hereby agrees that this Indenture or a supplemental
indenture substantially in the form of Exhibit C attached hereto entered into by such Subsidiary Guarantor, as the case may
be, shall be executed on behalf of such Subsidiary Guarantor by an officer or other authorized signatory of such Subsidiary Guarantor.
Each Subsidiary Guarantor
hereby agrees that its Subsidiary Guarantee set forth in Section 12.01 of this Indenture shall remain in full force and effect notwithstanding
the absence of the endorsement of any notation of such Subsidiary Guarantee on the Notes.
If an officer or other authorized
signatory of any Subsidiary Guarantor whose signature is on this Indenture or a supplemental indenture entered into by such Subsidiary
Guarantor, as the case may be, no longer holds that office or is no longer such an authorized signatory at the time the Trustee authenticates
any Note, the Subsidiary Guarantee of such Subsidiary Guarantor shall be valid nevertheless with respect to such Note.
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The delivery of any Note by
the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Subsidiary Guarantee set forth in this Indenture
on behalf of the Subsidiary Guarantors.
Section 12.04. Release
of a Subsidiary Guarantor.
The Subsidiary Guarantee of
a Subsidiary Guarantor will automatically terminate and be released, all other obligations of such Subsidiary Guarantor under this Indenture
will automatically terminate and such Subsidiary Guarantor will be automatically released from its obligations under its Subsidiary Guarantee
and its other obligations under this Indenture:
(a) in
the event of a sale or other disposition of all or substantially all of the properties or assets of such Subsidiary Guarantor (including
by way of merger or consolidation) to a Person that is not (either before or after giving effect to such transaction) the Company or a
Subsidiary, if the sale or other disposition does not violate the provisions of Article Eight of this Indenture;
(b) in
the event of a sale or other disposition (including through merger or consolidation) of Capital Stock of such Subsidiary Guarantor to
a Person that is not (either before or after giving effect to such transaction) the Company or a Subsidiary and such Subsidiary Guarantor
ceases to be a Subsidiary as a result of the sale or other disposition, if the sale or other disposition does not violate the provisions
of Section 10.11 of this Indenture;
(c) upon
the satisfaction and discharge, Defeasance or Covenant Defeasance of the Notes in accordance with Article Four or Article Thirteen
of this Indenture;
(d) upon
the liquidation or dissolution of such Subsidiary Guarantor, provided (i) no default under this Indenture or Event of Default
has occurred that is continuing; and (ii) any First Lien Collateral or Second Lien Collateral owned by such Subsidiary Guarantor
is transferred to the Company or another Subsidiary Guarantor and pledged under the Security Documents;
(e) upon
the merger of such Subsidiary Guarantor into, or the consolidation of such Subsidiary Guarantor with the Company or another Subsidiary
Guarantor;
(f) upon
the sale, transfer or other disposition, or First Lien Collateral Property Release or Credit Facility Property Release, as applicable,
of all of the First Lien Collateral Properties and Credit Facility Properties, in any case, that are owned directly or indirectly by such
Subsidiary Guarantor pursuant to or in compliance with the terms of this Indenture; or
(g) in
the event such Subsidiary Guarantor is designated a CMBS Subsidiary in connection with any Permitted CMBS Debt.
Notwithstanding anything to
the contrary herein, the Subsidiary Guarantee of any Subsidiary Guarantor shall automatically terminate and be released, all other obligations
of such Subsidiary Guarantor under this Indenture shall automatically terminate and such Subsidiary Guarantor shall be automatically released
from its obligations under its Subsidiary Guarantee and its other obligations under this Indenture, pursuant to the terms of any applicable
Intercreditor Agreement.
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At the request of the Company,
and upon delivery to the Trustee of an Officer’s Certificate and an Opinion of Counsel each stating that all conditions provided
for in this Indenture to the release of a Subsidiary Guarantor from its Subsidiary Guarantee have been complied with (provided that the
legal counsel delivering such Opinion of Counsel may rely as to matters of fact on one or more Officer’s Certificates of the Company),
the Trustee shall execute and deliver any appropriate instruments evidencing such release (it being understood that the failure to obtain
any such instrument shall not impair any release pursuant to this Section 12.04).
Section 12.05. Benefits
Acknowledged.
Each Subsidiary Guarantor
acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that
the guarantee and waivers made by it pursuant to its Subsidiary Guarantee are knowingly made in contemplation of such benefits.
Section 12.06. Waiver
of Subrogation.
Until all of the Notes are
discharged and paid in full, each Subsidiary Guarantor hereby irrevocably waives and agrees not to exercise any claim or other rights
which it may now or hereafter acquire against the Company that arise from the existence, payment, performance or enforcement of the Company’s
obligations under the Notes or this Indenture and such Subsidiary Guarantor’s obligations under this Subsidiary Guarantee and this
Indenture, in any such instance including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, indemnification,
and any right to participate in any claim or remedy of the Holders of the Notes against the Company, whether or not such claim, remedy
or right arises in equity, or under contract, statute or common law, including, without limitation, the right to take or receive from
the Company, directly or indirectly, in cash or other assets or by set off or in any other manner, payment or security on account of such
claim or other rights. If any amount shall be paid to any Subsidiary Guarantor in violation of the preceding sentence and any amounts
owing to the Trustee or the Holders of the Notes under the Notes or this Indenture, shall not have been paid in full, such amount shall
have been deemed to have been paid to such Subsidiary Guarantor for the benefit of, and held in trust for the benefit of, the Trustee
or the Holders of the Notes and shall forthwith be paid to the Trustee for the benefit of itself or such Holders to be credited and applied
to the obligations in favor of the Trustee or such Holders, as the case may be, whether matured or unmatured, in accordance with the terms
of this Indenture.
Section 12.07. Same
Currency; No Set Off.
Each payment to be made by
a Subsidiary Guarantor under its Subsidiary Guarantee shall be payable in the currency in which corresponding payment obligations of the
Company under the Notes or this Indenture are denominated, and shall be made without set off, counterclaim, reduction or diminution of
any kind or nature.
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Section 12.08. Guarantee
Obligations Continuing.
The obligations of each Subsidiary
Guarantor under this Indenture shall be continuing and shall remain in full force and effect until all such obligations have been paid
and satisfied in full. Each Subsidiary Guarantor agrees with the Trustee that, to the fullest extent permitted by applicable law, it will
from time to time deliver to the Trustee suitable acknowledgments of this continued liability in such form as counsel to the Trustee may
reasonably request and as will prevent any action brought against it in respect of any default under this Indenture being barred by any
statute of limitations now or hereafter in force and, in the event of the failure of a Subsidiary Guarantor so to do, it hereby irrevocably
appoints the Trustee the attorney and agent of such Subsidiary Guarantor to make, execute and deliver such written acknowledgment or acknowledgments
or other instruments as may from time to time become necessary or reasonably advisable, in the judgment of the Trustee on the advice of
counsel, to fully maintain and keep in force the liability of such Subsidiary Guarantor under this Indenture.
Section 12.09. No
Merger or Waiver; Cumulative Remedies.
To the fullest extent permitted
by applicable law, no Subsidiary Guarantee shall operate by way of merger of any of the obligations of a Subsidiary Guarantor under any
other agreement. To the fullest extent permitted by applicable law, no failure to exercise and no delay in exercising, on the part of
the Trustee or the Holders of the Notes, any right, remedy, power or privilege under this Indenture or the Notes, shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder or under this Indenture or the Notes
preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. To the fullest extent permitted
by applicable law, the rights, remedies, powers and privileges in this Indenture, the Notes and any other document or instrument between
a Subsidiary Guarantor and/or the Company and the Trustee and the Holders of the Notes are cumulative and not exclusive of any rights,
remedies, powers and privilege provided by law.
Section 12.10. Dealing
with the Company and Others.
The Holders and the Trustee,
without releasing, discharging, limiting or otherwise affecting in whole or in part the obligations and liabilities of any Subsidiary
Guarantor under this Indenture and without the consent of or notice to any Subsidiary Guarantor, may to the fullest extent permitted by
applicable law:
(a) grant
time, renewals, extensions, compromises, concessions, waivers, releases, discharges and other indulgences to the Company or any other
Person;
(b) take
or abstain from taking security or collateral from the Company or the Subsidiary Guarantors or from perfecting security or collateral
of the Company or the Subsidiary Guarantors;
(c) release,
discharge, compromise, realize, enforce or otherwise deal with or do any act or thing in respect of (with or without consideration) any
and all collateral, mortgages or other security given by the Company, the Subsidiary Guarantors or any third party with respect to the
obligations or matters contemplated by this Indenture or the Notes;
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(d) accept
compromises or arrangements from the Company;
(e) apply
all monies at any time received from the Company or from any security upon such part of the obligations of the Subsidiary Guarantors under
Section 12.01 of this Indenture as the Holders may see fit or change any such application in whole or in part from time to time as
the Holders may see fit; and
(f) otherwise
deal with, or waive or modify their right to deal with, the Company and all other Persons and any security as the Holders or the Trustee
may see fit.
Section 12.11. Enforcement;
Expenses.
If
any Subsidiary Guarantor defaults in performing any of its obligations under this Indenture, the Trustee may proceed in its name as trustee
under this Indenture in the enforcement of such obligations against such Subsidiary Guarantor by any remedy provided by law, whether by
legal proceedings or otherwise. Each of the Subsidiary Guarantors, jointly and severally, agree to pay all costs, fees and expenses (including,
without limitation, reasonable fees and expenses of legal counsel) incurred by the Trustee, any Holder of the Notes, or the agent, advisor
or counsel of the Trustee or any Holder, in enforcing the performance by any Subsidiary Guarantor of its obligations under this Indenture.
ARTICLE Thirteen
Defeasance
and Covenant Defeasance
Section 13.01. Company’s
Option to Effect Defeasance or Covenant Defeasance
The Company may, at its option,
at any time, elect to have either Section 13.02 or Section 13.03 applied to the Notes upon compliance with the conditions set
forth below in this Article.
Section 13.02. Defeasance
and Discharge
Upon the Company’s exercise
under Section 13.01 of a defeasance of the Notes as contemplated by this Section 13.02, the Company shall be deemed to have
been discharged from its obligations with respect to such Outstanding Notes on the date the conditions set forth in Section 13.04
are satisfied (hereinafter “Defeasance”). For this purpose, such Defeasance means that the Company shall be deemed
to have paid and discharged the entire indebtedness represented by the Notes and to have satisfied all its other obligations under such
Notes and this Indenture insofar as such Notes are concerned (and the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following, which shall survive until otherwise terminated or discharged hereunder: (a) the
rights of Holders of such Notes to receive, solely from the trust fund described in Section 13.04 and as more fully set forth in
such Section, payments in respect of the principal of and any premium and interest, if any, on such Notes when such payments are due,
(b) the Company’s obligations with respect to such Notes under Sections 3.04, 3.05, 3.06, 10.02 and 10.03, (c) the rights,
powers, trusts, duties and immunities of the Trustee hereunder and (d) this Article. Subject to compliance with this Article, the
Company may exercise its option under this Section 13.02 notwithstanding the prior exercise of its option under Section 13.03.
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Section 13.03. Covenant
Defeasance
Upon the Company’s exercise
under Section 13.01 of a defeasance of the Notes as contemplated by this Section 13.03, (a) the Company shall be released
from its obligations with respect to such Notes under Section 8.01, Section 8.02, Section 10.05, Section 10.07, Section 10.08,
Section 10.09, Section 10.10, Section 10.11 and Section 10.12 and any covenants provided pursuant to clause (b) of
Section 9.01 for the benefit of the Holders of such Notes and (b) the occurrence of any event specified in clause (d) of
Section 5.01 (with respect to any of Section 8.01, Section 8.02, Section 10.05, Section 10.07, Section 10.08,
Section 10.09, Section 10.10, Section 10.11 and Section 10.12 or clause (b) of Section 9.01) shall not be
deemed to be an Event of Default on and after the date the conditions set forth in Section 13.04 are satisfied (hereinafter “Covenant
Defeasance”). For this purpose, such Covenant Defeasance means that, with respect to such Notes, the Company may omit to comply
with and shall have no liability in respect of any term, condition or limitation set forth in any such Section or Article, whether
directly or indirectly by reason of any reference elsewhere herein to any such Section or Article or by reason of any reference
in any such Section or Article to any other provision herein or in any other document, but the remainder of this Indenture and
such Notes shall be unaffected thereby.
Section 13.04. Conditions
to Defeasance or Covenant Defeasance
The following shall be the
conditions to the application of either a Defeasance or Covenant Defeasance, as applicable, to the Notes, as the case may be:
(a) The
Company shall irrevocably have deposited or caused to be deposited with the Trustee (or a successor trustee which satisfies the requirements
contemplated by Section 6.09 and agrees to comply with the provisions of this Article applicable to it) as trust funds in trust
for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders
of the Notes, (i) money in an amount, or (ii) Government Obligations which through the scheduled payment of principal and interest
in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an
amount, or (iii) a combination thereof, in each case sufficient to pay and discharge, and which shall be applied by the Trustee (or
any such other qualifying trustee) to pay and discharge, the principal of (and premium, if any) and interest on, such Notes on the respective
Stated Maturities or the applicable Redemption Date, in accordance with the terms of this Indenture and the Notes; provided that
with respect to a Redemption Date, if all or a portion of the Redemption Price is based on or consists of a redemption premium that is
required to be calculated based on a treasury rate or other floating or adjustable rate a specified number of days prior to such Redemption
Date, the amount deposited shall be sufficient for purposes of the immediately preceding sentence to the extent that the Redemption Price
so deposited is calculated using an amount equal to such premium computed using such treasury rate or other floating or adjustable rate
as of such specified number of days preceding the date of such deposit. As used herein, “Government Obligations” means,
with respect to the Notes, securities that are (x) direct obligations of the government that issued the currency in which such Note
is denominated (or, if such Note is denominated in euros, the direct obligations of any government that is a member of the European Monetary
Union) for the payment of which such government’s full faith and credit is pledged or (y) obligations of a Person controlled
or supervised by and acting as an agency or instrumentality of such government the payment of which is unconditionally guaranteed as a
full faith and credit obligation by such government, which, in either case, are not callable or redeemable at the option of the issuer
thereof and shall also include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as
custodian with respect to any Government Obligation where the relevant government is the United States of America or a specific payment
of principal of or interest on any such Government Obligation held by such custodian for the account of the holder of such depositary
receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the custodian in respect of such Government Obligation or the specific
payment of principal of or interest on such Government Obligation evidenced by such depository receipt.
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(b) In
the event of an election to have a Defeasance apply to the Notes, the Company shall have delivered to the Trustee an Opinion of Counsel
stating that (i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (ii) since
the date of this Indenture, there has been a change in the applicable Federal income tax law, in either case (i) or (ii) to
the effect that the Holders of the Outstanding Notes will not recognize gain or loss for Federal income tax purposes as a result of such
deposit, Defeasance and discharge and will be subject to Federal income tax on the same amount, in the same manner and at the same times
as would be the case if such deposit, Defeasance and discharge had not occurred.
(c) In
the event of an election to have a Covenant Defeasance apply to the Notes, the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that the Holders of the Outstanding Notes will not recognize gain or loss for Federal income tax purposes as
a result of such deposit and Covenant Defeasance and will be subject to Federal income tax on the same amount, in the same manner and
at the same times as would be the case if such deposit and Covenant Defeasance had not occurred.
(d) No
Event of Default with respect to the Notes shall have occurred and be continuing at the time of such deposit (other than an Event of Default
resulting from transactions occurring contemporaneously with the borrowing of funds, or the borrowing of funds, to be applied to such
deposit or other indebtedness which is being repaid, repurchased, redeemed, defeased (whether legal or covenant defeasance) or discharged,
and, in each case, the granting of liens in connection therewith).
(e) Such
Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement
or instrument (other than this Indenture or any agreement or instrument governing any other indebtedness which is being repaid, repurchased,
redeemed, defeased (whether legal or covenant defeasance) or discharged) to which the Company is a party or by which the Company is bound.
(f) The
Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the Defeasance or the Covenant Defeasance have been satisfied.
The Defeasance or Covenant
Defeasance will be effective on the day on which all of the applicable conditions above have been satisfied.
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Upon satisfaction of such
conditions, the Trustee shall, upon written request, execute proper instrument(s) acknowledging such Defeasance or Covenant Defeasance,
as the case may be.
Section 13.05. Deposited
Money and Government Obligations to Be Held in Trust; Miscellaneous Provisions
Subject to the provisions
of the last paragraph of Section 10.03, all money and Government Obligations (including the proceeds thereof) deposited with the
Trustee or other qualifying trustee (solely for purposes of this Section and Section 13.06, the Trustee and any such other trustee
are referred to collectively, for purposes of this Section 13.05, as the “Trustee”) pursuant to Section 13.04
in respect of any Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture,
to the payment, either directly or through any such Paying Agent (including the Company acting as its own Paying Agent) as the Trustee
may determine, to the Holders of such Notes, of all sums due and to become due thereon in respect of principal and premium (if any) and
interest, but such money need not be segregated from other funds except to the extent required by law.
The Company shall pay and
indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the Government Obligations deposited pursuant
to Section 13.04 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by
law is for the account of the Holders of Outstanding Notes.
Anything in this Article Thirteen
to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or Government
Obligations held by it as provided in Section 13.04 hereof which, in the opinion or based on a report or certificate of a nationally
recognized firm of independent public accountants, investment bank or appraisal firm expressed in a written certification thereof delivered
to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect an equivalent Defeasance or
Covenant Defeasance, as the case may be.
Section 13.06. Reinstatement
If the Trustee or the Paying
Agent is unable to apply any money in accordance with Section 13.02 or 13.03 by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then the Company’s obligations under this Indenture
and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to this Article Thirteen until such time
as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 13.02 or 13.03; provided,
however, that if the Company makes any payment of principal of (and premium, if any), and any interest on, any Note following the
reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of the Notes to receive such payment from
the money held by the Trustee or the Paying Agent.
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ARTICLE Fourteen
COLLATERAL
AND SECURITY
Section 14.01. The
Collateral Agent.
(a) By
accepting a Note, each Holder will be deemed to have irrevocably appointed the Collateral Agent to act as collateral agent under the applicable
Security Documents and any Intercreditor Agreement and irrevocably authorized the Collateral Agent to (i) perform the duties and
exercise the rights and powers that are specifically given to it under the Security Documents, any Intercreditor Agreement and any other
documents to which it is a party, together with any other incidental rights and powers, and (ii) execute each document to be executed
by the Collateral Agent on its behalf, any Security Document, any Intercreditor Agreement and all other instruments relating to any such
Security Document or Intercreditor Agreement. The Holders may not, individually or collectively, take any direct action to enforce the
Security Documents or Intercreditor Agreements. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or
the Security Documents, the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent
will have no duties or obligations with respect to the Collateral except those expressly set forth hereunder or in the applicable Security
Documents and Intercreditor Agreements and no implied covenants, functions, responsibilities, duties, or obligations shall be read into
such documents against the Collateral Agent or otherwise exist against the Collateral Agent. The Collateral Agent will not be liable for
any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent
jurisdiction in a final and non-appealable decision). The Collateral Agent will be entitled to rely upon, and will not incur any liability
for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it in good faith
to be genuine and to have been signed or sent by the proper person. The Collateral Agent may consult with legal counsel (who may be counsel
for the Company), independent accountants and other experts selected by it, and will not be liable for any action taken or not taken by
it in accordance with the advice of any such counsel, accountants or experts. Without limiting the generality of the foregoing, the Collateral
Agent:
(i) shall
not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall
not have any duty to take any discretionary action or exercise any discretionary powers and shall not be required to take any action that,
in its opinion or the opinion of its counsel, may expose the Collateral Agent to liability or that is contrary to any Security Document, Intercreditor
Agreement or applicable law;
(iii) shall
not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company or any Affiliate
if the Company that is communicated to or obtained by the Person serving as a Collateral Agent or any of its Affiliates in any capacity;
(iv) shall
not be liable for any action taken or not taken by it (i) in the absence of its own gross negligence or willful misconduct (as determined
by a court of competent jurisdiction in a final and non-appealable decision) or (ii) in reliance on an Officer’s Certificate
of the Company stating that such action is permitted by the terms of this Indenture. The Collateral Agent shall be deemed not to have
knowledge of any Event of Default hereunder unless and until written notice describing such Event of Default is received by such Collateral
Agent from the Trustee or the Company; and
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(v) shall
not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in
connection with any Security Document or Intercreditor Agreement, (ii) the contents of any certificate, report or other document
delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth herein or therein or the occurrence of any Event of Default, (iv) the validity,
enforceability, effectiveness or genuineness of any Security Document or Intercreditor Agreement or any other agreement, instrument or
document, or the creation, perfection or priority of any Lien purported to be created by any Security Document or Intercreditor Agreement,
(v) the existence, value or the sufficiency of any Collateral for any Notes Obligations, or (vi) the satisfaction of any condition
set forth in any operative agreements governing Notes Obligations, any Security Document or any Intercreditor Agreement, other than to
confirm receipt of items expressly required to be delivered to such Collateral Agent.
The use of the term “agent”
herein with reference to a Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising
under agency doctrine of any applicable law other than as a “representative” as such term is used in Section 9-102(a)(72)(E) of
the UCC.
BY ACCEPTING A NOTE EACH HOLDER
WILL BE DEEMED TO HAVE IRREVOCABLY AGREED TO THE FOREGOING PROVISIONS OF THIS SECTION 14.01(a) AND SHALL BE BOUND BY THOSE AGREEMENTS
TO THE FULLEST EXTENT PERMITTED BY LAW.
(b) The
Collateral Agent shall be subject to such directions as may be properly given in accordance with this Indenture, the Security Documents
and the Intercreditor Agreements. Except as expressly required by this Indenture, the Security Documents and the Intercreditor Agreements
or otherwise in compliance with the prior sentence, the Collateral Agent shall not be obligated:
(i) to
act upon directions purported to be delivered to it by any other Person;
(ii) to
foreclose upon or otherwise enforce any Lien securing the Notes or any of the Guarantees; or
(iii) to
take any other action whatsoever with regard to any or all of (w) the Liens securing the Notes, (x) the Guarantees, (y) the
Security Documents or (z) the Intercreditor Agreements, or with regard to the Collateral.
(c) The
Collateral Agent may perform any and all of its duties and exercise its rights and powers by or through, and is authorized and empowered
to appoint, one or more co-agents or sub-agents or attorneys-in-fact as it deems necessary or appropriate in connection herewith and shall
not be liable for the negligence or misconduct of any such agents or attorneys-in-fact selected by it in good faith.
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(d) Subject
to the appointment and acceptance of a successor Collateral Agent as provided below, the Collateral Agent may resign at any time by notifying
the Company and the Trustee. Upon any such resignation, the Company shall have the right to appoint a successor; provided that,
during the existence and continuation of an Event of Default pursuant to clause Section 5.01(a), (b), (e) or (f) hereof,
the Holders of a majority in principal amount of the Notes shall have the right to appoint a successor. If no successor shall have been
so appointed by the Company (or, if applicable, the Holders of a majority in principal amount of the Notes) and shall have accepted such
appointment within 30 days after the retiring Collateral Agent gives notice of its resignation, then such retiring Collateral Agent may,
on behalf of the Holders and the Trustee, petition at the expense of the Company a court of competent jurisdiction to appoint a successor
Collateral Agent. Upon the acceptance of its appointment as a Collateral Agent hereunder by a successor, such successor shall succeed
to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent, and the retiring Collateral
Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Company to a successor Collateral Agent shall
be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After a Collateral Agent’s
resignation hereunder, the provisions of this Article Fourteen and Article Six hereof shall continue in effect for the benefit
of such retiring Collateral Agent, its sub-agents and their respective Affiliates in respect of any actions taken or omitted to be taken
by any of them while acting as Collateral Agent.
(e) The
benefits, protections and indemnities of the Trustee in Sections 6.03 and 6.07 hereof shall apply mutatis mutandi to the Collateral
Agent in its capacity as such, including, without limitation, the rights to receive and rely on Officer’s Certificates and Opinions
of Counsel, reimbursement and indemnification; provided that the applicable standard of care of the Collateral Agent with respect
to Sections 6.03 and 6.07 hereof shall be gross negligence or willful misconduct. For the avoidance of doubt, the rights, privileges,
protections, immunities and benefits given to the Collateral Agent hereunder, including, without limitation, its right to be indemnified
prior to taking action, shall survive the satisfaction, discharge or termination of this Indenture or its earlier termination, resignation
or removal of the Collateral Agent, in such capacity.
(f) Each
Holder, by its acceptance of any Notes, is deemed to have consented and agreed to the terms of each Security Document and Intercreditor
Agreement, as originally in effect and as amended, supplemented or replaced from time to time in accordance with its terms or the terms
of this Indenture; and authorizes, empowers and directs the Collateral Agent to (i) enter into the Security Documents (including,
without limitation, the Intercreditor Agreements, whether executed on or after the Issue Date, and perform its obligations and exercise
its rights, powers and discretions under the Security Documents in accordance therewith, (ii) make the representations of the Holders
set forth in the Security Documents (including, without limitation, the Intercreditor Agreements), and (iii) bind the Holders as
set forth in the applicable Security Documents and Intercreditor Agreements, if any, to which they are a party and to perform its obligations
and exercise its rights and powers thereunder. Notwithstanding the foregoing, no such consent or deemed consent shall be deemed or construed
to represent an amendment or waiver, in whole or in part, of any provision of this Indenture or the Notes.
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(g) Neither
the Trustee nor the Collateral Agent shall be responsible for the existence, genuineness or value of any of the Collateral or for the
validity, perfection, priority or enforceability of the Liens in any of the Collateral, for the validity or sufficiency of the Collateral
or any agreement or assignment contained therein, for the validity of the title of the Company or any grantor to the Collateral, for insuring
the Collateral or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the
Collateral.
(h) Beyond
the exercise of reasonable care in the custody thereof, neither the Trustee nor the Collateral Agent shall have any duty as to any Collateral
in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights
against prior parties or any other rights pertaining thereto and neither the Trustee nor the Collateral Agent shall be responsible for
filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or
otherwise perfecting or maintaining the perfection of any security interest in the Collateral. Each of the Trustee and the Collateral
Agent shall be deemed to have exercised reasonable care in the custody of the Collateral in its possession if the Collateral is accorded
treatment substantially equal to that which it accords its own property and shall not be liable or responsible for any loss or diminution
in the value of any of the Collateral, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected
by the Trustee or the Collateral Agent in good faith.
(i) Neither
the Trustee nor the Collateral Agent shall be responsible for the existence, genuineness or value of any of the Collateral or for the
validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason
of any action or omission to act on its part hereunder, for the validity or sufficiency of the Collateral or any agreement or assignment
contained therein, for the validity of the title of the Company to the Collateral, for insuring the Collateral or for the payment of taxes,
charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral. The Trustee and the Collateral
Agent shall have no duty to ascertain or inquire as to the performance or observance of any of the terms of this Indenture, the Security
Documents or the Intercreditor Agreements by the Company or the Subsidiary Guarantors.
(j) Notwithstanding
any other provision hereof, neither the Collateral Agent nor the Trustee shall have any duties or obligations hereunder or under any Security
Document or Intercreditor Agreement except those expressly set forth herein or therein. Without limiting the generality of the foregoing,
in the event that the Collateral Agent or the Trustee is required to acquire title to an asset for any reason, or take any managerial
action of any kind in regard thereto, in order to carry out any fiduciary or trust obligation for the benefit of another, which in the
Collateral Agent’s or the Trustee’s sole discretion may cause it to be considered an “owner or operator” under
the provisions of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. §9601,
et seq., or otherwise cause it to incur liability under CERCLA or any other federal, state or local law, the Collateral Agent and the
Trustee each reserve the right, instead of taking such action, to either resign or arrange for the transfer of the title or control of
the asset to a court-appointed receiver. Neither the Collateral Agent nor the Trustee shall be liable to any person for any environmental
claims or contribution actions under any federal, state or local law, rule or regulation by reason of the Collateral Agent’s
actions and conduct as authorized, empowered and directed hereunder or relating to the discharge, release or threatened release of hazardous
materials into the environment. If at any time it is necessary or advisable for the Collateral to be possessed, owned, operated or managed
by any person other than the grantor, the majority of the Holders shall direct the Collateral Agent or Trustee, as applicable, to appoint
an appropriately qualified person who they shall designate to possess, own, operate or manage, as the case may be, the Collateral.
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(k) For
the avoidance of doubt, the Trustee and the Collateral Agent shall act only within the United States, and shall not be subject to any
foreign law, be required to act in any jurisdiction located outside the United States or be required to execute any foreign law governed
document.
(l) Notwithstanding
anything to the contrary set forth herein, the Trustee and/or the Collateral Agent, as applicable, are hereby authorized and directed
to, and hereby agree to, whether on or after the Issue Date:
(i) enter
into and/or join the Security Documents to which it is contemplated to be a party (and any joinders, supplements or amendments thereto
contemplated hereby),
(ii) enter
into and/or join any Acceptable Junior Intercreditor Agreement (and any joinders, supplements or amendments thereto contemplated hereby),
(iii) enter
into and/or join any Acceptable Pari Passu Intercreditor Agreement (and any joinders, supplements or amendments thereto contemplated hereby),
(iv) enter
into and/or join any Acceptable Senior Intercreditor Agreement (and any joinders, supplements or amendments thereto contemplated hereby),
(v) enter
into and/or join the Credit Facility First Lien/Second Lien Intercreditor Agreement (and any joinders, supplements or amendments thereto
contemplated hereby),
(vi) [reserved],
(vii) make
any representations of the Holders set forth in the Security Documents, the Credit Facility First Lien/Second Lien Intercreditor Agreement,
any Acceptable Junior Intercreditor Agreement, any Acceptable Pari Passu Intercreditor Agreement and/or any Acceptable Senior Intercreditor
Agreement,
(viii) bind
the Holders on the terms as set forth in the Security Documents, the Credit Facility First Lien/Second Lien Intercreditor Agreement, any
Acceptable Junior Intercreditor Agreement, any Acceptable Pari Passu Intercreditor Agreement and/or any Acceptable Senior Intercreditor
Agreement and
(ix) perform
and observe its obligations under the Security Documents, the Credit Facility First Lien/Second Lien Intercreditor Agreement, any Acceptable
Junior Intercreditor Agreement, any Acceptable Pari Passu Intercreditor Agreement and/or any Acceptable Senior Intercreditor Agreement.
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The
entry and/or joinder of the Trustee and/or the Collateral Agent to any Security Document, Acceptable Junior Intercreditor Agreement, Acceptable
Pari Passu Intercreditor Agreement, Acceptable Senior Intercreditor Agreement and/or the Credit Facility First Lien/Second Lien Intercreditor
Agreement (and any joinders, supplements or amendments thereto contemplated hereby) shall be at the direction and expense of the Company
and, upon request by the Trustee and/or the Collateral Agent, as applicable, shall be accompanied by an Officer’s Certificate stating
that the execution is authorized or permitted pursuant to this Indenture (it being understood that, upon delivery of such direction, Officer’s
Certificate, the Trustee and/or the Collateral Agent, as applicable, shall enter into such agreements); provided that this Indenture
shall constitute such direction with respect to the entry into the Pledge Agreement and, the joinder to the Credit Facility First
Lien/Second Lien Intercreditor Agreement by the Trustee and the Collateral Agent, as applicable, on the Issue Date and neither an Officer’s
Certificate nor an Opinion of Counsel shall be required in connection with the entry into the Pledge Agreement and the joinder to the
Credit Facility First Lien/Second Lien Intercreditor Agreement by the Trustee or the Collateral Agent, as applicable, on the Issue Date.
(m) Notwithstanding
anything to the contrary herein, no inaccuracy or breach, as applicable, of any representation, warranty or covenant in this Indenture,
the Notes, any Security Document or any Intercreditor Agreement relating to the grant, validity, enforceability, perfection or priority
of any security interest shall occur, and no default or Event of Default or other breach of the terms hereof or thereunder shall occur,
in either case, as a result of the collateral agent and intercreditor arrangements described in this Article Fourteen or in any Intercreditor
Agreement.
(n) The
Collateral Agent is authorized to receive any funds for the benefit of itself, the Trustee and the Holders distributed under the Security
Documents or the Intercreditor Agreements and to the extent not prohibited under the Intercreditor Agreements, for turnover to the Trustee
to make further distributions of such funds to itself, the Trustee and the Holders in accordance with the provisions of Section 5.06
and the other provisions of this Indenture.
(o) Notwithstanding
anything to the contrary contained in this Indenture, the Intercreditor Agreements or the Security Documents, in the event the Collateral
Agent is entitled or required to commence an action to foreclose or otherwise exercise its remedies to acquire control or possession of
the Collateral, the Collateral Agent shall not be required to commence any such action or exercise any remedy or to inspect or conduct
any studies of any property under the mortgages or take any such other action if the Collateral Agent has determined that the Collateral
Agent may incur personal liability as a result of the presence at, or release on or from, the Collateral or such property, of any hazardous
substances. The Collateral Agent shall at any time be entitled to cease taking any action described in this clause if it no longer reasonably
deems any indemnity, security or undertaking from the Company or the Holders to be sufficient.
(p) Neither
the Trustee nor the Collateral Agent shall be under any obligation to effect or maintain insurance or to renew any policies of insurance
or to make any determination or inquire as to the sufficiency of any policies of insurance carried by the Company or any Guarantor, or
to report, or make or file claims or proof of loss for, any loss or damage insured against or that may occur, or to keep itself informed
or advised as to the payment of any taxes or assessments, or to require any such payment to be made.
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(q) In
no event shall the Collateral Agent be required to execute and deliver any landlord lien waiver, estoppel or collateral access letter,
or any account control agreement or any instruction or direction letter delivered in connection with such document that the Collateral
Agent determines adversely affects it or otherwise subjects it to personal liability, including without limitation agreements to indemnify
any contractual counterparty; provided that, nothing in this clause (q) shall be implied as imposing any such obligation on
the Company or any Guarantor to obtain any such landlord lien waiver, estoppel or collateral access letter, or any account control agreement.
(r) Neither
the Collateral Agent nor the Trustee shall have any responsibility or liability for the actions or omissions of any other party to the
Note Documents, nor shall the Trustee or Collateral Agent be obligated at any time to indemnify any person in connection with the exercise
of any remedy under the Note Documents.
(s) Upon
the receipt by the Collateral Agent of a written request of the Company signed by a Responsible Officer (a “Security Document
Order”), the Collateral Agent is hereby authorized to execute and enter into, and shall execute and enter into, without the
further consent of any Holder or the Trustee, any Security Document or Intercreditor Agreement, to be executed after the Issue Date. Such
Security Document Order shall (i) state that it is being delivered to the Collateral Agent pursuant to, and is a Security Document
Order referred to in, this Section 14.01(s), and (ii) instruct the Collateral Agent to execute and enter into such Security
Document or Intercreditor Agreement. Any such execution of a Security Document or Intercreditor Agreement shall be at the direction and
expense of the Company. The Holders, by their acceptance of the Notes, hereby authorize and direct the Collateral Agent to execute such
Security Documents. The Collateral Agent shall not be obligated to execute and enter into any Security Documents, Intercreditor or
amendment or supplement thereto that, in reasonable judgment of the Collateral Agent, adversely affect the rights, duties, liabilities
or immunities of the Collateral Agent.
Section 14.02. Acceptance
of Security Documents and Intercreditor Agreements.
The Trustee and each Holder,
by accepting any Notes and the Subsidiary Guarantees, acknowledges that, as more fully set forth in the Security Documents and Intercreditor
Agreements, the Collateral as now or hereafter constituted shall be for the benefit of all the Holders, the Collateral Agent and the Trustee,
and that the Lien granted in the Security Documents relating to the Notes in respect of the Trustee, the Collateral Agent and the Holders
is subject to and qualified and limited in all respects by the Security Documents and Intercreditor Agreements and actions that may be
taken thereunder.
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Section 14.03. Further
Assurances.
Subject to the Intercreditor
Agreements, the Company and each Subsidiary Guarantor shall, and shall cause each Subsidiary that is a Subsidiary Guarantor to, execute
and deliver, or cause to be executed and delivered, to the Trustee any and all such documents, agreements, instruments, certificates,
notices and acknowledgments, and shall take or cause to be taken such further actions (including the filing and recording of financing
statements and/or amendments thereto and other documents and such other actions or deliveries of the type described under this Article Fourteen
or the Security Documents (including certificates and corporate and organizational documents)), which may be required by law or which
the Trustee may (without obligation to do so), from time to time, reasonably request to carry out the terms and conditions of this Indenture
and the Security Documents and to ensure the creation, perfection and priority of the Liens created or intended to be created by the Security
Documents, in each case, subject to the Security Documents, all at the expense of the Company.
The Company and each Subsidiary
Guarantor will (i) correct any material defect or error that may be discovered in the execution, acknowledgment, filing or recordation
of any Security Document or other document or instrument relating to any Collateral and (ii) do, execute, acknowledge, deliver, record,
re-record, file, re-file, register and re-register any and all such further acts (including notices to third parties), deeds, certificates,
assurances and other instruments as may be required from time to time in order to carry out more effectively the purposes of the Security
Documents.
The due and punctual payment
of the principal, premium (if any) and interest on the Notes when and as the same shall be due and payable, whether on an Interest Payment
Date or at Maturity, and Defaulted Interest and the performance of all other Notes Obligations of the Company and the Subsidiary Guarantors
to the Holders, the Trustee or the Collateral Agent under this Indenture, the Notes, the Guarantees and the Security Documents, according
to the terms hereunder or thereunder, shall be secured as provided in the Security Documents, which define the terms of the Liens that
secure the Notes Obligations, subject to the terms of the Intercreditor Agreements. The Trustee, the Collateral Agent, the Company and
the Subsidiary Guarantors hereby acknowledge and agree that, subject to the terms of the Intercreditor Agreements and as further set forth
in this Article Fourteen, the Collateral Agent will hold the Collateral for the benefit of the Holders, the Trustee and the Collateral
Agent and certain other secured parties pursuant to the terms of the Security Documents.
For the avoidance of doubt,
neither the Company nor its Subsidiaries will be required to provide security interests in any of their assets or properties (other than
the Collateral), including, without limitation, with respect to any additional collateral that secures any Credit Facility.
Section 14.04. Release
of Liens.
The release of the Liens over
the property or assets constituting Collateral securing the Notes and the Guarantees of the Subsidiary Guarantors will automatically and
unconditionally occur upon any one or more of the following circumstances:
(a) as
to all Collateral, upon payment in full of the principal of (and premium, if any), plus accrued and unpaid interest, if any, on the Notes
and all other obligations in respect of the Notes under this Indenture, the Guarantees and the Security Documents that are due and payable
at or prior to the time such principal (and premium, if any) plus accrued and unpaid interest, if any, is paid;
86
(b) as
to any Collateral, upon consummation of the sale, transfer or other disposition of such Collateral by the Company or a Subsidiary Guarantor
to any Person other than the Company or a Subsidiary of the Company, to the extent such sale, transfer or other disposition is not prohibited
under this Indenture, including, without limitation, in connection with a permitted Collateral Asset Sale pursuant to Section 10.11;
(c) as
to any First Lien Collateral Property, upon consummation of an Optional Redemption pursuant to Section 11.01 of an aggregate principal
amount of Notes equal to the greater of (x) 100% of the value of such First Lien Collateral Property (as of the Issue Date as determined
by the Company) and (y) 100% of the “as-is” market value of such First Lien Collateral Property as reflected in a Qualified
Appraisal obtained within six months prior to such redemption date, that the Company requests to be released from the Liens securing the
Notes Obligations pursuant to a Company Order delivered to the Trustee and Collateral Agent (a “First Lien Collateral Property
Release”);
(d) as
to any Credit Facility Property that is not subject to any Permitted Senior Lien, upon consummation of an Optional Redemption pursuant
to Section 11.01 of an aggregate principal amount of Notes equal to the greater of (x) 100% of the value of such Credit Facility
Property (as of the Issue Date as determined by the Company) and (y) 100% of the “as-is” market value of such Credit
Facility Property as reflected in a Qualified Appraisal obtained within six months prior to such redemption date, that the Company requests
to be released from the Liens securing the Notes Obligations pursuant to a Company Order delivered to the Trustee and Collateral Agent
(a “Credit Facility Property Release”);
(e) [reserved];
(f) in
the case of a Subsidiary Guarantor that is released from its Subsidiary Guarantee pursuant to the terms of this Indenture, with respect
to the Collateral provided by such Subsidiary Guarantor, upon the release of such Subsidiary Guarantor from its Subsidiary Guarantee;
(g) with
respect to any Collateral that is Capital Stock, upon the dissolution or liquidation of the issuer of that Capital Stock that is not prohibited
by this Indenture;
(h) as
to all or substantially all Collateral, with the consent of 100% of Holders of the Notes then Outstanding; otherwise, as to any Collateral,
with the consent of Holders of a majority of the aggregate principal amount of the Notes then Outstanding; or
(i) as
to all Collateral, in whole, upon Defeasance or Covenant Defeasance as provided under Article Thirteen or satisfaction and discharge
of this Indenture as provided under Article Four.
Notwithstanding anything to
the contrary herein, the security interests in all Collateral securing the Notes and the Subsidiary Guarantees shall automatically and
unconditionally be released pursuant to the terms of any applicable Intercreditor Agreement.
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In connection with the release
of any Lien, the Trustee and/or the Collateral Agent shall, upon the request of and at the sole cost and expense of the Company, execute
such documents or instruments, including but not limited to, the delivery of mortgage terminations and any documents related thereto,
to evidence, and shall do or cause to be done all other acts reasonably necessary to effect, the release and discharge of any Liens permitted
to be released pursuant to this Indenture, the Security Documents or any applicable Intercreditor Agreement. In the event that the Trustee
or the Collateral Agent is requested by the Company to execute any necessary or proper instrument or document to evidence or acknowledge
the release, satisfaction or termination of any Lien securing the Notes Obligations, the Trustee or the Collateral Agent, as applicable,
shall be entitled to receive an Officer’s Certificate stating that all conditions precedent under this Indenture and the Security
Documents to such release have been complied with and that it is permitted for the Trustee and/or the Collateral Agent to execute and
deliver the instruments or documents requested by the Company in connection with such release. Any such instrument or document shall be
prepared by the Company. Neither the Trustee nor the Collateral Agent shall be liable for any such release undertaken in reliance upon
any such Officer’s Certificate, and notwithstanding any term hereof or in any Security Document to the contrary, neither the Trustee
nor the Collateral Agent shall be under any obligation to release any such Lien, or execute and deliver any such instrument or document
of release, satisfaction or termination with respect thereto, unless and until it receives such Officer’s Certificate.
Section 14.05. Compensation
and Indemnification.
Without duplication of any
amounts owing under Section 6.07 hereof, the Collateral Agent shall be entitled to the compensation and indemnification set forth
in Section 6.07 hereof (with the references to the Trustee therein being deemed to refer to the Collateral Agent and references to
this Indenture therein being deemed to refer to this Indenture, the Security Documents and the Intercreditor Agreements) and subject to
Section 14.01(e) hereof.
Section 14.06. Intercreditor
Agreements.
Notwithstanding anything to
the contrary herein, the terms of this Indenture are subject to the terms of any Intercreditor Agreement entered into in accordance with
this Indenture, and neither the Company nor any Subsidiary Guarantor shall be required pursuant to this Indenture to take any action limited
by the foregoing. In the event of any conflict between the terms of any Intercreditor Agreement, on the one hand, and the terms of this
Indenture, on the other hand, the terms of such Intercreditor Agreement shall govern.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed, all as of the day and year first above written.
Company:
OFFICE PROPERTIES INCOME TRUST
By:
/s/ Brian E. Donley
Name:
Brian E. Donley
Title:
Chief Financial Officer and Treasurer
Subsidiary Guarantors:
OPI WF Holding LLC
OPI WF Borrower LLC
OPI WF Owner LLC
440 First Street LLC
OPI Notex Holdings Trust
OPI Notex Properties LLC
112 Ave Miami LLC
3400 Plano TX LLC
Clay Road Houston LLC
Schrock Road Columbus LLC
Elliott Ave Seattle LLC
Burt Street Omaha LLC
Jan Davis Huntsville LLC
SIR Irving (Freeport) LLC
SIR Parsippany (Jefferson) LLC
SC Merger Sub LLC
CRI SIR LLC
SIR Operating Partnership LP
Clay Holdco LLC
SIR Holdings Corporation
SIR Properties Trust
SIR Properties REIT LLC
Ewing Holdco LLC
Primerica Holdco LLC
FP Sterling Park Land, LLC
GOV Lake Fairfax Inc.
GOV Lakewood Properties Trust
OPI AL Properties LLC
GOV NEW OPPTY REIT
GOV NEW OPPTY LP
GOV NEW OPPTY LP REIT
[Signature
Page to Indenture - 2029 Exit Notes]
OPI TRS Inc.
20 Mass Ave TRS Inc.
First Potomac DC Holdings, LLC
FP 1211 Connecticut Avenue, LLC
FP 840 First Street, LLC
ACP East LLC
FP 1775 Wiehle Avenue, LLC
FP 6310 Hillside Center, LLC
SIR Centennial LLC
SIR Fort Mill LLC
SIR Johnston LLC
SIR Omaha LLC
SIR REIT Plano LLC
SIR GP Redwood City LLC
SIR Redwood City LP
SIR GP Santa Clara LLC
SIR Santa Clara LP
SIR Colorado Springs LLC
SIR Rocklin (Office) LLC
SIR Westford LLC
By:
/s/ Brian E. Donley
Name:
Brian E. Donley
Title:
Chief Financial Officer and Treasurer
U.S. Bank Trust Company, National Association, as Trustee and Collateral Agent
By:
/s/ James H. Byrnes
Name:
James H. Byrnes
Title:
Vice President
[Signature Page to Indenture - 2029 Exit Notes]
Appendix A
PROVISIONS RELATING TO THE NOTES
Section 1.1 Definitions.
(a) Capitalized Terms.
Capitalized terms used but not
defined in this Appendix A have the meanings given to them in the Indenture. The following capitalized terms have the following meanings:
“Applicable Procedures”
means, with respect to any transfer or transaction involving a Global Note or beneficial interest therein, the rules and procedures
of the Depositary for such Global Note, Euroclear or Clearstream, in each case to the extent applicable to such transaction and as in
effect from time to time.
“Clearstream”
means Clearstream Banking, Société Anonyme, or any successor securities clearing agency.
“Definitive Note”
means a certificated Note bearing, if required, the applicable restricted securities legend set forth in Section 2.2(e) of this
Appendix A.
“Distribution Compliance
Period,” with respect to any Note, means the period of forty (40) consecutive days beginning on and including the later of (a) the
day on which such Note is first offered to persons other than distributors (as defined in Regulation S) in reliance on Regulation S, notice
of which day shall be promptly given by the Company to the Trustee, and (b) the date of issuance with respect to such Note or any
predecessor of such Note.
“Euroclear”
means Euroclear Bank S.A./N.V., as operator of Euroclear System or any successor securities clearing agency.
“IAI” means
an institution that is an “accredited investor” as described in Rule 501(a)(1), (2), (3) or (7) under the Securities
Act and is not a QIB.
“QIB” means
a “qualified institutional buyer” as defined in Rule 144A.
“Regulation S”
means Regulation S promulgated under the Securities Act.
“Rule 144”
means Rule 144 promulgated under the Securities Act.
“Rule 144A”
means Rule 144A promulgated under the Securities Act.
“Transfer Restricted
Notes” means Definitive Notes and any other Notes that bear or are required to bear the legend set forth in Section 2.2(e)(i) of
this Appendix A.
“U.S. person”
means a “U.S. person” as defined in Regulation S.
“Unrestricted Global
Note” means any Note in global form that does not bear or is not required to bear the Restricted Notes Legend.
(b) Other Definitions.
Term:
Defined in Section:
“Agent Members”
2.1(c)
“Definitive Notes Legend”
2.2(e)
“Global Note”
2.1(b)
“Global Notes Legend”
2.2(e)
“IAI Global Note”
2.1(b)
“IAI Notes”
2.1(a)
“OID Notes Legend”
2.2(e)
“Regulation S Global Note”
2.1(b)
“Regulation S Notes”
2.1(a)
“Restricted Notes Legend”
2.2(e)
“Rule 144A Global Note”
2.1(b)
“Rule 144A Notes”
2.1(a)
Section 2.1 Form and
Dating.
(a) Unless
registered or exempt from registration under the Securities Act, the Initial Notes will be resold, initially only to QIBs in reliance
on Rule 144A (“Rule 144A Notes”), to institutions which are an “accredited investor” within the
meaning of subparagraphs (a)(1), (2), (3) or (7) of Rule 501 under the Securities Act (“IAI Notes”)
and to non-U.S. persons in reliance on Regulation S (“Regulation S Notes”). Notes so issued may thereafter be transferred
to, among others, QIBs, institutional “accredited investors” and purchasers in reliance on Regulation S, subject to the restrictions
on transfers set forth herein.
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(b) Global
Notes. Each series of IAI Notes shall be issued initially in the form of one or more global IAI Global Notes ( the “IAI Global
Note”), Regulation S Notes shall be issued initially in the form of one or more global Regulation S Global Notes (the “Regulation
S Global Note”) and Rule 144A Notes shall be issued initially in the form of one or more permanent global notes in fully
registered form (the “Rule 144A Global Note”), in each case without interest coupons and bearing the Global Notes
Legend and Restricted Notes Legend, and shall be deposited on behalf of the purchasers of the Notes represented thereby with the Custodian,
and registered in the name of the Depositary or a nominee of the Depositary, duly executed by the Company and authenticated by the Trustee
as provided in this Indenture. The IAI Global Note, Rule 144A Global Note and Regulation S Global Note is each referred to herein
as a “Global Note” and are collectively referred to herein as “Global Notes.” Each Global
Note shall represent such of the outstanding Notes as shall be specified in the “Schedule of Exchanges of Interests in the Global
Note” attached thereto and each shall provide that it shall represent the aggregate principal amount of Notes from time to time
endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced or
increased, as applicable, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase
or decrease in the aggregate principal amount of outstanding Notes represented thereby shall be made by the Trustee or the Custodian,
at the direction of the Trustee, in accordance with instructions given by the Holder thereof as required by Section 3.05 of the Indenture
and Section 2.2(c) of this Appendix A.
(c) Book-Entry
Provisions. This Section 2.1(c) shall apply only to a Global Note deposited with or on behalf of the Depositary.
The Company shall execute and
the Trustee shall, in accordance with this Section 2.1(c) and Section 3.01 or Section 3.03, as applicable, of the
Indenture and pursuant to an order of the Company signed by one Officer of the Company, authenticate and deliver initially one or more
Global Notes that (i) shall be registered in the name of the Depositary for such Global Note or Global Notes or the nominee of such
Depositary and (ii) shall be delivered by the Trustee to such Depositary or pursuant to such Depositary’s instructions or held
by the Trustee as Custodian.
Members of, or participants
in, the Depositary (“Agent Members”) shall have no rights under the Indenture with respect to any Global Note held
on their behalf by the Depositary or by the Trustee as Custodian or under such Global Note, and the Depositary may be treated by the Company,
the Trustee and any agent of the Company or the Trustee as the absolute owner of such Global Note for all purposes whatsoever. Notwithstanding
the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to
any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Agent
Members, the operation of customary practices of such Depositary governing the exercise of the rights of a holder of a beneficial interest
in any Global Note. The registered Holder of a Global Note may grant proxies and otherwise authorize any Person, including Agent Members
and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture
or the Notes.
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(d) Definitive
Notes. Except as provided in Section 2.2 or Section 2.3 of this Appendix A, owners of beneficial interests in Global Notes
shall not be entitled to receive physical delivery of Definitive Notes.
Section 2.2 Transfer
and Exchange.
(a) Transfer
and Exchange of Definitive Notes for Definitive Notes. When Definitive Notes are presented to the Security Registrar with a request:
(i) to
register the transfer of such Definitive Notes; or
(ii) to
exchange such Definitive Notes for an equal principal amount of Definitive Notes of other authorized denominations,
the Security Registrar shall register the transfer
or make the exchange as requested if its reasonable requirements for such transaction are met; provided, however, that the
Definitive Notes surrendered for transfer or exchange:
(A) shall
be duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Company and the Security Registrar,
duly executed by the Holder thereof or his or her attorney duly authorized in writing; and
(B) in
the case of Transfer Restricted Notes, they are being transferred or exchanged pursuant to an effective registration statement under the
Securities Act or pursuant to Section 2.2(b) of this Appendix A or otherwise in accordance with the Restricted Notes Legend,
and are accompanied by a certification from the transferor in the form provided on the reverse side of the Form of Note in Exhibit A
for exchange or registration of transfers and, as applicable, delivery of such legal opinions, certifications and other information as
may be requested pursuant thereto.
(b) Restrictions
on Transfer of a Definitive Note for a Beneficial Interest in a Global Note. A Definitive Note may not be exchanged for a beneficial
interest in a Global Note except upon satisfaction of the requirements set forth below. Upon receipt by the Trustee of a Definitive Note,
duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Company and the Security Registrar,
together with:
(i) a
certification from the transferor in the form provided on the reverse side of the Form of Note in Exhibit A for exchange
or registration of transfers and, as applicable, delivery of such legal opinions, certifications and other information as may be requested
pursuant thereto; and
A-4
(ii) written
instructions directing the Trustee to make, or to direct the Custodian to make, an adjustment on its books and records with respect to
such Global Note to reflect an increase in the aggregate principal amount of the Notes represented by the Global Note, such instructions
to contain information regarding the Depositary account to be credited with such increase,
the Trustee shall cancel such Definitive Note
and cause, or direct the Custodian to cause, in accordance with the standing instructions and procedures existing between the Depositary
and the Custodian, the aggregate principal amount of Notes represented by the Global Note to be increased by the aggregate principal amount
of the Definitive Note to be exchanged and shall credit or cause to be credited to the account of the Person specified in such instructions
a beneficial interest in the Global Note equal to the principal amount of the Definitive Note so canceled. If the applicable Global Note
is not then outstanding, the Company shall issue and the Trustee shall authenticate, upon a Company Order, a new applicable Global Note
in the appropriate principal amount.
(c) Transfer
and Exchange of Global Notes.
(i) The
transfer and exchange of Global Notes or beneficial interests therein shall be effected through the Depositary, in accordance with this
Indenture (including applicable restrictions on transfer set forth in Section 2.2(d) of this Appendix A, if any) and the procedures
of the Depositary therefor. A transferor of a beneficial interest in a Global Note shall deliver to the Security Registrar a written order
given in accordance with the Depositary’s procedures containing information regarding the participant account of the Depositary
to be credited with a beneficial interest in such Global Note, or another Global Note and such account shall be credited in accordance
with such order with a beneficial interest in the applicable Global Note and the account of the Person making the transfer shall be debited
by an amount equal to the beneficial interest in the Global Note being transferred.
(ii) If
the proposed transfer is a transfer of a beneficial interest in one Global Note to a beneficial interest in another Global Note, the Security
Registrar shall reflect on its books and records the date and an increase in the principal amount of the Global Note to which such interest
is being transferred in an amount equal to the principal amount of the interest to be so transferred, and the Security Registrar shall
reflect on its books and records the date and a corresponding decrease in the principal amount of the Global Note from which such interest
is being transferred.
(iii) Notwithstanding
any other provisions of this Appendix A (other than the provisions of Section 2.3 of this Appendix A), a Global Note may not be transferred
except as a whole and not in part if the transfer is by the Depositary to a nominee of the Depositary or by a nominee of the Depositary
to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee
of such successor Depositary.
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(d) Restrictions
on Transfer of Global Notes; Voluntary Exchange of Interests in Transfer Restricted Global Notes for Interests in Unrestricted Global
Notes.
(i) Transfers
by an owner of a beneficial interest in an IAI Global Note or a Rule 144A Global Note to a transferee who takes delivery of such
interest through another Transfer Restricted Global Note shall be made in accordance with the Applicable Procedures and the Restricted
Notes Legend and only upon receipt by the Trustee of a certification from the transferor in the form provided on the reverse side of the
Form of Note in Exhibit A for exchange or registration of transfers and, as applicable, delivery of such legal opinions,
certifications and other information as may be requested pursuant thereto. In addition, in the case of a transfer of a beneficial interest
in a Regulation S Global Note, or a Rule 144A Global Note for an interest in an IAI Global Note, the transferee must furnish a signed
letter substantially in the form of Exhibit B to the Trustee.
(ii) Prior
to the expiration of the applicable Distribution Compliance Period, (A) each Regulation S Global Note shall be a temporary global
security for purposes of Rules 903 and 904 under the Securities Act, whether or not designated as such on the face of such Note,
and (B) beneficial ownership interests in such Regulation S Global Note may only be held through Euroclear or Clearstream. During
the applicable Distribution Compliance Period, beneficial ownership interests in a Regulation S Global Note may only be sold, pledged
or transferred through Euroclear or Clearstream in accordance with the Applicable Procedures, the Restricted Notes Legend on such Regulation
S Global Note and any applicable securities laws of any state of the U.S. Prior to the expiration of the applicable Distribution Compliance
Period, transfers by an owner of a beneficial interest in the Regulation S Global Note to a transferee who takes delivery of such interest
through a Rule 144A Global Note or an IAI Global Note shall be made only in accordance with the Applicable Procedures and the Restricted
Notes Legend and upon receipt by the Trustee of a written certification from the transferor of the beneficial interest in the form provided
on the reverse side of the Form of Note in Exhibit A for exchange or registration of transfers. Such written certification
shall no longer be required after the expiration of the applicable Distribution Compliance Period. Upon the expiration of the applicable
Distribution Compliance Period, beneficial ownership interests in the Regulation S Global Note shall be transferable in accordance with
applicable law and the other terms of this Indenture.
(iii) Upon
the expiration of the applicable Distribution Compliance Period, beneficial interests in the Regulation S Global Note may be exchanged
for beneficial interests in an Unrestricted Global Note upon certification in the form provided on the reverse side of the Form of
Note in Exhibit A for an exchange from a Regulation S Global Note to an Unrestricted Global Note.
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(iv) Beneficial
interests in a Transfer Restricted Note that is a Rule 144A Global Note or an IAI Global Note may be exchanged for beneficial interests
in an Unrestricted Global Note if the Holder certifies in writing to the Security Registrar that its request for such exchange is in respect
of a transfer made in reliance on Rule 144 (such certification to be in the form set forth on the reverse side of the Form of
Note in Exhibit A) and/or upon delivery of such legal opinions, certifications and other information as the Company or the
Trustee may reasonably request.
(v) If
no Unrestricted Global Note is outstanding at the time of a transfer contemplated by the preceding clauses (iii) and (iv), the Company
shall issue and the Trustee shall authenticate, upon a Company Order, a new Unrestricted Global Note in the appropriate principal amount.
(vi) A
transferee of a Note shall be deemed to have represented and agreed as follows:
(A) It
understands and acknowledges that the Notes and the Guarantees, which have not been registered under the Securities Act, under any other
federal, state or other local law pertaining to the registration of securities, or with any securities regulatory authority of any state
or other jurisdiction, may not be offered, sold or otherwise transferred except in compliance with the registration requirements of the
Securities Act or any other applicable securities laws or pursuant to an exemption therefrom and in each case in compliance with the conditions
for transfer in this Appendix A and the Indenture. Such transferee shall not resell or otherwise transfer any of such Notes and Guarantees,
except as provided in this Appendix A and the Indenture. It further acknowledges and agrees that, in the case of Notes sold in reliance
upon Regulation S, all offers and sales until the later of 40 days after (i) the issue date and (ii) when the Notes and Guarantees
or any predecessor of the Notes are first offered to persons other than distributors (as defined in Rule 902 of Regulation S) in
reliance on Regulation S shall be made only in accordance with Section 903 or 904 of Regulation S, pursuant to registration of the
securities under the Securities Act or pursuant to an available exemption from the registration requirements of the Securities Act.
(B) It
agrees that it will give to each person to whom it transfers the Notes and Guarantees notice of any restrictions on transfer of such Notes
and Guarantees. It acknowledges that the Company and the Trustee, as the case may be, reserve the right prior to any offer, sale or other
transfer to require the delivery of an opinion of counsel, certifications and/or information satisfactory to Company and the Trustee,
as provided in this Appendix A and the Indenture. It acknowledges that prior to any proposed transfer of Notes in certificated form or
of beneficial interests in a Global Note (in each case other than pursuant to an effective registration statement) the holder of Notes
and Guarantees or the holder of beneficial interests in a Global Note, as the case may be, may be required to provide certifications and
other documentation relating to the manner of such transfer and submit such certifications and other documentation as provided in this
Appendix A and the Indenture.
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(C) It
acknowledges that the Company and others will rely upon the truth and accuracy of the foregoing acknowledgments, representations and agreements
and agrees that if any of the acknowledgments, representations or agreements deemed to have been made by its purchase of the Notes and
Guarantees are no longer accurate, it shall promptly notify the Company. If it is acquiring the Notes and Guarantees as a fiduciary or
agent for one or more investor accounts, it represents that it has investment discretion with respect to each such account and it has
full power to make the foregoing acknowledgments, representations, and agreements on behalf of each account.
(e) Legends.
(i) Except
as permitted by Section 2.2(d) and this Section 2.2(e) of this Appendix A, each Note certificate evidencing the Global
Notes and the Definitive Notes (and all Notes issued in exchange therefor or in substitution thereof) shall bear a legend in substantially
the following form (each defined term in the legend being defined as such for purposes of the legend only) (“Restricted Notes
Legend”):
THIS NOTE HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION.
NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
[IN THE CASE OF IAI NOTES: BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS (A) A “QUALIFIED INSTITUTIONAL
BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), OR (B) AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED
IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT), AND AGREES THAT WITHIN THE TIME PERIOD REFERRED
TO UNDER RULE 144 (TAKING INTO ACCOUNT THE PROVISIONS OF RULE 144(d) UNDER THE SECURITIES ACT, IF APPLICABLE) UNDER THE SECURITIES
ACT AS IN EFFECT ON THE DATE OF THE TRANSFER OF THIS NOTE, TO OFFER, RESELL OR OTHERWISE TRANSFER THIS NOTE] [IN THE CASE OF RULE 144A
NOTES AND REGULATION S NOTES: THE HOLDER OF THIS NOTE, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR
ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH NOTE, PRIOR TO THE DATE (THE “RESALE RESTRICTION
TERMINATION DATE”) THAT IS [IN THE CASE OF RULE 144A NOTES: ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF
AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF SUCH NOTE)] [IN
THE CASE OF REGULATION S NOTES: 40 DAYS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE DATE ON WHICH THIS NOTE (OR
ANY PREDECESSOR OF SUCH NOTE) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S UNDER THE SECURITIES
ACT) IN RELIANCE ON REGULATION S], ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT
THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER”
AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE
THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR”
WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER AND
THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM
PRINCIPAL AMOUNT OF SECURITIES OF AT LEAST $250,000 OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT
TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/ OR OTHER INFORMATION SATISFACTORY
TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. [IN THE
CASE OF REGULATION S NOTES: BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT
PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER
THE SECURITIES ACT.]]
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THE TERMS OF THIS NOTE ARE SUBJECT TO
THE TERMS OF THE INTERCREDITOR AGREEMENTS, AS THEY MAY BE AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME
IN ACCORDANCE WITH THE INDENTURE.
Each Definitive Note shall bear the following
additional legend (“Definitive Notes Legend”):
IN CONNECTION WITH ANY TRANSFER, THE
HOLDER WILL DELIVER TO THE SECURITY REGISTRAR SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH SECURITY REGISTRAR MAY REASONABLY REQUIRE
TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
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Each Global Note shall bear the following additional
legend (“Global Notes Legend”):
UNLESS THIS CERTIFICATE IS PRESENTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL
BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE
AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
Each Note issued with original issue discount
will also bear the following additional legend (“OID Notes Legend”):
THIS NOTE MAY HAVE BEEN ISSUED
WITH “ORIGINAL ISSUE DISCOUNT” (WITHIN THE MEANING OF SECTION 1273 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED)
FOR U.S. FEDERAL INCOME TAX PURPOSES. UPON WRITTEN REQUEST, THE COMPANY MAY PROMPTLY MAKE AVAILABLE TO ANY HOLDER OF THIS NOTE THE
FOLLOWING INFORMATION: (1) THE ISSUE PRICE AND DATE OF THE NOTE, (2) THE AMOUNT OF ORIGINAL ISSUE DISCOUNT ON THE NOTE AND (3) THE
YIELD TO MATURITY OF THE NOTE. HOLDERS SHOULD CONTACT THE CHIEF FINANCIAL OFFICER OF THE COMPANY AT TWO NEWTON PLACE, 255 WASHINGTON STREET,
SUITE 300, NEWTON, MA 02458-1634.
(ii) Upon
any sale or transfer of a Transfer Restricted Note that is a Definitive Note, the Security Registrar shall permit the Holder thereof to
exchange such Transfer Restricted Note for a Definitive Note that does not bear the Restricted Notes Legend and the Definitive Notes Legend
and rescind any restriction on the transfer of such Transfer Restricted Note if the Holder certifies in writing to the Security Registrar
that its request for such exchange is in respect of a transfer made in reliance on Rule 144 (such certification to be in the form
set forth on the reverse side of the Form of Note in Exhibit A) and provides such legal opinions, certifications and
other information as the Company or the Trustee may reasonably request.
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(f) Cancellation
or Adjustment of Global Note. At such time as all beneficial interests in a Global Note have either been exchanged for Definitive
Notes, transferred in exchange for an interest in another Global Note, redeemed, repurchased or canceled, such Global Note shall be returned
by the Depositary to the Trustee for cancellation or retained and canceled by the Trustee. At any time prior to such cancellation, if
any beneficial interest in a Global Note is exchanged for Definitive Notes, transferred in exchange for an interest in another Global
Note, redeemed, repurchased or canceled, the principal amount of Notes represented by such Global Note shall be reduced and an adjustment
shall be made on the books and records of the Security Registrar (if it is then the Custodian for such Global Note) with respect to such
Global Note, by the Security Registrar or the Custodian, to reflect such reduction.
(g) Obligations
with Respect to Transfers and Exchanges of Notes.
(i) To
permit registrations of transfers and exchanges, the Company shall execute and the Trustee shall authenticate, Definitive Notes and Global
Notes at the Security Registrar’s request.
(ii) No
service charge shall be made for any registration of transfer or exchange of Notes, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Notes,
other than exchanges pursuant to Section 3.04, 9.05 or 11.08 of the Indenture not involving any transfer.
(iii)
Prior to the due presentation for registration of transfer of any Note, the Company, each
Subsidiary Guarantor, the Trustee, the Paying Agent or the Security Registrar shall deem and treat the person in whose name a Note
is registered as the absolute owner of such Note for the purpose of receiving payment of principal, premium, if any, and interest on
such Note and for all other purposes whatsoever, whether or not such Note is overdue, and none of the Company, any Subsidiary
Guarantor, the Trustee, the Paying Agent or the Security Registrar shall be affected by notice to the contrary.
(iv) Every
Note presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee or any
transfer agent) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed, by the Holder thereof or the attorney of such Holder duly authorized in writing.
(v) In
order to effect any transfer or exchange of an interest in any Transfer Restricted Note for an interest in a Note that does not bear the
Restricted Notes Legend and has not been registered under the Securities Act, if the Security Registrar so requests or if the Applicable
Procedures so require, an Opinion of Counsel, in form reasonably acceptable to the Security Registrar to the effect that no registration
under the Securities Act is required in respect of such exchange or transfer or the re-sale of such interest by the beneficial holder
thereof, shall be required to be delivered to the Security Registrar and the Trustee.
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(h) No
Obligation of the Trustee.
(i) The
Trustee shall have no responsibility or obligation to any beneficial owner of a Global Note, a member of, or a participant in the Depositary
or any other Person with respect to the accuracy of the records of the Depositary or its nominee or of any participant or member thereof,
with respect to any ownership interest in the Notes or with respect to the delivery to any participant, member, beneficial owner or other
Person (other than the Depositary) of any notice (including any notice of redemption or repurchase) or the payment of any amount, under
or with respect to such Notes. All notices and communications to be given to the Holders and all payments to be made to Holders under
the Notes shall be given or made only to the registered Holders (which shall be the Depositary or its nominee in the case of a Global
Note). The rights of beneficial owners in any Global Note shall be exercised only through the Depositary subject to the applicable rules and
procedures of the Depositary. The Trustee may rely and shall be fully protected in relying upon information furnished by the Depositary
with respect to its members, participants and any beneficial owners.
(ii) The
Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under
this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among
Depositary participants, members or beneficial owners in any Global Note) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture, and
to examine the same to determine substantial compliance as to form with the express requirements hereof.
Section 2.3 Definitive
Notes.
(a) Except
as provided below, owners of beneficial interests in Global Notes shall not be entitled to receive Definitive Notes. A Global Note deposited
with the Depositary or with the Trustee as Custodian pursuant to Section 2.1 of this Appendix A may be transferred to the beneficial
owners thereof in the form of Definitive Notes in an aggregate principal amount equal to the principal amount of such Global Note, in
exchange for such Global Note, only if such transfer complies with Section 2.2 of this Appendix A and (i) the Depositary notifies
the Company that it is unwilling or unable to continue as a Depositary for such Global Note or if at any time the Depositary ceases to
be a “clearing agency” registered under the Exchange Act and, in each case, a successor depositary is not appointed by the
Company within 90 days of such notice or after the Company becomes aware of such cessation, (ii) an Event of Default has occurred
and is continuing and the Security Registrar has received a request from the Depositary or (iii) the Company, in its sole discretion
and subject to the procedures of the Depositary, notifies the Trustee in writing that it elects to cause the issuance of Definitive Notes
under this Indenture. In addition, any Affiliate of the Company or any Subsidiary Guarantor that is a beneficial owner of all or part
of a Global Note may have such Affiliate’s beneficial interest transferred to such Affiliate in the form of a Definitive Note by
providing a written request to the Company and the Trustee and such Opinions of Counsel, certificates or other information as may be required
by this Indenture or the Company or Trustee. Notwithstanding anything to the contrary in this Section 2.3, no Regulation S Global
Note may be exchanged for a Definitive Note until the end of the Distribution Compliance Period applicable to such Regulation S Global
Note and receipt by the Trustee and the Company of any certificates required by either of them pursuant to Rule 903(b)(3)(ii)(B) under
the Securities Act.
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(b) Any
Global Note that is transferable to the beneficial owners thereof pursuant to this Section 2.3 shall be surrendered by the Depositary
to the Trustee, to be so transferred, in whole or from time to time in part, without charge, and the Trustee shall authenticate and deliver,
upon such transfer of each portion of such Global Note, an equal aggregate principal amount of Definitive Notes of authorized denominations.
Any portion of a Global Note transferred pursuant to this Section 2.3 shall be executed, authenticated and delivered only in minimum
denominations of $2,000 and integral multiples of $1,000 in excess thereof and registered in such names as the Depositary shall direct.
Any Definitive Note delivered in exchange for an interest in a Global Note that is a Transfer Restricted Note shall, except as otherwise
provided by Section 2.2(d) of this Appendix A, bear the Restricted Notes Legend.
(c) In
the event of the occurrence of any of the events specified in Section 2.3(a) of this Appendix A, the Company shall promptly
make available to the Trustee a reasonable supply of Definitive Notes in fully registered form without interest coupons.
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EXHIBIT A
FORM OF NOTE
[Form of Face of Note]
[Insert the Restricted Notes Legend, if applicable,
pursuant to the provisions of the Indenture]
[Insert the Global Notes Legend, if applicable,
pursuant to the provisions of the Indenture]
[Insert the Definitive Notes Legend, if applicable,
pursuant to the provisions of the Indenture]
[Insert the OID Notes Legend, if applicable, pursuant
to the provisions of the Indenture.]
CUSIP [●]
ISIN [●]
[IAI][RULE 144A][REGULATION S] GLOBAL NOTE
OFFICE PROPERTIES INCOME TRUST
No. [●]
10.000% SENIOR SECURED NOTE DUE 2031
Office Properties Income Trust, a real estate
investment trust duly organized and existing under the laws of Maryland (herein called the “Company”, which term includes
any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to____________________________,
or registered assigns, the principal amount of $_______________________, as revised by the Schedule of Increases and Decreases in the
Global Note attached hereto on June 17, 2031.
Additional provisions of this Note are set forth
on the other side of this Note.
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IN WITNESS WHEREOF, the Company
has caused this instrument to be duly executed.
Dated: OFFICE
PROPERTIES INCOME TRUST
By:
Name:
Title:
CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Notes referred to in the within-mentioned Indenture.
U.S. Bank Trust Company, National Association, as Trustee
By:
Name:
Title:
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[Form of Reverse of Note]
1. General.
The Company issued this Note under an Indenture, dated as of June 17, 2026 (as amended, supplemented or otherwise modified from
time to time, the “Indenture”), among the Company, the Initial Subsidiary Guarantors and U.S. Bank Trust Company, National
Association, as Trustee and Collateral Agent. The terms of this Note include those stated in the Indenture. Capitalized terms used but
not defined herein have the meaning given to them in the Indenture. To the extent any provision of this Note conflicts with the express
provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.
2. Interest.
Unless previously redeemed, the Notes will bear interest at 10.000% per annum, payable semi-annually in arrears on March 31 and September 30
of each year, commencing September 30, 2026, to the Persons in whose names the Notes are registered in the Security Register at the
close of business on the Record Date, which shall be March 28 or September 12 (in each case, whether or not a Business Day),
as the case may be, immediately before such Interest Payment Date. Interest on the Notes will be computed on the basis of a 360-day year
consisting of twelve 30-day months. If any scheduled Interest Payment Date, the Stated Maturity or any Redemption Date falls on a day
that is not a Business Day, the payment will be made on the next Business Day and no interest will accrue thereon for the period from
and after such Interest Payment Date, the Stated Maturity or such Redemption Date.
3. Method
of Payment. By no later than 11:00 a.m. Eastern Time on the date on which any principal of and premium, if any, and interest
on any Note is due and payable, the Company shall deposit with the Paying Agent a sum sufficient in immediately available funds to pay
such principal, premium, if any, and interest when due. Interest on any Note which is payable, and is timely paid or duly provided for,
on any Interest Payment Date shall be paid to the Person in whose name such Note (or one or more Predecessor Notes) is registered at the
close of business on the immediately preceding March 28 and September 12 (in each case, whether or not a Business Day) at the
office or agency of the Company maintained for such purpose pursuant to Section 10.02 of the Indenture. The principal of (and premium,
if any), and interest on the Note shall be payable at the office or agency of Paying Agent or Security Registrar designated by the Company
maintained for such purpose in the United States or at such other office or agency of the Company as may be maintained for such purpose
pursuant to Section 10.03 of the Indenture; provided, however, that, at the option of the Company, the principal of (and premium,
if any) and interest, may be paid by (i) check mailed to addresses of the Persons entitled thereto as such addresses shall appear
on the Security Register or (ii) wire transfer to an account located in the United States maintained by the payee, subject to the
last sentence of this paragraph. Payments in respect of Notes represented by a Global Note (including principal, premium, if any, and
interest) shall be made by wire transfer of immediately available funds to the accounts specified by The Depository Trust Company or any
successor depository. Payments of any principal of, premium, if any, and interest on any Note is due and payable shall be made without
withholding and free and clear of any taxes, except as required by applicable law.
4. Paying
Agent and Security Registrar. Initially, U.S. Bank Trust Company, National Association or one of its Affiliates will act as Paying
Agent and Security Registrar. The Company or any of its Affiliates may act as Paying Agent, Security Registrar or co-Security Registrar.
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5. Optional
Redemption.
At any time on or after the
date hereof, the Company may redeem at its option on any one or more occasions all or a part of the Notes upon not less than 10 nor more
than 60 days’ notice, at a redemption price of 100% of the principal amount of Notes to be redeemed plus accrued and unpaid interest
thereon, if any, to, but not including, the applicable Redemption Date (subject to the right of Holders of the Notes on the relevant Record
Date to receive interest due on the relevant interest payment date occurring on or prior to the Redemption Date).
Any redemption and notice
of redemption may, at the Company’s discretion, be subject to the satisfaction of one more conditions precedent as provided in Section 11.05
of the Indenture.
Nothing in this Note or the
Indenture will limit the Company’s or its Affiliates’ ability to repurchase or retire Notes other than by redemption, whether
by tender offer, exchange offer, open market repurchases, privately negotiated transactions or otherwise.
6. Mandatory
Redemption. The Notes will not be subject to mandatory redemption or any sinking fund payments.
7. Discharge
and Defeasance. The Indenture contains provisions for discharge or defeasance at any time of the entire indebtedness of this Notes
or certain restrictive covenants and Events of Default with respect to this Note, in each case upon compliance with certain conditions
set forth in the Indenture.
8. Defaults
and Remedies. If an Event of Default with respect to the Notes shall occur and be continuing, the principal of the Notes, plus accrued
and unpaid interest, if any, may be declared due and payable in the manner and with the effect provided in the Indenture.
9. Actions
of Holders. The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the
rights and obligations of the Company and the rights of the Holders of the Notes to be affected under the Indenture, the Security Documents,
the Intercreditor Agreements, any Guarantee and the Notes at any time by the Company and the Trustee and the Collateral Agent with the
consent of the Holders of not less than a majority of the aggregate principal amount of the Outstanding Notes at the time to be affected.
The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Outstanding Notes at
the time, on behalf of the Holders of all Notes, to waive compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in
exchange therefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note.
As provided in and subject
to the provisions of the Indenture, the Holder of this Note shall not have the right to institute any proceeding, judicial or otherwise,
with respect to the Indenture or this Note, or for the appointment of a receiver or trustee, or for any other remedy thereunder, unless
such Holder shall have previously given written notice to the Trustee of a continuing Event of Default with respect to the Notes, the
Holders of not less than a majority in principal amount of the Outstanding Notes shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee under the Indenture and offered the Trustee reasonable indemnity
against the costs, expenses and liabilities to be incurred in compliance with such request, and the Trustee shall not have received from
the Holders of a majority in principal amount of Outstanding Notes at the time a direction inconsistent with such written request, and
shall have failed to institute any such proceeding for 60 days after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to any suit instituted by the Holder of this Note for the enforcement of any payment of principal hereof or any premium
or interest hereon on or after the respective due dates expressed herein.
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10. Payments
Not Impaired. Notwithstanding any other provision in this Note and/or the Indenture, the Holder of this Note shall have the right,
which is absolute and unconditional, to receive payment of the principal of (and premium, if any), and any interest on, this Note on the
respective Stated Maturities expressed herein (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement
of any such payment, and such rights shall not be impaired without the consent of such Holder.
11. Denominations,
Transfer, Exchange. As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Note is
registrable in the Security Register, upon surrender of this Note for registration of transfer at the office or agency of the Company
in any place where the principal of and any premium and interest on this Note are payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his or her
attorney duly authorized in writing, and thereupon one or more new Notes, of any authorized denominations and of like tenor and aggregate
principal amount, will be issued in the name of the designated transferee or transferees.
The Notes are issuable only
in registered form without coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof. As provided in the Indenture
and subject to certain limitations therein set forth, the Notes are exchangeable for a like aggregate principal amount and of like tenor
of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be
made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith.
12. Persons
Deemed Owners. Prior to due presentment of this Note for registration of transfer, the Company, each Subsidiary Guarantor, the Trustee
and any agent of the Company, any Subsidiary Guarantor or the Trustee may treat the Person in whose name this Note is registered as the
owner hereof for all purposes whatsoever, whether or not this Note be overdue, and neither the Company, any Subsidiary Guarantor, the
Trustee nor any agent of the Company, any Subsidiary Guarantor or the Trustee shall be affected by notice to the contrary.
13. Unclaimed
Money. Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal
of (and premium, if any), and any interest on, any Notes and remaining unclaimed for two years after such principal (and premium, if any),
and any interest, has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Note shall thereafter, as an unsecured general creditor, look only to the Company
for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before
being required to make any such repayment, may at the expense of the Company cause to be published once, in an Authorized Newspaper in
each Place of Payment, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company.
A-18
14. Subsidiary
Guarantees. The Notes will be entitled to the benefits of certain Subsidiary Guarantees made for the benefit of the Holders of the
Notes. Reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and obligations
thereunder of the Subsidiary Guarantors, the Trustee and the Holders.
15. Security.
This Note and the other Notes will be secured by security interests on the Collateral, subject to Permitted Liens and any other limitation
on the extent to which the Collateral secures the Notes Obligations contemplated by the Security Documents and Intercreditor Agreements,
as set forth in Article Fourteen of the Indenture.
16. No
Recourse Against Others. A trustee, director, officer, employee, incorporator, member or shareholder, as such, of the Company or any
Subsidiary Guarantor shall not have any liability for any obligations of the Company or the Subsidiary Guarantors under this Note, the
other Notes, the Guarantees, the Indenture, the Security Documents or the Intercreditor Agreements or for any claim based on, in respect
of, or by reason of, such obligations or their creation. By accepting a Note, each Holder shall waive and release all such liability.
The waiver and release are part of the consideration for issuance of the Notes.
17. No
Personal Liability. THE AMENDED AND RESTATED DECLARATION OF TRUST ESTABLISHING OFFICE PROPERTIES INCOME TRUST, DATED JUNE 8, 2009,
AS AMENDED, AS FILED WITH THE STATE DEPARTMENT OF ASSESSMENTS AND TAXATION OF MARYLAND, PROVIDES THAT NO TRUSTEE, OFFICER, SHAREHOLDER,
EMPLOYEE OR AGENT OF OFFICE PROPERTIES INCOME TRUST SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION
OF, OR CLAIM AGAINST, OFFICE PROPERTIES INCOME TRUST. ALL PERSONS DEALING WITH OFFICE PROPERTIES INCOME TRUST IN ANY WAY SHALL LOOK ONLY
TO THE ASSETS OF OFFICE PROPERTIES INCOME TRUST FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.
NO TRUSTEE, DIRECTOR, OFFICER,
MANAGER, EMPLOYEE, AGENT, INCORPORATOR, STOCKHOLDER, PARTNER OR MEMBER OF THE ISSUER OR ANY GUARANTOR, AS SUCH, SHALL HAVE ANY LIABILITY
FOR ANY OBLIGATIONS OF THE ISSUER OR ANY GUARANTOR UNDER THE NOTES OR THIS INDENTURE OR FOR ANY CLAIM BASED ON, IN RESPECT OF, OR
BY REASON OF, SUCH OBLIGATIONS OR THEIR CREATION, SOLELY BY REASON OF ITS STATUS AS A TRUSTEE, DIRECTOR, OFFICER, MANAGER, EMPLOYEE, AGENT, INCORPORATOR,
STOCKHOLDER OR MEMBER OF THE ISSUER OR A GUARANTOR. BY ACCEPTING A NOTE, EACH HOLDER WAIVES AND RELEASES ALL SUCH LIABILITY. THE WAIVER
AND RELEASE ARE PART OF THE CONSIDERATION FOR ISSUANCE OF THE NOTES
A-19
18. Authentication.
This Note shall not be valid until an authorized officer of the Trustee (or an Authenticating Agent) manually or electronically signs
the certificate of authentication on the other side of this Note.
19. Abbreviations.
Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants
by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A
(= Uniform Gifts to Minors Act).
20. ISIN
and/or CUSIP Numbers. The Company may cause ISIN and/or CUSIP numbers to be printed on the Notes, and if so the Trustee shall use
ISIN and/or CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers
either as printed on the Notes or as contained in any notice of redemption, and reliance may be placed only on the other identification
numbers placed on the Notes.
21. Governing
Law. This Note shall be governed by, and construed in accordance with, the laws of the State of New York.
A-20
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:
(Insert assignee’s legal name)
(Insert assignee’s soc. sec. or tax I.D. no.)
(Print or type assignee’s name, address and zip code)
and irrevocably appoint
to transfer this Note on the books of the Company. The agent may substitute another to act for him.
Date:
Your Signature:
(Sign exactly as your name appears on the face
of this Note)
Signature Guarantee*:
* Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor acceptable to the Trustee).
A-21
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR
REGISTRATION OF TRANSFERS OF TRANSFER RESTRICTED NOTES
This certificate relates to
$__________ principal amount of Notes held in (check applicable space) ____ book-entry or _____ definitive form by the undersigned.
The undersigned (check one
box below):
¨ has requested the Trustee by written order to deliver in exchange for its beneficial interest in a Global
Note held by the Depositary a Note or Notes in definitive, registered form of authorized denominations and an aggregate principal amount
equal to its beneficial interest in such Global Note (or the portion thereof indicated above) in accordance with the Indenture; or
¨ has requested the Trustee by written order to exchange or register the transfer of a Note or Notes.
In connection with any transfer
of any of the Notes evidenced by this certificate, the undersigned confirms that such Notes are being transferred in accordance with its
terms:
CHECK ONE BOX BELOW
(1) ¨
to the Company or subsidiary thereof; or
(2) ¨
to the Security Registrar for registration in the name of the Holder, without transfer; or
(3) ¨
pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “Securities Act”);
or
(4) ¨
to a Person that the undersigned reasonably believes is a “qualified institutional buyer” (as defined in Rule 144A
under the Securities Act (“Rule 144A”)) that purchases for its own account or for the account of a qualified
institutional buyer and to whom notice is given that such transfer is being made in reliance on Rule 144A, in each case pursuant
to and in compliance with Rule 144A; or
(5) ¨
pursuant to offers and sales to non-U.S. persons that occur outside the United States within the meaning of Regulation S under the
Securities Act (and if the transfer is being made prior to the expiration of the Distribution Compliance Period, the Notes shall be held
immediately thereafter through Euroclear or Clearstream); or
(6) ¨
to an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities
Act) that has furnished to the Trustee a signed letter in the form of Exhibit B containing certain representations and agreements;
or
(7) ¨
pursuant to Rule 144 under the Securities Act; or
(8) ¨
pursuant to another available exemption from registration under the Securities Act.
A-22
Unless one of the boxes is checked,
the Trustee will refuse to register any of the Notes evidenced by this certificate in the name of any Person other than the registered
Holder thereof; provided, however, that if box (5), (6), (7) or (8) is checked, the Company or the Trustee may require,
prior to registering any such transfer of the Notes, such legal opinions, certifications and other information as the Company or the Trustee
has reasonably requested to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to,
the registration requirements of the Securities Act.
Your Signature
Date:
Signature of Signature
Guarantor
TO BE COMPLETED BY PURCHASER IF (4) ABOVE
IS CHECKED.
The undersigned represents and
warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion
and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A, and is aware that
the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company
as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that
the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided
by Rule 144A.
Date:
NOTICE:
To be executed by an executive officer
Name:
Title
Signature Guarantee*:
* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable
to the Trustee).
A-23
TO BE COMPLETED IF THE HOLDER REQUIRES AN
EXCHANGE FROM A REGULATION S GLOBAL NOTE TO AN UNRESTRICTED GLOBAL NOTE, PURSUANT TO SECTION 2.2(d)(iii) OF APPENDIX A TO
THE INDENTURE1
The undersigned represents and warrants that either:
¨ the undersigned is not a dealer (as defined in the Securities Act) and is a non-U.S. person (within the
meaning of Regulation S under the Securities Act); or
¨ the undersigned is not a dealer (as defined in the Securities Act) and is a U.S. person (within the meaning
of Regulation S under the Securities Act) who purchased interests in the Notes pursuant to an exemption from, or in a transaction not
subject to, the registration requirements under the Securities Act; or
¨ the undersigned is a dealer (as defined in the Securities Act) and the interest of the undersigned in
this Note does not constitute the whole or a part of an unsold allotment to or subscription by such dealer for the Notes.
Date:
Your Signature
1 Include only for Regulation S Global Notes.
A-24
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL
NOTE*
The initial outstanding principal
amount of this Global Note is $____________. The following exchanges of a part of this Global Note for an interest in another Global Note
or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this Global Note, have been
made:
Date of Exchange
Amount of
decrease
in principal
amount of
this Global Note
Amount of
increase
in principal
amount of
this
Global Note
Principal
amount of
this Global
Note
following
such
decrease or
increase
Signature of
authorized signatory
of Trustee,
Depositary or
Custodian
* This schedule should be included only if the Note is issued in global form.
A-25
EX-4.2 — EXHIBIT 4.2
EX-4.2
Filename: tm2618043d2_ex4-2.htm · Sequence: 3
Exhibit 4.2
Execution Version
OFFICE PROPERTIES INCOME INTERMEDIATE HOLDCO II
TRUST LLC,
as Issuer,
OFFICE PROPERTIES INCOME TRUST,
as Limited Parent Guarantor,
OFFICE PROPERTIES INCOME INTERMEDIATE HOLDCO I
TRUST LLC,
as HoldCo and a Guarantor,
THE OTHER GUARANTORS NAMED HEREIN
and
UMB Bank, National Association,
as Trustee and Collateral Agent
Dated as of June 17, 2026
$385,000,000 8.375% Senior Secured Limited OPI
Guaranteed Notes due 2029
TABLE OF CONTENTS
Page
ARTICLE One
Definitions and Other Provisions of General Application
1
Section 1.01.
Definitions
1
Section 1.02.
Compliance Certificates and Opinions
23
Section 1.03.
Form of Documents Delivered to Trustee
23
Section 1.04.
Acts of Holders; Record Dates
23
Section 1.05.
Notices, Etc., to Trustee and Issuer
25
Section 1.06.
Notice to Holders; Waiver
26
Section 1.07.
Trust Indenture Act
26
Section 1.08.
Effect of Headings and Table of Contents
26
Section 1.09.
Successors and Assigns
26
Section 1.10.
Separability Clause
27
Section 1.11.
Benefits of Indenture
27
Section 1.12.
Governing Law
27
Section 1.13.
Legal Holidays
27
Section 1.14.
Language of Notices, Etc.
27
Section 1.15.
No Personal Liability
27
Section 1.16.
Notices
28
Section 1.17.
Counterparts
28
ARTICLE Two
INTEREST RATE; INTEREST PAYMENTS
29
Section 2.01.
Interest Rate; Interest Payments
29
ARTICLE Three
the notes
29
Section 3.01.
Form and Dating
29
Section 3.02.
Denominations
30
Section 3.03.
Execution, Authentication, Delivery and Dating
30
Section 3.04.
Temporary Notes
31
Section 3.05.
Registration, Registration of Transfer and Exchange
31
Section 3.06.
Mutilated, Destroyed, Lost and Stolen Notes
32
Section 3.07.
Payment of Interest; Interest Rights Preserved
33
Section 3.08.
Persons Deemed Owners
34
Section 3.09.
Cancellation
34
Section 3.10.
Currency
34
Section 3.11.
ISIN/CUSIP Numbers
34
Section 3.12.
Amount
34
ARTICLE Four
Satisfaction and Discharge
35
Section 4.01.
Satisfaction and Discharge of Indenture
35
Section 4.02.
Application of Trust Money and Government Obligations
36
ARTICLE Five
Remedies
36
Section 5.01.
Events of Default
36
Section 5.02.
Acceleration of Maturity; Rescission and Annulment
38
Section 5.03.
Collection of Debt and Suits for Enforcement by Trustee
39
Section 5.04.
[Reserved]
40
Section 5.05.
Trustee May Enforce Claims Without Possession of Notes
40
Section 5.06.
Application of Money Collected
40
Section 5.07.
Limitation on Suits
41
Section 5.08.
Unconditional Right of Holders to Receive Payment
41
Section 5.09.
Restoration of Rights and Remedies
41
Section 5.10.
Rights and Remedies Cumulative
42
Section 5.11.
Delay or Omission Not Waiver
42
Section 5.12.
Control by Holders
42
Section 5.13.
Waiver of Past Defaults
42
Section 5.14.
Undertaking for Costs
43
Section 5.15.
Waiver of Usury, Stay or Extension Laws
43
ARTICLE Six
The Trustee
43
Section 6.01.
Certain Duties and Responsibilities
43
Section 6.02.
Notice of Defaults
44
Section 6.03.
Certain Rights of Trustee
44
Section 6.04.
Not Responsible for Recitals or Issuance of Notes
46
Section 6.05.
May Hold Notes
46
Section 6.06.
Money Held in Trust
46
Section 6.07.
Compensation and Reimbursement
46
Section 6.08.
Conflicting Interests
47
Section 6.09.
Corporate Trustee Required; Eligibility
47
Section 6.10.
Resignation and Removal; Appointment of Successor
47
Section 6.11.
Acceptance of Appointment by Successor
48
Section 6.12.
Merger, Conversion, Consolidation or Succession to Business
49
Section 6.13.
Preferential Collection of Claims Against Issuer
49
Section 6.14.
Appointment of Authenticating Agent
50
Section 6.15.
Rules by Trustee
52
Section 6.16.
Trustee May File Proofs of Claim
52
ARTICLE Seven
Holders’ Lists and Reports by Trustee and Issuer
53
Section 7.01.
Issuer to Furnish Trustee Names and Addresses of Holders
53
Section 7.02.
Preservation of Information; Communications to Holders
53
ARTICLE Eight
Consolidation, Merger, Conveyance, Transfer or Lease
54
Section 8.01.
Limited Parent Guarantor May Consolidate, Etc., Only on Certain Terms
54
Section 8.02.
Restricted Obligors May Consolidate, Etc., Only on Certain Terms; Successor Substituted
55
ARTICLE Nine
AMENDMENT, SUPPLEMENT AND WAIVER
56
Section 9.01.
Without Consent of Holders
56
Section 9.02.
With Consent of Holders
58
Section 9.03.
Execution of Supplemental Indentures
59
Section 9.04.
Effect of Supplemental Indentures
59
Section 9.05.
Reference in Notes to Supplemental Indentures
59
ARTICLE Ten
Covenants
60
Section 10.01.
Payment of Principal, Premium and Interest
60
Section 10.02.
Maintenance of Office or Agency
60
Section 10.03.
Money for Notes Payments to Be Held in Trust
60
Section 10.04.
Statement by Officers as to Default
61
Section 10.05.
Existence
61
Section 10.06.
Limitation on Restricted Payments
61
Section 10.07.
Limitations on Incurrence of Debt and Issuance of Preferred Stock
62
Section 10.08.
Amortization Sources
62
Section 10.09.
Limitations on Liens
63
Section 10.10.
Provision of Financial and Other Information
63
Section 10.11.
Limitation on Asset Sales; Event of Loss
65
Section 10.12.
Collateral Covenants
66
Section 10.13.
Additional Collateral Covenants
68
Section 10.14.
Negative Pledge
68
Section 10.15.
Limited Activities
68
Section 10.16.
Transactions with Affiliates
69
Section 10.17.
After-Acquired Property
69
Section 10.18.
Cash Management
69
Section 10.19.
Other Covenants
71
ARTICLE Eleven
Redemption of Notes
71
Section 11.01.
Redemption at the Option of the Issuer
71
Section 11.02.
Election to Redeem; Notice to Trustee
73
Section 11.03.
Mandatory Redemptions
73
Section 11.04.
Selection by Trustee of Notes to Be Redeemed
74
Section 11.05.
Notice of Redemption
75
Section 11.06.
Deposit of Redemption Price
76
Section 11.07.
Notes Payable on Redemption Date
76
Section 11.08.
Notes Redeemed in Part
76
Section 11.09.
Change of Control Offer
76
ARTICLE Twelve
GUARANTEES
78
Section 12.01.
Restricted Obligor Guarantee
78
Section 12.02.
Limitation on Liability
79
Section 12.03.
Execution and Delivery of Guarantee
80
Section 12.04.
Release of a Restricted Obligor
80
Section 12.05.
Benefits Acknowledged
81
Section 12.06.
Waiver of Subrogation
81
Section 12.07.
Same Currency; No Set Off
81
Section 12.08.
Guarantee Obligations Continuing
82
Section 12.09.
No Merger or Waiver; Cumulative Remedies
82
Section 12.10.
Dealing with the Issuer and Others
82
Section 12.11.
Enforcement; Expenses
83
Section 12.12.
Limited Parent Guarantee by Limited Parent Guarantor
83
ARTICLE Thirteen
Defeasance and Covenant Defeasance
87
Section 13.01.
Issuer’s Option to Effect Defeasance or Covenant Defeasance
87
Section 13.02.
Defeasance and Discharge
87
Section 13.03.
Covenant Defeasance
88
Section 13.04.
Conditions to Defeasance or Covenant Defeasance
88
Section 13.05.
Deposited Money and Government Obligations to Be Held in Trust; Miscellaneous Provisions
90
Section 13.06.
Reinstatement
91
ARTICLE Fourteen
COLLATERAL AND SECURITY
91
Section 14.01.
The Collateral Agent
91
Section 14.02.
Acceptance of Security Documents and Intercreditor Agreements
96
Section 14.03.
Further Assurances
96
Section 14.04.
Release of Liens
98
Section 14.05.
Compensation and Indemnification
99
Appendix
Appendix A – Provisions Relating to the Notes
Exhibits
Exhibit A – Form of Note
Exhibit B – Form of Transferee Letter of Representation
Exhibit C – Form of Supplemental Indenture
Exhibit D – Form of Mortgage
Exhibit E – Form of Junior Intercreditor Agreement
Exhibit F – Form of Subordination Agreement
Schedules
Schedule A – Collateral Properties
Schedule B – Guarantors
Schedule C – [Reserved]
Schedule D – SPE Requirements
INDENTURE, dated as
of June 17, 2026, among Office Properties Income Intermediate Holdco II Trust LLC, a newly created special purpose entity organized
and existing under the laws of Delaware (the “Issuer”); Office Properties Income Trust, a real estate investment trust
organized and existing under the laws of the State of Maryland (the “Limited Parent Guarantor”); Office Properties
Income Intermediate Holdco I Trust LLC, a newly created special purpose entity organized and existing under the laws of Delaware (“HoldCo”);
the other entities (other than the Trustee and the Collateral Agent (each, as defined below)) listed on the signature pages hereto
(the “Initial Subsidiary Guarantors”); and UMB Bank, National Association, a national banking organization organized
and existing under the laws of the United States, as Trustee (in such role, the “Trustee”) and Collateral Agent (in
such role, “Collateral Agent”).
RECITALS
WHEREAS, the Issuer
has duly authorized the creation and issuance of $385,000,000 aggregate principal amount of 8.375% Senior Secured Limited OPI Guaranteed
Notes due 2029; and
WHEREAS, the Issuer,
the Limited Parent Guarantor, HoldCo and the Initial Subsidiary Guarantors have duly authorized the execution and delivery of this Indenture
(as defined herein).
NOW, THEREFORE, THIS INDENTURE
WITNESSETH for and in consideration of the premises and the purchase of the Notes by the Holders thereof, it is mutually agreed, for
the equal and proportionate benefit of all Holders of the Notes, as follows:
ARTICLE One
Definitions
and Other Provisions of General Application
Section 1.01. Definitions
For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
(a) the
terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
(b) all
other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned
to them therein;
(c) all
accounting terms not otherwise defined herein have the meanings assigned to them in accordance with United States generally accepted accounting
principles;
(d) unless
otherwise specifically set forth herein, all calculations or determinations of a Person shall be performed or made on a consolidated basis
in accordance with generally accepted accounting principles;
(e) unless
the context otherwise requires, any reference to an “Article” or a “Section” refers to an Article or a Section,
as the case may be, of this Indenture; and
(f) the
words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Indenture
as a whole and not to any particular Article, Section or other subdivision.
“Acceptable Junior
Intercreditor Agreement” means a senior priority/junior priority intercreditor agreement with (together with other relevant
Persons) the lender(s) or noteholder(s) (or any collateral agent and/or other authorized representative with respect thereto)
with respect to any Debt which is by its terms secured by Liens that are permitted to be incurred by the terms of this Indenture and so
long as such Debt is not prohibited to be incurred and so secured by the terms of this Indenture, which intercreditor agreement shall
provide for the subordination of such Liens to the Liens securing the Notes and the related Guarantees on terms that are either (a) substantially
in the form of the senior priority/junior priority intercreditor agreement attached hereto as Exhibit E in all material respects
or (b) approved by the Holders of at least 66-2/3% in the principal amount of the Outstanding Notes.
“Acceptable Subordination
Agreement” means a subordination agreement with (together with other relevant Persons) the lender(s) or noteholder(s) (or
any collateral agent and/or other authorized representative with respect thereto) with respect to any Debt, which subordination agreement
shall provide for the subordination of such Debt in all respects (including payment subordination) to the Notes and the related Guarantees
on terms that are either (a) substantially in the form of the subordination agreement attached hereto as Exhibit F in all material
respects or (b) approved by the Independent Director or the Holders of at least 66-2/3% in the principal amount of the Outstanding
Notes.
“Act,”
when used with respect to any Holder, has the meaning specified in Section 1.04.
“Additional Guarantor”
means any direct or indirect Subsidiary of HoldCo (other than the Issuer) that is not a Guarantor as of the Issue Date and that delivers
a Guarantee of the Notes Obligations in accordance with Section 14.03.
“Adjusted Issue Date
Appraisals” means, on any date of determination, the sum of (i) each of the Issue Date Appraisals in respect of each Collateral
Property that is owned by any Restricted Obligor as of such date of determination, (ii) the amount of Cash and Cash Equivalents that
is contained in the Capital Improvements Account and (iii) the aggregate amount of Capital Improvements that have been made from
the Issue Date through such date of determination in respect of each Collateral Property that is owned by any Restricted Obligor as of
such date of determination.
“Affiliate”
of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified
Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative
to the foregoing. For the avoidance of doubt, for so long as the Manager is the sole business manager of the Limited Parent Guarantor,
any Person under the direct or indirect control of, or that is controlled by or under direct or indirect common control with, the Manager
shall be considered to be an Affiliate of the Limited Parent Guarantor and the Issuer.
2
“Affiliate Transaction”
has the meaning set forth in Section 10.16.
“Allocation Agreement” means
that certain Intercompany Expense Allocation Agreement, dated June 17, 2026, among the Limited Parent Guarantor and its Subsidiaries
party thereto, as amended, restated, supplemented or otherwise modified in accordance with its terms.
“Applicable Law” means all international,
foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes, executive orders, and administrative
or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with
the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.
“Applicable Premium”
has the meaning set forth in Section 11.01(d).
“Appraisal Value”
has the meaning set forth in Section 10.11(a)(ii).
“Asset”
means any right or interest in or to any asset or property of any kind whatsoever (including any Capital Stock), whether real, personal
or mixed and whether tangible or intangible, other than Excluded Assets.
“Asset Sale”
means the sale, conveyance, transfer, investment or other disposition (including any net lease or sale-leaseback of an entire real property
(including the improvements thereon)) of any Collateral by any Restricted Obligor; but expressly excluding the sale, lease, conveyance
or other disposition of all or substantially all of the assets of the Restricted Obligors taken as a whole (which is governed by Section 8.01).
Notwithstanding the preceding provisions, none
of the following will be deemed to be an Asset Sale:
(i) a
sale, lease, conveyance or other disposition of assets between or among Restricted Obligors (other than to HoldCo); provided that
any such sale, lease, conveyance or other disposition of Collateral shall remain subject to a Lien securing the Notes;
(ii) any
transfer, assignment or other disposition deemed to occur in connection with the creation or granting of Liens not prohibited by Section 10.09;
(iii) sales,
leases, conveyances or other dispositions of property or assets subject to foreclosure proceedings, an Event of Loss or a surrender or
waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind with respect to property
or assets; provided that to the extent any of the foregoing is entered into with the Limited Parent Guarantor or an Affiliate thereof
(other than any Restricted Obligor), such transaction is at, or more favorable to the applicable Restricted Obligor than, Fair Market
Value and such transaction meets the requirements set forth in Section 10.11(e) (assuming for such purpose that such
transaction is an “Asset Sale”);
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(iv) any
lease, sublease, license, sublicense, easement, space lease, right to use or occupy, or other right to operate or conduct business or
any other similar arrangement of any kind in the ordinary course of business (including, for the avoidance of doubt, the amendment or
recast of any of the foregoing in effect on the Issue Date); provided that, to the extent any of the foregoing is entered into
with the Limited Parent Guarantor or an Affiliate thereof (other than any Restricted Obligor), such transaction is at, or more favorable
to the applicable Restricted Obligor than, Fair Market Value and such transaction meets the requirements set forth in Section 10.11(e) (assuming
for such purpose that such transaction is an “Asset Sale”);
(v) dispositions
of leases, subleases, licenses or sublicenses (other than any dispositions to the Limited Parent Guarantor or an Affiliate thereof (other
than any Restricted Obligor) that are not at or greater than Fair Market Value) and/or terminations of leases, subleases, licenses or
sublicenses;
(vi) expirations
of any option agreement in respect of real or personal property;
(vii) any
disposition of Cash or Cash Equivalents;
(viii) any
Permitted Restricted Payment;
(ix) any
disposition or series of related dispositions of personal (but, for the avoidance of doubt, not real) property in the ordinary course
of business consistent with past practice for aggregate consideration in any single transaction or series of related transactions of not
greater than $375,000;
(x) the
abandonment or other disposition of any patent, trademark or other intellectual property or application that is, in the good faith determination
of the Issuer, no longer economically reasonable to maintain or useful in the conduct of the business of the Restricted Obligors, taken
as a whole; or
(xi) any
license, sublicense or other grant of rights in or to any trademark, copyright, patent or other intellectual property.
“Authenticating Agent”
means any Person authorized by the Trustee pursuant to Section 6.14 to act on behalf of the Trustee to authenticate the Notes.
“Authorized Newspaper”
means a newspaper, in the English language or in an official language of the country of publication, customarily published on each Business
Day, whether or not published on Saturdays, Sundays or holidays, and of general circulation in each place in connection with which the
term is used or in the financial community of each such place. Where successive publications are required to be made in Authorized Newspapers,
the successive publications may be made in the same or in different newspapers in the same city meeting the foregoing requirements and
in each case on any Business Day.
“Available Amount”
means an amount equal to (i) $10.0 million minus (ii) (A) the principal amount of Amortization Debt that is incurred
pursuant to Section 10.07(a)(iii), and (B) any funds from the Reserve Account that are applied to the payment of any Guaranteed
Mandatory Amortization.
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“Bankruptcy Code”
means Title 11, United States Bankruptcy Code of 1978, as amended.
“Bankruptcy Law”
means Title 11, United States Bankruptcy Code of 1978, as amended, or any similar United States federal or state law relating to bankruptcy,
insolvency, receivership, winding-up, liquidation, reorganization or relief of debtors or any amendment to, succession to or change in
any such law.
“Board”
means, with respect to any Person, the board of trustees, board of directors, board of managers or any duly authorized committee of any
of the foregoing boards of such Person.
“Board Resolution”
means, with respect to any Person, a copy of a resolution certified by a Secretary or Assistant Secretary of such Person to have been
duly adopted by the Board of such Person and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“Business Day,”
when used with respect to any Place of Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law or executive order to close.
“Business Management
Agreement” means any business management agreement governing the Collateral Properties, including that certain Third Amended
and Restated Business Management Agreement, dated as of June 17, 2026, by and among The RMR Group LLC, as manager, and the Limited Parent
Guarantor, as amended, restated, replaced, supplemented or otherwise modified in accordance with its terms.
“Capital Improvements”
means any expenditures that are “capital improvements” (as determined in accordance with GAAP) that are made in respect of
the Collateral Properties, which shall be valued in accordance with the actual cash expended in respect of such Collateral Properties.
“Capital Improvements
Account” means a segregated account of the Issuer or any Restricted Obligor established for the retention of Excess Proceeds
to the extent permitted, and to be used solely for the purposes set forth, in Section 10.11(b).
“Capital Stock”
means, with respect to any Person, any capital stock (including preferred stock), shares, interests, participation or other ownership
interests (however designated, whether voting or non-voting) of such Person and any rights (other than debt securities convertible into
or exchangeable for capital stock), warrants or options to purchase any thereof.
“Cash”
means money, currency or a credit balance in any demand or Deposit Account.
“Cash Equivalents”
means:
(1) U.S.
dollars;
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(2) securities
issued or directly and fully and unconditionally guaranteed or insured by the United States of America or any agency or instrumentality
thereof;
(3) certificates
of deposit, time deposits and eurodollar time deposits with maturities of one year or less from the date of acquisition, demand deposits,
bankers’ acceptances with maturities not exceeding one year and overnight bank deposits, in each case with any commercial bank having
capital and surplus of not less than $100.0 million;
(4) commercial
paper or other obligation rated, at time of purchase, at least “P-2” (or its equivalent) or better by Moody’s or “A-2”
(or its equivalent) or better by S&P;
(5) marketable
short-term money market and similar securities having a rating of at least “P-2” (or its equivalent) or better by Moody’s
or “A-2” (or its equivalent) or better by S&P;
(6) securities
issued or directly and fully and unconditionally guaranteed by any state, commonwealth or territory of the United States or any political
subdivision or taxing authority of any such state, commonwealth or territory or any public instrumentality thereof rated, at time of purchase,
at least “Baa3” (or the equivalent) by Moody’s, “BBB-” (or the equivalent) by S&P;
(7) repurchase
obligations for underlying securities of the types described in clauses (2), (3) or (6) entered into with any financial institution
meeting the qualifications specified in clause (3) above;
(8) Investments
with average maturities of 24 months or less from the date of acquisition in money market funds rated, at time of purchase, “AAA-”
(or the equivalent thereof) or better by S&P or “Aaa3” (or the equivalent thereof) or better by Moody’s; and
(9) investment
funds investing 90% of their assets in securities of the types described in clauses (1) through (8) above.
“Change of Control”
means the occurrence of any of the following:
(1) any
“person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act),
other than one or more Permitted Holders, is or becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under
the Exchange Act, except that a Person will be deemed to have “beneficial ownership” of all securities that such Person has
the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of more
than 50.0% of the total voting power of the then-outstanding voting stock of the Limited Parent Guarantor; provided that a transaction
will not be deemed to involve a Change of Control if (a) the Limited Parent Guarantor becomes a direct or indirect wholly owned Subsidiary
of a holding company and (b) the direct or indirect holders of the voting stock of such holding company immediately following that
transaction are substantially the same as the holders of the Limited Parent Guarantor’s voting stock immediately prior to that transaction;
provided, further that this clause (1) shall cease to apply as of the first date the Limited Guaranteed Amount is equal
to $0;
(2) the
Issuer consolidates with or merges into any other Person or conveys, transfers or leases all or substantially all of the properties and
assets of the Issuer and its Subsidiaries, taken as a whole, in any transaction or series of related transactions to any Person (other
than a direct or indirect wholly owned subsidiary of HoldCo);
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(3) the
Limited Parent Guarantor shall cease to directly or indirectly own and control one hundred percent (100%) of the Equity Interests of HoldCo;
or
(4) HoldCo
shall cease to directly own and control one hundred percent (100%) of the Equity Interests of the Issuer.
Notwithstanding the preceding
or any provision of Section 13d-3 of the Exchange Act, a “person” or “group” shall not be deemed to “beneficially
own” securities subject to an equity or asset purchase agreement, merger agreement or similar agreement (or voting or option or
similar agreement related thereto) until the consummation of the transactions contemplated by such agreement.
“Change of Control
Offer” has the meaning provided in Section 11.09(a).
“Change of Control
Payment” has the meaning provided in Section 11.09(a).
“Change of Control
Payment Date” has the meaning provided in Section 11.09(b).
“Collateral”
means all Assets of each Restricted Obligor, now owned or hereafter acquired, including without limitation, any Capital Improvements Account,
any Reserve Account, any Operating Account, any Lockbox Account, all Equity Interests of each Restricted Obligor (other than HoldCo) and
any Capital Improvements made in accordance with the terms of this Indenture, all of the Collateral Properties and the Pledged Collateral;
in each case, pledged as collateral to secure the Notes Obligations pursuant to the terms of the Security Documents and subject to the
exclusions set forth therein.
“Collateral Asset
Sale Redemption” has the meaning specified in Section 10.11(b).
“Collateral Properties”
means each of the fee-owned real properties identified on Schedule A that has not been released from the Liens securing the Notes Obligations
in accordance with the provisions of this Indenture.
“Commission”
means the Securities and Exchange Commission.
“Company Request”
or “Company Order” means a written request or order signed in the name of a Restricted Obligor, as the case may be,
by its managing trustee, its Chief Executive Officer, its Chief Operating Officer, its Chief Financial Officer, its President or a Vice
President, and by its Treasurer, an Assistant Treasurer, its Controller, its Secretary or an Assistant Secretary, and delivered to the
Trustee.
“Control Agreement”
means an agreement, in customary form and substance reasonably satisfactory to the Issuer, which provides for the Collateral Agent to
have “control” (as defined in Section 9-104 of the UCC of the State of New York or Section 8-106 of the UCC of the
State of New York, as applicable) of Deposit Accounts (as defined in Section 9-102 of the UCC of the State of New York) or Securities
Accounts (as defined in Section 8-501 of the UCC of the State of New York), as applicable.
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“Corporate Trust
Office” means the principal office of the Trustee at which at any particular time its corporate trust business shall be administered,
which on the date hereof is located at 120 South Sixth Street, Suite 1400, Minneapolis, MN 55402.
“corporation”
means a corporation, association, partnership, limited liability, joint-stock or other company, real estate investment trust or business
trust.
“Covenant Defeasance”
has the meaning specified in Section 13.03.
“Custodian”
means any receiver, trustee, assignee, liquidator or other similar official under any Bankruptcy Law.
“Debt”
of any Restricted Obligor or any Subsidiary of a Restricted Obligor means, without duplication, any indebtedness of any Restricted Obligor
or any Subsidiary of a Restricted Obligor, whether or not contingent, in respect of:
(i) borrowed
money or evidenced by bonds, notes, debentures or similar instruments;
(ii) borrowed
money secured by any Lien existing on property owned by any Restricted Obligor or any Subsidiary of a Restricted Obligor, to the extent
of the lesser of (x) the amount of indebtedness so secured and (y) the Fair Market Value of the property subject to such Lien;
(iii) the
reimbursement obligations, contingent or otherwise, in connection with any letters of credit actually issued (other than letters of credit
issued to provide credit enhancement or support with respect to other indebtedness of any Restricted Obligor or any Subsidiary of a Restricted
Obligor otherwise reflected as Debt hereunder) or amounts representing the balance deferred and unpaid of the purchase price of any property
or services, except any such balance that constitutes an accrued expense or trade payable, or all conditional sale obligations or obligations
under any title retention agreement (“Letters of Credit Obligations”);
(iv) the
principal amount of all obligations of any Restricted Obligor or any Subsidiary of a Restricted Obligor with respect to redemption, repayment
or other repurchase of any Disqualified Stock; or
(v) any
lease of property by any Restricted Obligor or any Subsidiary of a Restricted Obligor as lessee which is reflected on the Issuer’s
consolidated balance sheet as a capitalized lease in accordance with generally accepted accounting principles (“Capital Leases”),
to the extent, in the case of items of indebtedness
under (i) through (v) above, that any such items (other than letters of credit) would be properly classified as a liability
on the Issuer’s consolidated balance sheet in accordance with generally accepted accounting principles. Debt (1) excludes any
indebtedness (A) with respect to which a defeasance or covenant defeasance or discharge has been effected (or an irrevocable deposit
is made with a trustee in an amount at least equal to the outstanding principal amount of such indebtedness, the remaining scheduled payments
of interest thereon to, but not including, the applicable maturity date or redemption date, and any premium or otherwise as provided in
the terms of such indebtedness) in accordance with the terms thereof or which has been repurchased, retired, repaid, redeemed, irrevocably
called for redemption (and an irrevocable deposit is made with a trustee in an amount at least equal to the outstanding principal amount
of such indebtedness, the remaining scheduled payments of interest thereon to, but not including, such redemption date, and any premium)
or otherwise satisfied or (B) that is secured by Cash or Cash Equivalents irrevocably deposited with a trustee in an amount, in the
case of this clause (B), at least equal to the outstanding principal amount of such indebtedness and the remaining scheduled payments
of interest thereon and (2) includes, to the extent not otherwise included, any obligation by any Restricted Obligor or any Subsidiary
of a Restricted Obligor to be liable for, or to pay, as obligor, guarantor or otherwise (other than for purposes of collection in the
ordinary course of business), Debt of another Person (other than any Restricted Obligor or any Subsidiary of a Restricted Obligor) (it
being understood that Debt shall be deemed to be incurred by any Restricted Obligor or any Subsidiary of a Restricted Obligor whenever
such Restricted Obligor or any such Subsidiary of a Restricted Obligor shall create, assume, guarantee or otherwise become liable in respect
thereof).
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“Debtor Relief Laws”
means the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar Applicable Laws relating to the relief of debtors in the United States
of America or other applicable jurisdictions from time to time in effect.
“Defaulted Interest”
has the meaning specified in Section 3.07.
“Defeasance”
has the meaning specified in Section 13.02.
“Depositary” means, with respect
to Notes issuable in whole or in part in the form of one or more Global Notes, a clearing agency registered under the Exchange Act that
is designated to act as Depositary for such Notes as contemplated by the Indenture. The Depositary shall initially be The Depository Trust
Company, its nominees and their respective successors.
“Disqualified Stock”
means, with respect to any Person, any Capital Stock of such Person which by the terms of such Capital Stock (or by the terms of any security
into which it is convertible or for which it is exchangeable or exercisable), upon the happening of any event or otherwise,
(i) matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise (other than Capital Stock which is redeemable solely in exchange for Capital
Stock which is not Disqualified Stock or for Subordinated Debt),
(ii) is convertible into
or exchangeable or exercisable for Debt (other than Subordinated Debt or Disqualified Stock), or
(iii) is redeemable at
the option of the holder thereof, in whole or in part (other than Capital Stock which is redeemable solely in exchange for Capital Stock
which is not Disqualified Stock or for Subordinated Debt), in each case on or prior to the Stated Maturity of the principal of the Notes.
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“Equity Interests”
means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible
into, or exchangeable for, Capital Stock).
“Event of Default”
has the meaning specified in Section 5.01.
“Event of Loss”
means with respect to the Collateral any (i) casualty, loss, damage, destruction or other similar loss, (ii) condemnation, taking
or seizure by a governmental authority of assets or property, or any part thereof or interest therein, for public or quasi-public use
under the power of eminent domain, by reason of any public improvement or condemnation or (iii) settlement in lieu of clause (ii) above.
“Event of Loss Redemption”
has the meaning specified in Section 10.11(c).
“Excess Proceeds”
has the meaning specified in Section 10.11(b).
“Exchange Act”
means the Securities Exchange Act of 1934 and any statute successor thereto, in each case as amended from time to time.
“Excluded Account”
means (i) any Deposit Account used solely for funding payroll or segregating payroll taxes (or any other taxes required to be collected,
remitted or withheld (including federal and state withholding taxes (including the employer’s share thereof)) or funding other employee
wage or benefit, (ii) zero balance accounts the entire balance of which is swept each Business Day to a Deposit Account subject to
a Control Agreement, (iii) any Deposit Account that does not have a Cash balance at any time exceeding $10,000, provided that not
more than a maximum aggregate amount of $25,000 of Cash shall be maintained at Deposit Accounts not subject to a Control Agreement at
any time, and (iv) any Securities Account that does not have a balance of Cash or Cash Equivalents at any time exceeding $10,000,
provided that not more than a maximum aggregate amount of $25,000 of financial assets shall be maintained at Securities Accounts
not subject to a Control Agreement at any time. Notwithstanding anything to the contrary herein, in no event shall any Capital Improvements
Account, the Operating Account, any Reserve Account or any Lockbox Account constitute an Excluded Account.
“Excluded Assets”
has the meaning assigned to the term in the Security Agreement. Notwithstanding anything to the contrary herein, in no event shall any
Capital Improvements Account, any Reserve Account, the Operating Account, any Lockbox Account or any Equity Interests of any Restricted
Obligor constitute Excluded Assets.
“Expiration Date”
has the meaning specified in Section 1.04.
“Fair Market Value”
means the price that would be paid in an arm’s-length transaction between an informed and willing third-party seller under no compulsion
to sell and an informed and willing third-party buyer under no compulsion to buy, as determined by the Board of the Issuer; provided,
however, that (a) the price of any Asset Sale where the Release Price has been waived in accordance with Section 10.11(a)(2) shall
be Fair Market Value and (b) the price of any Asset Sale that complies with the requirements of Section 10.11(e) shall
be deemed to be the Fair Market Value for purposes of Section 10.11.
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“Fifth Mandatory
Amortization” has the meaning specified in Section 11.03(e).
“First Mandatory
Amortization” has the meaning specified in Section 11.03(a).
“Fitch”
means Fitch Ratings Limited, and any successor to its rating agency business.
“Fourth Mandatory
Amortization” has the meaning specified in Section 11.03(d).
“generally accepted
accounting principles” means, solely for purposes of determining compliance with any provision of Section 10.07 which requires
the calculation of any financial ratio or percentage, generally accepted accounting principles in the United States of America, which
were in effect on July 20, 2017. For all other purposes, “generally accepted accounting principles” means generally accepted
accounting principles in the United States of America in effect from time to time.
“Government Obligations”
has the meaning specified in Section 13.04(a).
“Governmental Authority”
means any national, state or local government (whether domestic or foreign), any political subdivision thereof or any other governmental,
quasi-governmental, judicial, administrative, public or statutory instrumentality, authority, body, agency, bureau, commission, board,
department or other entity (including, without limitation, the Federal Deposit Insurance Corporation, the Comptroller of the Currency
or the Federal Reserve Board, any central bank or any comparable authority) or any arbitrator with authority to bind a party at law.
“Gross Proceeds”
means the cash proceeds (including Cash Equivalents) of any Asset Sale of any Collateral or Event of Loss of any Collateral.
“Guarantee” means, individually,
any guarantee of payment of the Notes by a Guarantor pursuant to the terms of Article Twelve of this Indenture.
“guarantee”
means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any indebtedness of any other Person
or any obligation, direct or indirect, contingent or otherwise, of such Person:
(i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such indebtedness of such other Person (whether arising by
virtue of partnership arrangements, or by agreement to keep-well, to purchase assets, goods, securities or services, to take-or-pay, or
to maintain financial statement conditions or otherwise); or
(ii) entered
into for purposes of assuring in any other manner the obligee of such indebtedness of the payment thereof or to protect such obligee against
loss in respect thereof (in whole or in part); provided, however, that the term “guarantee” will not include
endorsements for collection or deposit in the ordinary course of business. The term “guarantee” used as a verb has a corresponding
meaning.
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“Guaranteed Mandatory
Amortizations” has the meaning specified in Section 11.03(c).
“Guarantors”
means (i) solely with respect to the Limited Parent Guarantee, the Limited Parent Guarantor, (ii) the entities set forth on
Schedule B attached hereto and (iii) any other Person that executes a guarantee in favor of the Notes (including, as required hereunder,
each Subsidiary of HoldCo that acquires and directly holds one or more Collateral Properties that are Collateral subject to Liens securing
the Notes).
“Holder”
means a Person in whose name a Note is registered in the Security Register; provided that solely for purposes of the third paragraph
of Section 1.04, “Holder” shall include the “beneficial owner” of an interest in a Note.
“Indenture”
means this indenture as may be amended, restated, supplemented, modified, renewed, refunded, increased, extended, replaced in any manner
(whether upon or after termination or otherwise) or refinanced in whole or in part from time to time.
“Independent Director”
has the meaning ascribed to such term in the Limited Liability Company Operating Agreement of the Issuer, dated as of June 17,
2026, as such is in effect on the date hereof.
“Initial Default”
has the meaning specified in Section 5.02.
“Initial Subsidiary
Guarantors” has the meaning specified in the preamble.
“Intercreditor Agreements”
means any Acceptable Junior Intercreditor Agreement.
“Interest Payment
Date” has the meaning specified in Section 2.01(a).
“Investment”
means, (x) with respect to any Person, any acquisition or investment (whether or not of a controlling interest) by such Person, by
means of any of the following: (a) the purchase or other acquisition of any Equity Interest in another Person, (b) a loan, advance
or extension of credit to, capital contribution to, Guarantee of Debt of, or purchase or other acquisition of any Debt of, another Person,
including any partnership or joint venture interest in such other Person, or (c) the purchase or other acquisition (in one transaction
or a series of transactions) of assets of another Person that constitute the business or a division or operating unit of another Person
and (y) with respect to any Property or other asset, the acquisition thereof. Any commitment to make an Investment in any other Person,
as well as any option of another Person to require an Investment in such Person, shall constitute an Investment.
“Issue Date” means
June 17, 2026.
“Issue Date Appraisals”
means the appraisals for the valuation of each Collateral Property that has been delivered (or caused to be delivered) by the Issuer to
the Trustee on the Issue Date.
“Issuer”
means the Person named as the “Issuer” in the first paragraph of this Indenture until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter “Issuer” shall mean such successor Person.
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“Lease Termination Payment”
means all sums, howsoever described, paid with respect to any rejection, termination, surrender or cancellation of any lease (including
in any bankruptcy case) or any lease buy-out or surrender payment from any tenant (including any payment relating to unamortized tenant
improvements and/or leasing commissions).
“Lien”
means, with respect to any asset, any mortgage, lien, charge, pledge, security interest or other encumbrance of any kind.
“Limited Parent Guarantor”
means the Person named as the “Limited Parent Guarantor” in the first paragraph of this Indenture until a successor Person
shall have become such pursuant to the applicable provisions of this Indenture, including Article Eight of this Indenture, and thereafter
“Limited Parent Guarantor” shall mean such successor Person.
“Liquidity”
means as of the applicable date of determination, all cash and Cash Equivalents of the Restricted Obligors on a consolidated basis, and
the Restricted Obligors’ available undrawn loan commitments under any credit facility entered into or guaranteed by any of the Restricted
Obligors in effect as of such date of determination, but excluding any restricted cash and Cash Equivalents on the Restricted Obligors’
consolidated balance sheet as of such date of determination (other than restricted cash and Cash Equivalents that constitutes Collateral
and is subject to a Control Agreement in favor of the Collateral Agent).
“Major Lease” means any lease
of a Collateral Property which demises equal to or greater than 200,000 square feet of gross leasable area.
“Manager”
means the “Manager” as defined in the Business Management Agreement or the “Managing Agent” as defined in the
Property Management Agreement, as applicable.
“Mandatory Amortizations”
has the meaning specified in Section 11.03(e).
“Material Adverse
Effect” means any event, circumstance or condition that has had, or could reasonably be expected to have, a material adverse
effect on (a) the business, assets, liabilities, results of operations or financial condition of the Restricted Obligors, taken as
a whole, (b) the ability of the Restricted Obligors, taken as a whole, to perform their payment obligations under this Indenture
or (c) the rights and remedies of the Holders.
“Maturity,”
when used with respect to the Notes, means the date on which the principal of such Notes or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise,
but shall not include any date on which the payment of principal of such security is due and payable as a result of any contingent obligations
to repay, redeem or repurchase any such principal prior to the date originally scheduled for the payment thereof.
“Moody’s”
means Moody’s Investors Service, Inc., and any successor to its rating agency business.
“Mortgage”
means any mortgage, deed of trust or other agreement which conveys or evidences a Lien in favor of the Collateral Agent, for the benefit
of the Collateral Agent, the Trustee and the Holders, on any Collateral Property substantially in the form of the mortgage attached hereto
as Exhibit D or such other form sufficient to convey or evidence a Lien in favor of the Collateral Agent, for the benefit
of the Collateral Agent, the Trustee and the Holders, on any Collateral Property (in each case, as determined in good faith by the Issuer).
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“Net Proceeds”
means, with respect to any Asset Sale of any Collateral or Event of Loss of any Collateral, the Gross Proceeds of such Asset Sale, net
of:
(i) selling
costs and out-of-pocket expenses (including reasonable broker’s fees or commissions, legal fees, transfer and similar taxes and
the Issuer’s good-faith estimate of any income (however denominated), gross receipts, franchise or similar taxes paid or payable
by the Limited Parent Guarantor or a Restricted Obligor or any of their respective Subsidiaries or joint ventures (including pursuant
to tax sharing arrangements or any tax distributions) in connection with such sale, lease, conveyance or other disposition),
(ii) amounts
provided as a reserve in accordance with generally accepted accounting principles against any liabilities under any indemnification obligation
or purchase price adjustment associated with such Asset Sale or Event of Loss (provided that to the extent and at the time any such amounts
are released from such reserve (other than in connection with a payment in respect of such liability), such amounts shall constitute Net
Proceeds),
(iii) [Reserved],
(iv) [Reserved],
(v) cash escrows
(until released from escrow to a Restricted Obligor) of funds received pursuant to an Asset Sale or Event of Loss, and
(vi) any charges,
payments or expenses incurred in connection with an Event of Loss (including, without limitation, (A) any exit or disposal costs,
(B) costs to replace, repair or reconstruct damaged assets subject to the Event of Loss or any associated environmental remediation
costs, charges or payments, (C) any penalties or fines, (D) any continuing or unsatisfied obligations of the Limited Parent
Guarantor or any Subsidiary to tenants, operators or managers of such assets and (E) any fees, settlement payments or other charges
related to any litigation or administrative proceeding resulting from such Event of Loss).
To the extent the amounts that must be netted
against any cash proceeds and Cash Equivalents cannot be reasonably determined by the Issuer with respect to any Event of Loss, such cash
proceeds and Cash Equivalents shall not be deemed received until such amounts to be netted are known by the Issuer.
“Note Documents”
means this Indenture, the Notes, the related Guarantees, the Security Documents and the Intercreditor Agreements.
“Notes”
means the Issuer’s 8.375% Senior Secured Limited OPI Guaranteed Notes due 2029, issued under this Indenture, as amended or supplemented
from time to time.
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“Notes Obligations”
means all obligations for principal, premium (if any), interest, if any, penalties, fees, indemnifications, reimbursements, damages, liabilities
and other amounts payable of the Restricted Obligors under the Note Documents.
“Notice”
has the meaning specified in Section 1.17.
“Notice of Default”
means a written notice of the kind specified in Sections 5.01(d) and 5.01(g).
“Officer’s
Certificate” means a certificate signed on behalf of any Restricted Obligor, as the case may be, by its managing trustee, its
Chief Executive Officer, its Chief Operating Officer, its Chief Financial Officer, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Controller, its Secretary or an Assistant Secretary, and delivered to the Trustee.
“Operating Account”
means the primary operating account of the Restricted Obligors, held in the name of a Restricted Obligor with a nationally recognized
financial institution, into which rental payments are directed (either by direct deposits or sweep from the Lockbox Account). For avoidance
of doubt, the Operating Account and the Lockbox Account may be the same account.
“Opinion of Counsel”
means a written opinion of legal counsel addressed to the Trustee, which counsel may be an employee of or counsel to any Restricted Obligor.
“Optional Redemption”
has the meaning specified in Section 11.01(a).
“Outstanding,”
when used with respect to Notes, means, as of the date of determination, all Notes theretofore authenticated and delivered under this
Indenture, except:
(i) Notes
theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(ii) Notes
for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other
than the Issuer) in trust or set aside and segregated in trust by the Issuer (if the Issuer shall act as its own Paying Agent) for the
Holders of such Notes; provided that, if such Notes are to be redeemed, notice of such redemption has been duly given pursuant
to this Indenture or provision therefor satisfactory to the Trustee has been made;
(iii) Notes
as to which Defeasance has been effected pursuant to Section 13.02 or satisfaction and discharge has been effected pursuant to Article Four;
and
(iv) Notes
which have been paid pursuant to Section 3.06 or in exchange for or in lieu of which other Notes have been authenticated and delivered
pursuant to this Indenture, other than any such Notes in respect of which there shall have been presented to the Trustee proof satisfactory
to it that such Notes are held by a bona fide purchaser in whose hands such Notes are valid obligations of the Issuer;
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provided, however,
that solely in determining whether the Holders of the requisite principal amount of the Outstanding Notes have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other action hereunder as of any date, or whether a quorum is present
at a meeting of Holders of Notes, (A) the principal amount of Notes which shall be deemed to be Outstanding shall be the amount of
the principal thereof which would be due and payable as of such date upon acceleration of the Maturity thereof, (B) if, as of such
date, the principal amount payable is not determinable, the principal amount of Notes which shall be deemed to be Outstanding shall be
the principal amount which would be due and payable at the Stated Maturity and (C) Notes owned by the Issuer or any other obligor
upon the Notes or any Affiliate of the Issuer or of such other obligor shall be disregarded and deemed not to be Outstanding, except that,
in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent,
waiver or other action, or upon any such determination as to the presence of a quorum, only Notes that a Responsible Officer of the Trustee
actually knows to be so owned shall be so disregarded. Notes so owned which have been pledged in good faith may be regarded as Outstanding
if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Notes and that
the pledgee is not the Issuer or any other obligor upon the Notes or any Affiliate of the Issuer or of such other obligor.
“Paying Agent”
means any Person authorized by the Issuer to pay the principal (and premium, if any) plus any interest on the Notes on behalf of the Issuer.
“Permitted Holder”
means (i) Redwood Capital Management LP; (ii) Helix Partners Management LP; (iii) any investment fund or vehicle managed,
sponsored or advised by the Persons specified in clauses (i) or (ii) or any Affiliates thereof, and any Affiliate of or successor
to any such investment fund or vehicle; (iv) any limited or general partners of, or other investors in, the Persons described in
clauses (i), (ii) or (iii) or any Affiliates thereof, or any such investment fund or vehicle; (v) any “group”
(as such term is used in Sections 13(d) and 14(d) of the Exchange Act as in effect on the Issue Date) of which any of the Persons
specified in clauses (i), (ii), (iii) or (iv) above is a member. In addition, any “person” (as such term is used
in Sections 13(d) and 14(d) of the Exchange Act as in effect on the Issue Date) whose status as a “beneficial owner”
(as defined in Rules 13d-3 and 13d-5 under the Exchange Act as in effect on the Issue Date) constitutes or results in a Change of
Control in respect of which a Change of Control Offer (or offer made by a third party in accordance with Section 11.09(c)) is made
in accordance with the requirements of this Indenture, together with its Affiliates, shall thereafter constitute Permitted Holders.
“Permitted Intercompany
Debt” means Permitted Intercompany Intersilo Debt, Permitted Intercompany Intra-Month Debt and Permitted Intercompany Advances
Debt.
“Permitted Intercompany
Intersilo Debt” means unsecured intercompany debt owed by any Restricted Obligor to any other Restricted Obligor.
“Permitted Intercompany
Intra-Month Debt” means unsecured subordinated intercompany debt owed by any Restricted Obligor to the Limited Parent Guarantor
or any of its Subsidiaries (other than HoldCo or its Subsidiaries); provided that, any such intercompany debt (i) is incurred for
the purpose of funding operating expenses of the Restricted Obligors in the ordinary course of business, including property operating
expenses, capital expenditures, general and administrative expenses, management fees and other amounts payable pursuant to the Property
Management Agreement, the Restricted Obligors’ allocable share of management fees and other amounts payable in accordance with the
terms of the Business Management Agreement, the Allocation Agreement and the Services Agreement or other amounts owed pursuant to the
Property Management Agreement, the Business Management Agreement, the Allocation Agreement and the Services Agreement, (ii) can be
repaid at any time without prepayment premium or penalty, (iii) accrues no interest, fees or premiums (including any original issue
discount), and (iv) is subordinated in all respects to the Notes and the related Guarantees pursuant to an Acceptable Subordination
Agreement.
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“Permitted Intercompany
Advances Debt” means unsecured subordinated intercompany debt owed by any Restricted Obligor to the Limited Parent Guarantor
or any of its Subsidiaries (other than HoldCo or its Subsidiaries); provided that, any such intercompany debt (i) is incurred for
the purpose of paying principal and interest in respect of the Notes, (ii) matures, or otherwise requires repayment (including pursuant
to a redemption, contingent or otherwise), no earlier than 91 days after the final stated maturity of the Notes, (iii) can be repaid
at any time without prepayment premium or penalty, (iv) does not have any cash interest or any other cash amounts that are due and
payable earlier than 91 days after the final stated maturity of the Notes and (v) is subordinated in all respects to the Notes and
the related Guarantees pursuant to an Acceptable Subordination Agreement.
“Permitted Liens”
means:
(i) Liens
securing the Notes Obligations and any other Liens existing on the Issue Date (other than any Liens permitted by clause (ix) of this
definition);
(ii) Liens
securing (1) taxes, assessments and other charges or levies imposed by any Governmental Authority (x) which are not then due
and payable or (y) if due and payable, which are being contested in good faith by appropriate proceedings and for which adequate
reserves have been established on the books of such Person in accordance with generally accepted accounting principles or (2) the
claims of materialmen, mechanics, carriers, warehousemen or landlords for labor, materials, supplies or rentals or other Charges (as defined
in the Form of Mortgage attached hereto as Exhibit D) incurred in the ordinary course of business, in each case, (x) the
failure of which to pay would not reasonably be expected to result in a Material Adverse Effect or (y) if such Lien is the responsibility
of a financially responsible tenant, mortgagor or manager to discharge;
(iii) with
respect to any Property, Liens that are easements, covenants, conditions, rights-of-way, zoning restrictions, encroachments, encumbrances,
and rights or restrictions of record on the use of real property and other similar matters of record affecting title that do not (1) secure
obligations for the payment of money or (2) in the aggregate, materially impair the use of the affected property for its intended
purpose by any Restricted Obligor in the normal conduct of such Person’s business;
(iv) Liens
granted by any tenant on its leasehold estate in a Property;
(v) the
interests of tenants, operators or managers of Properties;
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(vi) judgment
liens (other than for the payment of taxes, assessments or other governmental charges) securing judgments and other proceedings not constituting
an Event of Default hereunder;
(vii) non-exclusive
licenses of intellectual property rights in the ordinary course of business (other than any such transactions with the Limited Parent
Guarantor or any Affiliate thereof (other than any Restricted Obligor) that are not at least for Fair Market Value);
(viii) matters
disclosed in any title report, commitment or policy provided to or obtained by the Holders or the Collateral Agent on or before Issue
Date;
(ix) Liens
securing any Amortization Debt incurred under clause (a)(iii) of Section 10.07; provided, that such Liens are subordinated
to the Liens securing the Notes and the related Guarantees pursuant to an Acceptable Junior Intercreditor Agreement; and
(x) Liens
securing Debt incurred under clause (a)(vi) of Section 10.07.
“Permitted Payment”
means:
(a) So
long as no Event of Default (and no event which, after notice or lapse of time or both, would become an Event of Default), has occurred
and is continuing (or would result therefrom), any regularly scheduled payments of principal or interest on any Debt (other than any Permitted
Intercompany Debt) permitted to be incurred pursuant to Section 10.01;
(b) any
Restricted Payment between or among one or more Restricted Obligors (other than any Restricted Payment to HoldCo) (including any Investment
by any Restricted Obligor (other than HoldCo) in such Restricted Obligor or any other Restricted Obligor (other than HoldCo));
(c) (i) the
declaration and payment of dividends, other distributions or other amounts to, or the making of loans to, the Limited Parent Guarantor
or any Subsidiary thereof, (x) pursuant to, or to provide for payments with respect to, the Property Management Agreement, (y) to
provide for the payment of any amount allocated to a Restricted Obligor pursuant to the Allocation Agreement and/or the Business Management
Agreement, including management fees, reimbursable expenses or other amounts owed under the Business Management Agreement and/or (z) pursuant
to, or to provide for payments with respect to, the Services Agreement;
(d) any
Investment in Cash or Cash Equivalents;
(e) receivables
owing to any Restricted Obligor, if created or acquired in the ordinary course of business;
(f) (i) principal
payments in respect of Permitted Intercompany Intra-Month Debt; provided, that in the case of this clause (i), no Event of Default (or
any event which, after notice or lapse of time or both, would become an Event of Default, other than a breach of Section 10.04, 10.10
or 10.19) has occurred and is continuing (or a default or Event of Default would result therefrom); (ii) payments in respect of Permitted
Intercompany Intersilo Debt; and (iii) on a monthly basis, payments in respect of Permitted Intercompany Advances Debt; provided
that, in the case of this clause (iii), as of the date of any such payment after giving effect thereto and to the payment of interest
on the Notes on such date, (A) Liquidity is not less than $15.0 million and (B) no Event of Default (or any event which, after
notice or lapse of time or both, would become an Event of Default, other than a breach of Section 10.04, 10.10 or 10.19) has occurred
and is continuing (or a default or Event of Default would result therefrom);
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(g) securities
or other Investments received in settlement of debts created in the ordinary course of business and owing to, or of other claims asserted
by, any Restricted Obligor, or as a result of foreclosure, perfection or enforcement of any Lien, or in satisfaction of judgments, including
in connection with any bankruptcy proceeding or other reorganization of another Person;
(h) pledges
or deposits (x) with respect to leases or utilities provided to third parties in the ordinary course of business or (y) otherwise
described in the definition of “Permitted Liens” or made in connection with Liens permitted under Section 10.09;
(i) Investments
in prepaid expenses, negotiable instruments held for collection and lease, utility and workers’ compensation, performance and similar
deposits entered into as a result of the operations of the business of the Restricted Obligors in the ordinary course of business and
consistent with past practice; and
(j) Investments
consisting of purchases or other supplies, services, material or equipment in connection with the management of any Property in the ordinary
course of business and consistent with past practice.
Notwithstanding the foregoing, in the event that
any amounts are considered a Permitted Payment under any clause of this definition, such amounts shall be without duplication of any amounts
that are considered a Permitted Payment under any other clause of this definition.
“Person”
means any individual, corporation, partnership, limited liability company, joint venture, association, joint stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
“Place of Payment”
means the place or places where the principal of (and premium, if any) and any interest on the Notes are payable as specified as contemplated
by Section 10.02.
“Pledged Collateral”
has the meaning specified in the Security Agreement.
“Predecessor Note”
means every previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note; and, for the purposes
of this definition, any Note authenticated and delivered under Section 3.06 in exchange for or in lieu of a mutilated, destroyed,
lost or stolen Note shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Note.
“Preferred Stock”
means, with respect to any Person, any and all Capital Stock that has a preference on liquidation, dissolution or winding up or with respect
to distributions or dividends over any other class of Capital Stock, including preferred partnership interests, whether general or limited,
or such Person’s preferred or preference stock, whether outstanding on the Issue Date or issued thereafter, including all series
and classes of such preferred or preference stock.
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“Property”
means any parcel of real property, together with all improvements thereon.
“Property
Management Agreement” means any property management agreement governing the Collateral Properties, including that certain
New 2027 SPV Property Management Agreement, dated as of June 17, 2026, by and among The RMR Group LLC, as managing agent, and the
Issuer, on behalf of itself and each of its subsidiaries, as owners, and HoldCo, as amended, restated, replaced, supplemented or
otherwise modified in accordance with its terms.
“Qualified Appraisal”
means an appraisal conducted by a third party M.A.I. appraisal firm with a national, established reputation for the valuation of commercial
properties similar to the applicable Collateral Property.
“Rating Agencies”
means each of S&P, Moody’s and Fitch.
“Record Date”
for the interest payable on any Interest Payment Date, if any, means March 15, June 15, September 15 and December 15
(in each case, whether or not a Business Day) immediately before such Interest Payment Date.
“Redemption Date”
means the date fixed for redemption of the Notes by or pursuant to this Indenture.
“Redemption Price”
means the price at which the Notes are to be redeemed pursuant to this Indenture.
“Reserve Account” means a segregated
account of the Issuer or any Restricted Obligor established for the retention of Excess Proceeds to the extent permitted, and to be used
solely for the purposes set forth, in Section 10.11(b).
“Responsible Officer,”
when used with respect to any Person, means the chairman or any vice-chairman of the board of directors, the chairman or any vice-chairman
of the executive committee of the board of directors, the chairman of the trust committee, the president, any vice president, the secretary,
any assistant secretary, the treasurer, any assistant treasurer, the cashier, any assistant cashier, any trust officer or assistant trust
officer, the controller or any assistant controller or any other officer of such Person customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer
to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject and who shall have responsibility
for the administration of this Indenture.
“Restricted Obligor”
means (i) the Issuer, (ii) HoldCo and (iii) each Subsidiary Guarantor.
“Restricted Payment”
means, with respect to any Person, (a) any dividend or other distribution, direct or indirect, on account of any Equity Interest
of any such Person now or hereafter outstanding; (b) any redemption, conversion, exchange, retirement, sinking fund or similar payment,
purchase or other acquisition for value (including, without limitation, any stock buybacks), direct or indirect, of any shares of any
Equity Interest of any such Person now or hereafter outstanding (a “Restricted Purchase”); (c) any payment made
to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire any Equity Interests of any such
Person now or hereafter outstanding; (d) any Investment; and (e) prepay or redeem, purchase, defease or otherwise satisfy any
Subordinated Debt prior to the scheduled maturity thereof in any manner.
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“RMR” means The RMR Group LLC,
together with its subsidiaries and successors and permitted assigns.
“S&P”
means S&P Global Ratings, and any successor to its rating agency business.
“Second Mandatory Amortization”
has the meaning specified in Section 11.03(b).
“Secured Debt”
means Debt secured by a Lien on the property of the Issuer or its Subsidiaries.
“Securities Act”
means the Securities Act of 1933 and any statute successor thereto, in each case as amended from time to time.
“Security Agreement”
means that certain Security Agreement dated as of the Issue Date, executed by the Restricted Obligors in favor of the Collateral Agent
for the benefit of the Collateral Agent, the Trustee and the Holders, as amended, restated, amended and restated, supplemented or otherwise
modified from time to time.
“Security Documents”
means the Security Agreement, the Mortgages, each Control Agreement and any other documents granting or purporting to grant a Lien in
favor of the Collateral Agent for the benefit of the Collateral Agent, the Trustee and the Holders as security for payment of the Notes
Obligations.
“Security Register”
and “Security Registrar” have the respective meanings specified in Section 3.05(a).
“Services
Agreement” means that certain Parent – SPV Agreement, dated as of June 17, 2026, by and among Holdco, Issuer
and the Limited Parent Guarantor, as amended, restated, supplemented or otherwise modified from time to time.
“SPE Requirements”
means each of the requirements set forth on Schedule D hereto.
“Special Purpose
Entity” means a Person in compliance with each of the SPE Requirements applicable to such Person.
“Special Record Date”
for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 3.07.
“Stated Maturity,”
when used with respect to the Notes or any installment of principal or interest thereon, means the date specified in the Notes as the
fixed date on which the principal of such Note or such installment of principal or interest thereon is due and payable.
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“Subordinated Debt”
means Debt which by the terms of such Debt is subordinated or junior, or otherwise not pari passu, in right of payment or lien priority
to the Notes, or that is unsecured.
“Subsidiary”
means, with respect to any Person, any corporation or other Person of which a majority of (i) the voting power of the voting equity
securities or (ii) the outstanding equity interests of which are owned, directly or indirectly, by such Person or one or more other
Subsidiaries of such Person, and which is required to be consolidated in accordance with generally accepted accounting principles. For
the purposes of this definition, “voting equity securities” means equity securities having voting power for the election of
directors or persons serving comparable functions as directors, whether at all times or only so long as no senior class of security has
such voting power by reason of any contingency. Unless otherwise stated herein, references to “Subsidiary” means a Subsidiary
of the Issuer.
“Subsidiary Guarantor”
means each Guarantor that is a Subsidiary of HoldCo (other than the Issuer) and any Additional Guarantor; provided that upon the
release or discharge of such Person from its Guarantee in accordance with this Indenture, such Person ceases to be a Subsidiary Guarantor.
“Take-Back Debt”
means the Limited Parent Guarantor’s 10.00% Senior Secured Notes due 2031 issued on the date hereof (together with any additional
notes of the same series subsequently issued under the same indenture).
“Third Mandatory
Amortization” has the meaning specified in Section 11.03(c).
“Trust Indenture Act” means
the Trust Indenture Act of 1939, as amended.
“Trustee”
means the Person named as the “Trustee” in the first paragraph of this Indenture until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who
is then a Trustee hereunder.
“UCC” means the Uniform Commercial
Code as in effect in any applicable jurisdiction.
“Vice President,”
means any vice president, whether or not designated by a number or a word or words added before or after the title “vice president.”
“Weighted Average
Life to Maturity” means, when applied to any Debt at any date, the number of years obtained by dividing: (a) the sum of
the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required
payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest
one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount of such
Debt.
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Section 1.02. Compliance Certificates
and Opinions
Except (x) in connection
with any action related to the issuance of the Notes on (or promptly after) the Issue Date or (y) as otherwise specified in this
Indenture, upon any application or Company Order to the Trustee to take or refrain from taking any action under any provision of this
Indenture, the Issuer shall, upon request by the Trustee, furnish to the Trustee (i) an Officer’s Certificate stating that,
in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been
complied with and (ii) an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been
complied with. Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (except
for certificates provided for in Section 10.04) shall include:
(i) a
statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating
thereto;
(ii) a
brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(iii) a
statement that, in the opinion of each such individual, such individual has made such examination or investigation as is necessary to
enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(iv) a
statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
Section 1.03. Form of
Documents Delivered to Trustee
In any case where several
matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters
be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but
one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and
any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion
of an officer of a Restricted Obligor may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations
by, counsel. Any such certificate or any Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate
or opinion of, or representations by, an officer or officers of a Restricted Obligor stating that the information with respect to such
factual matters is in the possession of such Restricted Obligor.
Where any Person is required
to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this
Indenture, they may, but need not, be consolidated and form one instrument.
Section 1.04. Acts of Holders;
Record Dates
Any request, demand, authorization,
direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument
or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Issuer. Such instrument or instruments
(and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders
signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and (subject to Section 6.01) conclusive in favor of the Trustee and the Issuer, if made in the
manner provided in this Section.
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The fact and date of the execution
by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a
notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him or her the execution thereof. Where such execution is by a signer acting in a capacity other than his or
her individual capacity, such certificate or affidavit shall also constitute sufficient proof of his or her authority. The fact and date
of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other
manner which the Trustee deems sufficient.
The ownership of Notes shall
be proved by the Security Register. Notwithstanding the foregoing, solely for purposes of determining whether any action to be taken or
consent to be given under this Indenture is authorized, an owner of a beneficial interest in a Global Note shall be treated as a Holder,
which ownership may be established through: (i) a DTC participant statement evidencing ownership, (ii) a broker statement accompanied
by an officer’s certificate or (iii) any other method acceptable to the Trustee.
Any request, demand, authorization,
direction, notice, consent, waiver or other Act of the Holder of the Notes shall bind every future Holder of the Notes and the Holder
of every Note issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustee or the Issuer in reliance thereon, whether or not notation of such action is made upon such
Note.
The Issuer may set any day
as a record date for the purpose of determining the Holders of Outstanding Notes entitled to give, make or take any request, demand, authorization,
direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders of Notes;
provided that the Issuer may not set a record date for, and the provisions of this paragraph shall not apply with respect to, the
giving or making of any notice, declaration, request or direction referred to in the next paragraph. If any record date is set pursuant
to this paragraph, the Holders of Outstanding Notes on such record date, and no other Holders, shall be entitled to take the relevant
action, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder
unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Notes on such record
date. Nothing in this paragraph shall be construed to prevent the Issuer from setting a new record date for any action for which a record
date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action
by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken
by Holders of the requisite principal amount of Outstanding Notes on the date such action is taken. Promptly after any record date is
set pursuant to this paragraph, the Issuer, at its own expense, shall cause notice of such record date, the proposed action by Holders
and the applicable Expiration Date to be given to the Trustee in writing and to each Holder of Notes in the manner set forth in Section 1.06.
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The Trustee may set any day
as a record date for the purpose of determining the Holders of Outstanding Notes entitled to join in the giving or making of (i) any
Notice of Default, (ii) any declaration of acceleration referred to in Section 5.02, (iii) any request to institute proceedings
referred to in Section 5.07(b) or (iv) any direction referred to in Section 5.12, in each case with respect to the
Notes. If any record date is set pursuant to this paragraph, the Holders of Outstanding Notes on such record date, and no other Holders,
shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record
date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders
of the requisite principal amount of Outstanding Notes on such record date. Nothing in this paragraph shall be construed to prevent the
Trustee from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon
the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Notes
on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Trustee, at the Issuer’s
expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the
Issuer in writing and to each Holder of Notes in the manner set forth in Section 1.06.
With respect to any record
date set pursuant to this Section 1.04, the party hereto that sets such record date may designate any day as the “Expiration
Date” and from time to time may change the Expiration Date to any earlier or later day; provided that no such change
shall be effective unless notice of the proposed new Expiration Date is given to the other party in writing, and to each Holder of Notes
in the manner set forth in Section 1.06, on or prior to the existing Expiration Date. If an Expiration Date is not designated with
respect to any record date set pursuant to this Section 1.04, the party hereto that sets such record date shall be deemed to have
initially designated the 180th day after such record date as the Expiration Date with respect thereto, subject to its right to change
the Expiration Date as provided in this paragraph.
Without limiting the foregoing,
a Holder entitled hereunder to take any action hereunder with regard to the Notes may do so with regard to all or any part of the principal
amount of such Note or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or
any part of such principal amount.
Section 1.05. Notices, Etc.,
to Trustee and Issuer
Any request, demand, authorization,
direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given
or furnished to, or filed with
(i) the
Trustee by any Holder or by the Issuer shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing (which
may be by electronic mail) to or with the Trustee at its Corporate Trust Office, Attention: Office Properties Income Trust; 8.375% Senior
Secured Limited OPI Guaranteed Notes due 2029; or
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(ii) the
Issuer by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and delivered by electronic means of transmission or to the address listed in Section 1.16.
Section 1.06. Notice to Holders;
Waiver
Where this Indenture provides
for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each Holder affected by such event, at the address of such Holder as it appears in the Security
Register, not later than the latest date (if any), and not earlier than the earliest date (if any), prescribed for the giving of such
notice. Notwithstanding any other provision of this Indenture or the Notes other than a provision that expressly states that this paragraph
is not applicable to the Notes, when this Indenture or the Notes provides for notice of any event (including any notice of redemption)
to a Holder of Notes in global form (whether by mail or otherwise), such notice shall be sufficiently given if given to the Depositary
for the Notes (or its designee) pursuant to the customary procedures of such Depositary. In any case where notice to Holders is given
by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency
of such notice with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived in writing
by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
In case by reason of the suspension
of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification
as shall be made with the approval of the Trustee (acting at the direction of the Holders of a majority of the aggregate principal amount
of all the Notes then outstanding) shall constitute a sufficient notification for every purpose hereunder.
Section 1.07. Trust Indenture
Act
Except with respect to specific
provisions of the Trust Indenture Act expressly referenced in the provisions of this Indenture, the Trust Indenture Act shall not be applicable
to, and shall not govern, this Indenture and the Notes.
Section 1.08. Effect of Headings
and Table of Contents
The Article and Section headings
herein and the Table of Contents hereof are for convenience only and shall not affect the construction hereof.
Section 1.09. Successors and
Assigns
All covenants and agreements
in this Indenture by the Issuer shall bind its successors and assigns, whether so expressed or not.
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Section 1.10. Separability
Clause
In case any provision in this
Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
Section 1.11. Benefits of
Indenture
Nothing in this Indenture
or in the Notes, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders
of Notes any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 1.12. Governing Law
This Indenture and the Notes
shall be governed by and construed in accordance with the laws of the State of New York.
Section 1.13. Legal Holidays
If any Interest Payment Date,
Redemption Date, including pursuant to an Asset Sale, Event of Loss for the Notes or a Mandatory Amortization, or the Stated Maturity
for the principal of the Notes falls on a day that is not a Business Day, the payment otherwise payable on such day will be due and payable
on the next succeeding Business Day, and no interest will accrue thereon for the period from and after such Interest Payment Date, Redemption
Date, including pursuant to an Asset Sale or Event of Loss, Mandatory Amortization or the Stated Maturity, as the case may be, through
such next succeeding Business Day.
Section 1.14. Language of
Notices, Etc.
Any request, demand, authorization,
direction, notice, consent or waiver required or permitted under this Indenture shall be in the English language, except that any published
notice may be in an official language of the country of publication.
Section 1.15. No Personal
Liability
THE AMENDED AND RESTATED DECLARATION
OF TRUST ESTABLISHING OFFICE PROPERTIES INCOME TRUST, DATED JUNE 8, 2009, AS AMENDED, AS FILED WITH THE STATE DEPARTMENT OF ASSESSMENTS
AND TAXATION OF MARYLAND, PROVIDES THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF OFFICE PROPERTIES INCOME TRUST SHALL BE
HELD TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, OFFICE PROPERTIES INCOME TRUST. ALL PERSONS
DEALING WITH OFFICE PROPERTIES INCOME TRUST IN ANY WAY SHALL LOOK ONLY TO THE ASSETS OF OFFICE PROPERTIES INCOME TRUST FOR THE PAYMENT
OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.
NO TRUSTEE, DIRECTOR, OFFICER,
MANAGER, EMPLOYEE, AGENT, INCORPORATOR, STOCKHOLDER, PARTNER OR MEMBER OF THE ISSUER OR ANY GUARANTOR, AS SUCH, SHALL HAVE ANY LIABILITY
FOR ANY OBLIGATIONS OF THE ISSUER OR ANY GUARANTOR UNDER THE NOTES OR THIS INDENTURE OR FOR ANY CLAIM BASED ON, IN RESPECT OF, OR
BY REASON OF, SUCH OBLIGATIONS OR THEIR CREATION, SOLELY BY REASON OF ITS STATUS AS A TRUSTEE, DIRECTOR, OFFICER, MANAGER, EMPLOYEE, AGENT, INCORPORATOR,
STOCKHOLDER OR MEMBER OF THE ISSUER OR A GUARANTOR. BY ACCEPTING A NOTE, EACH HOLDER WAIVES AND RELEASES ALL SUCH LIABILITY. THE WAIVER
AND RELEASE ARE PART OF THE CONSIDERATION FOR ISSUANCE OF THE NOTES.
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Section 1.16. Notices
Notices to the Limited Parent
Guarantor or any Restricted Obligor shall be directed to it at Two Newton Place, 255 Washington Street, Suite 300, Newton, Massachusetts
02458-1634, email: ir@opireit.com, Attention: President; notices to the Trustee shall be directed to it at 120 South Sixth Street, Suite 1400,
Minneapolis, Minnesota 55402, email: Jay.Smith@umb.com, or as to any party, at such other address as shall be designated by such party
in a written notice to the other parties. All notices and communications (other than those sent to Holders of the Notes) shall be deemed
to have been duly given: at the time delivered by hand, if personally delivered; five (5) calendar days after mailing if sent by
registered or certified mail, postage prepaid (except that a notice of change of address shall not be deemed to have been given until
actually received by the addressee); when receipt is acknowledged, if sent by e-mail or facsimile; and the next Business Day after timely
delivery to the courier, if sent by overnight air courier guaranteeing next day delivery.
Section 1.17. Counterparts
This Indenture may be executed
in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. The words
“execution,” “signed,” “signature,” and words of like import in this Indenture or in any other certificate,
agreement or document related to this Indenture or the Notes shall include images of manually executed signatures transmitted by facsimile
or other electronic format (including, without limitation, “pdf”, “tif” or “jpg”) and other electronic
signatures (including, without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including,
without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall
be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based recordkeeping system
to the fullest extent permitted by applicable law, including the ESIGN Act of 2000, the New York State Electronic Signatures and Records
Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the
UCC. The Trustee shall have the right to accept and act upon any notice, instruction, or other communication, including any funds transfer
instruction, (each, a “Notice”) received pursuant to this Indenture by electronic transmission (including by e-mail,
facsimile transmission, web portal or other electronic methods) and shall not have any duty to confirm that the person sending such Notice
is, in fact, a person authorized to do so. Electronic signatures believed by the Trustee to comply with the ESIGN Act of 2000 or other
applicable law (including electronic images of handwritten signatures and digital signatures provided by DocuSign, Orbit, Adobe Sign or
any other digital signature provider identified by any other party hereto and acceptable to the Trustee) shall be deemed original signatures
for all purposes. Each other party to this Indenture assumes all risks arising out of the use of electronic signatures and electronic
methods to send Notices to the Trustee, including without limitation the risk of the Trustee acting on an unauthorized Notice and the
risk of interception or misuse by third parties. Notwithstanding the foregoing, the Trustee may in any instance, in its sole discretion
or at the direction of the Holders of a majority of the aggregate principal amount of all the Notes then outstanding, require that a Notice
in the form of an original document bearing a manual signature be delivered to the Trustee in lieu of, or in addition to, any such electronic
Notice.
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ARTICLE Two
INTEREST
RATE; INTEREST PAYMENTS
Section 2.01. Interest Rate;
Interest Payments
(a) Unless
previously redeemed, the Notes will bear interest at 8.375% per annum, payable quarterly in arrears on March 31, June 30, September 30
and December 31 of each year (except in the case of interest payable on the Stated Maturity for the principal of the Notes, which
shall be payable on the Stated Maturity), commencing September 30, 2026 (each of which shall be an “Interest Payment Date”),
to the Persons in whose names the Notes are registered in the Security Register at the close of business on the Record Date, which shall
be March 15, June 15, September 15 or December 15 (in each case, whether or not a Business Day), as the case may be,
immediately before such Interest Payment Date (except in the case of interest payable on the Stated Maturity, which interest will be payable
to the Persons in whose names the Notes are registered in the Security Register at the close of business on the date that is 14 calendar
days prior to the Stated Maturity).
(b) Interest
on the Notes will be computed on the basis of a 360-day year consisting of twelve 30-day months.
(c) If
any scheduled Interest Payment Date, the Stated Maturity, any Redemption Date, or any payment in connection with a Mandatory Amortization
falls on a day that is not a Business Day, the applicable payment will be made on the next Business Day and no interest will accrue thereon
for the period from and after such Interest Payment Date, the Stated Maturity or such Redemption Date.
ARTICLE Three
the
notes
Section 3.01. Form and
Dating
Provisions relating to the
Notes are set forth in Appendix A, which is hereby incorporated in and expressly made a part of this Indenture. The Notes and the Trustee’s
(or the Authenticating Agent’s) certificate of authentication shall each be substantially in the form of Exhibit A attached
hereto, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture.
The Notes may have notations, legends or endorsements required by law, the rules of any securities exchange agreements to which the
Issuer is subject, if any, or usage; provided that any such notation, legend or endorsement is in form reasonably acceptable to
the Issuer. The Issuer shall approve the form of the Notes. Each Note shall be dated the date of its authentication. The terms and provisions
contained in the form of the Notes shall constitute and are hereby expressly made a part of this Indenture.
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Section 3.02. Denominations
The Notes shall be issued
only in registered form without coupons and only in minimum denominations of $2,000 in principal amount and any integral multiples of
$1,000 in excess thereof.
Section 3.03. Execution,
Authentication, Delivery and Dating
The Notes shall be executed
on behalf of the Issuer by a Responsible Officer. The signature of any of these officers on the Notes may be manual, electronic (including
DocuSign or other electronic platform) or facsimile.
Notes bearing the manual,
electronic (including DocuSign or other electronic platform) or facsimile signatures of individuals who were at any time the proper officers
of the Issuer shall bind the Issuer, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Notes or did not hold such offices at the date of such Notes.
The Issuer shall execute and,
upon receipt of a Company Order, the Trustee shall authenticate (whether itself or via the Authenticating Agent), which such authentication
may be by manual, electronic (including DocuSign or other electronic platform) or facsimile signature, on (or promptly after) the Issue
Date, Notes for original issue up to an aggregate principal amount of $385,000,000.
The Trustee may appoint an
Authenticating Agent reasonably acceptable to the Issuer to authenticate the Notes. Unless limited by the terms of such appointment, any
such Authenticating Agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by
the Trustee includes authentication by any such agent. An Authenticating Agent has the same rights as any Security Registrar, co-Security
Registrar, Paying Agent or transfer agent to deal with the Issuer or an Affiliate of the Issuer.
No Note shall be entitled
to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Note a certificate of authentication
substantially in the form provided for herein executed by the Trustee by manual or electronic signature, and such certificate upon any
Note shall be conclusive evidence, and the only evidence, that such Note has been duly authenticated and delivered hereunder. Notwithstanding
the foregoing, if any Note shall have been authenticated and delivered hereunder but never issued and sold by the Issuer, and the Issuer
shall deliver such Note to the Trustee for cancellation as provided in Section 3.09, for all purposes of this Indenture such Note
shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
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Section 3.04. Temporary
Notes
Pending the preparation of
definitive Notes, the Issuer may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Notes which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of
the definitive Notes in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations
as the officers executing such Notes may determine, as evidenced by their execution of such Notes.
If temporary Notes are issued,
the Issuer will cause definitive Notes to be prepared without unreasonable delay. After the preparation of definitive Notes, the temporary
Notes shall be exchangeable for definitive Notes upon surrender of the temporary Notes at the office or agency of the Issuer in a Place
of Payment, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Notes, the Issuer shall execute
and the Trustee shall authenticate and deliver in exchange therefor one or more definitive Notes, of any authorized denominations and
of like tenor and aggregate principal amount. Until so exchanged, the temporary Notes shall in all respects be entitled to the same benefits
under this Indenture.
Section 3.05. Registration,
Registration of Transfer and Exchange
(a) The
Issuer shall cause to be kept at an office or agency to be maintained by the Issuer in accordance with Section 10.02 a register (being
the combined register of the Security Registrar and all transfer agents designated pursuant to Section 10.02 for the purpose of registration
of transfer of Notes and sometimes collectively referred to as the “Security Register”) in which, subject to such reasonable
regulations as it may prescribe, the Issuer shall provide for the registration of Notes and the registration of transfers of Notes. The
Trustee is hereby appointed “Security Registrar” for the purpose of registering Notes and transfers of Notes as herein
provided.
(b) The
Notes shall be issued in registered form and shall be transferable only upon the surrender of a Note for registration of transfer and
in compliance with Appendix A. A transferee of the Notes shall be deemed to have represented and agreed to the matters as provided in
Appendix A. A transfer in violation of the requirements of Appendix A shall be void ab initio.
(c) Subject
to Section 3.05(b), upon surrender for registration of transfer of any Note at the office or agency of the Issuer maintained pursuant
to Section 10.02 for such purpose in a Place of Payment for that Note, the Issuer shall execute, and the Trustee shall authenticate
and deliver, in the name of the designated transferee or transferees, one or more new Notes, of any authorized denominations and of like
tenor and aggregate principal amount.
(d) All
Notes issued upon any registration of transfer or exchange of Notes shall be the valid obligations of the Issuer, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Notes surrendered upon such registration of transfer or exchange.
(e) Every
Note presented or surrendered for registration of transfer or for exchange shall (if so required by the Issuer or the Trustee or any transfer
agent) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Issuer and the Security Registrar
duly executed, by the Holder thereof or the attorney of such Holder duly authorized in writing.
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(f) No
service charge shall be made for any registration of transfer or exchange of Notes, but the Issuer may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Notes,
other than exchanges pursuant to Section 3.04, 9.05 or 11.08 not involving any transfer.
(g) If
the Notes are to be redeemed in part, the Issuer shall not be required (A) to issue, register the transfer of or exchange any Notes
during a period beginning at the opening of business 15 days before any selection of Notes to be redeemed and ending at the close of business
on the day of the mailing of the relevant notice of redemption, or (B) to register the transfer of or exchange any Note so selected
for redemption, in whole or in part, except the unredeemed portion of any Note being redeemed in part.
Section 3.06. Mutilated,
Destroyed, Lost and Stolen Notes
If any mutilated Note is surrendered
to the Trustee, the Issuer shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Note of like tenor
and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered
to the Issuer and the Trustee (a) evidence to their satisfaction of the destruction, loss or theft of any Note and (b) such
security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of
notice to the Issuer or the Trustee that such Note has been acquired by a bona fide purchaser, the Issuer shall execute and the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Note, a new Note of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
Notwithstanding the provisions
of the previous two paragraphs, in case any such mutilated, destroyed, lost or stolen Note has become or is about to become due and payable,
the Issuer in its discretion may, instead of issuing a new Note, pay such Note.
Upon the issuance of any new
Note under this Section, the Issuer may require the payment of a sum sufficient to cover any tax or other governmental charge that may
be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Note issued pursuant
to this Section in lieu of any destroyed, lost or stolen Note shall constitute an original additional contractual obligation of the
Issuer, whether or not the destroyed, lost or stolen Note shall be at any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section are
exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Notes.
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Section 3.07. Payment
of Interest; Interest Rights Preserved
Interest on any Note which
is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Note
(or one or more Predecessor Notes) is registered at the close of business on the Record Date for such interest.
The Issuer shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on all overdue amounts at a rate equal to 12.000% per annum
to the extent the Notes Obligations have been accelerated pursuant to Section 5.02 or, to the extent an Event of Default specified
in Section 5.01(a), Section 5.01(b), Section 5.01(e) or Section 5.01(f) has occurred and is continuing.
Any interest on any Note which
is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (or the corresponding succeeding Business Day)
(herein called “Defaulted Interest”) shall forthwith cease to be payable to the Holder on the relevant Record Date
by virtue of having been such Holder, and such Defaulted Interest may be paid by the Issuer, at its election in each case, as provided
in clause (a) or (b) below:
(a) The
Issuer may elect to make payment of any Defaulted Interest to the Persons in whose names the Notes (or respective Predecessor Notes) are
registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following
manner. The Issuer shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on the Notes and the date
of the proposed payment, and at the same time the Issuer shall deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior
to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this Section 3.07 provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Issuer of such Special
Record Date and, in the name and at the expense of the Issuer, shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be given to each Holder in the manner set forth in Section 1.06, not less than 10 days prior
to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been
so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Notes (or respective Predecessor Notes) are registered
at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (b).
(b) The
Issuer may make payment of any Defaulted Interest on the Notes in any other lawful manner not inconsistent with the requirements of any
securities exchange on which such Notes may be listed, and upon such notice as may be required by such exchange, if, after notice given
by the Issuer to the Trustee of the proposed payment pursuant to this Section 3.07, such manner of payment shall be deemed practicable
by the Trustee.
Subject to the foregoing provisions
of this Section 3.07, each Note delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of
any other Note shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Note.
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Section 3.08. Persons
Deemed Owners
Prior to due presentment of
a Note for registration of transfer, the Limited Parent Guarantor, each Restricted Obligor, the Trustee and any agent of the Limited Parent
Guarantor, any Restricted Obligor or the Trustee may treat the Person in whose name such Note is registered as the owner of such Note
for the purpose of receiving payment of principal, premium, if any, and any interest (subject to Section 3.07), if any, on such Note
and for all other purposes whatsoever, whether or not such Note be overdue, and neither the Limited Parent Guarantor, any Restricted Obligor,
the Trustee nor any agent of the Limited Parent Guarantor, any Restricted Obligor or the Trustee shall be affected by notice to the contrary.
Section 3.09. Cancellation
All Notes surrendered for
payment, redemption, registration of transfer or exchange shall, if surrendered to any Person other than the Trustee, be delivered to
the Trustee and shall be promptly cancelled by it. The Issuer may at any time deliver to the Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Issuer may have acquired in any manner whatsoever, and may deliver to the Trustee (or
to any other Person for delivery to the Trustee) for cancellation any Notes previously authenticated hereunder which the Issuer has not
issued and sold, and all Notes so delivered shall be promptly cancelled by the Trustee. No Notes shall be authenticated in lieu of or
in exchange for any Notes cancelled as provided in this Section 3.09, except as expressly permitted by this Indenture. All cancelled
Notes held by the Trustee shall be disposed of as directed by a Company Order or, in the absence of such a Company Order, in the Trustee’s
customary manner, which manner shall be communicated in writing to the Issuer.
Section 3.10. Currency
The principal of each Note
payable at its Maturity shall be paid against presentation and surrender thereof at the Corporate Trust Office, in such coin or currency
of the United States of America as at the time of payment is legal tender for the payment of public or private debts.
Section 3.11. ISIN/CUSIP
Numbers
The Issuer, in issuing the
Notes, may use “ISIN” and/or “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use such
“ISIN” and/or “CUSIP” numbers in notices of redemption as a convenience to Holders; provided that
any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained
in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Notes, and any such
redemption shall not be affected by any defect in or omission of such numbers. The Issuer will notify the Trustee of any change in “ISIN”
and/or “CUSIP” numbers. The Issuer shall obtain “CUSIP” numbers for each Global Note (as defined in Appendix A
hereto) on or prior to the Issue Date.
Section 3.12. Amount
The aggregate principal amount
of Notes that may be authenticated and delivered under this Indenture is equal to the aggregate principal amount of Notes issued on the
Issue Date. The aggregate principal amount of Notes which may be authenticated and delivered under this Indenture on the Issue Date is
$385,000,000.
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The Issuer may not, after
the Issue Date, without notice to or consent of the Holders, create or issue additional Notes under this Indenture.
ARTICLE Four
Satisfaction
and Discharge
Section 4.01. Satisfaction
and Discharge of Indenture
This Indenture shall upon
Company Request cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of Notes herein
expressly provided for), and the Trustee, at the expense of the Issuer, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(a) either
(i) all
Notes theretofore authenticated and delivered (other than (A) Notes which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 3.06 and (B) Notes for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Issuer and thereafter repaid to the Issuer or discharged from such trust, as provided in Section 10.03)
have been delivered to the Trustee for cancellation; or
(ii) all
such Notes not theretofore delivered to the Trustee for cancellation
(A) have
become due and payable, or
(B) will
become due and payable at their Stated Maturity within one year, or
(C) are
to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Issuer,
and the Issuer, in the case of (A), (B) or
(C) above, has deposited or caused to be deposited with the Trustee (i) money in an amount, or (ii) Government Obligations
which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later
than one day before the due date of any payment, money in an amount, or (iii) a combination thereof, in each case in an amount sufficient
to pay and discharge the entire indebtedness on such Notes not theretofore delivered to the Trustee for cancellation, for principal of
(and premium, if any) and any accrued and unpaid interest, if any, on, such Notes to the date of such deposit (in the case of Notes which
have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be; provided that with respect
to a Redemption Date, if all or a portion of the Redemption Price is based on or consists of a redemption premium that is required to
be calculated based on a treasury rate or other floating or adjustable rate a specified number of days prior to such Redemption Date,
the amount deposited shall be sufficient to the extent that the amount deposited with the Trustee is equal to such redemption premium
calculated as of the date of the notice of redemption, with any deficit on the Redemption Date only required to be deposited with the
Trustee on or prior to the Redemption Date (it being understood that any satisfaction and discharge shall be subject to the condition
subsequent that such deficit is in fact paid);
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(b) the
Issuer has paid or caused to be paid all other sums payable hereunder by the Issuer; and
(c) the
Issuer has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction
and discharge of this Indenture, the obligations of the Issuer to the Trustee under Section 6.07, the obligations of the Trustee
to any Authenticating Agent under Section 6.14 and, if money shall have been deposited with the Trustee pursuant to subclause (ii) of
clause (a) of this Section, the obligations of the Trustee under Section 4.02 and the last paragraph of Section 10.03 shall
survive such satisfaction and discharge.
Section 4.02. Application
of Trust Money and Government Obligations
Subject to the provisions
of the last paragraph of Section 10.03, all money and Government Obligations (including the proceeds thereof) deposited with the
Trustee pursuant to Section 4.01 shall be held in trust and applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent (including the Issuer acting as its own Paying Agent) as the Trustee
may determine, to the Persons entitled thereto, of the principal of (and premium, if any), and any interest on, such Notes for whose payment
such money has been deposited with the Trustee.
The Issuer shall pay and indemnify
the Trustee against any tax, fee or other charge imposed on or assessed against the Government Obligations deposited pursuant to Section 4.01
or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account
of the Holders of Outstanding Notes.
ARTICLE Five
Remedies
Section 5.01. Events of Default
“Event of Default,”
means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary
or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body):
(a) default
in the payment of the principal of (and premium, if any) the Notes at the Stated Maturity, upon redemption or otherwise (including, a
default in making a payment to purchase Notes pursuant to a Collateral Asset Sale Redemption, an Event of Loss Redemption or Mandatory
Amortization) on the date specified for payment in the applicable offer or notice;
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(b) default
in the payment of any interest on the Notes when it becomes due and payable, and continuance of such default for a period of 30 days;
(c) a
final judgment or order (not covered by insurance, treating any deductibles, self-insurance or retention as not so covered) for the payment
of money in excess of $25,000,000 against any Restricted Obligor and such judgment or order shall not be paid, stayed, dismissed or discharged,
and there shall be a period of 60 consecutive days after the final judgment or order that causes such amount to exceed $25,000,000 during
which a stay of enforcement of such final judgment or order is not in effect;
(d) (i) default
in the performance of, or breach of, any covenant of any Restricted Obligor or the Limited Parent Guarantor in this Indenture (other than
Sections 10.06, 10.08, 10.12 and 12.12), and continuance of such default or breach for a period of 60 days after there has been given,
by registered or certified mail, to the Issuer by the Trustee or to the Issuer and the Trustee by the Holders of more than 25% in principal
amount of the Outstanding Notes a written notice specifying such default or breach and requiring it to be remedied and stating that such
notice is a “Notice of Default” hereunder, (ii) default in the performance of, or breach of, Sections 10.08 or 12.12
or (iii) default in the performance of, or breach of, Sections 10.06 or 10.12, and continuance of such default or breach for a period
of 30 days;
(e) the
Limited Parent Guarantor or a Restricted Obligor, pursuant to or within the meaning of any Bankruptcy Law (i) commences a voluntary
case, (ii) consents to the entry of an order for relief against it in an involuntary case, or (iii) consents to the appointment
of a Custodian of it or for all or substantially all of its property;
(f) a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: (i) is for relief against the Limited Parent
Guarantor or a Restricted Obligor in an involuntary case, (ii) appoints a Custodian of the Limited Parent Guarantor or a Restricted
Obligor or for all or substantially all of their respective property, or (iii) orders the liquidation of the Limited Parent Guarantor,
or such Restricted Obligor, and the order or decree remains unstayed and in effect for 90 days;
(g) (I) a
default under any bond, debenture, note or other evidence of indebtedness for borrowed money of a Restricted Obligor, or under any mortgage,
indenture or other instrument of a Restricted Obligor under which there may be issued or by which there may be secured any indebtedness
for borrowed money of a Restricted Obligor (or by any Subsidiary of a Restricted Obligor, the repayment of which a Restricted Obligor
has guaranteed or for which a Restricted Obligor is directly responsible or liable as obligor or guarantor), whether such indebtedness
now exists or shall hereafter be created, which default shall constitute a failure to pay an aggregate principal amount exceeding $25,000,000
of such indebtedness when due and payable after the expiration of any applicable grace period with respect thereto and shall have resulted
in such indebtedness in an aggregate principal amount exceeding $25,000,000 becoming or being declared due and payable prior to the date
on which it would otherwise have become due and payable; provided, however, that if there is no other senior indebtedness
of a Restricted Obligors the maturity of which would be accelerated by a default under any of such Restricted Obligor’s indebtedness
in an aggregate principal amount of $25,000,000 or less, the references to $25,000,000 in this clause shall be replaced by the lesser
of (i) the indebtedness cross-default amount contained in such Restricted Obligor’s then existing senior secured credit facility,
if any, and (ii) such other senior indebtedness, as long as such amount is greater than $25,000,000, not to exceed $50,000,000 or
(II) at any time prior to a default under any Take-Back Debt of the Limited Parent Guarantor, which default shall constitute a failure
to pay such Take-Back Debt when due and payable after the expiration of any applicable grace period with respect thereto and shall have
resulted in such Take-Back Debt becoming or being declared due and payable prior to the date on which it would otherwise have become due
and payable; provided that this clause (II) shall cease to apply as of the first date the Limited Guaranteed Amount is equal
to $0;
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(h) any
Guarantee of a Guarantor ceases to be in full force and effect (except as contemplated by the terms of this Indenture) or is declared
null and void in a judicial proceeding or any Guarantor denies or disaffirms its obligations under this Indenture or its Guarantees, as
the case may be;
(i) unless
such Liens have been released in accordance with the provisions of this Indenture or the Security Documents with respect to such Liens
or in accordance with the provisions of the applicable Intercreditor Agreement, the Liens in favor of the Holders with respect to Collateral
having a Fair Market Value in excess of $25,000,000 in the aggregate cease to be valid or enforceable and such default continues for 30
days, or any Restricted Obligor shall assert, in any pleading in any court of competent jurisdiction, that security interests with respect
to Collateral having a Fair Market Value in excess of $25,000,000 in the aggregate are invalid or unenforceable (except as contemplated
by the terms of this Indenture or the applicable Security Documents or Intercreditor Agreement) and, such Restricted Obligor shall fail
to rescind such assertions within 30 days after the Issuer has actual knowledge of such assertions; or
(j) failure
by any Restricted Obligor to comply for 60 days after notice or such longer period as may be provided in the applicable Security Documents
with its other agreements contained in such Security Documents, in each case, except for a failure that would not be material to the Holders
and would not materially affect the value of the Collateral taken as a whole.
Section 5.02. Acceleration
of Maturity; Rescission and Annulment
If an Event of Default (other
than an Event of Default specified in Section 5.01(e) or 5.01(f)) occurs and is continuing, then in every such case the Trustee
(or Collateral Agent with respect to the Security Documents) or the Holders of not less than a majority of the principal amount of the
Outstanding Notes may (and the Trustee and Collateral Agent shall, at the direction of the Holders of not less than a majority of the
principal amount of the Outstanding Notes) exercise any enforcement rights and/or remedies with respect to and/or granted under any of
the Security Documents and/or declare the principal amount of the Notes plus accrued and unpaid interest, if any, to be due and payable
immediately, by a notice in writing to the Issuer (and to the Trustee if given by Holders), and upon any such declaration such principal
amount shall become immediately due and payable. If an Event of Default specified in Section 5.01(e) or 5.01(f) occurs,
the principal amount of the Notes plus accrued and unpaid interest, if any, shall automatically, and without any declaration or other
action on the part of the Trustee or any Holder, become immediately due and payable.
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At any time after such a declaration
of acceleration with respect to the Notes has been made and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Notes, by
written notice to the Issuer and the Trustee, may rescind and annul such declaration and its consequences if
(a) the
Issuer has paid or deposited with the Trustee a sum sufficient to pay
(i) the
principal of (and premium, if any) the Notes which have become due otherwise than by such declaration of acceleration and any interest
thereon,
(ii) to
the extent that payment of such interest is lawful, interest upon overdue interest on the Notes, and
(iii) all
sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel; and
(b) all
Events of Default, other than the non-payment of the principal on Notes which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 5.13.
No such rescission shall affect
any subsequent default or impair any right consequent thereon.
If a default for a failure
to report or failure to deliver a required certificate in connection with another default (such other default, the “Initial Default”)
occurs, then at the time such Initial Default is cured, the default for a failure to report or failure to deliver a required certificate
in connection with the Initial Default will also be cured without any further action and any default or Event of Default for the failure
to comply with the time periods prescribed under Section 10.10 or otherwise to deliver any notice or certificate pursuant to any
other provision of this Indenture shall be deemed to be cured upon the delivery of any such report required by Section 10.10 or such
notice or certificate, as applicable, even though such delivery is not within the prescribed period specified in this Indenture.
Section 5.03. Collection of
Debt and Suits for Enforcement by Trustee
The Issuer covenants that
if:
(a) default
is made in the payment of interest on any Note when such interest becomes due and payable and such default continues for a period of 30
days, or
(b) default
is made in the payment of principal of (and premium, if any) the Notes at the Maturity thereof, the Issuer will, upon demand of the Trustee,
pay to it, for the benefit of the Holders of such Notes, the whole amount then due and payable on such Notes for principal of (and premium,
if any), and interest on the Notes, and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue
principal (and premium, if any) and on any overdue interest, and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel.
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If an Event of Default with
respect to the Notes occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights
of the Holders of Notes by such appropriate judicial proceedings as the Trustee shall deem reasonably necessary to protect and enforce
any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
Section 5.04. [Reserved].
Section 5.05. Trustee May Enforce
Claims Without Possession of Notes
All rights of action and claims
under this Indenture or the Notes may be prosecuted and enforced by the Trustee without the possession of any of the Notes or the production
thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Notes in respect of which such judgment
has been recovered.
Section 5.06. Application
of Money Collected
Any money collected by the
Trustee or the Collateral Agent pursuant to this Article shall be applied in the following order and at the date or dates fixed by
the Trustee, subject to the terms of the Security Documents and the Intercreditor Agreements, and, in case of the distribution of such
money on account of principal or any premium or interest upon presentation of the Notes and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all
amounts due to the Trustee under Section 6.07 and to the Collateral Agent under Section 14.05;
SECOND: To the payment of
the amounts then due and unpaid on the Notes for the principal of (and premium, if any), and any interest on, the Notes in respect of
which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the
amounts due and payable on such Notes for principal of (and premium, if any), and any interest, respectively; and
THIRD: To the Issuer.
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Section 5.07. Limitation on
Suits
No Holder shall have any right
to institute any proceeding, judicial or otherwise, with respect to this Indenture or the Notes, or for the appointment of a receiver
or trustee, or for any other remedy under this Indenture or the Notes, unless
(a) such
Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Notes;
(b) the
Holders of not less than a majority in principal amount of the Outstanding Notes shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(c) if
requested, such Holder or Holders have offered to the Trustee indemnity satisfactory to the Trustee against the costs, expenses and liabilities
to be incurred in compliance with such request;
(d) the
Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding;
and
(e) no
direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Notes;
it being understood and intended that no one or
more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture or any
Note to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference
over any other of such Holders or to enforce any right under this Indenture or any Note, except in the manner herein or therein provided
and for the equal and ratable benefit of all of such Holders.
Section 5.08. Unconditional
Right of Holders to Receive Payment
Notwithstanding any other
provision in this Indenture, the Holder of any Note shall have the right, which is absolute and unconditional, to receive payment of the
principal of (and premium, if any), and any interest on, such Note on the respective Stated Maturities expressed in such Note (or, in
the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not
be impaired without the consent of such Holder.
Section 5.09. Restoration
of Rights and Remedies
If the Trustee or any Holder
has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned
for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination
in such proceeding, the Issuer, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder
and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
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Section 5.10. Rights and Remedies
Cumulative
Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes in the last paragraph of Section 3.06, no
right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder,
or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 5.11. Delay or Omission
Not Waiver
No delay or omission of the
Trustee or of any Holder of any Notes to exercise any right or remedy accruing upon any Event of Default shall impair any such right or
remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or
by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or
by the Holders, as the case may be.
Section 5.12. Control by Holders
The Holders of a majority
in principal amount of the Outstanding Notes shall have the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Notes; provided
that
(a) such
direction shall not be in conflict with any rule of law or with this Indenture,
(b) the
Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction, and
(c) if
such direction exposes the Trustee to personal liability, the Trustee may decline to follow such direction.
Section 5.13. Waiver of Past
Defaults
The Holders of not less than
a majority in principal amount of the Outstanding Notes may on behalf of the Holders of all the Notes waive any past default hereunder
with respect to such Notes and its consequences, except a default
(a) in
the payment of the principal of (and premium, if any) or interest on the Notes (including without limitation the Mandatory Amortization),
or
(b) in
respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of each Holder
of Outstanding Notes affected.
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Upon any such waiver, such
default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 5.14. Undertaking
for Costs
In any suit for the enforcement
of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee,
a court may require any party litigant in such suit to file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust Indenture Act.
Section 5.15. Waiver of Usury,
Stay or Extension Laws
The Issuer covenants (to the
extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit
or advantage of, any usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Issuer (to the extent that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee,
but will suffer and permit the execution of every such power as though no such law had been enacted.
ARTICLE Six
The
Trustee
Section 6.01. Certain Duties
and Responsibilities
The duties of the Trustee
will be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically
set forth in this Indenture and no others, and no implied covenants or obligations will be read into this Indenture against the Trustee.
Notwithstanding the foregoing, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall
have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably
assured to it. Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be subject to the provisions of this Section. The Trustee will not be liable
for any error of judgment made in good faith by a Responsible Officer, unless the Trustee was grossly negligent in ascertaining the pertinent
facts or failed to ascertain the pertinent facts through willful misconduct (in each case as determined by a court of competent jurisdiction
in a final and non-appealable decision); and the Trustee will not be liable with respect to any action it takes or omits to take in good
faith in accordance with a direction received by it from Holders of not less than a majority of the principal amount of the Outstanding
Notes.
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Section 6.02. Notice of Defaults
If a default or an Event of
Default occurs hereunder with respect to the Notes, the Issuer shall give the Trustee and the Holders of the Notes notice of such default
or Event of Default, as applicable; provided, however, that in the case of any default (other than a default of
the type described in Section 5.01(a) and (b)) (but not in the case of an Event of Default) no such notice shall be required
until 30 days after the occurrence of such default (and no such notice shall be required if such default does not become an Event of Default
and is cured prior to the expiration of such 30 day period). If a default or an Event of Default occurs hereunder with respect to the
Notes of which the Trustee has received notice in accordance with Section 6.03(i), the Trustee shall give the Holders of the Notes
notice of such default or Event of Default, as applicable. For the purpose of this Section, the term “default”
means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to the Notes.
Section 6.03. Certain Rights
of Trustee
Subject to the provisions of Section 6.01:
(a) the
Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any
request or direction of a Restricted Obligor mentioned herein shall be sufficiently evidenced by a Company Request or Company Order, and
any resolution of the Board of any Person shall be sufficiently evidenced by a Board Resolution of such Person; before the Trustee
acts or refrains from acting upon any request or direction of a Restricted Obligor, it may require an Officer’s Certificate and
an Opinion of Counsel;
(c) whenever
in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering
or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, rely upon an Officer’s Certificate;
(d) the
Trustee may consult with counsel of its own selection and the written advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the
Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity satisfactory
to it against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;
(f) the
Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and,
if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises
of the Issuer, personally or by agent or attorney;
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(g) the
Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys
and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care
by it hereunder;
(h) the
Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to
be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(i) the
Trustee shall not be deemed to have notice of any default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge
thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office
of the Trustee, and such notice references the Notes and this Indenture;
(j) the
rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and the Person
employed to act hereunder;
(k) the
Trustee shall not be responsible or liable for any punitive, special, indirect or consequential losses or damages (including lost profits),
even if the Trustee has been advised of the likelihood of such losses or damages and regardless of the form of action;
(l) the
Trustee shall have no duty to see that any duties or obligations imposed herein upon the Issuer or other persons are performed, and the
Trustee shall not be liable or responsible for the failure of the Issuer or such other persons to perform any act required of them by
this Indenture;
(m) the
Trustee shall not be liable for interest on any moneys received by it except as the Trustee may agree in writing with the Issuer. Moneys
held in trust by the Trustee need not be segregated from other funds except to the extent required by law;
(n) the
Trustee shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason
of any occurrence beyond their control (including but not limited to any act or provision of any present or future law or regulation or
Governmental Authority, any act of God or war, civil unrest, local or national disturbance or disaster, any act of terrorism, epidemics,
riots, strikes or other work stoppages or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication
facility); and
(o) the
permissive rights of the Trustee enumerated herein shall not be construed as duties, and the Trustee shall not be liable for any action
taken or not taken by it in connection with such rights in the absence of its gross negligence or willful misconduct.
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Section 6.04. Not Responsible
for Recitals or Issuance of Notes
The recitals and other statements
contained herein, in the Notes, and in any other document or certificate delivered in connection with the issuance of the Notes or pursuant
to this Indenture or the Security Documents, except the Trustee’s certificates of authentication, shall be taken as the statements
of the Issuer, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee will
not be responsible for and makes no representations as to the validity or sufficiency of this Indenture or of the Notes. Neither the Trustee
nor any Authenticating Agent shall be accountable for the use or application by the Issuer of Notes or the proceeds thereof.
Section 6.05. May Hold
Notes
The Trustee, any Authenticating
Agent, any Paying Agent, any Security Registrar or any other agent of the Issuer, in its individual or any other capacity, may become
the owner or pledgee of Notes and, subject to Sections 6.08 and 6.13, may otherwise deal with the Issuer with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.
Section 6.06. Money Held in
Trust
Money held by the Trustee
in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability
for interest on any money received by it hereunder except as otherwise agreed with the Issuer.
Section 6.07. Compensation
and Reimbursement
The Issuer agrees
(a) to
pay to the Trustee from time to time reasonable compensation for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an express trust);
(b) except
as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its gross negligence
or willful misconduct;
(c) to
indemnify the Trustee for, and to hold it harmless against, any loss, liability or expense incurred without gross negligence or willful
misconduct on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including
the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder; and
(d) the
obligations of the Issuer under this Section 6.07 will survive the resignation or removal of the Trustee and the discharge of this
Indenture. To secure the Issuer’s payment obligations in this section, the Trustee will have a lien prior to the Notes on all money
or property held or collected by the Trustee, except that held in trust to pay principal of, or interest on, particular Notes, which lien
will survive the discharge of this Indenture.
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Section 6.08. Conflicting
Interests
If the Trustee has or shall
acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign,
to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. To the
extent permitted by such Act, the Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee under this Indenture
with respect to the Notes and any other indentures of the Issuer.
Section 6.09. Corporate Trustee
Required; Eligibility
There shall at all times be
one (and only one) Trustee hereunder with respect to the Notes, which may be Trustee hereunder for the Notes. Each Trustee shall
be a Person that is eligible pursuant to the Trust Indenture Act to act as such, and has a combined capital and surplus of at least $50,000,000.
If any such Person publishes reports of condition at least annually, pursuant to law or to the requirements of its supervising or examining
authority, then for the purposes of this Section and to the extent permitted by the Trust Indenture Act, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.
If at any time the Trustee with respect to the Notes shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter specified in this Article.
Section 6.10. Resignation
and Removal; Appointment of Successor
No resignation or removal
of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable requirements of Section 6.11.
The Trustee may resign at
any time with respect to the Notes by giving written notice thereof to the Issuer. If the instrument of acceptance by a successor Trustee
required by Section 6.11 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the
Notes.
The Trustee may be removed
at any time with respect to the Notes by Act of the Holders of a majority in principal amount of the Outstanding Notes, delivered to the
Issuer.
If at any time:
(i) the
Trustee shall fail to comply with Section 6.08 after written request therefor by the Issuer or by any Holder who has been a bona
fide Holder of a Note for at least six months, or
(ii) the
Trustee shall cease to be eligible under Section 6.09 and shall fail to resign after written request therefor by the Issuer or by
any such Holder, or
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(iii) the
Trustee shall become incapable of acting or shall be adjudged bankrupt or insolvent or a receiver of the Trustee or of its property shall
be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (A) the Issuer may
remove the Trustee with respect to all Notes, or (B) subject to Section 5.14, any Holder who has been a bona fide Holder of
a Note for at least six months may, on behalf of such Holder and all others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee with respect to all Notes and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign,
be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Notes,
the Issuer shall promptly appoint a successor Trustee or Trustees with respect to the Notes (it being understood that any such successor
Trustee may be appointed with respect to the Notes and that at any time there shall be only one Trustee with respect to the Notes) and
shall comply with the applicable requirements of Section 6.11. If, within one year after such resignation, removal or incapability,
or the occurrence of such vacancy, a successor Trustee with respect to the Notes shall be appointed by Act of the Holders of a majority
in principal amount of the Outstanding Notes delivered to the Issuer and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 6.11, become the successor
Trustee with respect to the Notes and to that extent supersede the successor Trustee appointed by the Issuer. If no successor Trustee
with respect to the Notes shall have been so appointed by the Issuer or the Holders of Notes and accepted appointment in the manner required
by Section 6.11, any Holder who has been a bona fide Holder of a Note for at least six months may, on behalf of such Holder and all
others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the
Notes.
The Issuer shall give notice
of each resignation and each removal of the Trustee with respect to the Notes and each appointment of a successor Trustee with respect
to the Notes to all Holders of Notes in the manner provided in Section 1.06. Each notice shall include the name of the successor
Trustee with respect to the Notes and the address of its Corporate Trust Office.
Section 6.11. Acceptance of
Appointment by Successor
In case of the appointment
hereunder of a successor Trustee with respect to all Notes, every such successor Trustee so appointed shall execute, acknowledge and deliver
to the Issuer and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Issuer or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers
and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
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In case of the appointment
hereunder of a successor Trustee with respect to the Notes, the Issuer, the retiring Trustee and such successor Trustee with respect to
the Notes shall execute and deliver an indenture supplemental hereto wherein such successor Trustee shall accept such appointment and
which shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee
all the rights, powers, trusts and duties of the retiring Trustee with respect to the Notes and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and such
successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of
the retiring Trustee with respect to the Notes to which the appointment of such successor Trustee relates; but, on request of the
Issuer or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder with respect to the Notes to which the appointment of such successor Trustee relates.
Upon request of any such successor
Trustee, the Issuer shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee
all such rights, powers and trusts referred to in the first or second preceding paragraph, as the case may be.
No successor Trustee shall
accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.
Section 6.12. Merger, Conversion,
Consolidation or Succession to Business
Any corporation into which
the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder; provided such corporation shall be otherwise qualified
and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto.
In case any Notes shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion
or consolidation to such authenticating Trustee may adopt such authentication and deliver the Notes so authenticated with the same effect
as if such successor Trustee had itself authenticated such Notes.
Section 6.13. Preferential
Collection of Claims Against Issuer
If and when the Trustee shall
be or become a creditor of the Issuer (or any other obligor upon the Notes), the Trustee shall be subject to the provisions of the Trust
Indenture Act regarding the collection of claims against the Issuer (or any such other obligor). For purposes of Section 311(b)(4) and
(6) of the Trust Indenture Act:
(a) “cash
transaction” means any transaction in which full payment for goods or securities sold is made within seven days after delivery of
the goods or securities in currency or in checks or other orders drawn upon banks or bankers and payable upon demand; and
(b) “self-liquidating
paper” means any draft, bill of exchange, acceptance or obligation which is made, drawn, negotiated or incurred by the Issuer for
the purpose of financing the purchase, processing, manufacturing, shipment, storage or sale of goods, wares or merchandise and which is
secured by documents evidencing title to, possession of, or a lien upon, the goods, wares or merchandise or the receivables or proceeds
arising from the sale of the goods, wares or merchandise previously constituting the security, provided the security is received by the
Trustee simultaneously with the creation of the creditor relationship with the Issuer arising from the making, drawing, negotiating or
incurring of the draft, bill of exchange, acceptance or obligation.
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Section 6.14. Appointment
of Authenticating Agent
The Trustee may appoint an
Authenticating Agent or Agents with respect to the Notes which shall be authorized to act on behalf of the Trustee to authenticate Notes
issued upon original issue and upon exchange, registration of transfer or partial redemption thereof or pursuant to Section 3.06,
and Notes so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Any such appointment shall be evidenced by an instrument in writing signed by a Responsible Officer
of the Trustee, and a copy of such instrument shall be promptly furnished to the Issuer. Wherever reference is made in this Indenture
to the authentication and delivery of Notes by the Trustee or the Trustee’s certificate of authentication, such reference shall
be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Issuer and shall at
all times be a corporation organized and doing business under the laws of the United States of America, any State thereof or the District
of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000
and subject to supervision or examination by Federal or State authority. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section,
the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.
Any corporation into which
an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency
or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent; provided such corporation
shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
An Authenticating Agent may
resign at any time by giving written notice thereof to the Trustee and to the Issuer. The Trustee may at any time terminate the agency
of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Issuer.
Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Issuer and shall
give notice of such appointment in the manner provided in Section 1.06 to all Holders of Notes with respect to which such Authenticating
Agent will serve. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights,
powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section.
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From amounts received by the
Trustee from the Issuer for such purpose, the Trustee agrees to pay to each Authenticating Agent from time to time reasonable compensation
for its services under this Section, and the Trustee shall be entitled to be reimbursed for such payments, subject to the provisions of
Section 6.07.
If an appointment with respect
to the Notes is made pursuant to this Section, the Notes may have endorsed thereon, in addition to the Trustee’s certificate of
authentication, an alternative certificate of authentication in the following form:
This is one of the Notes referred
to in the within-mentioned Indenture.
As Trustee
As Authenticating Agent
By
Authorized Signatory
If all of the Notes may not
be originally issued at one time, and if the Trustee does not have an office capable of authenticating Notes upon original issuance located
in a Place of Payment where the Issuer wishes to have Notes authenticated upon original issuance, the Trustee, if so requested by the
Issuer in writing (which writing need not comply with Section 1.02 and need not be accompanied by an Opinion of Counsel), shall appoint
in accordance with this Section an Authenticating Agent having an office in a Place of Payment designated by the Issuer with respect
to such Notes.
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Section 6.15. Rules by
Trustee
The Trustee may make reasonable
rules for any Act of Holders or a meeting of Holders of Notes.
Section 6.16. Trustee May File
Proofs of Claim
In case of the pendency of
any proceeding under any Bankruptcy Law or any other judicial proceeding relative to any Restricted Obligor, the Trustee (irrespective
of whether the Trustee shall have made any demand on the Issuer) shall be entitled and empowered, by intervention in such proceeding or
otherwise:
(a) to
file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Notes and all other Notes
Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of
the Holders and the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee
and their respective agents and counsel) allowed in such judicial proceeding; and
(b) to
collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments
to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due for the reasonable compensation, expenses, disbursements and advances of the Agents and their respective agents
and counsel.
Nothing contained herein shall
be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes Obligations or the rights of any Holder or to authorize the Trustee to vote in respect of
the claim of any Holder in any such proceeding.
The Holders hereby irrevocably
authorize the Trustee, at the direction of the Holders of a majority of the aggregate principal amount of all the Notes then outstanding,
to credit bid all or any portion of the Notes Obligations (including accepting some or all of the Collateral in satisfaction of some or
all of the Notes Obligations pursuant to a deed in lieu of foreclosure or otherwise) and in such manner purchase (either directly or through
one or more acquisition vehicles) all or any portion of the Collateral (a) at any sale thereof conducted under the provisions of
the Bankruptcy Code, including under Sections 363, 1123 or 1129 of Title 11, United States Bankruptcy Code of 1978, as amended, or any
similar Bankruptcy Laws in any other jurisdictions to which a Restricted Obligor is subject, or (b) at any other sale or foreclosure
or acceptance of collateral in lieu of debt conducted by (or with the consent or at the direction of) the Trustee (whether by judicial
action or otherwise) in accordance with any applicable law.
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In connection with any such credit bid and purchase,
the Notes Obligations owed to the Holders shall be entitled to be, and shall be, credit bid on a ratable basis (with Notes Obligations
with respect to contingent or unliquidated claims receiving contingent interests in the acquired assets on a ratable basis that would
vest upon the liquidation of such claims in an amount proportional to the liquidated portion of the contingent claim amount used in allocating
the contingent interests) in the asset or assets so purchased (or in the Equity Interests or debt instruments of the acquisition vehicle
or vehicles that are used to consummate such purchase). In connection with any such bid (i) the Trustee shall be authorized to form
one or more acquisition vehicles to make a bid, (ii) the Trustee shall be authorized to adopt documents providing for the governance
of the acquisition vehicle or vehicles (provided that any actions by the Trustee with respect to such acquisition vehicle or vehicles,
including any disposition of the assets or Equity Interests thereof shall be governed, directly or indirectly, by the vote of the Holders
of a majority of the aggregate principal amount of all the Notes then outstanding, irrespective of the termination of the Notes and without
giving effect to the limitations on actions by the Holders of a majority of the aggregate principal amount of all the Notes then outstanding
contained in clauses (a) through (i) of the first proviso to Section 9.01 of this Indenture) and (iii) the Trustee
shall be authorized to assign the relevant Notes Obligations to any such acquisition vehicle pro rata by the Holders, as a result of which
each of the Holders shall be deemed to have received a pro rata portion of any Equity Interests and/or debt instruments issued by such
an acquisition vehicle on account of the assignment of the Notes Obligations to be credit bid, all without the need for any Holder or
acquisition vehicle to take any further action.
ARTICLE Seven
Holders’
Lists and Reports by Trustee and Issuer
Section 7.01. Issuer to Furnish
Trustee Names and Addresses of Holders
The Issuer will furnish or
cause to be furnished to the Trustee
(a) quarterly,
not later than 15 days after each Record Date or in the case of any Notes on which quarterly interest is not payable, not more than 15
days after such quarterly dates specified by the Trustee (which shall initially be the Interest Payment Dates), a list, in such form as
the Trustee may reasonably require, of the names and addresses of the Holders of Notes as of the Record Date or such quarterly date, as
the case may be, and
(b) at
such other times as the Trustee may request in writing, within 30 days after the receipt by the Issuer of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time such list is furnished;
excluding from any such list names and addresses
received by the Trustee in its capacity as Security Registrar.
Section 7.02. Preservation
of Information; Communications to Holders
The Trustee shall preserve,
in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the
Trustee as provided in Section 7.01 and the names and addresses of Holders received by the Trustee in its capacity as Security Registrar.
The Trustee may destroy any list furnished to it as provided in Section 7.01 upon receipt of a new list so furnished.
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The rights of Holders to communicate
with other Holders with respect to their rights under this Indenture or under the Notes, and the corresponding rights and privileges of
the Trustee, shall be as provided by Section 312(b) of the Trust Indenture Act.
Every Holder of Notes, by
receiving and holding the same, agrees with the Issuer and the Trustee that neither the Issuer nor the Trustee nor any agent of either
of them shall be held accountable by reason of any disclosure of information as to names and addresses of Holders made pursuant to Section 312(c) of
the Trust Indenture Act.
ARTICLE Eight
Consolidation,
Merger, Conveyance, Transfer or Lease
Section 8.01. Limited Parent
Guarantor May Consolidate, Etc., Only on Certain Terms
The Limited Parent Guarantor
shall not consolidate with or merge into any other Person or convey or transfer (other than a lease) all or substantially all of the properties
and assets of the Limited Parent Guarantor and its Subsidiaries, taken as a whole, in any transaction or series of related transactions
to any Person, and the Limited Parent Guarantor shall not permit any Person to consolidate with or merge into the Limited Parent Guarantor,
unless:
(a) The
Limited Parent Guarantor is the surviving corporation (as defined herein) or, in case the Limited Parent Guarantor shall consolidate with
or merge into another Person or convey, transfer or lease all or substantially all of its properties and assets to any Person, the Person
formed by such consolidation or into which the Limited Parent Guarantor is merged or the Person which acquires by conveyance or transfer,
or which leases, all or substantially all of the properties and assets of the Limited Parent Guarantor shall be organized and validly
existing under the laws of the United States of America, any State thereof or the District of Columbia and shall expressly assume, by
a supplemental indenture or other documents or instruments as may be executed and delivered to the Trustee and Collateral Agent, Limited
Parent Guarantor’s obligations under this Indenture;
(b) immediately
after giving effect to such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become
an Event of Default, shall have happened and be continuing (or result therefrom); and
(c) the
Limited Parent Guarantor has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture or other document or instrument is required in connection
with such transaction, such supplemental indenture and any other documents or instruments as may be executed and delivered to the Trustee
and Collateral Agent comply with this Section 8.01 and that all conditions precedent herein provided for relating to such transaction
have been complied with.
Upon any consolidation of
the Limited Parent Guarantor with, or merger of the Limited Parent Guarantor into, any other Person or any conveyance, transfer or lease
of all or substantially all of the properties and assets of the Limited Parent Guarantor and its Subsidiaries in accordance with this
Section 8.01, the successor Person formed by such consolidation or into which the Limited Parent Guarantor is merged or to which
such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Limited
Parent Guarantor under this Indenture with the same effect as if such successor Person had been named as the Limited Parent Guarantor
herein, and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all obligations and covenants under
this Indenture and the Limited Parent Guarantee.
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Section 8.02. Restricted
Obligors May Consolidate, Etc., Only on Certain Terms; Successor Substituted.
A Restricted Obligor may not
consolidate with or merge into any other Person or convey or transfer (other than a lease) all or substantially all of its properties
and assets to any other Person (other than another Restricted Obligor), and a Restricted Obligor may not permit any other Person (other
than another Restricted Obligor) to consolidate with or merge into it, unless:
(a) either
(1) the Restricted Obligor is the surviving entity or (2) the Person formed by or surviving any such consolidation or merger
(if other than the Restricted Obligor) or to which such conveyance, transfer or lease has been made is an entity organized and validly
existing under the laws of the United States, any state thereof or the District of Columbia, expressly assumes, by a supplemental indenture
or other documents or instruments as may be executed and delivered to the Trustee, all of the Restricted Obligor’s obligations under
(i) in the case of the Issuer, the Note Documents and the due and punctual payment of the principal of and any premium and interest
on all the Notes and the performance or observance of every covenant of this Indenture and all obligations under the Security Documents
on the part of the Issuer to be performed or observed and (ii) in the case of another Restricted Obligor, the Note Documents and
the performance or observance of every covenant of this Indenture and all obligations under the Security Documents on the part of such
Restricted Obligor to be performed or observed;
(b) immediately
after giving effect to such transaction, and treating any Debt which becomes an obligation of the Restricted Obligor as a result of such
transaction as having been incurred by the Restricted Obligor at the time of such transaction, no Event of Default, and no event which,
after notice or lapse of time or both, would become an Event of Default shall have happened and be continuing (or result therefrom); and
(c) such
Restricted Obligor (or the Issuer on its behalf) has delivered to the Trustee and the Collateral Agent an Officer’s Certificate
and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture
or other document or instrument is required in connection with such transaction, that such supplemental indenture and any other documents
or instruments as may be executed and delivered to the Trustee and Collateral Agent comply with this Section 8.02 and that all conditions
precedent provided for in this Indenture relating to such transaction have been complied with;
provided that this
Section 8.02 shall not apply to a transaction that complies with Section 10.11 or to a transaction pursuant to which such Guarantor
shall be released from its obligations under its Guarantee and this Indenture in accordance with Section 12.04.
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Upon any consolidation of a Restricted Obligor with, or merger of a Restricted Obligor into, any other Person or any conveyance, transfer
or lease all or substantially all of the properties and assets of a Restricted Obligor in accordance with this Section 8.02, the successor
Person formed by such consolidation or into which such Restricted Obligor is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and power of, such Restricted Obligor under the Indenture,
the Notes and the other Note Documents, as applicable, with the same effect as if such successor Person had been named as such Restricted
Obligor in this Indenture, and thereafter, except in the case of a lease, the predecessor Restricted Obligor shall be relieved of all
obligations and covenants under this Indenture, the Notes and the Guarantee, as the case may be.
ARTICLE Nine
AMENDMENT,
SUPPLEMENT AND WAIVER
Section 9.01. Without
Consent of Holders
Without the consent of any
Holders, the Limited Parent Guarantor, the Issuer and the Trustee and the Collateral Agent, at any time and from time to time, may amend
or supplement this Indenture, the Security Documents, the Intercreditor Agreements, any Guarantee and the Notes, for any of the following
purposes:
(a) to
evidence the succession of another Person to the Limited Parent Guarantor or a Restricted Obligor and the assumption by any such successor
of the covenants of the Issuer herein and in the Notes, its obligations under the Security Documents or any Intercreditor Agreement or
the covenants of a Guarantor herein, in its Guarantee or its obligations under the Security Documents or any Intercreditor Agreement;
(b) to
add to the covenants of the Issuer or any Guarantor for the benefit of the Holders of the Notes or to surrender any right or power herein
conferred upon the Issuer or any Guarantor;
(c) to
add any additional Events of Default for the benefit of the Holders of the Notes;
(d) to
add to or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of
the Notes in bearer form, registrable or not registrable as to principal, and with or without interest coupons, or to permit or facilitate
the issuance of any Notes in uncertificated form;
(e) to
add guarantees of or to secure the Notes or any guarantees thereof, including to add Collateral with respect to any or all of the Notes
and/or Guarantees;
(f) to
evidence the release of any Guarantor or any guarantor of the Notes in accordance with this Indenture;
(g) to
evidence and provide for the acceptance of appointment hereunder by a successor Trustee, a successor Collateral Agent or a successor paying
agent with respect to the Notes and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of this Indenture (including
Section 6.11 or Section 14.01, as applicable);
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(h) to
cure any ambiguity, to correct or supplement any provision contained herein or in any indenture supplemental hereto which may be defective
or inconsistent with any other provision contained herein or in any supplemental indenture;
(i) to
supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the defeasance (whether
legal or covenant defeasance) or satisfaction and discharge of the Notes; provided that any such action shall not adversely affect
the interests of the Holders of the Notes in any material respect;
(j) with
respect to the Security Documents, as provided in the relevant Security Document;
(k) to
comply with the rules of any applicable Depositary;
(l) to
make any other provisions with respect to matters or questions arising under this Indenture, provided that such action pursuant
to this clause (l) shall not adversely affect the interests of the Holders of Notes in any material respect;
(m) to
provide for the succession of any parties to the Security Documents (and any amendments that are administrative or ministerial in nature)
in connection with an amendment, renewal, extension, substitution, refinancing, restructuring, replacement, supplement or other modification
from time to time that is not prohibited by this Indenture;
(n) to
add to or change or eliminate any provision of this Indenture as shall be necessary or desirable to qualify this Indenture under the Trust
Indenture Act or in accordance with any amendments to the Trust Indenture Act;
(o) to
release any Collateral from the Lien securing the Notes when permitted or required by the Security Documents, the Intercreditor Agreements
and/or this Indenture (including pursuant to Section 10.11 and Section 14.04);
(p) to
make, complete or confirm any grant of a Lien or security interest in any property or assets as additional Collateral securing the Notes
Obligations, including when permitted or required by this Indenture or the Security Documents; or
(q) to
execute or amend any Security Document or any Intercreditor Agreement (or any supplement or joinder to any of the foregoing) under circumstances
provided in this Indenture or therein.
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Section 9.02. With
Consent of Holders
With the consent of the Holders
of not less than a majority in principal amount of the Outstanding Notes affected, by Act of said Holders delivered to the Issuer, the
Limited Parent Guarantor and the Trustee, the Limited Parent Guarantor, the Issuer, and the Trustee and Collateral Agent may amend or
supplement this Indenture, the Security Documents, the Intercreditor Agreements, any Guarantee and the Notes for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights
of the Holders of Notes under this Indenture; provided, however, that no such amendment or supplement shall, without the
consent of the Holder of each Outstanding Note affected thereby:
(a) change
the Stated Maturity of the principal of, or any installment of principal or interest on, any Note, or reduce the principal amount or the
rate or timing of interest thereon, or reduce the amount (including the amount of any premium payable) due upon the redemption thereof,
or reduce the amount of the principal of a Note which would be due and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.02 or that would be due and payable upon the Mandatory Amortization pursuant to Section 11.03, or change
the date on which any Note may be subject to a Mandatory Amortization, or change any Place of Payment where, or the coin or currency in
which, any Note, premium, if any, or interest thereon is payable, or impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date); provided, however,
that this clause shall not require the consent of the Holder of each Outstanding Note (and shall only require the consent of Holders of
not less than a majority in principal amount of the Outstanding Notes affected) to amend or supplement Section 10.11 (or any definition
related thereto);
(b) reduce
the percentage in principal amount of the Outstanding Notes, the consent of whose Holders is required for any such amendment or supplement,
or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences) provided for in this Indenture;
(c) modify
any of the provisions of this Section, Section 5.08 or Section 5.13, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Note affected
thereby; provided, however, that this clause shall not be deemed to require the consent of any Holder with respect to changes
in the references to “the Trustee” or “the Collateral Agent” and concomitant changes in this Section or the
deletion of this proviso, in accordance with the requirements of this Indenture (including Section 6.11, Section 14.01 and clause
(g) of Section 9.01, as applicable);
(d) change
or alter the priority of the Liens securing the Notes in any material portion of the Collateral in any way materially adverse, taken as
a whole, to the Holders, other than as provided under the terms of this Indenture or the Security Documents;
(e) change
any Security Document or the provisions in this Indenture dealing with Collateral or application of trust proceeds of the Collateral with
the effect of releasing the Liens on all or substantially all of the Collateral which secure the Notes, other than as provided under the
terms of this Indenture or the Security Documents; or
(f) modify,
waive, amend, release or subordinate the Parent Limited Guarantee, or otherwise modify, waive or amend any provision of Section 12.12
(in each case, other than any modification or amendment permitted to be made without the consent of any Holder in accordance with Section 9.01(h) or
(l)).
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It
shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
In addition, without the consent
of the Holders of at least 90% of the aggregate principal amount of all the Notes then outstanding, (i) the Limited Parent Guarantor
and the Restricted Obligors and their respective Affiliates may not take any action to release, or have the effect of releasing: (1) all
or substantially all of the aggregate value of the Guarantees, or all or substantially all of the Guarantors or (2) all or substantially
all of the Collateral and (ii) this paragraph and Sections 10.08 and 10.11(a)(ii) may not be amended, supplemented or otherwise
modified.
Section 9.03. Execution
of Supplemental Indentures
The
Trustee and the Collateral Agent, as applicable, shall sign any amendment, supplement or waiver authorized pursuant to Section 3.12
or this Article Nine; provided that the Trustee and the Collateral Agent may, but shall not be obligated to, enter
into any such supplemental indenture which affects their respective rights, duties or immunities under this Indenture or otherwise. In
executing, or accepting the additional trusts created by, any supplemental indenture permitted by Section 3.12 or this Article or
the modifications thereby of the trusts created by this Indenture, the Trustee and the Collateral Agent shall be entitled to receive,
and (subject to Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture.
Section 9.04. Effect
of Supplemental Indentures
Upon the execution of any
supplemental indenture under Section 3.12 or this Article, this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder of Notes theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby.
Section 9.05. Reference
in Notes to Supplemental Indentures
Notes authenticated and delivered
after the execution of any supplemental indenture pursuant to Section 3.12 or this Article may, and shall if required by the
Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Issuer shall
so determine, new Notes so modified as to conform, in the opinion of the Trustee and the Issuer, to any such supplemental indenture may
be prepared and executed by the Issuer and authenticated and delivered by the Trustee in exchange for Outstanding Notes.
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ARTICLE Ten
Covenants
Section 10.01. Payment
of Principal, Premium and Interest
The Issuer covenants and agrees
that it will duly and punctually pay the principal of (and premium, if any), and any interest on, the Notes in accordance with the terms
of the Notes and this Indenture.
Section 10.02. Maintenance
of Office or Agency
The Issuer will maintain in
each Place of Payment for the Notes an office or agency where Notes may be presented or surrendered for payment, where Notes may be surrendered
for registration of transfer or exchange and where notices and demands to or upon the Issuer in respect of the Notes and this Indenture
may be served. The Issuer will give prompt written notice to the Trustee of the location, and any change in the location, of such office
or agency. If at any time the Issuer shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee,
and the Issuer hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.
The
Issuer may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Issuer of its obligation to maintain an office or agency in each Place of Payment
for Notes for such purposes. The Issuer will give prompt written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
Section 10.03. Money
for Notes Payments to Be Held in Trust
If the Issuer shall at any
time act as its own Paying Agent with respect to the Notes, it will, on or before each due date of the principal of (and premium, if any),
and any interest on, any of the Notes, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to
pay the principal of (and premium, if any), and any interest, so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act.
Whenever the Issuer shall
have one or more Paying Agents for the Notes, it will, prior to each due date of the principal of (and premium, if any), and any interest
on, any Notes, deposit with a Paying Agent a sum sufficient to pay the principal of (and premium, if any), and any interest, so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to such principal of (and premium, if any), and interest, and
(unless such Paying Agent is the Trustee) the Issuer will promptly notify the Trustee of its action or failure so to act.
The Issuer will cause each
Paying Agent for the Notes other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall
agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will (1) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (2) during the continuance of any default by the Issuer (or any other
obligor upon the Notes) in the making of any payment in respect of the Notes, upon the written request of the Trustee, forthwith pay to
the Trustee all sums held in trust by such Paying Agent for payment in respect of the Notes.
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The Issuer may at any time,
for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Issuer Order direct
any Paying Agent to pay, to the Trustee all sums held in trust by the Issuer or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Issuer or such Paying Agent; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.
Any
money deposited with the Trustee or any Paying Agent, or then held by the Issuer, in trust for the payment of the principal of (and premium,
if any), and any interest on, any Notes and remaining unclaimed for two years after such principal (and premium, if any) and any interest
has become due and payable shall be paid to the Issuer on Company Request, or (if then held by the Issuer) shall be discharged from such
trust; and the Holder of such Note shall thereafter, as an unsecured general creditor, look only to the Issuer for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Issuer as trustee thereof,
shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make
any such repayment, may at the expense of the Issuer cause to be published once, in an Authorized Newspaper in each Place of Payment,
notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date
of such publication, any unclaimed balance of such money then remaining will be repaid to the Issuer.
Section 10.04. Statement
by Officers as to Default
The Issuer will deliver to
the Trustee, within 120 days after the end of each fiscal year of the Issuer ending after the date hereof, an Officer’s Certificate,
stating whether or not to the best knowledge of the signers thereof the Issuer is in default in the performance and observance of any
of the terms, provisions and conditions of this Indenture (without regard to any period of grace or requirement of notice provided hereunder)
and, if the Issuer shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge.
Section 10.05. Existence
Subject
to Article Eight, the Restricted Obligors will do or cause to be done all things necessary to preserve and keep in full force and
effect their respective existence, rights (charter and statutory) and franchises; provided, however, that no
Restricted Obligor shall be required to preserve any such right or franchise if the Board of the Issuer shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Restricted Obligors taken as a whole.
Section 10.06. Limitation
on Restricted Payments
Neither HoldCo nor the Issuer shall, and shall
not permit any Restricted Obligor to, declare or make any Restricted Payment, other than a Permitted Payment.
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Section 10.07. Limitations
on Incurrence of Debt and Issuance of Preferred Stock
(a) The
Issuer will not, and will not permit any Restricted Obligor to, incur any Debt or issue any shares of Disqualified Stock or Preferred
Stock; provided that the foregoing limitations shall not apply to:
(i) the
Notes (including any guarantees thereof);
(ii) Debt
in an aggregate principal amount at any time outstanding not in excess of $5.0 million;
(iii) Debt
in an aggregate principal amount at any time outstanding not in excess of the Available Amount (any such Debt, the “Amortization
Debt”), the proceeds of which are used to fund one Guaranteed Mandatory Amortization (including any guarantees thereof);
(iv) Debt
in respect of Capital Leases existing on the Issue Date, and any refinancings thereof;
(v) Debt
in respect of Letters of Credit Obligations incurred in the ordinary course of business and consistent with past practice;
(vi) Debt,
the proceeds of which are used to concurrently repay the Notes in full; and
(vii) Permitted
Intercompany Debt.
(b) The
Limited Parent Guarantor shall cause each of its controlled Affiliates that provides any Permitted Intercompany Intra-Month Debt and any
Permitted Intercompany Advances Debt to any Restricted Obligor to subordinate such Permitted Intercompany Debt to the Notes and the related
Guarantees pursuant to an Acceptable Subordination Agreement.
Section 10.08. Amortization
Sources
(a) The
Issuer and the Limited Parent Guarantor shall source exclusively from the Assets of the Limited Parent Guarantor or its Subsidiaries (other
than any of the Collateral and any of the Assets of the Restricted Obligors) at least $40.0 million of funds and shall cause such
funds to be actually applied, in cash, to the payment of the Guaranteed Mandatory Amortizations pursuant to Section 11.03. No portion
of the Collateral, nor any Assets of any Restricted Obligor, may be directly or indirectly used, pledged, offset, set off, recouped, exchanged,
encumbered, reduced, impaired or otherwise applied to fund, satisfy or discharge any portion of such $40.0 million obligation, and no
payment of the Guaranteed Mandatory Amortizations from such $40.0 million obligation shall directly or indirectly reduce, impair, offset,
encumber or otherwise adversely affect any Collateral or any Assets of any Restricted Obligor (including, without limitation, the Capital
Improvements Account, the Reserve Account, the Operating Account and any Lockbox Account). Notwithstanding the foregoing, funds not exceeding
the Available Amount may be applied to Guaranteed Mandatory Amortizations from the proceeds of any Amortization Debt or from amounts in
the Reserve Account.
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(b) Upon
the making of any Guaranteed Mandatory Amortization, the Issuer shall provide the Issuer’s Independent Director reasonable detail
regarding the source of the funds for any such Guaranteed Mandatory Amortization.
Section 10.09. Limitations
on Liens.
(a) The
Issuer will not, and will not permit any of the Restricted Obligors to, create, incur, assume or otherwise cause to exist or become effective
any Lien securing Debt upon any Collateral or property of such Restricted Obligor, in each case other than Permitted Liens.
Section 10.10. Provision
of Financial and Other Information.
(a) The
Issuer shall file, furnish or otherwise report (x) its audited annual and unaudited quarterly financial statements within (i) in
the case of its annual financial statements, 120 days after the end of the fiscal year to which they relate, and (ii) in the case
of its quarterly financial statements for each fiscal quarter other than the last fiscal quarter of each fiscal year, 60 days after the
end of the fiscal quarter to which they relate, and (y) with respect to the annual financial statements only, a report on the annual
financial statements by the Company’s independent registered public accounting firm.
(b) At
the time annual or quarterly reports are provided pursuant to Section 10.10(a), the Issuer shall file, furnish or otherwise report,
and make available in the Data Room, the amount of funds in each of the Reserve Account and the Capital Improvements Account as of the
end of the related fiscal quarter.
(c) So
long as there are more than five (5) Collateral Properties, the Issuer shall deliver (or cause to be delivered) to the Trustee and
make available in the Data Room,
(i) a
report providing: (A) the aggregate outstanding principal amount of the Notes and (B) the aggregate Appraisal Value for all
Collateral Properties, which shall be provided, as of the end of each calendar month and no later than 10 Business Days after the end
of such calendar month; and
(ii) promptly
and in any event no later than 10 Business Days after any Collateral Property is sold, the Appraisal Value and the sale price of such
Collateral Property.
(d) The
Issuer shall make available such information and such reports as set forth in clauses (a)-(c) above by posting such information on
its website, on Intralinks or any comparable password-protected online data system (the “Data Room”), which shall require
a confidentiality acknowledgment (and such confidentiality acknowledgement shall not be more restrictive than the terms set forth in this
paragraph), and shall make such information readily available to any Holder, any “beneficial owner” of any Notes, any prospective
investor in the Notes, any market maker in the Notes and any securities analysts of the Notes; provided that the Issuer shall post
such information thereon and make readily available any password or other login information to any such Holder, “beneficial owner”
of any Notes, prospective investor, any market maker in the Notes or securities analyst of the Notes; provided, further,
that such Holders, “beneficial owner” of any Notes, prospective investors, any market maker in the Notes and any securities
analysts of the Notes shall agree (i) to treat all such reports (and the information contained therein) and information as confidential,
(ii) in the case of any Holder, any “beneficial owner” of any Notes, or any prospective investor in the Notes, to not
use such reports and the information contained therein for any purpose other than their investment or potential investment in the Notes
and purposes related thereto, including communications with such person’s affiliates, managers, advisors, agents and investors and
in connection with any enforcement of their rights or remedies arising from the Note Documents and (iii) in the case of any Holder
or any prospective investor in the Notes, not publicly disclose any such reports (and the information contained therein) to any person
other than such person’s affiliates, managers, advisors, agents and investors; provided, further, that the Issuer
shall be deemed to have furnished the information referred to in clauses (a) and (b) above if such reports have been filed with
the Commission.
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(e) The
Issuer shall maintain books and records of, and provide to any Holder or any “beneficial owner” of any Notes (subject to execution
of a confidentiality agreement with appropriate confidentiality restrictions necessary to protect any future sales process and including
no cleansing obligation), the Appraisal Value and Release Price of each Collateral Property and the cash expenditures (other than (1) tenant
improvements or other similar improvement required to be made pursuant to any lease agreement, (2) other lease related costs, and
(3) any fees paid to any Affiliate of the Limited Parent Guarantor) expended after the Issue Date on Capital Improvements at all
of the Collateral Properties that are Collateral securing the Notes as of such date.
(f) The
Issuer shall furnish to prospective investors, upon their request, any information required to be delivered pursuant to Rule 144A(d)(4) under
the Securities Act so long as the Notes are not freely transferable under the Securities Act.
(g) Unless
otherwise filed with the Commission, the Issuer shall make available in the Data Room, (i) within ten (10) Business Days of
the date hereof, an unredacted copy of each of the Indenture, the Notes and the Security Agreement (provided that, in the case of the
Security Agreement, any bank account numbers may be redacted) as in effect on the date hereof, and (ii) upon any amendment to the
Indenture, the Notes or the Security Agreement, within ten (10) Business Days of the date thereof.
(h) The
Trustee shall have no liability or responsibility for the filing, timeliness or content of any such reports, financial statements, documents
or information filed by the Limited Parent Guarantor or any Restricted Obligor and delivery of such reports, financial statements, documents
or information to the Trustee is for informational purposes only and receipt of such shall not constitute constructive notice thereof
or any information contained therein.
(i) For
avoidance of doubt, the Issuer (and not the Limited Parent Guarantor or any of its Subsidiaries (other than HoldCo and its Subsidiaries))
shall be responsible for any fee or expense (including fees and expenses of its independent accountants and legal counsel) incurred in
connection with compliance with this Section 10.10 and, notwithstanding any provision of this Indenture that would otherwise restrict
such actions, if any such expenses are paid by the Limited Parent Guarantor or any of its Subsidiaries (other than HoldCo and its Subsidiaries),
the Issuer shall reimburse the Limited Parent Guarantor or such Subsidiary for such expenses in accordance with the Allocation Agreement.
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Section 10.11. Limitation
on Asset Sales; Event of Loss.
(a) The
Issuer shall not, HoldCo shall not cause or permit the Issuer to, and the Issuer shall not cause or permit any of the Restricted Obligors,
to consummate an Asset Sale of any Collateral (including any Equity Interests of any Guarantor that directly or indirectly holds such
Collateral) unless:
(i) such
Restricted Obligor receives consideration (including by way of relief from or by any other Person assuming responsibility for, any liabilities,
contingent or otherwise) at the time of the Asset Sale of such Collateral at least equal to the Fair Market Value (determined on any date
on which such Collateral is contractually agreed to be sold in good faith by the Issuer) of the Collateral issued or sold or otherwise
disposed of;
(ii) such
Restricted Obligor receives Net Proceeds at the time of the Asset Sale of such Collateral at least equal to 70.0% of the value attributed
by the Issue Date Appraisals (or in the case of any Collateral that does not secure the Notes as of the Issue Date, a Qualified Appraisal)
to the Collateral that is the subject of such Asset Sale (such value, the “Appraisal Value”, and 70.0% of such Appraisal
Value, the “Release Price”)); provided that the requirement set forth in this clause (ii) may be waived
with respect to an Asset Sale of a particular Collateral Property (1) by either (x) the Holders of not less than a majority
in aggregate principal amount of the Outstanding Notes or (y) the Independent Director of the Issuer or (2) without the consent
of any other party, if such Net Proceeds will be applied for any Mandatory Amortization other than Guaranteed Mandatory Amortizations,
to the extent the Issuer redeems Notes using funds from the Reserve Account in an amount equal to the difference between the Release Price
and the Net Proceeds received from such Asset Sale and (x) the Net Proceeds of such Asset Sale are no more than 10% less than the
Release Price of such Collateral in connection with the payment of the Fourth Mandatory Amortization or no more than 15% less than the
Release Price of such Collateral in connection with the payment of the Fifth Mandatory Amortization and (y) the Issuer has provided
an Officer’s Certificate that such Collateral has been the subject of a reasonable good faith marketing process consistent with
industry practice and that the proposed sale is the highest or best offer; and
(iii) 100%
of the consideration received in the Asset Sale of such Collateral by such Restricted Obligor is in the form of Cash or Cash Equivalents.
(b) The
amount of any Net Proceeds shall constitute “Excess Proceeds”. No later than the 10th Business Day following receipt
of any Excess Proceeds, the Issuer shall be required to apply such Excess Proceeds as follows: (i) first, if and only if (x) the
aggregate principal amount of the Notes outstanding after application of such Excess Proceeds, divided by (y) the Adjusted
Issue Date Appraisals as of the date of such Asset Sale, is less than or equal to 70%, 7.0% of the Release Price may, at the Issuer’s
sole option, be deposited into the Capital Improvements Account; (ii) second, to redeem an amount of the Notes outstanding
to be determined by the Issuer as of such date of application equal to not less than (x) the Release Price of the Collateral Property
that is the subject of such Asset Sale minus (y) any amounts deposited into the Capital Improvements Account pursuant to clause
(i) above, at a Redemption Price equal to 100% of the principal amount of such Notes plus accrued and unpaid interest thereon
to, but not including, the Redemption Date (such redemption, a “Collateral Asset Sale Redemption”); (iii) third,
(x) with respect to the first $150.0 million of the Gross Proceeds of Asset Sales of Collateral since the Issue Date, the balance
of such Excess Proceeds shall be deposited in the Reserve Account or applied in respect of a Fourth Mandatory Amortization or a Fifth
Mandatory Amortization, and (y) with respect to the Gross Proceeds of Asset Sales of Collateral since the Issue Date in excess of
such $150.0 million, 50% of the balance of such Excess Proceeds shall be applied to make a Collateral Asset Sale Redemption and the remaining
50% of the balance of such Excess Proceeds shall be deposited in the Reserve Account. Any Collateral Asset Sale Redemption shall be made
pursuant to the provisions of Sections 11.04 through 11.08. Any consideration received in respect of an Asset Sale of any Collateral shall
be retained by the Issuer either in the Capital Improvements Account (to the extent that deposits into the Capital Improvements Account
are made pursuant to this Indenture) or in a Reserve Account. Any amounts that are held in any Reserve Account shall be used solely for
the payment of lawful expenses of a Restricted Obligor (other than HoldCo), repairs or Capital Improvements on the Collateral Properties
as of such date of payment, or principal or interest payments on the Notes (or the repayment of Permitted Intercompany Advances Debt to
the extent permitted pursuant to Section 10.06). Any amounts that are held in any Capital Improvements Account shall be used solely
for Capital Improvements on the Collateral Properties as of such date of payment. No consideration received in respect of an Asset Sale
of any Collateral may be used to make a Restricted Payment.
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(c) If
any Event of Loss occurs with respect to any Collateral, which results in the realization or receipt by a Restricted Obligor of Net Proceeds
in respect of such Collateral, such Restricted Obligor shall apply such Net Proceeds, on or prior to the 20th Business Day after the date
of the realization or receipt of such Net Proceeds, to redeem such aggregate principal amount of Notes (on a pro rata basis) equal
to the Net Proceeds in respect of such Event of Loss, if any, at a Redemption Price equal to 100% of the principal amount of such Notes
(such redemption, an “Event of Loss Redemption”), plus accrued and unpaid interest thereon to, but not including, the
Redemption Date; provided that any Event of Loss Redemption shall be made pursuant to the provisions of Sections 11.04 through
11.08.
(d) [Reserved].
(e) Notwithstanding
anything to the contrary in this Indenture, the Restricted Obligor shall not agree to or consummate any Asset Sale of any of the Collateral
to the Limited Parent Guarantor or any Affiliate thereof (other than a Restricted Obligor), unless the Net Proceeds of such Asset Sale
exceeds 70% of the Appraisal Value of the relevant Property and the Issuer delivers an Officer’s Certificate to the Trustee providing
that (1) such Property was the subject of a reasonable good faith marketing process consistent with industry practice and the Affiliate
did not possess any material information related to such Property that was not disclosed as part of such marketing process, (2) the
Issuer’s Board (including the Independent Director) has been provided with timely access to all material information regarding such
marketing process and copies of all bids received and (3) such Asset Sale to such Affiliate is the highest or best offer for such
Property.
Section 10.12. Collateral
Covenants.
(a) As
of the Issue Date, the Restricted Obligors shall have executed and delivered or caused to be delivered (i) the Security Agreement
executed by the Restricted Obligors, (ii) UCC-1 financing statements in respect of security interests granted by the Restricted Obligors
for filing in all applicable jurisdictions and (iii) customary opinions of counsel as to the creation, attachment and perfection
of the security interests created by the Security Documents.
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(b) With
respect to each Collateral Property, the Issuer shall provide to the Collateral Agent, within 5 Business Days after the Issue Date, a
Mortgage and any necessary UCC fixture filing in respect thereof, together with:
(i) an
Officer’s Certificate confirming that (A) counterparts of such Mortgage have been duly executed, acknowledged and delivered
and such Mortgage and any corresponding UCC or equivalent fixture filing (if applicable) are in form suitable for filing or recording
in all filing or recording offices that are reasonably necessary in order to create a valid and subsisting Lien on such Collateral Property
in favor of the Collateral Agent for the benefit of the Trustee, the Collateral Agent and the Holders of the Notes each with a secured
amount equal to the principal amount of the Notes; provided, however, with respect to any Collateral Property located in
a jurisdiction that requires payment of mortgage recording tax (or the equivalent) based on the maximum secured indebtedness stated in
such Mortgage, the Mortgages in such jurisdictions will secure an amount equal to the Fair Market Value thereof (as determined by the
Issue Date Appraisals), (B) the Issuer has authorized a nationally recognized title insurance company to submit, as promptly as possible,
such Mortgage and any corresponding UCC or equivalent fixture filings for recording or filing, as applicable, and (C) all filing
and recording taxes and fees have been paid or otherwise provided for;
(ii) fully
paid pro forma lender’s policies of title insurance issued by a nationally recognized title insurance company in the applicable
jurisdiction that is selected by the Issuer and insuring the relevant Mortgage as having created a first priority valid and subsisting
Lien on the real property described therein with the ranking or the priority which it is expressed to have in such Mortgage, subject only
to Permitted Liens, which shall include a tie-in endorsement to the extent available on commercially reasonable terms, in each case with
final completed title policies issued promptly following the recording of the Mortgages. Each such policy of title insurance shall be
in an amount equal to the proportionate allocated loan amount for the Collateral Property based on the Fair Market Value thereof (as determined
by the Issue Date Appraisals) provided that such policy includes a tie-in endorsement permitting such policy to tie-in to such other policies
as may be necessary to provide title coverage (after factoring in such tie-in endorsement) in an amount at least equal to the Fair Market
Value of the applicable Collateral Property; otherwise, the amount of such policy shall equal the Fair Market Value (as determined by
the Issue Date Appraisals) of the Collateral Property; and
(iii) if
requested by the Collateral Agent (acting at the direction of the Holders of not less than a majority in aggregate principal amount of
the Outstanding Notes), and to the extent such documents are in the Issuer’s possession, copies of any surveys, zoning reports,
appraisals, and environmental reports.
(c) By
the date that is no later than the 45th day following the Issue Date, the Restricted Obligors shall have delivered a Control
Agreement in favor of the Collateral Agent over each Deposit Account and Securities Account (including, for the avoidance of doubt, each
of the Capital Improvements Account, the Operating Account, the Reserve Account and, if such account is separate from the Operating Account,
the Lockbox Account) owned by any such Restricted Obligor existing on the Issue Date (other than any Excluded Accounts), subject to terms
reasonably acceptable to the Collateral Agent.
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Section 10.13. Additional
Collateral Covenants
(a) Any
property management agreement with respect to the Collateral (including the Property Management Agreement) shall provide that such property
management agreement is terminable by the Issuer following a default described in Section 6.02, and in no event shall such property
management agreement provide that the Issuer is liable for any termination or similar fee thereunder following any such default without
the consent of the Board of the Issuer (including the affirmative consent of the Independent Director).
(b) Solely
following the occurrence and during the continuation of an Event of Default, the execution of a Major Lease by any of the Restricted Obligors
and associated capital commitments with respect to any of the Collateral shall be subject to the approval of the Issuer’s Independent
Director.
Section 10.14. Negative
Pledge
(a) The
Restricted Obligors shall not, and shall not cause or permit its Subsidiaries to, take any action that would prohibit such Subsidiary
from providing a Guarantee of the Notes if such Subsidiary would otherwise be required to guarantee the Notes.
Section 10.15. Limited
Activities
(a) The
Restricted Obligors shall not engage in any operations or business activities or otherwise own, hold or be liable for any assets, liabilities
or other investments other than:
(i) acquiring, developing, owning, holding, selling, leasing, transferring, exchanging, managing and/or operating one or
more Collateral Properties;
(ii) activities
and contractual rights incidental to maintenance of its corporate or organizational existence or incidental to any other activity permitted
by this Section 10.15(a);
(iii) ownership
of Capital Stock;
(iv) performance
of their obligations under the Note Documents to which they are party and operations and activities reasonably related thereto; and
(v) engaging
in activities expressly permitted by Article Eight, Sections 10.06, 10.07 and 10.09, and/or Section 11.01(a).
(b) Each
of the Issuer and HoldCo shall, and shall take commercially reasonable efforts to cause each Subsidiary Guarantor to, at all times (i) comply
with the SPE Requirements applicable to the Issuer, HoldCo and the Subsidiary Guarantors and (ii) preserve and keep in full force
and effect its existence as a Special Purpose Entity.
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Section 10.16. Transactions
with Affiliates.
The Restricted Obligors shall
not enter into any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property, employee
compensation arrangements or the rendering of any service) with or for the benefit of the Limited Parent Guarantor or any Affiliate thereof
(other than any Restricted Obligor) (an “Affiliate Transaction”), unless the terms of the Affiliate Transaction (x) other
than with respect to an Asset Sale (which shall be governed by clause (y)), have been approved by the Independent Director of the Issuer,
or (y) with respect to any Asset Sale, satisfy the requirements set forth in Section 10.11(e); provided, however,
that the foregoing restrictions shall not apply to (a) Permitted Payments, (b) the entry into or performance of any Property
Management Agreement, (b) the entry into or performance of any Business Management Agreement, (d) the entry into or performance
of the Allocation Agreement, (e) the entry into and performance of any Services Agreement, (f) the incurrence of Permitted Intercompany
Intra-Month Debt and Permitted Intercompany Advances Debt, and (g) withdrawals from the Lockbox Account by the Manager to the extent
permitted by Section 10.18(e)(v).
Section 10.17. After-Acquired
Property.
If any Assets are held or
acquired by a Restricted Obligor that is not automatically subject to a perfected (or, to the extent applicable, a similar method of effecting
a security interest against third parties) security interest under the Security Documents, or any of the Restricted Obligors forms or
acquires a direct or indirect Subsidiary; then, in each case, the Restricted Obligor shall promptly (i) provide a Lien over such
property or Subsidiary substantially consistent with the Liens granted over similar property on the Issue Date in favor of the Collateral
Agent and (ii) execute and deliver any such supplement or joinder to the Security Agreement and such other Security Documents as
shall be necessary to vest in the Collateral Agent a perfected (or, to the extent applicable, a similar method of effecting a security
interest against third parties) security interest in such property and to have such property or Subsidiary (but subject to the limitations
set forth in the Security Documents) added to the Collateral, and thereupon all provisions of this Indenture relating to the Collateral
shall be deemed to relate to such property, assets or Subsidiary, and deliver certificates and Opinions of Counsel consistent with the
ones delivered in the applicable jurisdiction in connection with other Security Documents or in the case of any jurisdiction where no
Liens were previously granted, such certificates and Opinions of Counsel are customary in such jurisdictions.
Section 10.18. Cash
Management.
(a) The
Restricted Obligors shall maintain at all times all Cash and Cash Equivalents at Deposit Accounts or Securities Accounts with any financial
institution that has entered into a Control Agreement other than Cash and Cash Equivalents held in Excluded Accounts; provided,
that Control Agreements required to be delivered under this Section 10.18 with respect to Deposit Accounts and Securities Accounts
existing on the Issue Date shall be subject to the 45-day post-closing period set forth in Section 10.12(c).
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(b) Any
Cash and Cash Equivalents that are held in the Capital Improvements Account shall only be applied in accordance with Section 10.11(b).
(c) Any
Cash and Cash Equivalents that are held in the Reserve Account shall only be applied in accordance with Section 10.11(b).
(d) Any
Deposit Account or Securities Account of the Restricted Obligors that is not an Excluded Account, the Capital Improvements Account or
the Reserve Account shall not be used in contravention of Section 10.15(a).
(e) Lockbox
Accounts.
(i) On
or prior to the Issue Date, the Issuer shall cause one of the Restricted Obligors (the “Lockbox Entity”) to establish
a lockbox service on a deposit account (which may be the Operating Account) with a nationally recognized financial institution that sweeps
into the Operating Account if such account is separate from the Operating Account (the “Lockbox Account”).
(ii) Within
five (5) business days following the Issue Date, each Restricted Obligor that owns any Collateral Property (each such entity, a “Collateral
Property Owner”) must provide notice of the account information for the Lockbox Account to each of its tenants and direct each
such tenant to make all payments due to such Collateral Property Owner to the Lockbox Account.
(iii) Within
five (5) business days following the Issue Date, each Collateral Property Owner shall direct each of its tenants to deposit all funds
paid to such Collateral Property Owner to be paid into the Lockbox Account.
(iv) The
Restricted Obligors shall cause the Manager to direct any amounts received by the Limited Parent Guarantor or its Subsidiaries that are
not Restricted Obligors from tenants on account of any Collateral Property and owed to any Collateral Property Owner to the Operating
Account as soon as commercially practicable.
(v) If
an Event of Default (or any event which, after notice or lapse of time or both, would become an Event of Default) has occurred and is
continuing (or a default or Event of Default would result therefrom), the Restricted Obligors shall not permit the Manager to withdraw
amounts from the Lockbox Account to pay management fees payable to the Manager pursuant to the Property Management Agreement or the Business
Management Agreement (it being understood and agreed that if no Event of Default (or any event which, after notice or lapse of time or
both, would become an Event of Default) has occurred and is continuing (or a default or Event of Default would result therefrom), the
Manager may withdraw amounts from the Lockbox Account to pay management fees payable to the Manager pursuant to the Property Management
Agreement and the Restricted Obligors’ allocable share of management fees payable to the Manager pursuant to the Business Management
Agreement and the Allocation Agreement).
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Section 10.19. Other
Covenants.
(a) Within
20 Business Days after the Issue Date, the Issuer shall use commercially reasonable efforts to cause information regarding the Notes (including
the maturity date, interest payment dates, interest record dates and amortization schedule of the Notes) to be reflected on the systems
of Bloomberg LP, including the Bloomberg platform.
(b) The
Issuer shall use commercially reasonable efforts to cooperate with at least two of the Rating Agencies to obtain, as soon as commercially
practicable and in any event within the three-months following the Issue Date, a credit rating of the Notes from at least two of the Rating
Agencies, and shall maintain such ratings, but shall not be required to obtain any specific rating.
(c) For
avoidance of doubt, the Issuer (and not the Limited Parent Guarantor or any of its Subsidiaries (other than HoldCo and its Subsidiaries))
shall be responsible for any fee or expense (including fees and expenses of legal counsel) incurred in connection with compliance with
this Section 10.19 and, notwithstanding any provision of this Indenture that would otherwise restrict such actions, if any such expenses
are paid by the Limited Parent Guarantor or any of its Subsidiaries (other than HoldCo and its Subsidiaries), the Issuer shall reimburse
the Limited Parent Guarantor or such Subsidiary for such expenses in accordance with the Allocation Agreement.
ARTICLE Eleven
Redemption
of Notes
Section 11.01. Redemption
at the Option of the Issuer
(a) The
Issuer may redeem at its option (an “Optional Redemption”) on any one or more occasions all or a part of the Notes
upon not less than 10 nor more than 60 days’ notice, at the following redemption prices (expressed as a percentage of the principal
amount of the Notes to be redeemed) set forth below, plus accrued and unpaid interest, if any, to, but not including, the applicable
Redemption Date (subject to the right of Holders of the Notes on the relevant Record Date to receive interest due on the relevant interest
payment date occurring on or prior to the Redemption Date):
Dates
Price
From the Issue Date through July 31, 2027
100.000 %
From August 1, 2027 through January 31, 2028
103.000 %
From February 1, 2028 through July 31, 2028
102.000 %
From August 1, 2028 through January 31, 2029
101.000 %
From February 1, 2029 through December 31, 2029
100.000 %
(b) Any
redemption and notice of redemption may, at the Issuer’s discretion, be subject to the satisfaction of one or more conditions precedent
as provided in Section 11.05; provided that in no event shall such provision or conditions precedent limit the Issuer’s
obligation to repurchase or redeem the Notes pursuant to Section 10.11, 11.03 or 11.09.
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(c) Nothing
in this Indenture will limit the Limited Parent Guarantor or its Affiliates’ ability to repurchase or retire Notes other than by
redemption, whether by tender offer, exchange offer, open market repurchases, privately negotiated transactions or otherwise.
(d) Without
limiting the generality of this Section 11.01, it is understood and agreed that if the Notes are accelerated as a result of an Event
of Default (including, but not limited to Section 5.01(e), Section 5.01(f) or upon the occurrence or commencement of any
bankruptcy or insolvency proceeding or other event pursuant to any applicable Bankruptcy Law (including the acceleration of claims by
operation of law)), the Notes that become due and payable shall include the payment of all amounts determined as of such date if the Notes
were optionally redeemed pursuant to this Section 11.01 on such date (the “Applicable Premium”), which shall become
immediately due and payable by the Restricted Obligors, and shall constitute part of the Notes Obligations as if the Notes were being
optionally redeemed or repaid as of such date, in view of the impracticability and extreme difficulty of ascertaining actual damages and
by mutual agreement of the parties as to a good faith reasonable estimate and calculation of each beneficial holder’s lost profits
and/or actual damages as a result thereof. The Applicable Premium shall also be automatically and immediately due and payable if the Notes
Obligations are satisfied or released by foreclosure (whether by power of judicial proceeding or otherwise), deed in lieu of foreclosure,
or by any other means in connection with an Event of Default described in the preceding sentence, including without limitation, under
a plan of reorganization or similar manner in any bankruptcy, insolvency or similar proceeding. The Applicable Premium payable pursuant
to this Indenture shall be presumed to be the liquidated damages sustained by each beneficial holder as the result of the early repayment
or prepayment of the Notes (and not unmatured interest or a penalty) and the Restricted Obligors agree that it is reasonable under the
circumstances currently existing. If the Applicable Premium becomes due and payable pursuant to this Indenture, the Applicable Premium
shall be deemed to be principal of the Notes and Notes Obligations under this Indenture and interest shall accrue on the full principal
amount of the Notes (including the Applicable Premium). In the event the Applicable Premium is determined not to be due and payable by
order of any court of competent jurisdiction, including, without limitation, by operation of the Bankruptcy Code, the Applicable Premium
shall nonetheless constitute Notes Obligations under this Indenture for all purposes hereunder. THE RESTRICTED OBLIGORS EXPRESSLY WAIVE
(TO THE FULLEST EXTENT THEY MAY LAWFULLY DO SO) THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT
THE COLLECTION OF THE APPLICABLE PREMIUM IN CONNECTION WITH ANY SUCH ACCELERATION. The Restricted Obligors expressly acknowledge and agree
(to the fullest extent they may lawfully do so) that: (A) the Applicable Premium is reasonable and the product of an arm’s
length transaction between sophisticated business people, ably represented by counsel, (B) the Applicable Premium shall be payable
under the circumstances described herein notwithstanding the then prevailing market rates at the time payment or redemption is made, (C) there
has been a course of conduct between the beneficial holders, the Restricted Obligors giving specific consideration in this transaction
for such agreement to pay the Applicable Premium under the circumstances described herein, (D) the Applicable Premium shall not constitute
unmatured interest, whether under section 502(b) of the Bankruptcy Code or otherwise, (E) the Applicable Premium does not constitute
a penalty or an otherwise unenforceable or invalid obligation, (F) the Restricted Obligors shall not challenge or question, or support
any other person in challenging or questioning, the validity or enforceability of the Applicable Premium or any similar or comparable
prepayment fee under the circumstances described herein, and the Restricted Obligors shall be estopped from raising or relying on any
judicial decision or ruling questioning the validity or enforceability of any prepayment fee similar or comparable to the Applicable Premium,
and (G) the Restricted Obligors shall be estopped hereafter from claiming differently than as agreed to in this paragraph. The Restricted
Obligors expressly acknowledge that their agreement to pay or guarantee the payment of the Applicable Premium to the beneficial holders
as herein described is individually and collectively a material inducement to the beneficial holders to purchase the Notes. The parties
acknowledge that the Applicable Premium provided for under this Indenture is believed to represent a genuine estimate of the losses that
would be suffered by the beneficial holders as a result of the Restricted Obligors’ breach of their obligations under this Indenture.
The Restricted Obligors waive, to the fullest extent permitted by law, the benefit of any statute affecting its liability hereunder or
the enforcement hereof. Nothing in this paragraph is intended to limit, restrict, or condition any of the Restricted Obligors’ obligations,
rights or remedies hereunder.
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(e) For
the avoidance of doubt, no premium shall be payable on the Notes in connection with any Mandatory Amortization, any Collateral Asset Sale
Redemption or any Event of Loss Redemption.
Section 11.02. Election
to Redeem; Notice to Trustee
In case of any redemption
at the election of the Issuer of less than all the Notes, the Issuer shall, at least 15 days prior to the Redemption Date fixed by the
Issuer (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date and the principal amount
of Notes to be redeemed.
Section 11.03. Mandatory
Redemptions
(a) On
or before August 1, 2026, the Issuer will be required to redeem a principal amount of Notes equal to $5,000,000, at a price equal
to 100% of the principal amount thereof plus accrued and unpaid interest to, but not including, the applicable Redemption Date
(the “First Mandatory Amortization”).
(b) On
or before November 1, 2026, the Issuer will be required to redeem a principal amount of Notes equal to $15,000,000, at a price equal
to 100% of the principal amount thereof plus accrued and unpaid interest to, but not including, the applicable Redemption Date
(the “Second Mandatory Amortization”).
(c) On
or before February 1, 2027, the Issuer will be required to redeem a principal amount of Notes equal to $30,000,000, at a price equal
to 100% of the principal amount thereof, plus accrued and unpaid interest to, but not including, the applicable Redemption Date
(the “Third Mandatory Amortization” and, collectively with the First Mandatory Amortization and the Second Mandatory
Amortization, the “Guaranteed Mandatory Amortizations”).
(d) On
or before February 1, 2028, the Issuer will be required to redeem an aggregate principal amount of Notes equal to $45,000,000, at
a price equal to 100% of the principal amount thereof, plus accrued and unpaid interest to, but not including, the applicable Redemption
Date (the “Fourth Mandatory Amortization”); provided that the Fourth Mandatory Amortization may be made from
proceeds of an Asset Sale in connection with a Collateral Asset Sale Redemption or from funds on deposit in the Reserve Account.
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(e) On
or before February 1, 2029, the Issuer will be required to redeem an aggregate principal amount of Notes equal to $45,000,000, at
a price equal to 100% of the principal amount thereof, plus accrued and unpaid interest to, but not including, the applicable Redemption
Date (the “Fifth Mandatory Amortization” and, collectively with the First Mandatory Amortization, the Second Mandatory
Amortization, the Third Mandatory Amortization and the Fourth Mandatory Amortization, the “Mandatory Amortizations”);
provided that the Fifth Mandatory Amortization may be made from proceeds of an Asset Sale in connection with a Collateral Asset
Sale Redemption or from funds on deposit in the Reserve Account.
(f) Any
redemption of the Notes pursuant to Section 11.01(a) shall reduce the aggregate principal amount of the Notes that must be redeemed
pursuant to the Mandatory Amortizations in direct order of maturity.
(g) The
Issuer shall only be required to make a mandatory redemption or mandatory repurchase offer with respect to the Notes as provided in Sections
10.11, 11.03 and 11.09, and the Notes will not otherwise be subject to mandatory redemption or any sinking fund payments.
(h) Any
calculation of the principal amount of Notes to be redeemed in respect of a Mandatory Amortization shall be made by the Issuer and delivered
to the Trustee pursuant to an Officer’s Certificate.
Section 11.04. Selection
by Trustee of Notes to Be Redeemed
If
less than all the Notes are to be redeemed, not more than 60 days prior to the Redemption Date, the Trustee shall select the Notes to
be redeemed from the Outstanding Notes not previously called for redemption, on a pro rata basis or by lot and which may provide
for the selection for redemption of a portion of the principal amount of any Note, provided that the unredeemed portion
of the principal amount of any Note shall be in an authorized denomination (which shall not be less than the minimum authorized denomination)
for such Note. If less than all the Notes are to be redeemed, the Notes to be redeemed shall be selected not more than 60 days (subject
to Section 11.05) prior to the Redemption Date by the Trustee, from the Outstanding Notes not previously called for redemption in
accordance with the preceding sentence.
The Trustee shall promptly
notify the Issuer in writing of the Notes selected for redemption as aforesaid and, in case of any Notes selected for partial redemption
as aforesaid, the principal amount thereof to be redeemed.
The provisions of the two
preceding paragraphs shall not apply with respect to any redemption affecting only a single Note, whether such Note is to be redeemed
in whole or in part. In the case of any such redemption in part, the unredeemed portion of the principal amount of the Note shall be in
an authorized denomination (which shall not be less than the minimum authorized denomination) for such Note.
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For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to the redemption of Notes shall relate, in the case of any Notes redeemed
or to be redeemed only in part, to the portion of the principal amount of such Notes which has been or is to be redeemed.
For so long as the Notes are
held by The Depository Trust Company (or another Depositary), the redemption of the Notes, including the selection of Notes to be redeemed,
shall be done in accordance with the policies and procedures of the Depositary.
Section 11.05. Notice
of Redemption
Notice of redemption shall
be given in the manner provided in Section 1.06 to the Holders of Notes to be redeemed not less than 10 nor more than 60 days prior
to the Redemption Date, except that any notice of redemption may be given more than 60 days prior to a Redemption Date if the notice is
issued in connection with a Defeasance of Notes pursuant to Article Thirteen hereof or a satisfaction and discharge of this Indenture
pursuant to Article Four hereof. In connection with any redemption of Notes, any such redemption may, at the Issuer’s discretion,
be subject to satisfaction of one or more conditions precedent. In addition, if such redemption or notice is subject to satisfaction of
one or more conditions precedent, such notice may state that, in the Issuer’s discretion, the Redemption Date may be delayed (including
more than 60 days after notice is given) until such time as any or all such conditions shall be satisfied (or waived by the Issuer in
its sole discretion), or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall
not have been satisfied (or waived by the Issuer in its sole discretion) by the Redemption Date, or by the Redemption Date so delayed.
All notices of redemption
shall state:
(a) the
Redemption Date,
(b) the
Redemption Price,
(c) if
less than all the Outstanding Notes are to be redeemed, the identification (and, in the case of partial redemption of any such Notes,
the principal amounts) of the Notes to be redeemed and, if less than all the Outstanding Notes are to be redeemed, the principal amount
of the Notes to be redeemed,
(d) that
on the Redemption Date the Redemption Price will become due and payable upon the Notes to be redeemed and, if applicable, that interest
thereon will cease to accrue on and after said date,
(e) the
place or places where such Notes are to be surrendered for payment of the Redemption Price,
(f) the
applicable “ISIN” and/or “CUSIP” numbers, if any, and
(g) if
applicable, that such redemption may be subject to satisfaction of one or more conditions precedent.
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A notice of redemption published
as contemplated by Section 1.06 need not identify the particular Notes to be redeemed.
Notice of redemption of Notes
to be redeemed at the election of the Issuer shall be given by the Issuer or, at the Issuer’s request, by the Trustee in the name
and at the expense of the Issuer.
Section 11.06. Deposit
of Redemption Price
On or before 11:00 a.m. Eastern
Time on any Redemption Date, the Issuer shall deposit with the Trustee or with a Paying Agent (or, if the Issuer is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 10.03 of this Indenture) an amount of money sufficient to pay the
Redemption Price of all the Notes which are to be redeemed on such Redemption Date.
Section 11.07. Notes
Payable on Redemption Date
Notice
of redemption having been given as aforesaid, the Notes so to be redeemed shall, on the Redemption Date, subject to any applicable conditions
precedent, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Issuer shall default
in the payment of the Redemption Price and accrued interest) such Notes shall cease to bear interest. Upon surrender of any of the Notes
for redemption in accordance with said notice, such Note shall be paid by the Issuer at the Redemption Price, together with accrued interest,
if any, to the Redemption Date; provided, however, installments of interest whose Stated Maturity is on or prior
to the Redemption Date shall be payable to the Holders of such Notes, or one or more Predecessor Notes, registered as such at the close
of business on the relevant Record Dates according to their terms and the provisions of Section 3.07.
If any Note called for redemption
shall not be so paid upon surrender thereof for redemption, the principal of and premium (if any) shall, until paid, bear interest from
the Redemption Date at the rate prescribed therefor in the Note.
Section 11.08. Notes
Redeemed in Part
Any Note which is to be redeemed
only in part shall be surrendered at a Place of Payment therefor (with, if the Issuer or the Trustee so requires, due endorsement by,
or a written instrument of transfer in form satisfactory to the Issuer and the Trustee duly executed by, the Holder thereof or the attorney
of such Holder duly authorized in writing), and the Issuer shall execute, and the Trustee shall authenticate and deliver to the Holder
of such Note without service charge, a new Note or Notes of like tenor, of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Note so surrendered.
Section 11.09. Change
of Control Offer
(a) Upon
the occurrence of a Change of Control, unless the Issuer has exercised its right to redeem the Notes (or otherwise satisfies the Notes
Obligations) in full pursuant to an Optional Redemption, a Defeasance pursuant to Section 13.02 or a satisfaction and discharge pursuant
to Article Four, the Issuer shall be required to make an offer (the “Change of Control Offer”) to each Holder
of Notes to repurchase all or any part (in excess of $2,000 and in integral multiples of $1,000) of that Holder’s Notes, at a repurchase
price in cash equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest to, but not including, the
applicable Redemption Date (the “Change of Control Payment”).
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(b) Within
30 days following any Change of Control or, at the Issuer’s option, prior to any Change of Control, but after the public announcement
of the transaction that constitutes or may constitute a Change of Control, the Issuer shall electronically deliver or mail a notice to
each Holder, with a copy to the Trustee, describing the transaction or transactions that constitute or may constitute the Change of Control
and offering to repurchase the Notes on the payment date specified in the notice, which date shall be no earlier than 30 days and (except
to the extent such notice is conditioned upon the occurrence of a Change of Control) no later than 60 days from the date such notice is
electronically delivered or mailed, other than as may be required by law (the “Change of Control Payment Date”). The
Change of Control Payment Date may be designated by reference to the date that the Change of Control occurs, rather than a specific date.
The notice shall, if electronically delivered or mailed prior to the date of consummation of the Change of Control, state that the Change
of Control Offer is conditioned on a Change of Control occurring on or prior to the Change of Control Payment Date.
(c) The
Issuer shall not be required to make a Change of Control Offer if the Limited Parent Guarantor, an Affiliate thereof or a third party
makes such an offer in the manner and at the times required and otherwise in compliance with the requirements applicable to such an offer
had it been made by the Issuer, and such third party purchases all Notes properly tendered and not withdrawn under its offer. In addition,
the Issuer may not repurchase any Notes if there has occurred and is continuing on the Change of Control Payment Date an Event of Default
under the Indenture, other than a default in the payment of the Change of Control Payment upon a Change of Control.
(d) If
Holders of not less than 90% in aggregate principal amount of the Outstanding Notes validly tender and do not withdraw such Notes in an
offer to repurchase the Notes upon a Change of Control and the Issuer, the Limited Parent Guarantor, an Affiliate thereof or any third
party making an offer to repurchase the Notes upon a Change of Control in lieu of the Issuer, as described in the immediately preceding
clause (c), purchase all of the Notes validly tendered and not withdrawn by such Holders, then the Issuer shall have the right, upon not
less than 10 nor more than 60 days’ prior notice, given not more than 30 days following the Change of Control Payment Date, to redeem
all Notes that remain outstanding following such purchase at a Redemption Price in cash equal to 100% of the principal amount thereof,
plus accrued and unpaid interest, if any, to, but excluding, the Redemption Date (subject to the right of the Holders of record on the
relevant Record Date to receive interest due on the relevant Interest Payment Date).
(e) The
Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act, and any other securities laws and regulations thereunder,
to the extent those laws and regulations are applicable in connection with the Change of Control Offer. To the extent that the provisions
of any securities laws or regulations conflict with this Section 11.09 or the Notes, the Issuer shall comply with the applicable
securities laws and regulations and shall not be deemed to have breached its obligations under this Section 11.09 or the Notes by
virtue of compliance with such securities laws and regulations.
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(f) Notwithstanding
anything to the contrary in the Indenture, for the avoidance of doubt, the Issuer’s obligation to repurchase Notes upon a Change
of Control may be waived by the Holders of not less than a majority in aggregate principal amount of the Outstanding Notes.
ARTICLE Twelve
GUARANTEES
Section 12.01. Restricted
Obligor Guarantee.
Subject to this Article Twelve,
each of the Restricted Obligors (other than the Issuer) (it being understood that all references to Restricted Obligors in this Article 12
exclude the Issuer) hereby jointly and severally, irrevocably and unconditionally guarantees, on a secured basis, to each Holder of Notes
authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability
of this Indenture, the Notes or the obligations of the Issuer under this Indenture or the Notes, that:
(a) the
principal of, premium, if any, and interest on the Notes shall be promptly paid in full when due, whether at Stated Maturity, upon redemption
or repurchase, by acceleration or otherwise, and all obligations of the Issuer to Holders of the Notes or the Trustee under this Indenture
or the Notes shall be promptly paid in full or promptly performed, as the case may be, all in accordance with the terms of this Indenture
and the Notes; and
(b) in
case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall be promptly paid in
full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, upon redemption or repurchase,
by acceleration or otherwise.
Failing payment when due of
any amount so guaranteed or failing performance of any other obligation so guaranteed for whatever reason, each Restricted Obligor shall
be obligated to pay, or to perform or cause the performance of, the same immediately. Each Restricted Obligor agrees that this is a guarantee
of payment and not a guarantee of collection.
Each of the Restricted Obligors
hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the
Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect
to any provisions of this Indenture or the Notes, the release of any other Restricted Obligor, the recovery of any judgment against the
Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense
of a Restricted Obligor. Each Restricted Obligor hereby waives, to the extent permitted by applicable law, diligence, presentment, demand
of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to require a proceeding first
against the Issuer, protest, notice and all demands whatsoever and covenant that this Guarantee shall not be discharged except by complete
performance of the obligations contained in the Notes and this Indenture.
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Unless and until released
with respect to any Restricted Obligor in accordance with Section 12.04 of this Indenture, this Guarantee shall remain in full force
and effect and continue to be effective should any petition be filed by or against the Issuer for liquidation or reorganization, should
the Issuer become insolvent or make an assignment for the benefit of creditors or should a custodian, trustee, liquidator or other similar
official be appointed for all or any part of the Issuer’s assets. If any Holder of the Notes or the Trustee is required by any court
or governmental authority or is otherwise required to return to the Issuer, any Restricted Obligor or any custodian, trustee, liquidator
or other similar official acting in relation to the Issuer or such Restricted Obligor, any amount paid by the Issuer or such Restricted
Obligor to the Trustee or such Holder, the Notes and this Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect. Each Restricted Obligor further agrees (to the fullest extent permitted by law) that, as between it, on the one hand,
and the Holders of the Notes and the Trustee, on the other, (a) subject to this Article Twelve, the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article Five of this Indenture, for the purposes of this Guarantee, notwithstanding
any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (b) in
the event of any acceleration of such obligations as provided in such Article Five, such obligations (whether or not due and payable)
shall forthwith become due and payable by the Restricted Obligors for the purpose of this Guarantee.
Section 12.02. Limitation
on Liability.
Each Restricted Obligor, and
by its acceptance of Notes, each Holder of the Notes, hereby confirms that it is the intention of all such parties that the Guarantee
of such Restricted Obligor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar Federal or state law to the extent applicable to any Guarantee. To effectuate
the foregoing intention, the Trustee, the Holders of the Notes and the Restricted Obligors hereby irrevocably agree that the obligations
of each Restricted Obligor under its Guarantee and this Indenture will be limited to the maximum amount as will, after giving effect to
all other contingent and fixed liabilities of such Restricted Obligor that are relevant under such laws, and after giving effect to any
collections from, rights to receive contribution from or payments made by or on behalf of any other Restricted Obligor in respect of the
obligations of such other Restricted Obligor under its Guarantee and this Indenture, result in the obligations of such Restricted Obligor
under its Guarantee and this Indenture not constituting a fraudulent conveyance or fraudulent transfer under such laws.
Notwithstanding anything to
the contrary in this Indenture, the aggregate amount of Note Obligations guaranteed by any Restricted Obligor under this Indenture shall
be capped at, and shall not exceed, the maximum amount permitted to be guaranteed by such Restricted Obligor under the terms of any applicable
Secured Debt outstanding as of the Issue Date.
Each Restricted Obligor that
makes a payment under its Guarantee is entitled to a contribution from each other Restricted Obligor in a pro rata amount based on the
adjusted net assets of each Restricted Obligor, so long as the exercise of such right does not impair the rights of the Holders of the
Notes under this Guarantee.
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Section 12.03. Execution
and Delivery of Guarantee.
To evidence its Guarantee
set forth in Section 12.01 of this Indenture, each Restricted Obligor hereby agrees that this Indenture or a supplemental indenture
substantially in the form of Exhibit C attached hereto entered into by such Restricted Obligor, as the case may be, shall
be executed on behalf of such Restricted Obligor by an officer or other authorized signatory of such Restricted Obligor.
Each Restricted Obligor hereby
agrees that its Guarantee set forth in Section 12.01 of this Indenture shall remain in full force and effect notwithstanding the
absence of the endorsement of any notation of such Guarantee on the Notes.
If an officer or other authorized
signatory of any Restricted Obligor whose signature is on this Indenture or a supplemental indenture entered into by such Restricted Obligor,
as the case may be, no longer holds that office or is no longer such an authorized signatory at the time the Trustee authenticates any
Note, the Guarantee of such Restricted Obligor shall be valid nevertheless with respect to such Note.
The delivery of any Note by
the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Guarantee set forth in this Indenture on
behalf of the Restricted Obligors.
Section 12.04. Release
of a Restricted Obligor.
The Guarantee of a Restricted
Obligor will automatically terminate and be released, all other obligations of such Restricted Obligor under this Indenture will automatically
terminate and such Restricted Obligor will be automatically released from its obligations under its Guarantee and its other obligations
under this Indenture:
(a) in
the event of a sale or other disposition of all or substantially all of the properties or assets of such Restricted Obligor (including
by way of merger or consolidation) to a Person that is not (either before or after giving effect to such transaction) the Issuer or a
Subsidiary, if the sale or other disposition does not violate the provisions of Article Eight of this Indenture;
(b) in
the event of a sale or other disposition (including through merger or consolidation) of all of the Capital Stock of such Restricted Obligor
to a Person that is not (either before or after giving effect to such transaction) the Issuer or a Subsidiary and such Restricted Obligor
ceases to be a Subsidiary as a result of the sale or other disposition, if the sale or other disposition does not violate the provisions
of Section 10.11 of this Indenture;
(c) upon
the satisfaction and discharge, Defeasance or Covenant Defeasance of the Notes in accordance with Article Four or Article Thirteen
of this Indenture;
(d) upon
the liquidation or dissolution of such Restricted Obligor, provided (i) no default under this Indenture or Event of Default
has occurred that is continuing; and (ii) any material assets owned by such Restricted Obligor are transferred to the Issuer or another
Restricted Obligor and, to the extent such assets constituted Collateral, are or will be pledged under the Security Documents;
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(e) [Reserved];
(f) upon
the sale, transfer or other disposition of all of the Collateral that are owned directly or indirectly by such Guarantor pursuant to or
in compliance with the terms of this Indenture; provided that such Restricted Obligor has no other assets or property.
At the request of the Issuer,
and upon delivery to the Trustee of an Officer’s Certificate and an Opinion of Counsel each stating that all conditions provided
for in this Indenture to the release of a Restricted Obligor from its Guarantee have been complied with (provided that the legal counsel
delivering such Opinion of Counsel may rely as to matters of fact on one or more Officer’s Certificates of the Issuer), the Trustee
shall execute and deliver any appropriate instruments evidencing such release (it being understood that the failure to obtain any such
instrument shall not impair any release pursuant to this Section 12.04).
Section 12.05. Benefits
Acknowledged.
Each Restricted Obligor acknowledges
that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that the guarantee
and waivers made by it pursuant to its Guarantee are knowingly made in contemplation of such benefits.
Section 12.06. Waiver
of Subrogation.
Until all of the Notes are
discharged and paid in full, each Restricted Obligor hereby irrevocably waives and agrees not to exercise any claim or other rights which
it may now or hereafter acquire against the Issuer that arise from the existence, payment, performance or enforcement of the Issuer’s
obligations under the Notes or this Indenture and such Restricted Obligor’s obligations under this Guarantee and this Indenture,
in any such instance including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, indemnification,
and any right to participate in any claim or remedy of the Holders of the Notes against the Issuer, whether or not such claim, remedy
or right arises in equity, or under contract, statute or common law, including, without limitation, the right to take or receive from
the Issuer, directly or indirectly, in cash or other assets or by set off or in any other manner, payment or security on account of such
claim or other rights. If any amount shall be paid to any Restricted Obligor in violation of the preceding sentence and any amounts owing
to the Trustee or the Holders of the Notes under the Notes or this Indenture, shall not have been paid in full, such amount shall have
been deemed to have been paid to such Restricted Obligor for the benefit of, and held in trust for the benefit of, the Trustee or the
Holders of the Notes and shall forthwith be paid to the Trustee for the benefit of itself or such Holders to be credited and applied to
the obligations in favor of the Trustee or such Holders, as the case may be, whether matured or unmatured, in accordance with the terms
of this Indenture.
Section 12.07. Same
Currency; No Set Off.
Each payment to be made by
a Restricted Obligor under its Guarantee shall be payable in the currency in which corresponding payment obligations of the Issuer under
the Notes or this Indenture are denominated, and shall be made without set off, counterclaim, reduction or diminution of any kind or nature.
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Section 12.08. Guarantee
Obligations Continuing.
The obligations of each Restricted
Obligor under this Indenture shall be continuing and shall remain in full force and effect until all such obligations have been paid and
satisfied in full. Each Restricted Obligor agrees with the Trustee that, to the fullest extent permitted by applicable law, it will from
time to time deliver to the Trustee suitable acknowledgments of this continued liability in such form as the Trustee on advice of counsel
may reasonably request and as will prevent any action brought against it in respect of any default under this Indenture being barred by
any statute of limitations now or hereafter in force and, in the event of the failure of a Guarantor so to do, it hereby irrevocably appoints
the Trustee the attorney and agent of such Restricted Obligor to make, execute and deliver such written acknowledgment or acknowledgments
or other instruments as may from time to time become necessary or reasonably advisable, in the judgment of the Trustee on the advice of
counsel, to fully maintain and keep in force the liability of such Restricted Obligor under this Indenture.
Section 12.09. No
Merger or Waiver; Cumulative Remedies.
To the fullest extent permitted
by applicable law, no Guarantee shall operate by way of merger of any of the obligations of a Restricted Obligor under any other agreement.
To the fullest extent permitted by applicable law, no failure to exercise and no delay in exercising, on the part of the Trustee or the
Holders of the Notes, any right, remedy, power or privilege under this Indenture or the Notes, shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or privilege hereunder or under this Indenture or the Notes preclude
any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. To the fullest extent permitted
by applicable law, the rights, remedies, powers and privileges in this Indenture, the Notes and any other document or instrument between
a Restricted Obligor and/or the Issuer and the Trustee and the Holders of the Notes are cumulative and not exclusive of any rights, remedies,
powers and privilege provided by law.
Section 12.10. Dealing
with the Issuer and Others.
The Holders and the Trustee,
without releasing, discharging, limiting or otherwise affecting in whole or in part the obligations and liabilities of any Restricted
Obligor under this Indenture and without the consent of or notice to any Restricted Obligor, may to the fullest extent permitted by applicable
law and as otherwise subject to the terms of this Indenture:
(a) grant
time, renewals, extensions, compromises, concessions, waivers, releases, discharges and other indulgences to the Issuer or any other Person;
(b) take
or abstain from taking security or collateral from the Issuer or the Restricted Obligors or from perfecting security or collateral of
the Issuer or the Restricted Obligors;
(c) release,
discharge, compromise, realize, enforce or otherwise deal with or do any act or thing in respect of (with or without consideration) any
and all collateral, mortgages or other security given by the Issuer, the Restricted Obligors or any third party with respect to the obligations
or matters contemplated by this Indenture or the Notes;
(d) accept
compromises or arrangements from the Issuer;
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(e) apply
all monies at any time received from the Issuer or from any security upon such part of the obligations of the Restricted Obligors under
Section 12.01 of this Indenture as the Holders may see fit or change any such application in whole or in part from time to time as
the Holders may see fit; and
(f) otherwise
deal with, or waive or modify their right to deal with, the Issuer and all other Persons and any security as the Holders or the Trustee
may see fit.
Section 12.11. Enforcement;
Expenses.
If
any Restricted Obligor defaults in performing any of its obligations under this Indenture, the Trustee may proceed in its name as trustee
under this Indenture in the enforcement of such obligations against such Restricted Obligor by any remedy provided by law, whether by
legal proceedings or otherwise. Each of the Restricted Obligors, jointly and severally, agree to pay all costs, fees and expenses (including,
without limitation, reasonable fees and expenses of legal counsel) incurred by the Trustee, any Holder of the Notes, or the agent, advisor
or counsel of the Trustee or any Holder, in enforcing the performance by any Restricted Obligor of its obligations under this Indenture.
Section 12.12. Limited
Parent Guarantee by Limited Parent Guarantor.
(a) Subject
to this Section 12.12, the Limited Parent Guarantor hereby irrevocably and unconditionally guarantees, on a senior unsecured basis,
to each Holder of Notes authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of
the validity and enforceability of this Indenture, the Notes or the obligations of the Issuer under this Indenture or the Notes, that
(the “Limited Parent Guarantee”):
(i) (1) the
payment by the Issuer of an amount in respect of the Notes equal to (x) $50.0 million minus (y) 100% of all amounts
paid in any Guaranteed Mandatory Amortization minus (z) 100% of the aggregate principal amount of Notes optionally redeemed
which results in a reduction in the amount of Guaranteed Mandatory Amortization payments pursuant to Section 11.03(f) (the “Limited
Guaranteed Amount”), which amount shall be promptly paid in full when due, whether in accordance with Section 11.03, upon
redemption or repurchase, by acceleration or otherwise, and all obligations of the Issuer to Holders of the Notes or the Trustee under
this Indenture or the Notes in an amount not to exceed the Limited Guaranteed Amount shall be promptly paid in full or promptly performed,
as the case may be, all in accordance with the terms of this Indenture and the Notes; and (2) in case of any extension of time of
payment or renewal of the Limited Guaranteed Amount or any portion thereof, that same shall be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether in accordance with Section 11.03, upon redemption or repurchase,
by acceleration or otherwise.
(ii) to
the extent (1) any Restricted Payment (other than a Permitted Payment) is made from a Restricted Obligor to the Limited Parent Guarantor
or any of its Affiliates (other than a Restricted Obligor) or (2) any amounts are distributed or otherwise transferred from a Restricted
Obligor to or for the benefit of the Limited Parent Guarantor or any of its Affiliates (other than a Restricted Obligor) in contravention
of this Indenture (any such transaction, payment or transfer, a “Prohibited Payment”), the Limited Parent Guarantor
shall promptly contribute or transfer an equivalent amount of such Prohibited Payment to a Restricted Obligor.
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Failing payment when due of
any amount so guaranteed or failing performance of any other obligation so guaranteed for whatever reason, the Limited Parent Guarantor
shall be obligated to pay, or to perform or cause the performance of, the same immediately. The Limited Parent Guarantor agrees that this
is a guarantee of payment and not a guarantee of collection.
(b) The
Limited Parent Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity
or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of
the Notes with respect to any provisions of this Indenture or the Notes, the release of any Restricted Obligor, the recovery of any judgment
against any Restricted Obligor, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a Restricted Obligor. The Limited Parent Guarantor hereby waives, to the extent permitted by applicable law, diligence,
presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to require
a proceeding first against any Restricted Obligor, protest, notice and all demands whatsoever and covenants that this Limited Parent Guarantee
shall not be discharged except (1) in the case of clause (a)(i) above, the payment in full of the Limited Guaranteed Amount,
and (2) in the case of clause (a)(ii) above, by complete performance of the obligations contained in the Notes and this Indenture.
(c) Unless
and until released in accordance with clause (f) below, the Limited Parent Guarantee shall remain in full force and effect and continue
to be effective should any petition be filed by or against the Issuer for liquidation or reorganization, should the Issuer become insolvent
or make an assignment for the benefit of creditors or should a custodian, trustee, liquidator or other similar official be appointed for
all or any part of the Issuer’s assets. If any Holder of the Notes or the Trustee is required by any court or governmental authority
or is otherwise required to return to the Limited Parent Guarantor or any custodian, trustee, liquidator or other similar official acting
in relation to the Limited Parent Guarantor any amount paid by the Limited Parent Guarantor to the Trustee or such Holder, the Notes and
this Limited Parent Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. The Limited Parent
Guarantor further agrees (to the fullest extent permitted by law) that, as between it, on the one hand, and the Holders of the Notes and
the Trustee, on the other, (a) subject to this Section 12.12, the maturity of the obligations guaranteed hereby may be accelerated
as provided in Article Five of this Indenture, for the purposes of this Limited Parent Guarantee, notwithstanding any stay, injunction
or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (b) in the event of any acceleration
of such obligations as provided in such Article Five, such obligations (whether or not due and payable) shall forthwith become due
and payable by the Limited Parent Guarantor for the purpose of this Limited Parent Guarantee.
(d) To
evidence its Guarantee set forth in clause (a) above, the Limited Parent Guarantor hereby agrees that this Indenture shall be executed
on behalf of the Limited Parent Guarantor by an officer or other authorized signatory of the Limited Parent Guarantor.
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(e) The
Limited Parent Guarantor hereby agrees that its Limited Parent Guarantee set forth in this Section 12.12 shall remain in full force
and effect notwithstanding the absence of the endorsement of any notation of such Limited Parent Guarantee on the Notes. If an officer
or other authorized signatory of the Limited Parent Guarantor whose signature is on this Indenture no longer holds that office or is no
longer such an authorized signatory at the time the Trustee authenticates any Note, the Limited Parent Guarantee shall be valid nevertheless
with respect to such Note. The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery
of the Limited Parent Guarantee set forth in this Indenture on behalf of the Limited Parent Guarantor.
(f) The
Limited Parent Guarantee of the Limited Parent Guarantor will automatically terminate and be released, all other obligations of the then-existing
Limited Parent Guarantor under this Indenture will automatically terminate and the Limited Parent Guarantor will be automatically released
from its obligations under its Limited Parent Guarantee and its other obligations under this Indenture:
(i) in
the event of a sale or other disposition of all or substantially all of the properties or assets of the then-existing Limited Parent Guarantor
(including by way of merger or consolidation) to a Person that is not (either before or after giving effect to such transaction) the Limited
Parent Guarantor or a Subsidiary, if the sale or other disposition does not violate the provisions of Article Eight of this Indenture
and a new party has executed a Limited Parent Guarantee in accordance with Article Eight of this Indenture;
(ii) upon
the satisfaction and discharge, Defeasance or Covenant Defeasance of the Notes in accordance with Article Four or Article Thirteen
of this Indenture; or
(iii) solely
in the case of its obligations under clause (a)(i) above of the Limited Parent Guarantee, upon the payment in full of the Guaranteed
Mandatory Amortization on the Notes, at a price equal to 100% of the principal amount thereof, plus accrued and unpaid interest
to, but not including, the applicable redemption date, on the Notes to be so redeemed in such Mandatory Amortization.
Notwithstanding anything to
the contrary herein, the aggregate liability of the Limited Parent Guarantor under clause (a)(i) of the Limited Parent Guarantee
shall not exceed an amount equal to the Limited Guaranteed Amount.
At the request of the Limited
Parent Guarantor, and upon delivery to the Trustee of an Officer’s Certificate and an Opinion of Counsel each stating that all conditions
provided for in this Indenture to the release of the Limited Parent Guarantor from its Limited Parent Guarantee have been complied with
(provided that the legal counsel delivering such Opinion of Counsel may rely as to matters of fact on one or more Officer’s Certificates
of the Issuer), the Trustee shall execute and deliver any appropriate instruments evidencing such release (it being understood that the
failure to obtain any such instrument shall not impair any release pursuant to this clause (f)).
(g) The
Limited Parent Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by
this Indenture and that the guarantee and waivers made by it pursuant to its Limited Parent Guarantee are knowingly made in contemplation
of such benefits.
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(h) Until
all of the Notes are discharged and paid in full, the Limited Parent Guarantor hereby irrevocably waives and agrees not to exercise any
claim or other rights which it may now or hereafter acquire against any Restricted Obligor that arise from the existence, payment, performance
or enforcement of the Issuer’s obligations under the Notes or this Indenture and the Limited Parent Guarantor’s obligations
under this Limited Parent Guarantee and this Indenture, in any such instance including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution, indemnification, and any right to participate in any claim or remedy of the Holders of the Notes
against any Restricted Obligor, whether or not such claim, remedy or right arises in equity, or under contract, statute or common law,
including, without limitation, the right to take or receive from such Restricted Obligor, directly or indirectly, in cash or other assets
or by set off or in any other manner, payment or security on account of such claim or other rights. If any amount shall be paid to the
Limited Parent Guarantor in violation of the preceding sentence and any amounts owing to the Trustee or the Holders of the Notes under
the Notes or this Indenture, shall not have been paid in full, such amount shall have been deemed to have been paid to the Limited Parent
Guarantor for the benefit of, and held in trust for the benefit of, the Trustee or the Holders of the Notes and shall forthwith be paid
to the Trustee for the benefit of itself or such Holders to be credited and applied to the obligations in favor of the Trustee or such
Holders, as the case may be, whether matured or unmatured, in accordance with the terms of this Indenture.
(i) Each
payment to be made by the Limited Parent Guarantor under its Limited Parent Guarantee shall be payable in the currency in which corresponding
payment obligations of the Issuer under the Notes or this Indenture are denominated, and shall be made without set off, counterclaim,
reduction or diminution of any kind or nature.
(j) The
obligations of the Limited Parent Guarantor under this Indenture shall be continuing and
shall remain in full force and effect until all such obligations have been paid and satisfied in full. The Limited Parent Guarantor
agrees with the Trustee that, to the fullest extent permitted by applicable law, it will from time
to time deliver to the Trustee suitable acknowledgments of this continued liability in such form as the Trustee on advice of counsel may
reasonably request and will prevent any action brought against it in respect of any default under this Indenture being barred by any statute
of limitations now or hereafter in force and, in the event of the failure of the Limited Parent Guarantor so
to do, it hereby irrevocably appoints the Trustee the attorney and agent of the Limited Parent Guarantor to
make, execute and deliver such written acknowledgment or acknowledgments or other instruments as may from time to time become necessary
or reasonably advisable, in the judgment of the Trustee on the advice of counsel, to fully maintain and keep in force the liability of
the Limited Parent Guarantor under this Indenture.
(k) To
the fullest extent permitted by applicable law, the Limited Parent Guarantee shall not operate by way of merger of any of the obligations
of the Limited Parent Guarantor under any other agreement. To the fullest extent permitted
by applicable law, no failure to exercise and no delay in exercising, on the part of the Trustee or the Holders of the Notes, any right,
remedy, power or privilege under this Indenture or the Notes, shall operate as a waiver thereof; nor shall any single or partial exercise
of any right, remedy, power or privilege hereunder or under this Indenture or the Notes preclude any other or further exercise thereof
or the exercise of any other right, remedy, power or privilege. To the fullest extent permitted by applicable law, the rights, remedies,
powers and privileges in this Indenture, the Notes and any other document or instrument between the Limited Parent Guarantor and/or
the Issuer and the Trustee and the Holders of the Notes are cumulative and not exclusive of any rights, remedies, powers and privilege
provided by law.
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(l) The
Holders and the Trustee, without releasing, discharging, limiting or otherwise affecting in whole or in part the obligations and liabilities
of the Limited Parent Guarantor under this Indenture and without the consent of or notice
to the Limited Parent Guarantor, may to the fullest extent permitted by applicable law
and as otherwise subject to the terms of this Indenture:
(i) grant
time, renewals, extensions, compromises, concessions, waivers, releases, discharges and other indulgences to the Issuer or any other Person;
(ii) accept
compromises or arrangements from the Issuer;
(iii) apply
all monies at any time received from the Issuer or from any security upon such part of the obligations of the Restricted Obligors under
Section 12.01 of this Indenture as the Holders may see fit or change any such application in whole or in part from time to time as
the Holders may see fit; and
(iv) otherwise
deal with, or waive or modify their right to deal with, the Issuer and all other Persons and any security as the Holders or the Trustee
may see fit.
(m) If
the Limited Parent Guarantor defaults in performing any of its obligations under its Limited Parent Guarantee, the Trustee may proceed
in its name as trustee under this Indenture in the enforcement of such Limited Parent Guarantee against the Limited Parent Guarantor by
any remedy provided by law, whether by legal proceedings or otherwise. The Limited Parent Guarantor agrees to pay all costs, fees and
expenses (including, without limitation, reasonable fees and expenses of legal counsel) incurred by the Trustee, any Holder of the Notes,
or the agent, advisor or counsel of the Trustee or any Holder, in enforcing the performance by the Limited Parent Guarantor of its obligations
under its Limited Parent Guarantee.
ARTICLE Thirteen
Defeasance
and Covenant Defeasance
Section 13.01. Issuer’s
Option to Effect Defeasance or Covenant Defeasance
The Issuer may, at its option,
at any time, elect to have either Section 13.02 or Section 13.03 applied to the Notes upon compliance with the conditions set
forth below in this Article.
Section 13.02. Defeasance
and Discharge
Upon the Issuer’s exercise
under Section 13.01 of a defeasance of the Notes as contemplated by this Section 13.02, the Issuer shall be deemed to have been
discharged from its obligations with respect to such Outstanding Notes on the date the conditions set forth in Section 13.04 are
satisfied (hereinafter “Defeasance”). For this purpose, such Defeasance means that the Issuer shall be deemed to have
paid and discharged the entire indebtedness represented by the Notes and to have satisfied all its other obligations under such Notes
and this Indenture insofar as such Notes are concerned (and the Trustee, at the expense of the Issuer, shall execute proper instruments
in the forms provided to it by the Issuer acknowledging the same), except for the following, which shall survive until otherwise terminated
or discharged hereunder: (a) the rights of Holders of such Notes to receive, solely from the trust fund described in Section 13.04
and as more fully set forth in such Section, payments in respect of the principal of and any premium and interest, if any, on such Notes
when such payments are due, (b) the Issuer’s obligations with respect to such Notes under Sections 3.04, 3.05, 3.06, 10.02
and 10.03, (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (d) this Article. Subject to compliance
with this Article, the Issuer may exercise its option under this Section 13.02 notwithstanding the prior exercise of its option under
Section 13.03.
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Section 13.03. Covenant
Defeasance
Upon the Issuer’s exercise
under Section 13.01 of a defeasance of the Notes as contemplated by this Section 13.03, (a) the Issuer shall be released
from its obligations with respect to such Notes under Section 8.01, Section 8.02, Section 10.05, Section 10.07, Section 10.09,
Section 10.10, Section 10.11, Section 10.12, Section 10.13, Section 10.14, Section 10.15, Section 11.03
and Section 11.09 and any covenants provided pursuant to clause (b) of Section 9.01 for the benefit of the Holders of such
Notes and (b) the occurrence of any event specified in clause (d) of Section 5.01 (with respect to any of Section 8.01,
Section 8.02, Section 10.05, Section 10.07, Section 10.09, Section 10.10, Section 10.11, Section 10.12,
Section 10.13, Section 10.14 and Section 10.15, Section 11.03, Section 11.09 or clause (b) of Section 9.01)
shall not be deemed to be an Event of Default on and after the date the conditions set forth in Section 13.04 are satisfied (hereinafter
“Covenant Defeasance”). For this purpose, such Covenant Defeasance means that, with respect to such Notes, the Issuer
may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such Section or
Article, whether directly or indirectly by reason of any reference elsewhere herein to any such Section or Article or by reason
of any reference in any such Section or Article to any other provision herein or in any other document, but the remainder of
this Indenture and such Notes shall be unaffected thereby.
Section 13.04. Conditions
to Defeasance or Covenant Defeasance
The following shall be the
conditions to the application of either a Defeasance or Covenant Defeasance, as applicable, to the Notes, as the case may be:
(a) The
Issuer shall irrevocably have deposited or caused to be deposited with the Trustee (or a successor trustee which satisfies the requirements
contemplated by Section 6.09 and agrees to comply with the provisions of this Article applicable to it) as trust funds in trust
for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders
of the Notes, (i) money in an amount, or (ii) Government Obligations which through the scheduled payment of principal and interest
in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an
amount, or (iii) a combination thereof, in each case sufficient to pay and discharge, and which shall be applied by the Trustee (or
any such other qualifying trustee) to pay and discharge, the principal of (and premium, if any) and interest on, such Notes on the respective
Stated Maturities or the applicable Redemption Date, in accordance with the terms of this Indenture and the Notes; provided
that with respect to a Redemption Date, if all or a portion of the Redemption Price is based on or consists of a redemption premium that
is required to be calculated based on a treasury rate or other floating or adjustable rate a specified number of days prior to such Redemption
Date, the amount deposited shall be sufficient for purposes of the immediately preceding sentence to the extent that the Redemption Price
so deposited is calculated using an amount equal to such premium computed using such treasury rate or other floating or adjustable rate
as of such specified number of days preceding the date of such deposit. As used herein, “Government Obligations” means,
with respect to the Notes, securities that are (x) direct obligations of the government that issued the currency in which such Note
is denominated (or, if such Note is denominated in euros, the direct obligations of any government that is a member of the European Monetary
Union) for the payment of which such government’s full faith and credit is pledged or (y) obligations of a Person controlled
or supervised by and acting as an agency or instrumentality of such government the payment of which is unconditionally guaranteed as a
full faith and credit obligation by such government, which, in either case, are not callable or redeemable at the option of the issuer
thereof and shall also include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as
custodian with respect to any Government Obligation where the relevant government is the United States of America or a specific payment
of principal of or interest on any such Government Obligation held by such custodian for the account of the holder of such depositary
receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable
to the holder of such depositary receipt from any amount received by the custodian in respect of such Government Obligation or the specific
payment of principal of or interest on such Government Obligation evidenced by such depositary receipt.
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(b) In
the event of an election to have a Defeasance apply to the Notes, the Issuer shall have delivered to the Trustee an Opinion of Counsel
stating that (i) the Issuer has received from, or there has been published by, the Internal Revenue Service a ruling or (ii) since
the date of this Indenture, there has been a change in the applicable Federal income tax law, in either case (i) or (ii) to
the effect that the Holders of the Outstanding Notes will not recognize gain or loss for Federal income tax purposes as a result of such
deposit, Defeasance and discharge and will be subject to Federal income tax on the same amount, in the same manner and at the same times
as would be the case if such deposit, Defeasance and discharge had not occurred.
(c) In
the event of an election to have a Covenant Defeasance apply to the Notes, the Issuer shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of the Outstanding Notes will not recognize gain or loss for Federal income tax purposes as a result
of such deposit and Covenant Defeasance and will be subject to Federal income tax on the same amount, in the same manner and at the same
times as would be the case if such deposit and Covenant Defeasance had not occurred.
(d) No
Event of Default with respect to the Notes shall have occurred and be continuing at the time of such deposit (other than an Event of Default
resulting from transactions occurring contemporaneously with the borrowing of funds, or the borrowing of funds, to be applied to such
deposit or other indebtedness which is being repaid, repurchased, redeemed, defeased (whether legal or covenant defeasance) or discharged,
and, in each case, the granting of liens in connection therewith).
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(e) Such
Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement
or instrument (other than this Indenture or any agreement or instrument governing any other indebtedness which is being repaid, repurchased,
redeemed, defeased (whether legal or covenant defeasance) or discharged) to which the Issuer is a party or by which the Issuer is bound.
(f) The
Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the Defeasance or the Covenant Defeasance have been satisfied.
The Defeasance or Covenant
Defeasance will be effective on the day on which all of the applicable conditions above have been satisfied.
Upon satisfaction of such
conditions, the Trustee shall, upon written request, execute proper instrument(s) acknowledging such Defeasance or Covenant Defeasance,
as the case may be.
Section 13.05. Deposited
Money and Government Obligations to Be Held in Trust; Miscellaneous Provisions
Subject to the provisions
of the last paragraph of Section 10.03, all money and Government Obligations (including the proceeds thereof) deposited with the
Trustee or other qualifying trustee (solely for purposes of this Section and Section 13.06, the Trustee and any such other trustee
are referred to collectively, for purposes of this Section 13.05, as the “Trustee”) pursuant to Section 13.04
in respect of any Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture,
to the payment, either directly or through any such Paying Agent (including the Issuer acting as its own Paying Agent) as the Trustee
may determine, to the Holders of such Notes, of all sums due and to become due thereon in respect of principal and premium (if any) and
interest, but such money need not be segregated from other funds except to the extent required by law.
The Issuer shall pay and indemnify
the Trustee against any tax, fee or other charge imposed on or assessed against the Government Obligations deposited pursuant to Section 13.04
or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account
of the Holders of Outstanding Notes.
Anything in this Article Thirteen
to the contrary notwithstanding, the Trustee shall deliver or pay to the Issuer from time to time upon Company Request any money or Government
Obligations held by it as provided in Section 13.04 hereof which, in the opinion or based on a report or certificate of a nationally
recognized firm of independent public accountants, investment bank or appraisal firm expressed in a written certification thereof delivered
to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect an equivalent Defeasance or
Covenant Defeasance, as the case may be.
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Section 13.06. Reinstatement
If
the Trustee or the Paying Agent is unable to apply any money in accordance with Section 13.02 or 13.03 by reason of any order or
judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Issuer’s
obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to this Article Thirteen
until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 13.02 or 13.03;
provided, however, that if the Issuer makes any payment of principal of (and premium, if any), and any interest on,
any Note following the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of the Notes to receive
such payment from the money held by the Trustee or the Paying Agent.
ARTICLE Fourteen
COLLATERAL
AND SECURITY
Section 14.01. The
Collateral Agent.
(a) By
accepting a Note, each Holder will be deemed to have irrevocably appointed the Collateral Agent to act as collateral agent under the applicable
Security Documents and any Intercreditor Agreement and irrevocably authorized the Collateral Agent to (i) perform the duties and
exercise the rights and powers that are specifically given to it under the Security Documents, any Intercreditor Agreement and any other
documents to which it is a party, together with any other incidental rights and powers, and (ii) execute each document to be executed
by the Collateral Agent on its behalf, any Security Document, any Intercreditor Agreement and all other instruments relating to any such
Security Document or Intercreditor Agreement. The Holders may not, individually or collectively, take any direct action to enforce the
Security Documents or Intercreditor Agreements. The Collateral Agent will have no duties or obligations with respect to the Collateral
except those expressly set forth hereunder or in the applicable Security Documents and Intercreditor Agreements and no implied covenants
or obligations shall be read into such documents against the Collateral Agent. The Collateral Agent will not be liable for any action
taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction
in a final and non-appealable decision). The Collateral Agent will be entitled to rely upon, and will not incur any liability for relying
upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it in good faith to be genuine
and to have been signed or sent by the proper person. The Collateral Agent may consult with legal counsel (who may be counsel for the
Issuer), independent accountants and other experts selected by it, and will not be liable for any action taken or not taken by it in accordance
with the advice of any such counsel, accountants or experts. Without limiting the generality of the foregoing, the Collateral Agent:
(i) shall
not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall
not have any duty to take any discretionary action or exercise any discretionary powers and shall not be required to take any action that,
in its opinion or the opinion of its counsel, may expose the Collateral Agent to liability or that is contrary to any Security Document, Intercreditor
Agreement or applicable law;
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(iii) shall
not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any Affiliate
of the Issuer that is communicated to or obtained by the Person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall
not be liable for any action taken or not taken by it (i) in the absence of its own gross negligence or willful misconduct (as determined
by a court of competent jurisdiction in a final and non-appealable decision) or (ii) in reliance on an Officer’s Certificate
of the Issuer stating that such action is permitted by the terms of this Indenture. The Collateral Agent shall be deemed not to have knowledge
of any Event of Default hereunder unless and until written notice describing such Event of Default is received by such Collateral Agent
from the Trustee or the Issuer; and
(v) shall
not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in
connection with any Security Document or Intercreditor Agreement, (ii) the contents of any certificate, report or other document
delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth herein or therein or the occurrence of any Event of Default, (iv) the validity,
enforceability, effectiveness or genuineness of any Security Document or Intercreditor Agreement or any other agreement, instrument or
document, or the creation, perfection or priority of any Lien purported to be created by any Security Document or Intercreditor Agreement,
(v) the existence, value or the sufficiency of any Collateral for any Notes Obligations, or (vi) the satisfaction of any condition
set forth in any operative agreements governing Notes Obligations, any Security Document or any Intercreditor Agreement, other than to
confirm receipt of items expressly required to be delivered to such Collateral Agent.
The use of the term “agent”
herein with reference to a Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising
under agency doctrine of any applicable law other than as a “representative” as such term is used in Section 9-102(a)(72)(E) of
the UCC.
Notwithstanding anything else
to the contrary herein, whenever reference is made in this Indenture or any Security Document or any Intercreditor Agreement to any discretionary
action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction
given or action to be undertaken or to be (or not to be) suffered or omitted by the Collateral Agent or to any election, decision, opinion,
acceptance, use of judgment, expression of satisfaction, reasonable satisfaction or other exercise of discretion, rights or remedies to
be made (or not to be made) by the Collateral Agent, it is understood that in all cases the Collateral Agent shall be fully justified
in failing or refusing to take any such action under this Indenture or and Security Document or any Intercreditor Agreement if it shall
not have received such written instruction, advice or concurrence of the Trustee, acting on the direction of the Holders of a majority
in principal amount of the Notes, and, if requested, indemnity satisfactory to it. This provision is intended solely for the benefit of
the Collateral Agent and the Trustee and their respective successors and permitted assigns and is not intended to and will not entitle
the other parties hereto to any defense, claim or counterclaim, or confer any rights or benefits on any party hereto.
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BY ACCEPTING A NOTE EACH HOLDER
WILL BE DEEMED TO HAVE IRREVOCABLY AGREED TO THE FOREGOING PROVISIONS OF THIS SECTION 14.01(a) AND SHALL BE BOUND BY THOSE AGREEMENTS
TO THE FULLEST EXTENT PERMITTED BY LAW.
(b) The
Collateral Agent’s obligation to exercise any right granted to it shall be subject to receipt of such directions from the Trustee
(acting at the direction of the Holders of a majority of the aggregate principal amount of all the Notes then outstanding) as may be properly
given in accordance with this Indenture, the Security Documents and the Intercreditor Agreements. Except as directed by the Trustee (acting
at the direction of the Holders of a majority of the aggregate principal amount of all the Notes then outstanding) and subject to the
Collateral Agent’s receipt of indemnity satisfactory to it, the Collateral Agent shall not be obligated:
(i) to
act upon directions purported to be delivered to it by any other Person;
(ii) to
foreclose upon or otherwise enforce any Lien securing the Notes or any of the Guarantees; or
(iii) to
take any other action whatsoever with regard to any or all of (w) the Liens securing the Notes, (x) the Guarantees, (y) the
Security Documents or (z) the Intercreditor Agreements, or with regard to the Collateral.
(c) The
Collateral Agent may perform any and all of its duties and exercise its rights and powers by or through, and is authorized and empowered
to appoint, one or more co-agents or sub-agents or attorneys-in-fact as it deems necessary or appropriate in connection herewith and shall
not be liable for the negligence or misconduct of any such agents or attorneys-in-fact selected without gross negligence or willful misconduct.
(d) Subject
to the appointment and acceptance of a successor Collateral Agent as provided below, the Collateral Agent may resign at any time by notifying
the Issuer and the Trustee. Upon any such resignation, the Issuer shall have the right to appoint a successor; provided that, during
the existence and continuation of an Event of Default pursuant to Section 5.01(a), (b), (e) or (f) hereof, the Holders
of a majority in principal amount of the Notes shall have the right to appoint a successor. If no successor shall have been so appointed
by the Issuer (or, if applicable, the Holders of a majority in principal amount of the Notes) and shall have accepted such appointment
within 30 days after the retiring Collateral Agent gives notice of its resignation, then such retiring Collateral Agent may, on behalf
of the Holders and the Trustee, petition at the expense of the Issuer a court of competent jurisdiction to appoint a successor Collateral
Agent. Upon the acceptance of its appointment as a Collateral Agent hereunder by a successor, such successor shall succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be
discharged from its duties and obligations hereunder. The fees payable by the Issuer to a successor Collateral Agent shall be the same
as those payable to its predecessor unless otherwise agreed between the Issuer and such successor. After a Collateral Agent’s resignation
hereunder, the provisions of this Article Fourteen and Article Six hereof shall continue in effect for the benefit of such retiring
Collateral Agent, its sub-agents and their respective Affiliates in respect of any actions taken or omitted to be taken by any of them
while acting as Collateral Agent.
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(e) The
benefits, protections and indemnities of the Trustee in Sections 6.03 and 6.07 hereof shall apply mutatis mutandis to the Collateral
Agent in its capacity as such, including, without limitation, the rights to receive and rely on Officer’s Certificates and Opinions
of Counsel, reimbursement and indemnification; provided that the applicable standard of care of the Collateral Agent with respect
to Sections 6.03 and 6.07 hereof shall be gross negligence and willful misconduct.
(f) Each
Holder, by its acceptance of any Notes, is deemed to have consented and agreed to the terms of each Security Document and Intercreditor
Agreement, as originally in effect and as amended, supplemented or replaced from time to time in accordance with its terms or the terms
of this Indenture; and authorizes and empowers the Trustee to bind the Holders as set forth in the applicable Security Documents and Intercreditor
Agreements, if any, to which they are a party and to perform its obligations and exercise its rights and powers thereunder. Notwithstanding
the foregoing, no such consent or deemed consent shall be deemed or construed to represent an amendment or waiver, in whole or in part,
of any provision of this Indenture or the Notes.
(g) Neither
the Trustee nor the Collateral Agent shall be responsible for the existence, genuineness or value of any of the Collateral or for the
validity, perfection, priority or enforceability of the Liens in any of the Collateral, for the validity or sufficiency of the Collateral
or any agreement or assignment contained therein, for the validity of the title of the Issuer or any grantor to the Collateral, for insuring
the Collateral or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the
Collateral.
(h) Beyond
the exercise of reasonable care in the custody thereof, neither the Trustee nor the Collateral Agent shall have any duty as to any Collateral
in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights
against prior parties or any other rights pertaining thereto and neither the Trustee nor the Collateral Agent shall be responsible for
filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or
otherwise perfecting or maintaining the perfection of any security interest in the Collateral. Each of the Trustee and the Collateral
Agent shall be deemed to have exercised reasonable care in the custody of the Collateral in its possession if the Collateral is accorded
treatment substantially equal to that which it accords its own property and shall not be liable or responsible for any loss or diminution
in the value of any of the Collateral, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected
by the Trustee or the Collateral Agent without gross negligence or willful misconduct.
(i) Neither
the Trustee nor the Collateral Agent shall be responsible for the existence, genuineness or value of any of the Collateral or for the
validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason
of any action or omission to act on its part hereunder, for the validity or sufficiency of the Collateral or any agreement or assignment
contained therein, for the validity of the title of the Issuer to the Collateral, for insuring the Collateral or for the payment of taxes,
charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral. The Trustee and the Collateral
Agent shall have no duty to ascertain or inquire as to the performance or observance of any of the terms of this Indenture, the Security
Documents or the Intercreditor Agreements by the Limited Parent Guarantor or the Restricted Obligors.
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(j) Notwithstanding
any other provision hereof, neither the Collateral Agent nor the Trustee shall have any duties or obligations hereunder or under any Security
Document or Intercreditor Agreement except those expressly set forth herein or therein. Without limiting the generality of the foregoing,
in the event that the Collateral Agent or the Trustee is required to acquire title to an asset for any reason, or take any managerial
action of any kind in regard thereto, in order to carry out any obligation for the benefit of another, which in the Collateral Agent’s
or the Trustee’s sole discretion may cause it to be considered an “owner or operator” under the provisions of the Comprehensive
Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. §9601, et seq., or otherwise cause
it to incur liability under CERCLA or any other federal, state or local law, the Collateral Agent and the Trustee each reserve the right,
instead of taking such action, to either resign or arrange for the transfer of the title or control of the asset to a court-appointed
receiver. Neither the Collateral Agent nor the Trustee shall be liable to any person for any environmental claims or contribution actions
under any federal, state or local law, rule or regulation by reason of the Collateral Agent’s actions and conduct as authorized,
empowered and directed hereunder or relating to the discharge, release or threatened release of hazardous materials into the environment.
If at any time it is necessary or advisable for the Collateral to be possessed, owned, operated or managed by any person other than the
grantor, the Holders of a majority of the aggregate principal amount of all the Notes then outstanding shall direct the Collateral Agent
or Trustee, as applicable, to appoint an appropriately qualified person who they shall designate to possess, own, operate or manage, as
the case may be, the Collateral.
(k) For
the avoidance of doubt, the Trustee and the Collateral Agent shall act only within the United States, and shall not be subject to any
foreign law, be required to act in any jurisdiction located outside the United States or be required to execute any foreign law governed
document.
(l) Notwithstanding
anything to the contrary set forth herein, the Trustee and/or the Collateral Agent, as applicable, are hereby authorized and directed
to, and hereby agree to, whether on or after the Issue Date:
(i) enter
into and/or join the Security Documents to which it is contemplated to be a party (and any joinders, supplements or amendments thereto
contemplated hereby),
(ii) enter
into and/or join any Acceptable Junior Intercreditor Agreement or any Acceptable Subordination Agreement (and any joinders, supplements
or amendments thereto contemplated hereby),
(iii) make
any representations of the Holders set forth in the Security Documents and/or any Intercreditor Agreement,
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(iv) bind
the Holders on the terms as set forth in the Security Documents and/or any Intercreditor Agreement and
(v) perform
and observe its obligations under the Security Documents and/or any Intercreditor Agreement.
The
entry and/or joinder of the Trustee and/or the Collateral Agent to any Security Document and/or any Intercreditor Agreement (and any joinders,
supplements or amendments thereto contemplated hereby) shall be at the direction and expense of the Issuer and, upon request by the Trustee
and/or the Collateral Agent, as applicable, shall be accompanied by an Officer’s Certificate stating that the execution is authorized
or permitted pursuant to this Indenture (it being understood that, upon delivery of such direction, Officer’s Certificate, the Trustee
and/or the Collateral Agent, as applicable, shall enter into such agreements); provided that this Indenture shall constitute such
direction with respect to the entry into the Security Agreement by the Trustee and the Collateral Agent, as applicable, on the
Issue Date and neither an Officer’s Certificate nor an Opinion of Counsel shall be required in connection with the entry into the
Security Agreement by the Trustee or the Collateral Agent, as applicable, on the Issue Date.
(m) Notwithstanding
anything to the contrary herein, no inaccuracy or breach, as applicable, of any representation, warranty or covenant in this Indenture,
the Notes, any Security Document or any Intercreditor Agreement relating to the grant, validity, enforceability, perfection or priority
of any security interest shall occur, and no default or Event of Default or other breach of the terms hereof or thereunder shall occur,
in either case, as a result of the collateral agent and intercreditor arrangements described in this Article Fourteen or in any Intercreditor
Agreement.
Section 14.02. Acceptance
of Security Documents and Intercreditor Agreements.
The Trustee and each Holder,
by accepting any Notes and the Guarantees, acknowledges that, as more fully set forth in the Security Documents and Intercreditor Agreements,
the Collateral as now or hereafter constituted shall be for the benefit of all the Holders, the Collateral Agent and the Trustee, and
that the Lien granted in the Security Documents relating to the Notes in respect of the Trustee, the Collateral Agent and the Holders
is subject to and qualified and limited in all respects by the Security Documents and Intercreditor Agreements and actions that may be
taken thereunder.
Section 14.03. Further
Assurances.
(a) In
addition to its obligations under Sections 10.11 through Sections 10.19 hereof, the Restricted Obligors shall, at their sole expense,
do all acts which may be reasonably necessary to confirm that the Collateral Agent holds duly created, enforceable and perfected (or,
to the extent applicable, a similar method of effecting a security interest against third parties) first-priority Liens on the Collateral
subject to Permitted Liens. The Restricted Obligors shall, at their sole expense, execute, acknowledge and deliver such documents and
instruments and take such other actions which may be necessary to assure, perfect, transfer and confirm the rights conveyed by the Collateral
Documents, to the extent permitted by applicable law.
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(b) In
the event that any direct or indirect Subsidiary of a Restricted Obligor that is not already a Restricted Obligor (or the Issuer) is formed
or acquired (including any Subsidiary that holds any of the Collateral Properties), the Issuer shall promptly (and no later than 30 days
after the occurrence of such event) (i) cause such Subsidiary to become a Restricted Obligor hereunder by executing a supplemental
indenture substantially in the form of Exhibit C attached hereto, (ii) to the extent not already pledged, pledge or cause
the Equity Interests of such Subsidiary to be pledged pursuant to the Security Agreement, (iii) cause such Subsidiary to execute
and deliver (including by joinder or other form of supplement) the Security Agreement and/or such other Security Documents as shall be
necessary to vest in the Collateral Agent a perfected security interest in all such Assets and property (but subject to the limitations
set forth in the Security Documents) of such Subsidiary and (iv) take all such actions and execute and deliver, or cause to be executed
and delivered, all such documents, instruments, agreements, certificates, legal opinions and certificates reasonably requested by the
Trustee or the Collateral Agent. With respect to each such Subsidiary, the Issuer shall promptly (and no later than the date on which
such Subsidiary is required to become a Restricted Obligor) send to the Collateral Agent a notice setting forth with respect to such Person the
date on which such Person became an Additional Guarantor of the Issuer.
(c) Each
Restricted Obligor shall, and shall cause each Subsidiary that is a Restricted Obligor to, execute and deliver, or cause to be executed
and delivered, to the Trustee any and all such documents, agreements, instruments, certificates, notices and acknowledgments, and shall
take or cause to be taken such further actions (including, if applicable, the filing and recording of financing statements and/or amendments
thereto and other documents and such other actions or deliveries of the type described under this Article Fourteen or the Security
Documents (including certificates and corporate and organizational documents)), which may be required by law, which the Trustee may (without
obligation to do so), from time to time, reasonably request or which may otherwise be necessary to carry out the terms and conditions
of this Indenture and the Security Documents and to ensure the creation, perfection and priority of the Liens created or intended to be
created by the Security Documents in the Collateral, in each case, subject to the Security Documents, all at the expense of the Issuer.
(d) Each
Restricted Obligor will (i) correct any material defect or error that may be discovered in the execution, acknowledgment, filing
or recordation of any Security Document or other document or instrument relating to any Collateral and (ii) do, execute, acknowledge,
deliver, record, re-record, file, re-file, register and re-register any and all such further acts (including notices to third parties),
deeds, certificates, assurances and other instruments as may be required from time to time in order to carry out more effectively the
purposes of the Security Documents.
(e) The
due and punctual payment of the principal, premium (if any) and interest on the Notes when and as the same shall be due and payable, whether
on an Interest Payment Date or at Maturity, and Defaulted Interest and the performance of all other Notes Obligations of Restricted Obligors
to the Holders, the Trustee or the Collateral Agent under this Indenture, the Notes, the Guarantees and the Security Documents, according
to the terms hereunder or thereunder, shall be secured by the Collateral as provided in the Security Documents, which define the terms
of the Liens that secure the Notes Obligations. The Trustee, the Collateral Agent and the Restricted Obligors hereby acknowledge and agree
that, subject to the terms of the Intercreditor Agreements and as further set forth in this Article Fourteen, the Collateral Agent
will hold the Collateral for the benefit of the Holders, the Trustee and the Collateral Agent and certain other secured parties pursuant
to the terms of the Security Documents.
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Section 14.04. Release
of Liens.
The
release of the Liens over the property or assets constituting Collateral securing the Notes and the Guarantees of the Restricted
Obligors will automatically and unconditionally occur upon any one or more of the following circumstances:
(a) as
to all Collateral, upon payment in full of the principal of (and premium, if any), plus accrued and unpaid interest, if any, on the Notes
and all other non-contingent obligations in respect of the Notes under this Indenture, the Guarantees and the Security Documents that
are due and payable at or prior to the time such principal (and premium, if any) plus accrued and unpaid interest, if any, is paid;
(b) as
to any Collateral, upon consummation of the sale, transfer or other disposition of such Collateral by any Restricted Obligor or a Subsidiary
thereof to any Person other than a Restricted Obligor, to the extent such sale, transfer or other disposition is not prohibited under
this Indenture, including, without limitation, in connection with a permitted Asset Sale pursuant to Section 10.11;
(c) in
the case of a Restricted Obligor that is released from its Guarantee pursuant to the terms of this Indenture, with respect to the Collateral
provided by such Restricted Obligor upon the release of such Restricted Obligor from its Guarantee;
(d) with
respect to any Collateral that is Capital Stock, in the event of a sale, transfer, other disposition of all or substantially all of the
properties or assets of the entity represented by such Capital Stock (including by way of merger or consolidation) to a Person other than
a Restricted Obligor or a Subsidiary thereof to the extent such sale, transfer or other disposition is not prohibited under this Indenture;
(e) with
respect to any Collateral that is Capital Stock, upon the dissolution or liquidation of the issuer of that Capital Stock that is not prohibited
by this Indenture;
(f) with
the consent of Holders of 90% of the aggregate principal amount of the Notes then Outstanding;
(g) as
to all Collateral, in whole, upon Defeasance or Covenant Defeasance as provided under Article Thirteen or satisfaction and discharge
of this Indenture as provided under Article Four; or
(h) as to any Collateral,
as ordered pursuant to applicable law under a final and non-appealable order or judgment of a court of competent jurisdiction.
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In connection with the release
of any Lien, the Trustee and/or the Collateral Agent shall, at the sole cost and expense of the Issuer, without recourse, representation
or warranty, execute such documents or instruments reasonably requested by the Issuer or take such other actions as may be reasonably
requested by the Issuer, including but not limited to, execution of mortgage terminations and any documents related thereto, to evidence
or effect the release and discharge of any Liens permitted to be released pursuant to this Indenture, the Security Documents or any applicable
Intercreditor Agreement. In the event that the Trustee or the Collateral Agent is requested by the Issuer to execute any necessary or
proper instrument or document to evidence or acknowledge the release, satisfaction or termination of any Lien securing the Notes Obligations,
the Trustee or the Collateral Agent, as applicable, shall be entitled to receive an Officer’s Certificate stating that all conditions
precedent under this Indenture and the Security Documents to such release have been complied with and that it is permitted for the Trustee
and/or the Collateral Agent to execute and deliver the instruments or documents requested by the Issuer in connection with such release.
Any such instrument or document shall be prepared by the Issuer. Neither the Trustee nor the Collateral Agent shall be liable for any
such release undertaken in reliance upon any such Officer’s Certificate, and notwithstanding any term hereof or in any Security
Document to the contrary, neither the Trustee nor the Collateral Agent shall be under any obligation to release any such Lien, or execute
and deliver any such instrument or document of release, satisfaction or termination with respect thereto, unless and until it receives
such Officer’s Certificate.
Section 14.05. Compensation
and Indemnification.
Without duplication of any
amounts owing under Section 6.07 hereof, the Collateral Agent shall be entitled to the compensation and indemnification set forth
in Section 6.07 hereof (with the references to the Trustee therein being deemed to refer to the Collateral Agent and references to
this Indenture therein being deemed to refer to this Indenture, the Security Documents and the Intercreditor Agreements) and subject to
Section 14.01(e) hereof.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed, all as of the day and year first above written.
ISSUER:
OFFICE PROPERTIES INCOME INTERMEDIATE
HOLDCO II TRUST LLC
By:
/s/
Brian E. Donley
Name:
Brian E. Donley
Title:
Chief Financial Officer and Treasurer
LIMITED PARENT GUARANTOR:
OFFICE PROPERTIES INCOME TRUST
By:
/s/ Brian E. Donley
Name:
Brian E. Donley
Title:
Chief Financial Officer and Treasurer
HOLDCO AND GUARANTOR:
OFFICE PROPERTIES INCOME INTERMEDIATE
HOLDCO I TRUST LLC
By:
/s/ Brian E. Donley
Name:
Brian E. Donley
Title:
Chief Financial Officer and Treasurer
SUBSIDIARY GUARANTORS:
OPI 25 EXCHANGE LLC
GOVERNMENT PROPERTIES INCOME
TRUST LLC
GPT PROPERTIES LLC
GRAND OAK CIRCLE TAMPA LLC
SIR REIT NEW BRAUNFELS LLC
SIR SAN JOSE LLC
BAYSIDE PKWY FREMONT 2 LLC
FP 11 DUPONT CIRCLE, LLC
[Signature
Page to Indenture - 2027 Settlement Notes]
FP 1401 K, LLC
FP 540 GAITHER, LLC
FP 6315 HILLSIDE CENTER, LLC
FP ATLANTIC CORPORATE PARK, LLC
FP PATUXENT PARKWAY, LLC
FP REDLAND TECHNOLOGY CENTER LLC
SIR CAMPBELL PLACE INC.
GPT PROPERTIES TRUST
SIR PHILADELPHIA LLC
By:
/s/ Brian E. Donley
Name:
Brian E. Donley
Title:
Chief Financial Officer and Treasurer
[Signature
Page to Indenture - 2027 Settlement Notes]
UMB Bank, National Association,
as Trustee and Collateral Agent
By:
/s/ Molly Beane
Name:
Molly Beane
Title:
Vice President
[Signature
Page to Indenture - 2027 Settlement Notes]
Appendix A
PROVISIONS RELATING TO THE NOTES
Section 1.1 Definitions.
(a) Capitalized Terms.
Capitalized terms used but not
defined in this Appendix A have the meanings given to them in the Indenture. The following capitalized terms have the following meanings:
“Applicable Procedures”
means, with respect to any transfer or transaction involving a Global Note or beneficial interest therein, the rules and procedures
of the Depositary for such Global Note, Euroclear or Clearstream, in each case to the extent applicable to such transaction and as in
effect from time to time.
“Clearstream”
means Clearstream Banking, Société Anonyme, or any successor securities clearing agency.
“Definitive Note”
means a certificated Note bearing, if required, the applicable restricted securities legend set forth in Section 2.2(e) of this
Appendix A.
“Distribution Compliance
Period,” with respect to any Note, means the period of forty (40) consecutive days beginning on and including the later of (a) the
day on which such Note is first offered to persons other than distributors (as defined in Regulation S) in reliance on Regulation S, notice
of which day shall be promptly given by the Issuer to the Trustee, and (b) the date of issuance with respect to such Note or any
predecessor of such Note.
“Euroclear”
means Euroclear Bank S.A./N.V., as operator of Euroclear System or any successor securities clearing agency.
“IAI” means
an institution that is an “accredited investor” as described in Rule 501(a)(1), (2), (3) or (7) under the Securities
Act and is not a QIB.
“QIB” means
a “qualified institutional buyer” as defined in Rule 144A.
“Regulation S”
means Regulation S promulgated under the Securities Act.
“Rule 144”
means Rule 144 promulgated under the Securities Act.
“Rule 144A”
means Rule 144A promulgated under the Securities Act.
“Transfer Restricted
Notes” means Definitive Notes and any other Notes that bear or are required to bear the legend set forth in Section 2.2(e)(i) of
this Appendix A.
“U.S. person”
means a “U.S. person” as defined in Regulation S.
“Unrestricted Global
Note” means any Note in global form that does not bear or is not required to bear the Restricted Notes Legend.
(b) Other Definitions.
Term:
Defined in Section:
“Agent Members”
2.1(c)
“Definitive Notes Legend”
2.2(e)
“Global Note”
2.1(b)
“Global Notes Legend”
2.2(e)
“IAI Global Note”
2.1(b)
“IAI Notes”
2.1(a)
“CPDI Notes Legend”
2.2(e)
“OID Notes Legend”
2.2(e)
“Regulation S Global Note”
2.1(b)
“Regulation S Notes”
2.1(a)
“Restricted Notes Legend”
2.2(e)
“Rule 144A Global Note”
2.1(b)
“Rule 144A Notes”
2.1(a)
Section 2.1 Form and
Dating.
(a) Unless
registered or exempt from registration under the Securities Act, the Notes will be resold, initially only to QIBs in reliance on Rule 144A
(“Rule 144A Notes”), to institutions which are an “accredited investor” within the meaning of subparagraphs
(a)(1), (2), (3) or (7) of Rule 501 under the Securities Act (“IAI Notes”) and to non-U.S. persons in
reliance on Regulation S (“Regulation S Notes”). Notes so issued may thereafter be transferred to, among others, QIBs,
institutional “accredited investors” and purchasers in reliance on Regulation S, subject to the restrictions on transfers
set forth herein.
(b) Global
Notes. Each series of IAI Notes shall be issued initially in the form of one or more global IAI Global Notes (the “IAI Global
Note”), Regulation S Notes shall be issued initially in the form of one or more global Regulation S Global Notes (the “Regulation
S Global Note”) and Rule 144A Notes shall be issued initially in the form of one or more permanent global notes in fully
registered form (the “Rule 144A Global Note”), in each case without interest coupons and bearing the Global Notes
Legend and Restricted Notes Legend, and shall be deposited on behalf of the purchasers of the Notes represented thereby with the Custodian,
and registered in the name of the Depositary or a nominee of the Depositary, duly executed by the Issuer and authenticated by the Trustee
as provided in this Indenture. The IAI Global Note, Rule 144A Global Note and Regulation S Global Note is each referred to herein
as a “Global Note” and are collectively referred to herein as “Global Notes.” Each Global
Note shall represent such of the outstanding Notes as shall be specified in the “Schedule of Exchanges of Interests in the Global
Note” attached thereto and each shall provide that it shall represent the aggregate principal amount of Notes from time to time
endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced or
increased, as applicable, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase
or decrease in the aggregate principal amount of outstanding Notes represented thereby shall be made by the Trustee or the Custodian,
at the direction of the Trustee, in accordance with instructions given by the Holder thereof as required by Section 3.05 of the Indenture
and Section 2.2(c) of this Appendix A.
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(c) Book-Entry
Provisions. This Section 2.1(c) shall apply only to a Global Note deposited with or on behalf of the Depositary.
The Issuer shall execute and
the Trustee shall, in accordance with this Section 2.1(c) and Section 3.01 or Section 3.03, as applicable, of the
Indenture and pursuant to an order of the Issuer signed by one Officer of the Issuer, authenticate and deliver initially one or more Global
Notes that (i) shall be registered in the name of the Depositary for such Global Note or Global Notes or the nominee of such Depositary
and (ii) shall be delivered by the Trustee to such Depositary or pursuant to such Depositary’s instructions or held by the
Trustee as Custodian.
Members of, or participants
in, the Depositary (“Agent Members”) shall have no rights under the Indenture with respect to any Global Note held
on their behalf by the Depositary or by the Trustee as Custodian or under such Global Note, and the Depositary may be treated by the Issuer,
the Trustee and any agent of the Issuer or the Trustee as the absolute owner of such Global Note for all purposes whatsoever. Notwithstanding
the foregoing, nothing herein shall prevent the Issuer, the Trustee or any agent of the Issuer or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Agent Members,
the operation of customary practices of such Depositary governing the exercise of the rights of a holder of a beneficial interest in any
Global Note. The registered Holder of a Global Note may grant proxies and otherwise authorize any Person, including Agent Members and
Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the
Notes.
(d) Definitive
Notes. Except as provided in Section 2.2 or Section 2.3 of this Appendix A, owners of beneficial interests in Global Notes
shall not be entitled to receive physical delivery of Definitive Notes.
Section 2.2 Transfer
and Exchange.
(a) Transfer
and Exchange of Definitive Notes for Definitive Notes. When Definitive Notes are presented to the Security Registrar with a request:
(i) to
register the transfer of such Definitive Notes; or
(ii) to
exchange such Definitive Notes for an equal principal amount of Definitive Notes of other authorized denominations,
the Security Registrar
shall register the transfer or make the exchange as requested if its reasonable requirements for such transaction are met; provided,
however, that the Definitive Notes surrendered for transfer or exchange:
(A) shall
be duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Issuer and the Security Registrar,
duly executed by the Holder thereof or his or her attorney duly authorized in writing; and
(B) in
the case of Transfer Restricted Notes, they are being transferred or exchanged pursuant to an effective registration statement under the
Securities Act or pursuant to Section 2.2(b) of this Appendix A or otherwise in accordance with the Restricted Notes Legend,
and are accompanied by a certification from the transferor in the form provided on the reverse side of the Form of Note in Exhibit A
for exchange or registration of transfers and, as applicable, delivery of such legal opinions, certifications and other information as
may be requested pursuant thereto.
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(b) Restrictions
on Transfer of a Definitive Note for a Beneficial Interest in a Global Note. A Definitive Note may not be exchanged for a beneficial
interest in a Global Note except upon satisfaction of the requirements set forth below. Upon receipt by the Trustee of a Definitive Note,
duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Issuer and the Security Registrar,
together with:
(i) a
certification from the transferor in the form provided on the reverse side of the Form of Note in Exhibit A for exchange
or registration of transfers and, as applicable, delivery of such legal opinions, certifications and other information as may be requested
pursuant thereto; and
(ii) written
instructions directing the Trustee to make, or to direct the Custodian to make, an adjustment on its books and records with respect to
such Global Note to reflect an increase in the aggregate principal amount of the Notes represented by the Global Note, such instructions
to contain information regarding the Depositary account to be credited with such increase,
the Trustee shall cancel such Definitive Note
and cause, or direct the Custodian to cause, in accordance with the standing instructions and procedures existing between the Depositary
and the Custodian, the aggregate principal amount of Notes represented by the Global Note to be increased by the aggregate principal amount
of the Definitive Note to be exchanged and shall credit or cause to be credited to the account of the Person specified in such instructions
a beneficial interest in the Global Note equal to the principal amount of the Definitive Note so canceled. If the applicable Global Note
is not then outstanding, the Issuer shall issue and the Trustee shall authenticate, upon a Company Order, a new applicable Global Note
in the appropriate principal amount.
(c) Transfer
and Exchange of Global Notes.
(i) The
transfer and exchange of Global Notes or beneficial interests therein shall be effected through the Depositary, in accordance with this
Indenture (including applicable restrictions on transfer set forth in Section 2.2(d) of this Appendix A, if any) and the procedures
of the Depositary therefor. A transferor of a beneficial interest in a Global Note shall deliver to the Security Registrar a written order
given in accordance with the Depositary’s procedures containing information regarding the participant account of the Depositary
to be credited with a beneficial interest in such Global Note, or another Global Note and such account shall be credited in accordance
with such order with a beneficial interest in the applicable Global Note and the account of the Person making the transfer shall be debited
by an amount equal to the beneficial interest in the Global Note being transferred.
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(ii) If
the proposed transfer is a transfer of a beneficial interest in one Global Note to a beneficial interest in another Global Note, the Security
Registrar shall reflect on its books and records the date and an increase in the principal amount of the Global Note to which such interest
is being transferred in an amount equal to the principal amount of the interest to be so transferred, and the Security Registrar shall
reflect on its books and records the date and a corresponding decrease in the principal amount of the Global Note from which such interest
is being transferred.
(iii) Notwithstanding
any other provisions of this Appendix A (other than the provisions of Section 2.3 of this Appendix A), a Global Note may not be
transferred except as a whole and not in part if the transfer is by the Depositary to a nominee of the Depositary or by a nominee of
the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor depositary
or a nominee of such successor Depositary.
(d) Restrictions
on Transfer of Global Notes; Voluntary Exchange of Interests in Transfer Restricted Global Notes for Interests in Unrestricted Global
Notes.
(i) Transfers
by an owner of a beneficial interest in an IAI Global Note or a Rule 144A Global Note to a transferee who takes delivery of such
interest through another Transfer Restricted Global Note shall be made in accordance with the Applicable Procedures and the Restricted
Notes Legend and only upon receipt by the Trustee of a certification from the transferor in the form provided on the reverse side of the
Form of Note in Exhibit A for exchange or registration of transfers and, as applicable, delivery of such legal opinions,
certifications and other information as may be requested pursuant thereto. In addition, in the case of a transfer of a beneficial interest
in a Regulation S Global Note, or a Rule 144A Global Note for an interest in an IAI Global Note, the transferee must furnish a signed
letter substantially in the form of Exhibit B to the Trustee.
(ii) Prior
to the expiration of the applicable Distribution Compliance Period, (A) each Regulation S Global Note shall be a temporary global
security for purposes of Rules 903 and 904 under the Securities Act, whether or not designated as such on the face of such Note,
and (B) beneficial ownership interests in such Regulation S Global Note may only be held through Euroclear or Clearstream. During
the applicable Distribution Compliance Period, beneficial ownership interests in a Regulation S Global Note may only be sold, pledged
or transferred through Euroclear or Clearstream in accordance with the Applicable Procedures, the Restricted Notes Legend on such Regulation
S Global Note and any applicable securities laws of any state of the U.S. Prior to the expiration of the applicable Distribution Compliance
Period, transfers by an owner of a beneficial interest in the Regulation S Global Note to a transferee who takes delivery of such interest
through a Rule 144A Global Note or an IAI Global Note shall be made only in accordance with the Applicable Procedures and the Restricted
Notes Legend and upon receipt by the Trustee of a written certification from the transferor of the beneficial interest in the form provided
on the reverse side of the Form of Note in Exhibit A for exchange or registration of transfers. Such written certification
shall no longer be required after the expiration of the applicable Distribution Compliance Period. Upon the expiration of the applicable
Distribution Compliance Period, beneficial ownership interests in the Regulation S Global Note shall be transferable in accordance with
applicable law and the other terms of this Indenture.
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(iii) Upon
the expiration of the applicable Distribution Compliance Period, beneficial interests in the Regulation S Global Note may be exchanged
for beneficial interests in an Unrestricted Global Note upon certification in the form provided on the reverse side of the Form of
Note in Exhibit A for an exchange from a Regulation S Global Note to an Unrestricted Global Note.
(iv) Beneficial
interests in a Transfer Restricted Note that is a Rule 144A Global Note or an IAI Global Note may be exchanged for beneficial interests
in an Unrestricted Global Note if the Holder certifies in writing to the Security Registrar that its request for such exchange is in respect
of a transfer made in reliance on Rule 144 (such certification to be in the form set forth on the reverse side of the Form of
Note in Exhibit A) and/or upon delivery of such legal opinions, certifications and other information as the Issuer or the
Trustee may reasonably request.
(v) If
no Unrestricted Global Note is outstanding at the time of a transfer contemplated by the preceding clauses (iii) and (iv), the Issuer
shall issue and the Trustee shall authenticate, upon a Company Order, a new Unrestricted Global Note in the appropriate principal amount.
(vi) A
transferee of a Note shall be deemed to have represented and agreed as follows:
(A) It
understands and acknowledges that the Notes and the Guarantees, which have not been registered under the Securities Act, under any other
federal, state or other local law pertaining to the registration of securities, or with any securities regulatory authority of any state
or other jurisdiction, may not be offered, sold or otherwise transferred except in compliance with the registration requirements of the
Securities Act or any other applicable securities laws or pursuant to an exemption therefrom and in each case in compliance with the conditions
for transfer in this Appendix A and the Indenture. Such transferee shall not resell or otherwise transfer any of such Notes and Guarantees,
except as provided in this Appendix A and the Indenture. It further acknowledges and agrees that, in the case of Notes sold in reliance
upon Regulation S, all offers and sales until the later of 40 days after (i) the issue date and (ii) when the Notes and Guarantees
or any predecessor of the Notes are first offered to persons other than distributors (as defined in Rule 902 of Regulation S) in
reliance on Regulation S shall be made only in accordance with Section 903 or 904 of Regulation S, pursuant to registration of the
securities under the Securities Act or pursuant to an available exemption from the registration requirements of the Securities Act.
(B) It
agrees that it will give to each person to whom it transfers the Notes and Guarantees notice of any restrictions on transfer of such Notes
and Guarantees. It acknowledges that the Issuer and the Trustee, as the case may be, reserve the right prior to any offer, sale or other
transfer to require the delivery of an opinion of counsel, certifications and/or information satisfactory to Issuer and the Trustee, as
provided in this Appendix A and the Indenture. It acknowledges that prior to any proposed transfer of Notes in certificated form or of
beneficial interests in a Global Note (in each case other than pursuant to an effective registration statement) the holder of Notes and
Guarantees or the holder of beneficial interests in a Global Note, as the case may be, may be required to provide certifications and other
documentation relating to the manner of such transfer and submit such certifications and other documentation as provided in this Appendix
A and the Indenture.
A-6
(C) It
acknowledges that the Issuer and others will rely upon the truth and accuracy of the foregoing acknowledgments, representations and agreements
and agrees that if any of the acknowledgments, representations or agreements deemed to have been made by its purchase of the Notes and
Guarantees are no longer accurate, it shall promptly notify the Issuer. If it is acquiring the Notes and Guarantees as a fiduciary or
agent for one or more investor accounts, it represents that it has investment discretion with respect to each such account and it has
full power to make the foregoing acknowledgments, representations, and agreements on behalf of each account.
(e) Legends.
(i) Except
as permitted by Section 2.2(d) and this Section 2.2(e) of this Appendix A, each Note certificate evidencing the Global
Notes and the Definitive Notes (and all Notes issued in exchange therefor or in substitution thereof) shall bear a legend in substantially
the following form (each defined term in the legend being defined as such for purposes of the legend only) (“Restricted Notes
Legend”):
A-7
THIS NOTE HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION.
NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
[IN THE CASE OF IAI NOTES: BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS (A) A “QUALIFIED INSTITUTIONAL
BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), OR (B) AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED
IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT), AND AGREES THAT WITHIN THE TIME PERIOD REFERRED
TO UNDER RULE 144 (TAKING INTO ACCOUNT THE PROVISIONS OF RULE 144(d) UNDER THE SECURITIES ACT, IF APPLICABLE) UNDER THE SECURITIES
ACT AS IN EFFECT ON THE DATE OF THE TRANSFER OF THIS NOTE, TO OFFER, RESELL OR OTHERWISE TRANSFER THIS NOTE] [IN THE CASE OF RULE 144A
NOTES AND REGULATION S NOTES: THE HOLDER OF THIS NOTE, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR
ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH NOTE, PRIOR TO THE DATE (THE “RESALE RESTRICTION
TERMINATION DATE”) THAT IS [IN THE CASE OF RULE 144A NOTES: ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF
AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF SUCH NOTE)] [IN
THE CASE OF REGULATION S NOTES: 40 DAYS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE DATE ON WHICH THIS NOTE (OR
ANY PREDECESSOR OF SUCH NOTE) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S UNDER THE SECURITIES
ACT) IN RELIANCE ON REGULATION S], ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT
THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER”
AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE
THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR”
WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER AND
THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM
PRINCIPAL AMOUNT OF SECURITIES OF AT LEAST $250,000 OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT
TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/ OR OTHER INFORMATION SATISFACTORY
TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. [IN THE
CASE OF REGULATION S NOTES: BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT
PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER
THE SECURITIES ACT.]]
THE TERMS OF THIS NOTE ARE SUBJECT TO
THE TERMS OF THE INTERCREDITOR AGREEMENTS, AS THEY MAY BE AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME
IN ACCORDANCE WITH THE INDENTURE.
A-8
Each Definitive Note shall bear the following
additional legend (“Definitive Notes Legend”):
IN CONNECTION WITH ANY TRANSFER, THE
HOLDER WILL DELIVER TO THE SECURITY REGISTRAR SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH SECURITY REGISTRAR MAY REASONABLY REQUIRE
TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
Each Global Note shall bear the following additional
legend (“Global Notes Legend”):
UNLESS THIS CERTIFICATE IS PRESENTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL
BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE
AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
Each Note shall also bear the following additional
legend (“CPDI Notes Legend”), if applicable:
FOR PURPOSES OF SECTIONS 1273 AND 1275
OF THE INTERNAL REVENUE CODE, AS AMENDED, THIS NOTE IS A CONTINGENT PAYMENT DEBT INSTRUMENT AND WILL ACCRUE ORIGINAL ISSUE DISCOUNT AT
THE COMPANY'S "COMPARABLE YIELD" FOR UNITED STATES FEDERAL INCOME TAX PURPOSES. THE COMPANY AGREES, AND BY ACCEPTANCE
OF A BENEFICIAL OWNERSHIP INTEREST IN THE NOTE, EACH BENEFICIAL HOLDER OF THE NOTES WILL BE DEEMED TO HAVE AGREED, FOR UNITED STATES FEDERAL
INCOME TAX PURPOSES, (i) TO TREAT THE NOTES AS INDEBTEDNESS THAT IS SUBJECT TO THE CONTINGENT PAYMENT DEBT INSTRUMENT REGULATIONS
UNDER SECTION 1.1275-4 OF THE UNITED STATES TREASURY REGULATIONS (THE "CPDI REGULATIONS"), AND (ii) TO BE BOUND BY
THE COMPANY'S DETERMINATION OF THE "COMPARABLE YIELD" AND "PROJECTED PAYMENT SCHEDULE," WITHIN THE MEANING OF THE
CPDI REGULATIONS, WITH RESPECT TO THE NOTES AND TO ACCRUE ORIGINAL ISSUE DISCOUNT AT THE COMPARABLE YIELD AS DETERMINED BY THE COMPANY.
UPON WRITTEN REQUEST, THE COMPANY MAY PROMPTLY MAKE AVAILABLE TO ANY HOLDER OF THIS NOTE THE FOLLOWING INFORMATION: (1) THE
ISSUE PRICE AND DATE OF THE NOTE, (2) THE AMOUNT OF ORIGINAL ISSUE DISCOUNT ON THE NOTE, AND (3) THE COMPARABLE YIELD AND PROJECTED
PAYMENT SCHEDULE OF THE NOTE. HOLDERS SHOULD CONTACT THE CHIEF FINANCIAL OFFICER OF THE COMPANY AT TWO NEWTON PLACE, 255 WASHINGTON STREET,
SUITE 300, NEWTON, MA 02458-1634.
A-9
Each Note shall also bear the following additional
legend (“OID Notes Legend”), if applicable:
FOR THE PURPOSES OF SECTIONS 1272, 1273
AND 1275 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, THIS NOTE IS BEING ISSUED WITH ORIGINAL ISSUE DISCOUNT. UPON WRITTEN REQUEST,
THE COMPANY MAY PROMPTLY MAKE AVAILABLE TO ANY HOLDER OF THIS NOTE THE FOLLOWING INFORMATION: (1) THE ISSUE PRICE AND DATE OF
THE NOTE, (2) THE AMOUNT OF ORIGINAL ISSUE DISCOUNT ON THE NOTE, AND (3) THE YIELD TO MATURITY RELATING TO THE NOTE. HOLDERS
SHOULD CONTACT THE CHIEF FINANCIAL OFFICER OF THE COMPANY AT TWO NEWTON PLACE, 255 WASHINGTON STREET, SUITE 300, NEWTON, MA 02458-1634.
(ii) Upon
any sale or transfer of a Transfer Restricted Note that is a Definitive Note, the Security Registrar shall permit the Holder thereof to
exchange such Transfer Restricted Note for a Definitive Note that does not bear the Restricted Notes Legend and the Definitive Notes Legend
and rescind any restriction on the transfer of such Transfer Restricted Note if the Holder certifies in writing to the Security Registrar
that its request for such exchange is in respect of a transfer made in reliance on Rule 144 (such certification to be in the form
set forth on the reverse side of the Form of Note in Exhibit A) and provides such legal opinions, certifications and
other information as the Issuer or the Trustee may reasonably request.
(f) Cancellation
or Adjustment of Global Note. At such time as all beneficial interests in a Global Note have either been exchanged for Definitive
Notes, transferred in exchange for an interest in another Global Note, redeemed, repurchased or canceled, such Global Note shall be returned
by the Depositary to the Trustee for cancellation or retained and canceled by the Trustee. At any time prior to such cancellation, if
any beneficial interest in a Global Note is exchanged for Definitive Notes, transferred in exchange for an interest in another Global
Note, redeemed, repurchased or canceled, the principal amount of Notes represented by such Global Note shall be reduced and an adjustment
shall be made on the books and records of the Security Registrar (if it is then the Custodian for such Global Note) with respect to such
Global Note, by the Security Registrar or the Custodian, to reflect such reduction.
(g) Obligations
with Respect to Transfers and Exchanges of Notes.
(i) To
permit registrations of transfers and exchanges, the Issuer shall execute and the Trustee shall authenticate, Definitive Notes and Global
Notes at the Security Registrar’s request.
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(ii) No
service charge shall be made for any registration of transfer or exchange of Notes, but the Issuer may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Notes,
other than exchanges pursuant to Section 3.04, 9.05 or 11.08 of the Indenture not involving any transfer.
(iii) Prior
to the due presentation for registration of transfer of any Note, the Limited Parent Guarantor, each Restricted Obligor, the Trustee,
the Paying Agent or the Security Registrar shall deem and treat the person in whose name a Note is registered as the absolute owner of
such Note for the purpose of receiving payment of principal, premium, if any, and interest on such Note and for all other purposes whatsoever,
whether or not such Note is overdue, and none of the Limited Parent Guarantor, any Restricted Obligor, the Trustee, the Paying Agent or
the Security Registrar shall be affected by notice to the contrary.
(iv) Every
Note presented or surrendered for registration of transfer or for exchange shall (if so required by the Issuer or the Trustee or any transfer
agent) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Issuer and the Security Registrar
duly executed, by the Holder thereof or the attorney of such Holder duly authorized in writing.
(v) In
order to effect any transfer or exchange of an interest in any Transfer Restricted Note for an interest in a Note that does not bear the
Restricted Notes Legend and has not been registered under the Securities Act, if the Security Registrar so requests or if the Applicable
Procedures so require, an Opinion of Counsel, in form reasonably acceptable to the Security Registrar to the effect that no registration
under the Securities Act is required in respect of such exchange or transfer or the re-sale of such interest by the beneficial holder
thereof, shall be required to be delivered to the Security Registrar and the Trustee.
(h) No
Obligation of the Trustee.
(i) The
Trustee shall have no responsibility or obligation to any beneficial owner of a Global Note, a member of, or a participant in the Depositary
or any other Person with respect to the accuracy of the records of the Depositary or its nominee or of any participant or member thereof,
with respect to any ownership interest in the Notes or with respect to the delivery to any participant, member, beneficial owner or other
Person (other than the Depositary) of any notice (including any notice of redemption or repurchase) or the payment of any amount, under
or with respect to such Notes. All notices and communications to be given to the Holders and all payments to be made to Holders under
the Notes shall be given or made only to the registered Holders (which shall be the Depositary or its nominee in the case of a Global
Note). The rights of beneficial owners in any Global Note shall be exercised only through the Depositary subject to the applicable rules and
procedures of the Depositary. The Trustee may rely and shall be fully protected in relying upon information furnished by the Depositary
with respect to its members, participants and any beneficial owners.
A-11
(ii) The
Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under
this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among
Depositary participants, members or beneficial owners in any Global Note) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture, and
to examine the same to determine substantial compliance as to form with the express requirements hereof.
Section 2.3 Definitive
Notes.
(a) Except
as provided below, owners of beneficial interests in Global Notes shall not be entitled to receive Definitive Notes. A Global Note deposited
with the Depositary or with the Trustee as Custodian pursuant to Section 2.1 of this Appendix A may be transferred to the beneficial
owners thereof in the form of Definitive Notes in an aggregate principal amount equal to the principal amount of such Global Note, in
exchange for such Global Note, only if such transfer complies with Section 2.2 of this Appendix A and (i) the Depositary notifies
the Issuer that it is unwilling or unable to continue as a Depositary for such Global Note or if at any time the Depositary ceases to
be a “clearing agency” registered under the Exchange Act and, in each case, a successor depositary is not appointed by the
Issuer within 90 days of such notice or after the Issuer becomes aware of such cessation, (ii) an Event of Default has occurred and
is continuing and the Security Registrar has received a request from the Depositary or (iii) the Issuer, in its sole discretion and
subject to the procedures of the Depositary, notifies the Trustee in writing that it elects to cause the issuance of Definitive Notes
under this Indenture. In addition, any Affiliate of the Limited Parent Guarantor that is a beneficial owner of all or part of a Global
Note may have such Affiliate’s beneficial interest transferred to such Affiliate in the form of a Definitive Note by providing a
written request to the Issuer and the Trustee and such Opinions of Counsel, certificates or other information as may be required by this
Indenture or the Issuer or Trustee. Notwithstanding anything to the contrary in this Section 2.3, no Regulation S Global Note may
be exchanged for a Definitive Note until the end of the Distribution Compliance Period applicable to such Regulation S Global Note and
receipt by the Trustee and the Issuer of any certificates required by either of them pursuant to Rule 903(b)(3)(ii)(B) under
the Securities Act.
(b) Any
Global Note that is transferable to the beneficial owners thereof pursuant to this Section 2.3 shall be surrendered by the Depositary
to the Trustee, to be so transferred, in whole or from time to time in part, without charge, and the Trustee shall authenticate and deliver,
upon such transfer of each portion of such Global Note, an equal aggregate principal amount of Definitive Notes of authorized denominations.
Any portion of a Global Note transferred pursuant to this Section 2.3 shall be executed, authenticated and delivered only in minimum
denominations of $2,000 and integral multiples of $1,000 in excess thereof and registered in such names as the Depositary shall direct.
Any Definitive Note delivered in exchange for an interest in a Global Note that is a Transfer Restricted Note shall, except as otherwise
provided by Section 2.2(d) of this Appendix A, bear the Restricted Notes Legend.
(c) In
the event of the occurrence of any of the events specified in Section 2.3(a) of this Appendix A, the Issuer shall promptly make
available to the Trustee a reasonable supply of Definitive Notes in fully registered form without interest coupons.
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EXHIBIT A
FORM OF NOTE
[Form of Face of Note]
[Insert the Restricted Notes Legend, if applicable,
pursuant to the provisions of the Indenture]
[Insert the Global Notes Legend, if applicable,
pursuant to the provisions of the Indenture]
[Insert the Definitive Notes Legend, if applicable,
pursuant to the provisions of the Indenture]
[Insert the CPDI Notes Legend, if applicable, pursuant
to the provisions of the Indenture.]
[Insert the OID Notes Legend, if applicable, pursuant
to the provisions of the Indenture.]
CUSIP [●]
ISIN [●]
[IAI][RULE 144A][REGULATION S] GLOBAL NOTE
OFFICE PROPERTIES INCOME INTERMEDIATE HOLDCO
II TRUST LLC
No. [●]
8.375% SENIOR SECURED LIMITED OPI GUARANTEED NOTE
DUE 2029
Office Properties Income Intermediate Holdco II
Trust LLC, a real estate investment trust duly organized and existing under the laws of Delaware (herein called the “Issuer”,
which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to____________________________,
or registered assigns, the principal amount of $_______________________, as revised by the Schedule of Increases and Decreases in the
Global Note attached hereto on December 31, 2029.
Additional provisions of this Note are set forth
on the other side of this Note.
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IN WITNESS WHEREOF, the Issuer
has caused this instrument to be duly executed.
Dated: OFFICE PROPERTIES INCOME INTERMEDIATE HOLDCO II TRUST LLC
By:
Name:
Title:
CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Notes referred to in the within-mentioned Indenture.
UMB Bank, National Association, as Trustee
By:
Name:
Title:
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[Form of Reverse of Note]
1. General.
The Issuer issued this Note under an Indenture, dated as of June 17, 2026 (as amended, supplemented or otherwise modified from
time to time, the “Indenture”), among the Issuer, the Limited Parent Guarantor, HoldCo, the Initial Subsidiary Guarantors
and UMB Bank, National Association, as Trustee and Collateral Agent. The terms of this Note include those stated in the Indenture. Capitalized
terms used but not defined herein have the meaning given to them in the Indenture. To the extent any provision of this Note conflicts
with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.
2. Interest.
Unless previously redeemed, the Notes will bear interest at 8.375% per annum, payable quarterly in arrears on March 31, June 30,
September 30 and December 31 of each year (except in the case of interest payable on the Stated Maturity for the principal of
the Notes, which shall be payable on the Stated Maturity), commencing September 30, 2026, to the Persons in whose names the Notes
are registered in the Security Register at the close of business on the Record Date, which shall be March 15, June 15, September 15
or December 15 (in each case, whether or not a Business Day), as the case may be, immediately before such Interest Payment Date (except
in the case of interest payable on the Stated Maturity, which interest will be payable to the Persons in whose names the Notes are registered
in the Security Register at the close of business on the date that is 14 calendar days prior to the Stated Maturity). Interest on the
Notes will be computed on the basis of a 360-day year consisting of twelve 30-day months. If any scheduled Interest Payment Date, the
Stated Maturity or any Redemption Date falls on a day that is not a Business Day, the payment will be made on the next Business Day and
no interest will accrue thereon for the period from and after such Interest Payment Date, the Stated Maturity or such Redemption Date.
3. Method
of Payment. By no later than 11:00 a.m. Eastern Time on the date on which any principal of and premium, if any, and interest
on any Note is due and payable, the Issuer shall deposit with the Paying Agent a sum sufficient in immediately available funds to pay
such principal, premium, if any, and interest when due. Interest on any Note which is payable, and is timely paid or duly provided for,
on any Interest Payment Date shall be paid to the Person in whose name such Note (or one or more Predecessor Notes) is registered at the
close of business on the immediately preceding March 15, June 15, September 15 and December 15 (in each case, whether
or not a Business Day) at the office or agency of the Issuer maintained for such purpose pursuant to Section 10.02 of the Indenture.
The principal of (and premium, if any), and interest on the Note shall be payable at the office or agency of Paying Agent or Security
Registrar designated by the Issuer maintained for such purpose in the United States or at such other office or agency of the Issuer as
may be maintained for such purpose pursuant to Section 10.03 of the Indenture; provided, however, that, at the option
of the Issuer, the principal of (and premium, if any) and interest, may be paid by (i) check mailed to addresses of the Persons entitled
thereto as such addresses shall appear on the Security Register or (ii) wire transfer to an account located in the United States
maintained by the payee, subject to the last sentence of this paragraph. Payments in respect of Notes represented by a Global Note (including
principal, premium, if any, and interest) shall be made by wire transfer of immediately available funds to the accounts specified by The
Depository Trust Company or any successor Depositary. Payments of any principal of, premium, if any, and interest on any Note are due
and payable shall be made without withholding and free and clear of any taxes, except as required by applicable law.
A-15
4. Paying
Agent and Security Registrar. Initially, UMB Bank, National Association or one of its Affiliates will act as Paying Agent and Security
Registrar. The Issuer or any of its Affiliates may act as Paying Agent, Security Registrar or co-Security Registrar.
5. Optional
Redemption.
At any time, the Issuer may
redeem at its option on any one or more occasions all or a part of the Notes upon not less than 10 nor more than 60 days’ notice,
at the redemption prices set forth in Section 11.01(a) of the Indenture plus accrued and unpaid interest thereon, if
any, to, but not including, the applicable Redemption Date (subject to the right of Holders of the Notes on the relevant Record Date to
receive interest due on the relevant interest payment date occurring on or prior to the Redemption Date).
Any redemption and notice
of redemption may, at the Issuer’s discretion, be subject to the satisfaction of one more conditions precedent as provided in Section 11.05
of the Indenture.
Nothing in this Note or the
Indenture will limit the Issuer’s or its Affiliates’ ability to repurchase or retire Notes other than by redemption, whether
by tender offer, exchange offer, open market repurchases, privately negotiated transactions or otherwise.
6. Mandatory
Redemption.
The Notes are subject to mandatory
redemption as set forth in Sections 10.11 and 11.03 of the Indenture. In addition, the Notes may be subject to redemption from time to
time prior to their maturity pursuant to an Event of Loss Redemption or Collateral Asset Sale Redemption, in each case, pursuant to and
subject to the terms of the Indenture. Other than as set forth in Sections 10.11 and 11.03 of the Indenture, the Notes will not be subject
to mandatory redemption or any sinking fund payments.
7. Change
of Control Offer. Upon the occurrence of a Change of Control, unless the Issuer has exercised its optional redemption rights, a Defeasance
pursuant to Section 13.02 of the Indenture or a satisfaction and discharge pursuant to Article Four of the Indenture, each Holder
of the Notes will have the right to require that the Issuer repurchase all or a portion of such Holder’s Notes, as further described
in the Indenture.
8. Discharge
and Defeasance. The Indenture contains provisions for discharge or defeasance at any time of the entire indebtedness of the Notes
or certain restrictive covenants and Events of Default with respect to this Note, in each case upon compliance with certain conditions
set forth in the Indenture.
9. Defaults
and Remedies. If an Event of Default with respect to the Notes shall occur and be continuing, the principal of the Notes, plus accrued
and unpaid interest, if any, may be declared due and payable in the manner and with the effect provided in the Indenture.
10. Actions
of Holders. The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the
rights and obligations of the Issuer and the rights of the Holders of the Notes to be affected under the Indenture, the Security Documents,
the Intercreditor Agreements, any Guarantee and the Notes at any time by the Issuer and the Trustee and the Collateral Agent with the
consent of the Holders of not less than a majority of the aggregate principal amount of the Outstanding Notes at the time to be affected.
The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Outstanding Notes at
the time, on behalf of the Holders of all Notes, to waive compliance by the Issuer with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in
exchange therefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note.
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As provided in and subject
to the provisions of the Indenture, the Holder of this Note shall not have the right to institute any proceeding, judicial or otherwise,
with respect to the Indenture or this Note, or for the appointment of a receiver or trustee, or for any other remedy thereunder, unless
such Holder shall have previously given written notice to the Trustee of a continuing Event of Default with respect to the Notes, the
Holders of not less than a majority in principal amount of the Outstanding Notes shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee under the Indenture and, if requested, offered the Trustee
reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request, and the Trustee shall
not have received from the Holders of a majority in principal amount of Outstanding Notes at the time a direction inconsistent with such
written request, and shall have failed to institute any such proceeding for 60 days after receipt of such notice, request and offer (if
requested) of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Note for the enforcement of any payment
of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.
11. Payments
Not Impaired. Notwithstanding any other provision in this Note and/or the Indenture, the Holder of this Note shall have the right,
which is absolute and unconditional, to receive payment of the principal of (and premium, if any), and any interest on, this Note on the
respective Stated Maturities expressed herein (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement
of any such payment, and such rights shall not be impaired without the consent of such Holder.
12. Denominations,
Transfer, Exchange. As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Note is
registrable in the Security Register, upon surrender of this Note for registration of transfer at the office or agency of the Issuer in
any place where the principal of and any premium and interest on this Note are payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Issuer and the Security Registrar duly executed by, the Holder hereof or his or her
attorney duly authorized in writing, and thereupon one or more new Notes, of any authorized denominations and of like tenor and aggregate
principal amount, will be issued in the name of the designated transferee or transferees.
The Notes are issuable only
in registered form without coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof. As provided in the Indenture
and subject to certain limitations therein set forth, the Notes are exchangeable for a like aggregate principal amount and of like tenor
of a different authorized denomination, as requested by the Holder surrendering the same.
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No service charge shall be
made for any such registration of transfer or exchange, but the Issuer may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith.
13. Persons
Deemed Owners. Prior to due presentment of this Note for registration of transfer, the Limited Parent Guarantor, each Restricted Obligor,
the Trustee and any agent of the Limited Parent Guarantor, any Restricted Obligor or the Trustee may treat the Person in whose name this
Note is registered as the owner hereof for all purposes whatsoever, whether or not this Note be overdue, and neither the Limited Parent
Guarantor, any Restricted Obligor, the Trustee nor any agent of the Limited Parent Guarantor, any Restricted Obligor or the Trustee shall
be affected by notice to the contrary.
14. Unclaimed
Money. Any money deposited with the Trustee or any Paying Agent, or then held by the Issuer, in trust for the payment of the principal
of (and premium, if any), and any interest on, any Notes and remaining unclaimed for two years after such principal (and premium, if any),
and any interest, has become due and payable shall be paid to the Issuer on Company Request, or (if then held by the Issuer) shall be
discharged from such trust; and the Holder of such Note shall thereafter, as an unsecured general creditor, look only to the Issuer
for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the
Issuer as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before
being required to make any such repayment, may at the expense of the Issuer cause to be published once, in an Authorized Newspaper in
each Place of Payment, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Issuer.
15. Guarantees.
The Notes will be entitled to the benefits of guarantees from HoldCo and Subsidiaries thereof (other than the Issuer) made for the benefit
of the Holders of the Notes. In addition, the Notes will be entitled to the benefits of a limited guarantee from the Limited Parent Guarantor
made for the benefit of the Holders of the Notes Limited Parent Guarantor shall guarantee the Notes pursuant to and subject to the terms
of Section 12.12 of the Indenture. Reference is hereby made to the Indenture for a statement of the respective rights, limitations
of rights, duties and obligations thereunder of the Guarantors, the Trustee and the Holders.
16. Security.
This Note and the other Notes will be secured by security interests on the Collateral, subject to Permitted Liens and any other limitation
on the extent to which the Collateral secures the Notes Obligations contemplated by the Security Documents and Intercreditor Agreements,
as set forth in Article Fourteen of the Indenture.
17. No
Recourse Against Others. A trustee, director, officer, employee, incorporator, member or shareholder, as such, of the Limited Parent
Guarantor or any Restricted Obligor shall not have any liability for any obligations of the Limited Parent Guarantor or any Restricted
Obligor under this Note, the other Notes, the Guarantees, the Indenture, the Security Documents or the Intercreditor Agreements or for
any claim based on, in respect of, or by reason of, such obligations or their creation. By accepting a Note, each Holder shall waive and
release all such liability. The waiver and release are part of the consideration for issuance of the Notes.
A-18
18. No
Personal Liability. THE AMENDED AND RESTATED DECLARATION OF TRUST ESTABLISHING OFFICE PROPERTIES INCOME TRUST, DATED JUNE 8, 2009,
AS AMENDED, AS FILED WITH THE STATE DEPARTMENT OF ASSESSMENTS AND TAXATION OF MARYLAND, PROVIDES THAT NO TRUSTEE, OFFICER, SHAREHOLDER,
EMPLOYEE OR AGENT OF OFFICE PROPERTIES INCOME TRUST SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION
OF, OR CLAIM AGAINST, OFFICE PROPERTIES INCOME TRUST. ALL PERSONS DEALING WITH OFFICE PROPERTIES INCOME TRUST IN ANY WAY SHALL LOOK ONLY
TO THE ASSETS OF OFFICE PROPERTIES INCOME TRUST FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.
NO TRUSTEE, DIRECTOR, OFFICER,
MANAGER, EMPLOYEE, AGENT, INCORPORATOR, STOCKHOLDER, PARTNER OR MEMBER OF THE ISSUER OR ANY GUARANTOR, AS SUCH, SHALL HAVE ANY LIABILITY
FOR ANY OBLIGATIONS OF THE ISSUER OR ANY GUARANTOR UNDER THE NOTES OR THE INDENTURE OR FOR ANY CLAIM BASED ON, IN RESPECT OF, OR
BY REASON OF, SUCH OBLIGATIONS OR THEIR CREATION, SOLELY BY REASON OF ITS STATUS AS A TRUSTEE, DIRECTOR, OFFICER, MANAGER, EMPLOYEE, AGENT, INCORPORATOR,
STOCKHOLDER OR MEMBER OF THE ISSUER OR A GUARANTOR. BY ACCEPTING A NOTE, EACH HOLDER WAIVES AND RELEASES ALL SUCH LIABILITY. THE WAIVER
AND RELEASE ARE PART OF THE CONSIDERATION FOR ISSUANCE OF THE NOTES.
19. Authentication.
This Note shall not be valid until an authorized officer of the Trustee (or an Authenticating Agent) manually or electronically signs
the certificate of authentication on the other side of this Note.
20. Abbreviations.
Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants
by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A
(= Uniform Gifts to Minors Act).
21. ISIN
and/or CUSIP Numbers. The Issuer may cause ISIN and/or CUSIP numbers to be printed on the Notes, and if so the Trustee shall use ISIN
and/or CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers
either as printed on the Notes or as contained in any notice of redemption, and reliance may be placed only on the other identification
numbers placed on the Notes.
22. Governing
Law. This Note shall be governed by, and construed in accordance with, the laws of the State of New York.
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:
(Insert assignee’s legal name)
(Insert assignee’s soc. sec. or tax I.D. no.)
(Print or type assignee’s name, address and zip code)
and irrevocably appoint
to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.
Date:
Your Signature:
(Sign exactly as your name appears on the face
of this Note)
Signature Guarantee*:
* Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor acceptable to the Trustee).
A-20
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR
REGISTRATION OF TRANSFERS OF TRANSFER RESTRICTED NOTES
This certificate relates to
$__________ principal amount of Notes held in (check applicable space) ____ book-entry or _____ definitive form by the undersigned.
The undersigned (check one
box below):
¨ has requested the Trustee by written order to deliver in exchange for its beneficial interest in a Global
Note held by the Depositary a Note or Notes in definitive, registered form of authorized denominations and an aggregate principal amount
equal to its beneficial interest in such Global Note (or the portion thereof indicated above) in accordance with the Indenture; or
¨ has requested the Trustee by written order to exchange or register the transfer of a Note or Notes.
In connection with any transfer
of any of the Notes evidenced by this certificate, the undersigned confirms that such Notes are being transferred in accordance with its
terms:
CHECK ONE BOX BELOW
(1) ¨
to the Issuer or subsidiary thereof; or
(2) ¨
to the Security Registrar for registration in the name of the Holder, without transfer; or
(3) ¨
pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “Securities Act”);
or
(4) ¨
to a Person that the undersigned reasonably believes is a “qualified institutional buyer” (as defined in Rule 144A under
the Securities Act (“Rule 144A”)) that purchases for its own account or for the account of a qualified institutional
buyer and to whom notice is given that such transfer is being made in reliance on Rule 144A, in each case pursuant to and in compliance
with Rule 144A; or
(5) ¨
pursuant to offers and sales to non-U.S. persons that occur outside the United States within the meaning of Regulation S under the Securities
Act (and if the transfer is being made prior to the expiration of the Distribution Compliance Period, the Notes shall be held immediately
thereafter through Euroclear or Clearstream); or
(6) ¨
to an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities
Act) that has furnished to the Trustee a signed letter in the form of Exhibit B containing certain representations and agreements;
or
(7) ¨
pursuant to Rule 144 under the Securities Act; or
(8) ¨
pursuant to another available exemption from registration under the Securities Act.
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Unless one of the boxes is checked,
the Trustee will refuse to register any of the Notes evidenced by this certificate in the name of any Person other than the registered
Holder thereof; provided, however, that if box (5), (6), (7) or (8) is checked, the Issuer or the Trustee may
require, prior to registering any such transfer of the Notes, such legal opinions, certifications and other information as the Issuer
or the Trustee has reasonably requested to confirm that such transfer is being made pursuant to an exemption from, or in a transaction
not subject to, the registration requirements of the Securities Act.
Your Signature
Date:
Signature of Signature
Guarantor
TO BE COMPLETED BY PURCHASER IF (4) ABOVE
IS CHECKED.
The undersigned represents and
warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion
and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A, and is aware that
the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Issuer
as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that
the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided
by Rule 144A.
Date:
NOTICE:
To be executed by an executive officer
Name:
Title
Signature Guarantee*:
* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable
to the Trustee).
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TO BE COMPLETED IF THE HOLDER REQUIRES AN
EXCHANGE FROM A REGULATION S GLOBAL NOTE TO AN UNRESTRICTED GLOBAL NOTE, PURSUANT TO SECTION 2.2(d)(iii) OF APPENDIX A TO
THE INDENTURE1
The undersigned represents and warrants that either:
¨ the undersigned is not a dealer (as defined in the Securities Act) and is a non-U.S. person (within the
meaning of Regulation S under the Securities Act); or
¨ the undersigned is not a dealer (as defined in the Securities Act) and is a U.S. person (within the meaning
of Regulation S under the Securities Act) who purchased interests in the Notes pursuant to an exemption from, or in a transaction not
subject to, the registration requirements under the Securities Act; or
¨ the undersigned is a dealer (as defined in the Securities Act) and the interest of the undersigned in
this Note does not constitute the whole or a part of an unsold allotment to or subscription by such dealer for the Notes.
Date:
Your Signature
1 Include only for Regulation S Global Notes.
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SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL
NOTE*
The initial outstanding principal
amount of this Global Note is $____________. The following exchanges of a part of this Global Note for an interest in another Global Note
or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this Global Note, have been
made:
Date of Exchange
Amount of
decrease
in principal
amount of
this Global Note
Amount of
increase
in principal
amount of
this
Global Note
Principal
amount of
this Global
Note
following
such
decrease or
increase
Signature of
authorized signatory
of Trustee,
Depositary or
Custodian
* This schedule should be included only if the Note is issued in global form.
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EX-4.3 — EXHIBIT 4.3
EX-4.3
Filename: tm2618043d2_ex4-3.htm · Sequence: 4
Exhibit 4.3
WARRANT AGREEMENT
THIS WARRANT AGREEMENT (this
“Agreement”), dated as of June 17, 2026, is by and among Office Properties Income Trust, a Maryland real estate investment
trust (the “Company”), and CSC Delaware Trust Company, as warrant agent (together with its respective successors and
assigns, the “Warrant Agent”).
WHEREAS,
on October 30, 2025, the Company and its affiliated debtors (collectively, the “Debtors”) filed voluntary petitions
for relief under chapter 11 of title 11 of the United States Code in the United States Bankruptcy Court for the Southern District of Texas
(the “Bankruptcy Court”);
WHEREAS,
on April 21, 2026, the Debtors filed the Fourth Amended Joint Chapter 11 Plan of Reorganization of Office Properties
Income Trust and its Debtor Affiliates [Docket No. 1223] (as may be amended, modified, or supplemented from time to time,
the “Plan”);
WHEREAS,
on April 22, 2026, the Bankruptcy Court entered an order confirming the Plan, and the Debtors emerged from their chapter 11 cases
on the date first written above (the “Effective Date”);
WHEREAS,
pursuant to the Plan, the Company will issue or cause to be issued, on or as soon as reasonably practicable after the Effective Date,
warrants (the “Warrants”) to purchase the Company’s common shares of beneficial interest, $0.01 par value per
share (“Common Shares”), representing an aggregate total of 5% of the total number of Common Shares as of the Effective
Date;
WHEREAS,
the Company desires to provide for the form and provisions of the Warrants, the terms upon which they shall be issued and exercised, and
the respective rights, limitation of rights, and immunities of the Company, the Warrant Agent, and the holders of the Warrants;
WHEREAS,
the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing to so act, in connection with
the issuance, registration, transfer, exchange, call, exercise and cancellation of the Warrants; and
WHEREAS,
all acts have been done and performed which are necessary to make the Warrants, when issued, the valid, binding and legal obligations
of the Company, and to authorize the execution and delivery of this Agreement.
NOW,
THEREFORE, in consideration of the mutual agreements herein contained, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.1. Definition
of Terms. As used in this Agreement, the following capitalized terms shall have the following respective meanings:
(a) “Additional
Common Shares” has the meaning set forth in Section 5.1(a) hereof.
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(b) “Affiliate”
has the meaning set forth in Rule 12b-2 of the Exchange Act.
(c) “Appropriate
Officer” means any duly authorized officer of the Company.
(d) “Bankruptcy
Code” means Title 11 of the United States Code, 11 U.S.C. §§ 101-1532.
(e) “Beneficial
Holders” means, with respect to any Warrants represented by a Global Warrant Certificate, any person or entity that “beneficially
owns” (as such term is defined and determined pursuant to Rule 13d-3 promulgated under the Exchange Act) such Warrants.
(f) “Board
of Trustees” means the Board of Trustees of the Company.
(g) “Book-Entry
Warrants” has the meaning set forth in Section 3.1(c) hereof.
(h) “Business
Day” means any day other than a Saturday, Sunday, or any day on which the Federal Reserve Bank of New York is authorized or
required by law or executive order to close or be closed.
(i) “Calculation
Notice” has the meaning set forth in Section 4.3(b).
(j) “Certificated
Warrant” has the meaning set forth in Section 3.1(c) hereof.
(k) “Common
Shares” has the meaning set forth in the Recitals, and shall include any successor security as a result of any recapitalization,
reorganization, reclassification or similar transaction involving the Company.
(l) “Convertible
Securities” means any securities (directly or indirectly) convertible into or exchangeable for Common Shares, but excluding
Options.
(m) “Current
Sale Price” of the Common Shares on any date of determination means:
(i) if
the Common Shares are listed on the New York Stock Exchange or The Nasdaq Stock Market on such date, the average closing sale price per
Common Share for the ten (10) consecutive trading days immediately prior to such date of determination, as reported by the New York
Stock Exchange or The Nasdaq Stock Market;
(ii) if
the Common Shares are not listed on the New York Stock Exchange or The Nasdaq Stock Market on such date, but are listed on another U.S.
national or regional securities exchange, the average closing sale price per Common Share for the ten (10) consecutive trading days
immediately prior to such date of determination, as reported in composite transactions for the principal securities exchange on which
the Common Shares are traded; provided, if no closing sale price is reported on such exchange, then the Current Sale price shall
be the average of the high bid and low asked prices during such ten (10) day trading day period;
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(iii) if
the Common Shares are not listed on a U.S. national or regional securities exchange as contemplated in clauses (i) and (ii) above,
the average last quoted sale price for the Common Shares for the ten (10) consecutive trading days immediately prior to such date
of determination, in the over-the-counter market as reported by OTC Markets Group Inc. or other similar organization; provided,
if no closing sale price is reported by OTC Markets Group Inc. or other similar organization, then the Current Sale price shall be the
average of the high bid and low asked prices during such ten (10) day trading day period; or
(iv) in
all other cases, the fair market value of the Common Shares as most recently determined by the Valuation Firm.
The Current Sale Price shall be determined without
reference to early hours, after hours, or extended market trading.
The Current Sale Price shall be appropriately
adjusted by the Board of Trustees in good faith if the “ex date” (as hereinafter defined) for any event (other than the issuance
or distribution requiring such computation) occurs during the ten (10) consecutive trading days immediately prior to the day as of
which the Current Sale Price is being determined.
For these purposes the term “ex
date”, when used:
(i) with
respect to any issuance or distribution, means the first date on which the Common Shares trade regular way on the relevant exchange or
in the relevant market from which the sale price or bid and ask prices, as applicable, were obtained without the right to receive such
issuance or distribution;
(ii) with
respect to any subdivision or combination of Common Shares, means the first date on which the Common Shares trade regular way on such
exchange or in such market after the time at which such subdivision or combination becomes effective; and
(iii) with
respect to any tender or exchange offer, means the first date on which the Common Shares trade regular way on such exchange or in such
market after the expiration time of such offer.
(iv) The
foregoing adjustments shall be made to the Current Sale Price in accordance with the terms hereof, as may be necessary or appropriate
to effectuate the intent of this Agreement and to avoid unjust or inequitable results as determined in good faith by the Board of Trustees.
(n) “Date
of Issuance” has the meaning set forth in Section 3.1(a) hereof.
(o) “Depositary”
has the meaning set forth in Section 3.1(c) hereof.
(p) “Direct
Registration Warrants” has the meaning set forth in Section 3.1(c) hereof.
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(q) “Effective
Date” has the meaning set forth in the Recitals.
(r) “Exchange”
means, in the case of any securities, (i) the principal U.S. national or regional securities exchange on which such securities are
then listed or (ii) if such securities are not then listed on a principal U.S. national or regional securities exchange, the principal
other market on which such securities are then traded.
(s) “Exchange
Act” means the Securities Exchange Act of 1934, as amended.
(t) “Excluded
Issuances” means any issuance or sale (or deemed issuance or sale in accordance with Section 5.1(b)) by the Company
after the Date of Issuance of (a) Common Shares issued upon the exercise of any Warrants; (b) Common Shares issued directly
or upon the exercise or settlement of Options, restricted stock units, or other equity-based awards to directors, officers, trustees,
employees, managers, or consultants of the Company in connection with their service as trustees, directors, or managers of the Company,
their employment by the Company, or their retention as consultants by the Company, in each case as authorized by the Board of Trustees;
or (c) Common Shares or Convertible Securities issued as consideration in any business combination or acquisition by the Company
or its Affiliates with any third party, whether by merger, consolidation, purchase of assets, or otherwise.
(u) “Exercise
Conditions” has the meaning set forth in Section 4.3(a).
(v) “Exercise
Date” has the meaning set forth in Section 4.3(a).
(w) “Exercise
Form” means (i) in the case of Certificated Warrants, an election form substantially in the form of Exhibit B-1
hereto; (ii) in the case of Direct Registration Warrants, an election form substantially in the form of Exhibit B-2
hereto; and (iii) in the case of Book-Entry Warrants, an exercise form compliant with the practices and procedures of the Depositary
and its direct and indirect participants, as applicable.
(x) “Exercise
Price” has the meaning set forth in Section 4.1 hereof.
(y) “Exercise
Period” has the meaning set forth in Section 4.2 hereof.
(z) “Funds”
has the meaning set forth in Section 9.14.
(aa) “Global
Warrant Certificates” has the meaning set forth in Section 3.1(c) hereof.
(bb) “Governmental
Authority” means any (i) government, (ii) governmental or quasi-governmental authority of any nature (including any
governmental agency, branch, department, official or entity and any court or other tribunal), or (iii) body exercising, or entitled
to exercise, any administrative, executive, judicial, legislative, police, regulatory or taxing authority, or power of any nature, in
each case, whether federal, state, local, municipal, foreign, supranational, or of any other jurisdiction.
(cc) “Holder”
has the meaning set forth in Section 4.1 hereof.
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(dd) “Law”
means all laws, statutes, rules, regulations, codes, injunctions, decrees, orders, ordinances, registration requirements, disclosure requirements,
and other pronouncements having the effect of law of the United States, any foreign country or any domestic or foreign state, county,
city, or other political subdivision or of any Governmental Authority.
(ee) “Non-Extraordinary
Dividend” means any dividend or distribution in cash, securities, or other assets to the holders of Common Shares or other shares
of beneficial interest of the Company into which the Warrants are exercisable that is a regularly scheduled dividend or distribution required
to maintain the Company’s status as a Maryland real estate investment trust.
(ff) “Options”
means any warrants or other rights or options to subscribe for, purchase or otherwise receive Common Shares or Convertible Securities.
(gg) “Organic
Change” means any recapitalization, reorganization, reclassification, consolidation, merger, sale of all or substantially all
of the Company’s equity securities or assets, or other transaction, in each case which is effected in such a way that the holders
of Common Shares are entitled to receive (either directly or upon subsequent liquidation) cash, stock, shares, securities, or other assets
or property with respect to or in exchange for Common Shares, other than a transaction which triggers an adjustment pursuant to Sections
5.1, 5.2 or 5.3 and other than a change that solely affects the par value of the Common Shares.
(hh) “Original
Adjustment Date” has the meaning set forth in Section 5.1(b)(ii).
(ii) “Person”
means any individual, firm, corporation, partnership, limited partnership, limited liability company, association, indenture trustee,
organization, joint stock company, joint venture, estate, trust, governmental unit or any political subdivision thereof, or any other
entity (as such term is defined in the Bankruptcy Code).
(jj) “Plan”
has the meaning set forth in the Recitals.
(kk) “Registered
Holder” has the meaning set forth in Section 3.3(d) hereof.
(ll) “Requisite
Holders” means Registered Holders of Warrants exercisable for a majority of the Common Shares issuable upon exercise of all
Warrants then outstanding.
(mm) “SEC”
means the Securities and Exchange Commission or any other federal agency at the time administering the Securities Act or the Exchange
Act.
(nn) “Securities
Act” means the Securities Act of 1933, as amended.
(oo) “Subsidiary”
means, with respect to any Person, any corporation, partnership, limited liability company, or other business entity of which (i) if
a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency)
to vote in the election of directors is at the time owned or controlled, directly or indirectly, by that Person or one or more of the
other Subsidiaries of that Person or a combination thereof, or (ii) if a partnership, limited liability company or other business
entity (other than a corporation), a majority of the partnership, limited liability company or other similar ownership interest thereof
is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or
a combination thereof. For purposes hereof, a Person or Persons shall be deemed to have a majority ownership interest in a partnership,
limited liability company or other business entity if such Person or Persons shall be allocated a majority of partnership, limited liability
company or other business entity gains or losses or shall be or control the general partner, the managing member or entity performing
similar functions of such partnership, limited liability company, or other business entity.
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(pp) “Transfer”
means any transfer, sale, assignment, or other disposition.
(qq) “Valuation
Firm” means an independent investment banking or financial valuation firm of nationally recognized standing (a) that is
experienced in valuations of securities similar to the Common Shares, (b) which does not (and whose directors, executive officers,
and Affiliates, to the knowledge of the Company, do not) have a material direct or indirect financial interest in the Company or any of
its Affiliates (other than by virtue of compensation paid for valuation or fairness advice or opinions to the Company or any of its Affiliates),
and (c) which has not been, within the two years prior to its engagement hereunder, and, at the time it is engaged hereunder, is
not (and none of whose directors, executive officers, or Affiliates, to the knowledge of the Company, is), Affiliated with, or engaged
to perform services for (other than those contemplated hereunder), or a director or executive officer of, or an underwriter with respect
to any of the securities of, the Company or any of its Affiliates (other than by virtue of compensation paid for valuation or fairness
advice or opinions to the Company or any such Affiliates).
(rr) “Warrant
Agent” has the meaning set forth in the preamble and shall include any successor to the Warrant Agent pursuant to Section 8.1
hereof.
(ss) “Warrant
Certificate” has the meaning set forth in Section 3.1(c) hereof.
(tt) “Warrant
Exercise Shares” means the Common Shares issued upon the exercise of a Warrant.
(uu) “Warrant
Register” has the meaning set forth in Section 3.3(c) hereof.
(vv) “Warrant
Restrictions” means, with respect to any Certificated Warrants or Direct Registration Warrant, any restriction on transfer or
exercise, or any vesting requirement.
(ww) “Warrant
Statements” has the meaning set forth in Section 3.1(c) hereof.
(xx) “Warrants”
has the meaning set forth in the Recitals.
Section 1.2. Rules of
Construction.
(a) The
singular form of any word used herein, including the terms defined in Section 1.1 hereof, shall include the plural, and vice
versa.
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(b) The
use herein of a word of any gender shall include correlative words of all genders.
(c) The
words “include,” “includes,” and “including” shall be deemed to be followed by the words “without
limitation.”
(d) Unless
otherwise specified, references to Articles, Sections, and other subdivisions of this Agreement are to the designated Articles, Sections,
and other subdivision of this Agreement as originally executed.
(e) The
word “or” when used in this Warrant Agreement is not exclusive.
(f) References
to a party or the parties mean the parties to this Warrant Agreement, in each case, unless another agreement is specified.
(g) Unless
otherwise expressly indicated, any agreement, instrument, law, or statute defined or referred to in this Warrant Agreement means such
agreement, instrument, law, or statute as from time to time amended, restated, modified, or supplemented, including (in the case of agreements
or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes, and any statute defined
or referred to in this Warrant Agreement shall include all rules and regulations promulgated under the same.
(h) References
to “day” or “days” are to calendar days, and whenever any action must be taken under this Warrant Agreement on
or by a day that is not a Business Day, then that action may be validly taken on or by the next day that is a Business Day.
(i) References
to a Person are also to its permitted successors and assigns and, in the case of such Persons that are individuals, such individual’s
heirs, executors, and administrators.
(j) In
the event that any claim is made by any Person relating to any conflict, omission, or ambiguity in this Warrant Agreement, no presumption
or burden of proof or persuasion shall be implied by virtue of the fact that this Warrant Agreement was prepared by or at the request
of a particular Person or such Person’s counsel.
(k) The
words “hereof,” “herein,” “hereunder,” and words of similar import refer to this Agreement as a whole.
(l) References
to “$” are to dollars in lawful currency of the United States of America.
(m) The
Exhibits attached hereto are an integral part of this Agreement.
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ARTICLE II.
APPOINTMENT
OF WARRANT AGENT
Section 2.1. Appointment.
The Company hereby appoints the Warrant Agent to act as agent for the Company for the Warrants in accordance with the express terms and
subject to the conditions set forth in this Agreement. The Warrant Agent hereby accepts such appointment and agrees to perform the same
in accordance with the express terms and conditions set forth in this Agreement.
ARTICLE III.
WARRANTS
Section 3.1. Issuance
of Warrants.
(a) On
the terms and subject to the conditions of this Agreement, on or as soon as reasonably practicable after the Effective Date the Company
will issue the Warrants in accordance with the Plan. For the avoidance of doubt, the Warrants shall be deemed issued on the Effective
Date for all purposes under the Plan, including for purposes of the satisfaction of the conditions precedent set forth in Article 9.1
thereof, notwithstanding that delivery or settlement of the Warrants may occur as soon as reasonably practicable thereafter (the date
on which the Warrants are deemed issued pursuant to this Section 3.1(a), the “Date of Issuance”).
(b) The
initial number of Common Shares issuable upon exercise of the Warrants shall be 1,155,450 shares, as such amount may be adjusted from
time to time pursuant to this Agreement.
(c) Unless
otherwise provided in this Agreement, the Warrants shall be issued through the book-entry facilities of The Depository Trust Company,
as depositary (the “Depositary”), in the form of one or more global warrant certificates (“Global Warrant
Certificates”), duly executed on behalf of the Company and countersigned, either by manual or facsimile signature, by the Warrant
Agent, in the manner set forth in Section 3.2(b) below, which the Company shall deliver, or cause to be delivered to
the Depositary, on or as soon as reasonably practicable after the Date of Issuance (such Warrants being referred to as “Book-Entry
Warrants”).
(d) Any
Warrants which are not issuable pursuant to clause (c) above through the mandatory reorganization function of the Depositary shall
either be (x) represented by certificates (collectively, with the Global Warrant Certificates, “Warrant Certificates”;
and any Warrant represented by a Warrant Certificate, other than a Global Warrant Certificate, being referred to as a “Certificated
Warrant”) or (y) issued by electronic entry registration on the books of the Warrant Agent (“Direct Registration
Warrants”) and shall be reflected on statements issued by the Warrant Agent from time to time to the holders thereof (the “Warrant
Statements”).
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Section 3.2. Form of
Warrant; Execution of Warrant Certificates.
(a) Subject
to Section 6.1 of this Agreement, the Global Warrant Certificates shall be in substantially the form set forth in Exhibit A-1
attached hereto. The certificates for Certificated Warrants shall be in substantially the form set forth in Exhibit A-2 attached
hereto.
(b) The
Warrant Certificates may bear such appropriate insertions, omissions, substitutions, and other variations as are required or permitted
by this Agreement, may have such letters, numbers, or other marks of identification or designation and such legends or endorsements placed
thereon as may be required by the Depositary (including as provided in Section 3.2(c)) and as are consistent with the provisions
of this Agreement, or as may be required to comply with any Law or with any rules or regulations made pursuant thereto or with any
rules of any Exchange.
(c) The
Global Warrant Certificates shall bear a legend substantially in the form indicated therefor on Exhibit A-1. The Global Warrant
Certificates shall be deposited on or after the Date of Issuance with the Warrant Agent and registered in the name of Cede &
Co., as the nominee of the Depositary. Each Global Warrant Certificate shall represent such number of the outstanding Warrants as specified
therein, and each shall provide that it shall represent the aggregate amount of outstanding Warrants from time to time endorsed thereon
and that the aggregate amount of outstanding Warrants represented thereby may from time to time be reduced or increased, as appropriate,
in accordance with the terms of this Agreement.
(d) A
Warrant Certificate shall be, and shall remain, subject to the provisions of this Agreement until such time as all of the Warrants evidenced
thereby shall have been duly exercised or shall have expired or been cancelled in accordance with the terms hereof.
Section 3.3. Registration
and Countersignature.
(a) Upon
receipt of a written order of the Company signed by an Appropriate Officer, the Warrant Agent (i) shall upon receipt of Warrant Certificates
duly executed on behalf of the Company, countersign such Global Warrant Certificates, and record such Warrant Certificates, including
the Registered Holders thereof, in the Warrant Register, and (ii) shall register in the Warrant Register any Direct Registration
Warrants in the names of the initial Registered Holders thereof. Such written order of the Company shall specifically state the number
of Warrants that are to be issued as Certificated Warrants, Direct Registration Warrants, or Book-Entry Warrants, and the name of the
Registered Holders thereof. The Warrant Agent may rely conclusively on such written order. Notwithstanding the foregoing or anything else
in this Agreement to the contrary, the Company shall not instruct the Warrant Agent to register any Direct Registration Warrants unless
and until the Warrant Agent shall confirm to the Company in writing that it has the capabilities to accommodate Direct Registration Warrants.
(b) No
Warrant Certificate shall be valid for any purpose, and no Warrant evidenced thereby shall be exercisable, until such Warrant Certificate
has been countersigned by the Warrant Agent. Such signature by the Warrant Agent upon any Warrant Certificate executed by the Company
shall be conclusive evidence that such Warrant Certificate so countersigned has been duly issued hereunder.
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(c) The
Warrant Agent shall keep or cause to be kept, at an office designated for such purpose, books in which it shall register the Certificated
Warrants or Direct Registration Warrants, and the Warrants represented by Global Warrant Certificates, and exercises, exchanges, cancellations,
and transfers of outstanding Warrants (the “Warrant Register”).
(d) No
service charge shall be made for any exchange or registration of transfer of the Warrants, but the Company may require payment of a sum
sufficient to cover any stamp or other tax or other charge that may be imposed on any Registered Holder in connection with any such exchange
or registration of transfer. The Warrant Agent shall have no obligation to effect an exchange or register a transfer unless and until
it is satisfied that any payments required by the immediately preceding sentence have been made.
(e) Prior
to due presentment for registration of transfer or exchange of any Warrants, the Company and the Warrant Agent may deem and treat the
person in whose name such Warrants are registered upon the Warrant Register (the “Registered Holder”) as the absolute
owner of such Warrants, for all purposes. Neither the Company nor the Warrant Agent will be liable or responsible for any registration
or transfer of any Warrants that are registered or to be registered in the name of a fiduciary or the nominee of a fiduciary.
ARTICLE IV.
TERMS
AND EXERCISE OF WARRANTS
Section 4.1. Exercise
Price. Subject to adjustments provided in Article V hereof, each Warrant shall entitle (i) in the case of the Certificated
Warrants or Direct Registration Warrants, the Registered Holder thereof and (ii) in the case of Book-Entry Warrants, the Beneficial
Holder thereof (in each case, a “Holder”), the right to purchase from the Company one Common Share at the price of
$25.00 per share (the “Exercise Price”).
Section 4.2. Exercise
Period. Warrants may be exercised by the Holder thereof, in whole or in part, on any Business Day after the Date of Issuance and prior
to 5:00 P.M., New York time, on June 17, 2033 (the “Exercise Period”). To the extent that a Warrant or portion thereof
is not exercised prior to the expiration of the Exercise Period, it shall be automatically cancelled with no action by any Person, and
with no further rights thereunder, upon such expiration.
Section 4.3. Method
of Exercise.
(a) Subject
to the terms and conditions of this Agreement, the Holder of any Warrants may exercise such Holder’s right to purchase the Warrant
Exercise Shares by (i) delivering to the Warrant Agent and the Company an Exercise Form properly completed and duly executed,
(ii) in the case of Certificated Warrants, surrendering Warrant Certificate(s) therefor with proper endorsement to the Warrant
Agent, and (iii) remitting payment to the Company (or the Warrant Agent if directed by the Company) in immediately available funds
in an amount equal to the aggregate Exercise Price as specified in the Exercise Form for the Warrant(s) being exercised (collectively,
the “Exercise Conditions”). The “Exercise Date” shall be the date on which all Exercise Conditions
in respect of a Warrant have been satisfied or waived.
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(b) Upon
submission of an Exercise Form in accordance with Section 4.3(a), the Company shall calculate the number of Common Shares issuable
in connection with such exercise and transmit such calculation to the Warrant Agent in a written notice (a “Calculation Notice”).
The Warrant Agent shall have no duty, responsibility, or obligation to calculate the number of Common Shares issuable in connection with
any exercise and shall be entitled to rely conclusively on any Calculation Notice; provided, to the extent a Holder, acting in
good faith, disagrees with the Company and Warrant Agent about the number of Common Shares issuable in connection with the exercise of
the Warrant, the Company, the Warrant Agent and such Holder shall work in good faith to resolve such dispute.
(c) Any
Exercise Price payable hereunder shall be paid by the Holder in United States dollars by certified or official bank check payable to the
Company, or by wire transfer to an account specified in writing by the Company or the Warrant Agent to such Holder, in either case in
immediately available funds.
(d) Any
exercise of Warrants pursuant to the terms of this Agreement shall be irrevocable as of the date of delivery of the Exercise Form and
shall constitute a binding agreement between the Holder and the Company, enforceable in accordance with the terms of this Agreement.
(e) Upon
receipt of an Exercise Form, the Warrant Agent shall:
(i) examine
the Exercise Form and all other documents delivered to it by or on behalf of Holders as contemplated hereunder to ascertain whether
or not, on their face, such Exercise Form and any such other documents have been executed and completed in accordance with their
terms and the terms hereof;
(ii) if
an Exercise Form or other document appears, on its face, to have been improperly completed or executed or some other irregularity
in connection with the exercise of the Warrants exists, endeavor to inform the appropriate parties (including the person submitting such
instrument) of the need for fulfillment of all requirements, specifying those requirements which appear to be unfulfilled;
(iii) inform
the Company of and cooperate with and assist the Company in resolving any reconciliation problems between the information provided on
any Exercise Form received and the information on the Warrant Register;
(iv) advise
the Company as promptly as practicable, within a reasonable time period to enable the Company to meet its obligations under Section 4.4(a),
after receipt of an Exercise Form, of (A) the receipt of such Exercise Form and the number of Warrant Exercise Shares in respect
of which the Warrants are requested to be exercised in accordance with the terms and conditions of this Agreement, (B) the instructions
with respect to delivery of the Common Shares deliverable upon such exercise, subject to timely receipt of such information by the Warrant
Agent, and (C) such other information as the Company shall reasonably request; and
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(v) subject
to Common Shares being made available to the Warrant Agent by or on behalf of the Company, and written instructions from the Company,
liaise with the transfer agent for the Common Shares for the issuance and registration of the number of Common Shares issuable upon exercise
of the Warrants in accordance with the Exercise Form.
(f) The
Company reserves the right reasonably to reject any and all Exercise Forms that it reasonably determines are not in proper form or for
which any corresponding agreement by the Company to exchange would, in the opinion of the Company, be unlawful. Any such determination
by the Company shall be final and binding on the Holders of the Warrants, absent manifest error. Moreover, the Company reserves the absolute
right to waive any of the conditions to any particular exercise of Warrants or any defects in the Exercise Form(s) with regard to
any particular exercise of Warrants. The Company shall provide prompt written notice to the Warrant Agent of any such rejection or waiver.
(g) In
the case of Book-Entry Warrants, the Company and the Warrant Agent shall cooperate with the Depositary and its direct and indirect participants
in order to effectuate the exercise of such Warrants, in accordance with the applicable practices and procedures of the Depositary and
such participants, including the manner of delivery of notice of exercise by the Beneficial Holders thereof, in such form as shall be
prescribed by such participants, as applicable.
(h) The
Warrant Agent shall forward funds received for Warrant exercises promptly following receipt thereof by wire transfer to an account designated
by the Company.
Section 4.4. Issuance
of Common Shares.
(a) Upon
the effectiveness of any exercise of any Warrants pursuant to Section 4.3(a), the Company shall, subject to Section 4.6,
promptly at its expense, and in no event later than three (3) Business Days after the Exercise Date, cause to be issued as directed
by the Holder of such Warrants the total number of whole Common Shares for which such Warrants are being exercised (as the same may be
hereafter adjusted pursuant to Article V) in such denominations as are requested by the Holder as set forth below: (i) in
the case of the exercise of any Certificated Warrants or Direct Registration Warrants by the Registered Holder thereof, registered as
directed by the Holder, or (ii) in the case of the exercise of any Book-Entry Warrants by the Beneficial Holder thereof, by same
day or next day credit to the Depositary in accordance with the practices and procedures of the Depositary and its respective participants,
delivered to such account as directed by the Holder.
(b) The
Warrant Exercise Shares shall be deemed to have been issued at the time at which the Exercise Conditions have been fulfilled or validly
waived, and the Holder, or other person to whom the Holder shall direct the issuance thereof, shall be deemed for all purposes to have
become the holder of such Warrant Exercise Shares at such time.
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Section 4.5. Reservation
of Shares.
(a) During
the Exercise Period, the Company shall at all times reserve and keep available out of its authorized but unissued Common Shares solely
for the purpose of issuance upon the exercise of the Warrants, a number of Common Shares equal to the aggregate Warrant Exercise Shares
issuable upon the exercise of all outstanding Warrants. The Company shall use commercially reasonable efforts to take all such actions
as may be necessary to assure that all such Common Shares may be so issued without violating the Company’s governing documents,
any agreements to which the Company is a party on the date hereof, any requirements of any securities exchange upon which Common Shares
may be listed, or any applicable Laws. The Company shall not take any action which would cause the number of authorized but unissued Common
Shares to be less than the number of such shares required to be reserved hereunder for issuance upon exercise of the Warrants.
(b) The
Company covenants that it will take such actions as may be necessary or appropriate in order that all Warrant Exercise Shares issued upon
exercise of the Warrants will, upon issuance in accordance with the terms of this Agreement, be fully paid and non-assessable and free
from any and all (i) security interests created by or imposed upon the Company and (ii) taxes, liens, and charges with respect
to the issuance thereof. If at any time prior to the expiration of the Exercise Period the number and kind of authorized but unissued
shares of beneficial interest of the Company shall not be sufficient to permit exercise in full of the Warrants, the Company will promptly
take such corporate action as may, in the opinion of its counsel, be reasonably necessary (including seeking shareholder approval, if
required) to increase its authorized but unissued shares to such number of shares as shall be sufficient for such purposes. The Company
agrees that its issuance of Warrants shall constitute full authority to its officers who are charged with the issuance of Warrant Exercise
Shares to issue Warrant Exercise Shares upon the exercise of Warrants. Without limiting the generality of the foregoing, the Company will
not increase the stated or par value per share, if any, of the Common Shares above the Exercise Price per share in effect immediately
prior to such increase in stated or par value.
(c) The
Company represents and warrants to the Holders that the issuance of the Warrants and the issuance of Common Shares upon exercise thereof
in accordance with the terms hereof will not constitute a breach of, or a default under, any other material agreements to which the Company
is a party on the date hereof.
Section 4.6. Fractional
Shares. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to issue any
fraction of a share of its shares of beneficial interest in connection with the exercise of any Warrants, and in any case where a Holder
of Warrants would, except for the provisions of this Section 4.6, be entitled under the terms thereof to receive a fraction
of a share upon the exercise of such Warrants, the Company shall, upon the exercise of such Warrants, issue or cause to be issued only
the largest whole number of Warrant Exercise Shares issuable upon such exercise (and such fraction of a share will be disregarded, and
the Holder shall not have any rights or be entitled to any payment with respect to such fraction of a share); provided that the
number of whole Warrant Exercise Shares which shall be issuable upon the contemporaneous exercise of any Warrants shall be computed on
the basis of the aggregate number of Warrant Exercise Shares issuable upon exercise of all such Warrants.
Section 4.7. Close
of Books; Par Value. The Company shall not close its books against the transfer of any Warrants or any Warrant Exercise Shares in
any manner which interferes with the timely exercise of such Warrants. Without limiting Section 4.5(b), the Company shall
use commercially reasonable efforts to, from time to time, take all such action as may be necessary to assure that the par value per share
of the unissued Common Shares acquirable upon exercise of the Warrants is at all times equal to or less than the Exercise Price then in
effect.
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Section 4.8. Payment
of Taxes.
(a) The
Company shall from time to time promptly pay all non-income taxes and charges that may be imposed upon the Company or the Warrant Agent
in respect of the issuance or delivery of any Warrant Exercise Shares upon the exercise of the Warrants, but the Company shall not be
obligated to pay any transfer taxes in respect of the Warrants or such Warrant Exercise Shares.
(b) Notwithstanding
anything herein to the contrary, if the Company or other applicable withholding agent is required by applicable law to pay withholding
taxes or backup withholding on behalf of a Holder or beneficial owner as a result of an actual or constructive disposition of or dividend
with respect to a Warrant (including on any constructive dividend deemed to arise under Section 305(c) of the Internal Revenue
Code of 1986, as amended (the “Code”)), then the Company or such withholding agent, as applicable, may set off the
amount of such withholding taxes or backup withholding against payments of cash or the delivery of Common Shares or other consideration,
if any, in respect of the Warrant (or any payments on Common Shares) or sales proceeds received by, or other funds or assets of, such
Holder or beneficial owner. The Company shall determine in its reasonable discretion the amount and the timing of any constructive disposition
or dividend.
(c) On
the Effective Date (or in the case of any transferee, the date such transferee becomes a Holder), and thereinafter upon reasonable request
by the Company or as required under applicable law, to the extent permitted by applicable law, the Holder shall deliver to the Company
or other applicable withholding agent tax forms or other documentation (including any applicable IRS Form W-8 or W-9) reasonably
satisfactory to the Company or other applicable withholding agent to establish an exemption from, or a reduction in the rate of, U.S.
withholding tax that may apply to any actual or constructive disposition of or dividend with respect to a Warrant (e.g., under Section 305(c) of
the Code).
Section 4.9. Company
Repurchase. The Company shall have the right, except as limited by applicable law, to purchase or otherwise to acquire one or more
Warrants at such times, in such manner and for such consideration as agreed by the Company and the applicable Holder.
Section 4.10. Listing.
The Company shall procure, at its sole expense, the listing of the Warrant Exercise Shares on all Exchanges on which the Common Shares
are then listed. The Company shall take all action reasonably necessary to ensure that the Common Shares (including all Warrant Exercise
Shares) will be issued without violation of any applicable Law or regulation or of any requirement of any Exchange on which such shares
are listed or traded.
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ARTICLE V.
ADJUSTMENT
OF EXERCISE PRICE AND NUMBER OF WARRANT
EXERCISE SHARES
In order to prevent dilution
of the rights granted under the Warrants, the Exercise Price shall be subject to adjustment from time to time as provided in this Article V,
and the number of Common Shares issuable upon exercise of each Warrant shall be subject to adjustment from time to time as provided in
this Article V. Notwithstanding anything in this Article V to the contrary, (i) no single event shall be
subject to adjustment under more than one section of this Article V so as to result in duplication and (ii) if any single
event would otherwise require adjustment of the Exercise Price or the number of Common Shares issuable upon exercise of each Warrant pursuant
to more than one such section, such adjustment shall be made by the Company in good faith in a manner the Company determines is most favorable
to the holders of Warrants.
Section 5.1. Additional
Common Shares.
(a) Issue
of Common Shares. In the event the Company shall at any time after the date hereof issue additional Common Shares, including any Additional
Common Shares deemed to be issued pursuant to Section 5.1(b) but excluding any Additional Common Shares issued pursuant
to any other provision of this Article V (collectively, the “Additional Common Shares”), then the Exercise
Price shall be reduced, concurrently with such issue, to a price determined in accordance with the following formula:
CPA2 = CPA1 * (A + B) ÷ (A + C)
For purposes of the foregoing formula, the following
definitions shall apply:
(i) “CPA2”
shall mean the Exercise Price in effect immediately after such issue of Additional Common Shares;
(ii) “CPA1”
shall mean the Exercise Price in effect immediately prior to such issue of Additional Common Shares;
(iii) “A”
shall mean the number of Common Shares outstanding and deemed outstanding immediately prior to such issue of Additional Common Shares;
(iv) “B”
shall mean the number of Common Shares which the aggregate consideration expected to be received by the Company (as determined in good
faith by the Board of Trustees) would purchase at the Current Sale Price; and
(v) “C”
shall mean the number of such shares of Additional Common Shares issued in such transaction.
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(b) Deemed
Issue of Common Shares.
(i) If
the Company at any time after the issuance of the Warrants but prior to the expiration of the Exercise Period shall issue any Options
or Convertible Securities or shall fix a record date for the determination of holders of Common Shares to receive any such Options or
Convertible Securities, then the maximum number of Common Shares (as set forth in the instrument relating thereto, assuming the satisfaction
of any conditions to exercisability, convertibility, or exchangeability but without regard to any provision contained therein for a subsequent
adjustment of such number) issuable upon the exercise of such Options or, in the case of Convertible Securities and Options therefor,
the conversion or exchange of such Convertible Securities, shall be deemed to be Additional Common Shares (issued as of the time of such
issue of Options or Convertible Securities or, in case such a record date shall have been fixed, as of 5:00 P.M. (New York City
time)) on such record date and the provisions hereof that are applicable to the issuance of Additional Common Shares shall apply thereto;
provided, that in any such case in which Additional Common Shares are deemed to be issued, no further adjustments in the Exercise
Price shall be made upon the subsequent issue of Convertible Securities or Common Shares upon the exercise of such Options or the conversion
or exchange of such Convertible Securities.
(ii) If
the terms of any Option or Convertible Security, the issuance of which resulted in an adjustment to the Exercise Price pursuant to the
terms of this Section 5.1, are revised to provide for either (i) any increase or decrease in the number of Common Shares
issuable upon the exercise, conversion, or exchange of any such Option or Convertible Security or (ii) any increase or decrease in
the consideration payable to the Company upon such exercise, conversion, or exchange, then, effective upon such increase or decrease becoming
effective, the Exercise Price computed upon the original issue of such Option or Convertible Security (or upon the occurrence of a record
date with respect thereto) (the “Original Adjustment Date”) shall be readjusted to such Exercise Price as would have
been obtained had such revised terms been in effect upon the original date of issuance of such Option or Convertible Security. Notwithstanding
the foregoing, no adjustment pursuant to this Section 5.1 shall have the effect of increasing the Exercise Price to an amount
which exceeds the lower of (A) the Exercise Price on the Original Adjustment Date, or (B) the Exercise Price that would have
resulted from any issuances of Additional Common Shares between the Original Adjustment Date and such readjustment date.
(iii) If
the terms of any Option or Convertible Security, the issuance of which did not result in an adjustment to the Exercise Price pursuant
to the terms of this Section 5.1, are revised after the date hereof (either automatically, pursuant to the provisions contained
therein, or as a result of an amendment to such terms) to provide for either (i) any increase or decrease in the number of Common
Shares issuable upon the exercise, conversion, or exchange of any such Option or Convertible Security or (ii) any increase or decrease
in the consideration payable to the Company upon such exercise, conversion, or exchange, then such Option or Convertible Security, as
so amended, and the Additional Common Shares subject thereto shall be deemed to have been issued effective upon such increase or decrease
becoming effective.
(iv) Upon
the expiration or termination of any unexercised Option or unconverted or unexchanged Convertible Security which resulted in an adjustment
to the Exercise Price pursuant to the terms of this Section 5.1, the Exercise Price shall be readjusted to such Exercise Price
as would have been obtained had such Option or Convertible Security never been issued.
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(c) For
purposes of this Section 5.1, the consideration received by the Company for the issue of any Additional Common Shares shall
be computed as follows:
(i) Cash
and Property. Such consideration shall: (i) insofar as it consists of cash, be computed at the aggregate amount of cash received
by the Company, excluding amounts paid or payable for accrued interest; (ii) insofar as it consists of property other than cash,
be computed at the fair market value thereof at the time of such issue, as determined in good faith by the Board of Trustees, and (iii) in
the event shares of Additional Common Shares are issued together with other interests or securities or other assets of the Company for
consideration which covers both, be the proportion of such consideration so received, computed as provided in clauses (i) and (ii) above,
as determined in good faith by the Board of Trustees.
(ii) Options
and Convertible Securities. The consideration per share received by the Company for Additional Common Shares deemed to have been issued
pursuant to Section 5.1(b) relating to Options and Convertible Securities shall be determined by dividing: (i) the
total amount, if any, received or receivable by the Company as consideration for the issue of such Options or Convertible Securities,
plus the minimum aggregate amount of additional consideration (as set forth in the instruments relating thereto, without regard to any
provision contained therein for a subsequent adjustment of such consideration) payable to the Company upon the exercise of such Options
or the conversion or exchange of such Convertible Securities, or in the case of Options for Convertible Securities, the exercise of such
Options for Convertible Securities and the conversion or exchange of such Convertible Securities, by (ii) the maximum number of Common
Shares (as set forth in the instruments relating thereto, without regard to any provision contained therein for a subsequent adjustment
of such number) issuable upon the exercise of such Options or the conversion or exchange of such Convertible Securities.
(iii) In
the event the Company shall issue on more than one date shares of Additional Common Shares that are a part of one transaction or a series
of related transactions and that would result in an adjustment to the Exercise Price pursuant to the terms of Section 5.1(a) then,
upon the final such issuance, the Exercise Price shall be readjusted to give effect to all such issuances as if they occurred on the date
of the first such issuance (and without additional giving effect to any adjustments as a result of any subsequent issuances within such
period).
Section 5.2. Subdivision
or Combination of Common Shares. In the event that the amount of outstanding Common Shares is increased or decreased by combination
(by reverse stock split or reclassification) or subdivision (by any stock split or reclassification) of the Common Shares or any distribution
by the Company with respect to all Common Shares in the form of additional Common Shares, then, on the effective date of such combination,
subdivision, or distribution, the number of Warrant Exercise Shares issuable on exercise of the Warrants shall be increased or decreased,
as applicable, in proportion to such increase or decrease, as applicable, in the outstanding Common Shares.
Section 5.3. Distributions.
If the Company at any time after the issuance of the Warrants but prior to the expiration of the Exercise Period makes a distribution
to all holders of Common Shares of securities, evidences of indebtedness, assets, cash, rights, or warrants (excluding Non-Extraordinary
Dividends and any dividends or distributions referred to in Section 5.1 or 5.2), then, in each such case, at the election
of the Company, (1) the Company shall distribute in respect of each Warrant the same consideration received per Common Share multiplied
by the number of Warrant Exercise Shares, or (2) the Exercise Price in effect prior to such distribution shall be decreased, effective
immediately after the effective date of such distribution, by the amount of cash and/or the fair market value (as determined by the Board
of Trustees, in good faith) of any securities or other assets paid on each Common Share in respect of such distribution.
17
Section 5.4. [Reserved].
Section 5.5. Reorganization,
Reclassification, Consolidation, Merger, or Sale.
(a) In
connection with any Organic Change prior to the expiration of the Exercise Period, the Holders shall have the right to acquire and receive,
upon exercise of such Warrants, in lieu of the Warrant Exercise Shares immediately theretofore purchasable and receivable upon the exercise
of the Warrants, such cash, stock, shares, securities, or other assets or property as would have been issued or payable in such Organic
Change (if the Holder had exercised such Warrant immediately prior to such Organic Change) with respect to or in exchange, as applicable,
for the number of Warrant Exercise Shares that would have been issued upon exercise of such Warrants, if such Warrants had been exercised
immediately prior to the occurrence of such Organic Change. The Company shall not effect any Organic Change unless, prior to the consummation
thereof, the surviving Person (if other than the Company) resulting from such Organic Change, shall assume, by written instrument substantially
similar in form and substance to this Agreement in all material respects (including with respect to the provisions of Article V),
the obligation to deliver to the Holders such cash, stock, shares, securities, or other assets or property which, in accordance with the
foregoing provision, the Holders shall be entitled to receive upon exercise of the Warrants. The provisions of this Section 5.5
shall similarly apply to successive Organic Changes.
(b) If
the consideration to be received in an Organic Change for each Warrant Exercise Share that would have been issuable upon such exercise
immediately prior to the occurrence of such Organic Change exceeds the Exercise Price then in effect at the time of the consummation of
such Organic Change such that the Warrant has positive intrinsic value (i.e., the Warrant is “in the money” at the time of
such Organic Change), in lieu of paying the Exercise Price by personal, certified or official bank check or by wire transfer, any Holder
may elect to exercise Warrants by authorizing the Company to withhold and not issue to such Holder, in payment of the Exercise Price thereof,
a number of such Warrant Exercise Shares equal to (x) the number of Warrant Exercise Shares for which the Warrants are being exercised,
multiplied by (y) the Exercise Price, and divided by (z) the Current Sale Price on the Exercise Date (and such withheld shares
shall no longer be issuable under such Warrants, and the Holder shall not have any rights or be entitled to any payment with respect to
such withheld shares). The “Current Sale Price” for purposes of this Section 5.5(b) shall be the price per share
that the holders of Common Shares are entitled to receive upon consummation of any Organic Change.
Section 5.6. Notice
of Adjustments. Whenever the number and/or kind of Warrant Exercise Shares or the Exercise Price is adjusted as provided herein, the
Company shall (i) prepare and deliver, or cause to be prepared and delivered, forthwith to the Warrant Agent a written statement
setting forth the adjusted number and/or kind of shares issuable upon the exercise of Warrants and the Exercise Price of such shares after
such adjustment, the facts requiring such adjustment and the computation by which adjustment was made, and (ii) cause the Warrant
Agent to give written notice to each Holder in the manner provided in Section 9.2 below, of the record date or the effective
date of the event. Failure to give such notice, or any defect therein, shall not affect the legality or validity of such event.
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Section 5.7. Exclusion
of Certain Adjustments. Subject to Section 4.5(b), no adjustment need be made for a change in the par value of the Common
Shares. All calculations under this Article V shall be made to the nearest one ten-thousandth (1/10,000) of one cent ($0.01) or to
the nearest one ten-thousandth (1/10,000) of a share, as the case may be. Notwithstanding anything to the contrary in this Article V,
there shall be no adjustment to the Exercise Price with respect to any Excluded Issuance.
Section 5.8. Valuation
Firm. Until such time that the Company is subject to reporting obligations under Section 13 or Section 15(d) of the
Exchange Act, the Company shall cause the Valuation Firm to conduct a valuation of the fair market value of the Common Shares (i) in
connection with any material change in the business that, in the good faith determination of the Board of Trustees, necessitates a renewed
valuation and (ii) in connection with any required determination pursuant to this Agreement of the Current Sale Price in accordance
with clause (iv) of the definition thereof; provided that the Company shall not be required to obtain more than one valuation pursuant
to this clause (ii) in any 12-month period. The Company shall cause the Warrant Agent to give written notice to each Holder in the
manner provided in Section 9.2 below upon completion of any valuation determination by the Valuation Firm.
Section 5.9. Form of
Warrant After Adjustments. The form of Warrant Certificate need not be changed because of any adjustments in the Exercise Price or
the number and/or kind of shares issuable upon exercise of the Warrants, and Warrant Certificates theretofore or thereafter issued may
continue to express the same price and number and kind of shares as are stated therein, as initially issued; provided that such
adjustments in the Exercise Price or the number and/or kind of shares issuable upon exercise of the Warrants pursuant to the terms of
this Agreement shall nonetheless have effect upon exercise of the Warrants. The Company, however, may at any time in its sole discretion
make any change in the form of Warrant Certificate that it may deem appropriate to give effect to such adjustments and that does not affect
the substance of the Warrant Certificate or this Agreement (including the rights, duties, liabilities, or obligations of the Warrant Agent),
and any Warrant Certificate thereafter issued, whether in exchange or substitution for an outstanding Warrant Certificate, may be in the
form so changed.
ARTICLE VI.
TRANSFER
AND EXCHANGE OF WARRANTS
Section 6.1. Registration
of Transfers and Exchanges.
(a) Transfer
and Exchange of Book-Entry Warrants. The Transfer and exchange of Book-Entry Warrants shall be effected through the Depositary and
its direct and indirect participants, in accordance with the practices and procedures therefor of the Depositary and such participants.
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(b) Exchange
of Book-Entry Warrants for Certificated Warrants or Direct Registration Warrants. If at any time:
(i) the
Depositary for the Global Warrant Certificates notifies the Company that it is unwilling or unable to continue as Depositary for the Global
Warrant Certificates and a successor Depositary for the Global Warrant Certificates is not appointed by the Company within 90 days after
delivery of such notice; or
(ii) the
Company, in its sole discretion, notifies the Warrant Agent in writing that it elects to exclusively cause the issuance of Certificated
Warrants or Direct Registration Warrants under this Agreement,
then the Warrant Agent shall register and issue
Certificated Warrants, or shall register Direct Registration Warrants, in an aggregate number equal to the number of Book-Entry Warrants
represented by the Global Warrant Certificates, in accordance with such written instructions. Such written instructions provided by the
Company shall state that the Certificated Warrants or Direct Registration Warrants issued in exchange for Book-Entry Warrants pursuant
to this Section 6.1(b) shall be registered in such names and in such amounts as the Depositary, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the Warrant Agent.
(c) Transfer
and Exchange of Certificated Warrants or Direct Registration Warrants. When Certificated Warrants or Direct Registration Warrants
are presented to the Warrant Agent with a written request:
(i) to
register the Transfer of such Certificated Warrants or Direct Registration Warrants; or
(ii) to
exchange such Certificated Warrants or Direct Registration Warrants for an equal number of Certificated Warrants or Direct Registration
Warrants, respectively, of other authorized denominations, the Warrant Agent shall register the Transfer or make the exchange, and in
the case of Certificated Warrants shall issue such new Warrant Certificates, as requested if its customary requirements for such transactions
are met; provided, that (A) the Warrant Agent shall have received (x) a written instruction of Transfer in form satisfactory
to the Warrant Agent, duly executed by the Registered Holder thereof or by his attorney, duly authorized in writing and (y) in the
case of Certificated Warrants, surrender of the Warrant Certificate or Certificate(s) representing same duly endorsed for Transfer
or exchange.
(d) Exchange
of Certificated Warrants or Direct Registration Warrants for Book-Entry Warrants. Certificated Warrants or Direct Registration
Warrants that are not subject to any Warrant Restrictions may be exchanged for Book-Entry Warrants upon satisfaction of the
requirements set forth below. Upon receipt by the Warrant Agent of appropriate written instruments of transfer with respect to such
Certificated Warrants or Direct Registration Warrants, in form satisfactory to the Warrant Agent, and in the case of Certificated
Warrants, surrender of the Warrant Certificate(s) representing same duly endorsed for Transfer or exchange, together with
written instructions directing the Warrant Agent to make, or to direct the Depositary to make, an endorsement on the Global Warrant
Certificate to reflect an increase in the number of Warrants represented by the Global Warrant Certificate equal to the number of
Warrants represented by such Certificated Warrants or Direct Registration Warrants, then the Warrant Agent shall cancel such
Certificated Warrants or Direct Registration Warrants on the Warrant Register and cause or direct the Depositary to cause, in
accordance with the standing instructions and procedures existing between the Depositary and the Warrant Agent, the number of
Book-Entry Warrants represented by the Global Warrant Certificate to be increased accordingly. If no Global Warrant Certificates are
then outstanding, or if the Global Warrant Certificates then outstanding cannot be used for such purposes, the Company shall issue
and the Warrant Agent shall countersign (by either manual or facsimile signature), a new Global Warrant Certificate representing the
appropriate number of Book-Entry Warrants. Any such transfer shall be subject to the Company’s prior written approval, which
shall not be unreasonably withheld, conditioned, or delayed.
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(e) Restrictions
on Transfer and Exchange of Global Warrant Certificates. Notwithstanding any other provisions of this Agreement (other than the provisions
set forth in Section 6.1(f)), unless and until it is exchanged in whole for Certificated Warrants or Direct Registration Warrants,
a Global Warrant Certificate may not be transferred as a whole except by the Depositary to a nominee of the Depositary or by a nominee
of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary.
(f) Restrictions
on Transfer. No Warrants or Warrant Exercise Shares shall be sold, exchanged, or otherwise Transferred in violation of the Securities
Act or state securities Laws or the Company’s declaration of trust or bylaws. If any Holder purports to Transfer Warrants to any
Person in a transaction that would violate the provisions of this Section 6.1(f), such Transfer shall be void ab initio and
of no effect.
(g) Exchange
of Global Warrant Certificate. A Global Warrant Certificate may be exchanged for another Global Warrant Certificate of like or similar
tenor for purposes of complying with the practices and procedures of the Depositary.
(h) Cancellation
of Global Warrant Certificate. At such time as all beneficial interests in a Global Warrant Certificate have either been exchanged
for Certificated Warrants or Direct Registration Warrants, redeemed, repurchased, or cancelled, the Global Warrant Certificate shall be
returned to, or retained and cancelled pursuant to applicable Law by, the Warrant Agent, upon written instructions from the Company satisfactory
to the Warrant Agent.
Section 6.2. Obligations
with Respect to Transfers and Exchanges of Warrants.
(a) All
Certificated Warrants or Direct Registration Warrants issued upon any registration of Transfer or exchange of Certificated Warrants or
Direct Registration Warrants, respectively, shall be the valid obligations of the Company, entitled to the same benefits under this Agreement
as the Certificated Warrants or Direct Registration Warrants surrendered upon such registration of Transfer or exchange. No service charge
shall be made to a Registered Holder for any registration, Transfer, or exchange of any Certificated Warrants or Direct Registration Warrants,
but the Company may require payment of a sum sufficient to cover any stamp or other tax or other charge that may be imposed on the Registered
Holder in connection with any such exchange or registration of Transfer. The Warrant Agent shall have no obligation to effect an exchange
or register a Transfer unless and until it is satisfied that all such taxes and/or charges have been paid.
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(b) So
long as the Depositary, or its nominee, is the registered owner of a Global Warrant Certificate, the Depositary or such nominee, as the
case may be, shall be considered by the Company, the Warrant Agent, and any agent of the Company or the Warrant Agent as the sole owner
or holder of the Warrants represented by such Global Warrant Certificate for all purposes under this Agreement (subject to Sections
4.1(ii) and 4.3(c)(z)). Neither the Company nor the Warrant Agent, in its capacity as registrar for such Warrants, will
have any responsibility or liability for any aspect of the records relating to beneficial interests in a Global Warrant Certificate or
for maintaining, supervising or reviewing any records relating to such beneficial interests. Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Warrant Agent, or any agent of the Company or the Warrant Agent from giving effect to any written certification,
proxy, or other authorization furnished by the Depositary or impair the operation of customary practices of the Depositary governing the
exercise of the rights of a holder of a beneficial interest in a Global Warrant Certificate.
(c) Subject
to Section 6.1(c), and this Section 6.2, the Warrant Agent shall:
(i) in
the case of Certificated Warrants, register the Transfer of any outstanding Certificated Warrants in the Warrant Register upon receipt
of all information required to be delivered hereunder and delivery by the Registered Holder thereof of the Warrant Certificate representing
such Certificated Warrants, properly endorsed for transfer, by the Registered Holder thereof or by the duly appointed legal representative
thereof or by a duly authorized attorney; and upon any such registration of Transfer, a new Warrant Certificate shall be issued to the
transferee.
(ii) in
the case of Direct Registration Warrants, register the Transfer of any outstanding Direct Registration Warrants in the Warrant Register
upon receipt of all information required to be delivered hereunder and delivery by the Registered Holder thereof, at the Warrant Agent’s
office designated for such purpose, of a form of assignment substantially in the form of Exhibit C hereto, properly completed
and duly executed by the Registered Holder thereof or by the duly appointed legal representative thereof or by a duly authorized attorney;
and upon any such registration of Transfer, a new Direct Registration Warrant shall be issued to the transferee.
Section 6.3. Fractional
Warrants. The Warrant Agent shall not effect any registration of Transfer or exchange which would result in the issuance of a fraction
of a Warrant.
ARTICLE VII.
OTHER
PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANTS
Section 7.1. No
Rights or Liability as Shareholder. Nothing contained herein shall be construed as conferring upon the Holder or the Holder’s
transferees the right to vote or to receive dividends or to consent or to receive notice as a shareholder in respect of any meeting of
shareholders for the election of trustees of the Company or of any other matter, or any rights whatsoever as shareholders of the Company.
The vote or consent of any Holder shall not be required with respect to any action or proceeding of the Company and no Holder shall have
any right not expressly conferred hereunder, or by applicable Law with respect to, the Warrants held by such Holder. No Holder, by reason
of the ownership or possession of a Warrant, shall have any right to receive any cash dividends, stock dividends, allotments or rights
or other distributions paid, allotted, or distributed or distributable to the holders of Common Shares prior to, or for which the relevant
record date preceded, the date of the exercise of such Warrant. No provision thereof and no mere enumeration therein of the rights or
privileges of the Holder shall give rise to any liability of such Holder for the Exercise Price hereunder or as a shareholder of the Company,
whether such liability is asserted by the Company or by creditors of the Company.
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Section 7.2. Notice
to Registered Holders. The Company shall give notice to Registered Holders in accordance with Section 9.2, and prompt
written notice thereof to the Warrant Agent, if at any time prior to the expiration of the Exercise Period or exercise in full of the
Warrants, any of the following events shall occur:
(a) the
payment of any dividend payable in any securities upon shares of Common Shares or the making of any distribution (other than Non-Extraordinary
Dividends) to all holders of Common Shares;
(b) the
issuance to all holders of Common Shares of any additional shares of Common Shares or of rights, options, or warrants to subscribe for
or purchase Common Shares or of any other subscription rights, options, or warrants;
(c) the
issuance of any Additional Common Shares, Options, or Convertible Securities that would result in an adjustment to the Exercise Price
under Section 5.1;
(d) an
Organic Change;
(e) a
dissolution, liquidation, or winding up of the Company; or
(f) the
occurrence of any other event that would result in an adjustment to the Exercise Price or the number of Warrant Exercise Shares issuable
upon exercise of the Warrants under Article V.
Such giving of notice shall
be initiated (i) at least ten (10) days prior to the date fixed as the record date or the date of closing of the Company’s
share transfer books for the determination of the shareholders entitled to such dividend, distribution, or subscription rights, or of
the shareholders entitled to vote on such Organic Change, dissolution, liquidation, or winding up or the occurrence of any other event
that would result in an adjustment to the Exercise Price or the number of Warrant Exercise Shares issuable upon exercise of the Warrants
under Article V or (ii) in the case of clause (c) above, promptly following the date of issuance. Such notice shall
specify such record date or the date of closing the share transfer books or proposed effective date, as the case may be. Failure to provide
such notice shall not affect the validity of any action taken. For the avoidance of doubt, no such notice (or the failure to provide it
to any Holder) shall supersede or limit any adjustment called for by Article V by reason of any event as to which notice is
required by this Section. Notwithstanding anything to the contrary in this Warrant Agreement, the Company shall not be required to deliver
any notice pursuant to this Section 7.2 at any time that such notice would contain material non-public information relating
to the Company or the Common Shares.
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Section 7.3. Lost,
Stolen, Mutilated, or Destroyed Warrant Certificates. If any Warrant Certificate is lost, stolen, mutilated, or destroyed, the Company
may issue, and upon written request by the Company, the Warrant Agent shall countersign (either by manual or facsimile signature), and
deliver, in exchange and substitution for and upon cancellation of the mutilated Warrant Certificate, or in lieu of and substitution for
the Warrant Certificate lost, stolen, or destroyed, a new Warrant Certificate of like tenor in accordance with written instructions from
the Company. In the case of Warrant Certificates other than Global Warrant Certificates, the Warrant Agent shall require evidence reasonably
satisfactory to it of the loss, theft, or destruction of such Warrant Certificate, and may require an open penalty surety bond satisfactory
to it and holding the Company and the Warrant Agent harmless, absent notice to Warrant Agent that such certificates have been acquired
by a bona fide purchaser. Applicants for such substitute Warrant Certificates shall also comply with such other regulations and pay such
other charges as the Company or the Warrant Agent may require.
Section 7.4. Cancellation
of Warrants. If the Company shall purchase or otherwise acquire Warrants, such Warrants shall be cancelled and retired, in the case
of Certificated Warrants or Direct Registration Warrants, by appropriate notation on the Warrant Register, and, in the case of Book-Entry
Warrants, in accordance with the practices and procedures of the Depositary, including if required by such practices and procedure by
appropriate notation on the applicable Global Warrant Certificate.
ARTICLE VIII.
CONCERNING
THE WARRANT AGENT AND OTHER MATTERS
Section 8.1. Resignation,
Removal, Consolidation, or Merger of Warrant Agent.
(a) Appointment
of Successor Warrant Agent. The Warrant Agent, or any successor to it hereafter appointed, may resign its duties and be discharged
from all further duties and liabilities hereunder after giving sixty (60) days’ notice in writing to the Company. If the office
of the Warrant Agent becomes vacant by resignation or incapacity to act or otherwise, the Company shall appoint in writing a successor
Warrant Agent in place of the Warrant Agent. If the Company shall fail to make such appointment within a period of sixty (60) days after
it has been notified in writing of such resignation or incapacity by the Warrant Agent or by the Registered Holder of a Warrant, then
the Registered Holder of any Warrant may apply to the Supreme Court of the State of New York for the County of New York for the appointment
of a successor Warrant Agent at the Company’s cost. The Company may, at any time and for any reason at no cost to the Holders, remove
the Warrant Agent and appoint a successor Warrant Agent by written instrument signed by the Company and specifying such removal and the
date when it is intended to become effective, one copy of which shall be delivered to the Warrant Agent being removed and one copy to
the successor Warrant Agent. Any successor Warrant Agent, whether appointed by the Company or by such court, shall be a Person organized
and existing under the Laws of the United States of America, or any state thereunder, in good standing. After appointment, any successor
Warrant Agent shall be vested with all the authority, powers, rights, immunities, duties and obligations of its predecessor Warrant Agent
with like effect as if originally named as Warrant Agent hereunder, without any further act or deed; but if for any reason it becomes
necessary or appropriate, the predecessor Warrant Agent shall execute and deliver, at the expense of the Company, an instrument transferring
to such successor Warrant Agent all the authority, powers, rights, immunities, duties, and obligations of such predecessor Warrant Agent
hereunder; and upon request of any successor Warrant Agent, the Company shall make, execute, acknowledge, and deliver any and all instruments
in writing for more fully and effectually vesting in and confirming to such successor Warrant Agent all such authority, powers, rights,
immunities, duties, and obligations.
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(b) Notice
of Successor Warrant Agent. In the event a successor Warrant Agent shall be appointed, the Company shall (i) give notice thereof
to the predecessor Warrant Agent and the transfer agent for the Common Shares not later than the effective date of any such appointment,
and (ii) cause written notice thereof to be delivered to each Registered Holder at such Registered Holder’s address appearing
on the Warrant Register. Failure to give any notice provided for in this Section 8.1(b) or any defect therein shall not
affect the legality or validity of the removal of the Warrant Agent or the appointment of a successor Warrant Agent, as the case may be.
(c) Merger,
Consolidation, or Name Change of Warrant Agent.
(i) Any
Person into which the Warrant Agent may be merged or with which it may be consolidated or any Person resulting from any merger or consolidation
to which the Warrant Agent shall be a party shall be the successor Warrant Agent under this Agreement, without any further act or deed,
if such person would be eligible for appointment as a successor Warrant Agent under the provisions of Section 8.1(a). If any
of the Warrant Certificates have been countersigned but not delivered at the time such successor to the Warrant Agent succeeds under this
Agreement, any such successor to the Warrant Agent may adopt the countersignature of any previous Warrant Agent; and if at that time any
of the Warrant Certificates shall not have been countersigned, any successor to the Warrant Agent may countersign such Warrant Certificates
either in the name of the predecessor Warrant Agent or in the name of the successor Warrant Agent; and in all such cases such Warrant
Certificates shall have the full force provided in the Warrant Certificates and in this Agreement.
(ii) If
at any time the name of the Warrant Agent is changed and at such time any of the Warrant Certificates have been countersigned but not
delivered, the Warrant Agent whose name has changed may adopt the countersignature under its prior name. If at that time any of the Warrant
Certificates have not been countersigned, the Warrant Agent may countersign such Warrant Certificates either in its prior name or in its
changed name. In all such cases such Warrant Certificates shall have the full force provided in the Warrant Certificates and in this Agreement.
Section 8.2. Fees
and Expenses of Warrant Agent.
(a) Remuneration.
The Company agrees to pay the Warrant Agent reasonable remuneration for its services as Warrant Agent as set forth in the fee proposal
between the Company and the Warrant Agent dated June 17, 2026, and will reimburse the Warrant Agent upon demand for all reasonable and
documented out-of-pocket expenses (including reasonable counsel fees and expenses), taxes and governmental charges, and other charges
of any kind and nature incurred by the Warrant Agent in connection with the negotiation, preparation, delivery, administration, execution,
modification, waiver, delivery, enforcement, or amendment of this Agreement and the exercise and performance of its duties hereunder.
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(b) Further
Assurances. Each of the Company and the Warrant Agent agrees to perform, execute, acknowledge, and deliver or cause to be performed,
executed, acknowledged, and delivered all such further and other acts, instruments, and assurances as may reasonably be required by the
other party hereto for the carrying out or performing of the provisions of this Agreement.
Section 8.3. Duties
of Warrant Agent
(a) Covered
Persons. References to the Warrant Agent in this Section 8.3 shall include the Warrant Agent and its affiliates, principals,
directors, officers, employees, agents, representatives, attorneys, accountants, advisors, and other professionals.
(b) Liability.
(i) The
Warrant Agent shall not be responsible for any breach by the Company of any covenant or condition contained in this Agreement.
(ii) The
Warrant Agent shall not be responsible for the making of any adjustment in the Exercise Price or the number and/or kind of shares issuable
upon the exercise of Warrants required under the provisions of Article V or be responsible for the manner, method, or amount
of any such change or the ascertaining of the existence of facts that would require any such change.
(iii) The
Warrant Agent shall not by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of
any Warrant Exercise Shares to be issued pursuant to this Agreement or any Warrant or as to whether any Warrant Exercise Shares will,
when issued, be validly issued and fully paid and non-assessable.
(iv) The
Warrant Agent shall not be accountable or under any duty or responsibility for the application by the Company of the proceeds of the issue
and sale, or exercise, of the Warrants.
(v) The
Warrant Agent shall have no liability under, and no duty to inquire as to, the provisions of any agreement, instrument or document other
than this Agreement.
(vi) The
Warrant Agent may rely on and shall incur no liability or responsibility to the Company, any Holder, or any other Person for any action
taken, suffered, or omitted to be taken by it upon any notice, instruction, request, resolution, waiver, consent, order, certificate,
affidavit, statement, or other paper, document, or instrument furnished to the Warrant Agent hereunder and reasonably believed by it to
be genuine and to have been signed, sent, or presented by the proper party or parties. The Warrant Agent shall be under no duty to inquire
into or investigate the validity, accuracy, or content of any such notice, instruction, request, resolution, waiver, consent, order, certificate,
affidavit, statement, or other paper, document, or instrument.
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(vii) The
Warrant Agent shall not take any instructions or directions except those given in accordance with this Agreement.
(viii) The
Warrant Agent shall act hereunder solely as agent for the Company and in a ministerial capacity and does not assume any obligation or
relationship of agency or trust with any of the Holders, and its duties shall be determined solely by the provisions hereof.
(ix) The
Warrant Agent shall not be liable for any action taken, suffered, or omitted to be taken in connection with this Agreement except to
the extent that its own gross negligence, willful misconduct, or bad faith was the primary cause of any loss.
(x) Anything
in this Agreement to the contrary notwithstanding, in no event shall the Warrant Agent be liable for any special, incidental, punitive,
indirect, or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent
has been advised of the likelihood of such loss or damage.
(xi) All
rights and obligations contained in this Section 8.3 shall survive the termination of this Agreement and the resignation,
replacement, incapacity, or removal of the Warrant Agent. All fees and expenses incurred by the Warrant Agent prior to or in connection
with the resignation, replacement, incapacity, or removal of the Warrant Agent shall be paid by the Company in accordance with this Section 8.3
of this Agreement notwithstanding such resignation, replacement, incapacity, or removal of the Warrant Agent.
(xii) The
Warrant Agent shall not be liable for interest on any monies at any time received by it pursuant to the provisions of this Agreement.
(xiii) In
the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request,
or other communication, paper, or document received by the Warrant Agent hereunder, the Warrant Agent, shall notify and work in good
faith with the Company to clarify such ambiguity or uncertainty, and until so clarified, the Warrant Agent shall not be liable in any
way to the Company or any Holder or other person or entity for refraining from taking such action.
(c) Reliance
on Company Statement. Whenever in the performance of its duties under this Agreement, the Warrant Agent shall deem it necessary or
desirable that any fact or matter be proved or established by the Company prior to taking or suffering any action hereunder, such fact
or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established
by a statement signed by an Appropriate Officer of the Company and delivered to the Warrant Agent. The Warrant Agent may rely upon such
statement for any action taken or suffered by it pursuant to the provisions of this Agreement. The Company will perform, execute, acknowledge,
and deliver or cause to be performed, executed, acknowledged, and delivered all such further and other acts, instruments, and assurances
as may reasonably be required by the Warrant Agent for the carrying out or performing by the Warrant Agent of the provisions of this Agreement.
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(d) Indemnity.
The Company agrees to indemnify, defend, protect, and save the Warrant Agent and hold it harmless from and against any and all losses,
damages, claims, liabilities, penalties, judgments, settlements, actions, suits, proceedings, litigation, investigations, costs, or expenses,
including without limitation reasonable fees and disbursements of counsel, that may be imposed on, incurred by, or asserted against such
Person, at any time, and in any way relating to or arising out of or in connection with, directly or indirectly, the execution, delivery
or performance of this Agreement, the enforcement of any rights or remedies under or in connection with this Agreement, or as may arise
by reason of any act, omission, or error of such Person; provided, that no such Person shall be entitled to be so indemnified,
defended, protected, saved, and kept harmless to the extent such loss was caused by its own gross negligence, bad faith, or willful misconduct
as determined by a court of competent jurisdiction in a final, non-appealable order. Notwithstanding the foregoing, the Company shall
not be responsible for any settlement made without its written consent, which written consent shall not be unreasonably conditioned, withheld,
or delayed.
(e) Exclusions.
The Warrant Agent shall have no responsibility with respect to the validity of this Agreement or with respect to the validity or execution
of any Warrant (except, in each case, its countersignature thereof); nor shall it be responsible for any breach by the Company of any
covenant or condition contained in this Agreement; nor shall it be responsible to make any adjustments required under the provisions of
Article V hereof or responsible for the manner, method, or amount of any such adjustment or the ascertaining of the existence
of facts that would require any such adjustment; nor shall it by any act hereunder be deemed to make any representation or warranty as
to the authorization or reservation of any Common Shares to be issued pursuant to this Agreement or any Warrant or as to whether any Common
Shares will, when issued, be valid and fully paid and non-assessable. The Warrant Agent will not be under any duty or responsibility to
ensure compliance with any applicable federal or state securities Laws in connection with the issuance, transfer, or exchange of Warrants.
(f) The
Warrant Agent may execute and exercise any of the rights or powers hereby vested in it or perform any duty hereunder either itself or
by or through its attorneys, agents, or employees, and the Warrant Agent shall not be answerable or accountable for any act, default,
neglect, or misconduct of any such attorneys, agents, or employees or for any loss to the Company resulting from such neglect or misconduct,
provided that the Warrant Agent acts without gross negligence, willful misconduct, or bad faith in connection with the selection
of such attorneys, agents, or employees.
(g) The
Warrant Agent may consult at any time with legal counsel satisfactory to it (who may be legal counsel for the Company).
ARTICLE IX.
MISCELLANEOUS
PROVISIONS
Section 9.1. Binding
Effects; Benefits. This Agreement shall inure to the benefit of and shall be binding upon the Company, the Warrant Agent, and the
Holders and their respective heirs, legal representatives, successors, and assigns. Nothing in this Agreement, expressed or implied, is
intended to or shall confer on any person other than the Company, the Warrant Agent, and the Holders, or their respective heirs, legal
representatives, successors, or assigns, any rights, remedies, obligations, or liabilities under or by reason of this Agreement.
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Section 9.2. Notices.
All notices, requests, consents, and other communications hereunder to any party shall be deemed to be sufficient if delivered in writing
in person, by electronic mail or facsimile, or sent by nationally-recognized overnight courier or first class registered or certified
mail, return receipt requested, postage prepaid, addressed to such party at the address set forth below or at such other address as may
hereafter be designated in writing by such party to the other parties. All such notices, requests, consents, and other communications
shall be delivered as follows:
if to the Warrant Agent, to:
CSC Delaware Trust Company
251 Little Falls Drive
Wilmington, DE 19808
Attn: Gregory Daniels
Email: gregory.daniels@cscglobal.com
with copies (which shall not constitute notice) to:
Winston & Strawn LLP
200 Park Avenue
New York, NY 10166-4193
Attn: Jonathan Levine and Tom Good
Email: jonlevine@winston.com; tgood@winston.com
if to the Company, to:
Office Properties Income Trust
Two Newton Place, 255 Washington Street, Suite 300
Newton, MA 02458
Attention: Yael Duffy and Brian Donley
E-mail: YDuffy@rmrgroup.com and BDonley@rmrgroup.com
with copies (which shall not constitute notice) to:
Latham & Watkins LLP
1271 Avenue of the Americas
New York, New York 10020
Attention: Ray C. Schrock (ray.schrock@lw.com)
Andrew M. Parlen (andrew.parlen@lw.com)
Anupama Yerramalli (anu.yerramalli@lw.com)
Keith A. Simon (keith.simon@lw.com)
Christopher J. Clark (christopher.j.clark@lw.com)
Christopher M. Cronin (christopher.cronin@lw.com)
29
if to Registered Holders, at their addresses as
they appear in the Warrant Register and, if different, at the addresses appearing in the records of the transfer agent or registrar for
the Common Shares.
All such notices, requests, consents, and other
communications shall be deemed to have been received (i) in the case of personal delivery or delivery by facsimile or electronic
mail, on the date of such delivery, (ii) in the case of dispatch by nationally recognized overnight courier, on the next Business
Day following such dispatch, and (iii) in the case of mailing, on the fifth (5th) Business Day after the posting thereof.
Section 9.3. Persons
Having Rights under this Agreement. Nothing in this Agreement expressed and nothing that may be implied from any of the provisions
hereof is intended, or shall be construed, to confer upon, or give to, any person or corporation other than the parties hereto and the
Holders, any right, remedy, or claim under or by reason of this Agreement or of any covenant, condition, stipulation, promise, or agreement
hereof. All covenants, conditions, stipulations, promises, and agreements contained in this Agreement shall be for the sole and exclusive
benefit of the parties hereto, their successors and assigns and the Holders.
Section 9.4. Examination
of this Agreement. A copy of this Agreement, and of the entries in the Warrant Register relating to such Registered Holder’s
Warrants, shall be available at all reasonable times at an office designated for such purpose by the Warrant Agent, for examination by
the Registered Holder of any Warrant.
Section 9.5. Counterparts.
This Agreement may be executed in any number of original or facsimile or electronic PDF counterparts and each of such counterparts shall
for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
Section 9.6. Effect
of Headings. The section headings herein are for convenience only and are not part of this Agreement and shall not affect the interpretation
hereof.
Section 9.7. Amendments.
(a) Subject
to Section 9.7(b) below, this Agreement may not be amended except in writing signed by the Company and the Warrant Agent.
(b) The
Company and the Warrant Agent may from time to time supplement or amend this Agreement or the Warrants, as follows:
(i) without
the approval of any Holder in order to cure any ambiguity, manifest error, or other mistake in this Agreement or the Warrants, or to correct
or supplement any provision contained herein or in the Warrants that may be defective or inconsistent with any other provision herein
or in the Warrants, or to make any other provisions in regard to matters or questions arising hereunder that the Company may deem necessary
or desirable and that shall not adversely affect, alter, or change the interests of the Holders in any material respect, or
30
(ii) with
the prior written consent of the Requisite Holders; provided, that the consent of each Holder adversely affected thereby shall
be required for any amendment that (i) reduces the term of the Warrants (or otherwise modifies any provisions pursuant to which the
Warrants may be terminated or cancelled, other than technical provisions related to certificated securities), or (ii) increases the
Exercise Price and/or decreases the number of Warrant Exercise Shares (or, as applicable, the amount of such other securities and/or assets)
deliverable upon exercise of the Warrants, other than such increases and/or decreases that are made pursuant to this Agreement.
(c) Notwithstanding
anything to the contrary herein, upon the delivery of a certificate from an Appropriate Officer which states that the proposed supplement
or amendment is in compliance with the terms of this Section 9.7, the Warrant Agent shall execute such supplement or amendment;
provided that the Warrant Agent may, but shall not be obligated to, execute any amendment or supplement that affects Warrant Agent’s
rights, duties, immunities, liabilities, or obligations hereunder. Any amendment, modification, or waiver effected pursuant to and in
accordance with the provisions of this Section 9.7 shall be binding upon all Holders and upon each future Holder, the Company,
and the Warrant Agent. In the event of any amendment, modification, or waiver, the Company shall give prompt notice thereof to all Registered
Holders. Any failure of the Company to give such notice or any defect therein shall not, however, in any way impair or affect the validity
of any such amendment.
Section 9.8. No
Inconsistent Agreements; No Impairment. The Company shall not, on or after the date hereof, enter into any agreement with respect
to its securities which conflicts with the rights granted to the Holders in this Agreement. The Company represents and warrants to the
Holders that the rights granted hereunder do not in any way conflict with the rights granted to holders of the Company’s securities
under any other agreements. The Company shall not, by amendment of its declaration of trust or bylaws, or through any reorganization,
transfer of assets, consolidation, merger, dissolution, issue or sale of securities, or any other voluntary action, avoid or seek to avoid
the observance or performance of any of the terms to be observed or performed hereunder by the Company, but will at all times in good
faith assist in the carrying out of all the provisions of the Warrants and in the taking of all such action as may be necessary in order
to preserve the exercise rights of the Holders against impairment.
Section 9.9. Integration/Entire
Agreement. This Agreement is intended by the parties as a final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the Company, the Warrant Agent, and the Holders in respect of the subject matter contained
herein. There are no restrictions, promises, warranties, or undertakings, other than those set forth or referred to herein, with respect
to the Warrants. This Agreement supersedes all prior agreements and understandings between the parties with respect to the Warrants.
Section 9.10. Governing
Law, Etc. This Agreement and each Warrant issued hereunder shall be deemed to be a contract made under the Laws of the State of New
York and for all purposes shall be governed by and construed in accordance with the Laws of such State. Each party hereto consents and
submits to the exclusive jurisdiction of the courts of the State of New York located in New York County and of the U.S. federal courts
located in the Southern District of New York in connection with any action or proceeding brought against it that arises out of or in connection
with, that is based upon, or that relates to this Agreement or the transactions contemplated hereby; provided that nothing in this
Section 9.10 shall limit or restrict the exclusive jurisdiction retained by the Bankruptcy Court pursuant to Article XI of the
Plan, including, without limitation, the interpretation, implementation, or enforcement of the Plan or any Plan Supplement Document. In
connection with any such action or proceeding in any such court, each party hereto hereby waives personal service of any summons, complaint,
or other process and hereby agrees that service thereof may be made in accordance with the procedures for giving notice set forth in Section 9.2
hereof. Each party hereto hereby waives any objection to jurisdiction or venue in any such court in any such action or proceeding and
agrees not to assert any defense based on forum non conveniens or lack of jurisdiction or venue in any such court in any such action
or proceeding.
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Section 9.11. Termination.
This Agreement will terminate on the earlier of (i) such date when all Warrants have been exercised with respect to all shares subject
thereto, or (ii) the expiration of the Exercise Period. The provisions of Section 8.3 and this Article IX
shall survive such termination and the resignation, replacement or removal of the Warrant Agent.
Section 9.12. Waiver
of Trial by Jury. Each party hereto, including each Holder by its receipt of a Warrant, hereby irrevocably and unconditionally waives
the right to a trial by jury in any action, suit, counterclaim, or other proceeding (whether based on contract, tort, or otherwise) arising
out of, connected with, or relating to this Agreement and the transactions contemplated hereby.
Section 9.13. Remedies.
The Company hereby agrees that, in the event that the Company violates any provisions of the Warrants (including the obligation to deliver
shares of Common Shares upon the exercise thereof), the remedies at law available to the Holder of such Warrant may be inadequate. In
such event, any Holder shall have the right, in addition to all other rights and remedies any of them may have, to specific performance
and/or injunctive or other equitable relief to enforce the provisions of this Agreement and the Warrants.
Section 9.14. Bank
Accounts. All funds received by the Warrant Agent under this Agreement that are to be distributed or applied by the Warrant Agent
in the performance of Services (the “Funds”) shall be held by the Warrant Agent as agent for the Company and deposited
in one or more bank accounts to be maintained by the Warrant Agent in its name as agent for the Company. Until paid pursuant to the terms
of this Agreement, the Warrant Agent will hold the Funds through such accounts in: deposit accounts of commercial banks with Tier 1 capital
exceeding $1 billion or with an average rating above investment grade by S&P (LT Local Issuer Credit Rating), Moody’s (Long
Term Rating), and Fitch Ratings, Inc. (LT Issuer Default Rating) (each as reported by Bloomberg Finance L.P.). The Warrant Agent
shall have no responsibility or liability for any diminution of the Funds that may result from any deposit made by the Warrant Agent in
accordance with this paragraph, including any losses resulting from a default by any bank, financial institution, or other third party.
The Warrant Agent may from time to time receive interest, dividends, or other earnings in connection with such deposits. The Warrant Agent
shall not be obligated to pay such interest, dividends, or earnings to the Company, any holder, or any other party.
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Section 9.15. Severability.
In the event that any one or more of the provisions contained in this Agreement, or the application thereof in any circumstances, is held
invalid, illegal, or unenforceable, the validity, legality, and enforceability of any such provisions in every other respect and of the
remaining provisions contained herein shall not be affected or impaired thereby; provided, that if any such excluded provision
shall adversely affect the rights, immunities, duties, or obligations of the Warrant Agent, the Warrant Agent shall be entitled to immediately
resign.
Section 9.16. Confidentiality.
The Warrant Agent and the Company agree that the Warrant Register and personal, non-public warrant holder information, which are exchanged
or received pursuant to the negotiation or carrying out of this Agreement, shall remain confidential and shall not be voluntarily disclosed
to any other person, except as may be required by law, including, without limitation, pursuant to subpoenas from state or federal government
authorities (e.g., in divorce and criminal actions), or pursuant to the requirements of the SEC.
[Signature
Page Follows]
33
IN WITNESS WHEREOF, this Agreement has been duly
executed by the undersigned parties hereto as of the date first above written.
OFFICE
PROPERTIES INCOME TRUST
By:
/s/ Brian E. Donley
Name: Brian E. Donley
Title: Chief Financial Officer and Treasurer
CSC
Delaware Trust Company, as Warrant Agent
By:
/s/ Gregory Daniels
Name: Gregory Daniels
Title: Vice President
34
EXHIBIT A-1
FACE OF GLOBAL WARRANT CERTIFICATE
VOID AFTER 5:00 P.M., NEW YORK CITY TIME, ON [●],
2033,
This Global Warrant Certificate is held by The
Depository Trust Company (the “Depositary”) or its nominee in custody for the benefit of the beneficial owners hereof,
and is not transferable to any person under any circumstances except that (i) this Global Warrant Certificate may be exchanged in
whole but not in part pursuant to Section 6.1(g) of the Warrant Agreement, (ii) this Global Warrant Certificate may be
delivered to the Warrant Agent for cancellation pursuant to Section 6.1(h) of the Warrant Agreement, and (iii) this Global
Warrant Certificate may be transferred to a successor Depositary with the prior written consent of the Company.
Unless this Global Warrant Certificate is presented
by an authorized representative of the Depositary to the Company or the Warrant Agent for registration of transfer, exchange, or payment
and any certificate issued is registered in the name of Cede & Co. or such other entity as is requested by an authorized representative
of the Depositary (and any payment hereon is made to Cede & Co. or to such other entity as is requested by an authorized representative
of the Depositary), any transfer, pledge, or other use hereof for value or otherwise by or to any person is wrongful because the registered
owner hereof, Cede & Co., has an interest herein.
Transfers of this Global Warrant Certificate shall
be limited to transfers in whole, but not in part, to nominees of the Depositary or to a successor thereof or such successor’s nominee.
No registration or transfer of the securities
issuable pursuant to the Warrant will be recorded on the books of the Company until such provisions have been complied with.
THE SECURITIES
REPRESENTED BY THIS GLOBAL WARRANT CERTIFICATE (INCLUDING THE SECURITIES ISSUABLE UPON EXERCISE OF THE WARRANT) WILL BE ISSUED PURSUANT
TO AN EXEMPTION FROM REGISTRATION UNDER SECTION 1145 OF THE BANKRUPTCY CODE. THE WARRANT MAY BE SOLD, OFFERED FOR SALE, PLEDGED,
OR HYPOTHECATED WITHOUT REGISTRATION UNDER THE SECURITIES ACT, PROVIDED THAT THE HOLDER IS NOT DEEMED TO BE AN UNDERWRITER AS SUCH TERM
IS DEFINED IN SECTION 1145(b) OF THE BANKRUPTCY CODE OR AN AFFILIATE OF THE ISSUER. IF THE HOLDER IS DEEMED TO BE AN UNDERWRITER
AS SUCH TERM IS DEFINED IN SECTION 1145(b) OF THE BANKRUPTCY CODE OR AN AFFILIATE OF THE COMPANY, THEN THE WARRANT MAY NOT
BE SOLD, OFFERED FOR SALE, PLEDGED, OR HYPOTHECATED UNLESS (1) THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT AND ANY APPLICABLE STATE SECURITIES LAW OR (2) SUCH DISPOSITION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS
OF THE SECURITIES ACT AND OF ANY APPLICABLE STATE SECURITIES LAWS. IN ADDITION, THE WARRANT MAY NOT BE TRANSFERRED, SOLD, ASSIGNED,
PLEDGED, HYPOTHECATED, OR OTHERWISE DISPOSED OF UNLESS SUCH TRANSFER COMPLIES WITH THE TRANSFER PROVISIONS IN ARTICLE VI OF THE WARRANT
AGREEMENT. THESE LEGENDS MAY NOT BE REMOVED WITHOUT THE WRITTEN CONSENT OF THE COMPANY.
THIS WARRANT WILL BE VOID IF NOT EXERCISED PRIOR
TO
5:00 P.M., NEW YORK CITY TIME, ON [●], 2033,
WARRANT TO PURCHASE
_________ COMMON SHARES OF
OFFICE PROPERTIES INCOME TRUST*
CUSIP # 67623C117
ISSUE DATE: [●], 2026
No. [•]
This certifies that, for value
received, Cede & Co. and its registered assigns (collectively, the “Registered Holder”), is entitled to purchase
from Office Properties Income Trust, a Maryland real estate investment trust (the “Company”), subject to the terms
and conditions hereof, at any time before 5:00 p.m., New York time, on [●], 2033, the number of fully paid and non-assessable common
shares of beneficial interest, $0.01 par value per share (“Common Shares”) of the Company set forth above at the Exercise
Price (as defined in the Warrant Agreement). The Exercise Price and the number and kind of shares purchasable hereunder are subject to
adjustment from time to time as provided in Article V of the Warrant Agreement. The initial Exercise Price shall be $25.00.
This Warrant Certificate shall
not be valid unless countersigned by the Warrant Agent.
* Exercisable
for [●] Common Shares for all Warrants in the aggregate, subject to adjustment in accordance with Article V of the Warrant
Agreement.
IN WITNESS WHEREOF, this Warrant has
been duly executed by the Company under its corporate seal as of the [●] day of [●], 2026.
OFFICE PROPERTIES INCOME TRUST
By:
Name:
Title:
CSC DELAWARE
TRUST COMPANY, as Warrant Agent
By:
Name:
Title:
Address of Registered Holder for Notices (until changed in accordance
with this Warrant):
Cede & Co.
55 Water Street
New York, New York 10041
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS
OF THIS GLOBAL WARRANT CERTIFICATE SET FORTH ON THE REVERSE HEREOF. SUCH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT
AS THOUGH FULLY SET FORTH AT THIS PLACE.
FORM OF REVERSE OF GLOBAL WARRANT CERTIFICATE
The
Warrant evidenced by this Global Warrant Certificate is a part of a duly authorized issue of Warrants to purchase_______¤Common
Shares issued pursuant to the Warrant Agreement, a copy of which may be inspected at the office of the Warrant Agent designated for such
purpose. The Warrant Agreement hereby is incorporated by reference in and made a part of this instrument and is hereby referred to for
a description of the rights, limitation of rights, obligations, duties, and immunities thereunder of the Warrant Agent, the Company, and
the Registered Holders of the Warrants. Capitalized terms used in this Warrant Certificate but not defined herein shall have the meanings
assigned to them in the Warrant Agreement.
The Company shall not be required
to issue fractions of Common Shares or any certificates that evidence fractional Common Shares.
No Warrants may be sold, exchanged,
or otherwise transferred in violation of the Securities Act or state securities laws. This Warrant does not entitle the Registered Holder
to any of the rights of a shareholder of the Company.
THE WARRANT EVIDENCED BY THIS
GLOBAL WARRANT CERTIFICATE IS SUBJECT TO RESTRICTIONS ON OWNERSHIP AND TRANSFER WHICH ARE OR MAY HEREAFTER BE CONTAINED IN THE DECLARATION
OF TRUST OR IN THE BYLAWS, INCLUDING PROVISIONS OF THE DECLARATION OF TRUST WHICH PROHIBIT THE OWNERSHIP OF MORE THAN 9.8% OF ANY
CLASS OR SERIES OF THE COMPANY’S SHARES OF BENEFICIAL INTEREST BY ANY PERSON OR GROUP (AND TREAT THE WARRANT AS AN OUTSTANDING
COMMON SHARE). THIS DESCRIPTION OF THE RESTRICTIONS UPON OWNERSHIP OR TRANSFER OF THE COMPANY’S SECURITIES IS NOT COMPLETE. A MORE
COMPLETE DESCRIPTION OF THESE RESTRICTIONS AND OF VARIOUS RIGHTS AND OBLIGATIONS OF WARRANT HOLDERS APPEARS IN THE DECLARATION OF TRUST
OR BYLAWS, AS APPLICABLE, AND IN CERTAIN OTHER AGREEMENTS WHICH MAY FROM TIME TO TIME BE ENTERED INTO BY THE COMPANY AFFECTING THE
RIGHTS AND OBLIGATIONS OF WARRANT HOLDERS. COPIES OF THE DECLARATION OF TRUST, BYLAWS, AND AGREEMENTS AFFECTING THE RIGHTS AND OBLIGATIONS
OF WARRANT HOLDERS AS IN EFFECT FROM TIME TO TIME WILL BE SENT WITHOUT CHARGE TO ANY WARRANT HOLDER UPON REQUEST TO THE SECRETARY OF THE
COMPANY.
Subject to the terms of the
Warrant Agreement, the Company and Warrant Agent may deem and treat the Registered Holder hereof as the absolute owner of this Warrant
Certificate for all purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary.
¤ Exercisable
for [●] Common Shares for all Warrants in the aggregate, subject to adjustment in accordance with Article V of the Warrant
Agreement.
EXHIBIT A-2
THE SECURITIES
REPRESENTED BY THIS WARRANT CERTIFICATE (INCLUDING THE SECURITIES ISSUABLE UPON EXERCISE OF THE WARRANT) WILL BE ISSUED PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER SECTION 1145 OF THE BANKRUPTCY CODE. THE WARRANT MAY BE SOLD, OFFERED FOR SALE, PLEDGED, OR
HYPOTHECATED WITHOUT REGISTRATION UNDER THE SECURITIES ACT, PROVIDED THAT THE HOLDER IS NOT DEEMED TO BE AN UNDERWRITER AS SUCH TERM IS
DEFINED IN SECTION 1145(b) OF THE BANKRUPTCY CODE OR AN AFFILIATE OF THE ISSUER. IF THE HOLDER IS DEEMED TO BE AN UNDERWRITER
AS SUCH TERM IS DEFINED IN SECTION 1145(b) OF THE BANKRUPTCY CODE OR AN AFFILIATE OF THE COMPANY, THEN THE WARRANT MAY NOT
BE SOLD, OFFERED FOR SALE, PLEDGED, OR HYPOTHECATED UNLESS (1) THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT AND ANY APPLICABLE STATE SECURITIES LAW OR (2) SUCH DISPOSITION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS
OF THE SECURITIES ACT AND OF ANY APPLICABLE STATE SECURITIES LAWS. IN ADDITION, THE WARRANT MAY NOT BE TRANSFERRED, SOLD, ASSIGNED,
PLEDGED, HYPOTHECATED, OR OTHERWISE DISPOSED OF UNLESS SUCH TRANSFER COMPLIES WITH THE TRANSFER PROVISIONS IN ARTICLE VI OF THE WARRANT
AGREEMENT. THESE LEGENDS MAY NOT BE REMOVED WITHOUT THE WRITTEN CONSENT OF THE COMPANY.
Certificate Number _________________
Warrants______________
CUSIP 67623C117
This certifies that
is the holder of
WARRANTS TO PURCHASE COMMON SHARES OF
OFFICE PROPERTIES INCOME TRUST
transferable on the books of the Company by the
holder hereof in person or by duly authorized attorney upon surrender of the certificate properly endorsed. Each Warrant entitles the
holder and its registered assigns (collectively, the “Registered Holder”) to purchase by exercise from Office Properties
Income Trust, a Maryland real estate investment trust (the “Company”), subject to the terms and conditions hereof,
at any time before 5:00 p.m., New York time, on [●], 2033, one fully paid and non-assessable common share of beneficial interest,
$0.01 par value per share (“Common Share”) of the Company at the Exercise Price (as defined in the Warrant Agreement).
The Exercise Price and the number and kind of shares purchasable hereunder are subject to adjustment from time to time as provided in
Article V of the Warrant Agreement. The initial Exercise Price shall be $25.00.
This certificate is not valid unless countersigned
and registered by the Warrant Agent.
WITNESS the
facsimile seal of the Corporation and the facsimile signatures of its duly authorized officers.
DATED:
Authorized Officer
COUNTERSIGNED AND REGISTERED
Attest
Csc delaware trust
company, as warrant agent
By:
Secretary
AUTHORIZED SIGNATURE
FORM OF REVERSE OF WARRANT
OFFICE PROPERTIES INCOME TRUST
The Warrants evidenced by this Warrant Certificate
are a part of a duly authorized issue of Warrants to purchase [●] Common Shares issued pursuant to the Warrant Agreement, dated
as of [●], 2026, between Office Properties Income Trust, a Maryland real estate investment trust (the “Company”),
and CSC Delaware Trust Company (together with its successors and assigns, the “Warrant Agent” and the agreement, the
“Warrant Agreement”), a copy of which may be inspected at the office of the Warrant Agent designated for such purpose.
The Warrant Agreement is incorporated by reference in and made a part of this instrument and is hereby referred to for a description of
the rights, limitation of rights, obligations, duties, and immunities thereunder of the Warrant Agent, the Company, and the Registered
Holders of the Warrants. Capitalized terms used in this Warrant Certificate but not defined herein shall have the meanings assigned to
them in the Warrant Agreement.
The Company shall not be required to issue fractions
of Common Shares or any certificates that evidence fractional Common Shares. No Warrants may be sold, exchanged, or otherwise transferred
in violation of the Securities Act or state securities laws. The Warrants represented by this Warrant Certificate do not entitle the Registered
Holder to any of the rights of a shareholder of the Company. The Company and Warrant Agent may deem and treat the Registered Holder hereof
as the absolute owner of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone) for
all purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary.
THIS WARRANT IS SUBJECT TO
RESTRICTIONS ON OWNERSHIP AND TRANSFER WHICH ARE OR MAY HEREAFTER BE CONTAINED IN THE DECLARATION OF TRUST OR IN THE BYLAWS, INCLUDING
PROVISIONS OF THE DECLARATION OF TRUST WHICH PROHIBIT THE OWNERSHIP OF MORE THAN 9.8% OF ANY CLASS OR SERIES OF THE COMPANY’S
SHARES OF BENEFICIAL INTEREST BY ANY PERSON OR GROUP (AND TREAT THE WARRANT AS AN OUTSTANDING COMMON SHARE). THIS DESCRIPTION OF THE RESTRICTIONS
UPON OWNERSHIP OR TRANSFER OF THE COMPANY’S SECURITIES IS NOT COMPLETE. A MORE COMPLETE DESCRIPTION OF THESE RESTRICTIONS AND OF
VARIOUS RIGHTS AND OBLIGATIONS OF WARRANT HOLDERS APPEARS IN THE DECLARATION OF TRUST OR BYLAWS, AS APPLICABLE, AND IN CERTAIN OTHER AGREEMENTS
WHICH MAY FROM TIME TO TIME BE ENTERED INTO BY THE COMPANY AFFECTING THE RIGHTS AND OBLIGATIONS OF WARRANT HOLDERS. COPIES OF THE
DECLARATION OF TRUST, BYLAWS, AND AGREEMENTS AFFECTING THE RIGHTS AND OBLIGATIONS OF WARRANT HOLDERS AS IN EFFECT FROM TIME TO TIME WILL
BE SENT WITHOUT CHARGE TO ANY WARRANT HOLDER UPON REQUEST TO THE SECRETARY OF THE COMPANY.
EXHIBIT B-1
EXERCISE FORM FOR REGISTERED HOLDERS HOLDING
WARRANT CERTIFICATES
EXHIBIT B-2
EXERCISE FORM FOR REGISTERED HOLDERS HOLDING
DIRECT REGISTERED WARRANTS
EXHIBIT C
FORM OF ASSIGNMENT
FOR REGISTERED HOLDERS
HOLDING DIRECT REGISTRATION WARRANTS
EX-8.1 — EXHIBIT 8.1
EX-8.1
Filename: tm2618043d2_ex8-1.htm · Sequence: 5
Exhibit 8.1
June 23, 2026
Office Properties Income Trust
Two Newton Place
255 Washington Street, Suite 300
Newton, Massachusetts 02458
Ladies and Gentlemen:
The
following opinion is furnished to Office Properties Income Trust, a Maryland real estate investment trust (the “Company”),
to be filed with the Securities and Exchange Commission (the “SEC”) as Exhibit 8.1 to the Company’s Current Report
on Form 8-K containing the exhibit captioned “Material United States Federal Income Tax Considerations” and “ERISA
Plans, Keogh Plans and Individual Retirement Accounts” to be filed on the date hereof (the “Form 8-K”) under the
Securities Exchange Act of 1934, as amended.
We
have acted as counsel for the Company in connection with the preparation of the Form 8-K. We have reviewed originals or copies of
such corporate records, such certificates and statements of officers of the Company and of public officials, and such other documents
as we have considered relevant and necessary in order to furnish the opinion hereinafter set forth. In doing so, we have assumed the genuineness
of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity
to original documents of all documents submitted to us as copies, and the authenticity of the originals of such documents. Specifically,
and without limiting the generality of the foregoing, we have reviewed: (i) the Company’s amended and restated declaration
of trust, as amended, and its third amended and restated bylaws; (ii) the Fourth Amended Joint Chapter 11 Plan of Reorganization
of Office Properties Income Trust and Its Debtor Affiliates, as filed on April 21, 2026 with the United States Bankruptcy
Court for the Southern District of Texas (as such plan may have been amended, modified, or supplemented in accordance with its terms through
the date hereof, the “Plan”); (iii) the Company’s Annual Report on Form 10-K for its fiscal year
ended December 31, 2025 (the “Form 10-K”); (iv) the Company’s Quarterly Report on Form 10-Q for
its quarterly period ended March 31, 2026 (the “Form 10-Q”, and together with the Form 10-K, the “Periodic
Filings”); and (v) Exhibit 99.1 to the Form 8-K. For purposes of the opinion set forth below, we have assumed
that any documents (other than documents which have been executed, delivered, adopted, or filed, as applicable, by the Company prior to
the date hereof) that have been provided to us in draft form will be executed, delivered, adopted, and filed, as applicable, without material
modification.
The opinion set forth below
is based upon the Internal Revenue Code of 1986, as amended, the Treasury regulations issued thereunder, published administrative interpretations
thereof, and judicial decisions with respect thereto, all as of the date hereof (collectively, “Tax Laws”), and upon the Employee
Retirement Income Security Act of 1974, as amended, the Department of Labor regulations issued thereunder, published administrative interpretations
thereof, and judicial decisions with respect thereto, all as of the date hereof (collectively, “ERISA Laws”). No assurance
can be given that Tax Laws or ERISA Laws will not change. In the discussions with respect to Tax Laws matters and ERISA Laws matters in
Exhibit 99.1 to the Form 8-K, certain assumptions have been made therein and certain conditions and qualifications have been
expressed therein, all of which assumptions, conditions, and qualifications are incorporated herein by reference. With respect to all
questions of fact on which our opinion is based, we have assumed the initial and continuing truth, accuracy, and completeness of: (i) the
information set forth in the Plan, the Periodic Filings, and in any exhibits thereto or any documents incorporated therein by reference;
and (ii) representations made to us by officers of the Company or contained in the Plan, the Periodic Filings, and in any exhibits
thereto or any documents incorporated therein by reference, in each such instance without regard to qualifications such as “to the
best knowledge of” or “in the belief of”. We have not independently verified such information.
Office Properties Income Trust
June 23, 2026
Page 2
We have relied upon, but not
independently verified, the foregoing assumptions. If any of the foregoing assumptions are inaccurate or incomplete for any reason, or
if the transactions described in the Plan, the Periodic Filings, or in any exhibits thereto or any documents incorporated therein by reference
have been or are consummated in a manner that is inconsistent with the manner contemplated therein, our opinion as expressed below may
be adversely affected and may not be relied upon.
Based upon and subject to
the foregoing: (i) we are of the opinion that the discussions with respect to Tax Laws matters and ERISA Laws matters in Exhibit 99.1
to the Form 8-K in all material respects are, subject to the limitations set forth therein, the material Tax Laws considerations
and the material ERISA Laws considerations relevant to holders of the securities of the Company discussed therein (the “Securities”);
and (ii) we hereby confirm that the opinions of counsel referred to in said Exhibit represent our opinions on the subject matters
thereof.
Our opinion above is limited
to the matters specifically covered hereby, and we have not been asked to address, nor have we addressed, any other matters or any other
transactions. Further, we disclaim any undertaking to advise you of any subsequent changes of the matters stated, represented, or assumed
herein or any subsequent changes in Tax Laws or ERISA Laws.
This opinion is rendered to
you in connection with the filing of the Form 8-K. Purchasers and holders of the Securities are urged to consult their own tax advisors
or counsel, particularly with respect to their particular tax consequences of acquiring, holding, and disposing of the Securities, which
may vary for investors in different tax situations. We hereby consent to the filing of a copy of this opinion as an exhibit to the Form 8-K
and to the references to our firm in the Form 8-K. In giving such consent, we do not thereby admit that we come within the category
of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or under the rules and regulations
of the SEC promulgated thereunder.
Very truly yours,
/s/ Sullivan & Worcester LLP
SULLIVAN & WORCESTER LLP
EX-10.1 — EXHIBIT 10.1
EX-10.1
Filename: tm2618043d2_ex10-1.htm · Sequence: 6
Exhibit 10.1
THIRD AMENDED AND RESTATED BUSINESS MANAGEMENT
AGREEMENT
THIS THIRD AMENDED
AND RESTATED BUSINESS MANAGEMENT AGREEMENT (this “Agreement”) is entered into effective as of June 17,
2026, by and between Office Properties Income Trust, a Maryland real estate investment trust (the “Company”), and The
RMR Group LLC, a Maryland limited liability company (the “Manager”).
WHEREAS,
the Company and the Manager are parties to a Second Amended and Restated Business Management Agreement, dated as of June 5, 2015
(as amended, supplemented or otherwise modified from time to time prior to the date of this Agreement, the “Original Agreement”);
and
WHEREAS,
the Company and the Manager wish to continue the Original Agreement in force and effect with respect to services performed and fees due
with respect to such services, on and prior to the date of this Agreement, but wish to amend and restate the Original Agreement as hereinafter
provided, effective with respect to services performed and fees due with respect to such services after the date of this Agreement;
NOW, THEREFORE,
in consideration of the mutual agreements herein set forth, the parties hereto agree that the Original Agreement is hereby amended and
restated to read in its entirety as follows:
1. Engagement.
Subject to the terms and conditions hereinafter set forth, the Company hereby continues to engage the Manager to provide the management
and real estate investment services contemplated by this Agreement with respect to the Company’s business and real estate investments
and the Manager hereby accepts such continued engagement.
2. General
Duties of the Manager. The Manager shall use its reasonable best efforts to provide the Company with a continuing and suitable
real estate portfolio program consistent with the business policies and strategic objectives of the Company. Subject in all respects to
the management, direction and oversight of the Company’s board of trustees or any replacement governing body (the “Board”),
the Manager shall conduct and perform all corporate office functions for the Company, including, but not limited to, the following:
(a) provide
research and economic and statistical data in connection with the Company’s real estate portfolio and recommend changes in the Company’s
business policies when appropriate;
(b) (i) investigate
and evaluate investments in, or acquisitions or dispositions of, real estate and related interests, and financing and refinancing opportunities,
(ii) make recommendations concerning specific investments to the Board and (iii) evaluate and negotiate contracts with respect
to the foregoing; in each case, on behalf of the Company and in the furtherance of the Company’s strategic objectives;
(c) investigate,
evaluate, prosecute and negotiate any claims of the Company in connection with its real estate portfolio or otherwise in connection with
the conduct of its business;
(d) to
the extent applicable, administer bookkeeping and accounting functions as are required for the management and operation of the Company,
contract for audits and prepare or cause to be prepared such reports and filings as may be required by any governmental authority in connection
with the conduct of the Company’s business, and otherwise advise and assist the Company with its compliance with applicable legal
and regulatory requirements, including, without limitation, periodic reports, returns or statements that may be required under the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder (the “Exchange Act”), the Internal
Revenue Code of 1986, as amended and any regulations and rulings thereunder (the “Code”), the securities and tax statutes
of any jurisdiction in which the Company is obligated to file such reports or any rules or regulations promulgated under any of the
foregoing;
(e) to
the extent applicable, advise and assist in the preparation and filing of all offering documents (public and private), and all registration
statements, prospectuses or other documents that may be filed with the Securities and Exchange Commission (the “SEC”)
or any state (it being understood that the Company shall be responsible for the content of any and all of its offering documents and SEC
filings (including, without limitation, those filings referred to in Section 2(d) hereof), and the Manager shall not
be held liable for any costs or liabilities arising out of any misstatements or omissions in the Company’s offering documents or
SEC filings, whether or not material, and the Company shall promptly indemnify the Manager from such costs and liabilities unless the
misstatement or omission was the result of gross negligence, willful misconduct or fraud on the part of Manager or any of its Affiliates);
(f) retain
counsel, consultants and other third party professionals on behalf of the Company or any subsidiary; provided that if such retention is
in connection with any financing, capital raise, recapitalization or sale, transfer, exchange, or other disposition, by or involving the
Company or any subsidiary, of any assets thereof or for any other purpose, in each case that is not within the ordinary course of the
business of the Company and its subsidiaries, any such counsel, consultant or other third party professional shall be retained only if
and to the extent approved by the Board after consultation therewith;
(g) provide,
including through a third party service provider, internal audit services as appropriate;
(h) advise
and assist with the Company’s risk management functions;
(i) to
the extent not covered above, advise and assist the Company in the review and negotiation of the Company’s contracts and agreements,
coordinate and supervise all third party legal services and claims by or against the Company;
-2-
(j) advise
and assist the Company with respect to the Company’s investor relations, preparation of marketing materials, internet website and
related services;
(k) provide
meeting spaces and communication facilities as required to facilitate meetings for, and communication between and among, the members of
the Board and Company management; and
(l) provide
office space, equipment and experienced and qualified personnel necessary for the performance of the foregoing services.
In performing its services under this Agreement,
the Manager may utilize facilities, personnel, support services and facilities of various of its affiliates. The Manager shall be responsible
for paying such affiliates for their personnel and support services and facilities out of its own funds unless otherwise approved by a
majority vote of the members of the Board who are independent from the Manager (the “Independent Board Members”). Notwithstanding
the foregoing, fees, costs and expenses of any third party which is not an affiliate of the Manager retained as permitted hereunder are
to be paid by the Company. Without limiting the foregoing sentence, any such fees, costs or expenses referred to in the immediately preceding
sentence which are expected to be paid by the Manager shall be reimbursed to the Manager by the Company promptly following submission
to the Company of a statement of any such fees, costs or expenses.
Manager acknowledges and agrees that if and to
the extent determined by the Company, the Company shall have the right to impose additional limitations on the scope of Manager’s
authority under this Agreement in accordance with the terms of this paragraph. If the Company intends to exercise its right to modify
the limitations on the scope of Manager’s authority under this Agreement, it will do so by written notice to Manager (the “Modification
Notice”) and the modification shall become effective as promptly as reasonably practicable for Manager following Manager’s
receipt of the Modification Notice; provided that, if and to the extent any such modification, individually or in the aggregate with
others, would impose additional limitations on the scope of Manager’s authority or increase in any material respect Manager’s
scope or volume of work or change in any material respect the nature or amount of services to be provided by Manager hereunder, and,
in any such case, the change also would increase in any material respect the amount of costs or expenses Manager expects to incur in
performing its obligations hereunder, as determined by Manager acting reasonably, Manager shall promptly (and in any case, within ten
(10) business days of Manager’s receipt of the Modification Notice) notify the Company thereof and of the anticipated increased
cost of the change (any such notice, a “Manager Change Notice”). If Manager delivers such Manager Change Notice to
the Company within the time provided above, the Company shall enter into good faith negotiations with Manager to determine an appropriate
modification to Manager’s compensation and expense reimbursement hereunder to address that increase and, in that case, the proposed
modification underlying such Manager Change Notice, to the extent it has been identified by Manager as increasing in any material respect
the amount of costs or expenses Manager expects to incur in compliance therewith, shall be deferred until the date on which the Company
and Manager have agreed on a modification to Manager’s compensation and expense reimbursement hereunder in respect thereof (and,
for the avoidance of doubt, shall be deemed not to have gone into effect at any time prior to such date). If Manager and the Company
are not able to agree on the necessary modifications to Manager’s compensation and expense reimbursement and the Company has not
withdrawn the modification that was giving rise to the disputed compensation and expense reimbursement shortfall by notice delivered
to Manager, in each case prior to the date that is thirty (30) days following the receipt by the Company of the relevant Manager Change
Notice, this Agreement may be terminated by either Manager or the Company by written notice to the other party (a “Modification
Termination”), and, if such termination notice is given by the Company it will take effect on the date specified in the notice
and if the notice is given by Manager it will take effect on the sixtieth (60th) day following the date the Company receives the termination
notice from Manager (or, in either case, such other date as may be mutually agreed between the Company and Manager). If a termination
pursuant to the preceding sentence becomes effective prior to the second (2nd) anniversary of the date of this Agreement, the Termination
Fee shall be payable to Manager in connection with that termination.
-3-
Notwithstanding anything herein, it is understood
and agreed that the duties of, and services to be provided by, the Manager pursuant to this Agreement shall not include (i) any investment
management or related services with respect to any assets of the Company as the Company may wish to allocate from time to time to investments
in “securities” (as defined in the Investment Advisers Act of 1940, as amended), (ii) any services that would subject
the Manager to registration with the Commodity Futures Trading Commission as a “commodity trading advisor” (as such term is
defined in Section la(12) of the Commodity Exchange Act and in CFTC Regulation 1.3(bb)(1)), or affirmatively require it to make any
exemptive certifications or similar filings with respect to “commodity trading advisor” registration status, (iii) any
services or the taking of any action that would render the Manager a “municipal advisor” as defined in Section 15B(e)(4) of
the Exchange Act or (iv) any services or the taking of any action that would subject the Manager to registration as a broker-dealer
under Section 15 of the Exchange Act or any similar state regulation.
On the date of this Agreement, the Manager shall
deliver to the Company a certificate of an officer of the Manager in substantially the form attached hereto as Exhibit B.
3. Bank
Accounts. The Manager shall establish and maintain one or more bank accounts in its own name or in the name of the Company or
one or more of its subsidiaries, and shall collect and deposit into such account or accounts and may disburse therefrom any monies on
behalf of the Company or one or more of its subsidiaries, provided that no funds in any such account shall be commingled with any funds
of the Manager or any other person or entity other than the Company or one or more of its subsidiaries (except the
New 2027 SPV Group (as defined below); provided that Manager may commingle the funds of the Company or one or more of its subsidiaries
(other than the New 2027 SPV Group) with the funds of the New 2027 SPV Group so long as it is using commercially reasonable efforts to
cease such commingling as promptly as reasonably practicable following the date hereof). The Manager will consult with the Board
in advance concerning each bank or other financial institution in which one or more accounts of the Company or its subsidiaries will be
established and no such account will be established at a bank or other financial institution that has not been approved by the Board for
that purpose (in each case, to the extent required pursuant to Exhibit C to the Property Management Agreement). Manager shall
ensure that one or more officers or employees of the Company or its subsidiaries will have signature authority over and, to the extent
applicable, access to digital information concerning, each bank account that holds funds of the Company or any of its subsidiaries. The
Manager shall, upon request by the Board, render an appropriate accounting of such collections and payments to the Board and to the auditors
of the Company within a reasonable amount of time following such request.
-4-
4. Records.
The Manager shall maintain appropriate books of account and records relating to this Agreement, which books of account and records shall
be available for inspection by the Company and members of the Board and any counsel or accountants retained by the Company or the Board
upon reasonable notice during ordinary business hours.
5. Information
Furnished to Manager. The Board shall at all times keep the Manager fully informed with regard to the business policies and strategic
objectives of the Company and its then-current intentions with respect to the future of the Company. The Board shall notify the Manager
promptly of its intention to sell or otherwise dispose of any of the Company’s properties or to acquire or invest in new properties.
The Company shall furnish the Manager with such information with regard to its affairs as the Manager may from time to time reasonably
request. The Company shall retain legal counsel, accountants and third party consultants to provide such legal and accounting advice,
services and opinions as the Manager (subject to Section 2(f)) or the Board shall deem necessary or appropriate to adequately
perform the functions of the Company.
6. REIT
Qualification; Compliance with Law and Organizational Documents.
(a) Anything
else in this Agreement to the contrary notwithstanding, the Manager shall refrain from any activity which, in its good faith judgment,
or in the judgment of the Board as transmitted to the Manager in writing, would (a) adversely affect the qualification of the Company
as a real estate investment trust as defined and limited in the Code, if and so long as the Company shall continue to seek to qualify
as a real estate investment trust, or which would make the Company subject to the Investment Company Act of 1940, as amended (the “1940
Act”), (b) violate any law or rule, regulation or statement of policy of any governmental body or agency having jurisdiction
over the Company or over its securities, or (c) not be permitted by the Company’s Declaration of Trust, as in effect from time
to time (the “Declaration of Trust”), or Bylaws, except if such action shall be approved by the Board, in which event
the Manager shall promptly notify the Board of the Manager’s judgment that such action would adversely affect such qualification,
make the Company subject to the 1940 Act or violate any such law, rule, regulation or policy, or the Declaration of Trust or Bylaws, and
shall refrain from taking any such action pending further clarification or instructions from the Board. In addition, the Manager shall
take such affirmative steps which, in its judgment made in good faith, or in the judgment of the Board as transmitted to the Manager in
writing, would prevent or cure any action described in (a), (b) or (c) above.
-5-
(b) In
furtherance of the foregoing, if and so long as the Company shall continue to seek to qualify as a real estate investment trust, the Manager
shall manage the Company’s properties in such a manner that (x) at least ninety-five percent (95%) of the Company’s gross
income received or accrued, directly or indirectly, for each taxable year during its term of existence will consist of the following items,
in each case as determined for purposes of Code Section 856(c)(2): (a) rents that qualify as rents from real property under
Code Section 856(d), (b) gain from the sale or other disposition of real property (including interests in real property and
interests in mortgages on real property) which is not property described in Code Section 1221(a)(1), (c) interest, other than
interest the determination of which depends in whole or in part on the income or profits of any person, (d) dividends, (e) abatements
and refunds of taxes on real property, (f) income and gain derived from foreclosure property as defined in Code Section 856(e),
and (g) gain from the sale or other disposition of a real estate asset which is not a prohibited transaction solely by reason of
Code Section 857(b)(6), and (y) at least seventy-five percent (75%) of the gross income received or accrued, directly or indirectly,
for each taxable year during its term of existence will consist of the following items, in each case as determined for purposes of Code
Section 856(c)(3): (i) the items described in clauses (a), (e), (f) and (g) of the foregoing clause (x), (ii) gain
from the sale or other disposition of real property (including interests in real property and interests in mortgages on real property)
which is not property described in Code Section 1221(a)(1), (iii) interest on obligations secured by mortgages on real property
or on interests in real property other than interest the determination of which depends in whole or in part on the income or profits of
any person, and (iv) dividends or other distributions on, and gain (other than gain from prohibited transactions) from the sale or
other disposition of, transferable shares (or transferable certificates of beneficial interest) in other qualifying “real estate
investment trusts”.
7. Manager
Conduct.
(a) The
Manager, including its officers and other employees, shall adhere to the Company’s Code of Business Conduct and Ethics as in effect
from time to time.
(b) Neither
the Manager nor any affiliates of the Manager shall sell any property or other assets to the Company or purchase any assets from the Company,
directly or indirectly, except as approved by a majority vote of the Independent Board Members. No compensation, commission or remuneration
shall be paid to the Manager or any affiliate of the Manager on account of services provided to the Company except as provided by this
Agreement, the Property Management Agreement, the New 2027 SPV Property Management Agreement (as hereinafter defined) or otherwise approved
by a majority vote of the Independent Board Members.
(c) The
Manager may engage in other activities or businesses and act as the manager to any other person or entity (including other real estate
investment trusts) even though such person or entity has investment policies and objectives similar to those of the Company. The Company
recognizes that it is not entitled to preferential treatment in receiving information, recommendations and other services from the Manager.
The Manager shall act in good faith to endeavor to identify to the Independent Board Members any conflicts that may arise among the Company,
the Manager and/or any other person or entity on whose behalf the Manager may be engaged. When allocating investment opportunities among
the persons or entities for which the Manager acts as manager, the Manager will consider the factors set forth in its allocation policy
as in effect from time to time.
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(d) The
Manager shall make available sufficient experienced and qualified personnel to perform the services and functions set forth in this Agreement,
including, without limitation, at the Company’s request, serving as the officers of the Company. The Manager’s personnel shall
receive no compensation from the Company for their services to the Company in any such capacities. The Manager shall not be obligated
to dedicate any of its personnel exclusively to the Company nor shall the Manager or any of its personnel be obligated to dedicate any
specific portion of its or their time to the Company or its business, except as necessary to perform the services set forth in this Agreement.
(e) The
Manager’s liability under this Agreement shall be as set forth in Section 16.
8. No
Partnership or Joint Venture. The Company and the Manager are not partners or joint venturers with each other and neither the
terms of this Agreement nor the fact that the Company and the Manager have joint interests in any one or more investments, ownership in
each other (including, without limitation, the Equity Compensation) or ownership or other interests in any one or more entities or may
have common officers or employees or a tenancy relationship shall be construed so as to make them such partners or joint venturers or
impose any liability as such on either of them.
9. Fidelity
Bond. The Manager shall not be required to obtain or maintain a fidelity bond in connection with the performance of its services
hereunder.
10. Management
Fee.
(a) For
the period from the date of this Agreement through the day immediately preceding the second anniversary of this Agreement (the “Initial
Period”), the Manager shall be paid, for the services rendered by it to the Company pursuant to this Agreement, an annual management
fee (the “Management Fee”) equal to $14,000,000.00 (the “Initial Amount”), payable in equal monthly
installments of $1,166,666.67 in advance, the first installment of which shall be paid on the date hereof and thereafter on each monthly
anniversary of the date hereof (or, if such date is not a business day, the immediately preceding business day)
(b) Following
the Initial Period, the Management Fee shall be such amount as is mutually agreed by the Company and the Manager. Beginning on the date
that is six (6) months prior to the end of the Initial Period, the Company and the Manager shall commence good faith discussions
to determine a Management Fee amount that is mutually acceptable to both parties for each year of term remaining in the Initial Term,
it being acknowledged that each party will have a termination right, as set out in Section 17, if for any reason the parties are
not able to reach agreement on the Management Fee for the period following the Initial Period.
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11. Equity
Interest; Board Composition.
(a) In
addition to the Management Fee, the Company shall issue to the Manager, on the date hereof and pursuant to the Plan of Reorganization,
2.00% of the Common Equity (which shall not dilute the Common Equity to be issued to the holders of the September 2029 Senior Secured
Notes Claims (as defined in the Plan of Reorganization) pursuant to the terms of the Plan of Reorganization, but shall be subject to dilution
by the exercise of the New Warrants (as defined in the Plan of Reorganization)) (the “Initial Equity Compensation”).
In addition, as and to the extent authorized and issued by the Board pursuant to an incentive plan to be established by the Company following
the date hereof, the Manager shall be further entitled to receive additional shares of the Common Equity as the Subsequent Equity Compensation
(as defined in the Plan of Reorganization), based on the Company’s satisfaction of certain financial criteria to be established
by the Board (the “Subsequent Equity Compensation”).
(b) Pursuant
to the Plan of Reorganization, concurrently herewith the Board includes one (1) member, Mr. Adam Portnoy, who has been proposed
for that position by the Manager. The Company agrees that it will nominate Mr. Portnoy (or, if applicable, a substitute therefor
proposed by the Manager who is an employee, officer or director of Manager and approved by the Company’s nominating and governance
committee, acting in good faith), for election to the Board for another year. If, for any reason, the seat originally held by Mr. Portnoy
(or a substitute as described above) is vacated prior to the second anniversary of the date of this Agreement for any reason (other than
a removal of the holder due to that director becoming a director or officer of another publicly traded office properties real estate investment
trust or for any of the other disqualification reasons provided in the Company’s organizational documents – in which case
this nomination undertaking will no longer apply), the Company will take such actions as are reasonably available to it to nominate a
substitute therefor proposed by the Manager and approved by the Company’s nominating and governance committee, acting in good faith,
to fill that seat until the second anniversary. If, for any reason, this Agreement is terminated on or prior to the second anniversary
of the date hereof, the Manager will use reasonable best efforts to cause the individual designated by it to fill the above-referenced
board seat to resign from that position effective concurrent or immediately following the termination of this Agreement.
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12. Internal
Audit Services. To the extent applicable, the Manager shall provide to the Company, or arrange to be provided by one or more third
party service providers approved by the Board, an internal audit function meeting applicable requirements, if any, of the Stock Exchange
and the SEC and otherwise in scope approved by the Audit Committee of the Board, if any; it being understood that Manager is authorized
to continue to utilize PricewaterhouseCoopers for that purpose for the remainder of its current term (i.e., through April 2028) unless
after the date hereof the Company determines that a change is warranted. In addition to the Management Fee, the Company agrees to reimburse
the Manager, within thirty (30) days of the receipt of an invoice therefor, the Company’s pro rata share (as reasonably agreed to
by a majority of the Independent Board Members from time to time) of the following, in each case if and to the extent the costs thereof
are within a budget therefor that has been approved by the Board in advance:
(a) expenses,
if any, of the Manager, or any third party service provider, as applicable, in providing internal audit services to the Company; and
(b) the
reasonable travel and other out-of-pocket expenses of the Manager, or any third party service provider, as applicable, relating to the
provision of internal audit services to the Company, if any.
In addition, as requested by the Company, the Manager
shall make available (which may be by posting to the Company’s website) to its officers and employees providing such services to
the Company the procedures for the receipt, retention and treatment of complaints regarding accounting, internal accounting controls or
auditing matters relating to the Company and for the confidential, anonymous submission by such officers and employees of concerns regarding
questionable accounting or auditing matters relating to the Company, as set forth in the Company’s Procedures for Handling Concerns
or Complaints about Accounting, Internal Accounting Controls or Auditing Matters, as in effect from time to time.
13. Additional
Services. If, and to the extent that, the Company shall request the Manager to render services on behalf of the Company other
than those required to be rendered by the Manager in accordance with the terms of this Agreement, such additional services shall be compensated
separately on terms to be agreed upon by the Manager and the Company (and approved by majority vote of the Independent Board Members)
from time to time.
14. Expenses
of the Manager. Except as otherwise expressly provided herein or approved by majority vote of the Independent Board Members, the
Manager shall bear the following expenses incurred in connection with the performance of its duties under this Agreement:
(a) employment
expenses of the personnel employed by the Manager and any Affiliate of the Manager assisting the Manager to perform its obligations hereunder,
including, but not limited to, salaries, wages, payroll taxes and the cost of employee benefit plans;
(b) fees
and travel and other expenses paid to directors, officers and employees of the Manager, except fees and travel and other expenses of such
persons who are officers of the Company incurred in their capacities as officers of the Company;
(c) rent,
telephone, utilities, office furniture, equipment and machinery (including computers, to the extent utilized) and other office expenses
of the Manager, except to the extent such expenses relate solely to an office maintained by the Company separate from the office of the
Manager; and
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(d) miscellaneous
administrative expenses relating to performance by the Manager of its obligations hereunder.
15. Expenses
of the Company. Except as expressly otherwise provided in this Agreement, the Company shall pay all its expenses, and, without
limiting the generality of the foregoing, it is specifically agreed that the following expenses of the Company shall be paid by the Company
and shall not be paid by the Manager:
(a) the
cost of borrowed money;
(b) taxes
on income and taxes and assessments on real and personal property, if any, and all other taxes applicable to the Company;
(c) legal,
auditing, accounting, underwriting, brokerage, listing, reporting, registration and other fees, and printing, engraving and other expenses
and taxes incurred in connection with the issuance, distribution, transfer, trading, registration and listing of the Company’s securities
on the Stock Exchange, including transfer agent’s, registrar’s and indenture trustee’s fees and charges, if and as applicable;
(d) expenses
of organizing, restructuring, reorganizing or liquidating the Company, or of revising, amending, converting or modifying the Company’s
organizational documents;
(e) fees
and travel and other expenses paid to Board members (unless such Board members are directors, officers or employees of the Manager) and
officers of the Company in their capacities as such (but not in their capacities as officers or employees of the Manager) and fees and
travel and other expenses paid to advisors, contractors, mortgage servicers, consultants, and other agents and independent contractors
employed by or on behalf of the Company;
(f) expenses
directly connected with the investigation, acquisition, disposition or ownership of real estate interests or other property (including
third party property diligence costs, appraisal reporting, the costs of foreclosure, insurance premiums, legal services, brokerage and
sales commissions, maintenance, repair, improvement and local management of property), other than expenses with respect thereto of employees
of the Manager, to the extent that such expenses are to be borne by the Manager pursuant to Section 14 above;
(g) all
insurance costs incurred in connection with the Company (including officer and trustee liability insurance) or in connection with any
officer and/or Board member indemnity agreement to which the Company is a party;
(h) expenses
connected with payments of distributions or interest or contributions in cash or any other form made or caused to be made by the Board
to holders of securities of the Company;
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(i) all
expenses connected with communications to holders of securities of the Company and other bookkeeping and clerical work necessary to maintaining
relations with holders of securities, including the cost of any transfer agent, the cost of preparing, printing, posting, distributing
and mailing certificates for securities and proxy solicitation materials and reports to holders of the Company’s securities;
(j) legal,
accounting and auditing fees and expenses, other than those described in subsection (c) above;
(k) filing
and recording fees for regulatory or governmental filings, approvals and notices to the extent not otherwise covered by any of the foregoing
items of this Section 15;
(l) expenses
relating to any office or office facilities maintained by the Company separate from the office of the Manager; and
(m) the
costs and expenses of all equity award or compensation plans or arrangements established by the Company, including the value of awards
made by the Company to the Manager, if any, and payment of any withholding taxes in connection therewith.
In addition, on the date hereof, the Company shall reimburse the Manager
$2,980,693.52 as the entire payment due by the Company for all reasonable legal fees and expenses incurred by the Manager in connection with
the negotiation of, and entrance into, this Agreement, the Property Management Agreement, the New 2027 SPV Property Management Agreement,
the Restructuring Support Agreement and the Definitive Documents (as defined in the Restructuring Support Agreement).
16. Limits
of Manager Responsibility; Indemnification; Company Remedies. The Manager assumes no responsibility other than to render the services
described herein in good faith and shall not be responsible for any action of the Board in following or declining to follow any advice
or recommendation of the Manager. The Manager, its members, officers, employees and affiliates will not be liable to the Company, its
shareholders, or others, except by reason of acts constituting bad faith, fraud, willful misconduct or gross negligence in the performance
of its obligations hereunder or a material breach of this Agreement. The Company shall reimburse, indemnify and hold harmless the Manager,
its members, officers and employees and its affiliates for and from any and all expenses, losses, damages, liabilities, demands, charges
and claims of any nature whatsoever (including, without limitation, all reasonable attorneys’, accountants’ and experts’
fees and expenses) in respect of or arising from any act or omission of the Manager with respect to the provision of services by it or
performance of its obligations in connection with this Agreement or performance of other matters pursuant to instruction by the Board,
except to the extent any such expense, loss, damage, liability, demand, charge or claim was the result of actions or omissions that constituted
bad faith, fraud, willful misconduct or gross negligence or a breach of this Agreement of a material nature. Without limiting the foregoing,
the Company shall promptly advance expenses incurred by the indemnitees referred to in this section for matters referred to in this section,
upon request for such advancement. The Manager shall reimburse, indemnify and hold harmless the Company and its subsidiaries and their
affiliates, and the trustees, managers, officers and employees of any of the foregoing from any and all expenses, losses, damages, liabilities,
demands, charges and claims of any nature whatsoever (including, without limitation, all reasonable attorneys’, accountants’
and experts’ fees and expenses) in respect of or arising from any act or omission of the Manager or any of its affiliates constituting
bad faith, fraud, willful misconduct or gross negligence or a breach of this Agreement of a material nature.
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17. Term,
Termination.
(a) The
initial term of this Agreement shall continue in force and effect until the date that is five (5) years after the date hereof (the
“Initial Term”); thereafter, the term of this Agreement shall be deemed automatically renewed for successive one year
terms unless and until this Agreement has been terminated as provided herein.
(b) Notwithstanding
any other provision of this Agreement to the contrary, this Agreement, or any renewal thereof, may be terminated prior to the expiration
of the term:
(i) by
the Company, (A) upon sixty (60) days’ prior written notice to the Manager (such termination, a “Company Termination
for Convenience”), (B) for Cause, immediately upon written notice to the Manager (such termination, a “Company
Termination for Cause”) or (C) by written notice at any time during the period commencing immediately following the date
of a Manager Change of Control and ending at midnight on the sixtieth (60th) day following the date on which the Manager has
delivered written notice to the Board that a Manager Change of Control has occurred (such termination, a “Company CoC Termination”);
(ii) by
the Manager, (A) upon one hundred eighty (180) days’ prior written notice to the Company (such termination, a “Manager
Termination for Convenience”)or (B) for Good Reason, upon sixty (60) days’ prior written notice to the Company (or
ninety (90) days if the Company takes steps to cure any relevant default within thirty (30) days of written notice to the Company) (such
termination, a “Manager Termination for Cause”);
(iii) by
either the Company or the Manager by written notice to the other party given not less than sixty (60) days’ prior to the expiration
of the then-current term such that the term shall not be automatically renewed for an additional year, which termination shall be effective
as of the end of the then-current term (it being agreed that such termination shall be without cost or fees of any kind; provided that
such termination shall not impact any fees or reimbursable expenses accrued or accruing prior to the end of the then-current term);
(iv) by
either the Company or the Manager by written notice to the other party given not less than sixty (60) days prior to the first day of any
of the final three years of the Initial Term, if the Parties have not agreed on the Management Fee for the ensuing year, which termination
shall be effective as of the end of the then-current term; or
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(v) as
a result of a Modification Termination, subject to the notice provision included in Section 3 of this Agreement.
(c) Notwithstanding
any other provision of this Agreement to the contrary, (i) after the occurrence and during the continuance of a Default (as defined
in the New 2027 Senior Secured Notes Indenture (as defined in the Plan of Reorganization)), this Agreement may be terminated solely as
to Office Properties Intermediate Holdco I Trust LLC, a Delaware limited liability company (the “New 2027 SPV Holdco”),
and any of its subsidiaries (collectively, together with the New 2027 SPV Holdco, the “New 2027 SPV Group”) by Office
Properties Intermediate Holdco II Trust LLC, a Delaware limited liability company (the “New 2027 SPV”), by written
notice to each of the Company and the Manager.
(d) Any
notice of termination shall include the reason for such termination.
(e) (i) If
the Property Management Agreement is terminated in accordance with its terms, this Agreement shall automatically terminate concurrently
therewith. (ii) If either of (a) the New 2027 SPV Property Management Agreement or (b) the Parent-SPV Services Agreement,
dated as of the date hereof (as amended, supplemented or otherwise modified from time to time) is terminated in accordance with its terms,
this Agreement shall automatically terminate solely with respect to the New 2027 SPV Group concurrently therewith. For the avoidance of
doubt, no partial termination pursuant to Section 17(c) above or this Section 17(e) shall affect the
Manager’s compensation hereunder.
(f) In
the event of a Covered Termination that will be effective prior to the date that is two (2) years after the date hereof, the Company
shall pay to the Manager promptly following the date of such Covered Termination an amount in cash (the “Termination Fee”)
equal to the aggregate amount of the Management Fee that would have been paid or payable to the Manager through the date that is two (2) years
after the date of this Agreement absent such termination less the aggregate amount of the Management Fee actually paid to the Manager
through the date of such termination (i.e., $28 million less the Management Fee actually paid to Manager). For the avoidance of
doubt, no more than one Termination Fee shall be payable under this Agreement and the Property Management Agreement.
(g) The
Termination Fee shall not be payable in the event of (i) a Company Termination for Cause, (ii) a Company CoC Termination, (iii) a
Manager Termination for Convenience or (iv) a termination solely with respect to New 2027 SPV Group pursuant to Section 17(c) or
Section 17(e)(ii). The Termination Fee shall not be payable if this Agreement is terminated for any reason with an effective
date after the date that is two (2) years after the date hereof.
(h) The
provisions of this Section 17 shall not apply as a limitation on the amount which may be paid by agreement of the Company
and the Manager in connection with a transaction pursuant to which any assets or going business values of the Manager are acquired by
the Company in association with termination of this Agreement and the Termination Fee is in addition to any amounts otherwise payable
to the Manager under this Agreement as compensation for services and for expenses of or reimbursement due to the Manager through the date
of termination. Also, payment of the Termination Fee shall not affect other rights and obligations created under Sections 2, 13,
16, 17 and 18 of this Agreement or otherwise between the Company and the Manager.
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(i) For
the avoidance of doubt, this Agreement shall not require the Manager to provide any services to any Person (or with respect to the assets
of any Person) other than the Company and its subsidiaries. Accordingly, following any foreclosure by any lender or other creditor upon
the equity interests of any subsidiary of the Company or any other assets of the Company or any of its subsidiaries, the Manager shall
not be required hereunder to provide any services to such subsidiary or with respect to such assets.
18. Action
Upon Termination. From and after the effective date of any termination of this Agreement, the Manager shall be entitled to no
compensation (other than the Termination Fee) for services rendered hereunder for the remainder of the then-current term of this Agreement,
but shall be paid, on a pro rata basis as set forth in this Section 18, all compensation due for services performed prior
to the effective date of such termination. Upon such termination, the Manager shall as promptly as practicable:
(a) pay
over to the Company all monies collected and held for the account of the Company by the Manager pursuant to this Agreement, after deducting
therefrom any accrued Management Fee, the Termination Fee (if applicable) and any reimbursements for costs or expenses to which it or
any of its Affiliates is then entitled;
(b) deliver
to the Board a full and complete accounting, including a statement showing all sums collected by it for the Company and a statement of
all sums held by it for the Company for the period commencing with the date following the date of its last accounting to the Board; and
(c) deliver
to the Board all property and documents of the Company then in its custody or possession; provided, that the Manager shall be permitted
to retain copies of such documents for its records, subject to the condition that, if and to the extent the Manager elects to retain any
such documents containing confidential, proprietary or other non-public information of the Company or any of its subsidiaries, the Manager
will, and will cause its affiliates and its and their representatives to, preserve that information as strictly confidential and will
not share it with any third parties (except as required by applicable law or compulsory legal process) or use any such information for
any purpose other than the winding down of its engagement as manager hereunder or as otherwise required by law or compulsory legal process
(if applicable).
Any accrued and unpaid Management Fee and, to the
extent applicable, any Termination Fee due upon termination shall be due and payable on the date of termination. A copy of all computations
of the Management Fee and, to the extent applicable, the Termination Fee, shall be delivered by the Manager to the Company by the date
of termination.
The Management Fee for any partial month prior
to termination will be computed by multiplying the Management Fee which would have been earned for the full month by a fraction, the numerator
of which is the number of days in the portion of such month prior to the date of termination, and the denominator of which shall be thirty
(30), and the Manager shall return the unearned portion of Management Fee to the Company concurrent with termination of this Agreement.
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In addition to other actions on termination of
this Agreement, for up to one hundred twenty (120) days following the effective date of any termination of this Agreement in accordance
with the terms hereof, the Manager shall cooperate with the Company and use commercially reasonable efforts to facilitate the orderly
transfer of the business management services provided under this Agreement to employees of the Company or to its designee, including,
but not limited to the transfer of bookkeeping and accounting functions and legal and regulatory compliance and reporting. In connection
therewith, the Manager shall assign to the Company, and the Company shall assume, any authorized agreements the Manager executed in its
name on behalf of the Company and the Manager shall assign to the Company all proprietary information with respect to the Company and
its subsidiaries.
19. Board
Action. Unless otherwise specified herein, wherever action on the part of the Board is contemplated by this Agreement, action
by a majority of the Board shall constitute the action provided for herein.
20. BOARD
AND SHAREHOLDERS NOT LIABLE. THE DECLARATION OF TRUST OF THE COMPANY, A COPY OF WHICH, TOGETHER WITH ALL AMENDMENTS, IS DULY
FILED IN THE OFFICE OF THE DEPARTMENT OF ASSESSMENTS AND TAXATION OF THE STATE OF MARYLAND, PROVIDES THAT THE NAME OFFICE PROPERTIES INCOME
TRUST REFERS TO THE TRUSTEES COLLECTIVELY AS TRUSTEES, BUT NOT INDIVIDUALLY OR PERSONALLY. NO TRUSTEE (OR PERSON SERVING AS DIRECTOR,
MANAGER OR OTHER SUBSTITUTE THEREFOR WITH RESPECT TO THE COMPANY), OFFICER, SHAREHOLDER, OTHER EQUITYHOLDER, EMPLOYEE OR AGENT OF THE
COMPANY SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, THE COMPANY. ALL PERSONS
OR ENTITIES DEALING WITH THE COMPANY, IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF THE COMPANY FOR THE PAYMENT OF ANY SUM OR THE
PERFORMANCE OF ANY OBLIGATION.
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21. Notices.
Any notice, report or other communication required or permitted to be given hereunder shall be in writing and shall be deemed to have
been duly given (a) when delivered in person, (b) on the next business day if transmitted by a nationally recognized overnight
courier, or (c) on the third (3rd) business day following mailing by first class mail, postage prepaid, in each case as follows (or
at such other United States address for a party as shall be specified by like notice):
If to the Company:
Office Properties Income Trust
Two Newton Place
255 Washington Street, Suite 300
Newton, MA 02458
Attention: Yael Duffy and Brian Donley
E-mail: YDuffy@rmrgroup.com and BDonley@rmrgroup.com
If to the Manager:
The RMR Group LLC
Two Newton Place
255 Washington Street, Suite 300
Newton, Massachusetts 02458
Attn: Adam Portnoy; Lindsey Getz
22. Amendments.
This Agreement shall not be amended, changed, modified, terminated, or discharged, in whole or in part, except by an instrument in writing
signed by each of the parties hereto, or by their respective successors or assigns, or otherwise as provided herein. Notwithstanding anything
to the contrary herein, no amendment, change or modification to the terms of this Agreement shall, absent the consent of the board of
directors (or replacement governing body) of the New 2027 SPV (including the affirmative consent of the independent director thereon),
(i) make the New 2027 SPV Group liable for the Termination Fee or any other termination or similar fee hereunder, (ii) impose
obligations on the New 2027 SPV Group that are disproportionately adverse to the New 2027 SPV Group by comparison to the obligations of
the Company and its subsidiaries (other than the New 2027 SPV Group) under this Agreement or (iii) modify Section 17(c),
the second sentence of this Section 22 or the proviso in Section 25.
23. Assignment.
Neither party may assign this Agreement or its rights hereunder or delegate its duties hereunder without the written consent of the other
party, except that: (a) the Manager may assign this Agreement to any subsidiary of Parent so long as such subsidiary is then and
remains Controlled by Parent and assumes the Manager’s obligations hereunder in a written instrument of assignment a copy of which
is delivered to the Company promptly following such assignment; and (b) (i) the Company may assign this Agreement or its rights
hereunder to any Person that is then and remains Controlled by the Company and (ii) the Company may assign this Agreement or its
rights hereunder to any Person in connection with a merger or other consolidation involving the Company with or into that Person or in
connection with a sale of all or substantially all of the assets of the Company to such Person; provided that, in any such case addressed
in this clause (b), the assignee assumes all of the assignor’s obligations hereunder in a written instrument of assignment, a copy
of which is delivered to Manager promptly following such assignment; provided further that nothing in this clause (b) shall abrogate
any other right of the Manager under this Agreement (including, without limitation, any right to terminate this Agreement) arising from
any transaction relating to any such assignment. No assignment permitted hereunder shall release the assignor from any of its obligations
hereunder.
24. Successors
and Assigns. This Agreement shall be binding upon, and inure to the benefit of, any successors or permitted assigns of the parties
hereto as provided herein.
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25. No
Third Party Beneficiary. Except as otherwise provided in Section 16 and Section 27(i), no person or entity
other than the parties hereto and their successors and permitted assigns is intended to be a beneficiary of this Agreement; provided that
the New 2027 SPV is an intended third-party beneficiary of Section 17(c) and the second sentence of Section 22.
26. Governing
Law. The provisions of this Agreement and any Dispute (as defined below), whether in contract, tort or otherwise, shall be governed
by and construed in accordance with the laws of the State of Maryland without regard to principles of conflicts of law.
27. Arbitration.
(a) Any
disputes, claims or controversies arising out of or relating to this Agreement, the provision of services by the Manager pursuant to this
Agreement or the transactions contemplated hereby, including any disputes, claims or controversies brought by or on behalf of the Company
or the Manager or any holder of equity interests (which, for purposes of this Section 27, shall mean any holder of record
or any beneficial owner of equity interests or any former holder of record or beneficial owner of equity interests) of the Company or
the Manager, either on his, her or its own behalf, on behalf of the Company or the Manager or on behalf of any series or class of equity
interests of the Company or Manager or holders of any equity interests of the Company or the Manager against the Company or the Manager
or any of their respective trustees, directors, members, officers, managers (including the Manager or its successor), agents or employees,
including any disputes, claims or controversies relating to the meaning, interpretation, effect, validity, performance or enforcement
of this Agreement, including this arbitration agreement or the governing documents of the Company or the Manager (all of which are referred
to as “Disputes”), or relating in any way to such a Dispute or Disputes shall, on the demand of any party to such Dispute
or Disputes, be resolved through binding and final arbitration in accordance with the Commercial Arbitration Rules (the “Rules”)
of the American Arbitration Association (“AAA”) then in effect, except as those Rules may be modified in this
Section 27. For the avoidance of doubt, and not as a limitation, Disputes are intended to include derivative actions against
the trustees, directors, officers or managers of the Company or the Manager and class actions by a holder of equity interests against
those individuals or entities and the Company or the Manager. For the avoidance of doubt, a Dispute shall include a Dispute made derivatively
on behalf of one party against another party. For purposes of this Section 27, the term “equity interest” shall
mean, (i) in respect of the Company, shares of beneficial interest or, if applicable, other common equity interests of the Company
and (ii) in respect of the Manager, “membership interest” in the Manager as defined in the Maryland Limited Liability
Companies Act.
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(b) There
shall be three (3) arbitrators. If there are only two (2) parties to the Dispute, each party shall select one (1) arbitrator
within fifteen (15) days after receipt by respondent of a copy of the demand for arbitration. The arbitrators may be affiliated or interested
persons of the parties. If there are more than two (2) parties to the Dispute, all claimants, on the one hand, and all respondents,
on the other hand, shall each select, by the vote of a majority of the claimants or the respondents, as the case may be, one (1) arbitrator
within fifteen (15) days after receipt of the demand for arbitration. The arbitrators may be affiliated or interested persons of the claimants
or the respondents, as the case may be. If either a claimant (or all claimants) or a respondent (or all respondents) fail(s) to timely
select an arbitrator then the party (or parties) who has selected an arbitrator may request AAA to provide a list of three (3) proposed
arbitrators in accordance with the Rules (each of whom shall be neutral, impartial and unaffiliated with any party) and the party
(or parties) that failed to timely appoint an arbitrator shall have ten (10) days from the date AAA provides the list to select one
(1) of the three (3) arbitrators proposed by AAA. If the party (or parties) fail(s) to select the second (2nd) arbitrator
by that time, the party (or parties) who have appointed the first (1st) arbitrator shall then have ten (10) days to select one (1) of
the three (3) arbitrators proposed by AAA to be the second (2nd) arbitrator; and, if he/they should fail to select the second (2nd)
arbitrator by such time, AAA shall select, within fifteen (15) days thereafter, one (1) of the three (3) arbitrators it
had proposed as the second (2nd) arbitrator. The two (2) arbitrators so appointed shall jointly appoint the third (3rd) and presiding
arbitrator (who shall be neutral, impartial and unaffiliated with any party) within fifteen (15) days of the appointment of the second
(2nd) arbitrator. If the third (3rd) arbitrator has not been appointed within the time limit specified herein, then AAA shall provide
a list of proposed arbitrators in accordance with the Rules, and the arbitrator shall be appointed by AAA in accordance with a listing,
striking and ranking procedure, with each party having a limited number of strikes, excluding strikes for cause.
(c) The
place of arbitration shall be Boston, Massachusetts unless otherwise agreed by the parties.
(d) There
shall be only limited documentary discovery of documents directly related to the issues in dispute, as may be ordered by the arbitrators.
For the avoidance of doubt, it is intended that there shall be no depositions and no other discovery other than limited documentary discovery
as described in the preceding sentence.
(e) In
rendering an award or decision (the “Award”), the arbitrators shall be required to follow the laws of the State of
Maryland. Any arbitration proceedings or award rendered hereunder and the validity, effect and interpretation of this arbitration agreement
shall be governed by the Federal Arbitration Act, 9 U.S.C. §1 et seq. The Award shall be in writing and shall state the findings
of fact and conclusions of law on which it is based. Any monetary award shall be made and payable in U.S. dollars free of any tax, deduction
or offset. Subject to Section 27(g), each party against which the Award assesses a monetary obligation shall pay that obligation
on or before the thirtieth (30th) day following the date of the Award or such other date as the Award may provide.
(f) Except
to the extent expressly provided by this Agreement or as otherwise agreed by the parties thereto, each party involved in a Dispute shall
bear its own costs and expenses (including attorneys’ fees), unless the arbitrators shall render an award that shifts any such costs
or expenses (including attorneys’ fees) or, in a derivative case or class action, awards any portion of the Company’s or the
Manager’s, as applicable, award to the claimant or the claimant’s attorneys. Each party (or, if there are more than two (2) parties
to the Dispute, all claimants, on the one hand, and all respondents, on the other hand, respectively) shall bear the costs and expenses
of its (or their) selected arbitrator and the parties (or, if there are more than two (2) parties to the Dispute, all claimants,
on the one hand, and all respondents, on the other hand) shall equally bear the costs and expenses of the third (3rd) appointed arbitrator.
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(g) Notwithstanding
any language to the contrary in this Agreement, the Award, including but not limited to, any interim Award, may be appealed pursuant to
the AAA’s Optional Appellate Arbitration Rules (“Appellate Rules”). The Award shall not be considered final
until after the time for filing the notice of appeal pursuant to the Appellate Rules has expired. Appeals must be initiated within
thirty (30) days of receipt of the Award by filing a notice of appeal with any AAA office. Following the appeal process, the decision
rendered by the appeal tribunal may be entered in any court having jurisdiction thereof. For the avoidance of doubt, and despite any contrary
provision of the Appellate Rules, Section 27(f) hereof shall apply to any appeal pursuant to this Section and the
appeal tribunal shall not render an award that would include shifting of any costs or expenses (including attorneys’ fees) of any
party.
(h) Following
the expiration of the time for filing the notice of appeal, or the conclusion of the appeal process set forth in Section 27(g),
the Award shall be final and binding upon the parties thereto and shall be the sole and exclusive remedy between those parties relating
to the Dispute, including any claims, counterclaims, issues or accounting presented to the arbitrators. Judgment upon the Award may be
entered in any court having jurisdiction. To the fullest extent permitted by law, no application or appeal to any court of competent jurisdiction
may be made in connection with any question of law arising in the course of arbitration or with respect to any award made except for actions
relating to enforcement of this agreement to arbitrate or any arbitral award issued hereunder and except for actions seeking interim or
other provisional relief in aid of arbitration proceedings in any court of competent jurisdiction.
(i) This
Section 27 is intended to benefit and be enforceable by the Company, the Manager and their respective holders of equity interests,
trustees, directors, officers, managers (including the Manager or its successor), agents or employees, and their respective successors
and assigns and shall be binding upon the Company, the Manager and their respective holders of equity interests, and be in addition to,
and not in substitution for, any other rights to indemnification or contribution that such individuals or entities may have by contract
or otherwise.
28. Consent
to Jurisdiction and Forum. The exclusive jurisdiction and venue in any action brought by any party hereto pursuant to this Agreement
shall lie in any federal or state court located in Baltimore, Maryland. By execution and delivery of this Agreement, each party hereto
irrevocably submits to the jurisdiction of such courts for itself and in respect of its property with respect to such action. The parties
irrevocably agree that venue would be proper in such court, and hereby waive any objection that such court is an improper or inconvenient
forum for the resolution of such action. The parties further agree and consent to the service of any process required by any such court
by delivery of a copy thereof in accordance with Section 21 and that any such delivery shall constitute valid and lawful service
of process against it, without necessity for service by any other means provided by statute or rule of court. EACH PARTY HERETO IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE PROVISION OF SERVICES
BY THE MANAGER PURSUANT TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. Notwithstanding anything herein to the contrary, if
a demand for arbitration of a Dispute is made pursuant to Section 27, this Section 28 shall not preempt resolution
of the Dispute pursuant to Section 27.
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29. Captions.
The captions included herein have been inserted for ease of reference only and shall not be construed to affect the meaning, construction
or effect of this Agreement.
30. Entire
Agreement. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and
supersedes any pre-existing agreements with respect to such subject matter. This Agreement constitutes an integral part of, and a condition
to, the transactions contemplated by the Restructuring Support Agreement.
31. Severability.
If any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable
in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired, unless the provisions held invalid, illegal or unenforceable shall substantially impair
the benefits of the remaining provisions hereof.
32. Survival.
The provisions of Section 2 (limited to the obligation of the Company to indemnify the Manager for matters provided thereunder)
and Sections 16 through and including 36 of this Agreement shall survive the termination hereof. Any termination of this
Agreement shall be without prejudice to the rights of the parties hereto accrued prior to the termination or upon termination.
33. Other
Agreements. (i) The Company, on behalf of itself and certain of its subsidiaries, and the Manager are also parties to a Third
Amended and Restated Property Management Agreement, dated as of the date hereof, as in effect from time to time (the “Property
Management Agreement”) and (ii) the New 2027 SPV Holdco, the New 2027 SPV, on behalf of itself and certain of its subsidiaries,
and the Manager are parties to a New 2027 SPV Property Management Agreement, dated as of the date hereof, as in effect from time to time
(the “New 2027 SPV Property Management Agreement”). The parties agree that this Agreement does not include or otherwise
address the rights and obligations of the parties under the Property Management Agreement or the New 2027 SPV Property Management Agreement
and that each of the Property Management Agreement and the New 2027 SPV Property Management Agreement provides for its own separate rights
and obligations of the parties thereto, including without limitation separate compensation payable by (x) the Company and the other
Owners (as defined in the Property Management Agreement) to the Manager thereunder for services to be provided by the Manager pursuant
to the Property Management Agreement and (y) the New 2027 SPV and the other Owners (as defined in the New 2027 SPV Property Management
Agreement) to the Manager thereunder for services to be provided by the Manager pursuant to the New 2027 SPV Property Management Agreement.
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34. Equal
Employment Opportunity Employer. The Manager is an equal employment opportunity employer and complies with all applicable state
and federal laws to provide a work environment free from discrimination and without regard to race, color, sex, sexual orientation, national
origin, ancestry, religion, creed, physical or mental disability, age, marital status, veteran’s status or any other basis protected
by applicable laws.
35. Defined
Terms. Any capitalized term used herein but not defined shall be given the meaning set forth in Exhibit A attached
hereto.
36. Counterparts.
This Agreement 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 counterpart of a signature page of this Agreement by facsimile transmission
or other electronic transmission (i.e., a “pdf” or “tif”), including by electronic signatures or electronic records,
each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, to the extent and as provided
for in any applicable law, shall be effective as delivery of a manually executed counterpart hereof.
[Signature Page To Follow]
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IN WITNESS WHEREOF,
the Parties have executed this Third Amended and Restated Business Management Agreement as of the date first above written.
OFFICE PROPERTIES INCOME TRUST
By:
/s/ Lindsey Getz
Name: Lindsey Getz
Title: Secretary
THE RMR GROUP LLC
By:
/s/ Matthew C. Brown
Name: Matthew C. Brown
Title: Executive Vice President, Chief Financial Officer and Treasurer
[Signature Page to the Third Amended and Restated Business Management
Agreement]
Exhibit A
Definitions
The following definitions shall be applied to the
terms used in the Agreement for all purposes, unless otherwise clearly indicated to the contrary. All capitalized terms used in this Exhibit A
but not defined in this Exhibit A shall have the respective meanings given to those terms in the Agreement. Unless otherwise
noted, all section references in this Exhibit A refer to sections in the Agreement.
(1) “Affiliate” shall mean,
with respect to any Person, any other Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled
by, or is under common Control with, the first Person.
(2) “Bankruptcy Code” shall
mean title 11 of the United States Code.
(3) “Bankruptcy Court” shall
mean the United States Bankruptcy Court for the Southern District of Texas, Houston Division.
(4) “Cause” shall mean: (i) the
Manager engages in any act that constitutes bad faith, fraud, willful misconduct or gross negligence in the performance of its obligations
under this Agreement; (ii) a default by the Manager in the performance or observance of any material term, condition or covenant
contained in this Agreement to be performed by the Manager, the consequence of which is a Material Adverse Effect; (iii) the Manager
or Parent is convicted of a felony; (iv) any executive officer or senior manager of the Manager or of Parent is convicted of a felony
or other crime, whether or not a felony, involving his or her duties as an employee of the Manager and who is not promptly discharged
and any actual loss suffered by the Company as a result of such felony or crime is not promptly reimbursed; (v) any involuntary proceeding
is commenced against the Manager or Parent seeking liquidation, reorganization or other relief with respect to the Manager or Parent or,
in either case, its debts under bankruptcy, insolvency or similar law and such proceeding is not dismissed in one hundred twenty (120)
days; or (vi) the Manager or Parent authorizes the commencement of a voluntary proceeding seeking liquidation, reorganization or
other relief with respect to the Manager or Parent or, in either case, its debts under bankruptcy, insolvency or similar law or the appointment
of a trustee, receiver, liquidator, custodian or similar official of the Manager or any substantial part of its property.
(5) “Chapter 11 Cases” shall
mean the cases pursuant to chapter 11 of the Bankruptcy Code of the Company and certain of its subsidiaries commenced in the Bankruptcy
Court and jointly administered under case number 25-90530 (CML).
(6) “Charitable Organization”
shall mean an organization that is described in section 501(c)(3) of the Code (or any corresponding provision of a future United
States Internal Revenue law) which is exempt from income taxation under section 501(a) thereof.
(7) “Company Change of Control”
shall mean the occurrence of any of the following events:
(i) any “person” or “group”
(as such terms are used in Section 13(d) of the Exchange Act) becoming the “beneficial owner” (as defined in Rule 13d-3
and Rule 13d-5 promulgated under the Exchange Act, except that any person shall be deemed to beneficially own securities such person
has a right to acquire whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of fifty
percent (50%) or more of the then-outstanding voting power of the voting securities of the Company;
(ii) the consummation of any direct or indirect sale,
transfer, conveyance or other disposition, in one or a series of related transactions, of all or substantially all of the assets of the
Company and its subsidiaries on a consolidated basis; provided that an event pursuant to this clause (ii) will not be considered
to have occurred if (A) the transferee expressly assumes the rights and obligations of the Company under this Agreement pursuant
to an agreement reasonably acceptable to Manager and (B) Persons owning at least a majority of each of the economic rights of the
equity interests of the Company and the voting power of the voting securities of the Company immediately prior to the relevant transaction
or series of related transactions own a majority of each of the economic rights of the equity interests of the transferee and the voting
power of the voting securities of the transferee immediately following the relevant transaction or series of related transactions and
Continuing Company Board Members constitute a majority of the board or other comparable managing body of the transferee immediately following
the relevant transaction or series of related transactions; provided further that, following an event satisfying the requirements set
forth in the immediately preceding proviso, each reference to the Company shall be deemed to be instead a reference to such transferee;
or
(iii) at any time, the Continuing Company Board Members
cease for any reason to constitute the majority of the members of the Board.
Notwithstanding the foregoing, a change in ownership or control of
the Company (or any successor), or a transfer of all or substantially all of the assets of the Company (or any successor) to an entity,
will not be considered a Company Change of Control (and, for certainty, also will be permitted and will not give rise to any right on
the part of Manager to terminate this Agreement) if (a) if not the Company, the successor or transferee, as applicable, expressly
assumes the rights and obligations of the Company under this Agreement pursuant to an agreement reasonably acceptable to Managing Agent
and (b) following such change or transfer, any combination of the following persons and/or entities will own, directly or indirectly,
a majority each of the economic rights of the equity interests of the Company (or its successor) or the transferee, as applicable, and
the voting rights of the voting securities of the Company (or its successor) or the transferee, as applicable: (i) any fund
or vehicle that is managed or advised by Helix Partners Management LP or any successor to all or substantially all of the business thereof,
or any entity directly or indirectly controlled or managed by any of the foregoing, (ii) any fund or vehicle that is managed or advised
by Redwood Capital Management, LLC or any successor to all or substantially all of the business thereof, or any entity directly or indirectly
controlled or managed by any of the foregoing, and (iii) Mr. Adam Portnoy, Manager or Parent, any successor to all or substantially
all of the business of such entity or any entity directly or indirectly controlled or managed by any of the foregoing. Following an event
satisfying the requirements set forth in the immediately preceding sentence, each reference in this Agreement to the Company shall be
deemed to be instead a reference to such transferee.
A-2
(8) “Common Equity” shall mean
the common equity interests of the Company.
(9) “Confirmation Order” shall
mean the Order Confirming Fourth Amended Joint Chapter 11 Plan of Reorganization of Office Properties Income Trust and Its Debtor Subsidiaries
[Docket No. 1241], entered by the Bankruptcy Court on April 22, 2026.
(10) “Continuing Company Board Members”
shall mean, as of any date of determination, any member of the Board who was (i) a member of the Board as of the date of this Agreement,
(ii) a member of the Board appointed promptly following the date of this Agreement in accordance with Section 5.13(a) of
the Plan of Reorganization or (iii) nominated for election or elected to the Board by, or whose election to the Board was made or
approved by, the affirmative vote of a majority of Continuing Company Board Members who were members of the Board at the time of such
nomination or election.
(11) “Continuing Parent Directors”
shall mean, as of any date of determination, any member of the board of directors of Parent who was (i) a member of the board of
directors of Parent as of the date of this Agreement or (ii) nominated for election or elected to the board of directors of Parent
by, or whose election to the board of directors of Parent was made or approved by, (x) the affirmative vote of a majority of Continuing
Parent Directors who were members of the board of directors of Parent at the time of such nomination or election or (y) so long as
Parent is Controlled by Adam D. Portnoy, Adam D. Portnoy.
(12) “Control” of an entity,
shall mean the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such entity,
whether through ownership of voting securities, by contract or otherwise and the participles “Controls” and “Controlled”
have parallel meanings.
(13) “Covered Termination” shall
mean a Company Termination for Convenience, a Manager Termination for Cause or a Modification Termination.
(14) “Equity Compensation” shall
mean the Initial Equity Compensation and the Subsequent Equity Compensation.
(15) “Good Reason” shall mean:
(i) a default by the Company in the performance or observance of any material term, condition or covenant contained in this Agreement
to be performed by the Company, the consequence of which was materially adverse to the Manager and which did not result from and was not
attributable to any action, or failure to act, of the Manager, and such default shall continue for a period of sixty (60) days (or ninety
(90) days if the Company takes steps to cure such default within thirty (30) days of written notice to the Company) after written notice
thereof by the Manager specifying such default and requesting that the same be remedied in such sixty (60) day period or (ii) the
occurrence of a Company Change of Control.
(16) “Law” means any law, statute,
ordinance, rule, regulation, directive, code or order enacted, issued, promulgated, enforced or entered by any governmental entity.
A-3
(17) “Manager Change of Control”
shall be deemed to have occurred upon any of the following events:
(i) any “person” or “group”
(as such terms are used in Sections 13(d) of the Exchange Act), other than a Permitted Manager Transferee or a Person to whom the
Manager would be permitted to assign this Agreement pursuant to Section 23 of this Agreement, becomes the “beneficial
owner” (as defined in Rule 13d-3 and Rule 13d-5 promulgated under the Exchange Act, except that any person shall be deemed
to beneficially own securities such person has a right to acquire whether such right is exercisable immediately or only after the passage
of time), directly or indirectly, of fifty percent (50%) or more of the then-outstanding voting power of the voting securities of the
Manager and/or Parent, as applicable;
(ii) the consummation of any direct or
indirect sale, lease, transfer, conveyance or other disposition, in one or a series of related transactions, of all or substantially all
of the assets of the Manager (including securities of the Manager’s subsidiaries) on a consolidated basis, except the transfer of
outstanding voting power of the voting securities of the Manager or Parent to a Permitted Manager Transferee or if the transaction constitutes
a permissible assignment under Section 23 of this Agreement; or
(iii) at any time, Adam D. Portnoy ceases
to Control the Manager.
provided, however, that if the Manager is no
longer a subsidiary of Parent as a result of a transaction not constituting a Manager Change of Control, then a Manager Change of Control
shall be deemed to have occurred upon any of the foregoing events that affect the Manager only (and no Manager Change of Control shall
be deemed to have occurred if such event affects Parent only and not the Manager).
(18) “Material Adverse Effect”
means any fact, circumstance, event, change, effect or occurrence that, individually or in the aggregate with all other facts, circumstances,
events, changes, effects and occurrences, has had a material adverse effect on the business, results of operations or financial condition
of the Company and its subsidiaries.
(19) “Parent” shall mean The
RMR Group Inc., a Maryland corporation.
(20) “Permitted Manager Transferee”
shall mean: (A) Parent or any of its Controlled subsidiaries; (B) any employee benefit plan of the Manager, Parent or any of
their respective Controlled subsidiaries; (C) Adam D. Portnoy; (D) any entity Controlled by any Person or Persons described
in clause (B) or (C) of this definition; (E) a Charitable Organization Controlled by any Person or Persons described in
clause (C) of this definition; (F) an entity owned, directly or indirectly, by shareholders (or equivalent) of the Manager or
Parent in substantially the same proportions as their ownership of the Manager or Parent, as applicable, immediately prior to the acquisition
of beneficial ownership; or (G) any Person approved by the Company in writing; provided, however, that any subsidiary
described in clause (A) or clause (B) or any Person described in clause (D) or clause (E) shall only be a Permitted
Manager Transferee if it is, and so long as it remains, Controlled, as provided in clause (A), clause (B), clause (D) or clause (E),
as applicable.
A-4
(21) “Person” shall mean an
individual or any corporation, partnership, limited liability company, trust, unincorporated organization, association, joint venture
or any other organization or entity, whether or not a legal entity.
(22) “Plan of Reorganization”
shall mean the Fourth Amended Joint Chapter 11 Plan of Reorganization of Office Properties Income Trust and Its Debtor Affiliates [Docket
No. 1223], filed in the Chapter 11 Cases on April 21, 2026 (as amended, supplemented or otherwise modified from time to time,
including, without limitation, by the Confirmation Order, together with all exhibits and schedules thereto), as confirmed by the Confirmation
Order and made effective on June 17, 2026.
(23) “Restructuring Support Agreement”
shall mean the Restructuring Support Agreement, dated as of October 30, 2025, by and among the Company, the Consenting September 2029
Senior Secured Noteholders (as defined therein) from time to time party thereto and the Manager.
(24) “Stock Exchange” shall
mean the national securities exchange (as defined under the Exchange Act), if any, on which the common equity of the Company is principally
traded.
A-5
Exhibit B
Form of Officer’s Certificate
EX-10.2 — EXHIBIT 10.2
EX-10.2
Filename: tm2618043d2_ex10-2.htm · Sequence: 7
Exhibit 10.2
THIRD
AMENDED AND RESTATED PROPERTY MANAGEMENT AGREEMENT
THIS THIRD AMENDED AND RESTATED PROPERTY MANAGEMENT
AGREEMENT (this “Agreement”) is made and entered into as of June 17, 2026, by and among The RMR Group LLC,
a Maryland limited liability company (“Managing Agent”), and Office Properties Income Trust, a Maryland real estate
investment trust (the “Company”), on behalf of itself and those of its subsidiaries as may from time to time own properties
subject to this Agreement (but specifically excluding the New 2027 SPV Group as defined in Exhibit A below) (each of the Company
and such subsidiaries, an “Owner” and, collectively, the “Owners”).
W I T N E S S E T H:
WHEREAS, Managing Agent and the Owners are
parties to a Second Amended and Restated Property Management Agreement, dated as of June 5, 2015 (as amended, supplemented or otherwise
modified from time to time prior to the date of this Agreement, the “Original Agreement”), pursuant to which the Owners
have engaged Managing Agent to manage the properties now owned or hereafter acquired by the Company and each of its subsidiaries; and
WHEREAS, Managing Agent and the Owners wish
to continue the Original Agreement in force and effect with respect to all such properties, but, for the avoidance of doubt specifically
excluding, however, (i) any properties owned by the New 2027 SPV Group and (ii) the properties set forth on Exhibit G
hereto, which are subject to standalone property management agreements (the properties described in clauses (i) and (ii), collectively,
the “Excluded Properties”; and such properties now or hereafter owned by the Company and each of its subsidiaries,
but excluding the Excluded Properties, individually or collectively, as context may require, the “Managed Premises”),
and the services to be performed and the fees to come due with respect to such services, but wish to amend and restate the Original Agreement
as hereinafter provided, effective with respect to services performed and fees due with respect to such services after the date of this
Agreement;
NOW, THEREFORE, in consideration of the
premises and the agreements herein contained, Owners and Managing Agent hereby agree that the Original Agreement is hereby amended and
restated to read in its entirety as follows:
1. Engagement.
Subject to the terms and conditions hereinafter set forth, the Owners hereby continue to engage Managing Agent to provide the property
management and administrative services with respect to the Managed Premises contemplated by this Agreement. Managing Agent hereby accepts
such continued engagement by the Owners as managing agent and agrees to devote such time, attention and effort as may be appropriate to
operate and manage each of the Managed Premises in a diligent, orderly, efficient and commercially reasonable manner, in each case consistent
with the standards of professional property managers managing similar institutional-quality office properties in the market in which the
relevant Managed Premises is located. Managing Agent may subcontract out some or all of its obligations hereunder to third parties; provided,
however, that, in any such event, Managing Agent shall be and remain primarily liable to the Owners for performance hereunder.
All the parties acknowledge and agree that any provisions in this Agreement calling for action, consent or otherwise from any Owner can
only be given or exercised by such Owner if the action, consent or other determination has been presented to and approved by the Board.
Notwithstanding anything to the contrary set forth
in this Agreement (and as a supplement to the requirements of Section 24), the services to be provided by Managing Agent hereunder
shall exclude all services (including, without limitation, any garage management or cafeteria management services) whose performance by
a manager to any Owner could give rise to an Owner’s receipt of “impermissible tenant service income” as defined in
Section 856(d)(7) of the Internal Revenue Code of 1986 (as amended or superseded hereafter, the “Code”) or
could in any other way jeopardize an Owner’s federal or state tax qualification as a real estate investment trust.
2. General
Parameters. Any or all services may be performed or goods may be purchased by Managing Agent under arrangements jointly with or
for other properties owned or managed by Managing Agent and the costs shall be reasonably apportioned. Managing Agent may employ personnel
who are assigned to work exclusively at the Managed Premises or partly at the Managed Premises and other buildings owned and/or managed
by Managing Agent. Wages, benefits and other related costs of centralized accounting personnel and employees employed by Managing Agent
and assigned to work exclusively or partly at the Managed Premises shall be fairly apportioned and reimbursed, pro rata, by the
Owners in addition to the Fee and the Construction Supervision Fee (each as defined in Section 6).
3. Duties.
Without limitation (but subject in all respects to the other limitations provided for in this Agreement, as applicable), Managing Agent
agrees to perform the following specific duties:
(a) To
seek tenants for each of the Managed Premises in accordance with market rents and to negotiate leases, including renewals thereof, and
to lease space to tenants, at rentals, and for periods of occupancy all on market terms; provided, however, that the consent of the relevant
Owner shall be required with respect to any lease that falls within the following parameter, in each case as the same may hereafter be
expanded or narrowed by action of the Board and written notice thereof to Managing Agent: (i) a lease or renewal or extension thereof,
that contemplates expenditures (whether consisting of tenant improvements, lease concessions or otherwise) by the Owners in excess of
$1,000,000 or (ii) a lease that involves leased premises in excess of 20,000 square feet. To employ appropriate means in order that
the availability of rental space is made known to potential tenants, including, but not limited to, the employment of realtors, brokers
and leasing agents. The brokerage and legal expenses of negotiating such leases and leasing such space at any Managed Premises shall be
paid by the Owners.
(b) To
collect all rents and other income from each of the Managed Premises and to give receipts therefor, both on behalf of the relevant Owner,
and deposit such funds in such banks and such accounts as are named, from time to time, by the relevant Owner, in agency accounts for
and under the name of the relevant Owner. Managing Agent shall be empowered to sign disbursement checks on these accounts. Managing Agent
may also use pooled bank accounts for the benefit of multiple Owners, provided that (i) doing so does not involve comingling the
funds of any Owner with funds of any other Person that is not an Owner, (ii) doing so does not violate the terms of any financing
or other contractual obligation of any Owner applicable thereto, and (iii) Managing Agent maintains separate records and accountings
of such funds of each Owner.
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(c) To
negotiate and make contracts for and to supervise any repairs and/or alterations to the Managed Premises, including tenant improvements
required under leases or otherwise in compliance with Section 7 hereof, in each case on reasonable commercial terms.
(d) For
the Owners’ account and at their expense, to hire, supervise and discharge employees as required for the efficient operation and
maintenance of the Managed Premises.
(e) To
obtain, at the Owners’ expense, appropriate insurance for each of the Managed Premises protecting the Owners and Managing Agent
while acting on behalf of the Owners against all normally insurable risks relating to such Managed Premises and complying with the requirements
of the Owners’ mortgagee, if any, and to cause the same to be provided and maintained by all tenants with respect to each of the
Managed Premises to the extent required by the terms of such tenants’ leases. Notwithstanding the foregoing, the Owners may determine
to purchase insurance directly for their own account.
(f) To
promptly notify the applicable insurance carriers, as required by the applicable policies, of any casualty or injury to person or property
at the Managed Premises covered thereby, and complete customary reports in connection therewith on the relevant Owner’s behalf.
(g) To
procure all supplies, other materials and services as may be necessary for the proper operation of the Managed Premises, at the Owners’
expense.
(h) To
pay promptly from rental receipts, other income derived from the Managed Premises, or other monies made available by Owners for such purpose,
all costs incurred in the operation of the Managed Premises which are expenses of Owners hereunder, including wages or other payments
for services rendered, invoices for supplies or other items furnished in relation to the Managed Premises, and pay over forthwith the
balance of such rental receipts, income and monies to Owners or as Owners shall from time to time direct. In the event that the sum of
the expenses to operate and the compensation due Managing Agent exceeds gross receipts in any month and no excess funds from prior months
are available for payment of such excess, Owners shall pay promptly the amount of the deficiency thereof to Managing Agent upon receipt
of statements therefor.
(i) To
keep Owners apprised of any material developments in the operation of the Managed Premises on a reasonably current basis.
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(j) To
establish reasonable rules and regulations for tenants of the Managed Premises.
(k) On
behalf of and in the name of the relevant Owner, to institute or defend, as the case may be, any and all legal actions or proceedings
relating to the operation of the Managed Premises (subject to the limitation at the end of this Section 3).
(l) To
maintain the books and records of each Owner reflecting the management and operation of each of the Managed Premises, making available
for reasonable inspection and examination by the Owners or their retained counsel, accountants and other representatives all books, records
and other financial data relating to the Managed Premises at the place where the same are maintained.
(m) To
prepare and deliver to tenants of each of the Managed Premises such statements of expenses or other information as shall be required on
the landlord’s part to be delivered to such tenants for computation of rent, additional rent, pass-through items, year-end reconciliations
or any other reason.
(n) To
aid, assist and cooperate with Owners in matters relating to taxes and assessments and insurance loss adjustments, notify Owners of any
tax increase or special assessments relating to the Managed Premises and to enter into contracts for tax abatements services.
(o) To
provide such emergency services as may be required for the efficient management and operation of the Managed Premises on a twenty-four
(24)-hour basis.
(p) To
enter into contracts on commercially reasonable terms for utilities (including, without limitation, water, fuel, electricity and telephone)
and for building services (including, without limitation, cleaning of windows, common areas and tenant space, ash, rubbish and garbage
hauling, snow plowing, landscaping, carpet cleaning and vermin extermination), and for other services as are appropriate to the Managed
Premises (subject to the limitations at the end of this Section 3).
(q) To
seek market terms for all items purchased or services contracted by it under this Agreement.
(r) To,
from time to time, or at any time requested by the Board, make reports of its performance of the foregoing services to the Company.
(s) To
provide regular reports to the Company in each case as set out on Exhibit B hereto and such additional updates and other information
as may be reasonably requested by the Company.
(t) To
prepare and submit an annual business plan and an annual operating budget for the Managed Premises; it being agreed, however, that all
such activities relating to the preparation, submission and administration thereof shall be carried out in accordance with Section 7
below.
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Notwithstanding anything to the contrary set forth herein, absent consent
of the Company, Managing Agent shall not take any action set forth on Exhibit C attached hereto, as the same may be modified
from time to time by action of the Company in accordance with the terms of this paragraph. Section 3 of the New 2027 SPV Property
Management Agreement (as such term is defined below) provides that the limitations on Exhibit C will be construed as also
applying as limitations with respect to management of Excluded Premises (with consent with respect to actions set forth thereon relating
to the Excluded Premises to be provided by the New 2027 SPV (as opposed to the Company)). If the Company intends to exercise its right
to modify Exhibit C, it will do so by written notice to Managing Agent (the “Modification Notice”) and
the modification shall become effective as promptly as reasonably practicable for Managing Agent following Managing Agent’s receipt
of the Modification Notice; provided that, if and to the extent any such modification to Exhibit C, individually or
in the aggregate with others, would impose additional limitations on the scope of Managing Agent’s authority or increase in any
material respect Managing Agent’s scope or volume of work or change in any material respect the nature or amount of services to
be provided by Managing Agent hereunder (or, if the changes applies to any Excluded Premises, the services to be provided by Managing
Agent under the New 2027 SPV Property Management Agreement), and, in any such case, the change also would increase in any material respect
the amount of costs or expenses Managing Agent expects to incur in performing its obligations hereunder (or, if applicable, under the
New 2027 SPV Property Management Agreement), as determined by Managing Agent acting reasonably, Managing Agent shall promptly (and in
any case, within ten (10) business days of Managing Agent’s receipt of the Modification Notice), notify the Company thereof
and of the anticipated increased cost of the change (any such notice, a “Manager Change Notice”). If Managing Agent
delivers such Manager Change Notice to the Company within the time provided above, the Company shall enter into good faith negotiations
with Managing Agent to determine an appropriate modification to Managing Agent’s compensation and expense reimbursement hereunder
to address that increase and, in that case, the proposed modification underlying such Manager Change Notice, to the extent it has been
identified by Managing Agent as increasing in any material respect the amount of costs or expenses Managing Agent expects to incur in
compliance therewith, shall be deferred until the date on which the Company and Managing Agent have agreed on a modification to Managing
Agent’s compensation and expense reimbursement hereunder in respect thereof and such modification shall have become effective (and,
for the avoidance of doubt, shall be deemed not to have gone into effect at any time prior to such date). If Managing Agent and the Company
are not able to agree on the necessary modifications to Managing Agent’s compensation and expense reimbursement and the Company
has not withdrawn the modification to Exhibit C that was giving rise to the disputed compensation and expense reimbursement
shortfall by notice delivered to Managing Agent, in each case prior to the date that is thirty (30) days following the receipt by the
Company of the relevant Manager Change Notice, this Agreement may be terminated by either Managing Agent or the Company by written notice
to the other party (a “Modification Termination”), and, if such termination notice is given by the Company it will
take effect on the date specified in the notice and if the notice is given by Managing Agent it will take effect on the sixtieth (60th)
day following the date the Company receives the termination notice from Managing Agent (or, in either case, such other date as may be
mutually agreed between the Company and Managing Agent). If a termination pursuant to the preceding sentence becomes effective prior to
the second (2nd) anniversary of the date of this Agreement, the Termination Fee shall be payable to Managing Agent in connection
with that termination.
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4. Authority.
The Owners give to Managing Agent the authority and powers to perform the foregoing duties on behalf of the Owners and authorize Managing
Agent to incur such reasonable expenses, as contemplated in Sections 2, 3 and 5 on behalf of the Owners as are necessary
in the performance of those duties.
5. Special
Authority of Managing Agent. In addition to, and not in limitation of, the duties and authority of Managing Agent contained herein,
Managing Agent shall perform the following duties:
(a) Terminate
tenancies and sign and serve in the name of the Owners such notices therefor as may be required for the proper management of the Managed
Premises.
(b) At
the Owners’ expense, institute and prosecute actions to evict tenants and recover possession of rental space, and recover rents
and other sums due; and when expedient, settle, compromise and release such actions or suits or reinstate such tenancies.
6. Compensation.
(a) In
consideration of the services to be rendered by Managing Agent hereunder, the Owners agree to pay and Managing Agent agrees to accept
as its compensation (i) a management fee (the “Fee”) equal to three percent (3%) of the gross collected rents
actually received by the Owners from the Managed Premises, such gross rents to include all fixed rents, percentage rents, additional rents,
operating expense and tax escalations, and any other charges paid to the Owners in connection with occupancy of the Managed Premises,
but excluding any amounts collected from tenants to reimburse the Owners for the cost of capital improvements or for expenses incurred
in curing any tenant default or in enforcing any remedy against any tenant; and (ii) a construction supervision fee (the “Construction
Supervision Fee”) in connection with all interior and exterior construction renovation or repair activities at the Managed Premises,
including, without limitation, all tenant and capital improvements in, on or about the Managed Premises, undertaken during the term of
this Agreement, other than ordinary maintenance and repair, equal to five percent (5%) of the cost of such construction which shall include
the costs of all related professional services and the cost of general conditions.
(b) Unless
otherwise agreed, the Fee shall be due and payable monthly, in arrears based on a reasonable annual estimate or budget with an annual
reconciliation within thirty (30) days after the end of each calendar year. The Construction Supervision Fee shall be due and payable
periodically, consistent with past practice and as otherwise agreed by Managing Agent and the Owners, based on actual costs incurred to
date.
(c) Notwithstanding
anything herein to the contrary, the Owners shall reimburse Managing Agent for reasonable travel expenses incurred when traveling to and
from the Managed Premises while performing its duties in accordance with this Agreement; provided, however, that reasonable
travel expenses shall not include expenses incurred for travel to and from the Managed Premises by personnel assigned to work exclusively
at the Managed Premises.
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(d) Managing
Agent shall be entitled to no other additional compensation, whether in the form of commission, bonus or the like for its services under
this Agreement. Except as otherwise specifically provided herein with respect to payment by the Owners of legal fees, accounting fees,
salaries, wages, fees and charges of parties hired by Managing Agent on behalf of the Owners to perform operating and maintenance functions
in the Managed Premises, and the like, if Managing Agent hires third parties to perform services required to be performed hereunder by
Managing Agent without additional charge to the Owners, Managing Agent shall (except to the extent the same are reasonably attributable
to an emergency at the Managed Premises) be responsible for the charges of such third parties.
7. Budget
and Business Plan. In connection with its obligations under Section 3(t), Managing Agent shall comply with the following
requirements:
(a) Not
later than November 1st of each year, Managing Agent shall prepare and submit to the Company (i) a proposed operating budget
for the promotion, operation, repair and maintenance of the Managed Premises and, to the extent constituting Managed Premises (as defined
in the New 2027 SPV Property Management Agreement) pursuant to the New 2027 SPV Property Management Agreement, the Excluded Properties
(collectively, the “Company Properties”) and (ii) a proposed business plan for the leasing, marketing and operation
of the Company Properties, in each case, for the succeeding calendar year. The Company will consider the proposed budget and proposed
business plan and will consult with Managing Agent in the period prior to the commencement of the next succeeding calendar year and either
approve or reject, in the Company’s reasonable discretion, such proposed budget (such proposed budget, if and to the extent approved
by the Company in writing, an “Approved Budget” for the period to which it relates) and approved business plan (such
proposed business plan, if and to the extent approved by the Company in writing, an “Approved Business Plan” for the
period to which it relates) for the Company Properties for the next succeeding calendar year.
(b) If
by January 1 of any fiscal year the Company, in consultation with the Managing Agent, has not approved an Approved Budget for such
year, then until such time as there is an Approved Budget, Managing Agent shall operate the Company Properties within the constraints
of the prior year’s Approved Budget (including allowances for Committed Expenditures and Emergency Expenditures, if any, as provided
in subparagraph (d) below), but, for the avoidance of doubt, without any discretionary items from the prior year that were specific
to that year and are no longer relevant and with discretionary items that will be relevant in the new year included in such deemed budget
in an amount equal to the lesser of (i) the amount that was proposed by Managing Agent in its proposed budget for the new year and
(ii) with respect to discretionary items included in the prior year’s Approved Budget, one hundred five percent (105%) of the
amount included in the prior year’s Approved Budget.
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(c) Subject
to Permitted Variances (as defined below) and Section 7(d) below, Managing Agent shall obtain the Company’s prior
written approval for expenses payable (or reimbursable) by the Owners related to the Managed Premises that are within Managing Agent’s
control and exceed the Approved Budget. Managing Agent shall not incur or pay any expenses that will result in expenditures, in the aggregate,
payable (or reimbursable) by the Owners related to the Managed Premises that are within Managing Agent’s control and more than five
percent (5%) in excess of the total amount of all such expenditures permitted by the Approved Budget (amounts or expenditures that do
not exceed such applicable limits, “Permitted Variances”).
(d) Notwithstanding
the foregoing budget requirements, Managing Agent may, without the applicable Owner’s approval, make (i) such expenditures
as are owed by an Owner or Managing Agent on a non-discretionary basis (it being understood that an expenditure will be deemed to be owed
on a non-discretionary basis if Managing Agent cannot cancel without any incurring any penalty of any kind) as a result of existing contractual
or legal obligations or otherwise due to circumstances not within the control of Managing Agent (in either case, a “Committed
Expenditure”), including, without limitation and to the extent so owed on a non-discretionary basis or arising due to circumstances
not within the control of Managing Agent, (A) utility charges (including sewer charges), (B) insurance premiums, (C) costs
to comply with any Law with which Managing Agent or any Managed Premises is obligated to comply, (D) costs of repairs to any Managed
Premises required by casualty damage or other causes beyond Managing Agent’s control for which Managing Agent is not reimbursed
by insurance or third parties (provided that the costs thereof, in aggregate for the impacted Managed Premises, are not reasonably expected
to exceed $100,000, it being agreed that if the repairs required in connection with a casualty or other cause beyond Managing Agent’s
control would reasonably be expected to exceed this cap such costs will not be considered “Committed Expenditures” for purposes
of this provision and Managing Agent will be required to obtain Company approval before incurring or disbursing any such costs to the
extent required by subparagraph (c) above, except to the extent constituting an Emergency Expenditure), (E) costs of required
treatment of snow and ice and (F) taxes, levies and other amounts required to be paid under applicable law, and (ii) if applicable,
any expenditure that is reasonably necessary to respond to, avoid or mitigate the results of any material damage to property or risk of
harm to the health, safety or welfare of persons at or in the vicinity of any Managed Premises (an “Emergency Expenditure”);
provided that any such Emergency Expenditure shall be incurred only in concert with prompt email and telephonic notification by Managing
Agent to the applicable Owner (and in any event no later than the end of the next business day following the making of such Emergency
Expenditure), and Managing Agent may only incur such expenses as are reasonably necessary to protect the applicable Managed Premises or
persons at risk or avoid immediate criminal or civil liability. Managing Agent shall provide to the applicable Owner invoices reflecting
the cost of any such Emergency Expenditure.
(e) If
by January 1 of any fiscal year the Company, in consultation with the Managing Agent, has not finalized an Approved Business Plan
for the Company Properties for such year, then until such time as there is an Approved Business Plan, Managing Agent shall use commercially
reasonable efforts to operate the Managed Premises pursuant to the prior year’s Approved Business Plan and, with respect to expenditures,
the Approved Budget (subject to subparagraphs (c) and (d) above) or, if no budget has been approved for such year, the provisions
of subparagraphs (b), (c) and (d) above.
8
(f) Attached
hereto as Exhibit D is the current annual budget for 2026 for the Company Properties and attached hereto as Exhibit E
is the current business plan for 2026 for the Company Properties, and each Owner hereby confirms that each shall constitute the current
Approved Budget and Approved Business Plan for the Property to which it relates for the remainder of the 2026 calendar year, and Managing
Agent shall operate the Managed Premises within such budget, subject to Permitted Variances and subparagraph (d) above, and shall
use commercially reasonable efforts to operate pursuant to such business plan, until a new Approved Business Plan or a new Approved Budget,
as applicable, is adopted or designated by the Company in accordance with this Section 7.
8. Term
of Agreement.
(a) The
initial term of this Agreement shall continue in force and effect until the date that is five (5) years after the date hereof (the
“Initial Term”); thereafter, the term of this Agreement shall be deemed automatically renewed for successive one year
terms unless and until this Agreement has been terminated as provided herein.
(b) Notwithstanding
any other provision of this Agreement to the contrary, this Agreement, or any renewal thereof, may be terminated prior to the expiration
of the term:
(i) by
the Company, (A) upon sixty (60) days’ prior written notice to Managing Agent (such termination, a “Company Termination
for Convenience”), (B) for Cause, immediately upon written notice to Managing Agent (such termination, a “Company
Termination for Cause”) or (C) by written notice at any time during the period commencing immediately following the date
of a Managing Agent Change of Control and ending at midnight on the sixtieth (60th) day following the date on which the Managing
Agent has delivered written notice to the Board that a Managing Agent Change of Control has occurred (such termination, a “Company
CoC Termination”);
(ii) by
Managing Agent, (A) upon one hundred eighty (180) days’ prior written notice to the Company (such termination, a “Managing
Agent Termination for Convenience”) or (B) for Good Reason, upon sixty (60) days’ prior written notice to the Company
(or ninety (90) days if the Company takes steps to cure any relevant default within thirty (30) days of written notice to the Company)
(such termination, a “Managing Agent Termination for Cause”);
(iii) by
either the Company or Managing Agent by written notice to the other party given not less than sixty (60) days’ prior to the expiration
of the then-current term such that the term shall not be automatically renewed for an additional year (it being agreed that such termination
shall be without cost or fees of any kind; provided that such termination shall not impact any fees or reimbursable expenses accrued or
accruing prior to the end of the then-current term); or
9
(v) as
a result of a Modification Termination, subject to the notice provision included in Section 3 of this Agreement.
(c) Any
notice of termination shall include the reason for such termination.
(d) If
the Business Management Agreement (hereafter defined) is terminated in accordance with its terms, this Agreement shall terminate automatically
concurrently therewith.
(e) In
the event of a Covered Termination that will be effective prior to the date that is two (2) years after the date hereof, the Company
shall pay to Managing Agent promptly following the date of such Covered Termination the Termination Fee (as defined in the Business Management
Agreement). For the avoidance of doubt, no more than one Termination Fee shall be payable under this Agreement and the Business Management
Agreement.
(f) The
Termination Fee shall not be payable in the event of (i) a Company Termination for Cause, (ii) a Company CoC Termination, or
(iii) a Managing Agent Termination for Convenience. The Termination Fee shall not be payable if this Agreement is terminated for
any reason with an effective date after the date that is two (2) years after the date hereof.
(g) The
provisions of this Section 8 shall not apply as a limitation on the amount which may be paid by agreement of the Company and
Managing Agent in connection with a transaction pursuant to which any assets or going business values of Managing Agent are acquired by
the Company in association with termination of this Agreement and the Termination Fee is in addition to any amounts otherwise payable
to Managing Agent under this Agreement as compensation for services and for expenses of or reimbursement due to Managing Agent through
the date of termination. Also, payment of the Termination Fee shall not affect other rights and obligations created under Sections
8, 9 and 11 of this Agreement or otherwise between the Company and Managing Agent.
(h) For
the avoidance of doubt, this Agreement shall not require the Managing Agent to provide any services to any Person (or with respect to
the assets of any Person) other than the Company and its subsidiaries. Accordingly, following (i) any transaction as a result of
which any Owner ceases to be the Company or a subsidiary of the Company or (ii) any sale, transfer or other disposition of any assets
of any Owner to any Person other than the Company or any of its subsidiaries (in each case, including in connection with any foreclosure
by any lender or other creditor upon the equity interests of any Owner or any other assets of any Owner), the Managing Agent shall not
be required hereunder to provide any services to such Owner or with respect to such assets and this Agreement shall automatically terminate
with respect thereto.
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9. Termination.
Upon termination of this Agreement with respect to any of the Managed Premises for any reason whatsoever, Managing Agent shall as soon
as practicable turn over to Owners all books, papers, funds, records, keys and other items relating to the management and operation of
such Managed Premises (it being agreed that Managing Agent shall be permitted to retain for its records copies of such records and documents
it deems appropriate, subject to the condition that, if and to the extent Managing Agent elects to retain any such documents containing
confidential, proprietary or other non-public information of the Company or any of its subsidiaries, Managing Agent will, and will cause
its affiliates and its and their representatives to, preserve that information as strictly confidential and will not share it with any
third parties (except as required by applicable law or compulsory legal process) or use any such information for any purpose other than
the winding down of its engagement as manager hereunder or as otherwise required by law or compulsory legal process (if applicable)),
including, without limitation, all leases in the possession of Managing Agent and shall render to Owners a final accounting with respect
thereto through the date of termination, which shall include a statement showing all sums collected by Managing Agent for the relevant
Owner with respect to such Managed Premises and a statement of all sums held by Managing Agent for such Owner with respect to such Managed
Premises for the period commencing with the date following the date of its last such accounting to such Owner. The Owners shall be obligated
to pay all compensation for services rendered by Managing Agent hereunder prior and up to the effective time of such termination, including,
without limitation, any Fees and Construction Supervision Fees, and shall pay and reimburse to Managing Agent all expenses and costs incurred
by Managing Agent prior and up to the effective time of such termination which are otherwise payable or reimbursable to Managing Agent
pursuant to the terms of this Agreement (collectively, “Accrued Fees”). The amount of such fees paid as compensation
pursuant to the foregoing sentence shall be subject to adjustment in accordance with the annual reconciliation contemplated by Section 6(b) and
consistent with past practices in performing such reconciliation.
The Accrued Fees and, to the extent applicable,
any Termination Fee due upon termination shall be due and payable on the date of termination. A copy of all computations of the Accrued
Fees and, to the extent applicable, the Termination Fee, shall be delivered by Managing Agent to the Company by the date of termination.
In addition to other actions on termination of
this Agreement, for up to one hundred twenty (120) days following the date of notice of a termination of this Agreement, Managing Agent
shall cooperate with the Company and the other Owners and use commercially reasonable efforts to facilitate the orderly transfer of management
of the Managed Premises. In connection therewith Managing Agent shall assign to one or more Owners, or to their designee(s), as directed
by the Company, and the Company, such other Owner(s) or their designee(s) shall assume, all contracts entered into by Managing
Agent pursuant to this Agreement, but excluding all insurance contracts, and multi-property contracts not limited in scope to the Managed
Premises and all contracts with affiliates of Managing Agent. Managing Agent shall also transfer to the Company all proprietary information
with respect to the Company and its subsidiaries and/or the other Owners. Additionally, the Company or its designee shall have the right
to offer employment to any employee of the Managing Agent whom the Managing Agent proposes to terminate in connection with a termination
of this Agreement and the Managing Agent shall cooperate with the Company or its designee in connection therewith.
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10. Assignment
of Rights and Obligations.
(a) Without
the Company’s prior written consent, Managing Agent shall not sell, transfer, assign or otherwise dispose of or mortgage, hypothecate
or otherwise encumber or permit or suffer any encumbrance of all or any part of its rights and obligations hereunder, and any transfer,
encumbrance or other disposition of an interest herein made or attempted in violation of this paragraph shall be void and ineffective,
and shall not be binding upon Owners. Notwithstanding the foregoing, (i) Managing Agent may assign its rights and delegate its obligations
under this Agreement to any subsidiary of Parent so long as such subsidiary is then and remains Controlled by Parent and assumes Managing
Agent’s obligations hereunder in a written instrument of assignment a copy of which is delivered to the Company promptly following
such assignment; and (ii) (A) any Owner may assign this Agreement or its rights hereunder to the Company or any Person that
is then and remains Controlled by the Company or any permitted assignee thereof, and (B) the Company may assign this Agreement or
its rights hereunder to any Person in connection with a merger or other consolidation involving the Company with or into that Person or
in connection with a sale of all or substantially all of the assets of the Company to such Person; provided that, in any such case addressed
in this clause (ii), the assignee assumes all of the assignor’s obligations hereunder in a written instrument of assignment, a copy
of which is delivered to Managing Agent promptly following such assignment; provided further that nothing in this clause (ii) shall
abrogate any other right of Managing Agent under this Agreement (including, without limitation, any right to terminate this Agreement)
arising from any transaction relating to any such assignment.
(b) Except
as set forth in Section 10(a), Owners, without Managing Agent’s consent, may not assign their respective rights or delegate
their respective obligations hereunder.
(c) No
assignment permitted hereunder shall release the assignor from any of its obligations hereunder.
11. Indemnification
and Insurance.
(a) Managing
Agent assumes no responsibility other than to render the services described herein in good faith and shall not be responsible for any
action of any Owner in following or declining to follow any advice or recommendation of Managing Agent. Managing Agent, its members, officers,
employees and affiliates will not be liable to any Owner, their respective shareholders, or others, except by reason of acts constituting
bad faith, fraud, willful misconduct or gross negligence in the performance of its obligations hereunder or a material breach of this
Agreement. The Owners agree to defend, indemnify and hold harmless Managing Agent from and against all costs, claims, expenses and liabilities
(including reasonable attorneys’ fees) arising out of Managing Agent’s performance of its duties in accordance with this Agreement
including, without limitation, injury or damage to persons or property occurring in, on or about the Managed Premises and violations or
alleged violations of any law, ordinance, regulation or order of any governmental authority regarding the Managed Premises except any
injury, damage or violation resulting from Managing Agent’s fraud, gross negligence or willful misconduct in the performance of
its duties hereunder or a material breach by Managing Agent of this Agreement.
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(b) Managing
Agent agrees to defend, indemnify and hold harmless each Owner from and against all costs, claims, expenses, liabilities (including the
reasonable fees and expenses of counsel, accountants and other professionals or experts) in respect of or arising out of bad faith, fraud,
willful misconduct or gross negligence or a material breach of this Agreement by Managing Agent or any of its affiliates.
(c) The
Owners and Managing Agent shall maintain such commercially reasonable insurance as shall from time to time be mutually agreed by the Owners
and Managing Agent.
12. Notices.
Any notice, report or other communication required or permitted to be given hereunder shall be in writing and shall be deemed to have
been duly given (a) when delivered in person, (b) on the next business day if transmitted by a nationally recognized overnight
courier or (c) on the third (3rd) business day following mailing by first class mail, postage prepaid, in each case as follows (or
at such other United States address for a party as shall be specified by like notice):
If to the Company or any of the other Owners:
Office Properties Income Trust
Two Newton Place
255 Washington Street, Suite 300
Newton, MA 02458
Attention: Yael Duffy and Brian Donley
E-mail: YDuffy@rmrgroup.com and BDonley@rmrgroup.com
If to Managing Agent:
The RMR Group LLC
Two Newton Place
255 Washington Street, Suite 300
Newton, Massachusetts 02458
Attn: Adam Portnoy; Lindsey Getz
13. Limitation
of Liability. The Declarations of Trust establishing certain Owners, a copy of each of which, together with all amendments thereto
(the “Declarations”), is duly filed with the Department of Assessments and Taxation of the State of Maryland, provide
that the names of each such Owner refers to the trustees under the applicable Declaration collectively as trustees, but not individually
or personally. No trustee, officer, shareholder, employee or agent of such Owners shall be held to any personal liability, jointly or
severally, for any obligation of, or claim against, such Owners. All persons and entities dealing with such Owners, in any way, shall
look only to the respective assets of such Owners for the payment of any sum or the performance of any obligation of such Owners. In any
event, all liability of such Owners hereunder is limited to the interest of such Owners in the Managed Premises and, in the case of Managing
Agent, to its interest hereunder.
14. Acquisitions
and Dispositions of Managed Premises. Unless Owners and Managing Agent otherwise agree in writing, all Managed Premises from time
to time acquired by Owners or their subsidiaries (other than the 2027 SPV Group) shall automatically become subject to this Agreement
without amendment hereof. Similarly, this Agreement shall automatically terminate with respect to all properties disposed of by Owners,
effective upon such disposition.
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15. Estoppels;
Subordination; Financing.
(a) Managing
Agent agrees that, upon any request by the Company in connection with any financing or refinancing transaction, Managing Agent will issue
to the Company and each Owner designated in the Company’s request, and any lender in such financing or refinancing transaction,
designated by the Company in its request, to be delivered by Managing Agent not later than ten (10) business days following receipt
of such request, an estoppel certificate addressing such matters as may reasonably be requested by the Company’s financing sources.
(b) This
Agreement and the rights of Managing Agent hereunder are and shall be subject and subordinate to the lien of any mortgage, deed of trust
or other security instrument now or hereafter placed upon any of the Managed Premises, and to all renewals, modifications, consolidations,
replacements and extensions thereof. Managing Agent agrees that, upon request of any Owner, Managing Agent will execute, acknowledge and
deliver, to and for the benefit of the relevant lender, an instrument confirming such subordination in the form being required by the
relevant lender, provided such form is customary and reasonable under the circumstances.
(c) If
requested by the Company in connection with the financing of any of the Managed Premises, Managing Agent will enter into a standalone
property management agreement in the form attached hereto as Exhibit F-1, in substitution for this Agreement, and concurrently
therewith the Company and Managing Agent will also enter a side letter in the form attached hereto as Exhibit F-2 with respect
to that Managed Premises, it being agreed that upon effectiveness of such a stand-alone agreement, except as otherwise set forth in such
side letter, the Managed Premises covered thereby will cease to be considered “Managed Premises” under this Agreement and
the Owner thereof automatically will be deemed released from any further obligations under this Agreement and, for certainty, thereafter
will be excluded from the definition of “Owner” hereunder.
16. Modification
of Agreement. Except as otherwise specifically provided herein, this Agreement may not be modified, altered or amended in any
manner except by an amendment in writing, duly executed by Managing Agent and the Company, for itself and any other Owner upon which such
modification, alteration or amendment is to be binding.
17. Independent
Contractor. This Agreement is not one of general agency by Managing Agent for Owners, but Managing Agent is being engaged as an
independent contractor. Nothing in this Agreement is intended to create a joint venture, partnership, tenancy-in-common or other similar
relationship between Owners and Managing Agent for any purposes whatsoever, and, without limiting the generality of the foregoing, neither
the terms of this Agreement nor the fact that Owners and Managing Agent have joint interests in any one or more investments, ownership
in each other (including, without limitation, the Equity Compensation (as defined in the Business Management Agreement)), ownership or
other interests in any one or more entities or may have common officers or employees or a tenancy relationship shall be construed so as
to make them such partners or joint venturers or impose any liability as such on either of them.
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18. Governing
Law. The provisions of this Agreement and any Dispute (as defined in Section 23), whether in contract, tort or otherwise,
shall be governed by and construed in accordance with the laws of the State of Maryland without regard to principles of conflicts of law.
19. Successors
and Assigns. This Agreement shall be binding upon, and inure to the benefit of, any successors or permitted assigns of the parties
hereto as provided herein.
20. No
Third Party Beneficiary. No person or entity other than the parties hereto and their successors and permitted assigns is intended
to be a beneficiary of this Agreement.
21. Severability.
If any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable
in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired, unless the provisions held invalid, illegal or unenforceable shall substantially impair
the benefits of the remaining provisions hereof.
22. Survival.
Except for Sections 1 through 5, 7, 14, 15 and 24, all other provisions of this Agreement shall
survive the termination hereof. Any termination of this Agreement shall be without prejudice to the rights of the parties hereto accrued
prior to the termination or upon termination.
23. Arbitration.
(a) Any
disputes, claims or controversies arising out of or relating to this Agreement, the provision of services by Managing Agent pursuant to
this Agreement or the transactions contemplated hereby, including any disputes, claims or controversies brought by or on behalf of the
Company, any Owner, Managing Agent or any holder of equity interests (which, for purposes of this Section 23, shall mean any
holder of record or any beneficial owner of equity interests or any former holder of record or beneficial owner of equity interests) of
the Company, any Owner or Managing Agent, either on his, her or its own behalf, on behalf of the Company, any Owner or Managing Agent
or on behalf of any series or class of equity interests of the Company, any Owner or Managing Agent or holders of any equity interests
of the Company, any Owner or Managing Agent against the Company, any Owner or Managing Agent or any of their respective trustees, directors,
members, officers, managers (including Managing Agent or its successor), agents or employees, including any disputes, claims or controversies
relating to the meaning, interpretation, effect, validity, performance or enforcement of this Agreement, including this arbitration agreement
or the governing documents of the Company, any Owner or Managing Agent (all of which are referred to as “Disputes”),
or relating in any way to such a Dispute or Disputes shall, on the demand of any party to such Dispute or Disputes, be resolved through
binding and final arbitration in accordance with the Commercial Arbitration Rules (the “Rules”) of the American
Arbitration Association (“AAA”) then in effect, except as those Rules may be modified in this Section 23.
For the avoidance of doubt, Disputes are intended to include derivative actions against the trustees, directors, officers or managers
of the Company, any Owner or Managing Agent and class actions by a holder of equity interests against those individuals or entities and
the Company, any Owner or Managing Agent. For the avoidance of doubt, and not as a limitation, a Dispute shall include a Dispute made
derivatively on behalf of one party against another party. For purposes of this Section 23, the term “equity interest”
shall mean, (i) in respect of the Company, shares of beneficial interest or, if applicable, other common equity interests of the
Company, (ii) in respect of any other Owner, equity interests in that Owner, and (iii) in respect of Managing Agent, “membership
interest” in Managing Agent as defined in the Maryland Limited Liability Companies Act.
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(b) There
shall be three (3) arbitrators. If there are only two (2) parties to the Dispute, each party shall select one (1) arbitrator
within fifteen (15) days after receipt by respondent of a copy of the demand for arbitration. The arbitrators may be affiliated or interested
persons of the parties. If there are more than two (2) parties to the Dispute, all claimants, on the one hand, and all respondents,
on the other hand, shall each select, by the vote of a majority of the claimants or the respondents, as the case may be, one (1) arbitrator
within fifteen (15) days after receipt of the demand for arbitration. The arbitrators may be affiliated or interested persons of the claimants
or the respondents, as the case may be. If either a claimant (or all claimants) or a respondent (or all respondents) fail(s) to timely
select an arbitrator then the party (or parties) who has selected an arbitrator may request AAA to provide a list of three (3) proposed
arbitrators in accordance with the Rules (each of whom shall be neutral, impartial and unaffiliated with any party) and the party
(or parties) that failed to timely appoint an arbitrator shall have ten (10) days from the date AAA provides the list to select one
(1) of the three (3) arbitrators proposed by AAA. If the party (or parties) fail(s) to select the second (2nd) arbitrator
by that time, the party (or parties) who have appointed the first (1st) arbitrator shall then have ten (10) days to select one (1) of
the three (3) arbitrators proposed by AAA to be the second (2nd) arbitrator; and, if he/they should fail to select the second (2nd)
arbitrator by such time, AAA shall select, within fifteen (15) days thereafter, one (1) of the three (3) arbitrators it
had proposed as the second (2nd) arbitrator. The two (2) arbitrators so appointed shall jointly appoint the third (3rd) and presiding
arbitrator (who shall be neutral, impartial and unaffiliated with any party) within fifteen (15) days of the appointment of the second
(2nd) arbitrator. If the third (3rd) arbitrator has not been appointed within the time limit specified herein, then AAA shall provide
a list of proposed arbitrators in accordance with the Rules, and the arbitrator shall be appointed by AAA in accordance with a listing,
striking and ranking procedure, with each party having a limited number of strikes, excluding strikes for cause.
(c) The
place of arbitration shall be Boston, Massachusetts unless otherwise agreed by the parties.
(d) There
shall be only limited documentary discovery of documents directly related to the issues in dispute, as may be ordered by the arbitrators.
For the avoidance of doubt, it is intended that there shall be no depositions and no other discovery other than limited documentary discovery
as described in the preceding sentence.
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(e) In
rendering an award or decision (the “Award”), the arbitrators shall be required to follow the laws of the State of
Maryland. Any arbitration proceedings or award rendered hereunder and the validity, effect and interpretation of this arbitration agreement
shall be governed by the Federal Arbitration Act, 9 U.S.C. §1 et seq. The Award shall be in writing and shall state the findings
of fact and conclusions of law on which it is based. Any monetary award shall be made and payable in U.S. dollars free of any tax, deduction
or offset. Subject to Section 23(g) each party against which the Award assesses a monetary obligation shall pay that
obligation on or before the thirtieth (30th) day following the date of the Award or such other date as the Award may provide.
(f) Except
to the extent expressly provided by this Agreement or as otherwise agreed by the parties thereto, each party involved in a Dispute shall
bear its own costs and expenses (including attorneys’ fees), unless the arbitrators shall render an award that shifts any such costs
or expenses (including attorneys’ fees) or, in a derivative case or class action, awards any portion of the Company’s or Managing
Agent’s, as applicable, award to the claimant or the claimant’s attorneys. Each party (or, if there are more than two (2) parties
to the Dispute, all claimants, on the one hand, and all respondents, on the other hand, respectively) shall bear the costs and expenses
of its (or their) selected arbitrator and the parties (or, if there are more than two (2) parties to the Dispute, all claimants,
on the one hand, and all respondents, on the other hand) shall equally bear the costs and expenses of the third (3rd) appointed arbitrator.
(g) Notwithstanding
any language to the contrary in this Agreement, the Award, including but not limited to any interim Award, may be appealed pursuant to
AAA’s Optional Appellate Arbitration Rules (“Appellate Rules”). The Award shall not be considered final
until after the time for filing the notice of appeal pursuant to the Appellate Rules has expired. Appeals must be initiated within
thirty (30) days of receipt of the Award by filing a notice of appeal with any AAA office. Following the appeal process, the decision
rendered by the appeal tribunal may be entered in any court having jurisdiction thereof. For the avoidance of doubt, and despite any contrary
provision of the Appellate Rules, Section 23(f) hereof shall apply to any appeal pursuant to this Section 23
and the appeal tribunal shall not render an award that would include shifting of any costs or expenses (including attorneys’ fees)
of any party.
(h) Following
the expiration of the time for filing the notice of appeal, or the conclusion of the appeal process set forth in Section 23(g),
the Award shall be final and binding upon the parties thereto and shall be the sole and exclusive remedy between those parties relating
to the Dispute, including any claims, counterclaims, issues or accounting presented to the arbitrators. Judgment upon the Award may be
entered in any court having jurisdiction. To the fullest extent permitted by law, no application or appeal to any court of competent jurisdiction
may be made in connection with any question of law arising in the course of arbitration or with respect to any award made except for actions
relating to enforcement of this agreement to arbitrate or any arbitral award issued hereunder and except for actions seeking interim or
other provisional relief in aid of arbitration proceedings in any court of competent jurisdiction.
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(i) This
Section 23 is intended to benefit and be enforceable by the Company, Owners, Managing Agent and their respective holders of
equity interests, trustees, directors, officers, managers (including Managing Agent or its successor), agents or employees, and their
respective successors and assigns and shall be binding upon the Company, Owners, Managing Agent and their respective holders of equity
interests, and be in addition to, and not in substitution for, any other rights to indemnification or contribution that such individuals
or entities may have by contract or otherwise.
24. REIT
Compliance.
(a) Managing
Agent acknowledges that it has been advised that the Company (and, if applicable, an Owner) has elected to be taxed as a “real estate
investment trust” under the Code and that the business and activities of the Company and its subsidiaries (including, without limitation,
the other Owners) are intended to be conducted as appropriate to support and facilitate that treatment. To this end, Managing Agent will
manage the Company Properties in accordance with the requirements applicable to real estate investment trusts under the Code and the provisions
of this Section 24.
(b) In
furtherance of the foregoing, Managing Agent shall, in carrying out its duties under this Agreement, conduct the business and activities
at the Company Properties in accordance with the following requirements:
1. Services.
Except as otherwise permitted by an applicable Owner, Managing Agent shall use commercially reasonable efforts to manage the Company Properties
in such a manner that the applicable Owner and the Company shall not receive or accrue, after taking into account the exceptions in Code
Section 856(d)(7)(C) (as further explicated in IRS Revenue Ruling 2002-38), any amounts that constitute any impermissible tenant
services income as defined, in Code Section 856(d)(7)(A) unless, during any calendar year, the aggregate amount of such income
will not, under any circumstances, exceed one percent (1%) of all amounts received or accrued during the taxable year directly or indirectly
from the Company Properties, determined in accordance with the provisions of Code Section 856(d)(7) and IRS Revenue Ruling 98-60.
2. Leases.
Except as set forth in Section 10, all leases, subleases or assignments of a lease shall be subject to applicable Owner’s
written approval.
3. TRS
Matters. If a service agreement is already in place at the time Managing Agent receives a notification from the applicable Owner that
a service provider is not, or may not be, a permissible independent contractor with respect to the Company or such Owner for purposes
of the exception in Sections 856(d)(7)(C)(i), then Managing Agent in consultation with the applicable Owner shall expeditiously terminate
such service agreement or contract, or, alternatively and in the sole and absolute discretion of the applicable Owner, transfer such service
agreement or contract to a taxable REIT subsidiary, within the meaning of Code Section 856(l), of the Company or the applicable Owner.
All costs associated with termination of any such service agreement or contract at the request of the applicable Owner shall be an expense
of that Owner.
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4. REIT
Information. Upon request from an Owner, Managing Agent shall promptly complete a property service questionnaire annually (no later
than thirty (30) days after the end of each calendar year and more frequently as reasonably requested by the applicable Owner) and provide
any other information reasonably requested by the applicable Owner or the Company related to the applicable Company Properties in order
for the Company and any applicable Owner to determine their qualification as a “real estate investment trust” under the Code
and to complete their tax returns.
5. Dispute
Resolution Regarding REIT Compliance. Any dispute over whether a prospective activity of Managing Agent (but not, for the avoidance
of doubt, actions previously taken) violates this Section 24 shall be determined by the applicable Owner in its reasonable
discretion, after consultation with Managing Agent.
25. Consent
to Jurisdiction and Forum. The exclusive jurisdiction and venue in any action brought by any party hereto pursuant to this Agreement
shall lie in any federal or state court located in Baltimore, Maryland. By execution and delivery of this Agreement, each party hereto
irrevocably submits to the jurisdiction of such courts for itself and in respect of its property with respect to such action. The parties
irrevocably agree that venue would be proper in such court, and hereby waive any objection that such court is an improper or inconvenient
forum for the resolution of such action. The parties further agree and consent to the service of any process required by any such court
by delivery of a copy thereof in accordance with Section 12 and that any such delivery shall constitute valid and lawful service
of process against it, without necessity for service by any other means provided by statute or rule of court. EACH PARTY HERETO IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE PROVISION OF SERVICES
BY MANAGING AGENT PURSUANT TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. Notwithstanding anything herein to the contrary,
if a demand for arbitration of a Dispute is made pursuant to Section 23, this Section 25 shall not preempt resolution
of the Dispute pursuant to Section 23.
26. Entire
Agreement. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and
supersedes any pre-existing agreements with respect to such subject matter. This Agreement constitutes an integral part of, and a condition
to, the transactions contemplated by the Restructuring Support Agreement.
27. Other
Agreements. (i) The Company and Managing Agent are also parties to a Third Amended and Restated Business Management Agreement,
dated as of the date hereof, as in effect from time to time (the “Business Management Agreement”) and (ii) the
New 2027 SPV Holdco, the New 2027 SPV, on behalf of itself and certain of its subsidiaries, and Managing Agent are also parties to a New
2027 SPV Property Management Agreement, dated as of the date hereof, as in effect from time to time (the “New 2027 SPV Property
Management Agreement”). The parties agree that this Agreement does not include or otherwise address the rights and obligations
of the parties under the Business Management Agreement or the New 2027 SPV Property Management Agreement and that each of the Business
Management Agreement and the New 2027 SPV Property Management Agreement provides for its own separate rights and obligations of the parties
thereto, including without limitation separate compensation payable by (x) the Company to Managing Agent thereunder for services
to be provided by Managing Agent pursuant to the Business Management Agreement and (y) the New 2027 SPV and the other Owners (as
defined in the New 2027 SPV Property Management Agreement) to Managing Agent thereunder for services to be provided by Managing Agent
pursuant to the New 2027 SPV Property Management Agreement.
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28. Defined
Terms. Any capitalized term used herein but not defined shall be given the meaning set forth in Exhibit A attached
hereto.
29. Counterparts.
This Agreement 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 counterpart of a signature page of this Agreement by facsimile transmission
or other electronic transmission (i.e., a “pdf” or “tif”), including by electronic signatures or electronic records,
each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, to the extent and as provided
for in any applicable law, shall be effective as delivery of a manually executed counterpart hereof.
[Signature Page To Follow.]
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IN WITNESS WHEREOF, the Parties have executed
this Third Amended and Restated Property Management Agreement as of the date first above written.
MANAGING AGENT:
THE RMR GROUP LLC
By: /s/ Matthew C. Brown
Name: Matthew C. Brown
Title: Executive Vice President, Chief Financial Officer and Treasurer
OWNERS:
OFFICE PROPERTIES INCOME TRUST,
on its own behalf and on behalf of its subsidiaries
By: /s/ Lindsey Getz
Name: Lindsey Getz
Title: Secretary
[Signature Page to the
Third Amended and Restated Property Management Agreement]
Exhibit A
Definitions
The following definitions shall be applied to the
terms used in the Agreement for all purposes, unless otherwise clearly indicated to the contrary. All capitalized terms used in this Exhibit A
but not defined in this Exhibit A shall have the respective meanings given to those terms in the Agreement. Unless otherwise
noted, all section references in this Exhibit A refer to sections in the Agreement.
1. “Affiliate” shall mean, with respect to any Person, any other Person that directly or indirectly, through one or
more intermediaries, Controls, is Controlled by, or is under common Control with, the first Person.
2. “Bankruptcy Code” shall mean title 11 of the United States Code.
3. “Bankruptcy Court” shall mean the United States Bankruptcy Court for the Southern District of Texas, Houston Division.
4. “Board” shall mean the Company’s board of trustees or any replacement governing body.
5. “Cause” shall mean: (i) Managing Agent engages in any act that constitutes bad faith, fraud, willful misconduct
or gross negligence in the performance of its obligations under this Agreement; (ii) a default by Managing Agent in the performance
or observance of any material term, condition or covenant contained in this Agreement to be performed by Managing Agent, the consequence
of which is a Material Adverse Effect; (iii) Managing Agent or Parent is convicted of a felony; (iv) any executive officer or
senior manager of Managing Agent or Parent is convicted of a felony or other crime, whether or not a felony, involving his or her duties
as an employee of Managing Agent and who is not promptly discharged and any actual loss suffered by the Company as a result of such felony
or crime is not promptly reimbursed; (v) any involuntary proceeding is commenced against Managing Agent or Parent seeking liquidation,
reorganization or other relief with respect to Managing Agent or Parent or, in either case, its debts under bankruptcy, insolvency or
similar law and such proceeding is not dismissed in one hundred twenty (120) days; or (vi) Managing Agent or Parent authorizes the
commencement of a voluntary proceeding seeking liquidation, reorganization or other relief with respect to Managing Agent or Parent or,
in either case, its debts under bankruptcy, insolvency or similar law or the appointment of a trustee, receiver, liquidator, custodian
or similar official of Managing Agent or any substantial part of its property.
6. “Chapter 11 Cases” shall mean the cases pursuant to chapter 11 of the Bankruptcy Code of the Company and certain
of its subsidiaries commenced in the Bankruptcy Court and jointly administered under case number 25-90530 (CML).
7. “Charitable Organization” shall mean an organization that is described in section 501(c)(3) of the Code (or
any corresponding provision of a future United States Internal Revenue law) which is exempt from income taxation under section 501(a) thereof.
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8. “Company Change of Control” shall mean the occurrence of any of the following events:
(i) any
“person” or “group” (as such terms are used in Section 13(d) of the Exchange Act) becoming the “beneficial
owner” (as defined in Rule 13d-3 and Rule 13d-5 promulgated under the Exchange Act, except that any person shall be deemed
to beneficially own securities such person has a right to acquire whether such right is exercisable immediately or only after the passage
of time), directly or indirectly, of fifty percent (50%) or more of the then-outstanding voting power of the voting securities of the
Company;
(ii) the
consummation of any direct or indirect sale, transfer, conveyance or other disposition, in one or a series of related transactions, of
all or substantially all of the assets of the Company and its subsidiaries on a consolidated basis; provided that an event pursuant to
this clause (ii) will not be considered to have occurred if (A) the transferee expressly assumes the rights and obligations
of the Company under this Agreement pursuant to an agreement reasonably acceptable to Managing Agent and (B) Persons owning at least
a majority of each of the economic rights of the equity interests of the Company and the voting power of the voting securities of the
Company immediately prior to the relevant transaction or series of related transactions own a majority of each of the economic rights
of the equity interests of the transferee and the voting power of the voting securities of the transferee immediately following the relevant
transaction or series of related transactions and Continuing Company Board Members constitute a majority of the board or other comparable
managing body of the transferee immediately following the relevant transaction or series of related transactions; provided further that,
following an event satisfying the requirements set forth in the immediately preceding proviso, each reference to the Company shall be
deemed to be instead a reference to such transferee; or
(iii) at
any time, the Continuing Company Board Members cease for any reason to constitute the majority of the members of the Board.
Notwithstanding the foregoing, a change in ownership or control of
the Company (or any successor), or a transfer of all or substantially all of the assets of the Company (or any successor) to an entity,
will not be considered a Company Change of Control (and, for certainty, also will be permitted and will not give rise to any right on
the part of Managing Agent to terminate this Agreement) if (a) if not the Company, the successor or transferee, as applicable, expressly
assumes the rights and obligations of the Company under this Agreement pursuant to an agreement reasonably acceptable to Managing Agent
and (b) following such change or transfer, any combination of the following persons and/or entities will own, directly or indirectly,
a majority of each of the economic rights of the equity interests of the Company (or its successor) or the transferee, as applicable,
and the voting rights of the voting securities of the Company (or its successor) or the transferee, as applicable: (i) any
fund or vehicle that is managed or advised by Helix Partners Management LP or any successor to all or substantially all of the business
thereof, or any entity directly or indirectly controlled or managed by any of the foregoing, (ii) any fund or vehicle that is managed
or advised by Redwood Capital Management, LLC or any successor to all or substantially all of the business thereof, or any entity directly
or indirectly controlled or managed by any of the foregoing, and (iii) Mr. Adam Portnoy, Managing Agent or Parent, any successor
to all or substantially all of the business of such entity or any entity directly or indirectly controlled or managed by any of the foregoing.
Following an event satisfying the requirements set forth in the immediately preceding sentence, each reference in this Agreement to the
Company shall be deemed to be instead a reference to such transferee.
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9. “Confirmation Order” shall mean the Order Confirming Fourth Amended Joint Chapter 11 Plan of Reorganization of
Office Properties Income Trust and Its Debtor Subsidiaries [Docket No. 1241], entered by the Bankruptcy Court on April 22, 2026.
10. “Continuing Company Board Members” shall mean, as of any date of determination, any member of the Board who was
(i) a member of the Board as of the date of this Agreement, (ii) a member of the Board appointed promptly following the date
of this Agreement in accordance with Section 5.13(a) of the Plan of Reorganization or (iii) nominated for election or elected
to the Board by, or whose election to the Board was made or approved by, the affirmative vote of a majority of Continuing Company Board
Members who were members of the Board at the time of such nomination or election.
11. “Control” of an entity, shall mean the possession, direct or indirect, of the power to direct or cause the direction
of the management and policies of such entity, whether through ownership of voting securities, by contract or otherwise and the participles
“Controls” and “Controlled” have parallel meanings.
12. “Covered Termination” shall mean a Company Termination for Convenience, a Managing Agent Termination for Cause
or a Modification Termination.
13. “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder.
14. “Good Reason” shall mean: (i) a default by any Owner in the performance or observance of any material term,
condition or covenant contained in this Agreement to be performed by such Owner, the consequence of which was materially adverse to Managing
Agent and which did not result from and was not attributable to any action, or failure to act, of Managing Agent, and such default shall
continue for a period of sixty (60) days (or ninety (90) days if the Company takes steps to cure such default within thirty (30) days
of written notice to the Company) after written notice thereof by Managing Agent specifying such default and requesting that the same
be remedied in such sixty (60) day period; or (ii) the occurrence of a Company Change of Control.
15. “Law” shall mean any law, statute, ordinance, rule, regulation, directive, code or order enacted, issued, promulgated,
enforced or entered by any governmental entity.
16. “Managing Agent Change of Control” shall be deemed to have occurred upon any of the following events:
1. any
“person” or “group” (as such terms are used in Section 13(d) of the Exchange Act), other than
a Permitted Managing Agent Transferee or a Person to whom Managing Agent would be permitted to assign this Agreement pursuant to Section 10
of this Agreement, becomes the “beneficial owner” (as defined in Rule 13d-3 and Rule 13d-5 promulgated under the
Exchange Act, except that any person shall be deemed to beneficially own securities such person has a right to acquire whether such right
is exercisable immediately or only after the passage of time), directly or indirectly, of fifty percent (50%) or more of the then-outstanding
voting power of the voting securities of Managing Agent and/or Parent, as applicable;
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2. the
consummation of any direct or indirect sale, lease, transfer, conveyance or other disposition, in one or a series of related transactions,
of all or substantially all of the assets of Managing Agent (including securities of Managing Agent’s subsidiaries) on a consolidated
basis, except the transfer of outstanding voting power of the voting securities of Managing Agent or Parent to a Permitted Managing Agent
Transferee or if the transaction constitutes a permissible assignment under Section 10 of this Agreement; or
3. at
any time, Adam D. Portnoy ceases to Control Managing Agent;
provided, however, that if Managing Agent is
no longer a subsidiary of Parent as a result of a transaction not constituting a Managing Agent Change of Control, then a Managing Agent
Change of Control shall be deemed to have occurred upon any of the foregoing events that affect Managing Agent only (and no Managing Agent
Change of Control shall be deemed to have occurred if such event affects Parent only and not Managing Agent).
17. “Material Adverse Effect” shall mean any fact, circumstance, event, change, effect or occurrence that, individually
or in the aggregate with all other facts, circumstances, events, changes, effects and occurrences, has had a material adverse effect on
the business, results of operations or financial condition of the Owners, taken as a whole.
18. “New 2027 SPV” shall mean Office Properties Intermediate Holdco II Trust LLC, a Delaware limited liability company.
19. “New 2027 SPV Group” shall mean the New 2027 SPV Holdco and its subsidiaries.
20. “New 2027 SPV Holdco” shall mean Office Properties Intermediate Holdco I Trust LLC, a Delaware limited liability
company.
21. “Parent” shall mean The RMR Group Inc., a Maryland corporation.
22. “Permitted Managing Agent Transferee” shall mean: (A) Parent or any of its Controlled subsidiaries; (B) any
employee benefit plan of Managing Agent, Parent or any of their respective Controlled subsidiaries; (C) Adam D. Portnoy; (D) any
entity Controlled by any Person or Persons described in clause (B) or (C) of this definition; (E) a Charitable Organization
Controlled by any Person or Persons described in clause (C) of this definition; (F) an entity owned, directly or indirectly,
by shareholders (or equivalent) of Managing Agent or Parent in substantially the same proportions as their ownership of Managing Agent
or Parent, as applicable, immediately prior to the acquisition of beneficial ownership; or (G) any Person approved by the Company
in writing; provided, however, that any subsidiary described in clause (A) or clause (B), or any Person described in clause
(D) or clause (E), shall only be a Permitted Managing Agent Transferee so long as it remains Controlled as provided in clause (A),
clause (B), clause (D) or clause (E), as applicable.
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23. “Person” shall mean an individual or any corporation, partnership, limited liability company, trust, unincorporated
organization, association, joint venture or any other organization or entity, whether or not a legal entity.
24. “Plan of Reorganization” shall mean the Fourth Amended Joint Chapter 11 Plan of Reorganization of Office Properties
Income Trust and Its Debtor Affiliates [Docket No. 1223], filed in the Chapter 11 Cases on April 21, 2026 (as amended, supplemented
or otherwise modified from time to time, including, without limitation, by the Confirmation Order, together with all exhibits and schedules
thereto), as confirmed by the Confirmation Order and made effective on June 17, 2026.
25. “Restructuring Support Agreement” shall mean the Restructuring Support Agreement, dated as of October 30,
2025, by and among the Company, the Consenting September 2029 Senior Secured Noteholders (as defined therein) from time to time party
thereto and Managing Agent.
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Exhibit B
Reporting Schedule
Exhibit C
Consent Actions
A. Approval of the Approved Budget and the Approved Business Plan,
or causing the Company or any Owner to incur any costs and expenses except in compliance with Section 7 of the Agreement;
B. The extension of credit or loan to, or becoming a surety, guarantor,
or endorser of any obligation of, or indemnifying the obligations of, another Person (or modifying any such arrangement), except (i) by
the Company or any Owner to or on behalf of a wholly-owned subsidiary of the Company or by an Owner to or on behalf of the Company, or
(ii) ordinary course trade credit;
C. Making, permitting (without contest) or agreeing to any changes
to the zoning or building ordinances, entitlements, and/or other land use and/or environmental regulations affecting any Property, in
each case if the same (individually or in the aggregate) would, or could reasonably be expected to, materially interfere with or materially
impact operations, or adversely affect the value, in any material respect, of the Managed Premises;
D.
Entering into, amending, renewing or extending the term of (other than pursuant to a tenant’s exercise of any rights expressly provided
for under its lease), or terminating, any lease that (i) contemplates expenditures (whether consisting of tenant improvements,
lease concessions or otherwise) by the Owners in excess of $1,000,000 or (ii) applies to leased premises in excess of 20,000 square feet;
E. Except to the extent contemplated by the Approved
Budget or Approved Business Plan, entering into, materially amending, or terminating any contract or agreement that (A) is a non-utility
services contract that requires a payment in excess of $250,000 annually, (B) (i) is for a term of more than one year and is not cancelable
without cause by the Company or the applicable Owner on thirty (30) days or less prior written notice without the payment of any cancellation
fee, penalty, premium or prepayment amount, (ii) is entered into, or is renewed, with the same counterparty (or its affiliate) other than
utility providers, for the same or similar services for a period in excess of three (3) years, in the aggregate (taking into consideration
the original term and any renewal term), (iii) if such contract is not in the name of the Company or an Owner, is not freely assignable
to the Company or an Owner, or (iv) does not contain customary insurance requirements, if applicable, for the Company or the applicable
Owner’s benefit, or (C) requires the payment of any amount in excess of $100,000 annually and is not competitively bid, provided
however that leasing and property management agreements with third party managers and/or utility contracts are not subject to the competitive
bidding requirements under this item E so long as the fees and expenses negotiated in such contracts are consistent with market fees and
expenses;
F. Selling or otherwise transferring, exchanging,
or disposing of any Owner, any Managed Premises (or any interest therein) or any portion of a Managed Premises (whether through a sale
of interests in an Owner or otherwise), and/or marketing of the same for such sale, transfer, exchange or disposition (but excluding from
this provision sales or other dispositions of personal property and leasing or re-leasing activities at a Managed Premises in either case
as to which no consent is required under item D above);
C-1
G. Deciding not to repair or rebuild any Managed
Premises or any material portion thereof in case of material damage to such Managed Premises arising out of a casualty or condemnation;
H. Abandoning any Managed Premises or initiating
or implementing any plan for any demolition, expansion, redevelopment, or major renovation of any Managed Premises, provided that any
such activities shall not be a Consent Action if the total costs thereof are within the Approved Budget or Approved Business Plan (subject
to Permitted Variances);
I. Changing the legal form of organization, income
tax structure, or purpose of the Company or any Owner;
J. Selecting or replacing any accounting firm or auditors for the Company
or any Owner, or materially changing the accounting principles or practices by which the books and records of the Company or any Owner
are kept and pursuant to which the financial statements of the Company or any Owner are prepared, other than changes required to comply
with changes to GAAP;
K. Determining that it is no longer in the best interest of the Company
or any other applicable Owner to attempt to, or continue to, qualify as a REIT;
L. Instituting or settling any action or series of related actions
at law or in equity that (i) involve potential damages or liabilities to the Company or any Owner, or diminution in value of any Managed
Premises, in excess of $1,000,000 in the aggregate, excluding any claim covered by insurance, (ii) involve or impose any material restriction,
covenant or other non-monetary obligation on the Company and/or any Owner or any of its assets that has an adverse effect on the value
or operation of the Managed Premises, and/or (iii) involve any admission of fault or guilty by the Company and/or any Owner;
M. The dissolution or liquidation of the Company
or any Owner, the approval or modification of any plan of liquidation or dissolution of the Company or any Owner, and/or the process and
terms (including minimum all-cash sales prices) of the liquidation of the assets of the Company or any Owner;
N. (i) Making, revoking, or changing any income or
other material tax election, (ii) determining whether to affirmatively elect out of the application of any otherwise applicable tax provision
or (iii) adopting or changing any material method of income tax accounting or material tax procedures or policies of the Company or any
Owner, except in each case where such action could not reasonably be expected to have more than a de minimis adverse effect on any of
its direct or indirect investors;
O. Approving or causing any material deviation from
the insurance required pursuant to the Business Management Agreement or this Agreement, in each case as the same may be modified pursuant
to the Approved Budget and Approved Business Plan;
P. Granting any easement, restrictive covenant, condition
and restriction, encroachment rights, license or similar rights, dedicating or transferring any portion of any Managed Premises for road,
highway or other public purposes, or executing petitions to have any Managed Premises annexed to any municipal corporation or utility
district, or amending, modifying or supplementing any of the foregoing, in each case if the same (individually or together with other
similar actions) would, or could reasonably be expected to, materially interfere with or materially adversely impact operations at, or
materially adversely affect the value, of any Managed Premises;
C-2
Q. Causing any Managed Premises to be subject to
a condominium statute or otherwise converting any Managed Premises to a condominium form of ownership;
R. The Company or any Owner hiring any employees;
S. Commingling the funds of the Company and/or any
Owner with those of any other Person (including any of the New 2027 SPV Group; provided that Managing Agent may commingle the funds of
the Company or any Owner with the funds of the New 2027 SPV Group so long as it is using commercially reasonable efforts to cease such
commingling as promptly as reasonably practicable following the date hereof) or holding funds of the Company and/or any Owner in an account
that is not an account of the Company and/or such Owner;
T. Entering into any agreement
by, between and/or among the Company or any Owner, on the one hand, and RMR or any of its affiliates, on the other hand;
U. Making any political,
charitable, or other similar contribution of any kind; and/or
V. Retaining counsel, consultants
and other third party professionals on behalf of the Company or any Owner in connection with any financing,
capital raise, recapitalization or sale, transfer, exchange, or other disposition by or involving the Company, any other Owner, any Managed
Premises or any portion thereof or any other purpose, in each case not arising in the ordinary course of the business of the Company and
the Owners.
C-3
Exhibit D
2026 Approved Business Plan
Exhibit E
2026 Approved Budget
Exhibit F-1
Form of Property Management Agreement
Exhibit F-2
Side Letter
Exhibit G
Excluded Properties
EX-10.3 — EXHIBIT 10.3
EX-10.3
Filename: tm2618043d2_ex10-3.htm · Sequence: 8
Exhibit 10.3
EXECUTION VERSION
WAIVER AND AMENDMENT NO. 1 TO SECOND AMENDED
AND RESTATED CREDIT AGREEMENT
THIS WAIVER AND AMENDMENT
NO. 1 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of June 17, 2026 (this “Agreement”),
by and among OPI WF BORROWER LLC, a Delaware limited liability company (the “Borrower”), OFFICE PROPERTIES INCOME TRUST,
a real estate investment trust organized under the laws of the State of Maryland (“Parent”), OPI WF HOLDING LLC, a
Delaware limited liability company (“Holdings”), 440 FIRST STREET LLC, a Delaware limited liability company (“440
First Street”), OPI WF OWNER LLC, a Delaware limited liability company (“OPI WF Owner” and together with
440 First Street, the “Subsidiary Guarantors” and together with the Borrower, Parent and Holdings, the “Loan
Parties”), the Lenders party hereto (the “Lenders”) and WILMINGTON SAVINGS FUND SOCIETY, FSB (the “Administrative
Agent”), as successor to WELLS FARGO BANK NATIONAL ASSOCIATION.
PRELIMINARY STATEMENTS:
(1) The
Borrower, Parent, Holdings, the Administrative Agent, the lenders party thereto and the other parties thereto are parties to that certain
Second Amended and Restated Credit Agreement, dated as of January 29, 2024 (as amended, restated, amended and restated, supplemented
or otherwise modified from time to time immediately prior to the Amendment No. 1 Effective Date (as defined below), the “Credit
Agreement” and, as amended by this Agreement, the “Amended Credit Agreement”). Capitalized terms not otherwise
defined in this Agreement have the same meanings as specified in the Amended Credit Agreement.
(2) As
of the date hereof, Events of Default have occurred and are continuing under (i) Section 10.1(b)(i) of the Credit Agreement
as a result of Parent’s (A) incurrence of additional Secured Debt exceeding 40% of its Adjusted Total Assets pursuant to Section 9.13(b) of
the Credit Agreement, and (B) incurrence of additional Debt while the ratio of Consolidated Income Available for Debt Service to
Annual Debt Service was less than 1.50 to 1.00 pursuant to Section 9.13(c) of the Credit Agreement, (ii) Section 10.1(b)(iii) of
the Credit Agreement as a result of Parent’s failure to remain listed on the New York Stock Exchange or the NYSE MKT LLC Exchange
pursuant to Section 7.12 of the Credit Agreement, (iii) Section 10.1(d) of the Credit Agreement due to failure to
pay, when due and payable, interest on Material Indebtedness, (iv) Section 10.1(e) of the Credit Agreement due to Parent’s
commencement of a voluntary case under the Bankruptcy Code, and (v) Section 10.1(l) of the Credit Agreement due to the
occurrence of a Change of Control (collectively, the “Current Defaults” and, together with (x) any Default or
Event of Default under Section 10.1(c) of the Credit Agreement as a result of any breach of representations and warranties occurring
as a result of the existence of the Current Defaults, (y) with respect to the Current Defaults, any other Default or Event of Default
that has occurred prior to the date hereof as a direct result or natural consequence of the Current Defaults and (z) any Default
or Event of Default under Section 8.4 of the Credit Agreement as a result of failure to give notice of any of the foregoing, the
“Specified Defaults”).
(3) The
Borrower has requested that Agent and the Lenders party hereto (which constitute the Requisite Lenders) (the Administrative Agent and
such Lenders, collectively, the “Lending Parties” and each, a “Lending Party”) agree to (i) waive
the Specified Defaults and (ii) amend certain provisions of the Credit Agreement.
(4) Subject
to the terms and conditions set forth herein, the Lending Parties have agreed to (i) waive the Specified Defaults and (ii) amend
the Credit Agreement in certain respects as set forth below.
section
1. Amendments to Credit Agreement. Effective as of the Amendment No. 1 Effective
Date, the Credit Agreement is hereby amended to delete the stricken text (indicated in the same manner as the following example: stricken
text or stricken text) and to add the underlined text (indicated
in the same manner as the following example: underlined text
or underlined text) as set forth on Exhibit A attached hereto.
section
2. Limited Waiver.
(a) Effective
as of the Amendment No. 1 Effective Date, subject to the satisfaction of the conditions set forth in Section 4, the Lending
Parties hereby waive the Specified Defaults, but they expressly do not waive interest accrued and payable under the Credit Agreement at
the Post-Default Rate on account of such Specified Defaults, which interest at the Post-Default Rate must be paid in full as a condition
to effectiveness of this Agreement.
(b) Except
as expressly set forth in Section 2(a) with respect to the Specified Defaults, the waiver contained in this Section 2 is
a limited waiver and (i) shall only be relied upon and used for the specific purpose set forth herein, (ii) shall not constitute
nor be deemed to constitute a waiver, except as otherwise expressly set forth herein, of (A) any Default or Event of Default or (B) any
term or condition of the Credit Agreement and the other Loan Documents, (iii) shall not constitute nor be deemed to constitute a
consent by Agent or any Lender to anything other than the specific purposes set forth herein and (iv) shall not constitute a custom
or course of dealing among the parties hereto.
section
3. Representations and Warranties. In order to induce the Lending Parties to enter
into this Agreement, the Loan Parties hereby, jointly and severally, represent and warrant to each Lending Party that the following, as
of the date hereof, are and will be true, correct and complete:
(a) the
Borrower and each other Loan Party has the right and power, and has taken all necessary action to authorize it, to execute, deliver and
perform each of this Agreement and the Amended Credit Agreement, in accordance with their respective terms and to consummate the transactions
contemplated hereby and thereby have been duly authorized by all necessary corporate, limited liability company or other organizational
action and do not and will not (i) require any Governmental Approval (other than (1) the filing of Uniform Commercial Code financing
statements and other filings or registrations necessary to perfect the Liens granted by the Security Instruments, (2) the recordation
of Security Instruments, (3) such as have been made and are in full effect and (4) payments of any related fees, taxes or charges)
or violate any Applicable Law (including all Environmental Laws) relating to the Borrower or any other Loan Party or (ii) conflict
with, result in a breach of or constitute a default under the organizational documents of any Loan Party;
(b) each
of this Agreement and the Amended Credit Agreement is the legal, valid and binding obligation of each Loan Party, enforceable against
such Person in accordance with its respective terms, except as the same may be limited by bankruptcy, insolvency, and other similar laws
affecting the rights of creditors generally and the availability of equitable remedies for the enforcement of certain obligations (other
than the payment of principal) contained herein or therein and as may be limited by equitable principles generally;
1
(c) each
of the representations and warranties of the Borrower and each other Loan Party contained in this Agreement, the Amended Credit Agreement
or any other Loan Document is true and correct in all material respects (or in all respects if otherwise qualified by materiality after
giving effect to such qualification) with the same effect as if then made (except to the extent stated to relate to a specific earlier
date, in which case such representations and warranties shall be true and correct in all material respects (or in all respects if otherwise
qualified by materiality after giving effect to such qualification) as of such earlier date); and
(d) no
Default or Event of Default (other than the Specified Defaults) has occurred and is continuing or would result from giving effect to this
Agreement.
section
4. Conditions to Effectiveness. This Agreement shall become effective on and as of
the first Business Day (the “Amendment No. 1 Effective Date”) on which each of the following conditions have been
satisfied:
(a) Agent
shall have received a copy of this Agreement, duly executed by the Borrower, each other Loan Party, the Administrative Agent and the Lenders
constituting the Requisite Lenders;
(b) The
Borrower shall have paid, or caused to be paid, to the Administrative Agent (for the pro rata account of each Lender signatory hereto
upon the occurrence of the Amendment No. 1 Effective Date) a consent fee in an aggregate amount equal to $4,500,000.00, in connection
with this Agreement;
(c) The
Borrower shall have paid in full all past-due accrued and unpaid interest under the Credit Agreement, including, without limitation, interest
accrued at the Post-Default rate from and after the first date of a Specified Default; and
(d) the
Borrower shall have paid all reasonable and documented out-of-pocket costs and expenses of the Administrative Agent incurred by it or
its Affiliates in connection with this Agreement and the Amended Credit Agreement, in each case, (i) in accordance with (and to the
extent required by) Section 12.2 of the Amended Credit Agreement, (ii) to the extent invoiced at least three (3) Business
Days prior to the Amendment No. 1 Effective Date and (iii) subject to the terms and conditions of the order entered by the United
States Bankruptcy Court for the Southern District of Texas on February 4, 2026 (Docket No. 32, 150) on a final basis under the
Bankruptcy Code (as defined therein), authorizing the Debtors (as defined therein) to use cash collateral and obtain secured postpetition
financing, granting liens and superpriority administrative claims, providing adequate protection and granting related relief.
The Administrative Agent shall
notify the Borrower and the Lenders of the occurrence of the Amendment No. 1 Effective Date in writing promptly upon such conditions
precedent being satisfied (or waived), and such notice shall be conclusive and binding evidence of the occurrence thereof.
section
5. Counterparts; Severability; Entire Agreement; Successors; Assigns; Governing Law; Forum
Selection; Consent to Jurisdiction; Waiver of Jury Trial. Sections 12.4, 12.5, 12.11, 12.12, 12.13 and 12.17 of the Amended Credit
Agreement shall apply mutatis mutandis to this Agreement.
section
6. Loan Document. This Agreement shall constitute a Loan Document.
2
section
7. Effect; Ratification.
(a) Except
as specifically set forth in this Agreement, (i) the Credit Agreement and the other Loan Documents shall remain in full force and
effect and are hereby ratified and confirmed and (ii) the execution, delivery and effectiveness of this Agreement shall not operate
as a waiver of, or preclude, any right, remedy, power or privilege of Agent or any Lender under the Amended Credit Agreement or any other
Loan Document, nor constitute an amendment, waiver or modification of any provision of the Credit Agreement, the Amended Credit Agreement
or any other Loan Document.
(b) Upon
the effectiveness of this Agreement, each reference in the Credit Agreement and the other Loan Documents referenced herein to “this
Agreement”, “hereunder”, “hereof”, “herein” or words of similar import shall mean and be a reference
to the Amended Credit Agreement and such other Loan Documents as modified hereby.
(c) Each
of the Loan Parties party hereto acknowledges and agrees that the amendments set forth herein are effective solely for the purposes set
forth herein and that the execution and delivery by Agent and the Lenders of this Agreement shall not be deemed (i) except as expressly
provided in this Agreement, to be a consent to any amendment, waiver or modification of any term or condition of the Amended Credit Agreement
or of any other Loan Document or (ii) to create a course of dealing or otherwise obligate Agent or Lenders to forbear, waive, consent
or execute similar amendments under the same or similar circumstances in the future.
section
8. Reaffirmation. Each of the Loan Parties as debtor, grantor, pledgor, guarantor,
assignor, or in any other similar capacity in which such Loan Party grants liens or security interests in its property or otherwise acts
as accommodation party, guarantor or indemnitor, as the case may be, hereby (i) ratifies and reaffirms all of its payment and performance
obligations, contingent or otherwise, under each of the Loan Documents to which it is a party (after giving effect hereto) and (ii) to
the extent such Loan Party granted liens on or security interests in any of its property pursuant to any such Loan Document as security
for or otherwise guaranteed the Borrower’s Obligations under or with respect to the Loan Documents, ratifies and reaffirms such
guarantee and grant of security interests and liens and confirms and agrees that such security interests and liens hereafter continue
to secure all of the Obligations. Each of the Loan Parties hereby consents to this Agreement and acknowledges that each of the Amended
Credit Agreement and the other Loan Documents (as modified hereby) remains in full force and effect and is hereby ratified and reaffirmed.
The execution of this Agreement shall not serve to effect a novation of the Obligations.
[Signature pages follow]
3
IN WITNESS WHEREOF, the parties
hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.
OPI WF BORROWER LLC
By:
/s/ Brian E. Donley
Name:
Brian E. Donley
Title:
Chief Financial Officer and Treasurer
OPI WF HOLDING LLC
By:
/s/ Brian E. Donley
Name:
Brian E. Donley
Title:
Chief Financial Officer and Treasurer
OFFICE PROPERTIES INCOME TRUST
By:
/s/ Brian E. Donley
Name:
Brian E. Donley
Title:
Chief Financial Officer and Treasurer
440 FIRST STREET LLC OPI WF OWNER LLC
By:
/s/ Brian E. Donley
Name:
Brian E. Donley
Title:
Chief Financial Officer and Treasurer
[Signature Page to Waiver and Amendment No. 1
to Second Amended and Restated Credit Agreement]
WILMINGTON SAVINGS FUND SOCIETY, FSB, as Administrative
Agent
By:
/s/ Anita Woolery
Name:
Anita Woolery
Title:
Vice President
[Signature Page to Waiver and Amendment No. 1
to Second Amended and Restated Credit Agreement]
Name of Institution: WELLS FARGO STRUCTURING SOLUTIONS, SERIES
22 LLC, as a Lender
By:
/s/ Jeff Barnes
Name:
Jeff Barnes
Title:
Director
[Signature Page to Waiver and Amendment No. 1
to Second Amended and Restated Credit Agreement]
SIGNATURE PAGE TO WAIVER AND
AMENDMENT NO.1 TO SECOND AMENDED
AND RESTATED CREDIT AGREEMENT, AMONG
OPI WF BORROWER LLC, EACH LENDER PARTY
HERETO AND WILMINGTON SAVINGS FUND
SOCIETY, FSB, AS ADMINISTRATIVE AGENT
Wells Fargo Structuring Solutions Series Credit
Products
LLC,
as a Lender
By:
/s/ Manish Garg
Name: Manish Garg
Title: Executive Director
[Signature Page to Waiver and Amendment No. 1
to Second Amended and Restated Credit Agreement]
SIGNATURE PAGE TO WAIVER AND AMENDMENT NO.1 TO SECOND
AMENDED AND RESTATED CREDIT AGREEMENT, AMONG OPI WF
BORROWER LLC, EACH LENDER PARTY HERETO AND WILMINGTON SAVINGS
FUND SOCIETY, FSB, AS ADMINISTRATIVE AGENT
JPMorgan Chase Bank, N.A.,
as a Lender
By:
/s/ Nikki Seegmuller
Name: Nikki Seegmuller
Title: Vice President
[Signature Page to Waiver and Amendment No. 1
to Second Amended and Restated Credit Agreement]
SIGNATURE PAGE TO WAIVER AND
AMENDMENT NO.1 TO SECOND AMENDED
AND RESTATED CREDIT AGREEMENT, AMONG
OPI WF BORROWER LLC, EACH LENDER PARTY
HERETO AND WILMINGTON SAVINGS FUND
SOCIETY, FSB, AS ADMINISTRATIVE AGENT
OWS CREDIT OPPORTUNITY I, LLC
By: OWS Credit Opportunity Master
Fund, Ltd., its managing member
By:
/s/
Kurt Locher
Name: Kurt Locher
Title: Director
ONE WILLIAM STREET CAPITAL MASTER
FUND, LTD.
By:
/s/ Kurt Locher
Name: Kurt Locher
Title: Director
OWS ABS MASTER FUND II, L.P.
By: OWS Capital Partners GP VI, LLC,
its general partner
By:
/s/ Kurt Locher
Name: Kurt Locher
Title: Authorized Officer
OWS ABS IV, L.P.
By: OWS Capital Partners GP VIII,
LLC, its general partner
By:
/s/ Kurt Locher
Name: Kurt Locher
Title: Authorized Officer
[Signature Page to Waiver and Amendment No. 1
to Second Amended and Restated Credit Agreement]
SIGNATURE PAGE TO WAIVER AND
AMENDMENT NO.1 TO SECOND AMENDED
AND RESTATED CREDIT AGREEMENT, AMONG
OPI WF BORROWER LLC, EACH LENDER PARTY
HERETO AND WILMINGTON SAVINGS FUND
SOCIETY, FSB, AS ADMINISTRATIVE AGENT
Name of Institution:
Redwood Opportunity Master Fund, LTD
By: Redwood Capital Management, LLC,
its investment manager
as a Lender
By:
/s/ Ruben Kliksberg
Name: Ruben Kliksberg
Title: CEO
[Signature Page to Waiver and Amendment No. 1
to Second Amended and Restated Credit Agreement]
SIGNATURE PAGE TO WAIVER AND
AMENDMENT NO.1 TO SECOND AMENDED
AND RESTATED CREDIT AGREEMENT, AMONG
OPI WF BORROWER LLC, EACH LENDER PARTY
HERETO AND WILMINGTON SAVINGS FUND
SOCIETY, FSB, AS ADMINISTRATIVE AGENT
Name of Institution:
Redwood Master Fund, LTD
By: Redwood Capital Management, LLC,
its investment manager
as a Lender
By:
/s/ Ruben Kliksberg
Name: Ruben Kliksberg
Title: CEO
[Signature
Page to Waiver and Amendment No. 1 to Second Amended and Restated Credit Agreement]
SIGNATURE PAGE TO WAIVER AND
AMENDMENT NO.1 TO SECOND AMENDED
AND RESTATED CREDIT AGREEMENT, AMONG
OPI WF BORROWER LLC, EACH LENDER PARTY
HERETO AND WILMINGTON SAVINGS FUND
SOCIETY, FSB, AS ADMINISTRATIVE AGENT
Name of Institution:
Redwood Drawdown Master Fund III,
LP
By: Redwood Capital Management, LLC,
its investment manager
as a Lender
By:
/s/ Ruben Kliksberg
Name: Ruben Kliksberg
Title: CEO
[Signature Page to Waiver and Amendment No. 1
to Second Amended and Restated Credit Agreement]
EXHIBIT A
Amended Credit Agreement
[See attached.]
Term Loan Number/CUSIP Number:
Revolving Credit Loan Number/CUSIP Number:
EXECUTION
VERSION
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of January 29, 2024
by and among
OPI WF BORROWER LLC,
as Borrower,
OPI WF HOLDING LLC,
as Holdings,
OFFICE PROPERTIES INCOME TRUST,
as Parent,
THE FINANCIAL INSTITUTIONS PARTY HERETO
AND THEIR ASSIGNEES UNDER SECTION 12.5,
as Lenders,
WELLS
FARGO BANK, NATIONAL ASSOCIATION
WILMINGTON
SAVINGS FUND SOCIETY, FSB,
as Administrative Agent,
WELLS FARGO SECURITIES, LLC,
CITIBANK, N.A.,
and
BOFA SECURITIES, INC.,
as Joint Lead Arrangers
and
Joint Lead Bookrunners,
CITIBANK, N.A.
and
BANK OF AMERICA, N.A.,
and
as Syndication Agents
PNC BANK, NATIONAL ASSOCIATION, REGIONS BANK, MIZUHO
BANK, LTD., U.S. BANK NATIONAL ASSOCIATION, SUMITOMO MITSUI BANKING CORPORATION and ROYAL BANK OF CANADA,
as Documentation Agents
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS
1
Section 1.1.
Definitions
1
Section 1.2.
General; References to Eastern Time
4344
Section 1.3.
Rates
4445
Section 1.4.
Divisions
46
ARTICLE II. CREDIT FACILITY
46
Section 2.1.
Revolving Loans
46
Section 2.2.
Term Loans
4648
Section 2.3.
[Reserved]
4748
Section 2.4.
[Reserved]
4748
Section 2.5.
Rates and Payment of Interest on Loans
4748
Section 2.6.
Number of Interest Periods
4849
Section 2.7.
Repayment of Loans
49
Section 2.8.
Prepayments
50
Section 2.9.
Continuation
5051
Section 2.10.
Conversion
52
Section 2.11.
Notes
5152
Section 2.12.
Voluntary Reductions of the Revolving Commitment
53
Section 2.13.
Extension of Revolving Credit Termination Date[Reserved]
5254
Section 2.14.
[Reserved]
5354
Section 2.15.
Amount Limitations
5354
Section 2.16.
[Reserved]
5354
Section 2.17.
Funds Transfer Disbursements
5354
Section 2.18.
Effective Date Transactions
5355
ARTICLE III. PAYMENTS, FEES AND OTHER GENERAL PROVISIONS
5455
Section 3.1.
Payments
5455
Section 3.2.
Pro Rata Treatment
5456
Section 3.3.
Sharing of Payments, Etc.
5557
Section 3.4.
Several Obligations
5657
Section 3.5.
Fees
5657
Section 3.6.
Computations
5758
Section 3.7.
Usury
5758
Section 3.8.
Statements of Account
5759
Section 3.9.
Defaulting Lenders
5859
Section 3.10.
Taxes
5961
ARTICLE IV. YIELD PROTECTION, ETC.
6465
Section 4.1.
Additional Costs; Capital Adequacy
6465
Section 4.2.
Changed Circumstances
6567
Section 4.3.
Illegality
6869
Section 4.4.
Compensation
6870
Section 4.5.
[Reserved]
6970
Section 4.6.
Affected Lenders
6970
Section 4.7.
Change of Lending Office
6971
ARTICLE V. CONDITIONS PRECEDENT
7071
Section 5.1.
Initial Conditions Precedent
7071
Section 5.2.
Conditions Precedent to All Loans
7374
Section 5.3.
Conditions Subsequent to Certain Credit Events
7375
ARTICLE VI. REPRESENTATIONS AND WARRANTIES
7475
Section 6.1.
Representations and Warranties of Parent Loan Parties
7475
Section 6.2.
Representations and Warranties of Holdings and Borrower
7980
Section 6.3.
Survival of Representations and Warranties, Etc.
8485
ARTICLE VII. AFFIRMATIVE COVENANTS
8586
Section 7.1.
Preservation of Existence and Similar Matters
8586
Section 7.2.
Compliance with Applicable Law and Material Contracts
8586
Section 7.3.
Maintenance of Property
8587
Section 7.4.
Conduct of Business
8687
Section 7.5.
Insurance
8687
Section 7.6.
Payment of Taxes and Claims
8788
Section 7.7.
Books and Records; Inspections
8788
Section 7.8.
Use of Proceeds
8789
Section 7.9.
Environmental Matters
8789
Section 7.10.
Further Assurances
8889
Section 7.11.
REIT Status
8889
Section 7.12.
Exchange ListingReserved
8890
Section 7.13.
Guarantors
8890
Section 7.14.
Equity Pledges
9091
Section 7.15.
Collateral Properties
9192
Section 7.16.
SPE Requirements
9697
Section 7.17.
Most Favored Lender
9697
ARTICLE VIII. INFORMATION
9698
Section 8.1.
Quarterly Financial Statements
9698
Section 8.2.
Year-End Statements
9798
Section 8.3.
Compliance Certificate and Related Reports
9798
Section 8.4.
Other Information
9899
Section 8.5.
Electronic Delivery of Certain Information
100101
Section 8.6.
Public/Private Information
101102
Section 8.7.
USA Patriot Act Notice; Compliance
101102
ii
ARTICLE IX. NEGATIVE COVENANTS
101102
Section 9.1.
Financial Covenants
101102
Section 9.2.
Negative Pledge
103104
Section 9.3.
Restrictions on Intercompany Transfers
103105
Section 9.4.
Merger, Consolidation, Sales of Assets and Other Arrangements
104105
Section 9.5.
Plans
105106
Section 9.6.
Fiscal Year
105106
Section 9.7.
Modifications of Organizational Documents and Other Contracts
105106
Section 9.8.
Transactions with Affiliates
105107
Section 9.9.
Environmental Matters
106107
Section 9.10.
Derivatives Contracts
106107
Section 9.11.
Use of Proceeds
106107
Section 9.12.
Collateral Property Accounts
107108
Section 9.13.
Indebtedness
107109
Section 9.14.
Limited Activities of Borrower, Holdings and Subsidiary Owners
108110
ARTICLE X. DEFAULT
109111
Section 10.1.
Events of Default
109111
Section 10.2.
Remedies Upon Event of Default
114115
Section 10.3.
Remedies Upon Default
115117
Section 10.4.
Marshaling; Payments Set Aside
115117
Section 10.5.
Allocation of Proceeds
115117
Section 10.6.
Rescission of Acceleration by Requisite Lenders
116118
Section 10.7.
Performance by Administrative Agent
116118
Section 10.8.
Rights Cumulative
117118
ARTICLE XI. THE ADMINISTRATIVE AGENT
117119
Section 11.1.
Appointment and Authorization
117119
Section 11.2.
Administrative Agent as Lender
118120
Section 11.3.
Approvals of Lenders
119121
Section 11.4.
Notice of Events of Default
119121
Section 11.5.
Administrative Agent’s Reliance
120122
Section 11.6.
Indemnification of Administrative Agent
120122
Section 11.7.
Lender Credit Decision, Etc.
121123
Section 11.8.
Successor Administrative Agent
122124
Section 11.9.
Titled Agents
123125
Section 11.10.
Collateral Matters; Protective Advances
123125
Section 11.11.
Post-Foreclosure Plans
125127
Section 11.12.
Flood Laws
126128
Section 11.13.
No Set Off
126128
Section 11.14.
Erroneous Payments
126128
Section 11.15.
Certain ERISA Matters
128130
iii
ARTICLE XII. MISCELLANEOUS
130131
Section 12.1.
Notices
130131
Section 12.2.
Expenses
131133
Section 12.3.
Setoff
132134
Section 12.4.
Litigation; Jurisdiction; Other Matters; Waivers
133134
Section 12.5.
Successors and Assigns
134136
Section 12.6.
Amendments and Waivers
138140
Section 12.7.
Nonliability of Administrative Agent and Lenders
142144
Section 12.8.
Confidentiality
143145
Section 12.9.
Indemnification
144146
Section 12.10.
Termination; Survival
146147
Section 12.11.
Severability of Provisions
146148
Section 12.12.
GOVERNING LAW
146148
Section 12.13.
Counterparts
146148
Section 12.14.
Obligations with Respect to Loan Parties
147149
Section 12.15.
Independence of Covenants
147149
Section 12.16.
Limitation of Liability
148149
Section 12.17.
Entire Agreement
148150
Section 12.18.
Construction
148150
Section 12.19.
Headings
148150
Section 12.20.
LIABILITY OF TRUSTEES, ETC.
148150
Section 12.21.
Acknowledgement and Consent to Bail-In of Affected Financial Institutions
149151
Section 12.22.
No Novation; Successor Borrower
149151
Section 12.23.
Acknowledgement Regarding Any Supported QFCs
150152
Section 12.24.
Stamp, Intangible and Recording Taxes
151153
iv
SCHEDULE I
Commitments
SCHEDULE 1.1(a)
Loan Parties
SCHEDULE 1.1(b)
Initial Collateral Properties
SCHEDULE 1.1(c)
Subsidiary Owners
SCHEDULE 5.1
Organizational Structure
EXHIBIT A
Form of Assignment and Assumption Agreement
EXHIBIT B-1
Form of Subsidiary Guaranty
EXHIBIT B-2
Form of Parent Guaranty
EXHIBIT B-3
Form of Holdings Guaranty
EXHIBIT C
Form of Notice of Borrowing
EXHIBIT D
Form of Notice of Continuation
EXHIBIT E
Form of Notice of Conversion
EXHIBIT F
[Reserved]
EXHIBIT G
Form of Revolving Note
EXHIBIT H
Form of Term Note
EXHIBIT I
Form of Junior Lien Intercreditor Agreement
EXHIBIT J
Form of Compliance Certificate
EXHIBIT K
Form of Disbursement Instruction Agreement
EXHIBITS L 1-4
Forms of U.S. Tax Compliance Certificates
EXHIBIT M-1
Form of Pledge Agreement
EXHIBIT M-2
Form of Holdings Pledge Agreement
ANNEX I
Collateral Property Diligence
ANNEX II
SPE Requirements
THIS SECOND AMENDED AND RESTATED
CREDIT AGREEMENT (this “Agreement”), dated
as of January 29, 2024 (the “Agreement Date”), by and among OPI WF BORROWER LLC, a Delaware limited liability
company (“OPI WF Borrower” or the “Borrower”), OPI WF HOLDING LLC, a Delaware limited liability
company (“Holdings”), OFFICE PROPERTIES INCOME TRUST, a real estate investment trust organized under the laws
of the State of Maryland (“Parent”), each of the financial institutions initially a signatory hereto together with
their successors and assignees under Section 12.5 (the “Lenders”), and WELLS
FARGO BANK, NATIONAL ASSOCIATIONWILMINGTON
SAVINGS FUND SOCIETY, FSB, as successor
Administrative Agent (the “Administrative Agent”), with each of WELLS FARGO SECURITIES, LLC, CITIBANK, N.A. and BOFA
SECURITIES, INC., as Joint Lead Arrangers and Joint Bookrunners (each a “Lead Arranger”), each of CITIBANK, N.A.
and BANK OF AMERICA, N.A., as Syndication Agents (each a “Syndication Agent”), and each of PNC BANK, NATIONAL ASSOCIATION,
REGIONS BANK, MIZUHO BANK, LTD., U.S. BANK NATIONAL ASSOCIATION, SUMITOMO MITSUI BANKING CORPORATION and ROYAL BANK OF CANADA, as
Documentation Agents (each a “Documentation Agent”).
WHEREAS, certain of the Lenders
and other financial institutions have made available to the Outgoing Borrower (defined below) a revolving credit facility in an aggregate
initial amount of $750,000,000, which includes a $75,000,000 swingline subfacility and a $50,000,000 letter of credit subfacility, on
the terms and conditions contained in that certain Amended and Restated Credit Agreement, dated as of December 13, 2018 (as amended
and in effect immediately prior to the date hereof, the “Existing Credit Agreement”), by and among Parent, as “Borrower”
under and as defined therein (in such capacity, the “Outgoing Borrower”), such Lenders, certain other financial institutions,
the Administrative Agent and the other parties thereto; and WHEREAS, the Administrative Agent and the Lenders desire to amend and restate
the terms of the Existing Credit Agreement on the terms and conditions contained herein.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, the parties hereto agree that
the Existing Credit Agreement is amended and restated in its entirety and agree as follows:
Article I.
DEFINITIONS
Section 1.1. Definitions.
In addition to terms defined
elsewhere herein, the following terms shall have the following meanings for the purposes of this Agreement:
“2027
Notes” means the notes in an aggregate principal amount of $385,000,000 issued (or to be issued) by a newly formed special purpose
vehicle subsidiary of Parent on the effective date of the Fourth Amended Joint Chapter 11 Plan of Reorganization of Office Properties
Income Trust and its Debtor Affiliates [Docket No. 1223] (as may be further amended, supplemented, or modified from time to time),
and all indentures, agreements and other documentation governing or evidencing the foregoing, in each case, as amended, restated, amended
and restated, supplemented or otherwise modified from time to time in accordance with the terms thereof.
“Accession Agreement”
means an Accession Agreement substantially in the form of Annex I to the Subsidiary Guaranty.
“Acquired
Debt” means Debt of a Person (i) existing at the time such Person becomes a Subsidiary or (ii) assumed in connection with
the acquisition of assets from such Person, in each case, other than Debt incurred in connection with, or in contemplation of, such Person
becoming a Subsidiary or such acquisition. Acquired Debt is deemed to be incurred on the date of the related acquisition of assets from
any Person or the date the acquired Person becomes a Subsidiary.
“Additional Collateral
Property Pledged Interests” has the meaning given that term in Section 7.14(b)(iii).
“Additional Subsidiary
Owner” has the meaning given that term in Section 7.15(a)(ii).
“Adjusted Daily
Simple SOFR” means, for any day (a “Simple SOFR Rate Day”), a rate per annum equal to the greater of (a) the
sum of (i) SOFR for the day (such day, a “SOFR Determination Day”) that is five (5) U.S. Government Securities
Business Days prior to (A) if such Simple SOFR Rate Day is a U.S. Government Securities Business Day, such Simple SOFR Rate Day
or (B) if such Simple SOFR Rate Day is not a U.S. Government Securities Business Day, the U.S. Government Securities Business Day
immediately preceding such Simple SOFR Rate Day, in each case, as such SOFR is published by the SOFR Administrator on the SOFR Administrator’s
Website; provided that if by 5:00 p.m. on the second (2nd) U.S. Government
Securities Business Day immediately following any SOFR Determination Day, SOFR in respect of such SOFR Determination Day has not been
published on the SOFR Administrator’s Website and a Benchmark Replacement Date with respect to Adjusted Daily Simple SOFR has not
occurred, then SOFR for such SOFR Determination Day will be SOFR as published in respect of the first preceding U.S. Government Securities
Business Day for which such SOFR was published on the SOFR Administrator’s Website; provided further that SOFR
as determined pursuant to this proviso shall be utilized for purposes of calculation of Adjusted Daily Simple SOFR for no more than three
(3) consecutive Simple SOFR Rate Days and (ii) the Simple SOFR Adjustment and (b) the Floor. Any change in Adjusted Daily
Simple SOFR due to a change in SOFR shall be effective from and including the effective date of such change in SOFR without notice to
the Borrower.
“Adjusted Term SOFR”
means, for purposes of any calculation, the rate per annum equal to (a) Term SOFR for such calculation plus (b) the Term
SOFR Adjustment; provided that if Adjusted Term SOFR as so determined shall ever be less than the Floor, then Adjusted Term SOFR
shall be deemed to be the Floor.
“Adjusted
Total Assets” means, as of any date of calculation, the sum of (without duplication) (A) the Total Assets as of the end of
the fiscal quarter covered by Parent’s Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be,
most recently filed with the Securities and Exchange Commission (or, if such filing is not permitted or required under the Exchange Act,
with the “Trustee” as defined in the applicable supplemental indenture) (such quarter, the “Latest Completed Fiscal
Quarter”) prior to the incurrence of such additional Debt and (B) the purchase price of any real estate assets or mortgages
receivable acquired, and the amount of any securities offering proceeds received (to the extent that such proceeds were not used to acquire
real estate assets or mortgages receivable or used to reduce Debt), by Parent or any Subsidiary thereof since the end of such Latest Completed
Fiscal Quarter, including those proceeds obtained in connection with the incurrence of such additional Debt.
2
“Administrative Agent”
means Wells Fargo Bank, National AssociationWilmington
Savings Fund Society, FSB as contractual representative of the Lenders under this Agreement, or any successor Administrative
Agent appointed pursuant to Section 11.8.
“Administrative Questionnaire”
means the Administrative Questionnaire completed by each Lender and delivered to the Administrative Agent in a form supplied by the Administrative
Agent to the Lenders from time to time.
“Affected Collateral
Property” means each Collateral Property for which the applicable Title Policy therefor does not contain a revolving credit
endorsement acceptable to the Administrative Agent.
“Affected Financial
Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affected Lender”
has the meaning given that term in Section 4.6.
“Affiliate”
means with respect to a specified Person, another Person that directly or indirectly through one or more intermediaries, Controls, or
is Controlled by, or is under common Control with the Person specified; provided that no Person shall be an Affiliate of the Parent, the
Borrower or any other Subsidiary of the Parent solely as a result of such Person owning Equity Interests of Parent constituting less than
20% of the aggregate voting power of Parent. In no event shall the Administrative Agent or any Lender be deemed to be an Affiliate of
the Parent, the Borrower or any other Subsidiary of the Parent.
“Agreement”
means this Second Amended and Restated Credit Agreement, dated as of January 29, 2024, by and among the Borrower, the other Loan
Parties party hereto, the Lenders party hereto, and the Administrative Agent, as amended by Amendment No. 1 and in effect from and
after the Amendment No. 1 Effective Date.
“Agreement Date”
means January 29, 2024.
“Agreement Exiting
Lender” has the meaning given that term in Section 12.6(e).
“Amended Agreement”
has the meaning given that term in Section 12.6(e).
“Annual
Debt Service” as of any date means the maximum amount which is expensed in any 12-month period for interest on Debt of Parent and
its Subsidiaries, excluding amortization of debt discounts and deferred financing costs
“Amendment
No. 1” means that certain Waiver and Amendment No. 1 to Second Amended and Restated Credit Agreement, dated as of June 17,
2026, by and among the Borrower, the other Loan Parties party thereto, the Lenders party thereto, and the Administrative Agent.
3
“Amendment
No. 1 Effective Date” has the meaning given that term in Amendment No. 1.
“Anti-Corruption
Laws” means (a) the U.S. Foreign Corrupt Practices Act of 1977, as amended; (b) the U.K. Bribery Act 2010, as amended,
and (c) any other anti-bribery or anti-corruption laws, regulations or ordinances in any jurisdiction in which the Borrower or any
member of the Borrowing Group is located or doing business.
“Anti-Money Laundering
Laws” means applicable laws or regulations in any jurisdiction in which the Borrower or any member of the Borrowing Group is
located or doing business that relates to money laundering, any predicate crime to money laundering, or any financial record keeping and
reporting requirements related thereto.
“Applicable Law”
means all international, foreign, federal, state and local statutes, treaties, rules, guidelines,
regulations, ordinances, codes, executive orders, and administrative or judicial precedents or authorities, including
the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration
thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements
with, any Governmental Authority, in each case whether or not having the force of law.
“Applicable Margin”
means:
(a) prior
to and including December 31, 2026, (i) in the case of Base Rate Loans, 2.504.50%,
and (ii) in the case of SOFR Loans, 3.505.50%;
and
(b) from
and after January 1, 2027, (i) in the case of Base Rate Loans, 6.50%, and (ii) in the case of SOFR Loans, 7.50%.
“Appraisal”
means, with respect to any Property, an M.A.I. appraisal commissioned pursuant to this Agreement by and addressed to the Administrative
Agent (reasonably acceptable to the Administrative Agent as to form, substance and appraisal date), prepared by a professional appraiser
reasonably acceptable to the Administrative Agent, having at least the minimum qualifications required under Applicable Law governing
the Administrative Agent and the Lenders, including, without limitation, FIRREA, and determining the “as-is” market value
of such Property as between a willing buyer and a willing seller.
“Appraised Value”
means, with respect to any Property, the “as-is” market value of such Property as reflected in the most recent Appraisal of
such Property accepted by the Administrative Agent, as the same may have been
adjusted by the Administrative Agent based upon its internal review of such Appraisal which is based on criteria and factors then generally
used and considered by the Administrative Agent, which review shall be conducted prior to acceptance of such Appraisal
by the Administrative Agent.
“Approved Budget”
means the forecast of the Borrower substantially in the form delivered to, and approved by, the Requisite Lenders on or prior to the Effective
Date in connection with the transactions contemplated hereby, as adjusted from time to time by the Borrower and approved by the Administrative
Agent.
4
“Approved Fund”
means any Fund that is administered, managed or underwritten by (a) a Lender, (b) an Affiliate of a Lender, or (c) an entity
or an Affiliate of any entity that administers or manages a Lender.
“Approved Leasing
Costs” means actual out-of-pocket Tenant Improvement Costs and Leasing Commissions incurred by a Subsidiary Owner in leasing
space at a Collateral Property pursuant to a Lease, in each case, to the extent such expenses are on market terms and conditions or on
such other terms and conditions as are approved by the Administrative Agent.
“Assignment and Assumption”
means an Assignment and Assumption Agreement entered into between a Lender and an Eligible Assignee (with the consent of any party whose
consent is required by Section 12.5) and accepted by the Administrative Agent, substantially in the form of Exhibit A
or any other form approved by the Administrative Agent.
“Available Tenor”
means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (a) if such Benchmark is a
term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an interest period
pursuant to this Agreement or (b) otherwise, any payment period for interest calculated with reference to such Benchmark (or component
thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark,
in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the
definition of “Interest Period” pursuant to Section 4.2(c)(iv).
“Bail-In Action”
means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected
Financial Institution.
“Bail-In Legislation”
means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament
and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from
time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of
the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United
Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other
than through liquidation, administration or other insolvency proceedings).
“Bankruptcy
Cases” means the cases under the Bankruptcy Code commenced by the Parent and certain of its controlled subsidiaries, as debtors
and debtors-in-possession in the United States Bankruptcy Court for the Southern District of Texas on October 30, 2025.
“Bankruptcy Code”
means the Bankruptcy Code of 1978, as amended.
“Base Rate”
means, at any time, the highest of (a) the Prime Rate, (b) the Federal Funds Rate plus 0.50% and (c) the Adjusted Daily
Simple SOFR in effect on such day plus 1.00%; each change in the Base Rate shall take effect simultaneously with the corresponding change
or changes in the Prime Rate, the Federal Funds Rate or Adjusted Daily Simple SOFR, as applicable (provided that clause (c) shall
not be applicable during any period in which Adjusted Daily Simple SOFR is unavailable or unascertainable).
5
“Base Rate Loan”
means a Loan (or any portion thereof) bearing interest at a rate based on the Base Rate.
“Benchmark”
means, initially, Adjusted Daily Simple SOFR or Adjusted Term SOFR, as applicable; provided that if a Benchmark Transition Event has occurred
with respect to Adjusted Daily Simple SOFR or Adjusted Term SOFR, as applicable, or the applicable then-current Benchmark, then “Benchmark”
means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant
to Section 4.2(c)(i).
“Benchmark Replacement”
means, with respect to any Benchmark Transition Event for any then-current Benchmark, the sum of: (a) the alternate benchmark rate
that has been selected by the Administrative Agent and the Borrower as the replacement for such Benchmark giving due consideration to
(i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant
Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to
such then-current Benchmark for Dollar-denominated syndicated credit facilities and (b) the related Benchmark Replacement Adjustment;
provided that, if such Benchmark Replacement as so determined would be less than the Floor, such Benchmark Replacement will be deemed
to be the Floor for the purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement
Adjustment” means, with respect to any replacement of any then-current Benchmark with an Unadjusted Benchmark Replacement for
any applicable Available Tenor (if applicable), the spread adjustment, or method for calculating or determining such spread adjustment,
(which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrower giving due consideration
to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for
the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any
evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread
adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated
credit facilities.
“Benchmark Replacement
Date” means the earliest to occur of the following events with respect to any then-current Benchmark:
(a) in
the case of clause (a) or (b) of the definition of “Benchmark Transition Event,” the later of (i) the
date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such
Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors
(if applicable) of such Benchmark (or such component thereof); or
6
(b) in
the case of clause (c) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark
(or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator
of such Benchmark (or such component thereof) to be non-representative; provided that such non-representativeness will be determined
by reference to the most recent statement or publication referenced in such clause (c) and even if any Available Tenor (if applicable)
of such Benchmark (or such component thereof) continues to be provided on such date.
For the avoidance of doubt,
if the applicable then-current Benchmark has any Available Tenors, the “Benchmark Replacement Date” will be deemed
to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event
or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the
calculation thereof).
“Benchmark Transition
Event” means the occurrence of one or more of the following events with respect to any then-current Benchmark:
(a) a
public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used
in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors (if applicable)
of such Benchmark (or such component thereof), permanently or indefinitely; provided that, at the time of such statement or publication,
there is no successor administrator that will continue to provide any Available Tenor (if applicable) of such Benchmark (or such component
thereof);
(b) a
public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published
component used in the calculation thereof), the FRB, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over
the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark
(or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark
(or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all
Available Tenors (if applicable) of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the
time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor (if applicable)
of such Benchmark (or such component thereof); or
(c) a
public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published
component used in the calculation thereof) announcing that all Available Tenors (if applicable) of such Benchmark (or such component thereof)
are not, or as of a specified future date will not be, representative.
For the avoidance of doubt,
if the applicable then-current Benchmark has any Available Tenors, a “Benchmark Transition Event” will be deemed to
have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect
to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition
Start Date” means, in the case of a Benchmark Transition Event, the earlier of (a) the applicable Benchmark Replacement
Date and (b) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th
day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such
prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication).
7
“Benchmark Unavailability
Period” means, with respect to any then-current Benchmark, the period (if any) (x) beginning at the time that a Benchmark
Replacement Date with respect to such Benchmark has occurred if, at such time, no Benchmark Replacement has replaced such Benchmark for
all purposes hereunder and under any Loan Document in accordance with Section 4.2(c)(i) and (y) ending at the time
that a Benchmark Replacement has replaced such Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 4.2(c)(i).
“Beneficial Ownership
Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
“Beneficial Ownership
Regulation” means 31 CFR § 1010.230.
“Benefit Arrangement”
means at any time an employee benefit plan within the meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer
Plan and which is maintained or otherwise contributed to by any member of the ERISA Group.
“Benefit Plan”
means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan”
as defined in and subject to Section 4975 of the Internal Revenue Code or (c) any Person whose assets include (for purposes
of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Internal Revenue Code) the assets
of any such “employee benefit plan” or “plan”.
“BHC Act Affiliate”
of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of
such party.
“Borrower”
has the meaning set forth in the introductory paragraph hereof and shall include the Borrower’s permitted successors and permitted
assigns.
“Borrower Assumption”
has the meaning given that term in Section 12.22(c).
“Borrower Information”
has the meaning given that term in Section 2.5(c).
“Borrower Letter”
means that certain letter dated as of even date herewith from the Borrower to the Administrative Agent and the Lenders.
“Borrower Release”
has the meaning given that term in Section 12.22(c).
“Borrowing
Group” means, wherever located, (a) Parent, Holdings and the Borrower, (b) any Affiliate or Subsidiary of Parent,
(c) each other Loan Party, and (d) any officer, director or agent acting on behalf of any of the parties referred to in items
(a) through (c) with respect to the Obligations, this Agreement or any of the other Loan Documents. Solely for purposes of this
definition, no REIT (other than Parent) managed by RMR or any Subsidiary of any such other REIT shall be deemed to be an Affiliate of
Parent.
8
“Business Day”
means any day (other than a Saturday, Sunday or legal holiday) on which banks in New York, New York, are open for the conduct of their
commercial banking business. Unless specifically referenced in this Agreement as a Business Day, all references to “days”
shall be to calendar days.
“Business Management
Agreement” means that certain Second Amended and Restated Business Management Agreement, dated as of June 5, 2015, by and
among Parent and RMR, as amended to date and as may be hereafter amended from time to time subject to the terms of this Agreement.
“Capital Expenditure
Reserves” means, with respect to a Property and for a given period, an amount equal to (a) the aggregate rentable square
footage of all completed space of such Property, multiplied by (b) $0.25; provided, however that no Capital Expenditure Reserves
shall be required with respect to any portion of a Property which is leased to a third party obligated under such lease to pay all capital
expenditures with respect to such portion of such Property.
“Capitalized Lease
Obligation” means obligations under a lease (to pay rent or other amounts under any lease or other arrangement conveying the
right to use property) that are required to be capitalized for financial reporting purposes in accordance with GAAP. The amount of a Capitalized
Lease Obligation is the capitalized amount of such obligation as would be required to be reflected on a balance sheet of the applicable
Person prepared in accordance with GAAP as of the applicable date.
“Capital Stock”
means, with respect to any Person, any capital stock (including preferred stock), shares, interests, participation or other ownership
interests (however designated) of such Person and any rights (other than debt securities convertible into or exchangeable for capital
stock), warrants or options to purchase any thereof.
“Cash”
means Dollars immediately available on the day in question.
9
“Cash Equivalent
Investments” means: (a) securities issued, guaranteed or insured by the United States of America or any of its agencies
with maturities of not more than one year from the date acquired; (b) certificates of deposit with maturities of not more than one
year from the date acquired issued by a United States federal or state chartered commercial bank of recognized standing, or a commercial
bank organized under the laws of any other country which is a member of the Organisation for Economic Cooperation and Development, or
a political subdivision of any such country, acting through a branch or agency, which bank has capital and unimpaired surplus in excess
of $500,000,000 and which bank or its holding company has a short-term commercial paper rating of at least A-2 or the equivalent by S&P
or at least P-2 or the equivalent by Moody’s; (c) reverse repurchase agreements with terms of not more than seven (7) days
from the date acquired, for securities of the type described in clause (a) above and entered into only with commercial banks having
the qualifications described in clause (b) above; (d) commercial paper issued by any Person incorporated under the laws of the
United States of America or any State thereof and rated at least A-2 or the equivalent thereof by S&P or at least P-2 or the equivalent
thereof by Moody’s, in each case with maturities of not more than one year from the date acquired; and (e) investments in money
market funds registered under the Investment Company Act of 1940, as amended, which have net assets of at least $500,000,000 and at least
85% of whose assets consist of securities and other obligations of the type described in clauses (a) through (d) above.
“Cash Equivalents”
means demand deposits, certificates of deposit or repurchase agreements with banks or other financial institutions, marketable obligations
issued or directly and fully guaranteed as to timely payment by the United States of America or any of its agencies or instrumentalities,
or any commercial paper or other obligation rated, at time of purchase, “P-2” (or its equivalent) or better by Moody’s
or “A-2” (or its equivalent) or better by S&P.
“Casualty/Condemnation
Event” means the occurrence of (i) any damage to a Collateral Property, in whole or in part, by fire or other casualty
or (ii) any condemnation of any Collateral Property, in each case, equaling or exceeding twenty percent (20)% of the as-is Appraised
Value of such Property.
“Certificate of Division”
means a certificate, registration statement or any other document required to be filed with any applicable Governmental Authority in order
to legally effectuate a LLC Division (including, without limitation, a certificate of division as described in Section 18-217 of
the Delaware Limited Liability Company Act, as amended from time to time), or a LP Division (including, without limitation, a certificate
of division as described in Section 17-220 of the Delaware Revised Uniform Limited Partnership Act, as amended from time to time).
“CMBS
Loan Agreements” means, collectively: (a) that certain Loan Agreement, dated as of August 8, 2023, by and between JPMorgan
Chase Bank, National Association (“JPM”) as lender, and Echelon Pkwy MS LLC, as borrower; (b) that certain Loan Agreement,
dated as of June 30, 2023, by and between JPM, as lender, and Rio Robles CA LLC, as borrower; (c) that certain Loan Agreement,
dated as of June 23, 2023, by and between JPM, as lender, and Sterling Park LLC, as borrower; (d) that certain Loan Agreement,
dated as of May 25, 2023, by and between JPM, as lender, and 3300 75th Avenue LLC,
as borrower; (e) that certain Loan Agreement, dated as of June 27, 2023, by and between JPM, as lender, and Ewing Boulevard
LLC, as borrower, and (f) that certain Loan Agreement, dated as of September 13, 2023, by and among UBS AG, as lender, and
Clay Ave Waco LLC and Primerica Pkwy GA LLC, collectively, as borrowers; in each case, as amended, restated, amended and restated, supplemented,
or otherwise modified from time to time in accordance with the terms thereof.
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“Collateral”
means any real or personal property directly or indirectly securing any of the Obligations or any other obligation of a Person under or
in respect of any Loan Document and includes, without limitation, all Pledged Interests, all Collateral Property Accounts, all “Property,”
“Improvements,” and “Collateral” (or other similar term) under and as defined in each Security Instrument, all
“Management Agreements” (or other similar term) as defined in any Property Management Contract Assignment, and all other property
subject to a Lien created by a Security Document. For the avoidance of doubt, the Collateral shall not secure any Specified Derivatives
Obligations.
“Collateral Properties”
means, collectively, (i) each Initial Collateral Property and (ii) each other Property added as a Collateral Property from time
to time pursuant to Section 7.15(a). For the avoidance of doubt, other than for purposes of Sections 12.2 and 12.9,
no Property that has been released pursuant to a Property Release in accordance with Section 7.15(b) shall constitute
a Collateral Property.
“Collateral Property
Account” means each deposit account into which any Collateral Property Revenue is maintained or directly deposited by payees.
For the avoidance of doubt, any account (a) that is not related to a Collateral Property and (b) into which any Collateral Property
Revenue is inadvertently or temporarily deposited or maintained for a period not exceeding three (3) Business Days shall not constitute
a Collateral Property Account.
“Collateral Property
Availability” means, as determined with respect to the then Collateral Properties, the lesser of (i) 50% of the as-is Appraised
Value of such Collateral Properties, in the aggregate, and (ii) the aggregate amount of Revolving Commitments and Term Loans that
would result in a Debt Service Coverage Ratio of 1.35 to 1.00. If any Collateral Property shall cease to qualify as such pursuant to Section 7.15(c) or
if the value of any Collateral Property shall otherwise be expressly excluded from the determination of Collateral Property Availability
(or otherwise expressly limited) pursuant to the terms of the Security Instrument encumbering such Property, then, in any such case, the
value of such Property shall be excluded from the calculation of the Collateral Property Availability (or limited as expressly provided
in the provision of the applicable Security Instrument pursuant to which such limitation arises), and the Collateral Property Availability
shall be recalculated immediately upon such exclusion (or limitation, as applicable).
“Collateral Property
Pledged Interests” means, collectively, (i) the Initial Collateral Property Pledged Interests and (ii) any Additional
Collateral Property Pledged Interests.
“Collateral Property
Revenue” has the meaning given that term in Section 9.12.
“Commitment”
means, as to a Lender, such Lender’s Revolving Commitment or such Lender’s Term Loan Commitment, as the context may require.
“Compliance Certificate”
has the meaning given that term in Section 8.3.
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“Conforming Changes”
means, with respect to either the use or administration of an initial Benchmark or the use, administration, adoption or implementation
of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base
Rate,” the definition of “Business Day,” the definition of “U.S. Government Securities Business
Day,” the definition of “Interest Period” or any similar or analogous definition (or the addition of a concept
of “interest period”), timing and frequency of determining rates and making payments of interest, timing of borrowing requests
or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of Section 4.4
and other technical, administrative or operational matters) that the Administrative Agent decides may be appropriate to reflect the adoption
and implementation of any such rate or to permit the use and administration thereof by the Administrative Agent in a manner substantially
consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively
feasible or if the Administrative Agent determines that no market practice for the administration of any such rate exists, in such other
manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement
and the other Loan Documents).
“Connection Income
Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise
Taxes or branch profits Taxes.
“Consolidated
Income Available for Debt Service” for any period means Earnings from Operations of Parent and its Subsidiaries plus amounts which
have been deducted, and minus amounts which have been added, for the following (without duplication): (i) interest on Debt of Parent
and its Subsidiaries, (ii) provision for taxes of Parent and its Subsidiaries based on income, (iii) amortization of debt premium/discount
and deferred debt issuance costs, (iv) provisions for gains and losses on properties and property depreciation and amortization,
(v) the effect of any noncash charge resulting from a change in accounting principles in determining Earnings from Operations for
such period and (vi) amortization of deferred charges.
“Continue”,
“Continuation” and “Continued” each refers to the continuation of (a) a Term SOFR Loan from
one Interest Period to another Interest Period or (b) a Daily Simple SOFR Loan as a Daily Simple SOFR Loan, as applicable, in each
case, pursuant to Section 2.9.
“Control”
means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto.
“Convert”,
“Conversion” and “Converted” each refers to the conversion of a Loan of one Type into a Loan of
another Type pursuant to Section 2.10.
“Covered Entity”
means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12
C.F.R. §252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R.
§47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §382.2(b).
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“Credit Event”
means (a) the making of any Loan, or (b) the Conversion of any Loan into a SOFR Loan.
“Daily Simple SOFR
Loan” means any Loan bearing interest at a rate based on Adjusted Daily Simple SOFR (other than pursuant to the Adjusted Daily
Simple SOFR component of the definition of “Base Rate”).
“DC Subsidiary Owner”
means 440 First Street LLC, a Delaware limited liability company.
“Debt”
of Parent or any Subsidiary thereof means, without duplication, any indebtedness of Parent or any Subsidiary, whether or not contingent,
in respect of (i) borrowed money or evidenced by bonds, notes, debentures or similar instruments, (ii) borrowed money secured
by any Encumbrance existing on property owned by Parent or any Subsidiary, to the extent of the lesser of (x) the amount of indebtedness
so secured and (y) the fair market value of the property subject to such Encumbrance, (iii) the reimbursement obligations, contingent
or otherwise, in connection with any letters of credit actually issued (other than letters of credit issued to provide credit enhancement
or support with respect to other indebtedness of Parent or any Subsidiary otherwise reflected as Debt) or amounts representing the balance
deferred and unpaid of the purchase price of any property or services, except any such balance that constitutes an accrued expense or
trade payable, or all conditional sale obligations or obligations under any title retention agreement, (iv) the principal amount
of all obligations of Parent or any Subsidiary with respect to redemption, repayment or other repurchase of any Disqualified Stock, or
(v) any lease of property by Parent or any Subsidiary as lessee which is reflected on Parent’s consolidated balance sheet as
a capitalized lease in accordance with GAAP, to the extent, in the case of items of indebtedness under (i) through (v) above,
that any such items (other than letters of credit) would be properly classified as a liability on Parent’s consolidated balance
sheet in accordance with GAAP. Debt also (A) excludes any indebtedness (1) with respect to which a defeasance or covenant defeasance
or discharge has been effected (or an irrevocable deposit is made with a trustee in an amount at least equal to the outstanding principal
amount of such indebtedness, the remaining scheduled payments of interest thereon to, but not including, the applicable maturity date
or redemption date, and any premium or otherwise as provided in the terms of such indebtedness) in accordance with the terms thereof or
which has been repurchased, retired, repaid, redeemed, irrevocably called for redemption (and an irrevocable deposit is made with a trustee
in an amount at least equal to the outstanding principal amount of such indebtedness, the remaining scheduled payments of interest thereon
to, but not including, such redemption date, and any premium) or otherwise satisfied or (2) that is secured by cash or Cash Equivalents
irrevocably deposited with a trustee in an amount, in the case of this clause (2), at least equal to the outstanding principal amount
of such indebtedness and the remaining scheduled payments of interest thereon and (B) includes, to the extent not otherwise included,
any obligation by Parent or any Subsidiary to be liable for, or to pay, as obligor, guarantor or otherwise (other than for purposes of
collection in the ordinary course of business), Debt of another Person (other than Parent or any Subsidiary) (it being understood that
Debt shall be deemed to be incurred by Parent or any Subsidiary whenever Parent or such Subsidiary shall create, assume, guarantee or
otherwise become liable in respect thereof).
“Debt Service”
means, as of any date of calculation, the product of: (a) the aggregate amount of Revolving Commitments and outstanding Term Loans
as of such date and (b) a rate per annum equal to the greater of (i) 8.90% and (ii) the principal-weighted average per
annum actual interest rate (inclusive of the Applicable Margin) applicable to the Loans as of such date.
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“Debt Service Coverage
Ratio” has the meaning given that term in Section 9.1(b).
“Debtor Relief Laws”
means the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar Applicable Laws relating to the relief of debtors in the United States
of America or other applicable jurisdictions from time to time in effect.
“Default”
means any of the events specified in Section 10.1, whether or not there has been satisfied any requirement for the giving
of notice, the lapse of time, or both.
“Default Right”
has the meaning given that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“Defaulting Lender”
means, subject to Section 3.9(d), any Lender that (a) has failed to (i) fund all or any portion of a Loan to be
made by it within 2 Business Days of the date such Loan was required to be funded hereunder unless such Lender notifies the Administrative
Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent
to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing)
has not been satisfied, or (ii) pay to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder
within 2 Business Days of the date when due, (b) has notified the Borrower or the Administrative Agent in writing that it does not
intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public
statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s
determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically
identified in such writing or public statement) cannot be satisfied), (c) has failed, within 3 Business Days after written request
by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with
its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause
(c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or
indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for
it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization
or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory
authority acting in such a capacity or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting
Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company
thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the
jurisdiction of courts within the United States of America or from the enforcement of judgments or writs of attachment on its assets or
permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such
Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through
(d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject
to Section 3.9(d)) upon delivery of written notice of such determination to the Borrower and each Lender.
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“Deposit Account
Control Agreement” means a tri-party deposit account control agreement by and among the applicable Loan Party, the Administrative
Agent and the applicable depository institution in form and substance reasonably satisfactory to the Administrative Agent and in any event
providing (a) to the Administrative Agent “control” of such deposit account within the meaning of Article 9 of the
Uniform Commercial Code, and (b) for “springing” dominion following the occurrence of an Event of Default.
“Deposit Account
Pledge Agreement” means the Deposit Account Pledge and Security Agreement executed and delivered by the applicable Loan Parties
on the Agreement Date in favor of the Administrative Agent for the benefit of the Lenders, together with any joinder agreement and supplement
executed and delivered in connection therewith, as the same may be amended, restated, supplemented, or otherwise modified from time to
time.
“Derivatives Contract”
means a “swap agreement” as defined in Section 101 of the Bankruptcy Code.
“Derivatives Support
Document” means (i) any credit support annex comprising part of (and as defined in) any Specified Derivatives Contract,
and (ii) any document or agreement pursuant to which cash, deposit accounts, securities accounts or similar financial asset collateral
are pledged to or made available for set-off by, a Specified Derivatives Provider, including any banker’s lien or similar right,
securing or supporting Specified Derivatives Obligation.
“Derivatives Termination
Value” means, in respect of any one or more Derivatives Contracts, after taking into account the effect of any legally enforceable
netting agreement or provision relating thereto, (a) for any date on or after the date such Derivatives Contracts have been terminated
or closed out, the termination amount or value determined in accordance therewith, and (b) for any date prior to the date such Derivatives
Contracts have been terminated or closed out, the then-current mark-to-market value for such Derivatives Contracts, determined based upon
one or more mid-market quotations or estimates provided by any recognized dealer in Derivatives Contracts (which may include the Administrative
Agent, any Lender, any Specified Derivatives Provider or any Affiliate of any thereof).
“Disbursement
Instruction Agreement” means an agreement substantially in the form of Exhibit K to be executed and delivered by
the Borrower pursuant to Section 5.1(a), as the same may be amended, restated or modified from time to time with the prior
written approval of the Administrative Agent.
“Disclaimed Cash
Proceeds” means any cash proceeds from the sale of a Collateral Property (including any personal property thereon) resulting
from the Administrative Agent’s enforcement of the lien on such Collateral Property created by the applicable Security Instrument
(including, but not limited to, a foreclosure sale or a sale in accordance with a Post-Foreclosure Plan) that has been disclaimed by any
Lender pursuant to a side letter by and between such Lender (each such Lender, a “Disclaimed Lender”) and the Administrative
Agent.
15
“Disclaimed Lender”
has the meaning given that term in the definition of the term “Disclaimed Cash Proceeds.”
“Disqualified Stock”
means, with respect to any Person, any Capital Stock of such Person which by the terms of such Capital Stock (or by the terms of any security
into which it is convertible or for which it is exchangeable or exercisable), upon the happening of any event or otherwise, (i) matures
or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise (other than Capital Stock which is redeemable solely
in exchange for Capital Stock which is not Disqualified Stock or for Subordinated Debt), (ii) is convertible into or exchangeable
or exercisable for Debt (other than Subordinated Debt or Disqualified Stock), or (iii) is redeemable at the option of the holder
thereof, in whole or in part (other than Capital Stock which is redeemable solely in exchange for Capital Stock which is not Disqualified
Stock or for Subordinated Debt), in each case on or prior to the stated maturity of the principal of any senior notes issued by Parent.
“Divided LLC”
means any LLC that has been formed upon the consummation of a LLC Division.
“Divided LP”
means any LP which has been formed upon the consummation of a LP Division.
“Dollars”
or “$” means the lawful currency of the United States of America.
“Earnings from Operations”
for any period means (i) net earnings, excluding (1) gains and losses on sales of investments, (2) extraordinary items,
(3) gains and losses on early extinguishment of debt, (4) property valuation losses and (5) equity in the earnings and
losses of Equity Method Investments, plus (ii) to the extent not included in net earnings, cash distributions received by Parent
or its Subsidiaries from Equity Method Investments, in each case as reflected in the financial statements of Parent and its Subsidiaries
for such period, determined on a consolidated basis in accordance with GAAP.
“ECF Collateral Property
NOI” means, for all Collateral Properties in the aggregate at any date of its determination (without duplication): (a) rents
and other revenues received from such Collateral Properties (including proceeds from rent loss or business interruption insurance (but
not in excess of the actual rent otherwise payable) but excluding Lease Termination Payments), minus (b) all expenses paid related
to the ownership, operation or maintenance of such Collateral Properties, including but not limited to, ground rents, property taxes,
assessments and the like, insurance, utilities, payroll costs, maintenance, repair and landscaping expenses, marketing expenses, property
management fees, and general and administrative expenses, in each case, which are the responsibility of the applicable Subsidiary Guarantor
that are not paid directly by the applicable tenant.
“EEA Financial Institution”
means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of
an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in
clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of
an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
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“EEA Member Country”
means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority”
means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including
any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Effective Date”
means the later of (a) the Agreement Date and (b) the date on which all of the conditions precedent set forth in Section 5.1
shall have been fulfilled or waived.
“Electronic Record”
has the meaning assigned to that term in, and shall be interpreted in accordance with, 15 U.S.C. 7006.
“Electronic Signature”
has the meaning assigned to that term in, and shall be interpreted in accordance with, 15 U.S.C. 7006.
“Eligible Assignee”
means (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund and (d) any other Person (other than a natural
person) (subject to such consents, if any, as may be required under Section 12.5(b)(iii)); provided that notwithstanding the
foregoing, “Eligible Assignee” shall not include (i) Parent, the Borrower or any of Parent’s Affiliates
or Subsidiaries or (ii) any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would
constitute any of the foregoing Persons described in this clause (ii).
“Eligible Property”
means a Property which satisfies all of the following requirements:
(a) such
Property is wholly-owned (i) in fee simple directly by a Subsidiary Owner (or, if approved by Administrative Agent in its sole and
absolute discretion, in which a Subsidiary Owner is the holder of the leasehold estate) and (ii) indirectly by the Borrower;
(b) the
Subsidiary Owner that owns such Property has the right to take the following actions without the need to obtain the consent of any Person
(other than (I) the Administrative Agent and Lenders and (II) subject to the terms of any applicable Junior Lien Intercreditor
Agreement, any secured parties under any Permitted Junior Debt): (i) to create Liens on such Property as security for the Obligations
in the principal amount contemplated by this Agreement or any replacement or refinancing thereof in a principal amount not to exceed the
then-current maximum principal amount contemplated by this Agreement; provided that no general prohibition on the incurrence of Indebtedness
or the granting of Liens as a result of failing to satisfy any Indebtedness incurrence test or financial ratio shall cause this clause
(i) not to be satisfied with respect to any Property so long as the requirements of paragraph (e) below are satisfied with respect
to such Property and (ii) to sell, transfer or otherwise dispose of such Property;
(c) neither
such Property, nor any of the Borrower’s direct or indirect ownership interest in such Subsidiary Owner, is subject to (i) any
Lien (other than Liens permitted to be incurred on Collateral Properties pursuant to Section 9.2(a)) or (ii) any Negative
Pledge (other than a Negative Pledge permitted to exist pursuant to Section 9.2(b));
17
(d) any
tax abatement or tax credit programs or affordability restrictions to which such Property is subject have been reviewed and approved by
the Administrative Agent and acceptable mortgagee acknowledgements, estoppels and/or other agreements as required by the Administrative
Agent have been obtained and the applicable Property and Subsidiary Owner shall be in compliance therewith;
(e) such
Property is encumbered by a first priority mortgage Lien (subject to Liens permitted to encumber Collateral Properties pursuant to Section 9.2(a))
in favor of the Administrative Agent, for the benefit of the Lenders, as required pursuant to Section 7.15 (subject to the
Administrative Agent having entered into a subordination, non-disturbance and attornment agreement with the applicable Manager or Tenant
if required to provide the Administrative Agent with a first priority mortgage Lien), and the Lien of the Security Instrument on such
Property is insured by a Title Policy as required pursuant hereto;
(f) such
Property is free of all structural defects and major architectural deficiencies, title defects, environmental conditions and other adverse
matters, except for defects, deficiencies, conditions or other matters which, individually or collectively, are not materially adverse
to the use, operation or value of such Property; and
(g) no
Casualty/Condemnation Event has occurred with respect to such Property which has not been fully restored and paid for in full.
“Encumbrance”
means any mortgage, lien, charge, pledge, security interest or other encumbrance.
“Environmental Laws”
means any Applicable Law relating to environmental protection or the manufacture, storage, remediation, disposal or clean-up of Hazardous
Materials including, without limitation, the following: Clean Air Act, 42 U.S.C. § 7401 et seq.; Federal Water Pollution Control
Act, 33 U.S.C. § 1251 et seq.; Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, 42 U.S.C. §
6901 et seq.; Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq.; National Environmental
Policy Act, 42 U.S.C. § 4321 et seq.; regulations of the Environmental Protection Agency, any applicable rule of common law
and any judicial interpretation thereof relating primarily to the environment or Hazardous Materials, and any analogous or comparable
state or local laws, regulations or ordinances that concern Hazardous Materials or protection of the environment.
“Equity Interest”
means, with respect to any Person, any share of capital stock of (or other ownership or profit interests in) such Person, any warrant,
option or other right for the purchase or other acquisition from such Person of any share of capital stock of (or other ownership or profit
interests in) such Person whether or not certificated, any security convertible into or exchangeable for any share of capital stock of
(or other ownership or profit interests in) such Person or warrant, right or option for the purchase or other acquisition from such Person
of such shares (or such other interests), and any other ownership or profit interest in such Person (including, without limitation, partnership,
member or trust interests therein), whether voting or nonvoting, and whether or not such share, warrant, option, right or other interest
is authorized or otherwise existing on any date of determination.
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“Equity Method Investments”
means equity securities that at the time of determination: (i) are part of a class of equity securities that is traded on a national
or regional securities exchange or a recognized over-the-counter market; (ii) issued by an entity (a) to which Parent’s
manager at such time or an Affiliate of Parent’s manager at such time provides management services, (b) that operates in a
manner intended to qualify such entity for taxation as a “real estate investment trust” under Sections 856 to 860 of the Internal
Revenue Code, and (c) that is not a consolidated Subsidiary of Parent; and (iii) are or in any prior period were accounted for
in the consolidated financial statements of Parent using the equity method of accounting.
“Equity Pledges”
means all Liens in favor of the Administrative Agent (for the benefit of the Lenders) on the Pledged Interests pursuant to and as set
forth in each of the Pledge Agreement and the Holdings Pledge Agreement.
“ERISA”
means the Employee Retirement Income Security Act of 1974, as in effect from time to time.
“ERISA Event”
means, with respect to the ERISA Group, (a) any “reportable event” as defined in Section 4043 of ERISA with respect
to a Plan (other than an event for which the 30-day notice period is waived); (b) the withdrawal of a member of the ERISA Group from
a Plan subject to Section 4063 of ERISA during a plan year in which it was a “substantial employer” as defined in Section 4001(a)(2) of
ERISA or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) the incurrence
by a member of the ERISA Group of any liability with respect to the withdrawal or partial withdrawal from any Multiemployer Plan; (d) the
incurrence by any member of the ERISA Group of any liability under Title IV of ERISA with respect to the termination of any Plan or Multiemployer
Plan; (e) the institution of proceedings to terminate a Plan or Multiemployer Plan by the PBGC; (f) the failure by any member
of the ERISA Group to make when due required contributions to a Multiemployer Plan or Plan unless such failure is cured within 30 days
or the filing pursuant to Section 412(c) of the Internal Revenue Code or Section 302(c) of ERISA of an application
for a waiver of the minimum funding standard; (g) any other event or condition that might reasonably be expected to constitute grounds
under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan or Multiemployer Plan
or the imposition of liability under Section 4069 or 4212(c) of ERISA; (h) the receipt by any member of the ERISA Group
of any notice or the receipt by any Multiemployer Plan from any member of the ERISA Group of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent (within the meaning of Section 4245
of ERISA), in reorganization (within the meaning of Section 4241 of ERISA), or in “critical” status (within the meaning
of Section 432 of the Internal Revenue Code or Section 305 of ERISA); (i) the imposition of any liability under Title IV
of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any member of the ERISA Group or
the imposition of any Lien in favor of the PBGC under Title IV of ERISA; or (j) a determination that a Plan is, or is reasonably
expected to be, in “at risk” status (within the meaning of Section 430 of the Internal Revenue Code or Section 303
of ERISA).
19
“ERISA Group”
means Parent, any Subsidiary and all members of a controlled group of corporations and all trades or businesses (whether or not incorporated)
under common control, which, together with Parent or any Subsidiary, are treated as a single employer under Section 414 of the Internal
Revenue Code.
“Erroneous Payment”
has the meaning given that term in Section 11.14(a).
“Erroneous Payment
Deficiency Assignment” has the meaning given that term in Section 11.14(d).
“Erroneous Payment
Return Deficiency” has the meaning given that term in Section 11.14(d).
“EU Bail-In Legislation
Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in
effect from time to time.
“Event of Default”
means any of the events specified in Section 10.1, provided that any requirement for notice or lapse of time or any other
condition has been satisfied.
“Excess Cash Flow”
means, for any period, the sum of (a) the ECF Collateral Property NOI for the Collateral Properties for such period, less (b) principal,
interest, fees and any costs and expenses of the Administrative Agent and Lenders actually paid by Borrower in respect of the Obligations
during such period, less (c) certain renovations, improvements and capital expenditures solely in respect of the Collateral Properties,
in each case, that are contemplated by, and made in accordance with, the then-applicable Approved Budget and actually paid by Borrower
and its Subsidiaries during such period (such expenditures under this clause (c) to be evaluated by the Administrative Agent for
each such fiscal quarter period in accordance with the then-applicable Approved Budget), in each such case of the foregoing (b) and
(c), which may be funded from any source, including, without limitation, proceeds of Revolving Loans.
“Excluded Taxes”
means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a
Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each
case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case
of any Lender, its applicable Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or
(ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable
to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to an Applicable Law in effect
on the date on which (i) such Lender acquires such interest in such Loan or Commitment (other than pursuant to an assignment request
by the Borrower under Section 4.6) or (ii) such Lender changes its lending office, except in each case to the extent
that, pursuant to Section 3.10, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately
before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable
to such Recipient’s failure to comply with Section 3.10(g) and (d) any U.S. federal withholding Taxes imposed
under FATCA.
“Existing Credit
Agreement” has the meaning given that term in the recitals to this Agreement.
20
“Fair Market Value”
means, (a) with respect to a security listed on a national securities exchange or the NASDAQ Global Market, the price of such security
as reported on such exchange or market by any widely recognized reporting method customarily relied upon by financial institutions and
(b) with respect to any other property, the price which could be negotiated in an arm’s-length free market transaction, for
cash, between a willing seller and a willing buyer, neither of which is under pressure or compulsion to complete the transaction.
“Fair Value”
means, for an Equity Method Investment, the lower of: (i) the original cost of such investment; or (ii) last reported sale price
on the exchange or market on which the class of equity securities of which the investment is a part is primarily traded at the time of
valuation.
“FASB ASC”
means the Accounting Standards Codification of the Financial Accounting Standards Board.
“FATCA”
means Sections 1471 through 1474 of the Internal Revenue Code, as of the date of this Agreement (or any amended or successor version that
is substantively comparable and not materially more onerous to comply with) and any current or future regulations or official interpretations
thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code, and any fiscal or regulatory
legislation, rules or practices adopted pursuant to any such intergovernmental agreement, treaty or convention among governmental
authorities and such Sections of the Internal Revenue Code.
“Federal Funds Rate”
means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve System, as published for such day (or, if such day is not
a Business Day, for the immediately preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent
from three Federal Funds brokers of recognized standing selected by the Administrative Agent. If the Federal Funds Rate determined as
provided above would be less than zero, then the Federal Funds Rate shall be deemed to be zero.
“Fee Letter”
means that certain fee letter dated as of January 10October 15,
20242025,
by and among Parent, Wells Fargo and Wells Fargo Securitiesbetween
the Borrower and Wilmington Savings Fund Society, LLCFSB.
“Fees”
means the fees and commissions provided for or referred to in Section 3.5 and any other fees payable by the Borrower hereunder,
under any other Loan Document, the Fee Letter or any other written fee arrangement by and between Parent and/or Borrower, on the one hand,
and any Lead Arranger, on the other.
“FIRREA”
means the Financial Institution Recovery, Reform and Enforcement Act of 1989.
“Flood Laws”
has the meaning given that term in Section 11.12.
“Floor”
means a rate of interest equal to zero percent (0.00%).
21
“Foreign Lender”
means a Lender that is not a U.S. Person.
“FRB” means
the Board of Governors of the Federal Reserve System of the United States.
“Fund”
means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
“GAAP”
means generally accepted accounting principles in the United States of America set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board (including Statement of Financial Accounting Standards No. 168, “The FASB Accounting Standards Codification”)
or in such other statements by such other entity as may be approved by a significant segment of the accounting profession in the United
States of America, which (a) in connection with any calculation made pursuant to Section 9.1(a) or Section 9.13,
were in effect on July 20, 2017 and (b) for all other purposes, are applicable to the circumstances as of the date of determination.
“Governmental Approvals”
means all authorizations, consents, approvals, licenses and exemptions of, registrations and filings with, and reports to, all Governmental
Authorities.
“Governmental Authority”
means any national, state or local government (whether domestic or foreign), any political subdivision thereof or any other governmental,
quasi-governmental, judicial, administrative, public or statutory instrumentality, authority, body, agency, bureau, commission, board,
department or other entity (including, without limitation, the Federal Deposit Insurance Corporation, the Comptroller of the Currency
or the Federal Reserve Board, any central bank or any comparable authority) or any arbitrator with authority to bind a party at law.
“Ground Lease”
means a ground lease containing the following terms and conditions: (a) either (i) a remaining term (taking into account extensions
which may be effected by the lessee without the consent of the lessor) of no less than 30 years from the Agreement Date, or (ii) the
right of the lessee to purchase the property on terms reasonably acceptable to the Administrative Agent; (b) the right of the lessee
to mortgage and encumber its interest in the leased property without the consent of the lessor; (c) the obligation of the lessor
to give the holder of any mortgage Lien on such leased property written notice of any defaults on the part of the lessee and that such
lease will not be terminated until such holder has had a reasonable opportunity to cure or complete foreclosures, and fails to do so;
and (d) free transferability of the lessee’s interest under such lease, including ability to sublease, subject to only reasonable
consent provisions.
“Guaranteed Obligations”
means, at any given time, the “Guarantied Obligations” (as defined in the Subsidiary Guaranty) of each Subsidiary Owner
that directly owns a Collateral Property at such time.
22
“Guarantor”
means, collectively, (i) Parent, (ii) Holdings, and (iii) each Subsidiary Guarantor. “Guaranty”, “Guaranteed”
or to “Guarantee” as applied to any obligation means and includes: (a) a guaranty (other than by endorsement of
negotiable instruments for collection in the ordinary course of business), directly or indirectly, in any manner, of any part or all of
such obligation, or (b) an agreement, direct or indirect, contingent or otherwise, and whether or not constituting a guaranty, the
practical effect of which is to assure the payment or performance (or payment of damages in the event of nonperformance) of any part or
all of such obligation whether by: (i) the purchase of securities or obligations, (ii) the purchase, sale or lease (as lessee
or lessor) of property or the purchase or sale of services primarily for the purpose of enabling the obligor with respect to such obligation
to make any payment or performance (or payment of damages in the event of nonperformance) of or on account of any part or all of such
obligation, or to assure the owner of such obligation against loss, (iii) the supplying of funds to or in any other manner investing
in the obligor with respect to such obligation, (iv) repayment of amounts drawn down by beneficiaries of letters of credit, or (v) the
supplying of funds to or investing in a Person on account of all or any part of such Person’s obligation under a Guaranty of any
obligation or indemnifying or holding harmless, in any way, such Person against any part or all of such obligation. As the context requires,
“Guaranty” shall also mean the Subsidiary Guaranty, the Parent Guaranty and/or the Holdings Guaranty.
“Hazardous Materials”
means all or any of the following: (a) substances that are defined or listed in, or otherwise classified pursuant to, any applicable
Environmental Laws as “hazardous substances”, “hazardous materials”, “hazardous wastes”, “toxic
substances” or any other formulation intended to define, list or classify substances by reason of deleterious properties such as
ignitability, corrosivity, reactivity, carcinogenicity, reproductive toxicity, “TCLP” toxicity, or “EP toxicity”;
(b) oil, petroleum or petroleum derived substances, natural gas, natural gas liquids or synthetic gas and drilling fluids, produced
waters and other wastes associated with the exploration, development or production of crude oil, natural gas or geothermal resources;
(c) any flammable substances or explosives or any radioactive materials; (d) asbestos in any form; (e) toxic mold; and
(f) electrical equipment which contains any oil or dielectric fluid containing levels of polychlorinated biphenyls in excess of fifty
parts per million.
“Holdings”
has the meaning set forth in the introductory paragraph hereof and shall include the Holding’s permitted successors and permitted
assigns.
“Holdings Guaranty”
means the Holdings Guaranty substantially in the form of Exhibit B-2 executed and delivered by Holdings on the Agreement Date,
as the same may be amended, restated, supplemented, or otherwise modified from time to time.
“Holdings Pledge
Agreement” means the Holdings Pledge Agreement, substantially in the form of Exhibit M-2 hereto, executed and delivered
by Holdings on the Agreement Date, as the same may be amended, restated, supplemented, or otherwise modified from time to time.
“Illegality Notice”
has the meaning given that term in Section 4.2(b).
23
“Indebtedness”
means, with respect to a Person, at the time of computation thereof, all of the following (without duplication): (a) all obligations
of such Person in respect of money borrowed or for the deferred purchase price of property or services (excluding trade debt incurred
in the ordinary course of business); (b) all obligations of such Person, whether or not for money borrowed (i) represented by
notes payable, or drafts accepted, in each case representing extensions of credit, (ii) evidenced by bonds, debentures, notes or
similar instruments, or (iii) constituting purchase money indebtedness, conditional sales contracts, title retention debt instruments
or other similar instruments, upon which interest charges are customarily paid or that are issued or assumed as full or partial payment
for property or for services rendered; (c) Capitalized Lease Obligations of such Person, subject to Section 1.2; (d) all
reimbursement obligations (contingent or otherwise) of such Person under or in respect of any letters of credit or acceptances (whether
or not the same have been presented for payment); (e) all Off-Balance Sheet Obligations; (f) all obligations of such Person
to purchase, redeem, retire, defease or otherwise make any payment in respect of any Mandatorily Redeemable Stock issued by such Person
or any other Person, valued at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends; (g) all
obligations of such Person in respect of any purchase obligation, repurchase obligation, takeout commitment or forward equity commitment,
in each case evidenced by a binding agreement (excluding any such obligation to the extent the obligation can be satisfied solely by the
issuance of Equity Interests (other than Mandatorily Redeemable Stock)); (h) all Indebtedness of other Persons which such Person
has Guaranteed or is otherwise recourse to such Person, valued at the lesser of (x) the stated or determinable amount of the Indebtedness
such Person Guaranteed or, if the amount of such Indebtedness is not stated or determinable, the maximum reasonably anticipated liability
in respect thereof, and (y) the amount of any express limitation on such Guaranty; and (i) all Indebtedness of another Person
secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien (other
than Permitted Liens of the types described in clauses (a) through (c) or (e) through (i) of the definition thereof)
on property or assets owned by such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness
or other payment obligation, valued, in the case of any such Indebtedness as to which recourse for the payment thereof is expressly limited
to the property or assets on which such Lien is granted, at the lesser of (x) the stated or determinable amount of the Indebtedness
that is so secured or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person
is required to perform thereunder) and (y) the Fair Market Value of such property or assets.
“Indemnified Party”
has the meaning given that term in Section 12.9(a).
“Indemnified Taxes”
means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of
Parent or any other Loan Party under any Loan Document and (b) to the extent not otherwise described in the immediately preceding
clause (a), Other Taxes.
“Initial Collateral
Property” means each Property listed on Schedule 1.1(b) attached hereto.
“Initial Collateral
Property Account” has the meaning given that term in Section 5.1(a).
“Initial Collateral
Property Pledged Interests” has the meaning given that term in Section 5.1(a).
“Initial Subsidiary
Owner” means each Wholly Owned Subsidiary of the Borrower listed on Schedule 1.1(c) attached hereto.
24
“In-Place
Collateral Property NOI” means, for each Collateral Property at any date of its determination (without duplication), the
following all determined in accordance with GAAP: (a) rents and other revenues received in the ordinary course from such
Collateral Property (including proceeds from rent loss or business interruption insurance (but not in excess of the actual rent
otherwise payable), but excluding Lease Termination Payments), minus (b) all expenses paid (excluding depreciation,
amortization, other non-cash expenses, interest expense, income tax expense, capital expenses and real estate acquisition costs and
expenses) related to the ownership, operation or maintenance of such Collateral Property, including but not limited to, ground
rents, property taxes, assessments and the like, insurance, utilities, payroll costs, maintenance, repair and landscaping expenses,
marketing expenses, property management fees equal to the greater of (x) actual property management fees or (y) three
percent (3.0%) of the total gross revenues for such Collateral Property for such period, and general and administrative expenses, in
each case, which are the responsibility of the applicable Subsidiary Guarantor that are not paid directly by the applicable tenant, minus (c) the
Capital Expenditure Reserves for such Collateral Property for the applicable period. Notwithstanding
the foregoing, the following rents and other revenues shall be excluded from the calculation of In-Place Collateral Property NOI for
purposes of calculating the Debt Service Coverage Ratio pursuant to clause (ii)(x) of Section 2.13:
(A) rents and other revenues collected from a tenant that is subject to any then continuing bankruptcy proceeding or other
proceeding or condition of the types described in Sections 10.1(e) and 10.1(f),
(B) rents in arrears with respect to any required minimum base rental payment required under an applicable lease that is
received beyond the later of (x) any applicable grace period with respect to such rental payment and (y) 60 days,
(C) rents and other revenues collected in respect of (1) leases with a remaining term of less than twelve (12) months (or,
solely in the case of the lease initially entered into with Google LLC demising space at the Property commonly known as 100 West
Fulton Market, Chicago, IL 60607, eighteen (18) months) as of such date of determination (disregarding any extension option not
yet duly exercised as of such date), and (2) leases that have been terminated or rejected by any party thereto or otherwise
cease to exist as of such date of determination, and (D) if a tenant under any lease has exercised any contraction right as of
such date of determination, all rents and other revenues attributable to such contraction space.
“Intellectual Property”
has the meaning given that term in Section 6.2(i).
“Interest Payment
Date” means, as to any Base Rate Loan, Daily Simple SOFR Loan or Term SOFR Loan, the first Business Day of each calendar month
and the Revolving Credit Termination Date or Term Loan Maturity Date, as applicable, applicable thereto.
“Interest Period”
means, as to any Term SOFR Loan, the period commencing on the date such Term SOFR Loan is disbursed or Converted to or Continued as a
Term SOFR Loan and ending on the date one (1), three (3) or six (6) months thereafter, in each case as selected by the Borrower
in its Notice of Revolving Borrowing, Notice of Continuation or Notice of Conversion, as the case may be, and subject to availability;
provided that:
(a) the
Interest Period shall commence on the date of advance of or conversion to any Term SOFR Loan and, in the case of immediately successive
Interest Periods, each successive Interest Period shall commence on the date on which the immediately preceding Interest Period expires;
(b) if
any Interest Period would otherwise expire on a day that is not a Business Day, such Interest Period shall expire on the next succeeding
Business Day; provided that if any Interest Period would otherwise expire on a day that is not a Business Day but is a day of the
month after which no further Business Day occurs in such month, such Interest Period shall expire on the immediately preceding Business
Day;
25
(c) any
Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the relevant calendar month at the
end of such Interest Period;
(d) if
any Interest Period would otherwise end after the Revolving Credit Termination Date or Term Loan Maturity Date, as applicable, such Interest
Period shall end on the Revolving Credit Termination Date or Term Loan Maturity Date, as applicable; and
(e) no
tenor that has been removed from this definition pursuant to Section 4.2(c)(iv) shall be available for specification
in any Notice of Revolving Borrowing, Notice of Continuation or Notice of Conversion.
“Internal Revenue
Code” means the Internal Revenue Code of 1986, as amended.
“Investment”
means, (x) with respect to any Person, any acquisition or investment (whether or not of a controlling interest) by such Person, by
means of any of the following: (a) the purchase or other acquisition of any Equity Interest in another Person, (b) a loan, advance
or extension of credit to, capital contribution to, Guaranty of Indebtedness of, or purchase or other acquisition of any Indebtedness
of, another Person, including any partnership or joint venture interest in such other Person, or (c) the purchase or other acquisition
(in one transaction or a series of transactions) of assets of another Person that constitute the business or a division or operating unit
of another Person and (y) with respect to any Property or other asset, the acquisition thereof. Any commitment to make an Investment
in any other Person, as well as any option of another Person to require an Investment in such Person, shall constitute an Investment.
Except as expressly provided otherwise, for purposes of determining compliance with any covenant contained in a Loan Document, the amount
of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such
Investment.
“Joint Venture Interests”
means assets of Parent and its Subsidiaries constituting an equity investment in real estate assets or other properties, or in an entity
holding real estate assets or other properties, jointly owned by Parent and its Subsidiaries, on the one hand, and one or more other Persons
not constituting Affiliates of Parent, on the other, excluding any entity or properties (i) which is a Subsidiary of Parent or are
properties if the co-ownership thereof (if in a separate entity) would constitute or would have constituted a Subsidiary of Parent, or
(ii) to which, at the time of determination, Parent’s manager at such time or an Affiliate of Parent’s manager at such
time provides management services. In no event shall Joint Venture Interests include equity securities that are part of a class of equity
securities that are traded on a national or regional securities exchange or a recognized over-the-counter market or any investments in
debt securities, mortgages or other Debt or Equity Method Investments.
26
“Junior Lien Intercreditor
Agreement” means, with respect to any Liens on Collateral securing any Permitted Junior Debt, an intercreditor agreement substantially
in the form of Exhibit I with such changes as are reasonably acceptable to Administrative Agent, by and among each holder
of such Permitted Junior Debt (or a duly authorized agent or other representative thereof), the Administrative Agent, and the applicable
Loan Parties, as may be amended, restated or otherwise modified pursuant to the terms thereof; provided that, any modifications to the
intercreditor agreement in the form of Exhibit I that are materially adverse to the rights or remedies of the Lenders shall
require the consent of the Specified Lenders.
“Lease”
means a (sub)lease of a Property, between Holdings or a Subsidiary of Holdings, as lessor, and a Lessee.
“Lease Termination
Payment” means all sums, howsoever described, paid with respect to any rejection, termination, surrender or cancellation of
any lease (including in any bankruptcy case) or any lease buy-out or surrender payment from any tenant (including any payment relating
to unamortized tenant improvements and/or leasing commissions).
“Leasing Commissions”
means all brokerage and leasing commissions and fees (including cost reimbursements) payable by a Subsidiary Owner with respect to the
negotiation and consummation of Leases with respect to a Collateral Property (or approved amendments thereto).
“Lender”
means each financial institution from time to time party hereto as a “Lender,” together with its respective successors
and permitted assigns. Except as expressly provided herein, the term “Lender” shall exclude any Lender (and its Affiliates)
in its capacity as a Specified Derivatives Provider.
“Lending Office”
means, for each Lender and for each Type of Loan, the office of such Lender specified in such Lender’s Administrative Questionnaire
or in the applicable Assignment and Assumption, or such other office of such Lender as such Lender may notify the Administrative Agent
in writing from time to time.
“Lessee”
means the (sub)lessee of a Property pursuant to a Lease; provided that, without the Administrative Agent’s approval, no such (sub)lessee
shall be an Affiliate of Parent (including, without limitation, RMR, or any Managing Trustee), except during an interim period for Properties
which are foreclosed upon or repossessed upon lease terminations or otherwise by or on behalf of Parent or a Subsidiary.
“Lien”
as applied to the property of any Person means: (a) any security interest, encumbrance, mortgage, deed to secure debt, deed of trust,
assignment of leases and rents, pledge, lien, hypothecation, assignment, charge or lease constituting a Capitalized Lease Obligation,
conditional sale or other title retention agreement, or other security title or encumbrance of any kind in respect of any property of
such Person, or upon the income, rents or profits therefrom; (b) any arrangement, express or implied, under which any property of
such Person is transferred, sequestered or otherwise identified for the purpose of subjecting the same to the payment of Indebtedness
or performance of any other obligation in priority to the payment of the general, unsecured creditors of such Person; (c) the filing
of any duly authorized financing statement under the UCC or its equivalent in any jurisdiction, other than any precautionary filing not
otherwise constituting or giving rise to a Lien, including a financing statement filed (i) in respect of a lease not constituting
a Capitalized Lease Obligation pursuant to Section 9-505 (or a successor provision) of the UCC or its equivalent as in effect in
an applicable jurisdiction or (ii) in connection with a sale or other disposition of accounts or other assets not prohibited by this
Agreement in a transaction not otherwise constituting or giving rise to a Lien; and (d) any agreement by such Person to grant, give
or otherwise convey any of the foregoing.
27
“LLC” means
any limited liability company formed under the laws of any State or Commonwealth of the United States of America, any territory thereof
or the District of Columbia.
“LLC Division”
means the division or divisive merger of any LLC into multiple entities or multiple series of the same entity pursuant to any applicable
law, including pursuant to Section 18-217 of the Delaware Limited Liability Company Act, as amended from time to time.
“Loan”
means a Revolving Loan or a Term Loan.
“Loan Document”
means this Agreement, the Borrower Letter, each Note, the Subsidiary Guaranty, the Parent Guaranty, the Holdings Guaranty, the Pledge
Agreement, the Holdings Pledge Agreement, each other Security Document, each Junior Lien Intercreditor Agreement (if any), and each other
document or instrument now or hereafter executed and delivered by a Loan Party in connection with, pursuant to or relating to this Agreement
(other than the Fee Letter and any Specified Derivatives Contract).
“Loan Party”
means each of the Borrower, Holdings, Parent, each Subsidiary Owner, and each other Person who guarantees all or a portion of the Obligations
and/or who pledges any collateral to secure all or a portion of the Obligations. Schedule 1.1(a) sets forth the Loan Parties
in addition to the Borrower as of the Agreement Date.
“LP” means
any limited partnership formed under the laws of any State or Commonwealth of the United States of America, any territory thereof or the
District of Columbia.
“LP Division”
means the division or divisive merger of any LP into multiple entities or multiple series of the same entity pursuant to any Applicable
Law, including, without limitation, pursuant to Section 17-220 of the Delaware Revised Uniform Limited Partnership Act, as amended
from time to time.
“Managing Trustee”
means either Ms. Jennifer B. Clark or Mr. Adam D. Portnoy, both having a business address c/o RMR, or any duly appointed successor
thereto.
“Mandatorily Redeemable
Stock” means, with respect to any Person, any Equity Interest of such Person which by the terms of such Equity Interest (or
by the terms of any security into which it is convertible or for which it is exchangeable or exercisable), upon the happening of any event
or otherwise, (a) matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise (other than an Equity
Interest to the extent redeemable in exchange for common stock or other equivalent common Equity Interests at the option of the issuer
of such Equity Interest), (b) is convertible into or exchangeable or exercisable for Indebtedness or Mandatorily Redeemable Stock,
or (c) is redeemable at the option of the holder thereof, in whole or part (other than an Equity Interest which is redeemable solely
in exchange for common stock or other equivalent common Equity Interests); in the case of each of clauses (a) through (c), on or
prior to the date that is 91 days following the then-applicable Revolving Credit Termination Date as
extended pursuant to Section 2.13.
28
“Material Adverse
Effect” means a materially adverse effect on (a) the business, assets, liabilities, financial condition, operations or
results of operations of Parent, Holdings and the Subsidiaries taken as a whole, (b) the ability of Parent, the Borrower or any other
Loan Party to perform its obligations under any Loan Document to which it is a party, (c) the validity or enforceability of any of
the Loan Documents, (d) the rights and remedies of the Lenders and the Administrative Agent under any of the Loan Documents, (e) the
timely payment of the principal of or interest on the Loans or other amounts payable in connection therewith, or (f) when used with
respect to a Collateral Property, the use, value or operation of such Property (individually or when taken as a whole with each other
Collateral Property); provided, however, that, if any representation, warranty or covenant herein (an “Affected Provision”)
would not be true and correct or breached solely as a result of a Material Adverse Effect occurring with respect to one or more Collateral
Properties considered on its own (each, an “MAE Collateral Property”), then such MAE Collateral Property shall be excluded
from the calculation of Collateral Property Availability, and this clause (f) shall be read to mean “with respect to the Collateral
Properties, the use, value or operation of such Properties (taken as a whole)” for purposes of such Affected Provision. Notwithstanding
anything to the contrary in this Agreement or any other Loan Document, the commencement, existence and continuation of the Bankruptcy
Cases, and any events, actions or circumstances approved by the final plan in the Bankruptcy Cases, shall not constitute, and shall be
deemed not to constitute, a Material Adverse Effect for any purpose under this Agreement or any other Loan Document.
“Material Contract”
means (i) as to Parent, the Business Management Agreement and the Property Management Agreement, and (ii) as to any other Loan
Party, any contract or other arrangement (other than Loan Documents and Specified Derivatives Contracts), whether written or oral, to
which such Person is a party as to which the breach, nonperformance, cancellation or failure to renew by any party thereto could reasonably
be expected to have a Material Adverse Effect.
“Material Credit
Document” means, as to Parent, any agreement entered into after the Agreement Date (i) modifying the terms of the Parent’s
“6.375% Senior Notes due 2050”, (ii) creating, evidencing or modifying any other issuance of notes by Parent or (iii) creating,
evidencing or modifying any comparable corporate-level syndicated credit facility for which Parent is an obligor (it being understood
that no such documentation evidencing (a) any
commercial mortgage-backed securities or any other property-level financing,
including, for the avoidance of doubt, the CMBS Loan Agreements and (b) the 2027 Notes shall constitute a Material Credit
Document).
“MIRE Event”
means any of the following: (a) any increase, extension or renewal of any of the Commitments or Loans (including any increase of
Revolving Commitments, but excluding (i) any continuation or conversion of Loans or (ii) the making of any Loan) and (b) the
initial delivery by the applicable Loan Party of a Security Instrument in connection with a Collateral Property Addition.
29
“Moody’s”
means Moody’s Investors Service, Inc. and its successors.
“More Favorable Covenant”
has the meaning given that term in Section 7.17.
“Mortgage”
means a mortgage, deed of trust, deed to secure debt or similar security instrument made by a Person owning an interest in real estate
granting a Lien on such interest in real estate as security for the payment of Indebtedness.
“Most Favored Lender
Notice” means, in respect of any More Favorable Covenant, a written notice promptly delivered by the Borrower to the Administrative
Agent, and in any event within five (5) Business Days after the inclusion of such More Favorable Covenant in any Material Credit
Document (including by way of amendment or other modification of any existing provision thereof) from a Responsible Officer referring
to the provisions of Section 7.17 with a copy of the provision in the applicable Material Credit Document that sets forth
the More Favorable Covenant and the definitions related thereto (and any other provisions cross-referenced therein).
“Multiemployer Plan”
means at any time a multiemployer plan within the meaning of Section 4001(a)(3) of ERISA to which any member of the ERISA Group
is then making or accruing an obligation to make contributions or has within the preceding six plan years made contributions, including
for these purposes any Person which ceased to be a member of the ERISA Group during such six-year period.
“Negative Pledge”
means, with respect to a given asset, any provision of a document, instrument or agreement (other than any Loan Document, a Specified
Derivatives Contract or a lease or related agreement between a TRS, as tenant, and Parent or any Subsidiary of Holdings, as landlord)
which prohibits or purports to prohibit the creation or assumption of any Lien on such asset as security for Indebtedness of the Person
owning such asset or any other Person; provided, however, that an agreement that conditions a Person’s ability to encumber its assets
upon the maintenance of one or more specified ratios that limit a Person’s ability to encumber its assets but that do not generally
prohibit the encumbrance of its assets, or the encumbrance of specific assets, shall not constitute a Negative Pledge.
“Net Cash Proceeds”
means the aggregate amount of cash or cash equivalents actually received by Parent or any Subsidiary thereof in respect of any sale, assignment,
transfer or other disposition of any kind of any asset, in each case, net of (a) customary direct fees, commissions, costs and expenses
incurred in connection therewith (including legal, accounting and investment banking fees, and underwriting discounts and commissions),
(b) taxes paid or payable as a result thereof or in connection therewith and (c) amounts reasonably and in good faith provided
as a reserve, in accordance with GAAP, in respect of any retained liabilities or purchase price adjustments, or under any indemnification
obligations, associated therewith.
“Non-Consenting Lender”
means any Lender that does not approve any consent, waiver, amendment or release with respect to any Loan Document that (i) requires
the approval of all Lenders or all affected lenders in accordance with the terms of Section 12.6(b) and (ii) has
been approved by the Requisite Lenders.
“Non-Defaulting Lender”
means, at any time, each Lender that is not a Defaulting Lender at such time.
30
“Note”
means a Revolving Note or a Term Note.
“Notice of Borrowing”
means a notice substantially in the form of Exhibit C (or such other form reasonably acceptable to the Administrative Agent
and containing the information required in such Exhibit) to be delivered to the Administrative Agent pursuant to Section 2.1(b) evidencing
the Borrower’s request for a borrowing of Revolving Loans.
“Notice of Continuation”
means a notice substantially in the form of Exhibit D (or such other form reasonably acceptable to the Administrative Agent
and containing the information required in such Exhibit) to be delivered to the Administrative Agent pursuant to Section 2.9
evidencing the Borrower’s request for the Continuation of a SOFR Loan.
“Notice of Conversion”
means a notice substantially in the form of Exhibit E (or such other form reasonably acceptable to the Administrative Agent
and containing the information required in such Exhibit) to be delivered to the Administrative Agent pursuant to Section 2.10.
evidencing the Borrower’s request for the Conversion of a Loan from one Type to another Type.
“Obligations”
means, individually and collectively: (a) the aggregate principal balance of, and all accrued and unpaid interest on, all Loans;
and (b) all other indebtedness, liabilities, obligations, covenants and duties of the Borrower and the other Loan Parties owing to
the Administrative Agent, any Lender or any other Indemnified Party of every kind, nature and description, under or in respect of this
Agreement or any of the other Loan Documents, including, without limitation, the Fees and indemnification obligations, whether direct
or indirect, absolute or contingent, due or not due, contractual or tortious, liquidated or unliquidated, and whether or not evidenced
by any promissory note. For the avoidance of doubt, “Obligations” shall not include Specified Derivatives Obligations.
“OFAC”
means the U.S. Department of the Treasury’s Office of Foreign Assets Control.
“Off-Balance Sheet
Obligations” means, with respect to any Person (the “Reference Person”), liabilities and obligations of the
Reference Person or any other Person in respect of “off-balance sheet arrangements” (as defined in Item 303(a)(4)(ii) of
Regulation S-K promulgated under the Securities Act) which the Reference Person would be required to disclose in the “Management’s
Discussion and Analysis of Financial Condition and Results of Operations” section of a report on Form 10-Q or Form 10-K
(or their equivalents) which the Reference Person filed with the Securities and Exchange Commission (or any Governmental Authority substituted
therefor).
“OPI WF Borrower”
has the meaning set forth in the introductory paragraph hereof.
“OPI WF Owner”
means OPI WF Owner LLC, a Delaware limited liability company.
“Other Connection
Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient
and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party
to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction
pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
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“Other Taxes”
means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made
under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest
under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to
an assignment (other than an assignment made pursuant to Section 4.6).
“Outgoing Borrower”
has the meaning given that term in the recitals to this Agreement. “Parent” has the meaning set forth in the introductory
paragraph hereof and shall include Parent’s permitted successors and permitted assigns.
“Parent Guaranty”
means the Parent Guaranty substantially in the form of Exhibit B-2 executed and delivered by Parent on the Agreement Date,
as the same may be amended, restated, supplemented, or otherwise modified from time to time.
“Parent Loan Party”
means each of the Borrower, Holdings, and Parent.
“Participant”
has the meaning given that term in Section 12.5(d).
“Participant Register”
has the meaning given that term in Section 12.5(d).
“Patriot Act”
means the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)).
“Payment Recipient”
has the meaning given that term in Section 11.14(a).
“PBGC”
means the Pension Benefit Guaranty Corporation and any successor agency.
“Permitted Junior
Debt” has the meaning given that term in the definition of the term “Permitted Junior Lien.”
“Permitted Junior
Lien” means a Lien on all or a portion of any Collateral that (i) ranks junior to the Liens in favor of the Administrative
Agent for the benefit of the Lenders pursuant to the Loan Documents in accordance with the terms of a Junior Lien Intercreditor Agreement,
and (ii) secures Indebtedness of a Loan Party permitted to be incurred in accordance with Section 9.13 (any such Indebtedness,
“Permitted Junior Debt”), and (iii) grants to the holders of such Permitted Junior Debt only a residual interest
in any remaining collateral value following repayment in full of all Obligations and the termination of all Commitments hereunder.
32
“Permitted Liens”
means, as to any Person: (a) Liens securing (x) taxes, assessments and other charges or levies imposed by any Governmental Authority
(excluding any Lien imposed pursuant to any of the provisions of ERISA) or (y) the claims of materialmen, mechanics, carriers, warehousemen
or landlords for labor, materials, supplies or rentals incurred in the ordinary course of business, in each case, (i) which are not
at the time required to be paid or discharged under Section 7.6, or (ii) if such Lien is the responsibility of a financially
responsible tenant, mortgagor, or manager to discharge; (b) Liens consisting of deposits or pledges made, in the ordinary course
of business, in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance or similar
Applicable Laws; (c) Liens consisting of encumbrances in the nature of zoning restrictions, easements, and rights or restrictions
of record on the use of real property, and encroachments and protrusions which do not materially detract from the value of such property
or impair the use thereof in the business of such Person and, in the case of Holdings or any Subsidiary of Holdings, Liens granted by
any tenant on its leasehold estate in a Property which are subordinate to the interest of Holdings or a Subsidiary of Holdings in such
Property; (d) Liens in existence as of the Agreement Date and set forth in Item 6.2(b) of the Borrower Letter; (e) deposits
to secure trade contracts (other than for Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other obligations
of a like nature incurred in the ordinary course of business; (f) the lessor’s interest in property leased to Holdings or any
Subsidiaries of Holdings pursuant to a lease permitted by this Agreement; (g) the interests of tenants, operators or managers of
Properties; (h) Liens on any assets of a TRS in favor of Holdings or any Subsidiary of Holdings; (i) Liens in favor of the Administrative
Agent for the benefit of the Lenders pursuant to the Loan Documents; (j) Liens which are also secured by restricted Cash or Cash
Equivalent Investments of equal or greater value; (k) Liens securing judgments not constituting an Event of Default under Section 10.1(h);
(l) Liens (i) of a collection bank arising under Section 4-210 of the UCC on items in the course of collection, (ii) attaching
to commodity trading accounts or other commodities brokerage accounts incurred in the ordinary course of business, and (iii) in favor
of a banking or other financial institution arising as a matter of law or under customary general terms and conditions encumbering deposits
(including the right of set-off) and which are within the general parameters customary in the banking industry; (m) Liens (i) on
earnest money deposits in connection with purchases and sales of properties, (ii) on cash advances in favor of the seller of any
property to be acquired in an Investment permitted pursuant to this Agreement, or (iii) consisting of an agreement to dispose of
any property; (n) Liens in favor of Holdings or any of Subsidiaries of Holdings; (o) Liens arising from precautionary UCC financing
statement filings regarding operating leases entered into by Holdings or any Subsidiaries of Holdings in the ordinary course of business;
(p) Permitted Junior Liens; and (q) any Liens set forth in the Title Policies obtained by the Administrative Agent on or prior
to the Agreement Date (with respect to the Initial Collateral Properties) or the date a Property becomes a Collateral Property (with respect
to any other Collateral Property), insuring the Liens of the Security Instruments encumbering the Collateral Properties.
“Person”
means any natural person, corporation, limited partnership, general partnership, joint stock company, limited liability company, limited
liability partnership, joint venture, association, company, trust, bank, trust company, land trust, business trust or other organization,
whether or not a legal entity, or any other nongovernmental entity, or any Governmental Authority.
“Plan”
means at any time an employee pension benefit plan (other than a Multiemployer Plan) which is covered by Title IV of ERISA or subject
to the minimum funding standards under Section 412 of the Internal Revenue Code and either (a) is maintained, or contributed
to, by any member of the ERISA Group for employees of any member of the ERISA Group or (b) has at any time within the preceding six
years been maintained, or contributed to, by any Person which was at such time a member of the ERISA Group for employees of any Person
which was at such time a member of the ERISA Group.
33
“Plan of Division”
means (i) with respect to a LLC, a plan of division adopted by such LLC as required by any applicable Governmental Authority in order
to legally effectuate a LLC Division, including, without limitation, a plan of division as described in Section 18-217 of the Delaware
Limited Liability Company Act, as amended from time to time, and (ii) with respect to a LP, a plan of division adopted by such LP
as required by any applicable governmental authority in order to legally effectuate a LP Division, including, without limitation, a plan
of division as described in Section 17-220 of the Delaware Revised Uniform Limited Partnership Act, as amended from time to time.
“Pledge Agreement”
means the Pledge Agreement, a form of which is attached as Exhibit M-1 hereto, executed and delivered by each Pledgor (other
than Holdings) on the Agreement Date, together with each joinder agreement and supplement executed and delivered in connection therewith,
as the same may be amended, restated, supplemented, or otherwise modified from time to time.
“Pledged Interests”
means, collectively, (i) all “Pledged Interests” as defined in the Pledge Agreement, and (ii) all “Pledged
Interests” as defined in the Holdings Pledge Agreement.
“Pledgor”
means (i) Holdings and (ii) any Person that is party to the Pledge Agreement as a “Pledgor”.
“Post-Default Rate”
means, in respect of any principal of any Loan or any other Obligation, a rate per annum equal to the Base Rate as in effect from time
to time plus the Applicable Margin for Loans that are Base Rate Loans plus twothree
percent (2.03.0%).
“Prime Rate”
means, at any time, the rate of interest per annum publicly announced from time to time by the Lender acting as the Administrative Agent
as its prime rate. Each change in the Prime Rate shall be effective as of the opening of business on the day such change in such prime
rate occurs. The rate announced publicly by the Administrative Agent as its prime rate is an index or base rate and shall not necessarily
be its lowest or best rate charged to its customers or other banks. If the Prime Rate determined as provided above would be less than
zero, then the Prime Rate shall be deemed to be zero.
“Principal Office”
means the office of the Administrative Agent located at 600 South 4th
St., 10th Floor, Minneapolis, Minnesota 55415,500
Delaware Avenue, Wilmington, DE 19801 or any other subsequent office that the Administrative Agent shall have specified as
the Principal Office by written notice to the Borrower and the Lenders.
“Pro Rata Share”
means, as to each Lender, the ratio, expressed as a percentage of (a) (i) the amount of such Lender’s Revolving Commitments
plus (ii) the amount of such Lender’s outstanding Term Loan to (b) (i) the aggregate amount of the Revolving Commitments
of all Lenders plus (ii) the aggregate amount of all outstanding Term Loans; provided, however, that if at the time of determination
the Revolving Commitments have terminated or been reduced to zero, the “Pro Rata Share” of each Lender shall be the ratio,
expressed as a percentage of (A) the sum of the unpaid principal amount of all outstanding Revolving Loans and Term Loans owing to
such Lender as of such date to (B) the sum of the aggregate unpaid principal amount of all outstanding Revolving Loans and Term Loans
of all Lenders as of such date. If at the time of determination the Commitments have terminated and there are no outstanding Loans, then
the Pro Rata Shares of the Lenders shall be determined as of the most recent date on which Commitments were in effect or Loans were outstanding.
34
“Property”
means any parcel of real property, together with all improvements thereon, owned or leased pursuant to a Ground Lease by any Subsidiary
of the Borrower.
“Property Management
Agreement” means that certain Property Management Agreement dated as of the Agreement Date, by and among RMR and Parent, on
behalf of itself and its Subsidiaries, as may be hereafter amended from time to time subject to the terms of this Agreement.
“Property Management
Contract Assignment” means an assignment and/or subordination of management agreement executed by a Loan Party in favor of the
Administrative Agent for its benefit and the benefit of the other Lenders, in form and substance reasonably satisfactory to the Administrative
Agent. Such document may, at the Administrative Agent’s election, constitute a subordination of the Property Management Agreement
rather than an assignment thereof.
“Protective Advance”
means all sums expended as determined by the Administrative Agent to be necessary or appropriate after the Borrower or any other Loan
Party fails to do so when required: (a) to protect the validity, enforceability, perfection or priority of the Liens in any of the
Collateral and the instruments evidencing the Obligations; (b) to prevent the value of any Collateral from being materially diminished
(assuming the lack of such a payment within the necessary time frame could potentially cause such Collateral to lose value); or (c) to
protect any of the Collateral from being materially damaged, impaired, mismanaged or taken, including, without limitation, any amounts
expended in connection therewith in accordance with Section 11.10 or 12.2 and any “Protective Advance”
as defined in any of the Security Instruments.
“PTE” means
a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“QFC” has
the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C.
5390(c)(8)(D).
“Qualified Collateral
Property Sale” means a sale of any Collateral Property to an unaffiliated third party purchaser (excluding, for the avoidance
of doubt, Parent or any of its Affiliates or Subsidiaries) in exchange for consideration no less than the greater of: (x) the amount
equal to one hundred percent (100%) of all Net Cash Proceeds thereof and (y) the amount equal to one hundred and five percent (105%)
of the Appraised Value of the Property subject to such Property Release (such greater amount, the “Qualified Collateral Property
Sale Prepayment Amount”), which sale and the terms thereof, solely in the case of any such sale consummated after the first
anniversary of the Effective Date, shall be subject to approval by the Administrative Agent (such approval not to be unreasonably withheld,
conditioned or delayed).
“Qualified Collateral
Property Sale Prepayment Amount” has the meaning given that term in the definition of the term “Qualified Collateral
Property Sale.”
“Qualified Plan”
means a Benefit Arrangement that is intended to be tax-qualified under Section 401(a) of the Internal Revenue Code.
35
“Recipient”
means (a) the Administrative Agent and (b) any Lender, as applicable.
“Register”
has the meaning given that term in Section 12.5(c).
“Regulatory Change”
means, with respect to any Lender, any change effective after the Agreement Date in Applicable Law (including without limitation, Regulation
D of the FRB) or the adoption or making after such date of any interpretation, directive or request applying to a class of banks, including
such Lender, of or under any Applicable Law (whether or not having the force of law and whether or not failure to comply therewith would
be unlawful) by any Governmental Authority or monetary authority charged with the interpretation or administration thereof or compliance
by any Lender with any request or directive regarding capital adequacy or liquidity. Notwithstanding anything herein to the contrary,
(a) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or
issued in connection therewith and (b) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements,
the Basel Committee on Banking Supervision (or any successor or similar authority) or United States or foreign regulatory authorities,
in each case pursuant to Basel III, shall in each case be deemed to be a “Regulatory Change”, regardless of the date
enacted, adopted, implemented, or issued.
“REIT”
means a Person qualifying for treatment as a “real estate investment trust” under the Internal Revenue Code.
“Related Parties”
means, with respect to any Person, such Person’s Affiliates and the partners, shareholders, directors, officers, employees, agents,
counsel, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.
“Relevant Governmental
Body” means the FRB or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the FRB or the
Federal Reserve Bank of New York, or any successor thereto.
“Required Title Updates”
means, with respect to the Title Policy for each Affected Collateral Property, a title search, continuation statement, tract search (or
other local equivalent) and/or mechanics lien endorsement to such Title Policy or other similar deliverable, in each such case, reasonably
satisfactory to the Administrative Agent.
“Requisite Lenders”
means, as of any date, (a) Lenders having more than 50% of the aggregate amount of the Revolving Commitments and the outstanding
Term Loans of all Lenders, or (b) if the Revolving Commitments have been terminated or reduced to zero, Lenders holding more than
50% of the principal amount of the aggregate outstanding Loans; provided that (i) in determining such percentage at any given time,
all then existing Defaulting Lenders will be disregarded and excluded and (ii) at all times when two or more Lenders (excluding Defaulting
Lenders) are party to this Agreement, the term “Requisite Lenders” shall in no event mean less than two Lenders.
36
“Requisite Revolving
Lenders” means, as of any date, (a) Revolving Lenders having more than 50% of the aggregate amount of the Revolving Commitments
of all Revolving Lenders, or (b) if the Revolving Commitments have been terminated or reduced to zero, the Revolving Lenders holding
more than 50% of the principal amount of the aggregate outstanding Revolving Loans; provided that (i) in determining such percentage
at any given time, all then existing Defaulting Lenders that are Revolving Lenders will be disregarded and excluded, and (ii) at
all times when two or more Revolving Lenders (excluding Defaulting Lenders that are Revolving Lenders) are party to this Agreement, the
term “Requisite Revolving Lenders” shall in no event mean less than two Revolving Lenders.
“Requisite Term Loan
Lenders” means, as of any date, Term Loan Lenders having more than 50% of the aggregate outstanding principal amount of the
Term Loans; provided that (a) in determining such percentage at any given time, all then existing Defaulting Lenders that are Term
Loan Lenders will be disregarded and excluded, and (b) at all times when two or more Term Loan Lenders (excluding Defaulting Lenders
that are Term Loan Lenders) are party to this Agreement, the term “Requisite Term Loan Lenders” shall in no event mean less
than two Term Loan Lenders.
“Resolution Authority”
means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer”
means (a) with respect to Parent, Parent’s President, Chief Financial Officer or Treasurer or any Managing Trustee of Parent
and (b) with respect to any other Loan Party, such Loan Party’s president, chief executive officer, chief operating officer
or chief financial officer.
“Restricted Payment”
means (a) any dividend or other distribution, direct or indirect, on account of any Equity Interest of Parent or any of its Subsidiaries
now or hereafter outstanding, except a dividend or distribution payable solely in shares of that class of Equity Interests to the holders
of that class; (b) any redemption, conversion, exchange, retirement, sinking fund or similar payment, purchase or other acquisition
for value (including, without limitation, any stock buybacks), direct or indirect, of any shares of any Equity Interest of Parent or any
of its Subsidiaries now or hereafter outstanding (a “Restricted Purchase”); and (c) any payment made to retire,
or to obtain the surrender of, any outstanding warrants, options or other rights to acquire any Equity Interests of Parent or any of its
Subsidiaries now or hereafter outstanding.
“Restricted Purchase”
has the meaning given that term in the definition of the term “Restricted Payment.”
“Revolving Commitment”
means, as to each Lender, such Lender’s obligation to make Revolving Loans pursuant to Section 2.1 in an amount up to,
but not exceeding the amount set forth for such Lender on Schedule I as such Lender’s “Revolving Commitment Amount”
or as set forth in any applicable Assignment and Assumption, as the same may be reduced from time to time pursuant to Section 2.12
or increased or reduced as appropriate to reflect any assignments to or by such Lender effected in accordance with Section 12.5.
“Revolving Commitment
Percentage” means, as to each Revolving Lender, the ratio, expressed as a percentage, of (a) the amount of such Lender’s
Revolving Commitment to (b) the aggregate amount of the Revolving Commitments of all Revolving Lenders; provided, however, that if
at the time of determination the Revolving Commitments have been terminated or been reduced to zero, the “Revolving Commitment
Percentage” of each Revolving Lender shall be the “Revolving Commitment Percentage” of such Revolving Lender
in effect immediately prior to such termination or reduction.
37
“Revolving Credit
Exposure” means, as to any Revolving Lender at any time, the aggregate principal amount at such time of its outstanding Revolving
Loans.
“Revolving Credit
Termination Date” means January 29, 2027, or such later date
to which the Revolving Credit Termination Date may be extended pursuant to Section 2.13.
“Revolving Lender”
means a Lender having a Revolving Commitment or, if the Revolving Commitments have terminated, holding any Revolving Loans.
“Revolving Loan”
means a loan made by a Revolving Lender to the Borrower pursuant to Section 2.1(a).
“Revolving Note”
means a promissory note of the Borrower substantially in the form of Exhibit G, payable to a Revolving Lender in a principal
amount equal to the amount of such Revolving Lender’s Revolving Commitment.
“RMR” means
The RMR Group LLC, together with its successors and permitted assigns.
“Sanctioned Target”
means any target of Sanctions, including: (a) Persons on any list of targets identified or designated pursuant to any Sanctions,
(b) Persons, countries, or territories that are the target of any territorial or country-based Sanctions program, (c) Persons
that are a target of or subject to Sanctions due to their ownership or control by any Sanctioned Target(s), or (d) otherwise a target
of or subject to Sanctions, including vessels and aircraft, that are blocked under any Sanctions program.
“Sanctions”
means any and all economic or financial sanctions, sectoral sanctions, secondary sanctions, trade embargoes and restrictions and anti-terrorism
laws imposed, administered or enforced by: (a) the United States of America, including those administered by the U.S. Department
of the Treasury’s Office of Foreign Assets Control (OFAC), the U.S. Department of State, the U.S. Department of Commerce, or through
any existing or future statute or Executive Order, (b) the United Nations Security Council, (c) the European Union, (d) the
United Kingdom, or (e) any other governmental authority with jurisdiction over Borrower or any member of the Borrowing Group.
“Secured Debt”
means Debt secured by an Encumbrance on the property of Parent or its Subsidiaries. For the avoidance of doubt, all Indebtedness under
the Loan Documents shall constitute Secured Debt.
“Secured
Exit Notes” means the senior secured notes issued (or to be issued) by Parent on the effective date of the Fourth Amended Joint
Chapter 11 Plan of Reorganization of Office Properties Income Trust and its Debtor Affiliates [Docket No. 1223] (as may be further
amended, supplemented, or modified from time to time) in an aggregate principal amount of $420,000,000, and all indentures, agreements
and other documentation governing or evidencing the foregoing, in each case, as amended, restated, amended and restated, supplemented
or otherwise modified from time to time in accordance with the terms thereof and hereof.
38
“Secured Parties”
means, collectively, the Administrative Agent, the Lenders, each Titled Agent and each co-agent or sub-agent appointed by the Administrative
Agent from time to time pursuant to the terms of this Agreement, any other holder from time to time of any Obligations and, in each case,
their respective successors and permitted assigns.
“Securities Act”
means the Securities Act of 1933, as amended from time to time, together with all rules and regulations issued thereunder.
“Security Documents”
means, collectively, the Pledge Agreement, the Holdings Pledge Agreement, any Security Instrument, any Property Management Contract Assignment,
and any other security agreement, pledge agreement, or other document, instrument or agreement creating, evidencing or perfecting the
Liens in any of the Collateral granted to Administrative Agent, for the benefit of Lenders and any other Related Parties, including, without
limitation, any assignment of leases and rents, any collateral assignments or comfort letters, in each case, to the extent applicable.
“Security Instrument”
means a mortgage, deed of trust, deed to secure debt, or equivalent instrument executed by a Subsidiary of the Borrower in favor of the
Administrative Agent, for its benefit and the benefit of the other Lenders, in form and substance reasonably satisfactory to the Administrative
Agent, in each case, as the same may be amended, restated, supplemented, or otherwise modified from time to time.
“Simple SOFR Adjustment”
means a percentage equal to 0.10% per annum.
“SOFR”
means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
“SOFR Administrator”
means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
“SOFR
Administrator’s Website” means the website of the Federal Reserve Bank of New York, currently at http://www.newyorkfed.org,
or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.
“SOFR Loan”
means any Daily Simple SOFR Loan or Term SOFR Loan.
“Solvent”
means, when used with respect to any Person, that (a) the fair value and the fair salable value of its assets (excluding any Indebtedness
due from any Affiliate of such Person) are each in excess of the fair valuation of its total liabilities (including all contingent liabilities
computed at the amount which, in light of all facts and circumstances existing at such time, represents the amount that could reasonably
be expected to become an actual and matured liability); (b) such Person is able to pay its debts or other obligations in the ordinary
course as they mature; and (c) such Person has capital not unreasonably small to carry on its business and all business in which
it proposes to be engaged.
“SPE Requirements”
means each of the requirements set forth on Annex II hereto.
“Special Purpose
Entity” means a Person in compliance with each of the SPE Requirements applicable to such Person.
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“Specified Derivatives
Contract” means any Derivatives Contract, together with any Derivatives Support Document relating thereto, that is made or entered
into at any time, or in effect at any time now or hereafter, whether as a result of an assignment or transfer or otherwise, between Parent
or any Subsidiary and any Specified Derivatives Provider, and which is intended to establish an effective hedge in respect of the Obligations
hereunder.
“Specified Derivatives
Obligations” means all indebtedness, liabilities, obligations, covenants and duties of Parent or its Subsidiaries under or in
respect of any Specified Derivatives Contract, whether direct or indirect, absolute or contingent, due or not due, liquidated or unliquidated,
and whether or not evidenced by any written confirmation.
“Specified Derivatives
Provider” means any Lender, or any Affiliate of a Lender that is a party to a Specified Derivatives Contract at the time such
Specified Derivatives Contract is entered into.
“Specified
Lenders” means, as of any date, (a) Lenders having more than sixty-six and two-thirds percent (66-⅔%) of
the aggregate amount of the Revolving Commitments and the outstanding Term Loans of all Lenders, or (b) if the Revolving Commitments
have been terminated or reduced to zero, Lenders holding more than sixty-six and two-thirds percent (66-⅔%) of the principal amount
of the aggregate outstanding Loans; provided that (i) in determining such percentage at any given time, all then existing Defaulting
Lenders will be disregarded and excluded and (ii) at all times when two or more Lenders (excluding Defaulting Lenders) are party
to this Agreement, the term “Specified Lenders” shall in no event mean less than two Lenders.
“Specified Payments”
means the sum of (A) the amount of each prepayment of Term Loans made pursuant to and in accordance with Section 2.8
after the Effective Date and (B) the amount of each permanent reduction of the Revolving Commitments made after the Effective Date
pursuant to and in accordance with Section 2.12, in each case, in excess of the first $50,000,000 of such payments/reductions
on a combined basis.
“S&P”
means Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business, or any successor.
“Subordinated Debt”
means Debt which by the terms of such Debt is subordinated in right of payment to the principal of and interest and premium, if any, on
any senior notes issued by Parent.
“Subsidiary”
means, for any Person, any corporation, partnership, limited liability company or other entity of which at least a majority of the Equity
Interests having by the terms thereof ordinary voting power to elect a majority of the board of directors or other individuals performing
similar functions of such corporation, partnership, limited liability company or other entity (without regard to the occurrence of any
contingency) is at the time directly or indirectly owned or controlled by such Person or one or more Subsidiaries of such Person or by
such Person and one or more Subsidiaries of such Person, and shall include all Persons the accounts of which are consolidated with those
of such Person pursuant to GAAP.
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“Subsidiary Guarantor”
means each Subsidiary Owner.
“Subsidiary Guaranty”
means the Subsidiary Guaranty substantially in the form of Exhibit B-1 executed and delivered by the Subsidiary Guarantors
on the Agreement Date, together with each joinder agreement and supplement executed and delivered in connection therewith, as the same
may be amended, restated, supplemented, or otherwise modified from time to time.
“Subsidiary Owners”
means, collectively, each Initial Subsidiary Owner and each Additional Subsidiary Owner.
“Taxes”
means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees
or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Term Loan”
means a loan made by a Term Loan Lender to the Borrower pursuant to Section 2.2.
“Term Loan Commitment”
means, as to each Term Loan Lender, such Lender’s obligation to make a Term Loan on the Effective Date pursuant to Section 2.2,
in an amount up to, but not exceeding, the amount set forth for such Lender on Schedule I as such Lender’s “Term
Loan Commitment Amount”.
“Term Loan Lender”
means a Lender having a Term Loan Commitment, or if the Term Loan Commitments have terminated, a Lender holding a Term Loan.
“Term Loan Maturity
Date” means January 29, 2027.
“Term Loan Percentage”
means, as to each Term Loan Lender, the ratio, expressed as a percentage, of (i) the unpaid principal amount of the Term Loan owing
to such Lender as of such date to (ii) the aggregate unpaid principal amount of all outstanding Term Loans as of such date.
“Term Note”
means a promissory note of the Borrower substantially in the form of Exhibit H, payable to a Term Loan Lender in a principal
amount equal to the amount of such Term Loan Lender’s Term Loan.
“Term SOFR”
means, for any calculation, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period on the day (such day,
the “Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to the first
day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided, however, that if as of
5:00 p.m. (Eastern time) on any Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published
by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term
SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government
Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as
such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days
prior to such Term SOFR Determination Day.
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“Term SOFR Adjustment”
means a percentage equal to 0.10% per annum.
“Term SOFR Administrator”
means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Administrative
Agent in its reasonable discretion).
“Term SOFR Loan”
means any Loan bearing interest at a rate based on Adjusted Term SOFR.
“Term SOFR Reference
Rate” means the forward-looking term rate based on SOFR.
“Title Insurance
Company” means (i) First American Title Insurance Company, or (ii) any other title company reasonably acceptable to
the Administrative Agent.
“Title Policy”
means, with respect to each Collateral Property, an ALTA standard form title insurance policy (or, if such form is not available, an equivalent,
legally promulgated form of mortgagee title insurance policy reasonably acceptable to the Administrative Agent) issued by a Title Insurance
Company (with such co-insurance or reinsurance as the Administrative Agent may require) in an amount as the Administrative Agent may reasonably
require based on the Appraised Value of such Collateral Property insuring the priority of the Security Instrument thereon and that the
Subsidiary Owner or other Loan Party, as applicable, holds marketable or indefeasible (with respect to Texas) fee simple (or leasehold,
if applicable) title to such Collateral Property, subject only to encumbrances reasonably acceptable to the Administrative Agent and which
shall not contain standard exceptions for mechanics liens, persons in occupancy (other than tenants as tenants only under tenant leases
with no rights of purchase (unless such right of purchase is otherwise approved by the Administrative Agent in its sole discretion)) or
matters which would be shown by a survey, shall not insure over any matter except to the extent that any such affirmative insurance is
acceptable to the Administrative Agent in its reasonable discretion, and shall contain such endorsements and affirmative insurance as
the Administrative Agent may reasonably require to the extent available in the jurisdiction in which such Collateral Property is located,
including, but not limited to, an aggregation endorsement as and to the extent available in the jurisdiction in which such Collateral
Property is located, but may exclude, in any event, affirmative coverage for preferential transfers.
“Titled Agent”
has the meaning given in Section 11.9.
“Total Assets”
as of any date means the sum of (i) the Undepreciated Real Estate Assets; (ii) the Fair Value of all Equity Method Investments
of Parent and its Subsidiaries; and (iii) all other assets of Parent and its Subsidiaries on such date determined in accordance with
GAAP (but excluding accounts receivable and intangibles); provided that the portion of Total Assets attributable to Equity Method Investments
of Parent and its Subsidiaries may not exceed 35%.
“Total Unencumbered
Assets” as of any date means the sum of (i) those Undepreciated Real Estate Assets not securing any portion of Secured
Debt; (ii) the Fair Value of all Equity Method Investments of Parent and its Subsidiaries not securing any portion of Secured Debt;
and (iii) all other assets of Parent and its Subsidiaries not securing any portion of Secured Debt on such date determined in accordance
with GAAP (but excluding accounts receivable and intangibles); provided that, in determining Total Unencumbered Assets as a percentage
of the aggregate outstanding principal amount of Unsecured Debt of Parent and its Subsidiaries on a consolidated basis for purposes of
the covenant set forth in Section 9.1(a) of this Agreement, Joint Venture Interests shall be excluded from Total Unencumbered
Assets to the extent such Joint Venture Interests would otherwise be included therein; and provided further that the portion of Total
Unencumbered Assets attributable to Equity Method Investments of Parent and its Subsidiaries may not exceed 35%.
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“TRS” means
any direct or indirect Subsidiary of Parent that is classified as a “taxable REIT subsidiary” under Section 856(l) of
the Internal Revenue Code.
“Type”
with respect to any Revolving Loan or Term Loan, refers to whether such Loan or portion thereof is a Daily Simple SOFR Loan, a Term SOFR
Loan or a Base Rate Loan.
“UCC” means
the Uniform Commercial Code as in effect in any applicable jurisdiction.
“UK Financial Institution”
means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom
Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated
by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates
of such credit institutions or investment firms.
“UK Resolution Authority”
means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Unadjusted Benchmark
Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“Unaffected Collateral
Property Availability” means the then Collateral Property Availability minus the Collateral Property Availability attributable
to the Affected Collateral Properties.
“Undepreciated Real
Estate Assets” as of any date means the cost (original cost plus capital improvements) of real estate assets of Parent and its
Subsidiaries on such date, before depreciation and amortization determined on a consolidated basis in accordance with GAAP.
“Unsecured Debt”
means any Debt of Parent or its Subsidiaries which is not Secured Debt.
“Unused Fee”
has the meaning given to that term in Section 3.5(b).
“Usage”
has the meaning given to that term in Section 3.5(b).
“U.S. Government
Securities Business Day” means any day except for (a) a Saturday, (b) a Sunday or (c) a day on which the Securities
Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for
purposes of trading in United States government securities; provided, that for purposes of notice requirements in Sections 2.1(b),
2.8, 2.9, 2.10 and 2.12, in each case, such day is also a Business Day.
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“U.S. Person”
means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Internal Revenue Code.
“U.S. Special Resolution
Regimes” has the meaning given that term in Section 12.23.
“U.S. Tax Compliance
Certificate” has the meaning assigned to such term in Section 3.10(g)(ii)(B)(III).
“Wells Fargo”
means Wells Fargo Bank, National Association, and its successors and assigns.
“Wholly Owned Subsidiary”
means any Subsidiary of a Person in respect of which all of the Equity Interests (other than, in the case of a corporation, directors’
qualifying shares) are at the time directly or indirectly owned and controlled by such Person or one or more other Subsidiaries of such
Person or by such Person and one or more other Subsidiaries of such Person.
“Withdrawal Liability”
means any liability as a result of a complete or partial withdrawal from a Multiemployer Plan as such terms are defined in Part I
of Subtitle E of Title IV of ERISA.
“Withholding Agent”
means (a) the Borrower, (b) any other Loan Party and (c) the Administrative Agent, as applicable.
“Write-Down and Conversion
Powers” means (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution
Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers
are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution
Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or
any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations
of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised
under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related
to or ancillary to any of those powers.
Section 1.2. General;
References to Eastern Time.
Unless otherwise indicated,
all accounting terms, ratios and measurements shall be interpreted or determined in accordance with GAAP in accordance with the definition
thereof. Notwithstanding the preceding sentence, (x) for purposes of determining compliance with any covenant (including the computation
of any financial covenant) contained herein, Indebtedness of Parent and its Subsidiaries shall be deemed to be carried at 100% of
the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded,
and (y) all obligations of any Person that are or would have been treated as operating leases for purposes of GAAP prior to the effectiveness
of FASB ASC 842 shall continue to be accounted for as operating leases for purposes of all financial definitions and calculations for
purpose of this Agreement (whether or not such operating lease obligations were in effect on such date) notwithstanding the fact that
such obligations are required in accordance with FASB ASC 842 (on a prospective or retroactive basis or otherwise) to be treated as Capitalized
Lease Obligations in the financial statements. References in this Agreement to “Sections”, “Articles”, “Exhibits”
and “Schedules” are to sections, articles, exhibits and schedules herein and hereto unless otherwise indicated. References
in this Agreement to any document, instrument or agreement (a) shall include all exhibits, schedules and other attachments thereto,
(b) shall include all documents, instruments or agreements issued or executed in replacement thereof, to the extent permitted hereby
and (c) shall mean such document, instrument or agreement, or replacement or predecessor thereto, as amended, supplemented, restated
or otherwise modified from time to time to the extent not otherwise stated herein or prohibited hereby and in effect at any given time.
Wherever from the context it appears appropriate, each term stated in either the singular or plural shall include the singular and plural,
and pronouns stated in the masculine, feminine or neuter gender shall include the masculine, the feminine and the neuter. Unless explicitly
set forth to the contrary, a reference to “Subsidiary” means a direct or indirect Subsidiary of Holdings, and a reference
to an “Affiliate” means a reference to an Affiliate of Parent. Titles and captions of Articles, Sections, subsections and
clauses in this Agreement are for convenience only, and neither limit nor amplify the provisions of this Agreement. Unless otherwise indicated,
all references to time are references to Eastern time, daylight or standard, as applicable.
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Section 1.3. Rates.
The Administrative Agent does
not warrant or accept any responsibility for, and shall not have any liability with respect to, (a) the continuation of, administration
of, submission of, calculation of or any other matter related to Adjusted Daily Simple SOFR, SOFR, the Term SOFR Reference Rate, Adjusted
Term SOFR or Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or with respect to any alternative,
successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any
such alternative, successor or replacement rate (including any Benchmark Replacement), as it may or may not be adjusted pursuant to Section 4.2(c),
will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, Adjusted Daily Simple
SOFR, SOFR, the Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR or any other Benchmark prior to its discontinuance or unavailability,
or (b) the effect, implementation or composition of any Conforming Changes. The Administrative Agent and its Affiliates or other
related entities may engage in transactions that affect the calculation of the Adjusted Daily Simple SOFR, SOFR, Term SOFR Reference Rate,
Adjusted Term SOFR, Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments
thereto and such transactions may be adverse to the Borrower. The Administrative Agent may select information sources or services in its
reasonable discretion to ascertain Adjusted Daily Simple SOFR, SOFR, the Term SOFR Reference Rate, Adjusted Term SOFR or Term SOFR, or
any other Benchmark, any component definition thereof or rates referred to in the definition thereof, in each case pursuant to the terms
of this Agreement, and shall have no liability to the Borrower or any other Loan Party, any Lender or any other person or entity for damages
of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether
in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof)
provided by any such information source or service.
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Section 1.4. Divisions.
For all purposes under the
Loan Documents, in connection with any division or Plan of Division under Delaware law (or any comparable event under a different jurisdiction’s
laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different
Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person
comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its
Equity Interests at such time.
Article II.
CREDIT FACILITY
Section 2.1. Revolving
Loans.
(a) Making
of Revolving Loans. Subject to the terms and conditions set forth in this Agreement, including without limitation, Section 2.15,
each Revolving Lender severally and not jointly agrees to make Revolving Loans in Dollars to the Borrower during the period from and including
the Effective Date to but excluding the Revolving Credit Termination Date, in an aggregate principal amount at any one time outstanding
up to, but not exceeding the lesser of (i) the amount of such Lender’s Revolving Commitment and (ii) such Lender’s
Revolving Commitment Percentage of the then Collateral Property Availability. Each borrowing of Revolving Loans that are to be Base Rate
Loans shall be in an aggregate minimum amount of $1,000,000 and integral multiples of $250,000 in excess thereof. Each borrowing and Continuation
under Section 2.9 of, and each Conversion under Section 2.10 of Loans shall be in an aggregate minimum of $1,000,000
and integral multiples of $250,000 in excess of that amount. Notwithstanding the immediately preceding two sentences but subject to Section 2.15,
a borrowing of Revolving Loans may be in the aggregate amount of the unused Revolving Commitments or the aggregate amount of the unused
Collateral Property Availability, as then applicable pursuant to the terms of this Agreement. Within the foregoing limits and subject
to the terms and conditions of this Agreement, the Borrower may borrow, repay and reborrow Revolving Loans.
(b) Requests
for Revolving Loans. Not later than (i) 10:00 a.m. Eastern time on the Business Day (or, in the case of Daily Simple SOFR
Loans, U.S. Government Securities Business Day) of a borrowing of Revolving Loans that are to be Base Rate Loans or Daily Simple SOFR
Loans and (ii) 11:00 a.m. Eastern time at least three (3) U.S. Government Securities Business Days prior to a borrowing
of Revolving Loans that are to be Term SOFR Loans (or, in each case under this paragraph (b) solely with respect to a Borrowing of
Revolving Loans on the Effective Date, such later time and/or shorter period as the Administrative Agent may agree in its sole discretion),
the Borrower shall deliver to the Administrative Agent a Notice of Borrowing. Each Notice of Borrowing shall specify the aggregate principal
amount of the Revolving Loans to be borrowed, the date such Revolving Loans are to be borrowed (which must be a Business Day), the use
of the proceeds of such Revolving Loans, the Type of the requested Revolving Loans, and if such Revolving Loans are to be Term SOFR Loans,
the initial Interest Period for such Revolving Loans. Each Notice of Borrowing shall be irrevocable once given and binding on the Borrower.
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(c) Funding
of Revolving Loans. Promptly after receipt of a Notice of Borrowing under the immediately preceding subsection (b), the Administrative
Agent shall notify each Revolving Lender of the proposed borrowing. Each Revolving Lender shall deposit an amount equal to the Revolving
Loan to be made by such Revolving Lender to the Borrower with the Administrative Agent at the Principal Office, in immediately available
funds not later than 12:00 p.m. Eastern time on the date of such proposed Revolving Loans. Subject to fulfillment of all applicable
conditions set forth herein, the Administrative Agent shall make available to the Borrower in the account specified in the Disbursement
Instruction Agreement, not later than 3:00 p.m. Eastern time on the date of the requested borrowing of Revolving Loans, the proceeds
of such amounts received by the Administrative Agent.
(d) Assumptions
Regarding Funding by Revolving Lenders. With respect to Revolving Loans to be made after the Effective Date, unless the Administrative
Agent shall have been notified by any Revolving Lender that such Lender will not make available to the Administrative Agent a Revolving
Loan to be made by such Lender in connection with any borrowing, the Administrative Agent may assume that such Lender will make the proceeds
of such Revolving Loan available to the Administrative Agent in accordance with this Section, and the Administrative Agent may (but shall
not be obligated to), in reliance upon such assumption, make available to the Borrower the amount of such Revolving Loan to be provided
by such Lender. In such event, if such Lender does not make available to the Administrative Agent the proceeds of such Revolving Loan
on the date and at the time specified in Section 2.1(c), then such Lender and the Borrower severally agree to pay to the Administrative
Agent on demand the amount of such Revolving Loan with interest thereon, for each day from and including the date such Revolving Loan
is made available to the Borrower but excluding the date of payment to the Administrative Agent, at (i) in the case of a payment
to be made by such Lender, the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation and (ii) in the case of a payment to be made by the Borrower, the interest
rate applicable to Base Rate Loans. Notwithstanding the prior sentence, if any Revolving Lender shall fail to make available to the Administrative
Agent the proceeds of a Revolving Loan on the date and at the time specified in Section 2.1(c) but shall make such proceeds
available to the Administrative Agent at a later time on such date, such Lender shall pay to the Administrative Agent one day’s
worth of interest computed in accordance with clause (i) of the immediately preceding sentence, unless such Lender can provide evidence
reasonably satisfactory to the Administrative Agent that such Lender has timely made such proceeds available to the Administrative Agent,
including, without limitation, a Fed Reference Number screen shot evidencing the date and time such Lender’s wire was sent. If the
Borrower and such Lender shall pay the amount of such interest to the Administrative Agent for the same or overlapping period, the Administrative
Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays to the
Administrative Agent the amount of such Revolving Loan, the amount so paid shall constitute such Lender’s Revolving Loan included
in the borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Revolving Lender
that shall have failed to make available the proceeds of a Revolving Loan to be made by such Lender.
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Section 2.2. Term
Loans.
(a) Making
of Term Loans. Subject to the terms and conditions hereof, on the Effective Date, each Term Loan Lender severally and not jointly
agrees to make a Term Loan in Dollars to the Borrower in an aggregate principal amount equal to the amount of such Lender’s Term
Loan Commitment. Upon a Lender’s funding of its Term Loan, the Term Loan Commitment of such Lender shall terminate.
(b) Requests
for Term Loans. Not later than 10:00 a.m. Eastern time at least three (3) Business Days prior to the anticipated Effective
Date (or such later time and/or shorter period as the Administrative Agent may agree in its sole discretion), the Borrower shall give
the Administrative Agent notice requesting that the Term Loan Lenders make the Term Loans on the Effective Date and specifying the aggregate
principal amount of Term Loans to be borrowed, the Type of the Term Loans, and if such Term Loans are to be Term SOFR Loans, the initial
Interest Period for the Term Loans. Upon receipt of such notice the Administrative Agent shall promptly notify each Term Loan Lender.
(c) Funding
of Term Loans. Each Term Loan Lender shall deposit an amount equal to the Term Loan to be made by such Term Loan Lender to the Borrower
with the Administrative Agent at the Principal Office, in immediately available funds, not later than 12:00 p.m. Eastern time on
the Effective Date. Subject to fulfillment of all applicable conditions set forth herein, the Administrative Agent shall make available
to the Borrower in the account specified by the Borrower in the Disbursement Instruction Agreement, not later than 3:00 p.m. Eastern
time on the Effective Date, the proceeds of such amounts received by the Administrative Agent. The Borrower may not reborrow any portion
of the Term Loans once repaid.
Section 2.3. [Reserved].
Section 2.4. [Reserved].
Section 2.5. Rates
and Payment of Interest on Loans.
(a) Rates.
The Borrower promises to pay to the Administrative Agent for the account of each Lender interest on the unpaid principal amount of each
Loan made by such Lender for the period from and including the date of the making of such Loan to but excluding the date such Loan shall
be paid in full, at the following per annum rates:
(i) during
such periods as a Revolving Loan is a Base Rate Loan, at the Base Rate (as in effect from time to time), plus the Applicable Margin for
Revolving Loans that are Base Rate Loans;
(ii) during
such periods as a Revolving Loan is a Daily Simple SOFR Loan, at Adjusted Daily Simple SOFR, plus the Applicable Margin for Revolving
Loans that are SOFR Loans;
(iii) during
such periods as a Revolving Loan is a Term SOFR Loan, at Adjusted Term SOFR for such Revolving Loan for the Interest Period therefor,
plus the Applicable Margin for Revolving Loans that are SOFR Loans;
(iv) during
such periods as a Term Loan is a Base Rate Loan, at the Base Rate (as in effect from time to time), plus the Applicable Margin for Term
Loans that are Base Rate Loans;
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(v) during
such periods as a Term Loan is a Daily Simple SOFR Loan, at Adjusted Daily Simple SOFR, plus the Applicable Margin for Term Loans that
are SOFR Loans; and
(vi) during
such periods as a Term Loan is a Term SOFR Loan, at Adjusted Term SOFR for such Term Loan for the Interest Period therefor, plus the Applicable
Margin for Term Loans that are SOFR Loans.
Notwithstanding the foregoing, while an Event
of Default exists, the Borrower shall pay to the Administrative Agent for the account of each Lender interest at the Post-Default Rate
on the outstanding principal amount of any Loan made by such Lender and on any other amount payable by the Borrower hereunder or under
any Note held by such Lender to or for the account of such Lender (including without limitation, accrued but unpaid interest to the extent
permitted under Applicable Law).
(b) Payment
of Interest. All accrued and unpaid interest on the outstanding principal amount of each Loan shall be payable in arrears on each
Interest Payment Date applicable thereto and on any date on which the principal balance of such Loan is due and payable in full (whether
at maturity, due to acceleration or otherwise). Interest payable at the Post-Default Rate shall be payable from time to time on demand.
All determinations by the Administrative Agent of an interest rate hereunder shall be conclusive and binding on the Lenders and the Borrower
for all purposes, absent manifest error.
(c) Borrower
Information Used to Determine Applicable Interest Rates. The parties understand that the applicable interest rate for the Obligations
and certain fees set forth herein may be determined and/or adjusted from time to time based upon certain financial ratios and/or other
information to be provided or certified to the Lenders by Parent or the Borrower (the “Borrower Information”). If it
is subsequently determined that any such Borrower Information was incorrect (for whatever reason, including without limitation because
of a subsequent restatement of earnings by Parent or the Borrower) at the time it was delivered to the Administrative Agent, and if the
applicable interest rate or fees calculated for any period were lower than they should have been had the correct information been timely
provided, then, such interest rate and such fees for such period shall be automatically recalculated using correct Borrower Information.
The Administrative Agent shall promptly notify the Borrower in writing of any additional interest and fees due because of such recalculation,
and the Borrower shall pay such additional interest or fees due to the Administrative Agent, for the account of each Lender, within five
(5) Business Days of receipt of such written notice. Any recalculation of interest or fees required by this provision shall survive
the termination of this Agreement, and this provision shall not in any way limit any of the Administrative Agent’s or any Lender’s
other rights under this Agreement.
Section 2.6. Number
of Interest Periods.
There may be no more than
eight (8) different Interest Periods for Loans outstanding at the same time.
Section 2.7. Repayment
of Loans.
(a) Revolving
Loans. The Borrower shall repay the entire outstanding principal amount of, and all accrued but unpaid interest on, the Revolving
Loans on the Revolving Credit Termination Date.
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(b) Term
Loans. The Borrower shall repay the entire outstanding principal amount of, and all accrued but unpaid interest on, the Term Loans
on the Term Loan Maturity Date.
Section 2.8. Prepayments.
(a) Optional.
Subject to Section 4.4, the Borrower may prepay any Loan in whole or in part at any time without premium or penalty. The Borrower
shall give the Administrative Agent at least three (3) U.S. Government Securities Business Days prior written notice of the prepayment
of any Loan. Each voluntary prepayment of Base Rate Loans shall be in an aggregate minimum amount of $500,000 and integral multiples of
$250,000 in excess thereof. Each voluntary prepayment of SOFR Loans shall be in an aggregate minimum of $1,000,000 and integral multiples
of $250,000 in excess of that amount. Each such voluntary prepayment shall be applied as directed by the Borrower, or, in the absence
of such direction by Borrower, shall be applied (i) first, to repay the principal outstanding on the Revolving Loans pro rata in
accordance with Section 3.2, and (ii) second, to repay the principal outstanding on the Term Loans pro rata in accordance
with Section 3.2.
(b) Mandatory.
(i) Revolving
Commitment Overadvance. If at any time the aggregate principal amount of all outstanding Revolving Loans exceeds the aggregate amount
of the Revolving Commitments, the Borrower shall immediately upon demand pay to the Administrative Agent for the account of the Revolving
Lenders, the amount of such excess.
(ii) Collateral
Property Availability Overadvance. If the aggregate principal amount of all outstanding Loans exceeds the Collateral Property Availability,
then the Borrower shall within three (3) Business Days following a written request for repayment from the Administrative Agent, pay
to the Administrative Agent, for the account of the Lenders, the amount of such excess.
(iii) Qualified
Collateral Property Sale. If the Borrower or any other Subsidiary of Holdings consummates a Qualified Collateral Property Sale and
a Property Release in accordance with Section 7.15(b), then the Qualified Collateral Property Sale Prepayment Amount payable
in connection therewith shall be applied in accordance with Section 2.8(b)(iv)(B).
(iv) Application
of Mandatory Prepayments.
(A) Generally.
Amounts paid under the preceding subsections (i) and (ii) shall be applied to pay the applicable amount of principal outstanding
on the Revolving Loans pro rata in accordance with Section 3.2.
(B) Qualified
Collateral Property Sale. Amounts paid under the preceding subsection (iii) shall be applied as follows: (1) first, to repay
the principal outstanding on the Term Loans pro rata in accordance with Section 3.2 to the full extent thereof, (2) second,
to permanently reduce the Revolving Commitments in accordance with Section 2.12 (and to repay Revolving Loans in an amount
equivalent to the amount of such Revolving Commitment reduction in accordance with Section 2.15), and (3) third, to repay
all other outstanding Obligations hereunder, in the order and manner provided in Section 10.5, to the full extent thereof.
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If the Borrower is required to pay any outstanding
SOFR Loans by reason of this Section prior to (x) in the case of a Daily Simple SOFR Loan, the Interest Payment Date applicable
thereto, and (y) in the case of a Term SOFR Loan, the end of the applicable Interest Period therefor, then, in each case, the Borrower
shall pay all amounts due under Section 4.4.
(c) No
Effect on Derivatives Contracts. No repayment or prepayment of the Loans pursuant to this Section or otherwise shall affect any
of Parent’s or any Subsidiary’s obligations under any Derivatives Contract entered into with respect to any of the Loans.
Section 2.9. Continuation.
So long as no Default or Event
of Default exists, the Borrower may, with respect to any (x) Daily Simple SOFR Loan, on an Interest Payment Date or (y) Term
SOFR Loan, upon the expiration of any Interest Period therefor, in each case, (i) continue any Daily Simple SOFR Loans as Daily Simple
SOFR Loans, or (ii) continue any Term SOFR Loans as Term SOFR Loans by selecting a new Interest Period for such Term SOFR Loans.
Each Continuation of SOFR Loans shall be in an aggregate minimum amount of $1,000,000 and integral multiples of $250,000 in excess of
that amount, and, if applicable, each new Interest Period selected under this Section shall commence on the last day of the immediately
preceding Interest Period. Each election to Continue Loans as described above shall be made by the Borrower giving to the Administrative
Agent a Notice of Continuation not later than 10:00 a.m. Eastern time on (A) in the case of a Loan continuing as a Daily Simple
SOFR Loan, one (1) U.S. Government Securities Business Day, and (B) in the case of a Loan continuing as a Term SOFR Loan, three
(3) U.S. Government Securities Business Days, in each case, prior to the date of any such Continuation. Such notice by the Borrower
of a Continuation shall be by telecopy, electronic mail or other similar form of communication in the form of a Notice of Continuation,
specifying (a) whether the Loans being Continued are Revolving Loans or Term Loans, (b) the proposed date of such Continuation,
(c) the SOFR Loans and portions of such Loans subject to such Continuation and (d) if applicable, the duration of the selected
Interest Period, all of which shall be specified in such manner as is necessary to comply with all limitations on Loans outstanding hereunder.
Each Notice of Continuation shall be irrevocable by and binding on the Borrower once given. Promptly after receipt of a Notice of Continuation,
the Administrative Agent shall notify each Lender holding Loans being Continued of the proposed Continuation. If the Borrower shall fail
to (i) select in a timely manner a new Interest Period for any Term SOFR Loan in accordance with this Section, such Loan will automatically,
on the last day of the current Interest Period therefor, continue as a Term SOFR Loan with an Interest Period of one month, or (ii) deliver
a timely Notice of Continuation prior to the applicable Interest Payment Date with respect to a Daily Simple SOFR Loan, such Daily Simple
SOFR Loan shall be automatically continued as a Daily Simple SOFR Loan as of such Interest Payment Date; provided, however, that if a
Default or Event of Default exists, any such Daily Simple SOFR Loan or Term SOFR Loan, as applicable, will automatically, on the Interest
Payment Date therefor or the last day of the current Interest Period therefor, respectively, Convert into a Base Rate Loan notwithstanding
the first sentence of Section 2.10 or the Borrower’s failure to comply with any of the terms of such Section.
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Section 2.10. Conversion.
The Borrower may on any U.S.
Government Securities Business Day, upon the Borrower’s giving of a Notice of Conversion to the Administrative Agent by telecopy,
electronic mail or other similar form of communication, Convert all or a portion of a Loan of one Type into a Loan of another Type; provided,
however, a Loan may not be Converted into a SOFR Loan if a Default or Event of Default exists. Each Conversion of Base Rate Loans into
SOFR Loans shall be in an aggregate minimum amount of $1,000,000 and integral multiples of $250,000 in excess of that amount. Each such
Notice of Conversion shall be given not later than 10:00 a.m. Eastern time 3 U.S. Government Securities Business Days prior to the
date of any proposed Conversion. Promptly after receipt of a Notice of Conversion, the Administrative Agent shall notify each Lender holding
Loans being Converted of the proposed Conversion. Subject to the restrictions specified above, each Notice of Conversion shall be by telecopy,
electronic mail or other similar form of communication in the form of a Notice of Conversion specifying (a) whether the Loans being
Converted are Revolving Loans or Term Loans, (b) the requested date of such Conversion, (c) the Type of Loan to be Converted,
(d) the portion of such Type of Loan to be Converted, (e) the Type of Loan such Loan is to be Converted into and (f) if
such Conversion is into a Term SOFR Loan, the requested duration of the Interest Period of such Loan. Each Notice of Conversion shall
be irrevocable by and binding on the Borrower once given.
Section 2.11. Notes.
(a) Notes.
Except in the case of a Revolving Lender that has notified the Administrative Agent in writing that it elects not to receive a Revolving
Note, the Revolving Loans made by each Revolving Lender shall, in addition to this Agreement, also be evidenced by a Revolving Note, payable
to such Revolving Lender in a principal amount equal to the amount of its Revolving Commitment as originally in effect and otherwise duly
completed. Except in the case of a Term Loan Lender that has notified the Administrative Agent in writing that it elects not to receive
a Term Note, the Term Loan made by a Term Loan Lender shall, in addition to this Agreement, also be evidenced by a Term Note, payable
to such Term Loan Lender in a principal amount equal to the amount of its Term Loan and otherwise duly completed. After the date hereof,
to the extent a Lender which has notified the Administrative Agent that it elects not to receive a Revolving Note or Term Note, as applicable,
elects to receive a Revolving Note or Term Note, as applicable, the Borrower shall at its own expense execute and deliver to such Lender
a new Note dated as of the date hereof.
(b) Records.
The date, amount, interest rate, Type and duration of Interest Periods (if applicable) of each Loan made by each Lender to the Borrower,
and each payment made on account of the principal thereof, shall be recorded by such Lender on its books and such entries shall be binding
on the Borrower absent manifest error; provided, however, that (i) the failure of a Lender to make any such record shall not affect
the obligations of the Borrower under any of the Loan Documents and (ii) if there is a discrepancy between such records of a Lender
and the statements of accounts maintained by the Administrative Agent pursuant to Section 3.8, in the absence of manifest
error, the statements of account maintained by the Administrative Agent pursuant to Section 3.8 shall be controlling.
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(c) Lost,
Stolen, Destroyed or Mutilated Notes. Upon receipt by the Borrower of (i) written notice from a Lender that a Note of such Lender
has been lost, stolen, destroyed or mutilated, and (ii)(A) in the case of loss, theft or destruction, an unsecured agreement of indemnity
from such Lender in form reasonably satisfactory to the Borrower, or (B) in the case of mutilation, upon surrender and cancellation
of such Note, the Borrower shall at its own expense execute and deliver to such Lender a new Note dated the date of such lost, stolen,
destroyed or mutilated Note.
Section 2.12. Voluntary
Reductions of the Revolving Commitment.
The Borrower shall have the
right to terminate or reduce the aggregate unused amount of the Revolving Commitments at any time and from time to time without penalty
or premium upon not less than five U.S. Government Securities Business Days prior written notice to the Administrative Agent of each such
termination or reduction, which notice shall specify the effective date thereof and the amount of any such reduction (which in the case
of any partial reduction of the Revolving Commitments shall not be less than $10,000,000 and integral multiples of $5,000,000 in excess
of that amount in the aggregate) and shall be irrevocable once given and effective only upon receipt by the Administrative Agent (“Commitment
Reduction Notice”); provided that any such notice may state that such notice is conditioned upon the occurrence of one or more
events specified therein, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior
to the specified effective date) if such condition is not satisfied. Promptly after receipt of a Commitment Reduction Notice the Administrative
Agent shall notify each Revolving Lender of the proposed termination or Revolving Commitment reduction. The Revolving Commitments may
not be reduced below $100,000,000 in the aggregate unless the Borrower terminates the Revolving Commitments in their entirety, and, once
terminated or reduced, the Revolving Commitments may not be increased or reinstated. The Borrower shall pay all interest on the Loans,
and Fees under Section 3.5(b) with respect to the amount of the Revolving Commitment being reduced, accrued to the date
of such reduction or termination of the Revolving Commitments to the Administrative Agent for the account of the Revolving Lenders, including
but not limited to any applicable compensation due to each Revolving Lender in accordance with Section 4.4.
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Section 2.13. Extension
of Revolving Credit Termination Date[Reserved].
The
Borrower shall have the option, exercisable one time, to extend the current Revolving Credit Termination Date in effect as of the date
such right is exercised by twelve months. The Borrower may exercise such right only by executing and delivering to the Administrative
Agent at least 60 days but not more than 180 days prior to the current Revolving Credit Termination Date, a written request for such extension
(an “Extension Request”). The Administrative Agent shall notify the Revolving Lenders if it receives an Extension Request
promptly upon receipt thereof. Subject to satisfaction of the following conditions, the Revolving Credit Termination Date shall be extended
by twelve months effective upon receipt by the Administrative Agent of the Extension Request: (i) immediately after giving effect
to such extension, (x) no Default or Event of Default shall exist and (y) the representations and warranties made or deemed
made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct in all
material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty
shall be true and correct in all respects) on and as of the date of such extension with the same force and effect as if made on and as
of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such
representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty
qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier
date) and except for changes in factual circumstances specifically and expressly permitted under the Loan Documents, (ii) taking
into account any Specified Payments and Collateral Property Addition (in each such case occurring on or prior to the then-existing Revolving
Credit Termination Date), immediately prior to such extension and immediately after giving effect thereto (x) as of the fiscal quarter
of the Borrower most recently ended prior to the delivery of the Extension Request, the Debt Service Coverage Ratio shall equal or exceed
1.35 to 1.00, and (y) the aggregate Revolving Commitments shall not exceed the amount equal to 50% of the Appraised Value of the
Collateral Properties, (iii) on or prior the then-existing Revolving Credit Termination Date, the Borrower shall have paid the Fees
payable under Section 3.5(d), and (iv) the Administrative Agent shall have received
an updated Appraisal in accordance with Section 7.15(e) with respect to each Collateral
Property (A) for which an Appraisal in accordance with Section 7.15(e) has not
been delivered to the Administrative Agent with the 6-month period immediately prior the then-current Revolving Credit Termination Date,
or (B) in respect of which there has been a material change in the tenancy thereof or any other material change with respect thereto
since the date of the most recent Appraisal therefor delivered in accordance with Section 7.15(e).
At any time prior to the effectiveness of such extension, upon the Administrative Agent’s request, the Borrower shall deliver to
the Administrative Agent a certificate from the chief operating officer or chief financial officer certifying the matters referred to
in the immediately preceding clauses (i) and (ii) (together with supporting calculations attached hereto).
Section 2.14. [Reserved].
Section 2.15. Amount
Limitations.
Notwithstanding any other
term of this Agreement or any other Loan Document, no Lender shall be required to make a Revolving Loan, and no reduction of the Revolving
Commitments pursuant to Section 2.12 shall take effect, if immediately after the making of such Loan or such reduction in
the Revolving Commitments the aggregate principal amount of all outstanding Revolving Loans would exceed the aggregate amount of the Revolving
Commitments at such time.
Section 2.16. [Reserved].
Section 2.17. Funds
Transfer Disbursements.
The Borrower hereby authorizes
the Administrative Agent to disburse the proceeds of any Loan made by the Lenders or any of their Affiliates pursuant to the Loan Documents
as requested by an authorized representative of the Borrower to any of the accounts designated in the Disbursement Instruction Agreement.
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Section 2.18. Effective
Date Transactions.
Simultaneously with the effectiveness
of this Agreement, all “Loans” (as defined in the Existing Credit Agreement) outstanding under the Existing Credit Agreement
immediately prior to the effectiveness of this Agreement shall be paid in full with the proceeds of Loans made or deemed made by each
Lender under this Agreement on the Effective Date in accordance with the Notice of Borrowing in respect thereof, and the Administrative
Agent shall make such transfers of funds as are necessary (in each case after giving effect to the making of any Loans to be made on the
Effective Date and any netting transactions effected by the Administrative Agent) in order that (a) the aggregate outstanding principal
amount of Revolving Loans shall be held by the Revolving Lenders pro rata in accordance with the amount of the Revolving Commitments set
forth on Schedule I and (b) the Term Loans shall be fully funded, and the aggregate outstanding principal amount of Term Loans
shall be held by the Term Loan Lenders pro rata in accordance with the amount of the Term Loan Commitments set forth on Schedule I.
Simultaneously with the effectiveness of this Agreement, each “Note” (as defined in the Existing Credit Agreement) issued
to any “Lender” (as defined in the Existing Credit Agreement) under the Existing Credit Agreement shall be deemed superseded
and replaced by the Notes issued on the Effective Date to such Lender under this Agreement.
Article III.
PAYMENTS, FEES AND OTHER GENERAL PROVISIONS
Section 3.1. Payments.
(a) Payments
by Borrower. Except to the extent otherwise provided herein, all payments of principal, interest, Fees and other amounts to be made
by the Borrower under this Agreement, the Notes or any other Loan Document shall be made in Dollars, in immediately available funds, without
setoff, deduction or counterclaim (excluding Taxes required to be withheld pursuant to Section 3.10), to the Administrative
Agent at the Principal Office, not later than 12:00 p.m. Eastern time on the date on which such payment shall become due (each such
payment made after such time on such due date to be deemed to have been made on the next succeeding Business Day). Subject to Section 10.5,
the Borrower shall, at the time of making each payment under this Agreement or any other Loan Document, specify to the Administrative
Agent the amounts payable by the Borrower hereunder to which such payment is to be applied. Each payment received by the Administrative
Agent for the account of a Lender under this Agreement or any Note shall be paid to such Lender by wire transfer of immediately available
funds in accordance with the wiring instructions provided by such Lender to the Administrative Agent from time to time, for the account
of such Lender at the applicable Lending Office of such Lender. In the event the Administrative Agent fails to pay such amounts to such
Lender (i) by 5:00 p.m. Eastern time on the Business Day such funds are received by the Administrative Agent, if such amounts
are received by 12:00 p.m. Eastern time on such date or (ii) by 5:00 p.m. Eastern time on the Business Day following the
date such funds are received by the Administrative Agent, if such amounts are received after 12:00 p.m. Eastern time on any Business
Day, the Administrative Agent shall pay interest on such amount until paid at a rate per annum equal to the Federal Funds Rate from time
to time in effect. Subject to the definitions of Interest Period and Interest Payment Date, if the due date of any payment under this
Agreement or any other Loan Document would otherwise fall on a day which is not a Business Day such date shall be extended to the next
succeeding Business Day and interest shall continue to accrue at the rate, if any, applicable to such payment for the period of such extension.
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(b) Presumptions
Regarding Payments by Borrower. Unless the Administrative Agent shall have received notice from the Borrower prior to the date on
which any payment is due to the Administrative Agent for the account of the Lenders hereunder that the Borrower will not make such payment,
the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may (but shall not
be obligated to), in reliance upon such assumption, distribute to the Lenders the amount due. In such event, if the Borrower has not in
fact made such payment, then each of the Lenders severally agrees to repay to the Administrative Agent on demand that amount so distributed
to such Lender, with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the
date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation.
Section 3.2. Pro
Rata Treatment.
Except to the extent otherwise
provided herein: (a) each borrowing from the Revolving Lenders under Section 2.1(a) shall be made from the Revolving
Lenders, each payment of the fees under Sections 3.5(b) and 3.5(d) shall be made for the account of the Revolving
Lenders, and each termination or reduction of the amount of the Revolving Commitments under Section 2.12 shall be applied
to the respective Revolving Commitments of the Revolving Lenders, pro rata according to the amounts of their respective Revolving Commitments;
(b) each payment or prepayment of principal of Revolving Loans shall be made for the account of the Revolving Lenders pro rata in
accordance with the respective unpaid principal amounts of the Revolving Loans held by them, provided that, subject to Section 3.9,
if immediately prior to giving effect to any such payment in respect of any Revolving Loans the outstanding principal amount of the Revolving
Loans shall not be held by the Revolving Lenders pro rata in accordance with their respective Revolving Commitments in effect at the time
such Revolving Loans were made, then such payment shall be applied to the Revolving Loans in such manner as shall result, as nearly as
is practicable, in the outstanding principal amount of the Revolving Loans being held by the Revolving Lenders pro rata in accordance
with their respective Revolving Commitments; (c) the making of Term Loans under Section 2.2(a) shall be made from
the Term Loan Lenders, pro rata according to the amounts of their respective Term Loan Commitments; (d) each payment or prepayment
of principal of Term Loans shall be made for the account of the Term Loan Lenders pro rata in accordance with the respective unpaid principal
amounts of the Term Loans held by them; (e) each payment of interest on Revolving Loans or Term Loans shall be made for the account
of the Revolving Lenders or Term Loan Lenders, as applicable, pro rata in accordance with the amounts of interest on such Revolving Loans
or Term Loans, as applicable, then due and payable to the respective Lenders; and (f) the Conversion and Continuation of Revolving
Loans or Term Loans of a particular Type shall be made pro rata among the Revolving Lenders or Term Loan Lenders, as applicable, according
to the amounts of their respective Revolving Loans or Term Loans, as applicable, and the then current Interest Period for each Lender’s
portion of each such Loan of such Type shall be coterminous. Any payment or prepayment of principal or interest made during the existence
of a Default or Event of Default shall be made for the account of the Lenders in accordance with the order set forth in Section 10.5.
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Section 3.3. Sharing
of Payments, Etc.
If a Lender shall obtain payment
of any principal of, or interest on, any Loan made by it to the Borrower under this Agreement or shall obtain payment on any other Obligation
owing by the Borrower or any other Loan Party through the exercise of any right of set-off, banker’s lien, counterclaim or similar
right or otherwise or through voluntary prepayments directly to a Lender or other payments made by or on behalf of the Borrower or any
other Loan Party to a Lender (other than any payment in respect of Specified Derivatives Obligations) not in accordance with the terms
of this Agreement and such payment should be distributed to the Lenders in accordance with Section 3.2 or Section 10.5,
as applicable, such Lender shall promptly purchase from the other Lenders participations in (or, if and to the extent specified by such
Lender, direct interests in) the Loans made by the other Lenders or other Obligations owed to such other Lenders in such amounts, and
make such other adjustments from time to time as shall be equitable, to the end that all the Lenders shall share the benefit of such payment
(net of any reasonable expenses which may actually be incurred by such Lender in obtaining or preserving such benefit) in accordance with
the requirements of Section 3.2 or Section 10.5, as applicable. To such end, all the Lenders shall make appropriate
adjustments among themselves (by the resale of participations sold or otherwise) if such payment is rescinded or must otherwise be restored.
The Borrower agrees that any Lender so purchasing a participation (or direct interest) in the Loans or other Obligations owed to such
other Lenders may exercise all rights of set-off, banker’s lien, counterclaim or similar rights with respect to such participation
as fully as if such Lender were a direct holder of Loans in the amount of such participation. Nothing contained herein shall require any
Lender to exercise any such right or shall affect the right of any Lender to exercise and retain the benefits of exercising, any such
right with respect to any other indebtedness or obligation of the Borrower or any other Loan Party.
Section 3.4. Several
Obligations.
No Lender shall be responsible
for the failure of any other Lender to make a Loan or to perform any other obligation to be made or performed by such other Lender hereunder,
and the failure of any Lender to make a Loan or to perform any other obligation to be made or performed by it hereunder shall not relieve
the obligation of any other Lender to make any Loan or to perform any other obligation to be made or performed by such other Lender.
Section 3.5. Fees.
(a) Closing
Fee. On the Effective Date, the Borrower agrees to pay to the Administrative Agent and each Lender all loan fees as have been agreed
to in writing by the Borrower and the Administrative Agent.
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(b) Unused
Fees. During the period from the Agreement Date to but excluding the Revolving Credit Termination Date, the Borrower agrees to pay
to the Administrative Agent for the account of the Revolving Lenders an unused facility fee (the “Unused Fee”) equal
to the sum of the daily amount (i.e., the unused amount) by which (i) the aggregate amount of the Revolving Commitments exceeds
(ii) the aggregate outstanding principal balance of Revolving Loans (the amount described in this clause (ii), the “Usage”),
multiplied by the corresponding per annum rate applicable to such Usage set forth in the table below divided by, for the
avoidance of doubt, the actual number of days in the applicable year:
Usage
Unused Fee
(percent per annum)
Greater than 50.0% of the aggregate amount of Revolving Commitments
0.25%
Less than or equal to 50.0% of the aggregate amount of Revolving Commitments
0.35%
Such fee shall be computed on a daily basis and
payable quarterly in arrears on the last day of each March, June, September and December during the term of this Agreement and
on the Revolving Credit Termination Date or any earlier date of termination of the Revolving Commitments or reduction of the Revolving
Commitments to zero.
(c) [Reserved].
(d) Revolving
Credit Extension Fee. If the Borrower exercises its right to extend the Revolving Credit Termination Date in accordance
with Section 2.13, the Borrower agrees to pay to the Administrative Agent, for the ratable
account of each Revolving Lender, a fee equal to 0.15% multiplied by the aggregate amount of Revolving Commitments (whether or not utilized)
as of the date on which the Administrative Agent receives such fee. Such fee shall be due and payable in full on the date the Administrative
Agent receives the Extension Request pursuant to such Section[Reserved].
(e) Administrative
and Other Fees. The Borrower agrees to pay the administrative and other fees of the Administrative Agent as provided in the Fee Letter
and as may be otherwise agreed to in writing from time to time by the Borrower and the Administrative Agent.
Section 3.6. Computations.
Unless otherwise expressly
set forth herein, all computations of interest for Base Rate Loans shall be made on the basis of a year of 365 or 366 days, as the case
may be, and actual days elapsed. All other computations of fees and interest provided hereunder shall be made on the basis of a 360-day
year and actual days elapsed.
Section 3.7. Usury.
In no event shall the amount
of interest due or payable on the Loans or other Obligations exceed the maximum rate of interest allowed by Applicable Law and, if any
such payment is paid by the Borrower or any other Loan Party or received by any Lender, then such excess sum shall be credited as a payment
of principal, unless the Borrower shall notify the respective Lender in writing that the Borrower elects to have such excess sum returned
to it forthwith. It is the express intent of the parties hereto that the Borrower not pay and the Lenders not receive, directly or indirectly,
in any manner whatsoever, interest in excess of that which may be lawfully paid by the Borrower under Applicable Law. The parties hereto
hereby agree and stipulate that the only charge imposed upon the Borrower for the use of money in connection with this Agreement is and
shall be the interest specifically described in Section 2.5(a)(i) through (iv). Notwithstanding the foregoing,
the parties hereto further agree and stipulate that all agency fees, syndication fees, arrangement fees, facility fees, closing fees,
letter of credit fees, underwriting fees, default charges, late charges, funding or “breakage” charges, increased cost charges,
attorneys’ fees and reimbursement for costs and expenses paid by the Administrative Agent or any Lender to third parties or for
damages incurred by the Administrative Agent or any Lender, in each case, in connection with the transactions contemplated by this Agreement
and the other Loan Documents, are charges made to compensate the Administrative Agent or any such Lender for underwriting or administrative
services and costs or losses performed or incurred, and to be performed or incurred, by the Administrative Agent and the Lenders in connection
with this Agreement and shall under no circumstances be deemed to be charges for the use of money. All charges other than charges for
the use of money shall be fully earned and nonrefundable when due.
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Section 3.8. Statements
of Account.
The Administrative Agent will
account to the Borrower monthly with a statement of Loans, accrued interest and Fees, charges and payments made pursuant to this Agreement
and the other Loan Documents, and such account rendered by the Administrative Agent shall be deemed conclusive upon the Borrower absent
manifest error. The failure of the Administrative Agent to deliver such a statement of accounts shall not relieve or discharge the Borrower
from any of its obligations hereunder.
Section 3.9. Defaulting
Lenders.
Notwithstanding anything to
the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer
a Defaulting Lender, to the extent permitted by Applicable Law:
(a) Waivers
and Amendments. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this
Agreement shall be restricted as set forth in the definitions of “Requisite Lenders”, “Requisite Revolving Lenders”
and “Requisite Term Loan Lenders”, as applicable.
(b) Defaulting
Lender Waterfall. Any payment of principal, interest, Fees or other amounts received by the Administrative Agent for the account of
such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article X or otherwise) or received by the
Administrative Agent from a Defaulting Lender pursuant to Section 12.3 shall be applied at such time or times as may be determined
by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative
Agent hereunder; second, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any
Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by
the Administrative Agent; third, in the case of a Defaulting Lender that is a Revolving Lender, if so determined by the Administrative
Agent and the Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s
potential future funding obligations with respect to Revolving Loans under this Agreement in accordance with subsection (e) below;
fourth, to the payment of any amounts owing to the Lenders as a result of any judgment of a court of competent jurisdiction obtained
by any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement;
fifth, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any
judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s
breach of its obligations under this Agreement; and sixth, to such Defaulting Lender or as otherwise directed by a court of competent
jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans in respect of which such
Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made at a time when the conditions set forth
in Article V were satisfied or waived, such payment shall be applied solely to pay the Loans of all Non-Defaulting Lenders
on a pro rata basis prior to being applied to the payment of any Loans of such Defaulting Lender until such time as all Loans are held
by the Lenders pro rata in accordance with their respective Revolving Commitment Percentages and Term Loan Percentages, as applicable.
Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a
Defaulting Lender pursuant to this subsection shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably
consents hereto.
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(c) Certain
Fees. No Revolving Lender that is a Defaulting Lender shall be entitled to receive any Fee payable under Section 3.5(b) for
any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise
would have been required to have been paid to that Defaulting Lender).
(d) Defaulting
Lender Cure. If the Borrower and the Administrative Agent agree in writing that a Lender is no longer a Defaulting Lender, the Administrative
Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set
forth therein, that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take
such other actions as the Administrative Agent may determine to be necessary to cause the Loans to be held pro rata by the Lenders in
accordance with their respective Revolving Commitment Percentages and Term Loan Percentages, as applicable, whereupon such Lender will
cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to Fees accrued or payments
made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the
extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Non-Defaulting Lender will constitute
a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
(e) Purchase
of Defaulting Lender’s Commitment. During any period that a Revolving Lender is a Defaulting Lender, the Borrower may, by the
Borrower giving written notice thereof to the Administrative Agent, such Defaulting Lender and the other Lenders, demand that such Defaulting
Lender assign its Revolving Commitment to an Eligible Assignee subject to and in accordance with the provisions of Section 12.5(b).
No party hereto shall have any obligation whatsoever to initiate any such replacement or to assist in finding an Eligible Assignee. In
addition, any Revolving Lender which is not a Defaulting Lender may, but shall not be obligated, in its sole discretion, to acquire the
face amount of all or a portion of such Defaulting Lender’s Revolving Commitment via an assignment subject to and in accordance
with the provisions of Section 12.5(b). In connection with any such assignment, such Defaulting Lender shall promptly execute
all documents reasonably requested to effect such assignment, including an appropriate Assignment and Assumption and, notwithstanding
Section 12.5(b), shall pay to the Administrative Agent an assignment fee in the amount of $7,500. The exercise by the Borrower
of its rights under this Section shall be at the Borrower’s sole cost and expense and at no cost or expense to the Administrative
Agent or any of the Lenders.
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Section 3.10. Taxes.
(a) Interpretation.
For purposes of this Section, the term “Applicable Law” includes FATCA.
(b) Payments
Free of Taxes. Any and all payments by or on account of any obligation of the Borrower or any other Loan Party under any Loan Document
shall be made without deduction or withholding for any Taxes, except as required by Applicable Law. If any Applicable Law (as determined
in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment
by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely
pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with Applicable Law and, if such Tax is
an Indemnified Tax, then the sum payable by the Borrower or other applicable Loan Party shall be increased as necessary so that after
such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this
Section) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been
made.
(c) Payment
of Other Taxes by the Borrower. The Borrower and the other Loan Parties shall timely pay to the relevant Governmental Authority in
accordance with Applicable Law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.
(d) Indemnification
by the Borrower. The Borrower and the other Loan Parties shall jointly and severally indemnify each Recipient, within 10 days after
demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts
payable under this Section) payable or paid by such Recipient (whether directly or pursuant to Section 3.10(e)(i)) or required
to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether
or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority; provided, however,
that neither the Borrower nor any other Loan Party shall be liable to indemnify any Lender or Participant for any Taxes attributable to
such Lender’s failure to comply with the provisions of Section 12.5 relating to the maintenance of a Participant Register.
A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent),
or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
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(e) Indemnification
by the Lenders. Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any
Indemnified Taxes attributable to such Lender (but only to the extent that the Borrower or another Loan Party has not already indemnified
the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Borrower and the other Loan Parties to
do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 12.5 relating
to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable
or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect
thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate
as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest
error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender
under any Loan Document or otherwise payable by the Administrative Agent to such Lender from any other source against any amount due to
the Administrative Agent under this subsection. The provisions of this subsection shall continue to inure to the benefit of an Administrative
Agent following its resignation or removal as Administrative Agent.
(f) Evidence
of Payments. As soon as practicable after any payment of Taxes by the Borrower or any other Loan Party to a Governmental Authority
pursuant to this Section, the Borrower or such other Loan Party shall deliver to the Administrative Agent the original or a certified
copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other
evidence of such payment reasonably satisfactory to the Administrative Agent.
(g) Status
of Lenders.
(i) Any
Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall
deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative
Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit
such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by
the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested
by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender
is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two
sentences, the completion, execution and submission of such documentation (other than such documentation set forth in the immediately
following clauses (ii)(A), (ii)(B) and (ii)(D)) shall not be required if in the applicable Lender’s reasonable judgment such
completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice
the legal or commercial position of such Lender.
(ii) Without
limiting the generality of the foregoing:
(A) any
Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes
a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent),
an electronic copy (or an original if requested by the Borrower or the Administrative Agent) of an executed IRS Form W-9 (or any
successor form) certifying that such Lender is exempt from U.S. federal backup withholding tax;
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(B) any
Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number
of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement
(and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following
is applicable:
(I) in
the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect
to payments of interest under any Loan Document, an electronic copy (or an original if requested by the Borrower or the Administrative
Agent) of an executed IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, establishing an exemption from, or reduction of,
U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other
applicable payments under any Loan Document, an electronic copy (or an original if requested by the Borrower or the Administrative Agent)
of an executed IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal
withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II) an
electronic copy (or an original if requested by the Borrower or the Administrative Agent) of an executed IRS Form W-8ECI;
(III) in
the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or Section 881(c) of
the Internal Revenue Code, (x) a certificate substantially in the form of Exhibit L-1 to the effect that such Foreign
Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, a “10 percent
shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Internal Revenue Code, or a “controlled
foreign corporation” described in Section 881(c)(3)(C) of the Internal Revenue Code (a “U.S. Tax Compliance Certificate”)
and (y) an electronic copy (or an original if requested by the Borrower or the Administrative Agent) of an executed IRS Form W-8BEN
or IRS Form W-8BEN-E, as applicable; or
(IV) to
the extent a Foreign Lender is not the beneficial owner, an electronic copy (or an original if requested by the Borrower or the Administrative
Agent) of an executed IRS Form W-8IMY, accompanied by electronic copies (or originals if requested by the Borrower or the Administrative
Agent) of executed IRS Form W-8ECI, IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, a U.S. Tax Compliance Certificate
substantially in the form of Exhibit L-2 or Exhibit L-3, IRS Form W-9, and/or other certification documents
from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners
of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate
substantially in the form of Exhibit L-4 on behalf of each such direct and indirect partner;
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(C) any
Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number
of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement
(and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), an electronic copy (or an
original if requested by the Borrower or the Administrative Agent) of any other form prescribed by Applicable Law as a basis for claiming
exemption from or a reduction in U.S. federal withholding Tax, duly completed and executed, together with such supplementary documentation
as may be prescribed by Applicable Law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required
to be made; and
(D) if
a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were
to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of
the Internal Revenue Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times
prescribed by Applicable Law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation
prescribed by Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional
documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative
Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations
under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA”
shall include any amendments made to FATCA after the date of this Agreement.
Each Lender agrees that if any form or certification
it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly
notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
(h) Treatment
of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any
Taxes as to which it has been indemnified pursuant to this Section (including by the payment of additional amounts pursuant to this
Section), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under
this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified
party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying
party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this subsection
(plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party
is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this subsection, in no event
will an indemnified party be required to pay any amount to an indemnifying party pursuant to this subsection the payment of which would
place such indemnified party in a less favorable net after-Tax position than such indemnified party would have been in if the Tax subject
to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments
or additional amounts with respect to such Tax had never been paid. This subsection shall not be construed to require any indemnified
party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying
party or any other Person.
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(i) Survival.
Each party’s obligations under this Section shall survive the resignation or replacement of the Administrative Agent or any
assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge
of all obligations under any Loan Document.
(j) FATCA
Determination. For purposes of determining withholding Taxes imposed under FATCA, from and after the Effective Date, the Borrower
and the Administrative Agent shall treat (and the Lenders hereby authorize the Administrative Agent to treat) this Agreement as not qualifying
as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
Article IV.
YIELD PROTECTION, ETC.
Section 4.1. Additional
Costs; Capital Adequacy.
(a) Capital
Adequacy. If any Lender determines that any Regulatory Change affecting such Lender or any lending office of such Lender or such Lender’s
holding company, if any, regarding capital or liquidity ratios or requirements, has or would have the effect of reducing the rate of return
on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement, any
Commitment of such Lender or the Loans made by such Lender, to a level below that which such Lender or such Lender’s holding company
could have achieved but for such Regulatory Change (taking into consideration such Lender’s policies and the policies of such Lender’s
holding company with respect to capital adequacy and liquidity), then from time to time the Borrower will pay to such Lender such additional
amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered.
(b) Additional
Costs. If any Regulatory Change shall:
(i) impose,
modify or deem applicable any reserve (including pursuant to regulations issued from time to time by the FRB for determining the maximum
reserve requirement (including any emergency, special, supplemental or other marginal reserve requirement) with respect to eurocurrency
funding (currently referred to as “Eurocurrency liabilities” in Regulation D of the FRB, as amended and in effect from
time to time)), special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the
account of, or advances, loans or other credit extended or participated in by, any Lender;
(ii) subject
any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the
definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other
obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
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(iii) impose
on any Lender any other condition, cost or expense (other than Taxes) affecting this Agreement or the Loans made by such Lender;
and the result of any of the foregoing
shall be to increase the cost to such Lender or such other Recipient of making, converting to, continuing or maintaining any Loan or of
maintaining its obligation to make any such Loan, or to increase the cost to such Lender or such other Recipient or to reduce the amount
of any sum received or receivable by such Lender or other Recipient hereunder (whether of principal, interest or any other amount) then,
upon request of such Lender or other Recipient, the Borrower will pay to such Lender or other Recipient, as the case may be, such additional
amount or amounts as will compensate such Lender or other Recipient, as the case may be, for such additional costs incurred or reduction
suffered.
(c) [Reserved].
(d) Notification
and Determination of Additional Costs. Each of the Administrative Agent and each Lender, as the case may be, agrees to notify the
Borrower of any event occurring after the Agreement Date entitling the Administrative Agent or such Lender to compensation under any of
the preceding subsections of this Section as promptly as practicable; provided, however, that the failure of the Administrative Agent
or any Lender to give such notice shall not release the Borrower from any of its obligations hereunder (and in the case of a Lender, to
the Administrative Agent); provided, further, that notwithstanding the foregoing provisions of this Section, the Administrative Agent
or a Lender, as the case may be, shall not be entitled to compensation for any such amount relating to any period ending more than six
months prior to the date that the Administrative Agent or such Lender, as applicable, first notifies the Borrower in writing thereof or
for any amounts resulting from a change by any Lender of its Lending Office (other than changes required by Applicable Law), except that,
if the Regulatory Change giving rise to such increased costs or reductions is retroactive, then the six-month period referred to above
shall be extended to include the period of retroactive effect thereof. The Administrative Agent and each Lender, as the case may be, agrees
to furnish to the Borrower a certificate setting forth the basis and amount of each request for compensation under this Section. Determinations
by the Administrative Agent or such Lender, as the case may be, of the effect of any Regulatory Change shall be conclusive and binding
for all purposes, absent manifest error. The Borrower shall pay the Administrative Agent or any such Lender, as the case may be, the amount
shown as due on any such certificate within 10 days after receipt thereof.
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Section 4.2. Changed
Circumstances.
(a) Circumstances
Affecting Benchmark Availability. Subject to clause (c) below, in connection with any request for a SOFR Loan or a Conversion
to or Continuation thereof or otherwise, if for any reason (i) the Administrative Agent shall determine (which determination shall
be conclusive and binding absent manifest error) that reasonable and adequate means do not exist for ascertaining Adjusted Daily Simple
SOFR pursuant to the definition thereof or Adjusted Term SOFR for the applicable Interest Period with respect to a proposed Term SOFR
Loan on or prior to the first day of such Interest Period or (ii) the Requisite Lenders shall determine (which determination shall
be conclusive and binding absent manifest error) that Adjusted Daily Simple SOFR or Adjusted Term SOFR, as applicable, does not adequately
and fairly reflect the cost to such Lenders of making or maintaining any such Loan during, with respect to Adjusted Term SOFR, such Interest
Period and, in the case of clause (ii), the Requisite Lenders have provided notice of such determination to the Administrative Agent,
then, in each case, the Administrative Agent shall promptly give notice thereof to the Borrower. Upon notice thereof by the Administrative
Agent to the Borrower, any obligation of the Lenders to make SOFR Loans, and any right of the Borrower to Convert any Loan to or Continue
any Loan as a SOFR Loan, shall be suspended (to the extent of the affected SOFR Loans or the affected Interest Periods) until the Administrative
Agent (with respect to clause (ii), at the instruction of the Requisite Lenders) revokes such notice. Upon receipt of such notice, (A) the
Borrower may revoke any pending request for a borrowing of, Conversion to or Continuation of SOFR Loans (to the extent of the affected
SOFR Loans or the affected Interest Periods) or, failing that, the Borrower will be deemed to have Converted any such request into a request
for a borrowing of or Conversion to Base Rate Loans in the amount specified therein and (B) any outstanding affected SOFR Loans will
be deemed to have been Converted into Base Rate Loans (I) with respect to any Daily Simple SOFR Loans, immediately and (II) with
respect to any Term SOFR Loans, at the end of the applicable Interest Period. Upon any such Conversion, the Borrower shall also pay accrued
interest on the amount so Converted, together with any additional amounts required pursuant to Section 4.4.
(b) Laws
Affecting SOFR Availability. If, after the date hereof, the introduction of, or any change in, any Applicable Law or any change in
the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation
or administration thereof, or compliance by any of the Lenders (or any of their respective Lending Offices) with any request or directive
(whether or not having the force of law) of any such Governmental Authority, central bank or comparable agency, shall make it unlawful
or impossible for any of the Lenders (or any of their respective Lending Offices) to honor its obligations hereunder to make or maintain
any SOFR Loan, or to determine or charge interest based upon SOFR, Adjusted Daily Simple SOFR, the Term SOFR Reference Rate, Adjusted
Term SOFR or Term SOFR, such Lender shall promptly give notice thereof to the Administrative Agent and the Administrative Agent shall
promptly give notice to the Borrower and the other Lenders (an “Illegality Notice”). Thereafter, until each affected
Lender notifies the Administrative Agent and the Administrative Agent notifies the Borrower that the circumstances giving rise to such
determination no longer exist, (i) any obligation of the Lenders to make Daily Simple SOFR Loans or Term SOFR Loans, as applicable,
and any right of the Borrower to Convert any Loan to a Daily Simple SOFR Loan or a Term SOFR Loan, as applicable, shall be suspended and
(ii) if necessary to avoid such illegality, the Administrative Agent shall compute the Base Rate without reference to clause (c) of
the definition of “Base Rate”. Upon receipt of an Illegality Notice, the Borrower shall, if necessary to avoid such
illegality, upon demand from any Lender (with a copy to the Administrative Agent), Convert all affected SOFR Loans to Base Rate Loans
(in each case, if necessary to avoid such illegality, the Administrative Agent shall compute the Base Rate without reference to clause
(c) of the definition of “Base Rate”) (A) with respect to any Daily Simple SOFR Loans, on the Interest Payment
Date therefor and (B) with respect to any Term SOFR Loans, on the last day of the Interest Period therefor, if all affected Lenders
may lawfully continue to maintain such SOFR Loans to such day, or immediately, if any Lender may not lawfully continue to maintain such
SOFR Loans to such day. Upon any such Conversion, the Borrower shall also pay accrued interest on the amount so Converted, together with
any additional amounts required pursuant to Section 4.4.
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(c) Benchmark
Replacement Setting.
(i) Benchmark
Replacement. Notwithstanding anything to the contrary herein or in any other Loan Document, upon the occurrence of a Benchmark Transition
Event with respect to any Benchmark, the Administrative Agent and the Borrower may amend this Agreement to replace such Benchmark with
a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. on the
fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all affected Lenders and the
Borrower so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders
comprising the Requisite Lenders. No replacement of a Benchmark with a Benchmark Replacement pursuant to this Section 4.2(c)(i) will
occur prior to the applicable Benchmark Transition Start Date.
(ii) Benchmark
Replacement Conforming Changes. In connection with the use, administration, adoption or implementation of a Benchmark Replacement,
the Administrative Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary
herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action
or consent of any other party to this Agreement or any other Loan Document.
(iii) Notices;
Standards for Decisions and Determinations. The Administrative Agent will promptly notify the Borrower and the Lenders of (A) the
implementation of any Benchmark Replacement and (B) the effectiveness of any Conforming Changes in connection with the use, administration,
adoption or implementation of a Benchmark Replacement. The Administrative Agent will promptly notify the Borrower of the removal or reinstatement
of any tenor of a Benchmark pursuant to Section 4.2(c)(iv). Any determination, decision or election that may be made by the
Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 4.2(c), including any determination
with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision
to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its
or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case,
as expressly required pursuant to this Section 4.2(c).
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(iv) Unavailability
of Tenor of Benchmark. Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection
with the implementation of a Benchmark Replacement), (A) if any then-current Benchmark is a term rate (including the Term SOFR Reference
Rate) and either (1) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate
from time to time as selected by the Administrative Agent in its reasonable discretion or (2) the regulatory supervisor for the administrator
of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or
will not be representative, then the Administrative Agent may modify the definition of “Interest Period” (or any similar
or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (B) if
a tenor that was removed pursuant to clause (A) above either (1) is subsequently displayed on a screen or information service
for a Benchmark (including a Benchmark Replacement) or (2) is not, or is no longer, subject to an announcement that it is not or
will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition
of “Interest Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate
such previously removed tenor.
(v) Benchmark
Unavailability Period. Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect
to a given Benchmark, (A) the Borrower may revoke any pending request for a borrowing of, Conversion to or Continuation of any affected
SOFR Loans to be made, Converted or Continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed
to have Converted any such request into a request for a borrowing of or Conversion to Base Rate Loans and (B) any outstanding affected
SOFR Loans will be deemed to have been Converted to Base Rate Loans (I) with respect to any Daily Simple SOFR Loans, immediately
and (II) with respect to any Term SOFR Loans, at the end of the applicable Interest Period. During any Benchmark Unavailability Period
with respect to any Benchmark or at any time that a tenor for any then-current Benchmark is not an Available Tenor, the component of Base
Rate based upon the then-current Benchmark that is the subject of such Benchmark Unavailability Period or such tenor for such Benchmark,
as applicable, will not be used in any determination of Base Rate.
Section 4.3. Illegality.
If, in any applicable jurisdiction,
the Administrative Agent or any Lender determines that due to a Regulatory Change it is unlawful, or that any Governmental Authority has
asserted that it is unlawful, for the Administrative Agent or any Lender to (i) perform any of its obligations hereunder or under
any other Loan Document, (ii) to fund or maintain its participation in any Loan or (iii) issue, make, maintain, fund or charge
interest or fees with respect to any extension of credit hereunder, such Person shall promptly notify the Administrative Agent, then,
upon the Administrative Agent notifying the Borrower, and until such notice by such Person is revoked, any obligation of such Person to
issue, make, maintain, fund or charge interest or fees with respect to any such extension of credit shall be suspended (and, if applicable,
the provisions of Section 4.6 shall apply), and to the extent required by Applicable Law, cancelled. Upon receipt of such
notice, the Loan Parties shall take all reasonable actions requested by such Person to mitigate or avoid such illegality.
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Section 4.4. Compensation.
The Borrower hereby indemnifies
each of the Lenders against any loss, cost or expense (including any loss, cost or expense arising from the liquidation or reemployment
of funds or from any fees payable) which may arise, be attributable to or result due to or as a consequence of (a) any failure by
the Borrower to make any payment when due of any amount due hereunder in connection with a SOFR Loan, (b) any payment, prepayment
or conversion of any SOFR Loan on a date other than (i) with respect to any Daily Simple SOFR Loan, the applicable Interest Payment
Date therefor or (ii) with respect to any Term SOFR Loan, the last day of the Interest Period therefor or, in the case of interest
payments pursuant to Section 2.5(b), the applicable Interest Payment Date therefor (in each case, including as a result of
an Event of Default), or (c) the assignment of any SOFR Loan other than on (i) with respect to any Daily Simple SOFR Loan, the
applicable Interest Payment Date therefor or (ii) with respect to any Term SOFR Loan, the last day of the Interest Period therefor,
in each case, as a result of a request by the Borrower pursuant to Section 4.6. A certificate of such Lender setting forth
the basis for determining such amount or amounts necessary to compensate such Lender shall be forwarded to the Borrower through the Administrative
Agent and shall be conclusively presumed to be correct save for manifest error. All of the obligations of the Loan Parties under this
Section 4.4 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the
replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any
Loan Document.
Section 4.5. [Reserved].
Section 4.6. Affected
Lenders.
(a) If
(a) a Lender requests compensation pursuant to Section 4.1 or requires the Borrower to pay any Indemnified Taxes or additional
amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.10 and, in each case,
such Lender has declined or is unable to designate a different lending office in accordance with Section 4.7, or if any Lender
is a Defaulting Lender or a Non-Consenting Lender, then the Borrower may, at its sole expense and effort, upon notice to such Lender and
the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions
contained in, and consents required by, Section 12.5), all of its interests, rights (other than its existing rights to payments
pursuant to Section 3.10 or Section 4.1) and obligations under this Agreement and the related Loan Documents to
an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided
that:
(i) the
Borrower shall have paid to the Administrative Agent the assignment fee (if any) specified in Section 12.5(b)(iv);
(ii) such
Lender shall have received payment of (x) the aggregate principal balance of all Loans then owing to the such Lender, plus
(y) any accrued but unpaid interest thereon and accrued but unpaid fees owing to such Lender, or any other amount as may be mutually
agreed upon by such Lender and Eligible Assignee;
(iii) in
the case of any such assignment resulting from a claim for compensation under Section 4.1 or payments required to be made
pursuant to Section 3.10, such assignment will result in a reduction in such compensation or payments thereafter;
(iv) such
assignment does not conflict with Applicable Law; and
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(v) in
the case of any assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable assignee shall have consented to the
applicable consent, approval, amendment or waiver.
(b) A
Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise,
the circumstances entitling the Borrower to require such assignment and delegation cease to apply.
Section 4.7. Change
of Lending Office.
If any Lender requests compensation
under Section 4.1, or requires the Borrower to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 3.10, then such Lender shall (at the written request of the Borrower)
use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment
(a) would eliminate or reduce amounts payable pursuant to Section 3.10 or Section 4.1, as the case may be,
in the future, and (b) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous
to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.
Article V.
CONDITIONS PRECEDENT
Section 5.1. Initial
Conditions Precedent.
The effectiveness of this
Agreement and the obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder are subject to the
satisfaction or waiver of the following conditions precedent:
(a) The
Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts
of this Agreement executed by each of the parties hereto;
(ii) Revolving
Notes and Term Notes executed by the Borrower, payable to each applicable Lender (other than any Lender that has requested that it not
receive Notes) and complying with the terms of Section 2.11(a);
(iii) (A) the
Parent Guaranty, (B) the Holdings Guaranty, and (C) the Subsidiary Guaranty executed by each of the Subsidiary Guarantors initially
to be a party thereto;
(iv) (A) the
Pledge Agreement executed by each of the direct owners of the Equity Interests issued by each Initial Subsidiary Owner (all such Equity
Interests, together with the Equity Interests issued by the Borrower and pledged by Holdings, collectively, the “Initial Collateral
Property Pledged Interests”) and (B) the Holdings Pledge Agreement executed by Holdings;
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(v) (A) the
Deposit Account Pledge Agreement duly executed by each applicable Loan Party, and (B) a Deposit Account Control Agreement covering
each Collateral Property Account existing as of the Agreement Date (each such Collateral Property Account, an “Initial Collateral
Property Account”);
(vi) an
opinion of Sullivan & Worcester LLP, and an opinion of Duane Morris LLP, special Maryland counsel, in each case, counsel to the
Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering such matters as the Administrative
Agent may reasonably request;
(vii) the
certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust
or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the
state of formation of such Loan Party;
(viii) (A) a
certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary
of State of the state of formation of each such Loan Party and (B) certificates of qualification to transact business or other comparable
certificates, and certificates of good standing (or comparable certificates) dated as of a recent date, issued by each Secretary of State
(and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where
failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(ix) a
certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan
Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan
Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices
of Conversion and Notices of Continuation;
(x) copies
certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the
by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a
limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate,
partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan
Documents to which it is a party;
(xi) a
Compliance Certificate calculated as of the Effective Date on a pro forma basis for Parent’s fiscal quarter ending September 30,
2023;
(xii) a
Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) Uniform
Commercial Code financing statements in proper form for filing naming each Pledgor as debtor thereunder;
(xiv) copies
of Uniform Commercial Code search reports listing all effective financing statements filed against each Pledgor, with copies of such financing
statements;
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(xv) evidence
that the Fees, if any, then due and payable under Section 3.5, together with all other fees, expenses and reimbursement amounts
due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to
the Administrative Agent, have been paid;
(xvi) a
customary certificate, dated the Effective Date and signed by an authorized officer of Parent, certifying as to the matters set forth
in clauses (b) and (c) below (as of the Effective Date after giving effect to this Agreement and any borrowings or other extensions
of credit hereunder that may be made on the Effective Date);
(xvii) a
copy of the Business Management Agreement and the Property Management Agreement, in each case certified as true, correct and complete
by the chief operating officer or chief financial officer of Parent; and
(xviii) a
certificate signed by the chief financial officer, chief accounting officer or equivalent financial officer of Parent certifying that,
after giving effect to the transactions contemplated to occur on the Effective Date (including, without limitation, the incurrence of
the Term Loans and any Revolving Loans), Parent and its Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(b) there
shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since
December 31, 2022 that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) no
litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which
could reasonably be expected to (i) result in a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome
conditions on, or otherwise materially and adversely affect, the ability of Parent or any other Loan Party to fulfill its obligations
under the Loan Documents to which it is a party;
(d) [reserved];
(e) the
Administrative Agent shall have received, with respect to each Initial Collateral Property, a Security Instrument and each of the items
set forth on Annex 1I
hereto, in each case, in form and substance satisfactory to the Administrative Agent;
(f) the
applicable Loan Parties shall have delivered to the Administrative Agent each certificate or other instrument in respect of the Initial
Collateral Property Pledged Interests, in the manner required under the Pledge Agreement or the Holdings Pledge Agreement, as applicable,
duly indorsed by such Pledgor to the Administrative Agent, together with an undated stock power covering such certificate (or other appropriate
instrument of transfer) duly executed, in blank, by such Pledgor, each in form and substance satisfactory to the Administrative Agent;
(g) the
Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order
to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation,
the Patriot Act;
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(h) at
least five (5) Business Days prior to the Agreement Date, the Borrower shall deliver, on behalf of itself to the extent that it qualifies
as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification to each Lender
that so requests such a Beneficial Ownership Certification;
(i) the
Administrative Agent shall have received evidence, in form and substance satisfactory to the Administrative Agent, that, as of the Effective
Date, the organizational structure of Parent, Holdings, and each Subsidiary of Holdings is as set forth on Schedule 5.1 attached
hereto; and
(j) there
shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially
and adversely affect the transactions contemplated by the Loan Documents.
The Administrative Agent shall
notify the Borrower and the Lenders of the occurrence of the Effective Date in writing promptly upon such conditions precedent being satisfied
(or waived), and such notice shall be conclusive and binding evidence of the occurrence thereof.
Section 5.2. Conditions
Precedent to All Loans.
The obligations of Lenders
to make any Loans on and after the Effective Date are each subject to the further conditions precedent that: (a) no Default or Event
of Default shall exist as of the date of the making of such Loan or would exist immediately after giving effect thereto, and no violation
of the limits described in Section 2.15 would occur after giving effect thereto; (b) the representations and warranties
made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and
correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation
or warranty shall be true and correct in all respects) on and as of the date of the making of such Loan with the same force and effect
as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier
date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case
of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all
respects) on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted hereunder,
and (c) in the case of the borrowing of Revolving Loans, the Administrative Agent shall have received a timely Notice of Borrowing.
Each Credit Event shall constitute a certification by the Borrower to the effect set forth in the preceding sentence as of such date (unless
the Borrower otherwise notifies the Administrative Agent prior to the date of such Credit Event). In addition, the Borrower shall be deemed
to have represented to the Administrative Agent and the Lenders at the time any Loan is made that all conditions to the making of such
Loan contained in this Article V have been satisfied. Unless set forth in writing to the contrary, the making of its initial
Loan by a Lender shall constitute a certification by such Lender to the Administrative Agent for the benefit of the Administrative Agent
and the Lenders that the conditions precedent for initial Loans set forth in Sections 5.1 and 5.2 that have not previously
been waived by the Lenders in accordance with the terms of this Agreement have been satisfied; provided that this sentence shall inure
only to the benefit of the Administrative Agent and the Lenders and not to the Borrower or any other Loan Party.
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Section 5.3. Conditions
Subsequent to Certain Credit Events.
In connection with each Credit
Event immediately following which the aggregate amount of Loans exceeds the Unaffected Collateral Property Availability, if required by
the Administrative Agent, the Borrower shall obtain and deliver to the Administrative Agent within fifteen (15) Business Days following
the date of such Credit Event (or such longer period as the Administrative Agent may approve in its sole discretion) the Required Title
Updates. If the Required Title Updates disclose any mechanic’s, materialman’s or other similar Lien filed with respect to
any Affected Collateral Property (each, a “Mechanic’s Lien”), then within fifteen (15) Business Days of demand
(or such longer period as the Administrative Agent may approve in its sole discretion), the Borrower shall either (i) repay the outstanding
principal balance of the Revolving Loans in an amount equal to the amount needed to reduce the aggregate outstanding principal balance
of the Revolving Loans to an amount equal to or less than the Unaffected Collateral Property Availability, or (ii) do one of the
following: (A) pay and discharge such Mechanic’s Lien, and provide a Required Title Update confirming such Mechanic’s
Lien no longer affects the applicable Affected Collateral Property; (B) effect the release of such Mechanic’s Lien by recording
(and delivering to the Administrative Agent evidence thereof) a bond in sufficient form and amount, and deliver to the Administrative
Agent a Required Title Update confirming such Mechanic’s Lien no longer affects the applicable Affected Collateral Property; or
(C) provide the Administrative Agent (or an escrow holder pursuant to an escrow arrangement acceptable to the Administrative Agent)
with security, title insurance protection, cash reserves or such other assurances, in each such case, in such form and amounts, as the
Administrative Agent deems, in its sole discretion, to be sufficient for the payment of such Mechanic’s Lien.
Article VI.
REPRESENTATIONS AND WARRANTIES
Section 6.1. Representations
and Warranties of Parent Loan Parties.
In order to induce the Administrative
Agent and each Lender to enter into this Agreement and to make Loans, each Parent Loan Party represents and warrants to the Administrative
Agent and each Lender as follows:
(a) Organization;
Power; Qualification. Each of Parent, the Borrower, the other Loan Parties and the other Subsidiaries of Holdings is a corporation,
partnership or other legal entity, duly organized or formed, validly existing and in good standing under the jurisdiction of its incorporation
or formation, has the power and authority to own or lease its respective properties and to carry on its respective business as now being
and hereafter proposed to be conducted and is duly qualified and is in good standing as a foreign corporation, partnership or other legal
entity, and authorized to do business, in each jurisdiction in which the character of its properties or the nature of its business requires
such qualification or authorization and where the failure to be so qualified or authorized could reasonably be expected to have, in each
instance, a Material Adverse Effect.
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(b) Ownership
Structure. Part I of Item 6.1(b) of the Borrower Letter is, as of the Agreement Date, a complete and correct list of all
Loan Parties setting forth for each such Loan Party, (i) the jurisdiction of organization of such Loan Party, (ii) each Person
holding any Equity Interest in such Loan Party (other than Parent), (iii) the nature of the Equity Interests held by each such Person,
and (iv) the percentage of ownership of such Loan Party represented by such Equity Interests held by such Person. As of the Agreement
Date, except as disclosed in Part II of Item 6.1(b) of the Borrower Letter, (A) each Loan Party owns, free and clear of
all Liens, and has the unencumbered right to vote, all outstanding Equity Interests in each Person shown to be held by it on Part I
of Item 6.1(b), (B) all of the issued and outstanding capital stock of each such Person organized as a corporation is validly issued,
fully paid and nonassessable and (C) there are no outstanding subscriptions, options, warrants, commitments, preemptive rights or
agreements of any kind (including, without limitation, any stockholders’ or voting trust agreements) for the issuance, sale, registration
or voting of, or outstanding securities convertible into, any additional shares of capital stock of any class, or partnership or other
ownership interests of any type in, any such Person (other than Parent).
(c) Authorization
of Loan Documents and Borrowings. The Borrower has the right and power, and has taken all necessary action to authorize it, to borrow
and obtain other extensions of credit hereunder. The Borrower and each other Loan Party has the right and power, and has taken all necessary
action to authorize it, to execute, deliver and perform each of the Loan Documents and the Fee Letter to which it is a party in accordance
with their respective terms and to consummate the transactions contemplated hereby and thereby. The Loan Documents and the Fee Letter
to which the Borrower or any other Loan Party is a party have been duly executed and delivered by the duly authorized officers of such
Person and each is a legal, valid and binding obligation of such Person enforceable against such Person in accordance with its respective
terms, except as the same may be limited by bankruptcy, insolvency, and other similar laws affecting the rights of creditors generally
and the availability of equitable remedies for the enforcement of certain obligations (other than the payment of principal) contained
herein or therein and as may be limited by equitable principles generally.
(d) Compliance
of Loan Documents with Laws. The execution, delivery and performance of this Agreement, the other Loan Documents to which any Loan
Party is a party and of the Fee Letter in accordance with their respective terms and the borrowings and other extensions of credit hereunder
do not and will not, by the passage of time, the giving of notice, or both: (i) as
of the Agreement Date, require any Governmental Approval (other than (1) the filing of Uniform Commercial Code financing
statements and other filings or registrations necessary to perfect the Liens granted by the Security Instruments, (2) the recordation
of Security Instruments, (3) such as have been made and are in full effect and (4) payments of any related fees, taxes or charges)
or violate any Applicable Law (including all Environmental Laws) relating to the Borrower or any other Loan Party or (ii) conflict
with, result in a breach of or constitute a default under the organizational documents of any Loan Party.
(e) Compliance
with Law; Governmental Approvals. Each of Parent, the Borrower, the other Loan Parties and the other Subsidiaries is in compliance
with each Governmental Approval and all other Applicable Laws relating to it except for noncompliances which, and Governmental Approvals
the failure to possess which, could not, individually or in the aggregate, reasonably be expected to cause a Default or Event of Default
or have a Material Adverse Effect.
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(f) Financial
Statements. TheAs
of the Agreement Date, the Borrower has furnished to each Lender copies of the audited consolidated balance sheet of Parent
and its consolidated Subsidiaries for the fiscal year ended December 31, 2022, and the related audited consolidated statements of
operations, shareholders’ equity and cash flow for the fiscal year ended on such date, with the opinion thereon of Deloitte &
Touche LLP. Such financial statements (including in each case related schedules and notes) are complete and correct in all material respects
and present fairly, in accordance with GAAP consistently applied throughout the periods involved, the consolidated financial position
of Parent and its consolidated Subsidiaries as at their respective dates and the results of operations and the cash flow for such periods
(subject, as to interim statements, to changes resulting from normal year-end audit adjustments). Neither Parent nor any of its Subsidiaries
has on the Agreement Date any material contingent liabilities, liabilities, liabilities for taxes, unusual or long-term commitments or
unrealized or forward anticipated losses from any unfavorable commitments that would be required to be set forth in its financial statements
or notes thereto, except, in each case, as referred to or reflected or provided for in said financial statements.
(g) Solvency.
As of the Agreement Date, Parent, the other Loan Parties, and the Subsidiaries of Parent, taken as a whole, on a consolidated basis, are
Solvent.
(h) REIT
Status. Parent qualifies as, and has elected to be treated as, a REIT and is in compliance with all requirements and conditions imposed
under the Internal Revenue Code to allow Parent to maintain its status as a REIT.
(i) ERISA.
(i) EachAs
of the Agreement Date, each Benefit Arrangement is in compliance with the applicable provisions of ERISA, the Internal Revenue
Code and other Applicable Laws in all material respects. Except with respect to Multiemployer Plans, each Qualified Plan (A) has
received a favorable determination from the Internal Revenue Service applicable to such Qualified Plan’s current remedial amendment
cycle (as defined in Revenue Procedure 2007-44 or “2007-44” for short), (B) has timely filed for a favorable determination
letter from the Internal Revenue Service during its staggered remedial amendment cycle (as defined in 2007-44) and such application is
currently being processed by the Internal Revenue Service, (C) has filed for a determination letter prior to its “GUST remedial
amendment period” (as defined in 2007-44) and received such determination letter and the staggered remedial amendment cycle first
following the GUST remedial amendment period for such Qualified Plan has not yet expired, or (D) is maintained under a prototype
plan and may rely upon a favorable opinion letter issued by the Internal Revenue Service with respect to such prototype plan. To the best
knowledge of the Parent Loan Parties as of the
Agreement Date, nothing has occurred which would cause the loss of its reliance on each Qualified Plan’s favorable determination
letter or opinion letter.
(ii) WithAs
of the Agreement Date, with respect to any Benefit Arrangement that is a retiree welfare benefit arrangement, all amounts have
been accrued on the applicable ERISA Group’s financial statements in accordance with FASB ASC 715. TheAs
of the Agreement Date, the “benefit obligation” of all Plans does not exceed the “fair market value of plan
assets” for such Plans by more than $10,000,000 all as determined by and with such terms defined in accordance with FASB ASC 715.
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(iii) ExceptAs
of the Agreement Date, except as could not reasonably be expected, individually or in the aggregate, to have a Material Adverse
Effect: (i) no ERISA Event has occurred or is expected to occur; (ii) there are no pending, or to the best knowledge of the
Parent Loan Parties, threatened, claims, actions or lawsuits or other action by any Governmental Authority, plan participant or beneficiary
with respect to a Benefit Arrangement; (iii) there are no violations of the fiduciary responsibility rules with respect to any
Benefit Arrangement; and (iv) no member of the ERISA Group has engaged in a non-exempt “prohibited transaction,” as defined
in Section 406 of ERISA and Section 4975 of the Internal Revenue Code, in connection with any Plan, that would subject any member
of the ERISA Group to a tax on prohibited transactions imposed by Section 502(i) of ERISA or Section 4975 of the Internal
Revenue Code.
(j) Absence
of Default. NoneAs
of the Agreement Date, none of the Loan Parties or any of the other Subsidiaries of Holdings is in default under its certificate
or articles of incorporation or formation, bylaws, partnership agreement or other similar organizational documents, and no event has occurred,
which has not been remedied, cured or waived: (i) which constitutes a Default or an Event of Default; or (ii) which constitutes,
or which with the passage of time, the giving of notice, or both, would constitute, a default or event of default by, any Loan Party or
any other Subsidiary of Holdings under any agreement (other than this Agreement) or judgment, decree or order to which any such Person
is a party or by which any such Person or any of its respective properties may be bound where such default or event of default could,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(k) Investment
Company. None of Parent, any other Loan Party or any other Subsidiary of Holdings is (i) an “investment company”
or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940,
as amended, or (ii) subject to any other Applicable Law which purports to regulate or restrict its ability to borrow money or obtain
other extensions of credit or to consummate the transactions contemplated by this Agreement or to perform its obligations under any Loan
Document to which it is a party.
(l) Margin
Stock. None of Parent, any other Loan Party or any other Subsidiary of Holdings is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose, whether immediate, incidental or ultimate, of buying or carrying “margin
stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System.
(m) Broker’s
Fees. Except as set forth on Item 6.1(m) of the Borrower Letter, as
of the Agreement Date, no broker’s or finder’s fee, commission or similar compensation will be payable with respect
to the transactions contemplated hereby. NoAs
of the Agreement Date, no other similar fees or commissions will be payable by any Loan Party for any other services rendered
to the Borrower, any other Loan Party or any other Subsidiary of Holdings ancillary to the transactions contemplated hereby.
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(n) Accuracy
and Completeness of Information. All written information, reports and other papers and data (other than financial projections and
other forward looking statements, and information of a general economic or industry specific nature) furnished to the Administrative Agent
or any Lender by, on behalf of, or at the direction of, Parent, any other Loan Party or any other Subsidiary of Holdings were, at the
time the same were so furnished, taken as a whole, complete and correct in all material respects, to the extent necessary to give the
recipient a true and accurate knowledge of the subject matter, or, in the case of financial statements, present fairly, in accordance
with GAAP consistently applied throughout the periods involved, the financial position of the Persons involved as at the date thereof
and the results of operations for such periods (subject, as to interim statements, to changes resulting from normal year end audit adjustments
and absence of full footnote disclosure). All financial projections and other forward looking statements prepared by or on behalf of Parent,
any other Loan Party or any other Subsidiary of Holdings that have been or may hereafter be made available to the Administrative Agent
or any Lender were or will be prepared in good faith based on reasonable assumptions. No fact is known to any Loan Party which has had,
or may in the future have (so far as any Loan Party can reasonably foresee), a Material Adverse Effect which has not been set forth in
the financial statements referred to in Section 6.1(f) or in such information, reports or other papers or data or otherwise
disclosed in writing to the Administrative Agent and the Lenders, or in the public domain. No document furnished or written statement
made to the Administrative Agent or any Lender in connection with the negotiation, preparation or execution of, or pursuant to, this Agreement
or any of the other Loan Documents contains or will contain any untrue statement of a material fact, or omits or will omit to state a
material fact necessary in order to make the statements contained therein not misleading.
(o) Not
Plan Assets; No Prohibited Transactions. NoneAs
of the Agreement Date, none of the assets of Parent, any other Loan Party or any other Subsidiary of Parent constitutes “plan
assets” within the meaning of ERISA, the Internal Revenue Code and the respective regulations promulgated thereunder. AssumingAs
of the Agreement Date, assuming that no Lender funds any amount payable by it hereunder with “plan assets,” as
that term is defined in 29 C.F.R. 2510.3-101, the execution, delivery and performance of this Agreement and the other Loan Documents,
and the extensions of credit and repayment of amounts hereunder, do not and will not constitute “prohibited transactions”
under ERISA or the Internal Revenue Code.
(p) Anti-Corruption
Laws; Anti-Money Laundering Laws and Sanctions.
(i) Continuously
throughout the term of this Agreement, (w) no member of the Borrowing Group is a Sanctioned Target; (x) no member of the Borrowing
Group is owned or controlled by, or is or has been acting or purporting to act for or on behalf of, directly or indirectly, a Sanctioned
Target; (y) each member of the Borrowing Group complies with policies, procedures and controls reasonably designed by Parent or its
Affiliates, as applicable, to assure compliance with Sanctions; and (z) to the best of the Parent Loan Parties’ knowledge,
after due care and inquiry, no member of the Borrowing Group is under investigation for an alleged violation of Sanction(s) by a
Governmental Authority that enforces Sanctions. The Borrower shall notify the Administrative Agent in writing not more than one (1) Business
Day after first becoming aware of any breach of this Section 6.1(p)(i).
(ii) Continuously
throughout the term of this Agreement, (x) each member of the Borrowing Group complies with policies, procedures and controls reasonably
designed by Parent or its Affiliates, as applicable, to assure compliance with Anti-Money Laundering Laws and Anti-Corruption Laws, and
(y) to the best of the Parent Loan Parties’ knowledge, after due care and inquiry, no member of the Borrowing Group is under
investigation for an alleged violation of Anti-Money Laundering Laws or Anti-Corruption Laws by a Governmental Authority that enforces
such laws.
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(iii) No
proceeds of any Loans have been used, directly or indirectly, by the Borrower or any other member of the Borrowing Group in violation
of Section 9.11(b).
(q) Affected
Financial Institutions. None of Parent, Holdings or any Subsidiary of Holdings is an Affected Financial Institution.
(r) Litigation.
As of the Agreement Date, there are no actions, suits or proceedings pending (nor, to the knowledge of Parent, are there any actions,
suits or proceedings threatened, nor is there any basis therefor) against or in any other way relating adversely to or affecting Parent
or any of its property in any court or before any arbitrator of any kind or before or by any other Governmental Authority which, (i) could
reasonably be expected to have a Material Adverse Effect or (ii) in any manner draws into question the validity or enforceability
of any Loan Document or the Fee Letter. As of the Agreement Date, there are no strikes, slow downs, work stoppages or walkouts or
other labor disputes in progress, or threatened, in each case relating to Parent that could reasonably be expected to have a Material
Adverse Effect.
(s) Taxes.
As of the Agreement Date, all federal, state and other material tax returns of Parent required by Applicable Law to be filed (after taking
into account any extensions of time within to file such tax returns) have been duly filed, and all federal, state and other material taxes,
assessments and other governmental charges or levies upon, Parent and its properties, income, profits and assets which are due and payable
have been paid (except the payment or discharge of any such tax, assessment, charge, levy or claim which is being contested in good faith
by appropriate proceedings which operate to suspend the collection thereof and for which adequate reserves have been established on the
books of Parent in accordance with GAAP). As of the Agreement Date, none of the United States income tax returns of Parent is under audit.
All charges, accruals and reserves on the books of Parent in respect of any taxes or other governmental charges are in accordance with
GAAP.
Section 6.2. Representations
and Warranties of Holdings and Borrower.
In order to induce the Administrative
Agent and each Lender to enter into this Agreement and to make Loans, Holdings and the Borrower each represents and warrants to the Administrative
Agent and each Lender as follows:
(a) Compliance
of Loan Documents with Laws. The execution, delivery and performance of this Agreement, the other Loan Documents to which any Loan
Party (other than Parent) is a party and of the Fee Letter in accordance with their respective terms and the borrowings and other extensions
of credit hereunder do not and will not, by the passage of time, the giving of notice, or both: (i) conflict with, result in a breach
of or constitute a default under any indenture, agreement or other instrument to which Holdings, the Borrower or any other Subsidiary
of Holdings is a party or by which it or any of its respective properties may be bound or (ii) result in or require the creation
or imposition of any Lien other than Liens permitted by Section 9.2 upon or with respect to any (x) property now owned
or hereafter acquired by Holdings, Borrower or any Subsidiary of Holdings and (y) Equity Interests issued by Holdings, in each case,
other than in favor of the Administrative Agent for its benefit and the benefit of the Lenders.
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(b) Title
to Properties; Liens. Item 6.2(b) of the Borrower Letter is, as of the Agreement Date, a complete and correct listing of all
real estate assets of each Loan Party (other than Parent). Each of Holdings and each Subsidiary of Holdings has good, marketable and legal
title to, or a valid leasehold interest in, its respective assets. As of the Agreement Date, there are no Liens against any assets of
Holdings or any Subsidiary of Holdings except for Permitted Liens. Each Collateral Property satisfies all requirements set forth in the
definition of “Eligible Property”.
(c) Existing
Indebtedness. As of the Agreement Date, Holdings and each Subsidiary of Holdings have performed and are in compliance with all of
the terms of their Indebtedness and all instruments and agreements relating thereto, and no default or event of default, or event or condition
which with the giving of notice, the lapse of time, or both, would constitute a default or event of default, exists with respect to any
such Indebtedness.
(d) Litigation.
ExceptAs
of the Agreement Date, except as set forth on Item 6.2(d) of the Borrower Letter, there are no actions, suits or proceedings
pending (nor, to the knowledge of any Loan Party, are there any actions, suits or proceedings threatened, nor is there any basis therefor)
against or in any other way relating adversely to or affecting the Borrower, any other Loan Party (other than Parent), any other Subsidiary
of Holdings or any of their respective property in any court or before any arbitrator of any kind or before or by any other Governmental
Authority which, (i) could reasonably be expected to have a Material Adverse Effect or (ii) in any manner draws into question
the validity or enforceability of any Loan Document or the Fee Letter. There are no strikes, slow downs, work stoppages or walkouts
or other labor disputes in progress or threatened relating to, any Loan Party (other than Parent) or any other Subsidiary of Holdings
that could reasonably be expected to have a Material Adverse Effect.
(e) Taxes.
AllAs of the
Agreement Date, all federal, state and other material tax returns of Holdings and each Subsidiary of Holdings required by
Applicable Law to be filed (after taking into account any extensions of time within to file such tax returns) have been duly filed, and
all federal, state and other material taxes, assessments and other governmental charges or levies upon, Holdings and each Subsidiary
of Holdings and their respective properties, income, profits and assets which are due and payable have been paid, except any payment
or discharge of any such tax, assessment, charge, levy or claim which is being contested in good faith by appropriate proceedings which
operate to suspend the collection thereof and for which adequate reserves have been established on the books of such Person in accordance
with GAAP. As of the Agreement Date, none of the United States income tax returns of Holdings or any Subsidiary of Holdings is under
audit. All charges, accruals and reserves on the books of Holdings and the Subsidiaries of Holdings in respect of any taxes or other
governmental charges are in accordance with GAAP.
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(f) Environmental
Laws. In the ordinary course of business and from time to time the Borrower and the other Subsidiaries of Holdings conduct review
of the effect of Environmental Laws on their business, operations and properties, including without limitation, their respective Collateral
Properties. Each of the Borrower and each other Subsidiary of Holdings: (i) is in compliance with all Environmental Laws applicable
to its business, operations and the Collateral Properties, (ii) has obtained all Governmental Approvals which are required under
Environmental Laws, and each such Governmental Approval is in full force and effect, and (iii) is in compliance with all terms and
conditions of such Governmental Approvals, except where the failure to obtain or to comply with any the immediately preceding clauses
(i) through (iii) could not reasonably be expected to have a Material Adverse Effect. Except for any of the following matters
that could not reasonably be expected to have a Material Adverse Effect, no Loan Party has any knowledge of, or has received notice of,
any past, present, or pending releases, events, conditions, circumstances, activities, practices, incidents, facts, occurrences, actions,
or plans that, with respect to any Loan Party or any other Subsidiary of Holdings, their respective businesses, operations or with respect
to the Collateral Properties may: (x) cause or contribute to an actual or alleged violation of or noncompliance with Environmental
Laws, (y) cause or contribute to any other potential common law or legal claim or other liability, or (z) cause any of the Collateral
Properties to become subject to any restrictions on ownership, occupancy, use or transferability under any Environmental Law or require
the filing or recording of any notice, approval or disclosure document under any Environmental Law and, with respect to the immediately
preceding clauses (x) through (z) is based on or related to the on-site or off-site manufacture, generation, processing, distribution,
use, treatment, storage, disposal, transport, removal, clean up or handling, or the emission, discharge, release or threatened release
of any wastes or Hazardous Material, or any other requirement under Environmental Law. There is no civil, criminal, or administrative
action, suit, demand, claim, hearing, notice, or demand letter, mandate, order, lien, request, investigation, or proceeding pending or,
to the knowledge of the Borrower after due inquiry, threatened, against the Borrower, any other Loan Party (other than Parent) or any
other Subsidiary of Holdings relating in any way to Environmental Laws which reasonably could be expected to have a Material Adverse Effect.
As of the Agreement Date, none of the Collateral Properties is listed on or proposed for listing on the National Priority List promulgated
pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980 and its implementing regulations, or any
state or local priority list promulgated pursuant to any analogous state or local law. No Hazardous Materials have been transported, released,
discharged or disposed on any of the Collateral Properties other than (x) in compliance with all applicable Environmental Laws or
(y) as could not reasonably be expected to have a Material Adverse Effect.
(g) Affiliate
Transactions. ExceptAs
of the Agreement Date, except as permitted by Section 9.8, none of Holdings or any Subsidiary of Holdings is a
party to or bound by any agreement or arrangement with any Affiliate entered
into after the Agreement Date.
(h) Business.
As of the Agreement Date, subject to the restrictions set forth in Section 9.14, Holdings and its Subsidiaries are engaged
substantially in the business of the acquisition, operation, financing (including mortgage financing), development, leasing, and ownership
of Properties, and other businesses activities incidental thereto as currently in use at the Properties.
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(i) Intellectual
Property. EachAs
of the Agreement Date, each of Holdings and its Subsidiaries owns or has the right to use, under valid license agreements or
otherwise, all patents, licenses, franchises, trademarks, trademark rights, service marks, service mark rights, trade names, trade name
rights, trade secrets and copyrights (collectively, “Intellectual Property”) necessary to the conduct of its businesses,
without known conflict with any patent, license, franchise, trademark, trademark right, service mark, service mark right, trade secret,
trade name, copyright, or other proprietary right of any other Person except for such Intellectual Property, the absence of which, and
for conflicts which, could not reasonably be expected to have a Material Adverse Effect. EachAs
of the Agreement Date, each of Holdings and each Subsidiary of Holdings has taken all such steps as it deems reasonably necessary
to protect its respective rights under and with respect to such Intellectual Property. NoAs
of the Agreement Date, no material claim has been asserted by any Person with respect to the use of any such Intellectual Property
by Holdings or any Subsidiary of Holdings, or challenging or questioning the validity or effectiveness of any such Intellectual Property.
TheAs
of the Agreement Date, the use of such Intellectual Property by Holdings and its Subsidiaries does not infringe on the rights
of any Person, subject to such claims and infringements as do not, in the aggregate, give rise to any liabilities on the part of Holdings
or any Subsidiary of Holdings that could reasonably be expected to have a Material Adverse Effect.
(j) Insurance.
Holdings or a Subsidiary of Holdings maintains with respect to the Properties commercially reasonable insurance with financially sound
and reputable insurance companies.
(k) Beneficial
Ownership Certification. As of the Agreement Date, all information included in the Beneficial Ownership Certification is true and
correct to the knowledge of the officer of the Borrower that executes such certification.
(l) Security
Interests. The Security Documents, when executed and delivered hereunder, collectively create, as security for the Guaranteed Obligations,
valid and enforceable Liens on all of the Collateral granted pursuant thereto in favor of the Administrative Agent for its benefit and
the benefit of the other Lenders.
(m) No
Material Adverse Change. Since December 31, 2022, there has been no material adverse change in the consolidated
financial condition, results of operations or business of Holdings and its Subsidiaries taken as a wholeReserved.
(n) Collateral
Properties.
(i) Eligibility.
Each Collateral Property is an Eligible Property.
(ii) Americans
with Disabilities Act Compliance. To the knowledge of each Loan Party, the Collateral Properties comply with the requirements and
regulations of the Americans with Disabilities Act, of July 26, 1990, Pub. L. No. 101-336, 104 Stat. 327, 42 U.S.C. § 12101,
et seq., in all material respects.
(iii) Property
Agreements. The Borrower and each applicable Loan Party have delivered to the Administrative Agent true, correct and complete copies
of the Property Management Agreement and each management agreement and Lease for each Collateral Property. To the knowledge of each Loan
Party, as of the Agreement Date, the Property Management Agreement, each other management agreement (if any), and each Lease for each
Collateral Property is in full force and effect, has not been amended or modified (except by amendments or modifications delivered to
the Administrative Agent as aforesaid), and there are no events of default (beyond applicable notice and cure periods) or material defaults
thereunder. Except for the Property Management Agreement and each management agreement previously delivered to the Administrative Agent,
no agreements exist which are binding on any of the Loan Parties relating to the management of any of the Collateral Properties.
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(iv) Certificate
of Occupancy; Licenses. To the knowledge of each Loan Party, all material certificates, permits, licenses and approvals, including
certificates of completion and occupancy permits, required for the legal use, occupancy and operation of each Collateral Property (excluding,
however, certificates of occupancy for tenant spaces and improvements) have been obtained and are in full force and effect. The use being
made of each Collateral Property is in general conformity with all material certificates, permits, licenses and approvals issued for and
currently applicable to each Collateral Property.
(v) Physical
Condition. To the knowledge of each Loan Party, except as disclosed in any property condition report for any Collateral Property delivered
to the Administrative Agent prior to the Agreement Date, (a) each Collateral Property (including all buildings, improvements, parking
facilities, sidewalks, storm drainage systems, roofs, plumbing systems, HVAC systems, fire protection systems, electrical systems, equipment,
elevators, exterior sidings and doors, landscaping, irrigation systems and all structural components, as applicable) is in good condition,
order and repair in all material respects, subject to ordinary wear and tear; and (b) there exist no structural or other material
defects in or damage to any Collateral Property, whether latent or otherwise. No Loan Party has received or has any knowledge of: (i) any
written notice from any insurance company or bonding company of any defects or inadequacies in any Collateral Property, or any part thereof,
which would adversely affect the insurability of the same or cause the imposition of extraordinary premiums or charges thereon; or (ii) any
written notice of any termination or threatened termination of any policy of insurance or bond with respect to any Collateral Property.
(vi) Boundaries.
Except as shown on any survey for any Collateral Property delivered to the Administrative Agent prior to the Agreement Date, (A) all
of the improvements at each Collateral Property lie wholly within the boundaries and building restriction lines of such Collateral Property,
and no improvements on adjoining properties encroach upon any Collateral Property, except, in each case, where such encroachment of an
improvement does not and will not have an adverse effect on the use, operation or value of such Collateral Property and, with respect
to any such encroachment of an improvement from a Collateral Property onto an adjoining property, for which affirmative coverage has been
provided in the applicable Title Policy, and (B) no improvements encroach upon or violate any easements or other encumbrances upon
any Collateral Property in any material respect, except those for which affirmative coverage has been provided in the applicable Title
Policy.
(vii) Flood
Zone. Except as set forth on Item 6.2(n)(vii) of the Borrower Letter (as such schedule may be supplemented from time to time
by the Administrative Agent in its sole discretion without the consent of any other Person), as of the date that a Security Instrument
is delivered for any Collateral Property, no portion of such Collateral Property will be located in an area identified by the Federal
Emergency Management Agency as a special flood hazard area.
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(viii) Filing
and Recording Taxes. All material transfer taxes, deed stamps, intangible taxes, personal property taxes or other material amounts
in the nature of transfer or debt taxes required to be paid under applicable law in connection with the transfer of or debt on the Collateral
Properties prior to the Agreement Date, if any, have been paid. Any mortgage or deed of trust recording, stamp, intangible, personal property
or other similar taxes required to be paid under applicable law in connection with the execution, delivery, recordation, filing, registration,
perfection or enforcement of any of the Loan Documents, including, without limitation, the Security Documents, were or will be paid substantially
concurrently with the recording of the Security Instrument encumbering the Property becoming a Collateral Property, as applicable. All
material taxes and governmental assessments due and owing in respect of the Collateral Properties have been paid prior to delinquency.
(ix) Property
Information. (A) To the knowledge of each Loan Party, the Collateral Properties include sufficient on-site parking (either directly
or through an insurable and recorded easement) to comply with Applicable Law; (B) the Collateral Properties currently abut, or have
insurable access pursuant to a recorded agreement to, completed and dedicated public thoroughfares; and (C) to the knowledge of each
Loan Party, no archaeological ruins, discoveries or specimens, or cemeteries exist on any Collateral Property.
(x) Brokers.
No agreements exist which are binding on any of the Loan Parties relating to the future leasing of such rentable spaces within the Collateral
Properties by brokers or other similar agents that are not terminable on more than 30 days’ notice.
(xi) Parking.
No agreements exist which are binding on any of the Loan Parties relating to the rights of tenants at the Collateral Properties to park
at locations other than at the Collateral Properties, except for valid and recorded easements and other matters of record that give the
owner of such Collateral Properties (and its tenants) insurable such rights to park at such locations.
(o) Flood
Hazard Insurance. With respect to each Collateral Property, the Administrative Agent has received (i) such flood hazard certifications,
notices and confirmations thereof, and effective flood hazard insurance policies as described in Annex 1I,
(ii) all flood hazard insurance policies required hereunder have been obtained and remain in full force and effect, and the premiums
thereon have been paid in full, and (iii) except as the Borrower has previously given written notice thereof to the Administrative
Agent, there has been no redesignation of any Collateral Property into or out of a special flood hazard area.
(p) Special
Purpose Requirements. Each of the Borrower, Holdings and each Subsidiary Owner is and will continue to be a Special Purpose Entity
through the termination of this Agreement.
Section 6.3. Survival
of Representations and Warranties, Etc.
All statements contained in
any certificate, financial statement or other instrument delivered by or on behalf of any Loan Party or any other Subsidiary of Holdings
to the Administrative Agent or any Lender pursuant to or in connection with this Agreement or any of the other Loan Documents (including,
but not limited to, any such statement made in or in connection with any amendment thereto or any statement contained in any certificate,
financial statement or other instrument delivered by or on behalf of any Loan Party prior to the Agreement Date and delivered to the Administrative
Agent or any Lender in connection with the underwriting or closing the transactions contemplated hereby) shall constitute representations
and warranties made by Parent, Holdings and/or the Borrower, as applicable, under this Agreement. All representations and warranties made
under this Agreement and the other Loan Documents shall be deemed to be made at and as of the Agreement Date, the Effective Date, the
date on which any extension of the Revolving Credit Termination Date is effectuated pursuant to Section 2.13,
the date on which any Collateral Property Addition is effectuated pursuant to Section 7.15(a), and at
and as of the date of the occurrence of each Credit Event, except to the extent that such representations and warranties expressly relate
solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects
(except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true
and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances expressly and specifically
permitted hereunder. All such representations and warranties shall survive the effectiveness of this Agreement, the execution and delivery
of the Loan Documents and the making of the Loans.
85
Article VII.
AFFIRMATIVE COVENANTS
For so long as this Agreement
is in effect, each of Holdings, Borrower and, as applicable, Parent shall comply with the following covenants:
Section 7.1. Preservation
of Existence and Similar Matters.
Except as otherwise permitted
under Section 9.4, each Parent Loan Party shall, and shall cause each other Loan Party and each other Subsidiary of Holdings
to, preserve and maintain its respective existence, rights, franchises, licenses and privileges in the jurisdiction of its incorporation
or formation and qualify and remain qualified and authorized to do business in each jurisdiction in which the character of its properties
or the nature of its business requires such qualification and authorization and where the failure to be so authorized and qualified could
reasonably be expected to have a Material Adverse Effect.
Section 7.2. Compliance
with Applicable Law and Material Contracts.
Each Parent Loan Party shall,
and shall cause each other Loan Party and each other Subsidiary of Holdings to, comply with (a) all Applicable Law, including the
obtaining of all Governmental Approvals, the failure with which to comply could reasonably be expected to have a Material Adverse Effect
and (b) all material terms and conditions of all Material Contracts to which it is a party,
unless otherwise approved by the final plan in the Bankruptcy Cases. Each Parent Loan Party shall, and shall ensure that each
member of the Borrowing Group will, comply with Sanctions, Anti-Money Laundering Laws, and Anti-Corruption Laws. The Borrower will (a) notify
the Administrative Agent and each Lender that previously received a Beneficial Ownership Certification (or a certification that the Borrower
qualifies for an express exclusion to the “legal entity customer” definition under the Beneficial Ownership Regulation) of
any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial
owners identified therein (or, if applicable, the Borrower ceasing to fall within an express exclusion to the definition of “legal
entity customer” under the Beneficial Ownership Regulation) and (b) promptly upon the reasonable request of the Administrative
Agent or any Lender, provide the Administrative Agent or such Lender, as the case may be, any information or documentation reasonably
requested by it for purposes of complying with the Beneficial Ownership Regulation.
86
Section 7.3. Maintenance
of Property.
In addition to the requirements
of any of the other Loan Documents, each of Holdings and the Borrower shall, and shall cause each other Subsidiary of Holdings to, (a) protect
and preserve, or cause to be protected and preserved, all of its respective material properties, including, but not limited to, all Intellectual
Property necessary to the conduct of its respective business, and maintain, or cause to be maintained, in good repair, working order and
condition all tangible properties, ordinary wear and tear excepted, and (b) from time to time make or cause to be made all needed
and appropriate repairs, renewals, replacements and additions to such properties, so that the business carried on in connection therewith
may be properly and advantageously conducted at all times. The applicable Loan Parties shall cause all material certificates, permits,
licenses and approvals, including certificates of completion and occupancy permits, required for the legal use, occupancy and operation
of each Collateral Property (excluding, however, certificates of occupancy for tenant spaces and improvements) to be obtained and maintained
in full force and effect.
Section 7.4. Conduct
of Business.
Each of Holdings and the Borrower
shall, and shall cause each other Subsidiary of Holdings to, carry on its respective businesses as described in Section 6.2(h).
Section 7.5. Insurance.
(a) In
addition to the requirements of any of the other Loan Documents, Holdings and the Borrower shall, and shall cause each other Subsidiary
of Holdings to, maintain, or cause to be maintained, insurance (on a replacement cost basis) with financially sound and reputable insurance
companies against such risks and in such amounts as is customarily maintained by Persons engaged in similar businesses or as may be required
by Applicable Law. The Borrower shall from time to time deliver to the Administrative Agent upon request a detailed list, together with
copies of all policies of the insurance then in effect, stating the names of the insurance companies, the amounts and rates of the insurance,
the dates of the expiration thereof and the properties and risks covered thereby.
(b) In
addition to, and not in limitation of, the foregoing, Holdings and the Borrower shall or shall cause each Subsidiary Owner to maintain
such additional insurance with respect to such Collateral Property as the Administrative Agent may reasonably require from time to time,
including, without limitation, flood insurance coverage (including contents coverage, as applicable). All insurance policies shall be
in amounts and have deductibles, limits and retentions as reasonably required by the Administrative Agent. All insurance policies shall
be issued and maintained by insurers approved to do business in the jurisdiction in which the applicable Collateral Property is located
and must have an A.M. Best Company financial rating and policyholder surplus acceptable to the Administrative Agent. The Borrower
shall from time to time deliver to the Administrative Agent upon request a detailed list, together with copies of all policies of the
insurance then in effect, stating the names of the insurance companies, the amounts and rates of the insurance, the dates of the expiration
thereof and the properties and risks covered thereby and insurance certificates, in each such case, in form acceptable to the Administrative
Agent, providing that the insurance coverage required under this Section 7.5(b) is in full force and effect and stating
that Holdings and the Borrower shall have used commercially reasonable efforts to cause such coverage not to be cancelable or materially
changeable without ten (10) days prior written notice to the Administrative Agent of any cancelation for nonpayment of premiums,
and not less than 30 days prior written notice to the Administrative Agent of any other cancellation or any modification (including a
reduction in coverage), together with appropriate evidence that the Administrative Agent, for its benefit and for the benefit of the other
Lenders, is named as mortgagee lender’s loss payee on each property casualty insurance policy and additional insured on all other
insurance policies, in each case, on insurance policies to which loss payee or additional insured endorsement is customarily available
(in each such case, pursuant to endorsements acceptable to the Administrative Agent) that Holdings, Borrower or any Subsidiary actually
maintains with respect to any Collateral Property and improvements on such Collateral Property.
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Section 7.6. Payment
of Taxes and Claims.
Each of Holdings and the Borrower
shall, and shall cause each other Subsidiary of Holdings to, pay and discharge, or cause to be paid and discharged, when due (a) all
federal and state income, and all other material taxes, assessments and governmental charges or levies imposed upon it or upon its income
or profits or upon any properties belonging to it, and (b) all lawful claims of materialmen, mechanics, carriers, warehousemen and
landlords for labor, materials, supplies and rentals which, if unpaid, might become a Lien on any properties of such Person; provided,
however, that this Section shall not require the payment or discharge of any such tax, assessment, charge, levy or claim which is
being contested in good faith by appropriate proceedings which operate to suspend the collection thereof and for which adequate reserves
have been established on the books of such Person in accordance with GAAP.
Section 7.7. Books
and Records; Inspections.
Each Parent Loan Party shall,
and shall cause each other Subsidiary of Holdings to, keep proper books of record and account in which full, true and correct entries
shall be made of all dealings and transactions in relation to its business and activities in accordance with GAAP and Applicable Law.
Each Parent Loan Party shall, and shall cause each other Subsidiary of Holdings to, permit representatives of the Administrative Agent
or any Lender to visit and inspect any of their respective properties, to examine and make abstracts from any of their respective books
and records and to discuss their respective affairs, finances and accounts with their respective officers, employees and independent public
accountants (in the presence of an officer of Parent or the Borrower if an Event of Default does not then exist), all at such reasonable
times during business hours and as often as may reasonably be requested and so long as no Event of Default exists, with reasonable prior
notice. The Borrower shall be obligated to reimburse the Administrative Agent and the Lenders for their costs and expenses incurred in
connection with the exercise of their rights under this Section only if such exercise occurs while a Default or Event of Default
exists. If requested by the Administrative Agent, Parent shall execute an authorization letter addressed to its accountants authorizing
the Administrative Agent or any Lender to discuss the financial affairs of Parent, any other Loan Party or any other Subsidiary of Holdings
with Parent’s accountants.
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Section 7.8. Use
of Proceeds.
The proceeds of the Loans
may be used by the Borrower only for the repayment of Indebtedness, working capital and for other general business purposes, in each case,
of Parent and its Subsidiaries, including costs and expenses related to the closing of the transactions contemplated hereby on the Effective
Date.
Section 7.9. Environmental
Matters.
Each of Holdings and the Borrower
shall, and shall cause each other Subsidiary of Holdings to, comply, or cause to be complied, with all Environmental Laws the failure
with which to comply could reasonably be expected to have a Material Adverse Effect. Each of Holdings and the Borrower shall comply, and
shall cause each other Subsidiary of Holdings to comply, and each of Holdings and the Borrower shall use, and shall cause each other Subsidiary
of Holdings to use, commercially reasonable efforts to cause all other Persons occupying, using or present on the Properties to comply
with all Environmental Laws the failure with which to comply could reasonably be expected to have a Material Adverse Effect. Each of Holdings
and the Borrower shall, and shall cause each other Subsidiary of Holdings to, promptly take all actions and pay or arrange to pay all
costs necessary for it and for the Properties to comply with all Environmental Laws and all Governmental Approvals, including actions
to remove and dispose of all Hazardous Materials and to clean up the Properties as required under Environmental Laws, the failure with
which to comply could reasonably be expected to have a Material Adverse Effect. Each of Holdings and the Borrower shall, and shall cause
each other Subsidiary of Holdings to, promptly take, or cause to be taken, all actions necessary to prevent the imposition of any Liens
on any of their respective properties arising out of or related to any Environmental Laws. Nothing in this Section shall impose any
obligation or liability whatsoever on the Administrative Agent or any Lender.
Section 7.10. Further
Assurances.
At the Borrower’s cost
and expense and upon request of the Administrative Agent, each Parent Loan Party shall, and shall cause each other Loan Party and each
other Subsidiary of Holdings to, (i) duly execute and deliver or cause to be duly executed and delivered, to the Administrative Agent
such further instruments, documents and certificates, and do and cause to be done such further acts that may be reasonably necessary or
advisable in the reasonable opinion of the Administrative Agent to carry out more effectively the provisions and purposes of this Agreement
and the other Loan Documents, and (ii) take such additional actions and execute such documents as the Administrative Agent may reasonably
require from time to time in order to perfect and maintain the validity, effectiveness and (to the extent required hereby) priority of
any of the Security Instruments, the other Security Documents, the Equity Pledges and the Liens intended to be created by any of the foregoing.
Section 7.11. REIT
Status.
Parent shall maintain its
status as, and election to be treated as, a REIT under the Internal Revenue Code.
89
Section 7.12. Exchange
ListingReserved.
Parent
shall maintain at least one class of common shares of Parent having trading privileges on the New York Stock Exchange or the NYSE MKT
LLC Exchange or which is subject to price quotations on The NASDAQ Stock Market’s Global Market System.
Section 7.13. Guarantors.
(a) In
respect of each Subsidiary of Holdings that owns a Collateral Property or a Collateral Property Addition and that is not already a Guarantor,
the Borrower shall, in connection with Section 7.15(a), or otherwise, promptly, deliver to the Administrative Agent each of
the following in form and substance reasonably satisfactory to the Administrative Agent: (i) an Accession Agreement executed by such
Subsidiary, and (ii) the items that would have been delivered under subsections (vi) through (x) of Section 5.1(a) and
under Section 5.1(g) if such Subsidiary had been required to be a Guarantor on the Agreement Date.
(b) The
Borrower may request in writing that the Administrative Agent release, and upon receipt of such request the Administrative Agent shall
release, a Subsidiary Guarantor from the Subsidiary Guaranty so long as: (i) either (A) such Subsidiary Guarantor has ceased
(or simultaneously with its release from the Subsidiary Guaranty such Subsidiary will cease) to be a Subsidiary or (B) such Subsidiary
Guarantor is not otherwise required to be a party to the Subsidiary Guaranty under the immediately preceding subsection (a); (ii) no
Default or Event of Default shall then be in existence or would occur as a result of such release, including without limitation, a Default
or Event of Default resulting from a violation of any of the covenants contained in Section 9.1; (iii) the representations
and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall
be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case
such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and
effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier
date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case
of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all
respects)) and except for changes in factual circumstances expressly permitted under the Loan Documents; (iv) such Subsidiary Guarantor
owns no Collateral Property and the Liens of each Security Document (other than the Pledge Agreement) granted by such Subsidiary Guarantor
have been released in accordance with Section 7.15(b) (or will be released substantially concurrently with such release),
and (v) the Administrative Agent shall have received such written request at least 10 Business Days (or such shorter period as may
be acceptable to the Administrative Agent) prior to the requested date of release. Delivery by the Borrower to the Administrative Agent
of any such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of
the date of the giving of such request and as of the date of the effectiveness of such request) are true and correct with respect to such
request. For the avoidance of doubt, neither the Parent Guaranty nor the Holdings Guaranty shall be subject to release pursuant to this
Section 7.13(b).
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(c) In
addition, upon the release of a Guarantor pursuant to Section 7.13(b), upon at least ten (10) Business Days (or such
shorter period as the Administrative Agent may agree) prior written request by the Borrower, the Administrative Agent shall, at the sole
cost and expense of the Borrower, execute such documents as may be necessary to release of the Liens on such released Guarantor granted
to the Administrative Agent for its benefit and the benefit of the Lenders herein or pursuant hereto upon the Collateral owned by such
released Guarantor effective upon such release; provided, however, that (i) the Administrative Agent shall not be required to execute
any such document on terms which, in the Administrative Agent’s opinion, would expose the Administrative Agent to liability or create
any obligation or entail any consequence other than the release of such Liens without recourse or warranty and (ii) such release
shall not in any manner discharge, affect or impair the Obligations or any Liens upon (or obligations of the Borrower or any other Loan
Party in respect of) all interests retained by the Borrower or any other Loan Party, all of which shall continue to constitute part of
the Collateral subject to the terms hereof.
Section 7.14. Equity
Pledges.
(a) Equity
Pledge Requirement.
(i) Subject
to Section 7.14(b) below, at all times on and after the Agreement Date, the Obligations shall be secured by the Collateral
Property Pledged Interests.
(ii) In
connection with any Collateral Property Addition, in addition to the requirements set forth in Section 7.15(a), the Equity
Interests issued by the Subsidiary owning such additional Collateral Property (the “Additional Collateral Property Pledged Interests”)
shall be pledged to the Administrative Agent. The Borrower shall promptly deliver to the Administrative Agent, to the extent such Equity
Interests are not already pledged to the Administrative Agent in accordance with the terms hereof, each of the following in form and substance
satisfactory to the Administrative Agent: (i) a supplement to the Pledge Agreement (or a pledge agreement in form and substance reasonably
acceptable to the Administrative Agent) executed by each Person that owns any such Equity Interests that are to become Additional Collateral
Property Pledged Interests and (ii) such other schedules, supplements, instruments, certificates, control acknowledgements, opinions
and/or information in connection therewith as required by the Pledge Agreement (as though such Equity Interests were subject thereto on
the Agreement Date) or as reasonably requested by the Administrative Agent.
(b) Release
of Certain Pledged Interests. In connection with (or at any time following) a Property Release, the Borrower may request in writing
that the Administrative Agent release, and upon receipt of such request the Administrative Agent shall release, the Lien in favor of the
Administrative Agent on any Collateral Property Pledged Interests (other than Equity Interests in the Borrower) so long as: (i) no
Default or Event of Default has occurred and is continuing or would occur as a result of such release, (ii) such Property Release
is effected in accordance with Section 7.15(b), and all conditions set forth therein shall have been satisfied, (iii) the
issuer of such Collateral Property Pledged Interest owns no Collateral Property, and (iv) the Administrative Agent shall have received
such written request at least 10 Business Days (or such shorter period as may be acceptable to the Administrative Agent) prior to the
requested date of release. In addition, the Administrative Agent shall take such actions as reasonably requested pursuant to Section 7.13(c).
Delivery by the Borrower to the Administrative Agent of any such request shall constitute a representation by the Borrower that the matters
set forth in the preceding sentence (both as of the date of such request and as of the date of such release) are true and correct with
respect to such request. Notwithstanding anything herein to the contrary, none of the Equity Interests issued by the Borrower and pledged
by Holdings pursuant to the Holdings Pledge Agreement shall be subject to release pursuant to this Section 7.14(b).
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(c) No
Liens or Negative Pledges. Neither the Pledged Interests nor any asset owned by the issuer of such Pledged Interest nor any direct
or indirect interest of Parent in such issuer shall be subject to any Lien (other than Liens permitted to be incurred on such property
not in violation of Section 9.2(a)) or Negative Pledge (other than Negative Pledges permitted to exist not in violation of
Section 9.2(b)).
(d) Security
Interests. Each of Holdings and the Borrower represents, warrants and covenants that each of the Pledge Agreement and the Holdings
Pledge Agreement creates as security for the Obligations a valid and enforceable Lien on all of the Collateral granted pursuant thereto
in favor of the Administrative Agent for the benefit of the Lenders, superior to and prior to the rights of all third parties in such
Collateral (other than Liens permitted to be incurred not in violation of Section 9.2(a) (other than Permitted Junior
Liens)).
(e) Other
Indebtedness. Each of Holdings and the Borrower represents, warrants and covenants that (i) no Indebtedness of Holdings or any
Subsidiary prohibits or shall prohibit the Liens now or hereafter granted to Administrative Agent in the Pledged Interests and (ii) none
of the issuers of the Pledged Interests is obligated in respect of any Indebtedness for borrowed money of Parent or any other Subsidiary
of Parent (other than Indebtedness under the Loan Documents, Specified Derivatives Obligations, any Permitted Junior Debt, and Derivatives
Contracts obtained for bona fide hedging purposes in connection with Permitted Junior Debt).
Section 7.15. Collateral
Properties.
(a) Addition
of Collateral Properties. If the Borrower desires to include any additional Property as a Collateral Property (each such addition,
a “Collateral Property Addition”), then the Borrower shall so notify the Administrative Agent in writing. No Property
may become a Collateral Property unless it is an Eligible Property and unless and until each of the following conditions is satisfied
or waived by the Administrative Agent in writing:
(i) the
Administrative Agent shall have approved such Collateral Property Addition;
(ii) such
Property that is the subject of such Collateral Property Addition is wholly and directly owned in fee simple (or, if approved by the Administrative
Agent in its sole and absolute discretion, the leasehold estate in such Property is wholly and directly owned) by (A) an Initial
Subsidiary Owner or (B) such other direct Wholly Owned Subsidiary of the Borrower that satisfies the SPE Requirements and is approved
by the Administrative Agent in its sole and absolute discretion (any such Subsidiary, an “Additional Subsidiary Owner”);
and
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(iii) the
Borrower shall have delivered to the Administrative Agent each of the following in form and substance satisfactory to the Administrative
Agent:
(A) each
of the items set forth on Annex 1I
(or, if applicable, updates to such items), unless such item has been waived by the Administrative Agent in writing; provided that
any such items requiring delivery of Security Documents that the Administrative Agent determines to be applicable, a Title Policy, flood
hazard determinations or, to the extent applicable, evidence of flood insurance coverage as required by the Administrative Agent shall
not be waived without the written consent of the Requisite Lenders;
(B) all
of the items required to be delivered to the Administrative Agent under Section 7.13(a) if not previously delivered unless
such property is owned by a Subsidiary of the Borrower that is, at such time, a Guarantor and then only to the extent required by the
Administrative Agent;
(C) if
and to the extent required by the Administrative Agent, the items required to be delivered to the Administrative Agent under Section 7.14(a)(ii);
and
(D) such
other items or documents as may be appropriate under the circumstances or as the Administrative Agent may reasonably request.
(b) Borrower
Requests for Property Releases. From time to time the Borrower may request that any Collateral Property be released from the Security
Documents (a “Property Release”), and the Liens created thereby to the extent applicable to such Property and related
Collateral, in connection with (x) a Qualified Collateral Property Sale or (y) such Property being excluded from Collateral
Property Eligibility under Section 7.15(c) and the Administrative Agent having approved the release thereof in its sole
discretion, in each case, subject to the satisfaction of the following conditions:
(i) Upon
giving effect to such Property Release, the Loan Parties shall be in compliance with the covenant set forth in Section 9.1(c) (recalculated
on a pro forma basis giving effect to such Property Release and any payment to be made in connection therewith);
(ii) No
Default or Event of Default has occurred and is continuing (other than a Default or Event of Default solely with respect to the Collateral
Property subject to such Property Release) or would occur as a result of such Property Release;
(iii) In
the case of each such Property Release in connection with a Qualified Collateral Property Sale, the Administrative Agent shall have received
the Qualified Collateral Property Sale Prepayment Amount in accordance with Section 2.8;
(iv) If
any Collateral Property to be released pursuant to such Property Release is subject to an agreement which restricts such Collateral Property
from being owned, operated or encumbered independently from another Collateral Property, then (A) each such other Collateral Property
shall be released concurrently with the effectiveness of such Property Release pursuant to one or more Property Releases in accordance
with the terms hereof such that, upon giving effect to such Property Release and any other Property Release occurring simultaneously therewith,
none of the remaining Collateral Properties shall be in violation of such restrictions or (B) the Administrative Agent shall have
received evidence in form and substance satisfactory to the Administrative Agent in its reasonable discretion that the applicable agreement
has been amended or replaced (in accordance with this Agreement) such that applicable Collateral Properties may be owned, operated and/or
encumbered separately and independently from each other;
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(v) With
respect to the release of any Collateral Property that is dependent upon, assessed with or otherwise reliant on any other Collateral Property
not then subject to release, to the extent required by the Administrative Agent, the Administrative Agent shall have received: (A) evidence
reasonably satisfactory to the Administrative Agent that: (1) the Collateral Property subject to release and the Collateral Property
which shall remain encumbered by a Mortgage immediately following such release (as used in this Section, the “Remaining Collateral
Property”) are each separate legal parcels, lawfully created and described, in compliance with Applicable Laws, including, without
limitation, applicable ordinances pertaining to zoning, subdivisions, parcel maps, condominiums or other land divisions; (2) that
immediately following such release the Remaining Collateral Property complies with Applicable Law and has the benefit of all utilities,
easements, public and/or private streets, covenants, conditions and restrictions as may be reasonably necessary for the continued operation
thereof; (3) such release shall not materially adversely affect the use or operation of, or access to, the Remaining Collateral Property;
(4) if applicable, the Borrower shall have caused to be executed and recorded in the applicable official records of the jurisdiction(s) in
which the Collateral Property subject to release, the Remaining Collateral Property and any other applicable related property owned by
the Borrower or its Affiliates are located, a declaration of covenants, conditions and restrictions and/or such other instruments and
agreements related thereto as are necessary or desirable to satisfy the foregoing requirements, each in form and substance reasonably
acceptable to the Administrative Agent; (5) any tax, bond or assessment which constitutes a Lien against both the Collateral Property
subject to release and the Remaining Collateral Property has been proportionately allocated between such Properties, provided that separate
tax parcels of real property shall not be a condition to release under this clause (5) so long as the Borrower is pursuing separate
tax parcels of real property, and continues to pay or cause to be paid all taxes, charges and assessments related to the such Properties,
and (B) at the Borrower’s sole cost, the Administrative Agent shall have received any title insurance endorsements reasonably
required by the Administrative Agent in connection with the foregoing to the extent such endorsements are available in the applicable
jurisdiction; and
(vi) The
Administrative Agent shall have received such written request at least ten (10) Business Days (or such shorter period as may be acceptable
to the Administrative Agent) prior to the requested date of release.
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Delivery by the Borrower to
the Administrative Agent of any such request shall constitute a representation by the Borrower that the foregoing conditions (both as
of the date of such request and as of the date of such release) are true and correct with respect to such Property Release. Without limiting
the foregoing, upon the Administrative Agent’s request, the Borrower shall deliver to the Administrative Agent a certificate from
the chief operating officer or chief financial officer certifying the matters referred to in the immediately preceding clauses (i) through
(v) (together with supporting calculations attached hereto).
(c) Ineligibility
of Properties. A Property shall be excluded from the calculation of Collateral Property Availability if, at any time: (i) such
Property fails to qualify as an Eligible Property, and such failure is not cured within 30 days after the Borrower obtains knowledge of
such failure, (ii) the Administrative Agent shall cease to hold a valid and perfected first priority mortgage, deed of trust or deed
to secure debt, as applicable, Lien (senior to all Liens other than Liens permitted to be incurred not in violation of Section 9.2(a) (other
than Permitted Junior Liens)), in such Property, or (iii) there shall have occurred and be continuing a default (after giving effect
to any applicable cure period) under any Security Document relating to such Property. Such Property shall not be released from the Liens
of the applicable Security Instruments unless the requirements of Section 7.15(b) are satisfied with respect thereto.
Upon the occurrence of any such event or circumstance described in the foregoing clause (i), (ii) or (iii), Collateral Property Availability
shall be recalculated excluding such ineligible Property.
(d) Continuity
of Liens. Except as set forth in Section 7.15(b), no Collateral Property shall be released from the Liens created by the
Security Documents applicable thereto.
(e) Frequency
of Appraisals. The Appraised Value of a Collateral Property shall be determined or redetermined, as applicable, pursuant to Appraisals
conducted under each of the following circumstances:
(i) In
connection with the proposal of a Property as a Collateral Property pursuant to Section 7.15(a) (which shall include,
without limitation, in connection with the initial encumbrance of the Initial Collateral Properties with Security Instruments);
(ii) If
any Default or Event of Default exists, upon written request
from the Administrative Agent to the Borrower; and
(iii) If
necessary in order to comply with FIRREA, other Applicable Law or the requirements of any Governmental Authority relating to the Administrative
Agent or any of the Lenders;
(iv) In
connection with an extension pursuant to Section 2.13 (to the extent applicable in accordance with the terms of Section 2.13);
and
(v) Upon
written request from the Administrative Agent to the Borrower (it being understood and agreed that the Administrative Agent shall make
such request, without limitation, upon direction of the Requisite Lenders), not more than once every 12 months with respect to each Collateral
Property.
All Appraisals shall be engaged
by the Administrative Agent at the Borrower’s expense and shall be subject to reasonably satisfactory review and approval of the
Administrative Agent. Notwithstanding anything to the contrary herein, each Lender may conduct Appraisals of any Collateral Property at
any time at such Lender’s expense; provided that, for the avoidance of doubt, such Appraisal shall not be used in determining
or redetermining the Appraised Value of a Collateral Property.
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(f) MIRE
Events. Notwithstanding anything to the contrary set forth herein, no MIRE Event may be closed until the date that is (a) if
there are no Collateral Properties in a “special flood hazard area” in any Flood Insurance Rate Map published by the Federal
Emergency Management Agency (or any successor agency), twenty (20) days or (b) if there are any Collateral Properties in a “special
flood hazard area”, 60 days, after the Administrative Agent has delivered to the Lenders the following documents in respect of such
Property: (i) a completed flood hazard determination from a third party vendor; (ii) if such Property is located in a “special
flood hazard area”, (A) a notification to the applicable Loan Parties of that fact and (if applicable) notification to the
applicable Loan Parties that flood insurance coverage is not available and (B) evidence of the receipt by the applicable Loan Parties
of such notice; and (iii) if required by applicable Flood Laws, evidence of required flood insurance with respect to which flood
insurance has been made available under applicable Flood Laws; provided that any such MIRE Event may be closed prior to such period expiring
if the Administrative Agent shall have received confirmation from each Lender that such Lender has completed any necessary flood insurance
due diligence to its reasonable satisfaction.
(g) Certain
Obligations Secured By Real Property. Notwithstanding anything to the contrary in the Loan Documents, it is the intention of the parties
hereto that (i) the Security Instruments and the other Security Documents with respect to any Collateral Property create as security
for the Guaranteed Obligations of the direct owners of any Collateral Property a valid and enforceable Lien on all of the Collateral Properties,
Pledged Interests and Collateral Property Accounts granted pursuant thereto in favor of the Administrative Agent for the benefit of the
Lenders, and (ii) the Obligations of the Borrower and the “Guarantied Obligations” (as defined in each Guaranty) of any
Guarantor that is not a direct owner of a Collateral Property, in each such case, under the Loan Documents shall not be directly secured
by any real property interest whatsoever.
(h) Other
Indebtedness. The Borrower represents, warrants and covenants that no Subsidiary owning a Collateral Property (i) has or shall
incur, acquire or suffer to exist any Indebtedness (other than (x) obligations in respect of Indebtedness under the Loan Documents,
(y) Permitted Junior Debt, (z) Specified Derivative Obligations or (aa) Derivatives Contracts obtained for bona fide hedging
purposes in connection with Permitted Junior Debt), or (ii) is or shall become obligated in respect of any Indebtedness of Parent
or any other Subsidiary (other than (x) obligations in respect of Indebtedness under the Loan Documents in its capacity as a Guarantor
hereunder, (y) Permitted Junior Debt, (z) Specified Derivative Obligations or (aa) Derivatives Contracts obtained for bona fide
hedging purposes in connection with Permitted Junior Debt).
(i) Deposit
Account Collateral.
(i) The
Guaranteed Obligations shall at all times be secured equally and ratably by all Collateral Property Accounts. The Borrower represents,
warrants and covenants that the Deposit Account Pledge Agreement creates as security for the Guaranteed Obligations a valid and enforceable
Lien on all Collateral Property Accounts, all funds on deposit therein from time to time, and any other Collateral granted pursuant thereto,
in favor of the Administrative Agent for the benefit of the holders of Guaranteed Obligations, superior to and prior to the rights of
all third parties (subject to Liens permitted by Section 9.2(a)(ii)(A)).
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(ii) Parent
and the Borrower shall at all times cause each Collateral Property Account to be (i) subject to a Deposit Account Control Agreement
and (ii) owned solely and directly by a Subsidiary Owner.
(iii) The
Borrower will direct, and use commercially reasonable efforts to cause, all tenants and other payors of Collateral Property Revenue to
directly deposit such Collateral Property Revenue into the applicable Collateral Property Account.
Section 7.16. SPE
Requirements.
(a) Each
of the Borrower and Holdings has since its formation and shall at all times (i) comply with the SPE Requirements applicable to the
Borrower and Holdings, respectively, and (ii) preserve and keep in full force and effect its existence as a Special Purpose Entity.
(b) OPI
WF Owner has since its formation, and each of Holdings and the Borrower shall cause each Subsidiary Owner at all times to, (i) comply
with the SPE Requirements applicable to such Subsidiary Owner and (ii) preserve and keep in full force and effect its existence as
a Special Purpose Entity.
Section 7.17. Most
Favored Lender.
If at any time a Material
Credit Document contains (i) a financial maintenance
covenant applicable to (x) Parent, (y) Parent and one or more Subsidiaries thereof or (z) a majority of Parent’s
Subsidiaries that is in addition to, or more restrictive than, any financial maintenance
covenant set forth in Section 9.1(a),
or (ii) an indebtedness incurrence covenant tied to the satisfaction of specified financial ratios or threshold that is in addition
to, or more restrictive to Parent and/or any such Subsidiaries of Parent than, the covenants set forth in Sections
9.13 of this Agreement (in each case, including as such covenants and tests may be modified from time to time pursuant
to this Section 7.17) (any such provision in any Material Credit Document (including
any necessary definitions therefrom), a “More Favorable Covenant”), then the Borrower shall provide a Most Favored
Lender Notice in respect of such More Favorable Covenant. Such More Favorable Covenant shall be deemed automatically incorporated by reference
into this Agreement, mutatis mutandis, as if set forth in full in Section 9.1 or
9.13, as applicable, effective as of the date when such More Favorable Covenant
shall have become effective under such Material Credit Document.
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Article VIII.
INFORMATION
For so long as this Agreement
is in effect, Parent or the Borrower, as applicable, shall furnish to the Administrative Agent for distribution to each of the Lenders:
Section 8.1. Quarterly
Financial Statements.
As soon as available and in
any event within 5 days after the same is filed with the Securities and Exchange Commission (but in no event later than 45 days after
the end of each of the first, second and third fiscal quarters of Parent), commencing with the fiscal quarter ending March 31, 2024,
the unaudited consolidated balance sheet of Parent and its Subsidiaries as at the end of such period and the related unaudited consolidated
statements of income, shareholders’ equity and cash flows of Parent and its Subsidiaries for such period, setting forth in each
case in comparative form the figures as of the end of and for the corresponding periods of the previous fiscal year, all of which shall
be certified by the chief financial officer or chief accounting officer of Parent, in his or her opinion, to present fairly, in accordance
with GAAP as then in effect in all material respects, the consolidated financial position of Parent and its Subsidiaries as at the date
thereof and the results of operations for such period (subject to normal year end audit adjustments and the absence of footnotes). Together
with such financial statements, Parent shall deliver reports, in form and detail satisfactory to the Administrative Agent, setting forth:
(a) a listing of capital expenditures for the Collateral Properties made during the fiscal quarter then ended; and (b) a listing
of all Properties acquired during such fiscal quarter, including the In-Place Collateral Property NOI of each such Property, acquisition
costs and related mortgage debt, if any.
Section 8.2. Year-End
Statements.
As soon as available and in
any event within 5 days after the same is filed with the Securities and Exchange Commission (but in no event later than 90 days after
the end of each fiscal year of Parent), commencing with the fiscal year ending December 31, 2023, the audited consolidated balance
sheet of Parent and its Subsidiaries as at the end of such fiscal year and the related audited consolidated statements of income, shareholders’
equity and cash flows of Parent and its Subsidiaries for such fiscal year, setting forth in comparative form the figures as at the end
of and for the previous fiscal year, all of which shall be (a) certified by the chief financial officer or chief accounting officer
of Parent, in his or her opinion, to present fairly, in accordance with GAAP as then in effect in all material respects, the consolidated
financial position of Parent and its Subsidiaries as at the date thereof and the results of operations for such period and (b) audited
by independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent (it being
acknowledged that any of Deloitte, Ernst & Young, PricewaterhouseCoopers and KPMG shall be acceptable to the Administrative Agent).
Together with such financial statements, Parent shall deliver a report, certified by the chief financial officer or chief accounting officer
of Parent, in form and detail reasonably satisfactory to the Administrative Agent, setting forth the In-Place Collateral Property NOI
and a listing of capital expenditures made, in each case, for each Collateral Property for such fiscal year.
Section 8.3. Compliance
Certificate and Related Reports.
At the time the financial
statements are furnished pursuant to the immediately preceding Sections 8.1 and 8.2, and within 5 Business Days of the Administrative
Agent’s request with respect to any other fiscal period in connection with any recalculation or pro forma calculation for which
provision is made in any Loan Document, (i) a certificate substantially in the form of Exhibit J (a “Compliance
Certificate”) executed on behalf of Parent by the chief financial officer or chief accounting officer of Parent (a) setting
forth in reasonable detail as of the end of such quarterly accounting period or fiscal year, as the case may be, the calculations required
to establish whether Parent was in compliance with the covenants contained in Section 9.1 (including, for the avoidance of
doubt, any More Favorable Covenant); and (b) stating that, to the best of his or her knowledge, information and belief after due
inquiry, no Default or Event of Default exists, or, if such is not the case, specifying such Default or Event of Default and its nature,
when it occurred and the steps being taken by the applicable Loan Parties with respect to such event, condition or failure, and (ii) a
report in form and substance satisfactory to the Administrative Agent setting forth a list of the Collateral Properties and detailing
all material financial information maintained on the Collateral Properties, including, without limitation, In-Place Collateral Property
NOI for the four fiscal quarter period ending as of the end of such quarterly accounting period or fiscal year, as applicable, GAAP undepreciated
cost basis, property In-Place Collateral Property NOI projections, Appraised Values (to the extent available), operating statements (solely
in the case of each such report delivered in connection with annual financial statements furnished pursuant to Section 8.2),
aggregate capital expenditures for each Collateral Property made during such quarterly accounting period or fiscal year, as the case may
be, and a current rent roll for each Collateral Property.
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Section 8.4. Other
Information.
(a) Promptly
upon receipt thereof, copies of all material reports, if any, submitted to Parent or its Board of Trustees by its independent public accountants,
and in any event, all management reports;
(b) Within
five (5) Business Days ofafter
the filing thereof, copies of all registration statements (excluding the exhibits thereto (unless requested by the Administrative Agent)
and any registration statements on Form S--8
or its equivalent), reports on Forms 10--K,
10--Q
and 8--K
(or their equivalents) and all other periodic reports which any Loan Party or any other Subsidiary of Holdings shall file with the Securities
and Exchange Commission (or any Governmental Authority substituted therefor) or any national securities exchange; provided
that, notwithstanding the foregoing, the delivery obligations set forth in this Section 8.4(b) shall be deemed satisfied automatically
upon the public availability of such information on the SEC’s EDGAR website or any other publicly available reporting service, and
no separate furnishing or delivery of such information shall be required so long as such information remains publicly available;
(c) Promptly
upon the mailing thereof to the shareholders of Parent generally, copies of all financial statements, reports and proxy statements so
mailed and promptly upon the issuance thereof copies of all press releases issued by Parent, any Subsidiary of Holdings or any other Loan
Party;
(d) If
any ERISA Event shall occur that individually, or together with any other ERISA Event that has occurred, could reasonably be expected
to have a Material Adverse Effect, a certificate of the chief operating officer or chief financial officer of Parent setting forth details
as to such occurrence and the action, if any, which Parent or other applicable member of the ERISA Group is required or proposes to take;
(e) To
the extent any Loan Party or any other Subsidiary of Holdings is aware of the same, prompt notice of the commencement of any proceeding
or investigation by or before any Governmental Authority and any action or proceeding in any court or other tribunal or before any arbitrator
against or in any other way relating adversely to, or adversely affecting, any Loan Party or any other Subsidiary of Holdings or any of
their respective properties, assets or businesses which could reasonably be expected to have a Material Adverse Effect;
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(f) A
copy of any amendment to the certificate or articles of incorporation or formation, bylaws, partnership agreement or other similar organizational
documents of Parent or any other Loan Party promptly upon the Administrative Agent’s request;
(g) Prompt
notice of any change in the senior management of Parent, any other Loan Party or any other Subsidiary of Holdings, and any change in the
business, assets, liabilities, financial condition, results of operations or business prospects of any Loan Party or any other Subsidiary
of Holdings, in each case, which has had, or could reasonably be expected to have, a Material Adverse Effect;
(h) Prompt
notice of the occurrence following the Amendment
No. 1 Effective Date of any of the following promptly upon a Responsible Officer obtaining knowledge thereof: (i) Default
or Event of Default or (ii) any event which constitutes or which with the passage of time, the giving of notice, or otherwise, would
constitute a default or event of default by Parent, any Subsidiary of Holdings or any other Loan Party under any Material Contract to
which any such Person is a party or by which any such Person or any of its respective properties may be bound;
(i) Prompt
notice of any order, judgment or decree in excess of $5,000,000 having been entered against any Loan Party or any other Subsidiary of
Holdings or any of their respective properties or assets;
(j) Prompt
notice if Parent, any Subsidiary of Holdings or any other Loan Party shall receive any notification from any Governmental Authority alleging
a violation of any Applicable Law or any inquiry which could reasonably be expected to have a Material Adverse Effect;
(k) [Reserved];
(l) [Reserved];
(m) Promptly,
upon each request, information identifying the Borrower or any other Loan Party as a Lender may request in order to comply with applicable
“know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act;
(n) Promptly,
and in any event within three (3) Business Days after the Borrower obtains knowledge thereof, written notice of the occurrence of
any of the following: (i) the Borrower, any Loan Party or any other Subsidiary of Holdings shall receive notice that any violation
of or noncompliance with any Environmental Law has or may have been committed or is threatened; (ii) the Borrower, any Loan Party
or any other Subsidiary of Holdings shall receive notice that any administrative or judicial complaint, order or petition has been filed
or other proceeding has been initiated, or is about to be filed or initiated against any such Person alleging any violation of or noncompliance
with any Environmental Law or requiring any such Person to take any action in connection with the release or threatened release of Hazardous
Materials; (iii) the Borrower, any Loan Party or any other Subsidiary of Holdings shall receive any notice from a Governmental Authority
or private party alleging that any such Person may be liable or responsible for any costs associated with a response to, or remediation
or cleanup of, a release or threatened release of Hazardous Materials or any damages caused thereby; or (iv) the Borrower, any Loan
Party or any other Subsidiary of Holdings shall receive notice of any other fact, circumstance or condition that could reasonably be expected
to form the basis of an environmental claim, in each case, where the matters covered by such notice(s) under the preceding clauses
(i) through (iv), whether individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect;
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(o) Promptly,
and in any event within three (3) Business Days after any Loan Party obtains knowledge thereof, any Collateral Property failing to
comply with the requirements for being an Eligible Property;
(p) At
the time the financial statements are furnished pursuant to Sections 8.1 and 8.2, a certificate signed by a Responsible
Officer of the Borrower, in form and substance satisfactory to the Administrative Agent, setting forth (i) a reasonably detailed
calculation of Excess Cash Flow (and applicable components thereof) for such fiscal quarter then most recently ended, and (ii) a
reconciliation of all of revenues and expenditures in respect of the Collateral Properties for the fiscal quarter then most recently ended
and of all deposits into and withdrawals from the Collateral Property Accounts;
(q) From
time to time and promptly upon each request, such data, certificates, reports, statements, opinions of counsel, documents or further information
regarding any Property or the business, assets, liabilities, financial condition, results of operations or business prospects of Parent,
any of its Subsidiaries, or any other Loan Party as the Administrative Agent may reasonably request.
Section 8.5. Electronic
Delivery of Certain Information.
(a) Documents
required to be delivered pursuant to the Loan Documents shall be delivered by electronic communication and delivery, including, the Internet,
e-mail or intranet websites to which the Administrative Agent and each Lender have access (including a commercial, third-party website
such as www.sec.gov <http://www.sec.gov> or a website sponsored or hosted by the Administrative Agent or Parent) provided that the
foregoing shall not apply to (i) notices to any Lender pursuant to Article II and (ii) any Lender that has notified
the Administrative Agent and the Borrower that it cannot or does not want to receive electronic communications. The Administrative Agent
or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic delivery pursuant
to procedures approved by it for all or particular notices or communications. Documents or notices delivered electronically (other than
by e-mail) shall be deemed to have been delivered (A) with respect to deliveries made pursuant to Sections 8.1, 8.2,
8.4(b) and 8.4(c) by proper filing with the Securities and Exchange Commission and available on www.sec.gov, on
the date of filing thereof and (B) with respect to all other electronic deliveries (other than deliveries made by e-mail) twenty-four
(24) hours after the date and time on which the Administrative Agent or the Borrower posts such documents or the documents become available
on a commercial website and the Administrative Agent or Borrower notifies each Lender of said posting and the Borrower notifies Administrative
Agent of said posting by causing an e-mail notification to be sent to an email address specified from time to time by the Administrative
Agent and provides a link thereto provided (x) if such notice or other communication is not sent or posted during the normal business
hours of the recipient, said posting date and time shall be deemed to have commenced as of 10:00 a.m. Eastern time on the next business
day for the recipient and (y) if the deemed time of delivery occurs on a day that is not a business day for the recipient, the deemed
time of delivery shall be 10:00 a.m. Eastern time on the next business day for the recipient. Notwithstanding anything contained
herein, the Borrower shall deliver paper copies of any documents to the Administrative Agent or to any Lender that requests such paper
copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender. The Administrative
Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents delivered electronically, and in
any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery. Each Lender shall be
solely responsible for requesting delivery to it of paper copies and maintaining its paper or electronic documents.
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(b) Documents
required to be delivered pursuant to Article II may be delivered electronically to a website provided for such purpose by
the Administrative Agent pursuant to the procedures provided to the Borrower by the Administrative Agent.
Section 8.6. Public/Private
Information.
The Borrower shall cooperate
with the Administrative Agent in connection with the publication of certain materials and/or information provided by or on behalf of the
Borrower. Documents required to be delivered pursuant to the Loan Documents shall be delivered by or on behalf of the Borrower to the
Administrative Agent and the Lenders (collectively, “Information Materials”) pursuant to this Article and the
Borrower shall designate Information Materials (a) that are either available to the public or not material with respect to Parent
and its Subsidiaries or any of their respective securities for purposes of United States federal and state securities laws, as “Public
Information” and (b) that are not Public Information as “Private Information”.
Section 8.7. USA
Patriot Act Notice; Compliance.
The Patriot Act and federal
regulations issued with respect thereto require all financial institutions to obtain, verify and record certain information that identifies
individuals or business entities which open an “account” with such financial institution. Consequently, a Lender (for itself
and/or as agent for all Lenders hereunder) may from time-to-time request, and the Borrower shall, and shall cause the other Loan Parties
to, provide promptly upon any such request to such Lender, such Loan Party’s name, address, tax identification number and/or such
other identification information as shall be necessary for such Lender to comply with federal law. An “account” for this purpose
may include, without limitation, a deposit account, cash management service, a transaction or asset account, a credit account, a loan
or other extension of credit, and/or other financial services product.
Article IX.
NEGATIVE COVENANTS
For so long as this Agreement
is in effect, Holdings, the Borrower and, as applicable, Parent shall comply with the following covenants:
Section 9.1. Financial
Covenants.
(a) Total
Unencumbered Assets. Parent will at all times maintain Total Unencumbered Assets of not less than 150% of the aggregate outstanding
principal amount of the Unsecured Debt of Parent and its Subsidiaries on a consolidated basis in accordance with GAAP.
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(b) Minimum
Debt Service Coverage Ratio. Borrower shall not permit the ratio of (i) the aggregate In-Place Collateral Property NOI for all
then Collateral Properties for the fiscal quarter of Parent most recently ending and the three immediately preceding fiscal quarters to
(ii) Debt Service as of the end of such period, but giving effect to any Specified Payments made after the end of such fiscal quarter
(such ratio the “Debt Service Coverage Ratio”), to be less than 1.35 to 1.00 as of the end of any fiscal quarter.
(c) Minimum
Collateral Property Availability. Borrower shall not permit the Collateral Property Availability to at any time be less than the difference
of (i) $425,000,000, less (ii) the aggregate amount of Specified Payments made at or prior to such time.
(d) Dividends
and Other Restricted Payments.
(i) Parent
shall not at any time (x) declare or make any Restricted Purchase or (y) subject to clause (d)(iii) below, increase the
quarterly dividend payable on Equity Interests of the Parent to an amount greater than $0.01 per share; provided that Parent may make
Restricted Purchases of Equity Interests from certain of its current and former trustees and officers and from certain current and former
officers and employees of RMR, in each case, in satisfaction of tax withholding and payment obligations in connection with the vesting
of awards of Equity Interests or upon the forfeiture of any such grant or award in accordance with its terms.
(ii) The
Borrower shall not permit any of its Subsidiaries to declare or make any Restricted Payments except that, so long as no Default or Event
of Default exists at the time of declaration or payment thereof, (A) Subsidiaries of the Borrower may make distributions to a Subsidiary
Owner from time to time, and (B) Subsidiaries of the Borrower may make distributions to the Borrower (or any Person designated by
the Borrower) once per fiscal quarter of Parent in an aggregate amount (collectively for all such distributions from such Subsidiary Owners
to the Borrower) not to exceed the amount of Excess Cash Flow attributable to previously ended fiscal quarters and then on deposit in
the Collateral Property Accounts (i.e., not previously distributed or otherwise applied) (distributions pursuant to this clause (ii)(B),
collectively, an “ECF Distribution”). For the avoidance of doubt, (x) there shall be no more than one (1) ECF
Distribution in any fiscal quarter of Parent, (y) no revenue from any then-current fiscal quarter shall be available for distribution
as an ECF Distribution pursuant to this Section, and (z) if Excess Cash Flow as reported by the Borrower pursuant to Section 8.4(p) is
equal to or less than zero for any fiscal quarter, there shall be no resulting ECF Distribution attributable to such fiscal quarter.
(iii) Subject
to clause (iv) immediately below, if an Event of Default exists, none of Parent, Holdings and the Borrower shall, nor shall any of
Parent, Holdings or the Borrower permit any Subsidiary of Holdings to, declare or make any Restricted Payments; provided that, notwithstanding
such restriction and any such restriction set forth in clause (d)(i) above, the Borrower may make distributions to Holdings, and
Holdings may in turn make distributions to Parent, and Parent may declare and make distributions, in each case, in an amount to permit
Parent (in the aggregate, together with all other distributions to Parent from its Subsidiaries) to declare and make cash distributions
to its shareholders in an aggregate amount not to exceed the minimum amount necessary for Parent to remain in compliance with Section 7.11
or to avoid the imposition of income or excise taxes imposed under Sections 857(b)(1), 857(b)(3) or 4981 of the Internal Revenue
Code.
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(iv) If
an Event of Default specified in Section 10.1(a), Section 10.1(e) or Section 10.1(f) shall
exist, or if as a result of the occurrence of any other Event of Default any of the Obligations have been accelerated pursuant to Section 10.2(a),
none of Parent, Holdings and the Borrower shall, nor shall any of Parent, Holdings or the Borrower permit any Subsidiary of Holdings to,
make any Restricted Payments to any Person.
Section 9.2. Negative
Pledge.
(a) Holdings
shall not, and shall not permit any of its Subsidiaries to, (i) create, assume, incur, permit or suffer to exist any Lien on any
Collateral Property now owned or hereafter acquired, except for Permitted Liens described in clauses (a), (c), (d), (f), (g), (i), (k),
(p) and (q) of the definition of that term, or (ii) create, assume, incur, permit or suffer to exist any Lien on other
Collateral (including, without limitation, each Collateral Property Account), or any direct or indirect ownership interest of Parent in
any Person owning any other Collateral, except for (A) solely in the case of Collateral Property Accounts, Permitted Liens described
in clauses (a), (i), (k), (l) and (p) of the definition of that term, (B) solely in the case of Pledged Interests, Permitted
Liens described in clauses (a), (i), (k) and (p), and (C) solely in the case of any Collateral other than Collateral Properties,
Pledged Interests and Collateral Property Accounts, Permitted Liens. Holdings and the Borrower shall not, and shall not permit any Subsidiary
of Holdings to, create, assume, or incur any Lien (other than Permitted Liens) upon any of its other properties, assets, income or profits
of any character whether now owned or hereafter acquired if immediately prior to the creation, assumption or incurring of such Lien, or
immediately thereafter, a Default or Event of Default is or would be in existence, including without limitation, a Default or Event of
Default resulting from a violation of any of the covenants contained in Section 9.1.
(b) Holdings
and the Borrower shall not, and shall not permit any Subsidiary of Holdings to, enter into, assume or otherwise be bound by any Negative
Pledge except for a Negative Pledge contained in (i) an agreement evidencing Indebtedness which (A) such Loan Party or such
Subsidiary may create, incur, assume, or permit or suffer to exist without violation of this Agreement and (B) does not prohibit
or otherwise restrict the Liens in favor of the Administrative Agent for the benefit of the Lenders pursuant to the Loan Documents or
any replacement or refinancing thereof in either case in an aggregate principal amount not to exceed the sum of the aggregate then-current
maximum principal amount of Loans and Commitments plus the amount of customary closing fees and expenses to be paid in connection with
such replacement or refinancing; provided that no general prohibition on the incurrence of Indebtedness or the granting of Liens as a
result of failing to satisfy any Indebtedness incurrence test or financial ratio shall cause this clause (i) not to be satisfied;
(ii) an agreement relating to the sale of a Subsidiary or assets pending such sale, provided that (x) in any such case the Negative
Pledge applies only to the Subsidiary or the assets that are the subject of such sale and (y) in the case of any such agreement relating
to the sale of a Collateral Property, such sale constitutes a Qualified Collateral Property Sale; or (iii) an agreement containing
customary provisions restricting assignment of such agreement entered into by Parent, any other Loan Party or any Subsidiary of Holdings
in the ordinary course of business.
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Section 9.3. Restrictions
on Intercompany Transfers.
Holdings shall not, and shall
not permit any Subsidiary of Holdings to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance
or restriction of any kind on the ability of any Subsidiary of Holdings to: (a) pay dividends or make any other distribution on any
of such Subsidiary’s capital stock or other equity interests owned by Parent or any Subsidiary; (b) pay any Indebtedness owed
to Holdings or any Subsidiary; (c) make loans or advances to Holdings or any Subsidiary; or (d) transfer any of its property
or assets to Holdings or any Subsidiary of Holdings; other than (i) with respect to clauses (a) through (d) those encumbrances
or restrictions contained in (A) any Loan Document, (B) any other agreement evidencing unsecured Indebtedness that Holdings
or any Subsidiary of Holdings may create, incur, assume or permit or suffer to exist under this Agreement to the extent such encumbrances
and restrictions imposed in connection with such unsecured Indebtedness, taken as a whole, are either substantially similar to, or less
restrictive than, the encumbrances and restrictions set forth in this Agreement, taken as a whole, and (C) any Permitted Junior Debt,
and (ii) with respect to clause (d), (A) customary provisions restricting assignment of any agreement entered into by Parent,
any other Loan Party or any Subsidiary of Holdings in the ordinary course of business or (B) transfer restrictions in any agreement
relating to the sale of a Subsidiary of Holdings or assets pending such sale; provided that in the case of this clause (B), the restrictions
apply only to the Subsidiary or the assets that are the subject of such sale. Notwithstanding anything to the contrary in the foregoing,
the restrictions in this Section shall not apply to any provision of any Guaranty entered into by Parent, any Loan Party or any other
Subsidiary relating to the Indebtedness of any Subsidiary permitted to be incurred hereunder, which provision subordinates any rights
of Parent, other Loan Party or any other Subsidiary to payment from such Subsidiary to the payment in full of such Indebtedness.
Section 9.4. Merger,
Consolidation, Sales of Assets and Other Arrangements.
Parent shall not, and shall
not permit any other Loan Party or any other Subsidiary of Holdings to, (i) enter into any transaction of merger or consolidation;
(ii) liquidate, windup or dissolve itself (or suffer any liquidation or dissolution); (iii) convey, sell, lease, sublease, transfer
or otherwise dispose of, in one transaction or a series of transactions, all or substantially all of the business or assets, or the capital
stock of or other Equity Interests of Holdings or any Subsidiary thereof, whether now owned or hereafter acquired; or (iv) solely
in the case of Parent or any other Loan Party, (w) create or adopt a Plan of Division, or file a Certificate of Division, or otherwise
effectuate a LLC Division or LP Division, (x) be liquidated, terminated, dissolved, or merged or consolidated into another entity
pursuant to a LLC Division or LP Division, (y) be divided into two or more Persons, including, without limitation, becoming a Divided
LLC or Divided LP (whether or not the original Person survives such division), or (z) be created, or reorganized into, one or more
series pursuant to a LLC Division, LP Division or otherwise; provided, however, that:
(a) the
Loan Parties and Subsidiaries of Holdings may lease and sublease their respective assets, as lessor or sublessor (as the case may be),
in the ordinary course of their business (other than any lease or sublease of a Collateral Property to any Loan Party, any Subsidiary
of Parent or any of their respective Affiliates without the prior written consent of the Administrative Agent);
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(b) a
Person (other than Holdings and any Subsidiary of Holdings) may merge with and into Parent so long as (i) Parent is the survivor
of such merger, (ii) immediately prior to such merger, and immediately thereafter and after giving effect thereto, no Default or
Event of Default is or would be in existence; and (iii) Parent shall have given the Administrative Agent and the Lenders at least
10 Business Days’ prior written notice of such merger (except that such prior notice shall not be required in the case of the merger
of a Subsidiary of Parent (other than Holdings and any Subsidiary of Holdings) with and into Parent);
(c) Parent
and each Subsidiary of Parent (other than Holdings and any Subsidiary of Holdings) may sell, transfer or dispose of assets (other than,
in the case of Parent, its direct and indirect interests in Holdings and any Subsidiary of Holdings) among themselves; and
(d) Subsidiary
Owners may sell, transfer or dispose of Collateral Properties in accordance with Section 7.15(b).
Section 9.5. Plans.
Parent shall not, and shall
not permit any other Loan Party or any other Subsidiary to, permit any of its respective assets to become or be deemed to be “plan
assets” within the meaning of ERISA, the Internal Revenue Code and the respective regulations promulgated thereunder. Parent shall
not cause or permit to occur, and shall not permit any other member of the ERISA Group to cause or permit to occur, any ERISA Event if
such ERISA Event could reasonably be expected to have a Material Adverse Effect.
Section 9.6. Fiscal
Year.
Parent shall not, and shall
not permit any other Loan Party or other Subsidiary of Holdings to, change its fiscal year from that in effect as of the Agreement Date.
All fiscal reporting periods of Holdings and each Subsidiary (including such Person’s fiscal year and method for determining fiscal
quarters) shall at all times be the same as the fiscal reporting periods of Parent.
Section 9.7. Modifications
of Organizational Documents and Other Contracts.
(a) Parent
shall not, and shall not permit any other Loan Party or any other Subsidiary of Holdings to, amend, supplement, restate or otherwise modify
its certificate or articles of incorporation or formation, by-laws, operating agreement, declaration of trust, partnership agreement or
other applicable organizational document if such amendment, supplement, restatement or other modification (i) could reasonably be
expected to be adverse to the interest of the Lenders in any material respect, (ii) could reasonably be expected to have a Material
Adverse Effect, or (iii) could reasonably be expected to adversely affect the validity, perfection or priority of the Administrative
Agent’s security interest in the Collateral.
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(b) Parent
shall not, and shall not permit any Subsidiary or other Loan Party to, enter into any amendment or modification to any Material Contract
which could reasonably be expected to have a Material Adverse Effect.
Section 9.8. Transactions
with Affiliates.
Holdings and the Borrower
shall not enter into, and shall not permit any other Loan Party or any other Subsidiary of Holdings to enter into, any transaction (including
the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate after the Agreement Date, except
(a) subject to Section 9.14, transactions among Holdings, the Borrower and/or the Subsidiary Owners, (b) Restricted
Payments permitted by Section 9.1(d) or (c) transactions in the ordinary course of such Loan Party’s business
and pursuant to the reasonable requirements of the business of such Loan Party and upon fair and reasonable terms which are no less favorable
to such Loan Party than would be obtained in a comparable arm’s length transaction with a Person that is not an Affiliate.
Section 9.9. Environmental
Matters.
Holdings and the Borrower
shall not, and shall not permit any other Loan Party or any other Person to, use, generate, discharge, emit, manufacture, handle, process,
store, release, transport, remove, dispose of or clean up any Hazardous Materials on, under or from the Properties or any Collateral Property
in violation of any Environmental Law or in a manner that could lead to any environmental claim or pose a risk to human health, safety
or the environment, in each case, that could reasonably be expected to have a Material Adverse Effect. Nothing in this Section shall
impose any obligation or liability whatsoever on the Administrative Agent or any Lender.
Section 9.10. Derivatives
Contracts.
Holdings and the Borrower
shall not, and shall not permit any other Subsidiary to enter into or become obligated in respect of, Derivatives Contracts, other than
Derivatives Contracts entered into by Holdings, the Borrower or any Subsidiary Owner which are intended to establish an effective hedge
in respect of the Obligations or any Permitted Junior Debt.
Section 9.11. Use
of Proceeds.
(a) No
part of the proceeds of any of the Loans or any other extension of credit hereunder shall be used for purchasing or carrying margin stock
(within the meaning of Regulation T, U or X of the FRB) or for any purpose which violates the provisions of Regulation T, U or X of the
Board of Governors of the Federal Reserve System. If requested by the Administrative Agent or any Lender (through the Administrative Agent),
the Borrower shall promptly furnish to the Administrative Agent and each requesting Lender a statement in conformity with the requirements
of Form G-3 or Form U-1, as applicable, under Regulation U of the Board of Governors of the Federal Reserve System.
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(b) The
Borrower and Parent shall not, and shall ensure that each member of the Borrowing Group will not, directly or indirectly use any proceeds
of any of the Loans or any other extension of credit hereunder to fund, finance or facilitate any activities, business or transactions:
(a) that are prohibited by Sanctions, (b) that would be prohibited by U.S. Sanctions if conducted by a U.S. Person, (c) that
would be prohibited by Sanctions if conducted by a Lender or any other party hereto, or (d) that would be prohibited by Anti-Money
Laundering Laws or Anti-Corruption Laws. The Borrower shall not fund any repayment of the Loans or any other extension of credit hereunder
with proceeds, or provide as Collateral any property, that is directly or indirectly derived from any transaction or activity that is
prohibited by Sanctions, Anti-Money Laundering Laws or Anti-Corruption Laws, or that could otherwise cause the Administrative Agent, any
Lender or any other party to this Agreement to be in violation of Sanctions, Anti-Money Laundering Laws or Anti-Corruption Laws. The Borrower
shall notify the Administrative Agent in writing not more than one (1) Business Day after first becoming aware of any breach of this
Section 9.11(b).
Section 9.12. Collateral
Property Accounts.
(a) No
Parent Loan Party shall or shall permit any other Loan Party or any other Person to, (i) deposit or maintain any rents or other revenues
or collections received in respect of any Collateral Property (including, for the avoidance of doubt, any Lease Termination Payment) (any
such amounts, collectively, “Collateral Property Revenue”) in any deposit account other than (A) the Initial Collateral
Property Accounts, and/or (B) any other Collateral Property Account that is approved by the Administrative Agent in its sole discretion
and that satisfies each of the requirements set forth in Sections 7.15(i)(i) and (ii), (ii) deposit or maintain
any amount other than funds constituting Collateral Property Revenue in any Collateral Property Account, or (iii) withdraw, use or
otherwise apply funds on deposit in a Collateral Property Account other than (subject in each case to clause (b) below) to (A) pay
costs and expenses in respect of the Collateral Properties, in each case, in accordance with the then-applicable Approved Budget, (B) repay
the Obligations, make interest payments in respect thereof, and pay fees and any other costs and expenses payable to the Administrative
Agent and the Lenders under the Loan Documents, (C) solely in the case of Collateral Property Revenue in the form of a Lease Termination
Payment received by any Subsidiary Owner in respect of a Collateral Property, pay Approved Leasing Costs for any vacant space at such
Collateral Property, and/or (D) pay or cause to be paid ECF Distributions in accordance with the terms of this Agreement; provided
that, if a withdrawal pursuant to this clause (D) would reduce the balance of the Collateral Property Account from which such funds
are withdrawn to an amount below the minimum balance required from time to time by the applicable depositary institution with respect
to such Collateral Property Account, then such withdrawal shall be reduced by the minimum amount necessary to satisfy such minimum balance
requirement. Each Collateral Property Account shall at all times be owned solely and directly by the applicable Subsidiary Owner.
(b) Notwithstanding
anything herein to the contrary, if an Event of Default exists, no Loan Party or Subsidiary of Holdings shall withdraw, disburse or otherwise
direct the application of funds on deposit in any Collateral Property Account or funds required to be deposited into any Collateral Property
Account pursuant to the terms of this Agreement (regardless of whether or not the Administrative Agent has exercised any right to exclusive
control over such Collateral Property Account pursuant to the applicable Deposit Account Control Agreement) other than, unless and until
the Administrative Agent has given notice of its election to exercise any right to exclusive control over such Collateral Property Account
pursuant to the applicable Deposit Account Control Agreement, to pay costs and expenses in respect of the Collateral Properties, in each
case, in accordance with the then-applicable Approved Budget.
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Section 9.13. Indebtedness.
ParentHoldings
will not, and will not permit any Subsidiary of ParentHoldings
to, incur any additional Indebtedness other than:
(a) incur
any additional Debt if, immediately after giving effect to the incurrence of such additional Debt and the application of the proceeds
therefrom, the aggregate principal amount of all outstanding Debt of Parent and its Subsidiaries on a consolidated basis determined in
accordance with GAAP is greater than 60% of Adjusted Total Assets;Indebtedness
created hereunder;
(b) incur
any additional Secured Debt if, immediately after giving effect to the incurrence of such additional Secured Debt and the application
of the proceeds therefrom, the aggregate principal amount of all outstanding Secured Debt of Parent and its Subsidiaries on a consolidated
basis determined in accordance with GAAP is greater than 40% of Adjusted Total Assets; andsolely
in the case of Permitted Junior Debt incurred prior to the Amendment No. 1 Effective Date, the refinancing or replacement of any
such Permitted Junior Debt (including, for the avoidance of doubt, the Secured Exit Notes) that is approved by the final plan in the Bankruptcy
Cases, and any refinancing, replacement, renewal, extension or other modification in respect of any such Permitted Junior Debt; provided,
in each case, that such refinanced, replacement, renewed, extended or modified Indebtedness (including, without limitation, the Secured
Exit Notes) (i) constitutes Permitted Junior Debt and (ii) is secured only by Permitted Junior Liens;
(c) incur
any additional Debt if, immediately after giving effect to the incurrence of such additional Debt and on a pro forma basis, including
the application of the proceeds therefrom, the ratio of Consolidated Income Available for Debt Service to Annual Debt Service for the
four consecutive fiscal quarters most recently ended prior to the date on which such additional Debt is to be incurred is less than 1.50
to 1.00, and calculated on the assumptions that: (i) such Debt and any other Debt incurred by Parent and its Subsidiaries on a consolidated
basis since the first day of such four-quarter period and the application of the proceeds therefrom, including to refinance other Debt,
had occurred at the beginning of such period, (ii) the repayment, retirement or other discharge of any other Debt by Parent and its
Subsidiaries on a consolidated basis since the first day of such four-quarter period had occurred at the beginning of such period (except
that, in making such computation, the amount of Debt under any revolving credit facility shall be computed based upon the average daily
balance of such Debt during such period), (iii) in the case of Acquired Debt or Debt incurred in connection with or in contemplation
of any acquisition, including any Person becoming a Subsidiary, since the first day of such four-quarter period, the related acquisition
had occurred as of the first day of such period with appropriate adjustments with respect to such acquisition being included in such pro
forma calculation, and (iv) in the case of any acquisition or disposition by Parent and its Subsidiaries on a consolidated basis
of any asset or group of assets since the first day of such four-quarter period, whether by merger, stock purchase or sale, or asset purchase
or sale, such acquisition or disposition or any related repayment of Debt had occurred as of the first day of such period with the appropriate
adjustments with respect to such acquisition or disposition being included in such pro forma calculation. If the Debt giving rise to the
need to make the foregoing calculation or any other Debt incurred after the first day of the relevant four-quarter period bears interest
at a floating interest rate, then, for purposes of calculating the Annual Debt Service, the interest rate on such Debt will be computed
on a pro forma basis as if the average interest rate which would have been in effect during the entirety of such four-quarter period had
been the applicable rate for the entirety of such period.Indebtedness
arising from the honoring by a bank or other financial institution of a check, draft or other similar instrument drawn against insufficient
funds in the ordinary course of business;
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(d) Indebtedness
under performance bonds, surety bonds, release, appeal and similar bonds, statutory obligations or with respect to workers’ compensation
claims, in each case incurred in the ordinary course of business, and reimbursement obligations in respect of any of the foregoing; and
(e) guarantees
by Holdings or any Subsidiary of Holdings in respect of Indebtedness of Holdings or any Subsidiary of Holdings otherwise permitted hereunder.
Section 9.14. Limited
Activities of Borrower, Holdings and Subsidiary Owners.
(a) Neither
Holdings nor the Borrower shall engage in any operations or business activities or otherwise own, hold or be liable for any assets, liabilities
or other Investments other than (i) ownership of (A) in the case of Holdings, the Equity Interests of the Borrower, and (B) in
the case of the Borrower, the Equity Interests of Subsidiary Owners, (ii) activities and contractual rights incidental to maintenance
of its corporate or organizational existence, (iii) performance of its obligations under the Loan Documents to which it is a party,
and (iv) payment of Restricted Payments to the extent
permitted under Section 9.1(d), and (v) Investments
constituting Indebtedness (including guarantees) permitted hereunder. The Borrower shall not directly or indirectly
own any Equity Interests other than the Equity Interests of (x) Subsidiary Owners, and (y) subject to the Administrative Agent’s
prior written approval, Subsidiaries that (1) own or lease (pursuant to an approved Ground Lease) Properties that the Borrower reasonably
expects (in consultation with the Administrative Agent) to be included as Collateral Properties pursuant to and in accordance with Section 7.15(a) or
(2) otherwise comply with the requirements of Section 7.13(a).
(b) No
Subsidiary Owner shall, and the Borrower shall cause each Subsidiary Owner to not, engage in any operations or business activities or
otherwise own, hold or be liable for any assets, liabilities or other Investments other than (i) acquiring, developing, owning, holding,
selling, leasing, transferring, exchanging, managing and/or operating one or more Collateral Properties (and no other Properties), (ii) activities
and contractual rights incidental to maintenance of its corporate or organizational existence, (iii) solely in the case of OPI WF
Owner, ownership of Equity Interests in the DC Subsidiary Owner (it being understood and agreed that no other Subsidiary Owner shall have
any Subsidiaries or otherwise own any Equity Interests), (iv) Investments
constituting Indebtedness (including guarantees) permitted hereunder and (ivv)
performance of its obligations under the Loan Documents to which it is a party.
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Article X.
DEFAULT
Section 10.1. Events
of Default.
Each of the following shall
constitute an Event of Default, whatever the reason for such event and whether it shall be voluntary or involuntary or be effected by
operation of Applicable Law or pursuant to any judgment or order of any Governmental Authority:
(a) Default
in Payment. The Borrower (i) shall fail to pay when due under this Agreement or any other Loan Document (whether upon demand,
at maturity, by reason of acceleration or otherwise) the principal of any of the Loans or (ii) shall fail to pay when due any interest
on any of the Loans or any of the other payment Obligations owing by the Borrower under this Agreement, any other Loan Document or the
Fee Letter or any other Loan Party shall fail to pay when due any payment Obligation owing by such other Loan Party under any Loan Document
to which it is a party, and, in the case of a failure described in this clause (ii), such failure shall continue for a period of 5 Business
Days.
(b) Default
in Performance.
(i) Any
Loan Party shall fail to perform or observe any term, covenant, condition or agreement on its part to be performed or observed and contained
in Section 7.16 (in any material respect), Section 8.4(h) or Article IX (other than Section 9.12);
provided, however, that in the event the Borrower fails to satisfy Section 9.1(c) at any time, the Borrower
may cure such failure if: (A) within ten (10) Business Days of Borrower learning of such failure, the Borrower shall (1) make
a Specified Payment such that the Minimum Collateral Property Availability, recalculated giving effect to such Specified Payment, is in
compliance with Section 9.1(c) or (2) (I) identify one or more Collateral Property Additions acceptable to
Administrative Agent in its sole and absolute discretion, which Collateral Property Additions are reasonably anticipated to contribute
sufficient Collateral Property Availability (based on the most recent valuations and financial statements available with respect thereto
and acceptable to Administrative Agent) to cause Borrower to comply with Section 9.1(c) upon such Properties becoming
Collateral Properties, (II) certify in writing that such Collateral Property Additions are Eligible Properties (other than clause
(e) of the definition thereof for this purpose), (III) satisfy the requirements of Section 7.13(a) (without
giving effect to any time period therein) with respect to each Subsidiary Owner that directly owns such one or more Collateral Property
Additions, (IV) encumber the Additional Collateral Property Pledged Interests of each Subsidiary Owner that directly owns such Collateral
Property Additions and otherwise satisfying the requirements of Section 7.14(a)(ii) with respect thereto; (B) within
90 days of Borrower learning of such failure (or such longer period as Administrative Agent may permit form time to time in its sole and
absolute discretion), the Borrower shall satisfy each and every requirement for such one or more Collateral Property Additions to become
Collateral Properties pursuant to Section 7.15, including, without limitation, encumbering such Collateral Property Additions
with Mortgages and complying with the requirements of Section 7.15(f); (C) at all times during such periods described
in the foregoing (A) and (B), (i) such one or more Collateral Property Additions identified to cure such failure shall constitute
Eligible Properties (other than clause (e) of the definition thereof for this purpose) and such one or more Collateral Property Additions
and each Subsidiary Owner directly owning any such Collateral Property Addition shall be subject to the restrictions of this Agreement
generally applicable to the Collateral Properties and the Subsidiary Owners, and (ii) the Borrower shall diligently and continuously
undertake to cure such failure as set forth in this Section above; and (D) upon such Collateral Property Additions becoming
Collateral Properties, the Minimum Collateral Property Availability shall be recalculated giving effect to such Collateral Property Additions
and the Borrower shall be in compliance with Section 9.1(c);
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(ii) Any
Loan Party shall fail to comply with or perform any covenant set forth in Section 9.12, and such failure shall continue for
three (3) Business Days.
(iii) Any
Loan Party shall fail to perform or observe any term, covenant, condition or agreement contained in this Agreement or any other Loan Document
to which it is a party and not otherwise mentioned in this Section, and in the case of this subsection (b)(iii) only, such failure
shall continue for a period of 30 days after the earlier of (x) the date upon which a Responsible Officer of the Borrower or such
other Loan Party obtains knowledge of such failure or (y) the date upon which the Borrower has received written notice of such failure
from the Administrative Agent.
(c) Misrepresentations.
Any written statement, representation or warranty made or deemed made by or on behalf of any Loan Party under this Agreement or under
any other Loan Document, or any amendment hereto or thereto, or in any other writing or statement at any time furnished by, or at the
direction of, any Loan Party to the Administrative Agent or any Lender, shall at any time prove to have been incorrect or misleading,
in light of the circumstances in which made or deemed made, in any material respect when furnished or made or deemed made.
(d) Indebtedness
Cross-Default.
(i) Parent,
any other Loan Party or any other Subsidiary of Holdings shall fail to pay when due and payable (after giving effect to any applicable
grace or cure period) the principal of, or interest on, any Indebtedness (other than the Loans) having an aggregate outstanding principal
amount (or, in the case of any Derivatives Contract, having a Derivatives Termination Value) of, in each case individually or in the aggregate
with all other Indebtedness as to which such a failure exists, (A) in the case of Parent, any other Loan Party and/or Subsidiary
of Holdings, $50,000,000 or more, and (B) in the case of Holdings and/or any Subsidiary of Holdings, $25,000,000 or more (any such
Indebtedness implicated under the preceding clause (A) or (B), “Material Indebtedness”); or
(ii) (x) The
maturity of any Material Indebtedness shall have been accelerated in accordance with the provisions of any indenture, contract or instrument
evidencing, providing for the creation of or otherwise concerning such Material Indebtedness or (y) any Material Indebtedness shall
have been required to be prepaid or repurchased prior to the stated maturity thereof (other than as a result of customary non default
mandatory prepayment requirements associated with asset sales, casualty events or debt or equity issuances); or
(iii) Any
other event shall have occurred and be continuing which, with or without the passage of time, the giving of notice, or otherwise, would
permit any holder or holders of any Material Indebtedness, any trustee or agent acting on behalf of such holder or holders or any other
Person, to accelerate the maturity of any such Material Indebtedness or require any such Material Indebtedness to be prepaid or repurchased
prior to its stated maturity (other than as a result of customary non default mandatory prepayment requirements associated with asset
sales, casualty events or debt or equity issuances).
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(e) Voluntary
Bankruptcy Proceeding. Parent, Holdings or any Subsidiary of Holdings shall: (i) commence a voluntary case under the Bankruptcy
Code or other federal bankruptcy laws (as now or hereafter in effect); (ii) file a petition seeking to take advantage of any other
Applicable Laws, domestic or foreign, relating to bankruptcy, insolvency, reorganization, winding up, or composition or adjustment of
debts; (iii) consent to, or fail to contest in a timely and appropriate manner, any petition filed against it in an involuntary case
under such bankruptcy laws or other Applicable Laws or consent to any proceeding or action described in the immediately following subsection
(f); (iv) apply for or consent to, or fail to contest in a timely and appropriate manner, the appointment of, or the taking of possession
by, a receiver, custodian, trustee, or liquidator of itself or of a substantial part of its property, domestic or foreign; (v) admit
in writing its inability to pay its debts as they become due; (vi) make a general assignment for the benefit of creditors; (vii) make
a conveyance fraudulent as to creditors under any Applicable Law; or (viii) take any corporate or partnership action for the purpose
of effecting any of the foregoing.
(f) Involuntary
Bankruptcy Proceeding. A case or other proceeding shall be commenced against Parent, Holdings or any Subsidiary of Holdings in any
court of competent jurisdiction seeking: (i) relief under the Bankruptcy Code or other federal bankruptcy laws (as now or hereafter
in effect) or under any other Applicable Laws, domestic or foreign, relating to bankruptcy, insolvency, reorganization, winding-up, or
composition or adjustment of debts; or (ii) the appointment of a trustee, receiver, custodian, liquidator or the like of such Person,
or of all or any substantial part of the assets, domestic or foreign, of such Person, and in the case of either clause (i) or (ii) such
case or proceeding shall continue undismissed or unstayed for a period of 60 consecutive calendar days, or an order granting the remedy
or other relief requested in such case or proceeding against Parent, such Subsidiary of Holdings or such other Loan Party (including,
but not limited to, an order for relief under such Bankruptcy Code or such other federal bankruptcy laws) shall be entered.
(g) Revocation
of Loan Documents. Any Loan Party shall (or shall attempt to) disavow, revoke or terminate any Loan Document or the Fee Letter to
which it is a party or shall otherwise challenge or contest in any action, suit or proceeding in any court or before any Governmental
Authority the validity or enforceability of any Loan Document or the Fee Letter or any Loan Document or the Fee Letter shall cease to
be in full force and effect (except as a result of the express terms thereof).
(h) Judgment.
A judgment or order for the payment of money or for an injunction or other non-monetary relief shall be entered against Parent, Holdings
or any Subsidiary of Holdings by any court or other tribunal and (i) such judgment or order shall continue for a period of 30 days
without being paid, stayed or dismissed through appropriate appellate proceedings and (ii) either (A) the amount of such judgment
or order (x) for which insurance has not been acknowledged in writing by the applicable insurance carrier (or the amount as to which
the insurer has denied liability) or (y) is not otherwise subject to indemnification or reimbursement on reasonable terms and conditions
by Persons reasonably likely to honor such indemnification or reimbursement obligations, exceeds, individually or together with all other
such outstanding judgments or orders entered against (1) Holdings and/or any Subsidiary of Holdings that directly or indirectly owns
a Collateral Property, $25,000,000, or (2) Parent, any other Loan Party and/or any other Subsidiary of Holdings, $75,000,000, or
(B) in the case of an injunction or other non-monetary relief, such injunction or judgment or order could reasonably be expected
to have a Material Adverse Effect.
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(i) Attachment.
A warrant, writ of attachment, execution or similar process shall be issued against any property of Holdings or any Subsidiary of Holdings
which exceeds, individually or together with all other such warrants, writs, executions and processes, (1) for Holdings and/or any
Subsidiary of Holdings that directly or indirectly owns a Collateral Property, $25,000,000, or (2) any other Subsidiary of Holdings,
$50,000,000, and, in any case, such warrant, writ, execution or process shall not be paid, discharged, vacated, stayed or bonded for a
period of 30 days; provided, however, that if a bond has been issued in favor of the claimant or other Person obtaining such warrant,
writ, execution or process, the issuer of such bond shall execute a waiver or subordination agreement in form and substance satisfactory
to the Administrative Agent pursuant to which the issuer of such bond subordinates its right of reimbursement, contribution or subrogation
to the Obligations and waives or subordinates any and all Liens it may have on the assets of Holdings and/or any Subsidiary of Holdings.
(j) ERISA.
(i) Any
ERISA Event shall have occurred that results or could reasonably be expected to result in liability to any member of the ERISA Group aggregating
in excess of $10,000,000; or
(ii) The
“benefit obligation” of all Plans exceeds the “fair market value of plan assets” for such Plans by more than $10,000,000,
all as determined, and with such terms defined, in accordance with FASB ASC 715.
(k) Loan
Documents. An Event of Default (as defined therein) shall occur under any of the other Loan Documents.
(l) Change
of Control.
(i) Any
“person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act
of 1934, as amended (the “Exchange Act”)), is or becomes the “beneficial owner” (as defined in Rules 13d-3
and 13d-5 under the Exchange Act, except that a Person will be deemed to have “beneficial ownership” of all securities that
such Person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly,
of more than 25.0% of the total voting power of the then outstanding voting stock of Parent; or
(ii) During
any period of 12 consecutive months ending after the Agreementfirst
anniversary of the Amendment No. 1 Effective Date, individuals who at the beginning of any such 12--month
period constituted the Board of Trustees of Parent (together with any new trustees whose election by such Board or whose nomination for
election by the shareholders of Parent was approved by a vote of a majority of the trustees then still
in office who were either trustees at the beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of the Board of Trustees of Parent then in office;
or
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(iii) RMR
shall cease for any reason to act as the sole business manager for Parent,
other than to the extent approved by the final plan in the Bankruptcy Cases; or
(iii) [Reserved];
(iv) Parent
shall cease to directly own and Control one hundred percent (100%) of the Equity Interests of Holdings; or
(v) Holdings
shall cease to directly own and Control one hundred percent (100%) of the Equity Interests of the Borrower; or
(vi) The
Borrower shall cease to directly own and Control one hundred percent (100%) of the Equity Interests of any Subsidiary Owner (other than
the DC Subsidiary Owner); or
(vii) OPI
WF Owner shall cease to directly own and Control one hundred percent (100%) of the Equity Interests of the DC Subsidiary Owner.
(m) Security
Documents. Any provision of any Security Document, at any time after the execution and delivery of such Security Document and for
any reason other than as expressly permitted hereunder or under such Security Document, shall for any reason cease to be valid and binding
on or enforceable against any Loan Party or any Lien created under (i) any Security Instrument ceases to be a valid and perfected
first priority mortgage Lien (senior to all Liens other than Liens permitted by Section 9.2(a) (other than Permitted
Junior Liens)) in any of the Collateral purported to be covered thereby, and (ii) any other Security Document ceases to be a valid
and perfected first priority Lien (senior to all Liens other than Liens permitted by Section 9.2(a) (other than Permitted
Junior Liens)) in any of the Collateral purported to be covered thereby, in each case, except to the extent that any such loss of perfection
or priority results from the failure of the Administrative Agent to maintain possession of certificates actually delivered to it representing
securities pledged under the Pledge Agreements or to file Uniform Commercial Code continuation statements or to obtain Governmental Approvals
(so long as such failure does not result from the breach or non-compliance with the Loan Documents by any Loan Party).
Section 10.2. Remedies
Upon Event of Default.
Upon the occurrence of an
Event of Default the following provisions shall apply:
(a) Acceleration;
Termination of Facilities.
(i) Automatic.
Upon the occurrence of an Event of Default specified in Sections 10.1(e) or 10.1(f), (A) the principal of, and
all accrued interest on, the Loans and the Notes at the time outstanding, and (B) all of the other Obligations, including, but not
limited to, the other amounts owed to the Lenders and the Administrative Agent under this Agreement, the Notes or any of the other Loan
Documents shall become immediately and automatically due and payable without presentment, demand, protest, or other notice of any kind,
all of which are expressly waived by the Borrower on behalf of itself and the other Loan Parties.
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(ii) Optional.
If any other Event of Default shall exist, the Administrative Agent may, and at the direction of the Requisite Lenders shall: (1) declare
(A) the principal of, and accrued interest on, the Loans and the Notes at the time outstanding, and (B) all of the other Obligations,
including, but not limited to, the other amounts owed to the Lenders and the Administrative Agent under this Agreement, the Notes or any
of the other Loan Documents to be forthwith due and payable, whereupon the same shall immediately become due and payable without presentment,
demand, protest or other notice of any kind, all of which are expressly waived by the Borrower on behalf of itself and the other Loan
Parties, and (2) terminate the Commitments.
(b) Loan
Documents. The Requisite Lenders may direct the Administrative Agent to, and the Administrative Agent if so directed shall, exercise
any and all of its rights under any and all of the other Loan Documents, which shall include, without limitation, the acceptance of any
deed, assignment or other transfer in lieu of foreclosure of any Lien created pursuant to the Loan Documents.
(c) Applicable
Law. The Requisite Lenders may direct the Administrative Agent to, and the Administrative Agent if so directed shall, exercise all
other rights and remedies it may have under any Applicable Law.
(d) Appointment
of Receiver. To the extent permitted by Applicable Law, the Administrative Agent and the Lenders shall be entitled to the appointment
of a receiver for the assets and properties of Holdings and its Subsidiaries, without notice of any kind whatsoever and without regard
to the adequacy of any security for the Obligations or the solvency of any party bound for its payment, to take possession of all or any
portion of the Collateral, the property and/or the business operations of Holdings and its Subsidiaries and to exercise such power as
the court shall confer upon such receiver.
(e) Specified
Derivatives Contract Remedies. Notwithstanding any other provision of this Agreement or other Loan Document, each Specified Derivatives
Provider shall have the right, with prompt notice to the Administrative Agent, but without the approval or consent of or other action
by the Administrative Agent or the Lenders (except as otherwise specified below), and without limitation of other remedies available to
such Specified Derivatives Provider under contract or Applicable Law, in each case, in accordance with the terms of the applicable Specified
Derivatives Contract, to undertake any of the following: (a) to declare an event of default, termination event or other similar event
under any Specified Derivatives Contract and to create an “Early Termination Date” (as defined therein) in respect
thereof, (b) to determine net termination amounts in respect of any and all Specified Derivatives Contracts in accordance with the
terms thereof, and to set off amounts among such contracts, (c) subject to the Administrative Agent’s prior written consent,
to set off or proceed against deposit account balances, securities account balances and other property and amounts held by such Specified
Derivatives Provider pursuant to any Derivatives Support Document, including any “Posted Collateral” (as defined in
any credit support annex included in any such Derivatives Support Document to which such Specified Derivatives Provider may be a party),
and (d) subject to the Administrative Agent’s prior written consent, to prosecute any legal action against Parent, any Loan
Party or other Subsidiary to enforce or collect net amounts owing to such Specified Derivatives Provider pursuant to any Specified Derivatives
Contract.
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Section 10.3. Remedies
Upon Default.
Upon the occurrence of a Default
specified in Section 10.1(f), the Commitments shall immediately and automatically terminate.
Section 10.4. Marshaling;
Payments Set Aside.
None of the Administrative
Agent, any Lender or any Specified Derivatives Provider shall be under any obligation to marshal any assets in favor of any Loan Party
or any other party or against or in payment of any or all of the Obligations or the Specified Derivatives Obligations. To the extent that
any Loan Party makes a payment or payments to the Administrative Agent, any Lender or any Specified Derivatives Provider, or the Administrative
Agent, any Lender or any Specified Derivatives Provider enforce their security interests or exercise their rights of setoff, and such
payment or payments or the proceeds of such enforcement or setoff or any part thereof are subsequently invalidated, declared to be fraudulent
or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, state or federal
law, common law or equitable cause, then to the extent of such recovery, the Obligations or Specified Derivatives Obligations, or part
thereof originally intended to be satisfied, and all Liens, rights and remedies therefor, shall be revived and continued in full force
and effect as if such payment had not been made or such enforcement or setoff had not occurred.
Section 10.5. Allocation
of Proceeds.
If an Event of Default exists,
all payments received by the Administrative Agent (or any Lender as a result of its exercise of remedies pursuant to Section 12.3)
under any of the Loan Documents, in respect of any principal of or interest on the Obligations or any other amounts payable by the Borrower
hereunder or thereunder, shall be applied in the following order and priority:
(a) to
payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts, including attorney fees, payable
to the Administrative Agent in its capacity as such;
(b) to
amounts due to the Administrative Agent and the Lenders in respect of Protective Advances in proportion to the respective amounts described
in this clause (b) payable to them;
(c) to
payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal and interest) payable
to the Lenders under the Loan Documents, including attorney fees, ratably among the Lenders in proportion to the respective amounts described
in this clause (c) payable to them;
(d) to
payment of that portion of the Obligations constituting accrued and unpaid interest on the Loans, ratably among the Lenders in proportion
to the respective amounts described in this clause (d) payable to them;
(e) to
payment of that portion of the Obligations constituting unpaid principal of the Loans, ratably among the Lenders in proportion to the
respective amounts described in this clause (e) payable to them; and
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(f) the
balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Borrower or as otherwise required by Applicable
Law.
Notwithstanding the foregoing,
in the event any Disclaimed Cash Proceeds are to be applied in accordance with this Section 10.5, no such Disclaimed Cash
Proceeds shall be distributed to the applicable Disclaimed Lender, and to the extent such Disclaimed Cash Proceeds are to be paid ratably
among the Lenders for purposes of this Section 10.5, the applicable Disclaimed Lender and the amounts owed to it shall be
disregarded and excluded for the purposes of determining same.
Section 10.6. Rescission
of Acceleration by Requisite Lenders.
If at any time after acceleration
of the maturity of the Loans and the other Obligations, the Borrower shall pay all arrears of interest and all payments on account of
principal of the Obligations, which shall have become due otherwise than by acceleration (with interest on principal and, to the extent
permitted by Applicable Law, on overdue interest, at the rates specified in this Agreement) and all Events of Default and Defaults (other
than nonpayment of principal of and accrued interest on the Obligations due and payable solely by virtue of acceleration) shall become
remedied or waived to the satisfaction of the Requisite Lenders, then by written notice to the Borrower, the Requisite Lenders may elect,
in the sole discretion of such Requisite Lenders, to rescind and annul the acceleration and its consequences. The provisions of the preceding
sentence are intended merely to bind all of the Lenders to a decision which may be made at the election of the Requisite Lenders, and
are not intended to benefit the Borrower and do not give the Borrower the right to require the Lenders to rescind or annul any acceleration
hereunder, even if the conditions set forth herein are satisfied.
Section 10.7. Performance
by Administrative Agent.
If the Borrower or any other
Loan Party shall fail to perform any covenant, duty or agreement contained in any of the Loan Documents, the Administrative Agent may,
after notice to the Borrower, perform or attempt to perform such covenant, duty or agreement on behalf of the Borrower or such other Loan
Party after the expiration of any cure or grace periods set forth herein. In such event, the Borrower shall, at the request of the Administrative
Agent, promptly pay any amount reasonably expended by the Administrative Agent in such performance or attempted performance to the Administrative
Agent, together with interest thereon at the applicable Post-Default Rate from the date of such expenditure until paid. Notwithstanding
the foregoing, neither the Administrative Agent nor any Lender shall have any liability or responsibility whatsoever for the performance
of any obligation of the Borrower under this Agreement or any other Loan Document.
Section 10.8. Rights
Cumulative.
(a) Generally.
The rights and remedies of the Administrative Agent, the Lenders and the Specified Derivatives Providers under this Agreement, each of
the other Loan Documents, the Fee Letter and Specified Derivatives Contracts shall be cumulative and not exclusive of any rights or remedies
which any of them may otherwise have under Applicable Law. In exercising their respective rights and remedies the Administrative Agent,
the Lenders and the Specified Derivatives Providers may be selective and no failure or delay by the Administrative Agent, any of the Lenders
or any of the Specified Derivatives Providers in exercising any right shall operate as a waiver of it, nor shall any single or partial
exercise of any power or right preclude its other or further exercise or the exercise of any other power or right.
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(b) Enforcement
by Administrative Agent. Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to
enforce rights and remedies hereunder and under the other Loan Documents against the Loan Parties or any of them shall be vested exclusively
in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the
Administrative Agent in accordance with Article X for the benefit of all the Lenders; provided that the foregoing shall
not prohibit (i) the Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely
in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (ii) subject to Section 10.2 above,
any Specified Derivatives Provider from exercising the rights and remedies that inure to its benefit under any Specified Derivatives Contract,
(iii) any Lender from exercising setoff rights in accordance with Section 12.3 (subject to the terms of Section 3.3),
or (iv) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding
relative to any Loan Party under any Debtor Relief Law; and provided, further, that if at any time there is no Person acting
as Administrative Agent hereunder and under the other Loan Documents, then (x) the Requisite Lenders shall have the rights otherwise
ascribed to the Administrative Agent pursuant to Article X and (y) in addition to the matters set forth in clauses (ii),
(iii) and (iv) of the preceding proviso and subject to Section 3.3, any Lender may, with the consent of the Requisite
Lenders, enforce any rights and remedies available to it and as authorized by the Requisite Lenders.
Article XI.
THE ADMINISTRATIVE AGENT
Section 11.1. Appointment
and Authorization.
Each Lender hereby irrevocably
appoints and authorizes the Administrative Agent to take such action as contractual representative on such Lender’s behalf and to
exercise such powers under this Agreement and the other Loan Documents as are specifically delegated to the Administrative Agent by the
terms hereof and thereof, together with such powers as are reasonably incidental thereto. Not in limitation of the foregoing, each Lender
authorizes and directs the Administrative Agent to enter into the Loan Documents for the benefit of the Lenders. Each Lender hereby agrees
that, except as otherwise set forth herein, any action taken by the Requisite Lenders in accordance with the provisions of this Agreement
or the Loan Documents, and the exercise by the Requisite Lenders of the powers set forth herein or therein, together with such other powers
as are reasonably incidental thereto, shall be authorized and binding upon all of the Lenders. Nothing herein shall be construed to deem
the Administrative Agent a trustee or fiduciary for any Lender or to impose on the Administrative Agent duties or obligations other than
those expressly provided for herein. Without limiting the generality of the foregoing, the use of the terms “Agent”,
“Administrative Agent”, “agent” and similar terms in the Loan Documents with reference to the Administrative
Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any Applicable
Law. Instead, use of such terms is merely a matter of market custom, and is intended to create or reflect only an administrative relationship
between independent contracting parties. The Administrative Agent shall deliver to each Lender, promptly upon receipt thereof by the Administrative
Agent, copies of each of the financial statements, certificates, notices and other documents delivered to the Administrative Agent pursuant
to Article VIII that the Borrower is not otherwise required to deliver directly to the Lenders. The Administrative Agent will
furnish to any Lender, upon the request of such Lender, a copy (or, where appropriate, an original) of any document, instrument, agreement,
certificate or notice furnished to the Administrative Agent by the Borrower, any other Loan Party or any other Affiliate of the Borrower,
pursuant to this Agreement or any other Loan Document not already delivered or otherwise made available to such Lender pursuant to the
terms of this Agreement or any such other Loan Document. As to any matters not expressly provided for by the Loan Documents (including,
without limitation, enforcement or collection of any of the Obligations), the Administrative Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Requisite Lenders (or all of the Lenders if explicitly required under any other provision of
this Agreement), and such instructions shall be binding upon all Lenders and all holders of any of the Obligations; provided, however,
that, notwithstanding anything in this Agreement to the contrary, the Administrative Agent shall not be required to take any action which
exposes the Administrative Agent to personal liability or which is contrary to this Agreement or any other Loan Document or Applicable
Law. Not in limitation of the foregoing, the Administrative Agent may exercise any right or remedy it or the Lenders may have under any
Loan Document upon the occurrence of a Default or an Event of Default unless the Requisite Lenders have directed the Administrative Agent
otherwise. Without limiting the foregoing, no Lender shall have any right of action whatsoever against the Administrative Agent as a result
of the Administrative Agent acting or refraining from acting under this Agreement or any of the other Loan Documents in accordance with
the instructions of the Requisite Lenders, or where applicable, all the Lenders.
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Section 11.2. Administrative
Agent as Lender.
The Lender acting as Administrative
Agent shall have the same rights and powers under this Agreement and any other Loan Document as any other Lender and may exercise the
same as though it were not the Administrative Agent; and the term “Lender” or “Lenders” shall, unless otherwise
expressly indicated, include such Lender in each case in its individual capacity. The Lender acting as Administrative Agent and its Affiliates
may each accept deposits from, maintain deposits or credit balances for, invest in, lend money to, act as trustee under indentures of,
serve as financial advisor to, and generally engage in any kind of business with the Borrower, any other Loan Party or any other Affiliate
thereof as if it were any other bank and without any duty to account therefor to the other Lenders. Further, the Administrative Agent
and its Affiliates may accept fees and other consideration from the Borrower for services in connection with this Agreement or otherwise
without having to account for the same to the Lenders. The Lenders acknowledge that, pursuant to such activities, Wells
FargoWilmington Savings Fund
Society, FSB or its Affiliates may receive information regarding the Borrower, other Loan Parties, other Subsidiaries and other
Affiliates (including information that may be subject to confidentiality obligations in favor of such Person) and acknowledge that the
Administrative Agent shall be under no obligation to provide such information to them.
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Section 11.3. Approvals
of Lenders.
All communications from the
Administrative Agent to any Lender requesting such Lender’s determination, consent, approval or disapproval (a) shall be given
in the form of a written notice to such Lender, (b) shall be accompanied by a description of the matter or issue as to which such
determination, approval, consent or disapproval is requested, or shall advise such Lender where information, if any, regarding such matter
or issue may be inspected, or shall otherwise describe the matter or issue to be resolved, and (c) shall include, if reasonably requested
by such Lender and to the extent not previously provided to such Lender, written materials provided to the Administrative Agent by the
Borrower in respect of the matter or issue to be resolved. Unless a Lender shall give written notice to the Administrative Agent that
it specifically objects to the requested determination, consent, approval or disapproval (together with a reasonable written explanation
of the reasons behind such objection; provided, that no insufficiency in any such explanation shall effect or otherwise impair such Lender’s
objection to the requested determination, consent, approval or disapproval) within 10 Business Days (or such lesser or greater period
as may be specifically required under the express terms of the Loan Documents or set forth in the applicable request for determination,
consent, approval or disapproval from the Administrative Agent to the Lenders) of receipt of such communication, such Lender shall be
deemed to have conclusively provided such requested determination, consent, approval or disapproval; provided, however,
that this sentence shall not apply to amendments, waivers or consents that require the written consent of applicable Lenders pursuant
to Section 12.6(b).
Section 11.4. Notice
of Events of Default.
The Administrative Agent shall
not be deemed to have knowledge or notice of the occurrence of a Default or Event of Default unless the Administrative Agent has received
notice from a Lender or the Borrower referring to this Agreement, describing with reasonable specificity such Default or Event of Default
and stating that such notice is a “notice of default.” If any Lender (excluding the Lender which is also serving as the Administrative
Agent) becomes aware of any Default or Event of Default, it shall promptly send to the Administrative Agent such a “notice of default”;
provided, a Lender’s failure to provide such a “notice of default” to the Administrative Agent shall not result in any
liability of such Lender to any other party under any of the Loan Documents. Further, if the Administrative Agent receives such a “notice
of default,” the Administrative Agent shall give prompt notice thereof to the Lenders.
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Section 11.5. Administrative
Agent’s Reliance.
Notwithstanding any other
provisions of this Agreement or any other Loan Documents, neither the Administrative Agent nor any of its Related Parties shall be liable
for any action taken or not taken by it under or in connection with this Agreement or any other Loan Document, except for its or their
own gross negligence or willful misconduct in connection with its duties expressly set forth herein or therein as determined by a court
of competent jurisdiction in a final non-appealable judgment. Without limiting the generality of the foregoing, the Administrative Agent
may consult with legal counsel (including its own counsel or counsel for the Borrower or any other Loan Party), independent public accountants
and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance
with the advice of such counsel, accountants or experts. Neither the Administrative Agent nor any of its Related Parties: (a) makes
any warranty or representation to any Lender or any other Person, or shall be responsible to any Lender or any other Person for any statement,
warranty or representation made or deemed made by the Borrower, any other Loan Party or any other Person in or in connection with this
Agreement or any other Loan Document; (b) shall have any duty to ascertain or to inquire as to the performance or observance of any
of the terms, covenants or conditions of this Agreement or any other Loan Document or the satisfaction of any conditions precedent under
this Agreement or any Loan Document on the part of the Borrower or other Persons, or to inspect the property, books or records of the
Borrower or any other Person; (c) shall be responsible to any Lender for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other Loan Document, any other instrument or document furnished pursuant thereto or any
collateral covered thereby or the perfection or priority of any Lien in favor of the Administrative Agent on behalf of the Lenders and
the Specified Derivatives Providers in any such collateral; (d) shall have any liability in respect of any recitals, statements,
certifications, representations or warranties contained in any of the Loan Documents or any other document, instrument, agreement, certificate
or statement delivered in connection therewith; and (e) shall incur any liability under or in respect of this Agreement or any other
Loan Document by acting upon any notice, consent, certificate or other instrument or writing (which may be by telephone, telecopy or electronic
mail) believed by it to be genuine and signed, sent or given by the proper party or parties. The Administrative Agent may execute any
of its duties under the Loan Documents by or through agents, employees or attorneys-in-fact and shall not be responsible for the negligence
or misconduct of any agent or attorney-in-fact that it selects in the absence of gross negligence or willful misconduct in the selection
of such agent or attorney-in-fact as determined by a court of competent jurisdiction in a final non-appealable judgment.
Section 11.6. Indemnification
of Administrative Agent.
Each Lender agrees to indemnify
the Administrative Agent (to the extent not reimbursed by the Borrower and without limiting the obligation of the Borrower to do so) pro
rata in accordance with such Lender’s respective Pro Rata Share (determined as of the time that the applicable unreimbursed expense
or indemnity payment is sought), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, reasonable out-of-pocket costs and expenses of any kind or nature whatsoever which may at any time be imposed on, incurred by,
or asserted against the Administrative Agent (in its capacity as Administrative Agent but not as a Lender) in any way relating to or arising
out of the Loan Documents, any transaction contemplated hereby or thereby or any action taken or omitted by the Administrative Agent under
the Loan Documents (collectively, “Indemnifiable Amounts”); provided, however, that no Lender shall be liable for any
portion of such Indemnifiable Amounts to the extent resulting from the Administrative Agent’s gross negligence or willful misconduct
as determined by a court of competent jurisdiction in a final, non-appealable judgment; provided, however, that no action
taken in accordance with the directions of the Requisite Lenders (or all of the Lenders, if expressly required hereunder) shall be deemed
to constitute gross negligence or willful misconduct for purposes of this Section. Without limiting the generality of the foregoing, each
Lender agrees to reimburse the Administrative Agent (to the extent not reimbursed by the Borrower and without limiting the obligation
of the Borrower to do so) promptly upon demand for its ratable share of any out-of-pocket expenses (including the reasonable fees and
expenses of the counsel to the Administrative Agent) incurred by the Administrative Agent in connection with the preparation, negotiation,
execution, administration, or enforcement (whether through negotiations, legal proceedings, or otherwise) of, or legal advice with respect
to the rights or responsibilities of the parties under, the Loan Documents, any suit or action brought by the Administrative Agent to
enforce the terms of the Loan Documents and/or collect any Obligations, any “lender liability” suit or claim brought against
the Administrative Agent and/or the Lenders, and any claim or suit brought against the Administrative Agent and/or the Lenders arising
under any Environmental Laws. Such out-of-pocket expenses (including counsel fees) shall be advanced by the Lenders on the request of
the Administrative Agent notwithstanding any claim or assertion that the Administrative Agent is not entitled to indemnification hereunder
upon receipt of an undertaking by the Administrative Agent that the Administrative Agent will reimburse the Lenders if it is actually
and finally determined by a court of competent jurisdiction that the Administrative Agent is not so entitled to indemnification. The agreements
in this Section shall survive the payment of the Loans and all other amounts payable hereunder or under the other Loan Documents
and the termination of this Agreement. If the Borrower shall reimburse the Administrative Agent for any Indemnifiable Amount following
payment by any Lender to the Administrative Agent in respect of such Indemnifiable Amount pursuant to this Section, the Administrative
Agent shall share such reimbursement on a ratable basis with each Lender making any such payment.
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Section 11.7. Lender
Credit Decision, Etc.
Each of the Lenders expressly
acknowledges and agrees that neither the Administrative Agent nor any of its Related Parties has made any representations or warranties
to such Lender and that no act by the Administrative Agent hereafter taken, including any review of the affairs of the Borrower, any other
Loan Party or any other Subsidiary of Holdings or Affiliate, shall be deemed to constitute any such representation or warranty by the
Administrative Agent to any Lender. Each of the Lenders acknowledges that it has made its own credit and legal analysis and decision to
enter into this Agreement and the transactions contemplated hereby, independently and without reliance upon the Administrative Agent,
any other Lender or counsel to the Administrative Agent, or any of their respective Related Parties, and based on the financial statements
of the Borrower, the other Loan Parties, the other Subsidiaries and other Affiliates, and inquiries of such Persons, its independent due
diligence of the business and affairs of the Borrower, the other Loan Parties, the other Subsidiaries and other Persons, its review of
the Loan Documents, the legal opinions required to be delivered to it hereunder, the advice of its own counsel and such other documents
and information as it has deemed appropriate. Each of the Lenders also acknowledges that it will, independently and without reliance upon
the Administrative Agent, any other Lender or counsel to the Administrative Agent or any of their respective Related Parties, and based
on such review, advice, documents and information as it shall deem appropriate at the time, continue to make its own decisions in taking
or not taking action under the Loan Documents. The Administrative Agent shall not be required to keep itself informed as to the performance
or observance by the Borrower or any other Loan Party of the Loan Documents or any other document referred to or provided for therein
or to inspect the properties or books of, or make any other investigation of, the Borrower, any other Loan Party or any other Subsidiary
of Holdings. Except for notices, reports and other documents and information expressly required to be furnished to the Lenders by the
Administrative Agent under this Agreement or any of the other Loan Documents or furnished to the Administrative Agent for distribution
to the Lenders, the Administrative Agent shall have no duty or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, financial and other condition or creditworthiness of the Borrower, any other Loan Party
or any other Affiliate thereof which may come into possession of the Administrative Agent or any of its Related Parties. Each of the Lenders
acknowledges that the Administrative Agent’s legal counsel in connection with the transactions contemplated by this Agreement is
only acting as counsel to the Administrative Agent and is not acting as counsel to any Lender.
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Section 11.8. Successor
Administrative Agent.
The Administrative Agent may
(a) resign at any time as Administrative Agent under the Loan Documents by giving written notice thereof to the Lenders and the Borrower
or (b) be removed as Administrative Agent by all of the Lenders (excluding the Lender then acting as Administrative Agent) and the
Borrower upon 30 days’ prior written notice if the Administrative Agent is found by a court of competent jurisdiction in a final,
non-appealable judgment to have committed gross negligence or willful misconduct in the course of performing its duties hereunder. Upon
any such resignation or removal, the Requisite Lenders shall have the right to appoint a successor Administrative Agent which appointment
shall, provided no Default or Event of Default exists, be subject to the Borrower’s approval, which approval shall not be unreasonably
withheld or delayed (except that the Borrower shall, in all events, be deemed to have approved each Lender and any of its Affiliates as
a successor Administrative Agent). If no successor Administrative Agent shall have been so appointed in accordance with the immediately
preceding sentence, and shall have accepted such appointment, within 30 days after the current Administrative Agent’s giving of
notice of resignation or giving of notice of removal of the Administrative Agent, then the current Administrative Agent may, on behalf
of the Lenders, appoint a successor Administrative Agent, which shall be a Lender, if any Lender shall be willing to serve, and otherwise
shall be an Eligible Assignee; provided that if the Administrative Agent shall notify the Borrower and the Lenders that no Lender has
accepted such appointment, then such resignation or removal shall nonetheless become effective in accordance with such notice and (1) the
Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (2) all
payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made to each
Lender directly, until such time as a successor Administrative Agent has been appointed as provided for above in this Section; provided,
further that such Lenders so acting directly shall be and be deemed to be protected by all indemnities and other provisions herein for
the benefit and protection of the Administrative Agent as if each such Lender were itself the Administrative Agent. Upon the acceptance
of any appointment as Administrative Agent hereunder by a successor Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties of the current Administrative Agent, and the current Administrative
Agent shall be discharged from its duties and obligations under the Loan Documents. After any Administrative Agent’s resignation
hereunder as Administrative Agent, the provisions of this Article XI shall continue to inure to its benefit as to any actions
taken or omitted to be taken by it while it was Administrative Agent under the Loan Documents. Notwithstanding anything contained herein
to the contrary, the Administrative Agent may assign its rights and duties under the Loan Documents to any of its Affiliates by giving
the Borrower and each Lender prior written notice.
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Section 11.9. Titled
Agents.
Each of the Lead Arrangers,
the Syndication Agents and the Documentation Agents (each a “Titled Agent”) in each such respective capacity, assumes
no responsibility or obligation hereunder, including, without limitation, for servicing, enforcement or collection of any of the Loans,
nor any duties as an agent hereunder for the Lenders. The titles given to the Titled Agents are solely honorific and imply no fiduciary
responsibility on the part of the Titled Agents to the Administrative Agent, any Lender, the Borrower or any other Loan Party and the
use of such titles does not impose on the Titled Agents any duties or obligations greater than those of any other Lender or entitle the
Titled Agents to any rights other than those to which any other Lender is entitled.
Section 11.10. Collateral
Matters; Protective Advances.
(a) Each
Lender hereby authorizes the Administrative Agent, without the necessity of any notice to or further consent from any Lender, from time
to time prior to an Event of Default, (i) to take any action with respect to any Collateral or any Loan Document which may be necessary
to perfect and maintain perfected the Liens upon the Collateral granted pursuant to any of the Loan Documents and to enter into such Security
Documents as may be necessary or desirable in connection therewith from time to time, and (ii) to consent to (A) the transfer
by the Borrower or any Subsidiary of Holdings of immaterial portions of any one or more Collateral Properties, including, without limitation,
to Governmental Authorities for dedication or public use or in connection with a condemnation proceeding, or to third parties for private
use as roadways or for access, ingress or egress, or (B) the granting by the Borrower or any Subsidiary of Holdings of easements,
restrictions, covenants, reservations and rights of way in the ordinary course of business (or otherwise in connection with a condemnation
proceeding), including, without limitation, for use, access, water and sewer lines, telephone and telegraph lines, gas or electric lines,
telecommunications leases and other utilities, provided that no such grant, conveyance or encumbrance shall materially impair the utility
and operation of the affected individual Collateral Property or have an Material Adverse Effect on such Collateral Property.
(b) The
Lenders hereby authorize the Administrative Agent, at its option and in its discretion, to release any Lien granted to or held by the
Administrative Agent upon any Collateral (i) upon termination of the Commitments and indefeasible payment and satisfaction in full
of all of the Obligations, (ii) as expressly permitted by, but only in accordance with, the terms of the applicable Loan Document,
and (iii) if approved, authorized or ratified in writing by the Requisite Lenders (or such greater number of Lenders as this Agreement
or any other Loan Document may expressly provide). Upon request by the Administrative Agent at any time, the Lenders will confirm in writing
the Administrative Agent’s authority to release particular types or items of Collateral pursuant to this Section.
(c) Upon
any sale and transfer of Collateral which is expressly permitted pursuant to the terms of this Agreement, and upon at least five (5) Business
Days’ prior written request by the Borrower, the Administrative Agent shall (and is hereby irrevocably authorized by the Lenders
to) execute such documents as may be necessary to evidence the release of the Liens granted to the Administrative Agent for its benefit
and the benefit of the Lenders hereunder or pursuant hereto upon the Collateral that was sold or transferred; provided, however,
that (i) the Administrative Agent shall not be required to execute any such document on terms which, in the Administrative Agent’s
opinion, would expose the Administrative Agent to liability or create any obligation or entail any consequence other than the release
of such Liens without recourse or warranty and (ii) such release shall not in any manner discharge, affect or impair the Obligations
or any Liens upon (or obligations of the Borrower or any other Loan Party in respect of) all interests retained by the Borrower or any
other Loan Party, including, without limitation, the proceeds of such sale or transfer, all of which shall continue to constitute part
of the Collateral. In the event of any sale or transfer of Collateral, or any foreclosure or deed in lieu thereof with respect to any
of the Collateral, the Administrative Agent shall be authorized to deduct all of the expenses reasonably incurred by the Administrative
Agent from the proceeds of any such sale, transfer or foreclosure.
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(d) The
Administrative Agent shall have no obligation whatsoever to any Lender or to any other Person to assure that the Collateral exists or
is owned by the Borrower, any other Loan Party or any other Subsidiary of Holdings or is cared for, protected or insured or that the Liens
granted to the Administrative Agent herein or pursuant hereto have been properly or sufficiently or lawfully created, perfected, protected
or enforced or are entitled to any particular priority, or to exercise or to continue exercising at all or in any manner or under any
duty of care, disclosure or fidelity any of the rights, authorities and powers granted or available to the Administrative Agent in this
Section or in any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or
event related thereto, the Administrative Agent may act in any manner it may deem appropriate, in its sole discretion, and that the Administrative
Agent shall have no duty or liability whatsoever to the Lenders, except to the extent determined by a court of competent jurisdiction
by final and nonappealable judgment to have resulted from its gross negligence or willful misconduct.
(e) The
Administrative Agent may make, and shall be reimbursed by the Lenders (in accordance with their Pro Rata Shares) to the extent not reimbursed
by the Borrower for, Protective Advances during any one (1) calendar year with respect to each Pledged Interest or Collateral Property
(individually, and not an aggregate limitation) up to the sum of (i) amounts expended to pay taxes, assessments and governmental
charges or levies imposed upon such Collateral; (ii) amounts expended to pay insurance premiums for policies of insurance related
to such Collateral; and (iii) $5,000,000. Protective Advances in excess of said sum during any calendar year for any Pledged Interest
or Collateral Property shall require the consent of the Requisite Lenders. The Borrower agrees to pay on demand all Protective Advances.
(f) By
their acceptance of the benefits of the Security Documents, each Lender that is at any time itself a Specified Derivatives Provider, or
having an Affiliate that is a Specified Derivatives Provider, hereby, for itself, and on behalf of any such Affiliate, in its capacity
as a Specified Derivatives Provider, acknowledges that obligations arising under any Specified Derivatives Contract are not secured by
the Collateral.
(g) Each
Lender agrees that it will not take any action, nor institute any actions or proceedings, against the Borrower or any other Loan Party
under the Loan Documents with respect to exercising claims against or rights in the Collateral without the written consent of the Requisite
Lenders. For purposes of this Section, the term “Lender” includes any Person that is or at any time has been a Lender
and the terms and conditions of this provision shall be binding upon such Person at all times and expressly survive any assignment of
the Commitment and Loans of such Person in whole or in part.
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(h) Notwithstanding
anything to the contrary in this Agreement or in any Security Instrument, before any particular Collateral Property is acquired by the
Administrative Agent as a result of a foreclosure of the Security Instrument thereon, the acceptance of a deed in lieu thereof or any
other exercise of remedies pursuant thereto, the Administrative Agent shall have obtained an updated “Phase I” environmental
assessment of such Collateral Property and any “Phase II” environmental assessment recommended by the environmental
engineering firm preparing such assessments for such Collateral Property.
Section 11.11. Post-Foreclosure
Plans.
If all or any portion of the
Collateral is acquired by the Administrative Agent as a result of a foreclosure or the acceptance of a deed, assignment or other transfer
in lieu of foreclosure, or is retained in satisfaction of all or any part of the Obligations, the title to any such Collateral, or any
portion thereof, shall be held in the name of the Administrative Agent or a nominee or Subsidiary of the Administrative Agent, as “Administrative
Agent”, for the ratable benefit of all Lenders. The Administrative Agent shall prepare a recommended course of action for such
Collateral (a “Post-Foreclosure Plan”), which shall be subject to the approval of the Requisite Lenders. In accordance
with the approved Post-Foreclosure Plan, the Administrative Agent shall manage, operate, repair, administer, complete, construct, restore
or otherwise deal with the Collateral acquired, and shall administer all transactions relating thereto, including agents for the sale
of such Collateral, and the collecting of rents and other sums from such Collateral and paying the expenses of such Collateral. Actions
taken by the Administrative Agent with respect to the Collateral, which are not specifically provided for in the approved Post-Foreclosure
Plan or reasonably incidental thereto, shall require the written consent of the Requisite Lenders by way of supplement to such Post-Foreclosure
Plan. Upon demand therefor from time to time, each Lender will contribute its share (based on its Pro Rata Share) of all reasonable costs
and expenses incurred by the Administrative Agent pursuant to the approved Post-Foreclosure Plan in connection with the construction,
operation, management, maintenance, leasing and sale of such Collateral. In addition, the Administrative Agent shall render or cause to
be rendered to each Lender, on a monthly basis, an income and expense statement for such Collateral, and each Lender shall promptly contribute
its Pro Rata Share of any operating loss for such Collateral, and such other expenses and operating reserves as the Administrative Agent
shall deem reasonably necessary pursuant to and in accordance with the approved Post-Foreclosure Plan. To the extent there is net operating
income from such Collateral, the Administrative Agent shall, in accordance with the approved Post-Foreclosure Plan, determine the amount
and timing of distributions to the Lender. All such distributions shall be made to the Lenders in accordance with their respective Pro
Rata Shares. The Lenders acknowledge and agree that if title to any Collateral is obtained by the Administrative Agent or its nominee,
such Collateral will not be held as a permanent investment but will, consistent with and subject to the requirements of Section 11.10
and this Section 11.11, be liquidated and the proceeds of such liquidation will be distributed in accordance with Section 10.5
as soon as practicable. The Administrative Agent shall undertake to sell such Collateral, at such price and upon such terms and conditions
as the Requisite Lenders reasonably shall determine to be most advantageous to the Lenders. Any purchase money Mortgage taken in connection
with the disposition of such Collateral in accordance with the immediately preceding sentence shall name the Administrative Agent, as
Administrative Agent for the Lenders, as the beneficiary or mortgagee. In such case, the Administrative Agent and the Lenders shall enter
into an agreement with respect to such purchase money Mortgage defining the rights of the Lenders in the same Pro Rata Shares as provided
hereunder, which agreement shall be in all material respects similar to this Article XI insofar as the same is appropriate
or applicable.
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Section 11.12. Flood
Laws.
Wells
Fargo has adopted internal policies and procedures that address requirements placed on federally regulated lenders under the National
Flood Insurance Reform Act of 1994 and related legislation (the “Flood Laws”). Wells Fargo, as Administrative Agent, will
post on the applicable electronic platform (or otherwise distribute to each Lender in the syndicate) documents that it receives in connection
with the Flood Laws. However, Wells FargoAdministrative
Agent reminds each Lender and Participant that, pursuant to the Flood Laws, each federally regulated Lender (whether acting
as a Lender or Participant) is responsible for assuring its own compliance with the flood insurance requirements.
Section 11.13. No
Set Off.
Each Lender hereby acknowledges
that the exercise by any Lender of any offset, set-off, banker’s lien or similar rights against any deposit account or other property
or asset of any Loan Party, whether or not located in California, could result in significant impairment of the ability of all Lenders
to recover any further amounts in respect of the Guaranteed Obligations under certain Applicable Laws. Therefore, each Lender agrees not
to charge or offset any amount owed to it by any Loan Party against any of the accounts, property or assets of any Loan Party or any of
its affiliates held by such Lender without the prior written approval of the Administrative Agent and Requisite Lenders.
Section 11.14. Erroneous
Payments.
(a) Each
Lender and each other Secured Party hereby severally agrees that if (i) the Administrative Agent notifies (which such notice shall
be conclusive absent manifest error) such Lender or any other Secured Party (or the Lender Affiliate of a Secured Party) or any other
Person that has received funds from the Administrative Agent or any of its Affiliates, either for its own account or on behalf of a Lender
or other Secured Party (each such recipient, a “Payment Recipient”) that the Administrative Agent has determined in
its sole discretion that any funds received by such Payment Recipient were erroneously transmitted to, or otherwise erroneously or mistakenly
received by, such Payment Recipient (whether or not known to such Payment Recipient) or (ii) any Payment Recipient receives any payment
from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that
specified in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to
such payment, prepayment or repayment, as applicable, (y) that was not preceded or accompanied by a notice of payment, prepayment
or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, as applicable,
or (z) that such Payment Recipient otherwise becomes aware was transmitted or received in error or by mistake (in whole or in part)
then, in each case, an error in payment shall be presumed to have been made (any such amounts specified in clauses (i) or (ii) of
this Section 11.14(a), whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or
otherwise; individually and collectively, an “Erroneous Payment”), then, in each case, such Payment Recipient is deemed
to have knowledge of such error at the time of its receipt of such Erroneous Payment; provided that nothing in this Section shall
require the Administrative Agent to provide any of the notices specified in clauses (i) or (ii) above. Each Payment Recipient
agrees that it shall not assert any right or claim to any Erroneous Payment, and hereby waives any claim, counterclaim, defense or right
of set-off or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous
Payments, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine.
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(b) Without
limiting the immediately preceding clause (a), each Payment Recipient agrees that, in the case of clause (a)(ii) above, it shall
promptly notify the Administrative Agent in writing of such occurrence.
(c) In
the case of either clause (a)(i) or (a)(ii) above, such Erroneous Payment shall at all times remain the property of the Administrative
Agent and shall be held in trust for the benefit of the Administrative Agent, and upon demand from the Administrative Agent such Payment
Recipient shall (or, shall cause any Person who received any portion of an Erroneous Payment on its behalf to), promptly, but in all events
no later than two Business Days thereafter, return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof)
as to which such a demand was made in same day funds and in the currency so received, together with interest thereon (unless waived by
the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received
by such Payment Recipient to the date such amount is repaid to the Administrative Agent at the greater of (i) the Federal Funds Rate
and (ii) an overnight rate determined by the Administrative Agent to be customary in the place of disbursement or payment for the
settlement of international banking transactions.
(d) In
the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor
by the Administrative Agent in accordance with immediately preceding clause (c), from any Lender that is a Payment Recipient or an Affiliate
of a Payment Recipient (such unrecovered amount as to such Lender, an “Erroneous Payment Return Deficiency”), then
at the sole discretion of the Administrative Agent and upon the Administrative Agent’s written notice to such Lender (i) such
Lender shall be deemed to have made a cashless assignment of the full face amount of the portion of its Loans (but not its Commitments)
in the amount of such portion to the Administrative Agent or, at the option of the Administrative Agent, the Administrative Agent’s
applicable lending affiliate in an amount that is equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative
Agent may specify) (such assignment of the Loans (but not Commitments), the “Erroneous Payment Deficiency Assignment”)
plus any accrued and unpaid interest on such assigned amount, without further consent or approval of any party hereto and without any
payment by the Administrative Agent or its applicable lending affiliate as the assignee of such Erroneous Payment Deficiency Assignment.
Without limitation of its rights hereunder, the Administrative Agent may cancel any Erroneous Payment Deficiency Assignment at any time
by written notice to the applicable assigning Lender and upon such revocation all of the Loans assigned pursuant to such Erroneous Payment
Deficiency Assignment shall be reassigned to such Lender without any requirement for payment or other consideration. The parties hereto
acknowledge and agree that (1) any assignment contemplated in this clause (d) shall be made without any requirement for any
payment or other consideration paid by the applicable assignee or received by the assignor, (2) the provisions of this clause (d) shall
govern in the event of any conflict with the terms and conditions of Section 12.5 and (3) the Administrative Agent may
reflect such assignments in the Register without further consent or action by any other Person.
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(e) Each
party hereto hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient
that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent (1) shall be subrogated to
all the rights of such Payment Recipient with respect to such amount and (2) is authorized to set off, net and apply any and all
amounts at any time owing to such Payment Recipient under any Loan Document, or otherwise payable or distributable by the Administrative
Agent to such Payment Recipient from any source, against any amount due to the Administrative Agent under this Section 11.14(e) or
under the indemnification provisions of this Agreement, (y) the receipt of an Erroneous Payment by a Payment Recipient shall not
for the purpose of this Agreement be treated as a payment, prepayment, repayment, discharge or other satisfaction of any Obligations owed
by the Borrower or any other Loan Party, and (z) to the extent that an Erroneous Payment was in any way or at any time credited as
payment or satisfaction of any of the Obligations, the Obligations or any part thereof that were so credited, and all rights of the Payment
Recipient, as the case may be, shall be reinstated and continue in full force and effect as if such payment or satisfaction had never
been received, except, in each case of clauses (y) and (z), to the extent such Erroneous Payment is, and solely with respect to the
amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan
Party for the purpose of making a payment on the Obligations.
(f) Each
party’s obligations under this Section 11.14 shall survive the resignation or replacement of the Administrative Agent
or any transfer of right or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction
or discharge of all Obligations (or any portion thereof) under any Loan Document.
(g) Nothing
in this Section 11.14 will constitute a waiver or release of any claim of any party hereunder arising from any Payment Recipient’s
receipt of an Erroneous Payment.
Section 11.15. Certain
ERISA Matters.
(a) Each
Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the
date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative
Agent, each Lead Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower
or any other Loan Party, that at least one of the following is and will be true:
(i) such
Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise for purposes of Title I
of ERISA or Section 4975 of the Internal Revenue Code) of one or more Benefit Plans with respect to such Lender’s entrance
into, participation in, administration of and performance of the Loans, the Commitments or this Agreement;
(ii) the
prohibited transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined
by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company
general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38
(a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions
determined by in-house asset managers), is applicable so as to exempt from the prohibitions of Section 406 of ERISA and Section 4975
of the Internal Revenue Code such Lender’s entrance into, participation in, administration of and performance of the Loans, the
Commitments and this Agreement;
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(iii) (A) such
Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI
of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into,
participate in, administer and perform the Loans, the Commitments and this Agreement, (C) the entrance into, participation in, administration
of and performance of the Loans, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of
Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of
PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the
Loans, the Commitments and this Agreement; or
(iv) such
other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and
such Lender.
(b) In
addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or
(2) a Lender has provided another representation, warranty and covenant in accordance with sub-clause (iv) in the immediately
preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to,
and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto,
for the benefit of, the Administrative Agent, each Lead Arranger and their respective Affiliates, and not, for the avoidance of doubt,
to or for the benefit of the Borrower or any other Loan Party, that none of the Administrative Agent, any Lead Arranger and their respective
Affiliates is a fiduciary with respect to the assets of such Lender involved in such Lender’s entrance into, participation in, administration
of and performance of the Loans, the Commitments and this Agreement (including in connection with the reservation or exercise of any rights
by the Administrative Agent under this Agreement, any Loan Document or any documents related hereto or thereto).
Article XII.
MISCELLANEOUS
Section 12.1. Notices.
Unless otherwise provided
herein (including without limitation as provided in Section 8.5), communications provided for hereunder shall be in writing
and shall be mailed, telecopied, or delivered as follows:
If to the Borrower:
OPI WF Borrower LLC
c/o Office Properties Income Trust
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Two Newton Place
255 Washington Street, Suite 300
Newton, Massachusetts 02458
Attention: Chief Financial Officer
Telephone: (617) 796-8142
If to the Administrative Agent:
Wells
Fargo Bank, National Association
333 S. Grand Ave, 9th Floor
Los Angeles, CA 90071
Attention: Rebecca Ghermezi
Telephone: (213) 358-7530
Email: Rebecca.ghermezi@wellsfargo.com.
If
to the Administrative Agent under Article II.:
Wells
Fargo Bank, National Association
Minneapolis Loan Center
600 South 4th Street, 10th Floor
Minneapolis, Minnesota 55415
Attn: Anthony Gangelhoff
Telephone: (612) 255-9826
Email: anthony.gangelhoff@wellsfargo.com
With
a copy to:
Wells
Fargo Bank, National Association
550 South Tryon Street, 22nd Floor
Charlotte, NC 28202
Attn: Doug Frazer
Telephone: (704) 715-5747
Email: Doug.E.Frazer@wellsfargo.com
Wilmington
Savings Fund Society, FSB
500 Delaware Avenue
Wilmington, DE 19801
Attn: Patrick Healy and Liz Hinojosa
Email:
AdminAgencyMO@wsfsbank.com;
phealy@wsfsbank.com; lhinojosa@wsfsbank.com
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If to any other Lender:
To such Lender’s address or telecopy number as set forth
in the applicable Administrative Questionnaire
or, as to each party at such other address as
shall be designated by such party in a written notice to the other parties delivered in compliance with this Section; provided, a Lender
shall only be required to give notice of any such other address to the Administrative Agent and the Borrower. All such notices and other
communications shall be effective (i) if mailed, upon the first to occur of receipt or the expiration of three (3) days after
the deposit in the United States Postal Service mail, postage prepaid and addressed to the address of the Borrower or the Administrative
Agent and the Lenders at the addresses specified; (ii) if telecopied, when transmitted; (iii) if hand delivered or sent by overnight
courier, when delivered; or (iv) if delivered in accordance with Section 8.5 to the extent applicable; provided, however,
that, in the case of the immediately preceding clauses (i), (ii) and (iii), non-receipt of any communication as of the result of
any change of address of which the sending party was not notified or as the result of a refusal to accept delivery shall be deemed receipt
of such communication. Notwithstanding the immediately preceding sentence, all notices or communications to the Administrative Agent or
any Lender under Article II shall be effective only when actually received. None of the Administrative Agent or any Lender
shall incur any liability to any Loan Party (nor shall the Administrative Agent incur any liability to the Lenders) for acting upon any
telephonic notice referred to in this Agreement which the Administrative Agent or such Lender, as the case may be, believes in good faith
to have been given by a Person authorized to deliver such notice or for otherwise acting in good faith hereunder. Failure of a Person
designated to get a copy of a notice to receive such copy shall not affect the validity of notice properly given to another Person.
Section 12.2. Expenses.
The Borrower agrees (a) to
pay or reimburse the Administrative Agent for all of its reasonable and documented costs and expenses incurred in connection with the
preparation, negotiation, execution and administration of, and any amendment, supplement or modification to, any of the Loan Documents
(including due diligence expense and reasonable travel expenses related to closing), and the consummation of the transactions contemplated
hereby and thereby, including the reasonable fees and disbursements of counsel to the Administrative Agent and all costs and expenses
of the Administrative Agent in connection with the use of IntraLinks, SyndTrak or other similar information transmission systems in connection
with the Loan Documents and in connection with the review of Properties for inclusion as Collateral Properties, ongoing due diligence
and collateral review and preservation in respect of Collateral Properties, the Administrative Agent’s other activities under Section 7.15
and the fees and disbursements of counsel to the Administrative Agent relating to all such activities (it being understood and agreed
that, to the extent any of such services or activities are provided internally by the Administrative Agent, the Borrower shall reimburse
the Administrative Agent for such reasonable and customary costs and expenses at market rates), (b) to pay or reimburse the Administrative
Agent and the Lenders for all their reasonable and documented out-of-pocket costs and expenses incurred in connection with the enforcement
or preservation of any rights under the Loan Documents and the Fee Letter, including the reasonable fees and disbursements of their respective
counsel and any payments in indemnification or otherwise payable by the Lenders to the Administrative Agent pursuant to the Loan Documents,
(c) subject to the limitations set forth in Section 3.10 of this Agreement, to pay, and indemnify and hold harmless the
Administrative Agent and the Lenders from, any and all recording and filing fees and any and all liabilities with respect to, or resulting
from any failure to pay or delay in paying, documentary, stamp, excise and other similar taxes, if any, which may be payable or determined
to be payable in connection with the execution and delivery of any of the Loan Documents, or consummation of any amendment, supplement
or modification of, or any waiver or consent under or in respect of, any Loan Document and (d) to the extent not already covered
by any of the preceding subsections, to pay or reimburse the fees and disbursements of counsel to the Administrative Agent and any Lender
incurred in connection with the representation of the Administrative Agent or such Lender in any matter relating to or arising out of
any bankruptcy or other proceeding of the type described in Sections 10.1(e) or 10.1(f), including, without limitation
(i) any motion for relief from any stay or similar order, (ii) the negotiation, preparation, execution and delivery of any document
relating to the Obligations and (iii) the negotiation and preparation of any debtor-in-possession financing or any plan of reorganization
of the Borrower or any other Loan Party, whether proposed by the Borrower, such Loan Party, the Lenders or any other Person, and whether
such fees and expenses are incurred prior to, during or after the commencement of such proceeding or the confirmation or conclusion of
any such proceeding. If the Borrower shall fail to pay any amounts required to be paid by it pursuant to this Section, the Administrative
Agent and/or the Lenders may pay such amounts on behalf of the Borrower and such amounts shall be deemed to be Obligations owing hereunder.
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Section 12.3. Setoff.
Subject to Section 3.3
and in addition to any rights now or hereafter granted under Applicable Law and not by way of limitation of any such rights, the Borrower
hereby authorizes the Administrative Agent, each Lender, each Affiliate of the Administrative Agent or any Lender, and each Participant,
at any time or from time to time while an Event of Default exists, without notice to the Borrower or to any other Person, any such notice
being hereby expressly waived, but in the case of a Lender, an Affiliate of a Lender, or a Participant, subject to receipt of the prior
written consent of the Requisite Lenders exercised in their sole discretion, to set off and to appropriate and to apply any and all deposits
(general or special, including, but not limited to, indebtedness evidenced by certificates of deposit, whether matured or unmatured) and
any other indebtedness at any time held or owing by the Administrative Agent, such Lender, any Affiliate of the Administrative Agent or
such Lender, or such Participant, to or for the credit or the account of the Borrower against and on account of any of the Obligations,
irrespective of whether or not any or all of the Loans and all other Obligations have been declared to be, or have otherwise become, due
and payable as permitted by Section 10.2, and although such Obligations shall be contingent or unmatured. Notwithstanding
anything to the contrary in this Section, if any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set
off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 3.9
and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit
of the Administrative Agent and the Lenders and (y) such Defaulting Lender shall provide promptly to the Administrative Agent a statement
describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Section 12.4. Litigation;
Jurisdiction; Other Matters; Waivers.
(a) EACH
PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY BETWEEN OR AMONG THE BORROWER, THE ADMINISTRATIVE AGENT OR ANY OF THE LENDERS
WOULD BE BASED ON DIFFICULT AND COMPLEX ISSUES OF LAW AND FACT AND WOULD RESULT IN DELAY AND EXPENSE TO THE PARTIES. ACCORDINGLY, TO THE
EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE LENDERS, THE ADMINISTRATIVE AGENT AND THE BORROWER HEREBY WAIVES ITS RIGHT TO A TRIAL
BY JURY IN ANY ACTION OR PROCEEDING OF ANY KIND OR NATURE IN ANY COURT OR TRIBUNAL IN WHICH AN ACTION MAY BE COMMENCED BY OR AGAINST
ANY PARTY HERETO ARISING OUT OF THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE FEE LETTER OR BY REASON OF ANY OTHER SUIT, CAUSE OF ACTION
OR DISPUTE WHATSOEVER BETWEEN OR AMONG THE BORROWER, THE ADMINISTRATIVE AGENT OR ANY OF THE LENDERS OF ANY KIND OR NATURE RELATING TO
ANY OF THE LOAN DOCUMENTS.
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(b) THE
BORROWER IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT COMMENCE ANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR DESCRIPTION,
WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, AGAINST THE ADMINISTRATIVE AGENT, ANY LENDER OR ANY RELATED PARTY
OF THE FOREGOING IN ANY WAY RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS RELATING HERETO OR THERETO, IN
ANY FORUM OTHER THAN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY, AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN
DISTRICT OF NEW YORK SITTING IN NEW YORK COUNTY, AND ANY APPELLATE COURT FROM ANY THEREOF, AND EACH OF THE PARTIES HERETO IRREVOCABLY
AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH COURTS AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION, LITIGATION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN
SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION OR PROCEEDING SHALL BE CONCLUSIVE
AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT
OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT OR ANY LENDER MAY OTHERWISE HAVE TO BRING ANY
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES
IN THE COURTS OF ANY JURISDICTION. EACH PARTY FURTHER WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY
SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT FORUM AND EACH AGREES NOT
TO PLEAD OR CLAIM THE SAME. THE CHOICE OF FORUM SET FORTH IN THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE THE BRINGING OF ANY ACTION
BY THE ADMINISTRATIVE AGENT OR ANY LENDER OR THE ENFORCEMENT BY THE ADMINISTRATIVE AGENT OR ANY LENDER OF ANY JUDGMENT OBTAINED IN SUCH
FORUM IN ANY OTHER APPROPRIATE JURISDICTION.
(c) THE
PROVISIONS OF THIS SECTION HAVE BEEN CONSIDERED BY EACH PARTY WITH THE ADVICE OF COUNSEL AND WITH A FULL UNDERSTANDING OF THE LEGAL
CONSEQUENCES THEREOF, AND SHALL SURVIVE THE PAYMENT OF THE LOANS AND ALL OTHER AMOUNTS PAYABLE HEREUNDER OR UNDER THE OTHER LOAN DOCUMENTS
AND THE TERMINATION OF THIS AGREEMENT.
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Section 12.5. Successors
and Assigns.
(a) Successors
and Assigns Generally. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that neither the Borrower nor any other Loan Party may assign or otherwise
transfer any of its rights or obligations hereunder or under any other Loan Document without the prior written consent of the Administrative
Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an
Eligible Assignee in accordance with the provisions of the immediately following subsection (b), (ii) by way of participation in
accordance with the provisions of the immediately following subsection (d) or (iii) by way of pledge or assignment of a security
interest subject to the restrictions of the immediately following subsection (f) (and, subject to the last sentence of the immediately
following subsection (b), any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns
permitted hereby, Participants to the extent provided in the immediately following subsection (d) and, to the extent expressly contemplated
hereby, the Related Parties of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason
of this Agreement.
(b) Assignments
by Lenders. Any Lender may at any time assign to one or more Eligible Assignees all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it); provided that any such assignment
shall be subject to the following conditions:
(i) Minimum
Amounts.
(A) in
the case of an assignment of the entire remaining amount of an assigning Revolving Lender’s Revolving Commitment and/or the Loans
at the time owing to it, or in the case of an assignment of the entire remaining amount of an assigning Term Loan Lender’s Term
Loans at the time owing to it, or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount
need be assigned; and
(B) in
any case not described in the immediately preceding subsection (A), the aggregate amount of the Revolving Commitment (which for this purpose
includes Loans outstanding thereunder) or, if the applicable Revolving Commitment is not then in effect, the principal outstanding balance
of the Revolving Loans of the assigning Lender subject to each such assignment, and the principal outstanding balance of the Term Loan
subject to such assignment (in each case, determined as of the date the Assignment and Assumption with respect to such assignment is delivered
to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date) shall
not be less than $5,000,000, unless each of the Administrative Agent and the Borrower otherwise consents (each such consent not to be
unreasonably withheld or delayed) (provided that the Borrower’s consent shall not be required if a Default or Event of Default shall
exist at the time of such assignment); provided, however, that if, after giving effect to such assignment of Revolving Commitments, the
amount of the Revolving Commitment held by such assigning Lender or the outstanding principal balance of the Loans of such assigning Lender,
as applicable, would be less than $5,000,000, then such assigning Lender shall assign the entire amount of its Revolving Commitment or
the Loans at the time owing to it, as applicable.
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(ii) Proportionate
Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights
and obligations under this Agreement with respect to the Loan or the Revolving Commitment assigned.
(iii) Required
Consents. No consent shall be required for any assignment except to the extent required by clause (i)(B) of this subsection (b) and,
in addition:
(A) the
consent of the Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (x) a Default or Event
of Default shall exist at the time of such assignment or (y) such assignment is to a Lender, an Affiliate of a Lender or an Approved
Fund; provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice
to the Administrative Agent within 5 Business Days after having received notice thereof; and
(B) the
consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments in respect
of (a) a Revolving Commitment if such assignment is to a Person that is not already a Revolving Lender with a Revolving Commitment,
an Affiliate of such a Revolving Lender or an Approved Fund with respect to such a Lender or (y) a Term Loan to a Person who is not
a Lender, an Affiliate of a Lender or an Approved Fund.
(iv) Assignment
and Assumption; Notes. The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption,
together with a processing and recordation fee of $4,500 for each assignment (which fee the Administrative Agent may, in its sole discretion,
elect to waive), and the assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire. If
requested by the transferor Lender or the assignee, upon the consummation of any assignment, the transferor Lender, the Administrative
Agent and the Borrower shall make appropriate arrangements so that new Notes are issued to the assignee and such transferor Lender, as
appropriate.
(v) No
Assignment to Certain Persons. No such assignment shall be made to (A) the Parent or any of the Parent’s Subsidiaries or
(B) to any Defaulting Lender or any of its Subsidiaries, or to any Person who, upon becoming a Lender hereunder, would constitute
any of the foregoing Persons described in this clause (B).
(vi) No
Assignment to Natural Persons. No such assignment shall be made to a natural person.
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(vii) Certain
Additional Payments. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment
shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to such assignment shall
make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate
(which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including
funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but
not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay
and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent and each other Lender hereunder
(and interest accrued thereon), and (y) if such Lender will be a Revolving Lender, acquire (and fund as appropriate) its full pro
rata share of all Revolving Loans in accordance with its Revolving Commitment Percentage. Notwithstanding the foregoing, in the event
that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under Applicable Law without compliance
with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of
this Agreement until such compliance occurs.
Subject to acceptance and recording thereof by
the Administrative Agent pursuant to the immediately following subsection (c), from and after the effective date specified in each Assignment
and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment
and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of
an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall
cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 3.10, 4.1, 4.4, 12.2
and 12.9 and the other provisions of this Agreement and the other Loan Documents as provided in Section 12.10 with
respect to facts and circumstances occurring prior to the effective date of such assignment; provided, that except to the extent
otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim
of any party hereunder arising from that Lender having been a Defaulting Lender. Any assignment or transfer by a Lender of rights or obligations
under this Agreement that does not comply with this paragraph shall be treated for purposes of this Agreement as a sale by such Lender
of a participation in such rights and obligations in accordance with the immediately following subsection (d).
(c) Register.
The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain at the Principal Office
a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders,
and the Commitments of, and principal amounts (and stated interest) of the Loans owing to, each Lender pursuant to the terms hereof from
time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Borrower,
the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as
a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection
by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
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(d) Participations.
Any Lender may at any time, upon at least five (5) Business Days advance notice to the Borrower and the Administrative Agent, but
without the consent of, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural person or the
Parent or any of the Parent’s Subsidiaries or a Defaulting Lender) (each, a “Participant”) in all or a portion
of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Revolving Commitment and/or the
Loans owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower,
the Administrative Agent and the Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s
rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant,
agree to any amendment, modification or waiver of any provision of any Loan Document that (w) increases such Lender’s Commitment
or reduces the principal of any such Lender’s Loans, in each case, in which such Participant has a participation, (x) extends
the date fixed for the payment of principal on the Loans or portions thereof owing to such Lender, (y) reduces the rate at which
interest is payable thereon or (z) releases any Guarantor from its Obligations under the Guaranty to which it is a party except,
solely in the case of a Subsidiary Guarantor, as contemplated by Section 7.13(b), in each case, as applicable to that portion
of such Lender’s rights and/or obligations that are subject to the participation. The Borrower agrees that each Participant shall
be entitled to the benefits of Sections 3.10, 4.1, 4.4 (subject to the requirements and limitations therein, including
the requirements under Section 3.10(g) (it being understood that the documentation required under Section 3.10(g) shall
be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant
to subsection (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Section 4.6
as if it were an assignee under subsection (b) of this Section; and (B) shall not be entitled to receive any greater payment
under Sections 4.1 or 3.10, with respect to any participation, than its participating Lender would have been entitled to
receive, except to the extent such entitlement to receive a greater payment results from a Regulatory Change that occurs after the Participant
acquired the applicable participation. Each Lender that sells a participation agrees, at the Borrower’s request and expense, to
use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 4.6 with respect to any Participant.
To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 12.3 as though it were
a Lender; provided that such Participant agrees to be subject to Section 3.3 as though it were a Lender. Each Lender
that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which
it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest
in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender
shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any
information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any
Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of
credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries
in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded
in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining
a Participant Register.
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(e) Certain
Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement
to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that
no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee
for such Lender as a party hereto.
(f) No
Registration. Each Lender agrees that, without the prior written consent of the Borrower and the Administrative Agent, it will not
make any assignment hereunder in any manner or under any circumstances that would require registration or qualification of, or filings
in respect of, any Loan or Note under the Securities Act or any other securities laws of the United States of America or of any other
jurisdiction.
(g) USA
Patriot Act Notice; Compliance. In order for the Administrative Agent to comply with “know your customer” and anti-money
laundering rules and regulations, including without limitation, the Patriot Act, prior to any Lender that is organized under the
laws of a jurisdiction outside of the United States of America becoming a party hereto, the Administrative Agent may request, and such
Lender shall provide to the Administrative Agent, its name, address, tax identification number and/or such other identification information
as shall be necessary for the Administrative Agent to comply with federal law.
Section 12.6. Amendments
and Waivers.
(a) Generally.
Except as otherwise expressly provided in this Agreement (including, without limitation, Section 4.2(c)), (i) any consent
or approval required or permitted by this Agreement or any other Loan Document to be given by the Lenders may be given, (ii) any
term of this Agreement or of any other Loan Document may be amended, (iii) the performance or observance by the Borrower, any other
Loan Party or any other Subsidiary of Holdings of any terms of this Agreement or such other Loan Document may be waived, and (iv) the
continuance of any Default or Event of Default may be waived (either generally or in a particular instance and either retroactively or
prospectively) with, but only with, the written consent of the Requisite Lenders (or the Administrative Agent at the written direction
of the Requisite Lenders), and, in the case of an amendment to any Loan Document, the written consent of each Loan Party party thereto.
Subject to the immediately following subsection (b), any term of this Agreement or of any other Loan Document relating to the rights or
obligations of the Revolving Lenders, and not any other Lenders, may be amended, and the performance or observance by the Borrower or
any other Loan Party or any Subsidiary of Holdings of any such terms may be waived (either generally or in a particular instance and either
retroactively or prospectively) with, and only with, the written consent of the Requisite Revolving Lenders (and, in the case of an amendment
to any Loan Document, the written consent of each Loan Party party thereto). Subject to the immediately following subsection (b), any
term of this Agreement or of any other Loan Document relating to the rights or obligations of the Term Loan Lenders, and not any other
Lenders, may be amended, and the performance or observance by the Borrower or any other Loan Party or any Subsidiary of Holdings of any
such terms may be waived (either generally or in a particular instance and either retroactively or prospectively) with, but only with,
the written consent of the Requisite Term Loan Lenders (and, in the case of an amendment to any Loan Document, the written consent of
each Loan Party party thereto). Notwithstanding anything to the contrary contained in this Section, the Fee Letter may only be amended,
and the performance or observance by any Loan Party thereunder may only be waived, in a writing executed by the parties thereto.
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(b) Consent
of Lenders Directly Affected. In addition to the foregoing requirements, no amendment, waiver or consent shall:
(i) increase
(or reinstate) a Commitment of a Lender (excluding any increase as a result of an assignment of Commitments permitted under Section 12.5)
or subject such Lender to any additional obligations without the written consent of such Lender;
(ii) reduce
the principal of, or interest that has accrued or the rates of interest that will be charged on the outstanding principal amount of, any
Loans or other Obligations without the written consent of each Lender directly affected thereby; provided, however, only the written consent
of the Requisite Lenders shall be required for the waiver of interest payable at the Post-Default Rate, retraction of the imposition of
interest at the Post-Default Rate and amendment of the definition of “Post-Default Rate”;
(iii) reduce
the amount of any Fees payable to a Lender without the written consent of such Lender;
(iv) modify
the definitions of “Revolving Credit Termination Date” (except
in accordance with Section 2.13) or “Revolving Commitment Percentage”,
or otherwise postpone any date fixed for, or forgive, any payment of principal of, or interest on, any Revolving Loans or for the payment
of any other Obligations owing to the Revolving Lenders, in each case, without the written consent of each Revolving Lender directly affected
thereby; provided, however, only the written consent of the Requisite Revolving
Lenders shall be required to amend or modify the conditions precedent to extension set forth in Section 2.13
(other than (x) any waiver or amendment adverse to the interests of the Revolving Lenders of any condition set forth in clause
(ii) of Section 2.13, or any waiver or amendment to Borrower’s right to make
a repayment of Loans or consummate a Collateral Property Addition to satisfy the same, and (y) any waiver or reduction of the fee
specified in clause (iii) of Section 2.13, in each case, which shall require the written
consent of each Revolving Lender directly affected thereby);
(v) modify
the definitions of “Term Loan Maturity Date” or “Term Loan Percentage”, or otherwise postpone any date fixed for,
or forgive, any payment of principal of, or interest on, any Term Loans or for the payment of any other Obligations owing to the Term
Loan Lenders, in each case, without the written consent of each Term Loan Lender directly affected thereby;
(vi) amend,
modify or waive Section 5.2 or any other provision of this Agreement if the effect of such amendment, modification or waiver
is to require the Revolving Lenders to make Revolving Loans when such Lenders would not otherwise be required to do so without the written
consent of the Requisite Revolving Lenders;
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(vii) modify
the definition of “Pro Rata Share” or amend or otherwise modify the provisions of Section 3.2 or Section 10.5
without the written consent of each Lender directly affected thereby;
(viii) amend
this Section or amend any of the defined terms used in this Agreement or the other Loan Documents insofar as such definitions affect
the substance of this Section without the written consent of each Lender;
(ix) modify
the definition of the term “Requisite Revolving Lenders” or modify in any other manner the number or percentage of the Revolving
Lenders required to make any determinations or waive any rights hereunder or to modify any provision hereof without the written consent
of each Revolving Lender;
(x) modify
the definition of the term “Requisite Term Loan Lenders” or modify in any other manner the number or percentage of the Term
Loan Lenders required to make any determinations or waive any rights hereunder or to modify any provision hereof without the written consent
of each Term Loan Lender;
(xi) modify
the definition of the term “Requisite Lenders” or “Specified Lenders” or modify in any other manner the number
or percentage of the Lenders required to make any determinations or waive any rights hereunder or to modify any provision hereof without
the written consent of each Lender;
(xii) release
any Guarantor from its obligations under the Guaranty to which it is a party (except, solely in the case of a Subsidiary Guarantor, as
contemplated by Section 7.13(b)) without the written consent of each Lender;
(xiii) release
any material portion of the Pledged Interests (except for releases thereof expressly permitted under or contemplated by this Agreement
or the Pledge Agreement) or subordinate any Lien of the Administrative Agent in any material portion of the Pledged Interests, in each
case, without the written consent of each Lender;
(xiv) (x) release
any Loan Party from its material obligations under any Security Document (except as expressly permitted under or contemplated by this
Agreement ), (y) release or dispose of any Collateral Property (except as expressly permitted under or contemplated by this Agreement
), or (z) permit the Collateral to secure any Indebtedness (other than (A) the Obligations or the Guaranteed Obligations, as
applicable and (B) as expressly permitted under or contemplated by this Agreement), in each case, without the written consent of
each Lender;
(xv) waive
a Default or Event of Default under Section 10.1(a) without the written consent of each Lender;
(xvi) amend
or waive the requirements of Section 11.10(h) without the written consent of each Lender; or
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(xvii) amend,
or waive the Borrower’s compliance with, Section 2.15 without the written consent of each Lender.
(c) Amendment
of Administrative Agent’s Duties, Etc. No amendment, waiver or consent unless in writing and signed by the Administrative Agent,
in addition to the Lenders required hereinabove to take such action, shall affect the rights or duties of the Administrative Agent under
this Agreement or any of the other Loan Documents. Any amendment, waiver or consent with respect to any Loan Document that (i) diminishes
the rights of a Specified Derivatives Provider in a manner or to an extent dissimilar to that affecting the Lenders or (ii) increases
the liabilities or obligations of a Specified Derivatives Provider shall, in addition to the Lenders required hereinabove to take such
action, require the consent of the Lender that is (or having an Affiliate that is) such Specified Derivatives Provider. Notwithstanding
anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder
(and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with
the consent of the applicable Lenders other than Defaulting Lenders), except that (x) a Commitment of a Defaulting Lender may not
be increased, reinstated or extended without the written consent of such Defaulting Lender and (y) any waiver, amendment or modification
requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than other
affected Lenders shall require the written consent of such Defaulting Lender. No waiver shall extend to or affect any obligation not expressly
waived or impair any right consequent thereon and any amendment, waiver or consent shall be effective only in the specific instance and
for the specific purpose set forth therein. No course of dealing or delay or omission on the part of the Administrative Agent or any Lender
in exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto. Any Event of Default occurring hereunder
shall continue to exist until such time as such Event of Default is waived in writing in accordance with the terms of this Section, notwithstanding
any attempted cure or other action by the Borrower, any other Loan Party or any other Person subsequent to the occurrence of such Event
of Default. Except as otherwise explicitly provided for herein or in any other Loan Document, no notice to or demand upon the Borrower
shall entitle the Borrower to other or further notice or demand in similar or other circumstances.
(d) Technical
Amendments. Notwithstanding anything to the contrary in this Section 12.6, if the Administrative Agent and the Borrower
have jointly identified an ambiguity, omission, mistake or defect in any provision of this Agreement or any other Loan Document (other
than the Fee Letter) or an inconsistency between provisions of this Agreement or provisions of another Loan Document (other than the Fee
Letter), the Administrative Agent and the Borrower shall be permitted to amend such provision or provisions to cure such ambiguity, omission,
mistake, defect or inconsistency so long as to do so would not adversely affect the interests of the Lenders. Any such amendment shall
become effective without any further action or consent of any of other party to this Agreement, and the Administrative Agent will provide
a copy of such amendment to the Lenders.
(e) More
Favorable Covenants. Notwithstanding anything to the contrary in this Section 12.6, if requested by the Administrative
Agent, the Administrative Agent and the Borrower shall be permitted to amend this Agreement to reflect the inclusion of any More Favorable
Covenant incorporated herein pursuant to Section 7.17 (it being understood and agreed that the failure to effect any such
amendment to this Agreement shall in no way limit or impair the automatic applicability and effectiveness of any such More Favorable Covenant
by operation of Section 7.17). Any such amendment shall become effective without any further action or consent of any of other
party to this Agreement, and the Administrative Agent will provide a copy of such amendment to the Lenders.
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(f) Amendment
and Restatement Transactions. Notwithstanding anything to the contrary in this Section 12.6, if, in connection with any
amendment and/or restatement of this Agreement (as so amended and/or restated, the “Amended Agreement”), there are
one or more Lenders party to this Agreement that will not be party to the Amended Agreement (each, an “Agreement Exiting Lender”),
each Agreement Exiting Lender acknowledges and agrees that, so long as the Commitment of such Agreement Exiting Lender is terminated,
and all outstanding obligations owing to such Agreement Exiting Lender under this Agreement and the other Loan Documents are repaid in
full on the effective date of the Amended Agreement, such Agreement Exiting Lender will be not be deemed to be a Lender under this Agreement
as of the effective date of the Amended Agreement and shall be disregarded for purposes of determining requisite Lender approval of any
amendments to this Agreement pursuant to the Amended Agreement; provided, however, that each Agreement Exiting Lender shall continue to
be entitled to the benefits of any provisions under this Agreement (prior to giving effect to the Amended Agreement) that by their express
terms survive the termination of this Agreement and/or the payment in full of principal, interest and all other amounts payable hereunder
(prior to giving effect to the Amended Agreement), including, without limitation, Sections 3.10, 4.1, 4.4, 11.6,
12.2 and 12.9 For the avoidance of doubt, nothing in this Section 12.6(e) shall itself provide any Lender
with the option of terminating its Commitment under this Agreement.
Section 12.7. Nonliability
of Administrative Agent and Lenders.
The relationship between the
Borrower, on the one hand, and the Lenders and the Administrative Agent, on the other hand, shall be solely that of borrower and lender.
None of the Administrative Agent or any Lender shall have any fiduciary responsibilities to the Borrower and no provision in this Agreement
or in any of the other Loan Documents, and no course of dealing between or among any of the parties hereto, shall be deemed to create
any fiduciary duty owing by the Administrative Agent or any Lender to any Lender, the Borrower, any Subsidiary of Holdings or any other
Loan Party. None of the Administrative Agent or any Lender undertakes any responsibility to the Borrower to review or inform the Borrower
of any matter in connection with any phase of the Borrower’s business or operations.
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Section 12.8. Confidentiality.
Except as otherwise provided
by Applicable Law, the Administrative Agent and each Lender shall maintain the confidentiality of all Information (as defined below) in
accordance with its customary procedure for handling confidential information of this nature and in accordance with safe and sound banking
practices but in any event may make disclosure: (a) to its Affiliates and to its and its Affiliates’ other respective Related
Parties (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information
and instructed to keep such Information confidential); (b) subject to an agreement containing provisions substantially the same as
those of this Section, to (i) any actual or proposed assignee, Participant or other transferee in connection with a potential transfer
of any Commitment or participation therein as permitted hereunder, or (ii) any actual or prospective counterparty (or its advisors)
to any swap or derivative transaction relating to the Borrower and its obligations; (c) as required or requested by any Governmental
Authority or representative thereof or pursuant to legal process or in connection with any legal proceedings, or as otherwise required
by Applicable Law; (d) to the Administrative Agent’s or such Lender’s independent auditors and other professional advisors
(provided they shall be notified of the confidential nature of the information); (e) in connection with the exercise of any remedies
under any Loan Document (or any Specified Derivatives Contract) or any action or proceeding relating to any Loan Document (or any such
Specified Derivatives Contract) or the enforcement of rights hereunder or thereunder; (f) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section actually known by the Administrative Agent or such Lender to
be a breach of this Section or (ii) becomes available to the Administrative Agent, any Lender or any Affiliate of the Administrative
Agent or any Lender on a nonconfidential basis from a source other than the Borrower or any Affiliate of the Borrower; (g) to the
extent requested by, or required to be disclosed to, any nationally recognized rating agency or regulatory or similar authority (including
any self-regulatory authority, such as the National Association of Insurance Commissioners) having or purporting to have jurisdiction
over it; (h) to bank trade publications, such information to consist of deal terms and other information customarily found in such
publications; (i) to any other party hereto; (j) on a confidential basis to the CUSIP Service Bureau or any similar agency in
connection with the issuance and monitoring of CUSIP numbers with respect to the Loan Documents; (k) for purposes of establishing
a “due diligence” defense, and (l) with the consent of the Borrower. Notwithstanding the foregoing, the Administrative
Agent and each Lender may disclose any such confidential information, without notice to the Borrower or any other Loan Party, to Governmental
Authorities in connection with any regulatory examination of the Administrative Agent or such Lender or in accordance with the regulatory
compliance policy of the Administrative Agent or such Lender. In addition, the Administrative Agent and the Lenders may disclose the existence
of this Agreement and information about this Agreement to market data collectors, similar service providers to the lending industry and
service providers to the Administrative Agent and the Lenders in connection with the administration of this Agreement, the other Loan
Documents and the Commitments. As used in this Section, the term “Information” means all information received from
the Borrower, any other Loan Party, any other Subsidiary or Affiliate relating to any Loan Party or any of their respective businesses,
other than any such information that is available to the Administrative Agent or any Lender on a nonconfidential basis prior to disclosure
by the Borrower, any other Loan Party, any other Subsidiary or any Affiliate, provided that, in the case of any such information received
from the Borrower, any other Loan Party, any other Subsidiary or any Affiliate after the date hereof, such information is clearly identified
at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section shall
be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality
of such Information as such Person would accord to its own confidential information.
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Section 12.9. Indemnification.
(a) The
Borrower shall and hereby agrees to indemnify, defend and hold harmless the Administrative Agent, the Lenders, all of the Affiliates of
each of the Administrative Agent or any of the Lenders, and their respective Related Parties (each referred to herein as an “Indemnified
Party”) from and against any and all of the following (collectively, the “Indemnified Costs”): losses, costs,
claims, penalties, damages, liabilities, deficiencies, judgments or expenses of every kind and nature (including, without limitation,
amounts paid in settlement, court costs and the fees and disbursements of counsel incurred in connection with any pending or threatened
(in writing) litigation, investigation, claim or proceeding or any advice rendered in connection therewith, but excluding Indemnified
Costs indemnification in respect of which is specifically covered by Section 3.10 or 4.1 or expressly excluded from
the coverage of such Sections) incurred by an Indemnified Party in connection with, arising out of, or by reason of, any suit, cause of
action, claim, arbitration, investigation or settlement, consent decree or other proceeding (the foregoing referred to herein as an “Indemnity
Proceeding”) which is in any way related directly or indirectly to: (i) this Agreement or any other Loan Document or the
transactions contemplated thereby or the Collateral; (ii) the making of any Loans hereunder; (iii) any actual or proposed use
by the Borrower of the proceeds of the Loans; (iv) the Administrative Agent’s or any Lender’s entering into this Agreement;
(v) the fact that the Administrative Agent and the Lenders have established the credit facility evidenced hereby in favor of the
Borrower; (vi) the fact that the Administrative Agent and the Lenders are creditors of the Borrower and the other Loan Parties and
have or are alleged to have information regarding the financial condition, strategic plans or business operations of the Borrower and
the other Loan Parties; (vii) the fact that the Administrative Agent and the Lenders are material creditors of the Borrower and the
other Loan Parties and are alleged to influence directly or indirectly the business decisions or affairs of the Borrower and the other
Loan Parties or their financial condition; (viii) the exercise of any right or remedy the Administrative Agent or the Lenders may
have under this Agreement or the other Loan Documents; (ix) any civil penalty or fine assessed by the OFAC against, and all costs
and expenses (including counsel fees and disbursements) incurred in connection with defense thereof by, the Administrative Agent or any
Lender as a result of conduct of the Borrower, any other Loan Party or any other Subsidiary that violates a sanction administered or enforced
by the OFAC; or (x) any violation or non-compliance by any Loan Party, any Subsidiary of Parent or any Collateral Property of any
Applicable Law (including any Environmental Law), including, but not limited to, any Indemnity Proceeding commenced by (A) the Internal
Revenue Service or state taxing authority or (B) any Governmental Authority or other Person under any Environmental Law, including
any Indemnity Proceeding commenced by a Governmental Authority or other Person seeking remedial or other action to cause any Loan Party
or Subsidiary (or any of their respective properties) (or the Administrative Agent and/or the Lenders as successors to the Borrower or
other applicable Loan Parties) to be in compliance with such Environmental Laws; provided, however, that the Borrower shall not be obligated
to indemnify any Indemnified Party for any Indemnified Costs to the extent arising from the gross negligence or willful misconduct of
such Indemnified Party, as determined by a court of competent jurisdiction in a final, non-appealable judgment.
(b) The
Borrower’s indemnification obligations under this Section shall apply to all Indemnity Proceedings arising out of, or related
to, the foregoing whether or not an Indemnified Party is a named party in such Indemnity Proceeding. In this connection, this indemnification
shall cover all Indemnified Costs of any Indemnified Party in connection with any deposition of any Indemnified Party or compliance with
any subpoena (including any subpoena requesting the production of documents). This indemnification shall, among other things, apply to
any Indemnity Proceeding commenced by other creditors of Parent, the Borrower or any of Parent’s Subsidiary, any shareholder of
Parent, the Borrower or any Subsidiary of Parent (whether such shareholder(s) are prosecuting such Indemnity Proceeding in their
individual capacity or derivatively on behalf of Parent), any account debtor of Parent, the Borrower or any Subsidiary of Parent or by
any Governmental Authority.
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(c) This
indemnification shall apply to any Indemnity Proceeding arising during the pendency of any bankruptcy proceeding filed by or against Parent,
Borrower and/or any Subsidiary of Parent.
(d) [Reserved.]
(e) An
Indemnified Party may conduct its own investigation and defense of, and may formulate its own strategy with respect to, any Indemnity
Proceeding covered by this Section and, as provided above, all Indemnified Costs incurred by such Indemnified Party shall be reimbursed
by the Borrower. No action taken by legal counsel chosen by an Indemnified Party in investigating or defending against any such Indemnity
Proceeding shall vitiate or in any way impair the obligations and duties of the Borrower hereunder to indemnify and hold harmless each
such Indemnified Party; provided, however, that if (i) the Borrower is required to indemnify an Indemnified Party pursuant hereto
and (ii) the Borrower has provided evidence reasonably satisfactory to such Indemnified Party that the Borrower has the financial
wherewithal to reimburse such Indemnified Party for any amount paid by such Indemnified Party with respect to such Indemnity Proceeding,
such Indemnified Party shall not settle or compromise any such Indemnity Proceeding without the prior written consent of the Borrower
(which consent shall not be unreasonably withheld or delayed). Notwithstanding the foregoing, an Indemnified Party may settle or compromise
any such Indemnity Proceeding without the prior written consent of the Borrower where (x) no monetary relief is sought against such
Indemnified Party in such Indemnity Proceeding and the Borrower shall not otherwise be obligated to give any consideration in respect
of such settlement or (y) there is an allegation of a violation of law by such Indemnified Party.
(f) If
and to the extent that the obligations of the Borrower under this Section are unenforceable for any reason, the Borrower hereby agrees
to make the maximum contribution to the payment and satisfaction of such obligations which is permissible under Applicable Law.
(g) The
Borrower’s obligations under this Section shall survive any termination of this Agreement and the other Loan Documents and
the payment in full in Cash of the Obligations, and are in addition to, and not in substitution of, any of the other obligations set forth
in this Agreement or any other Loan Document to which it is a party.
References in this Section 12.9
to “Lender” or “Lenders” shall be deemed to include such Persons (and their Affiliates) in their
capacity as Specified Derivatives Providers.
Section 12.10. Termination;
Survival.
This Agreement and the other
Loan Documents shall terminate at such time as (a) all of the Commitments have been terminated, (b) none of the Lenders is obligated
any longer under this Agreement to make any Loans and (c) all Obligations (other than obligations which survive as provided in the
following sentence) have been paid and satisfied in full. The indemnities to which the Administrative Agent, the Lenders and/or any other
Indemnified Party are entitled under the provisions of Sections 3.10, 4.1, 4.4, 11.6, 12.2 and 12.9
and any other provision of this Agreement and the other Loan Documents, and the provisions of Sections 12.4 and 12.12, shall
continue in full force and effect and shall protect the Administrative Agent, the Lenders and such Indemnified Parties (i) notwithstanding
any termination of this Agreement, or of the other Loan Documents, against events arising after such termination as well as before and
(ii) at all times after any such party ceases to be a party to this Agreement with respect to all matters and events existing on
or prior to the date such party ceased to be a party to this Agreement.
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Section 12.11. Severability
of Provisions.
If any provision of this Agreement
or the other Loan Documents shall be determined by a court of competent jurisdiction to be invalid or unenforceable, that provision shall
be deemed severed from the Loan Documents, and the validity, legality and enforceability of the remaining provisions shall remain in full
force as though the invalid, illegal, or unenforceable provision had never been part of the Loan Documents.
Section 12.12. GOVERNING
LAW.
THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN
SUCH STATE.
Section 12.13. Counterparts.
(a) To
facilitate execution, this Agreement and any amendments, waivers, consents or supplements may be executed in any number of counterparts
as may be convenient or required (which may be effectively delivered by facsimile, in portable document format (“PDF”)
or other similar electronic means). It shall not be necessary that the signature of, or on behalf of, each party, or that the signature
of all persons required to bind any party, appear on each counterpart. All counterparts shall collectively constitute a single document.
It shall not be necessary in making proof of this document to produce or account for more than a single counterpart containing the respective
signatures of, or on behalf of, each of the parties hereto.
(b) The
words “execute,” “execution,” “signed,” “signature,” “delivery” and words
of like import in or related to this Agreement, any other Loan Document or any document, amendment, approval, consent, waiver, modification,
information, notice, certificate, report, statement, disclosure, or authorization to be signed or delivered in connection with this Agreement
or any other Loan Document or the transactions contemplated hereby shall be deemed to include Electronic Signatures or execution in the
form of an Electronic Record, and contract formations on electronic platforms approved by the Administrative Agent, deliveries or the
keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed
signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any Applicable Law,
including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records
Act, or any other similar state laws based on the Uniform Electronic Transactions Act. Each party hereto agrees that any Electronic Signature
or execution in the form of an Electronic Record shall be valid and binding on itself and each of the other parties hereto to the same
extent as a manual, original signature. For the avoidance of doubt, the authorization under this paragraph may include, without limitation,
use or acceptance by the parties of a manually signed paper which has been converted into electronic form (such as scanned into PDF format),
or an electronically signed paper converted into another format, for transmission, delivery and/or retention. Notwithstanding anything
contained herein to the contrary, the Administrative Agent is under no obligation to accept an Electronic Signature in any form or in
any format unless expressly agreed to by the Administrative Agent pursuant to procedures approved by it; provided that without
limiting the foregoing, (i) to the extent the Administrative Agent has agreed to accept such Electronic Signature from any party
hereto, the Administrative Agent and the other parties hereto shall be entitled to rely on any such Electronic Signature purportedly given
by or on behalf of the executing party without further verification and (ii) upon the request of the Administrative Agent or any
Lender, any Electronic Signature shall be promptly followed by an original manually executed counterpart thereof. Without limiting the
generality of the foregoing, each party hereto hereby (A) agrees that, for all purposes, including without limitation, in connection
with any workout, restructuring, enforcement of remedies, bankruptcy proceedings or litigation among the Administrative Agent, the Lenders
and any of the Loan Parties, electronic images of this Agreement or any other Loan Document (in each case, including with respect to any
signature pages thereto) shall have the same legal effect, validity and enforceability as any paper original, and (B) waives
any argument, defense or right to contest the validity or enforceability of the Loan Documents based solely on the lack of paper original
copies of any Loan Documents, including with respect to any signature pages thereto.
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Section 12.14. Obligations
with Respect to Loan Parties.
The obligations of Parent,
Holdings and the Borrower to direct or prohibit the taking of certain actions by the other Loan Parties as specified herein shall be absolute
and not subject to any defense Parent, Holdings or the Borrower may have that Parent, Holdings or the Borrower does not control such Loan
Parties.
Section 12.15. Independence
of Covenants.
All covenants hereunder shall
be given in any jurisdiction independent effect so that if a particular action or condition is not permitted by any of such covenants,
the fact that it would be permitted by an exception to, or be otherwise within the limitations of, another covenant shall not avoid the
occurrence of a Default or an Event of Default if such action is taken or condition exists.
Section 12.16. Limitation
of Liability.
None of the Administrative
Agent or any Lender, or any of their respective Related Parties shall have any liability with respect to, and Parent, Holdings and the
Borrower hereby waives, releases, and agrees not to sue any of them upon, any claim for any special, indirect, incidental, or consequential
damages suffered or incurred by Parent, Holdings or the Borrower in connection with, arising out of, or in any way related to, this Agreement,
any of the other Loan Documents or the Fee Letter, or any of the transactions contemplated by this Agreement or any of the other Loan
Documents. Each of Parent, Holdings and the Borrower hereby waives, releases, and agrees not to sue the Administrative Agent or any Lender
or any of the Administrative Agent’s or any Lender’s Affiliates, officers, directors, employees, attorneys, or agents for
punitive damages in respect of any claim in connection with, arising out of, or in any way related to, this Agreement, any of the other
Loan Documents, the Fee Letter, or any of the transactions contemplated by this Agreement or financed hereby.
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Section 12.17. Entire
Agreement.
This Agreement, the Notes,
the other Loan Documents and the Fee Letter embody the final, entire agreement among the parties hereto and supersede any and all prior
commitments, agreements, representations, and understandings, whether written or oral, relating to the subject matter hereof and thereof
and may not be contradicted or varied by evidence of prior, contemporaneous, or subsequent oral agreements or discussions of the parties
hereto. To the extent any term of this Agreement is inconsistent with a term of any other Loan Document to which the parties of this Agreement
are party, the term of this Agreement shall control to the extent of such inconsistency. There are no oral agreements among the parties
hereto.
Section 12.18. Construction.
The Administrative Agent,
each Loan Party party hereto and each Lender acknowledge that each of them has had the benefit of legal counsel of its own choice and
has been afforded an opportunity to review this Agreement and the other Loan Documents with its legal counsel and that this Agreement
and the other Loan Documents shall be construed as if jointly drafted by the Administrative Agent, the Loan Parties party hereto and each
Lender.
Section 12.19. Headings.
The paragraph and section
headings in this Agreement are provided for convenience of reference only and shall not affect its construction or interpretation.
Section 12.20. LIABILITY
OF TRUSTEES, ETC.
THE PARTIES HERETO ACKNOWLEDGE
AND AGREE AS FOLLOWS:
THE AMENDED AND RESTATED DECLARATION
OF TRUST ESTABLISHING OFFICE PROPERTIES INCOME TRUST, DATED JUNE 8, 2009, AS AMENDED AND SUPPLEMENTED, AS FILED WITH THE STATE DEPARTMENT
OF ASSESSMENTS AND TAXATION OF MARYLAND, PROVIDES THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF OFFICE PROPERTIES INCOME
TRUST SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, OFFICE PROPERTIES INCOME
TRUST. ALL PERSONS DEALING WITH OFFICE PROPERTIES INCOME TRUST, IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF OFFICE PROPERTIES INCOME
TRUST FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION. THE PROVISIONS OF THIS SECTION SHALL NOT LIMIT ANY OBLIGATIONS
OF ANY LOAN PARTY OTHER THAN PARENT.
150
Section 12.21. Acknowledgement
and Consent to Bail-In of Affected Financial Institutions.
Notwithstanding anything to
the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges
that any liability of any Affected Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may
be subject to the Write-Down and Conversion powers of an the applicable Resolution Authority and agrees and consents to, and acknowledges
and agrees to be bound by:
(a) the
application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which
may be payable to it by any party hereto that is an Affected Financial Institution; and
(b) the
effects of any Bail-In Action on any such liability, including, if applicable:
(i) a
reduction in full or in part or cancellation of any such liability;
(ii) a
conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution,
its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments
of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document;
or
(iii) the
variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of the applicable Resolution
Authority.
Section 12.22. No
Novation; Successor Borrower.
(a) Existing
Credit Agreement. Upon satisfaction of the conditions precedent set forth in Sections 5.1 and 5.2 of this Agreement,
this Agreement and the other Loan Documents shall exclusively control and govern the mutual rights and obligations of the parties hereto
with respect to the Existing Credit Agreement, and the Existing Credit Agreement shall be amended, restated and superseded in all respects,
in each case, on a prospective basis only. The “Second Amended and Restated” title of this Agreement and the amendment and
restatement contemplated hereby is solely for administrative convenience, and no loans or commitments under the Existing Credit Agreement
remain outstanding immediately following the effectiveness of this Agreement.
(b) NO
NOVATION. THE PARTIES DO NOT INTEND THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY TO BE, AND THIS AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED HEREBY SHALL NOT BE CONSTRUED TO BE, A NOVATION OF ANY OF THE OBLIGATIONS OWING BY THE OUTGOING BORROWER UNDER OR IN CONNECTION
WITH THE EXISTING CREDIT AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS (AS DEFINED IN THE EXISTING CREDIT AGREEMENT) WHICH BY THEIR EXPRESS
TERMS SURVIVE THE TERMINATION OF THE EXISTING CREDIT AGREEMENT AND/OR THE PAYMENT IN FULL OF PRINCIPAL, INTEREST AND ALL OTHER AMOUNTS
PAYABLE THEREUNDER.
(c) Successor
Borrower.
(i) OPI
WF Borrower, immediately, automatically and without any further action, effective as of the Effective Date, hereby accepts and assumes
all obligations and liabilities as the Borrower under the Loan Documents (the “Borrower Assumption”). OPI WF Borrower
hereby waives to the fullest extent permitted by law, and agrees not to assert, any defense, whether arising in connection with or in
respect of OPI WF Borrower’s assumption of the Obligations and hereby agrees that its liabilities and obligations under the Loan
Documents as Borrower thereunder are irrevocable, absolute and unconditional and shall not be discharged as a result of or otherwise affected
by the invalidity or unenforceability of any obligation of the Outgoing Borrower under the Existing Credit Agreement or of Parent or any
other Loan Party under any Loan Document or any other agreement or instrument relating thereto (including any amendment, consent or waiver
thereto).
151
(ii) The
parties acknowledge that, automatically upon effectiveness of the Borrower Assumption on the Effective Date, the Outgoing Borrower shall
be released from liability as “Borrower” under the Loan Documents (the “Borrower Release”); provided, however,
that notwithstanding the Borrower Release or anything herein to the contrary, (i) the Borrower Release shall in no way affect, terminate
or otherwise limit any obligations and indemnities of the Outgoing Borrower under the Existing Credit Agreement and the other “Loan
Documents” (as defined in the Existing Credit Agreement) prior to giving effect to this Agreement that by their express terms survive
the termination thereof and the payment in full of principal, interest and all other amounts payable thereunder, and (ii) nothing
in this Section 12.22(c) shall affect, amend, limit or otherwise impair the obligations (contingent or otherwise) of
Parent under this Agreement and the other Loan Documents.
Section 12.23. Acknowledgement
Regarding Any Supported QFCs.
To the extent that the Loan
Documents provide support, through a guarantee or otherwise, for a Derivatives Contract or any other agreement or instrument that is a
QFC (such support, “QFC Credit Support” and each such QFC a “Supported QFC”), the parties acknowledge
and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance
Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder,
the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions
below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the
State of New York and/or of the United States or any other state of the United States):
In the event a Covered Entity
that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution
Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such
Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such
Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the
Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the
United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject
to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported
QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than
such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed
by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that
rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect
to a Supported QFC or any QFC Credit Support.
152
Section 12.24. Stamp, Intangible
and Recording Taxes.
Subject to the limitations
set forth in Section 3.10, the Borrower will pay or cause to be paid any and all stamp, excise, intangible, registration,
recordation and similar taxes, fees or charges and shall indemnify the Administrative Agent and each Lender against any and all liabilities
with respect to or resulting from any delay in the payment or omission to pay any such taxes, fees or charges, which may be payable or
determined to be payable in connection with the execution, delivery, recording, performance or enforcement of this Agreement, the Notes
and any of the other Loan Documents, the amendment, supplement, modification or waiver of or consent under this Agreement, the Notes or
any of the other Loan Documents or the perfection of any rights or Liens under this Agreement, the Notes or any of the other Loan Documents.
[Signatures on Following Pages]
153
[Signature
Pages, Schedules and Exhibits Intentionally Omitted]
ANNEX
I
COLLATERAL
PROPERTY DILIGENCE
1. An
executive summary of the Property including the following information relating to such Property: (a) a description of such Property,
and (b) the current projected capital plans and, if applicable, current renovation plans for such Property;
2. An
operating statement for such Property audited or certified by a representative of Parent as being true and correct in all material respects
and prepared in accordance with GAAP for the previous three (3) fiscal years; provided that, with respect to any period during which
such Property was owned by a Subsidiary of Parent for less than three (3) years, such information shall only be required to be delivered
to the extent reasonably available to Parent and such certification may be based upon the best of Parent’s knowledge; provided,
further, that if such Property has been operating for less than three (3) years, Parent shall provide such projections and other
information concerning the anticipated operation of such Property as the Administrative Agent may reasonably request;
3. All
Security Documents for such Property;
4. Copies
of all documents of record reflected in Schedule A and Schedule B of the commitment or preliminary report for the applicable Title Policy
and a copy of the most recent real estate tax bill and notice of assessment;
5. A
Title Policy for such Property insuring the Lien of the applicable Security Instrument;
6. An
opinion of counsel in the jurisdiction in which such Property is located;
7. A
survey of such Property certified by a surveyor licensed in the applicable jurisdiction to have been prepared in accordance with the
then effective Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys;
8. Receipt
of a completed standard flood hazard determination for such Property and if such Property is located in a FEMA-designated special flood
hazard area, evidence of the Borrower’s receipt of required notices and adequate flood insurance;
9. An
Appraisal of such Property addressed to the Administrative Agent or on which the Administrative Agent and the Lenders are expressly permitted
to rely pursuant to a reliance letter addressed to the Administrative Agent and the Lenders;
10. A
“Phase I” environmental assessment of such Property, which report (a) has been prepared by an environmental engineering
firm acceptable to the Administrative Agent and (b) complies with the requirements contained in the Administrative Agent’s
guidelines adopted from time to time by the Administrative Agent to be used in its lending practice generally and any other environmental
assessments or other reports relating to such Property, including, without limitation, any “Phase II” environmental assessment
prepared or recommended by such environmental engineering firm to be prepared for such Property;
11. A
property condition report for such Property prepared by a firm or firms acceptable to the Administrative Agent;
12. To
the extent requested by the Administrative Agent in its reasonable discretion, seismic reports and such other reports as are usual and
customary for secured real estate loans or similar properties in the jurisdiction in which such Property is located, in each case, commissioned
by the Administrative Agent in the name of the Administrative Agent, its successors and assigns;
13. If
available, final certificates of occupancy and any other Governmental Approvals relating to such Property;
14. A
property zoning report indicating that such Property complies with, or is legal nonconforming with respect to, applicable zoning and
land use laws;
15. Copies
of (a) all Material Contracts relating to the use, occupancy, operation, maintenance, enjoyment or ownership of such Property, if
any, (b) all Leases with respect to such Property as requested by the Administrative Agent, and (c) any other franchises, leases
or material operating agreements with respect to such Property;
16. UCC,
tax, judgment, litigation, bankruptcy and lien search reports with respect to such Property and the Guarantor owning such Property in
all necessary or appropriate jurisdictions indicating that there are no Liens of record on such Property other than Permitted Liens described
in clauses (c), (g), (i) and (p) of the definition of that term;
17. Copies
of any applicable ground leases and estoppels from ground lessors for such Property;
18. Inspection
of such Property by the Administrative Agent and any Lender and their respective engineers and consultants as the Administrative Agent
or any such Lender may require;
19. Execution
and delivery of any state specific documents or waivers required and/or customary in connection with the execution of any Security Instrument,
including, but not limited to, anti-coercion statements, disclosure of confession of judgments, tax affidavits, recording tax orders
or other similar documents;
20. Copies
of all policies of insurance required by Section 7.5. including, without limitation, such evidence of flood insurance coverage (including
contents coverage, as applicable) as the Administrative Agent shall require;
21. Evidence
satisfactory to the Administrative Agent that the Borrower has taken all actions required under the Flood Laws and/or requested by the
Administrative Agent to assist in ensuring that each Lender is in compliance with the Flood Laws applicable to such Collateral Property;
and
22. Such
other documents, instruments, comfort letters, estoppels, subordination, nondisturbance and attornment agreements, consents, and other
agreements and information reasonably deemed necessary by the Administrative Agent (including any supplements to the Schedules hereto
with respect to such Property reasonably acceptable to the Administrative Agent).
ANNEX
II
SPE
REQUIREMENTS
A
Special Purpose Entity means a corporation, limited partnership or limited liability company which at all times prior to (since such
Person’s formation), on and after the Agreement Date:
1. was,
is and will be organized solely for the purpose of (a) in the case of the Borrower, owning and holding one hundred percent (100%)
of the Equity Interests of each Subsidiary Owner (other than the DC Subsidiary Owner), entering into the Loan Documents to which it is
a party and performing its obligations thereunder, and transacting lawful business that is incident, necessary and appropriate to accomplish
the foregoing, (b) in the case of Holdings, owning and holding one hundred percent (100%) of the Equity Interests of Borrower, entering
into the Loan Documents to which it is a party and performing its obligations thereunder, and transacting lawful business that is incident,
necessary and appropriate to accomplish the foregoing, (c) in the case of OPI WF Owner, owning and holding one hundred percent (100%)
of the Equity Interests of the DC Subsidiary Owner, acquiring, developing, owning, holding, selling, leasing, transferring, exchanging,
managing and operating one or more Collateral Properties (and no other Properties), entering into the Loan Documents to which it is a
party and performing its obligations thereunder, refinancing any such Collateral Property in connection with a permitted repayment of
the Obligations, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (d) in
the case of each other Subsidiary Owner, acquiring, developing, owning, holding, selling, leasing, transferring, exchanging, managing
and operating one or more Collateral Properties (and no other Properties), entering into the Loan Documents to which it is a party and
performing its obligations thereunder, refinancing any such Collateral Property in connection with a permitted repayment of the Obligations,
and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing;
2. has
not been, is not, and will not be engaged, in any business unrelated to (a) in the case of Holdings, ownership of the Equity Interests
of the Borrower and performance of its obligations under the Loan Documents to which it is a party, (b) in the case of the Borrower,
ownership of the Equity Interests of Subsidiary Owners and performance of its obligations under the Loan Documents to which it is a party,
(c) in the case of OPI WF Owner, (i) the acquisition, development, ownership, management or operation of Collateral Properties
and (ii) ownership of the Equity Interests of the DC Subsidiary Owner, and (d) in the case of each other Subsidiary Owner,
the acquisition, development, ownership, management or operation of Collateral Properties;
3. has
not had, does not have, and will not have, any assets other than (a) in the case of Holdings, the Equity Interests of the Borrower,
(b) in the case of the Borrower, the Equity Interests of Subsidiary Owners, (c) in the case of OPI WF Owner, (i) the Equity
Interests of the DC Subsidiary Owner and (ii) assets related to the Collateral Properties, and (d) in the case of each other
Subsidiary Owner, assets related to the Collateral Properties;
4. other
than as expressly permitted pursuant to Section 7.15(b) or 9.4, has not engaged in, sought or consented to, and will not engage
in, seek or consent to, any dissolution, winding up, liquidation, consolidation, merger, division, sale of all or substantially all of
its assets (unless such sale will result in the repayment in full of the Obligations), transfer of partnership or membership interests
(if such entity is a general partner in a limited partnership or a member in a limited liability company) or amendment of its limited
partnership agreement, articles of incorporation, articles of organization, certificate of formation or operating agreement (as applicable)
with respect to the matters set forth in this definition and has not been the product of, the subject of or otherwise involved in, in
each case, any division;
5. if
such entity is a limited partnership, has had, now has, and will have as its only general partners, Special Purpose Entities each of
which (x) is a corporation or single-member Delaware limited liability company or multimember Delaware limited liability company
treated as a single member limited liability company that complies with the requirements set forth in subparagraph (8) hereof, (y) has
two Independent Managers, and (z) holds a direct interest as general partner in the limited partnership of not less than one-half-of-one
percent (0.5%) (or one-tenth-of-one percent (0.1%,) if the limited partnership is a Delaware entity);
6. if
such entity is a corporation, has had, now has and will have at least two (2) Independent Managers, and has not caused or allowed,
and will not cause or allow, the board of directors of such entity to take (x) any action, or allow such entity to become the subject
of a proceeding, under any Debtor Relief Law or (y) any other Material Action with respect to itself or any action requiring the
unanimous affirmative vote of one hundred percent (100%) of the members of its board of directors, in each case, unless the two (2) Independent
Managers shall have participated in such vote and shall have voted in favor of such action;
7. if
such entity is a limited liability company with more than one member, has had, now has and will have at least one member that is a Special
Purpose Entity (x) that is a corporation (y) that has at least two (2) Independent Managers, and (z) that directly
owns at least one-half-of-one percent (0.5%) of the equity of the limited liability company (or one-tenth-of-one percent (0.1%) if the
limited liability company is a Delaware entity);
8. if
such entity is a limited liability company with only one member, has been, now is, and will be a limited liability company organized
in the State of Delaware that (x) has at least two (2) Independent Managers, (y) has not caused or allowed, and will not
cause or allow the members or managers of such entity to take any action, or allow such entity to become the subject of a proceeding,
under any Debtor Relief Law or take any other Material Action, as applicable, in each case unless the two (2) Independent Managers
then serving as managers of the company shall have consented in writing to such action, and (z) has and shall have either (A) a
member which owns no economic interest in the company, has signed the company’s limited liability company agreement and has no
obligation to make capital contributions to the company, or (B) two (2) natural persons or one entity that is not a member
of the company, that has signed its limited liability company agreement and that, under the terms of such limited liability company agreement
becomes a member of the company immediately prior to the withdrawal or dissolution of the last remaining member of the company;
9. has
been, is and intends to remain solvent and has paid and shall pay its debts and liabilities from its then available assets (including
a fairly allocated portion of any personnel and overhead expenses that it shares with any Affiliate) from its assets as the same shall
become due, and has maintained and shall maintain adequate capital for the normal obligations reasonably foreseeable in a business of
its size and character and in light of its contemplated business operations (provided, however, the forgoing shall not require any shareholder,
partner, or member of such entity, as applicable, to make additional capital contributions to such entity);
10. has
not failed, and will not fail, to correct any known misunderstanding regarding the separate identity of such entity and has not and shall
not identify itself as a division of any other Person;
11. has
maintained and will maintain its accounts, books and records separate from any other Person and has filed and will file its own Tax returns,
except to the extent that (x) it has been or is required to file consolidated Tax returns by law or (y) it is treated as a
tax-disregarded entity not required to file tax returns under applicable law, and will pay any Taxes required to be paid by applicable
law;
12. has
maintained and will maintain its own records, books, resolutions and agreements;
13. (a) has
not commingled, and will not commingle, its funds or assets with those of any other Person and (b) has not participated and will
not participate in any cash management system with any other Person;
14. has
held and will hold its assets in its own name;
15. has
conducted and shall conduct its business in its name or in a name franchised or licensed to it by an entity other than an Affiliate of
itself or of the Borrower, except for business conducted on behalf of itself by another Person under a business management services agreement
that is on commercially reasonable terms, so long as the manager, or equivalent thereof, under such business management services agreement
holds itself out as an agent of the Borrower;
16. has
maintained and will maintain its books, bank accounts, balance sheets, financial statements, accounting records and other entity documents
separate from any other Person and has not permitted, and will not permit, its assets to be listed as assets on the financial statement
of any other entity except as required by GAAP; provided, however, that appropriate notation shall be made on any such consolidated statements
to indicate its separateness from such Affiliate and to indicate that its assets and credit are not available to satisfy the debt and
other obligations of such Affiliate or any other Person and such assets shall be listed on its own separate balance sheet;
17. has
paid and will pay its own liabilities and expenses, including the salaries of its own employees, out of its own funds and assets, and
has maintained and will maintain a sufficient number of employees in light of its contemplated business operations (provided, however,
the foregoing shall not require any shareholder, partner or member of such entity, as applicable, to make additional capital contributions
to such entity);
18. has
observed and will observe all partnership, corporate or limited liability company formalities, as applicable;
19. has
had no and will have no Indebtedness (including loans, whether or not such loans are evidenced by a written agreement) other than, (A) Indebtedness
arising under the Loan Documents and (B) such other liabilities that are expressly permitted pursuant to this Agreement (including
Permitted Junior Debt);
20. except
as provided in this Agreement, has not assumed or guaranteed or become obligated for, and will not assume or guarantee or become obligated
for, the debts of any other Person and has not held out and will not hold out its credit as being available to satisfy the obligations
of any other Person except as permitted or required pursuant to this Agreement (including guarantees of Permitted Junior Debt);
21. has
not acquired and will not acquire obligations or securities of its partners, members or shareholders or any other Affiliate;
22. has
allocated and will allocate, fairly and reasonably, any overhead expenses that are shared with any Affiliate, including, but not limited
to, paying for shared office space and services performed by any employee of an Affiliate;
23. has
maintained and used, now maintains and uses, and will maintain and use, separate stationery, invoices and checks bearing its name, which
stationery, invoices and checks utilized by the Special Purpose Entity or utilized to collect its funds or pay its expenses have borne,
and shall bear its own name and have not borne and shall not bear the name of any other entity unless such entity is clearly designated
as being the Special Purpose Entity’s agent;
24. except
pursuant to the Loan Documents including, without limitation, any prior loans secured by any Collateral Property each of which has been
repaid in full, has not pledged and will not pledge its assets for the benefit of any other Person;
25. has
held itself out and identified itself, and will hold itself out and identify itself, as a separate and distinct entity under its own
name or in a name franchised or licensed to it by an entity other than an Affiliate of the Borrower and not as a division or part of
any other Person, except for services rendered under a business management services agreement with an Affiliate that complies with the
terms contained in clause (26) of this Annex II, so long as the manager, or equivalent thereof, under such business management services
agreement holds itself out as an agent of the Borrower;
26. has
maintained and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify
its individual assets from those of any other Person;
27. has
not made and will not make loans or advances to any Person, own or acquire any stock or securities of any Person (except investments
permitted under the Loan Documents), or hold evidence of indebtedness issued by any other Person (other than cash and investment-grade
securities issued by an entity that is not an Affiliate of or subject to common ownership with such entity);
28. has
not identified and will not identify its partners, members or shareholders, or any Affiliate of any of them, as a division or part of
it, and has not identified itself, and shall not identify itself, as a division of any other Person;
29. other
than capital contributions and distributions permitted under the terms of its organizational documents, has not entered into or been
a party to, and will not enter into or be a party to, any transaction with its partners, members, shareholders or Affiliates except (x) in
the ordinary course of its business and on terms which are intrinsically fair, commercially reasonable and are no less favorable to it
than would be obtained in a comparable arm’s-length transaction with an unrelated third party, (y) in connection with a written,
enforceable agreement and (z) in connection with any Permitted Junior Debt;
30. [reserved];
31. if
such entity is a corporation, shall consider the interests of its creditors in connection with all corporate actions;
32. does
not and will not have any of its obligations guaranteed by any Affiliate except as provided in the Loan Documents or any Permitted Junior
Debt (or documents evidencing prior loans secured by any Collateral Property, each of which has been repaid in full);
33. has
complied and will comply with all of the terms and provisions contained in its organizational documents and cause statements of facts
contained in its organizational documents to be and to remain true and correct;
34. has
not permitted and shall not permit any Affiliate or constituent party independent access to its bank accounts except as permitted under
the Loan Documents;
35. is
not now, nor has it ever been, party to any lawsuit, arbitration, summons, or legal proceeding that is still pending or that resulted
in a judgment against it that has not been paid in full;
36. is
in compliance with all laws, regulations, and orders applicable to it and, except as otherwise disclosed in this Loan Agreement, has
received all permits necessary for it to operate;
37. is
not involved in any dispute with any taxing authority and has paid all taxes which it owes; and
38. has
no material contingent or actual obligations not related to (a) in the case of Holdings, its member interest in the Borrower, (b) in
the case of the Borrower, its member interests in Subsidiary Owners, (c) in the case of OPI WF Owner, its member interests in the
DC Subsidiary Owner, (d) the Loan Documents or (e) any Permitted Junior Debt.
As
used herein, the following terms have the following meanings:
“Approved
IM Provider” shall mean (i) any of the following unless any of the same are ever disapproved by either S&P or Moody’s:
CT Corporation, Corporation Service Company, National Registered Agents, Inc., Wilmington Trust Company, Stewart Management Company
and Lord Securities Corporation and (ii) any other national provider of Independent Managers that is approved in writing by the
Administrative Agent.
“Independent
Manager” means an individual who has prior experience as an independent director, independent manager or independent member with
at least three (3) years of employment experience as an independent manager to a company or a corporation in the business of owning
and operating commercial properties similar in type and quality to the Collateral Properties and who is employed by, in good standing
with and engaged by such Special Purpose Entity in connection with, in each case, an Approved IM Provider, in each case that is not an
Affiliate of Parent or any Subsidiary of Parent and that provides professional Independent Managers and other corporate services in the
ordinary course of its business, and which individual is duly appointed as an Independent Manager and is not, and has never been, and
will not while serving as Independent Manager be, any of the following:
(a) a
member, partner, equityholder, manager, director, officer or employee of such Special Purpose Entity, any member, partner or equityholder
thereof, or any of their respective equityholders or Affiliates (other than as an Independent Manager of such Special Purpose Entity
or an Affiliate thereof that does not own a direct or indirect ownership interest in such Special Purpose Entity and that is required
by a creditor to be a single purpose bankruptcy remote entity, provided that such Independent Manager is employed by a company that routinely
provides professional Independent Managers or managers in the ordinary course of its business);
(b) a
customer of, or supplier to, or other Person who derives any of its purchases or revenues from its activities with, Parent, such Special
Purpose Entity or any of their respective shareholders, partners, members, subsidiaries or Affiliates;
(c) a
member of the immediate family of any such shareholder, officer, director, partner, member, employee, supplier, customer or other Person;
or
(d) a
Person who Controls or is under common Control with any such shareholder, officer, director, partner, member, employee supplier, customer
or other Person.
“Material
Action” shall mean, with respect to any Person, to institute proceedings to have such Person be adjudicated bankrupt or insolvent,
or consent to the institution of bankruptcy or insolvency proceedings against such Person or file a petition seeking, or consent to,
reorganization or relief with respect to such Person under any applicable federal, state, local or foreign law relating to bankruptcy,
or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of such Person or
a substantial part of its property, or take any action to consolidate or merger such Person with or into any other Person, or take any
action to dissolve or liquidate such Person, or make any general assignment for the benefit of creditors of such Person, or admit in
writing such Person’s inability to pay its debts generally as they become due, or declare or effectuate a moratorium on the payment
of any obligation.
Notwithstanding
anything in this Annex II to the contrary, solely in the case of the DC Subsidiary Owner, the requirements set forth herein shall only
apply from and after the Agreement Date.
EX-10.4 — EXHIBIT 10.4
EX-10.4
Filename: tm2618043d2_ex10-4.htm · Sequence: 9
Exhibit 10.4
Execution Version
PREEMPTIVE RIGHTS AGREEMENT
THIS PREEMPTIVE RIGHTS AGREEMENT
(this “Agreement”), dated as of June 17, 2026, is by and among Office Properties Income Trust, a Maryland real
estate investment trust (the “Company”), and each of the shareholders of the Company listed on Schedule 1 hereto
(each a “Shareholder” and, collectively, the “Shareholders”).
WHEREAS, on October 30,
2025, the Company and its affiliated debtors (collectively, the “Debtors”) filed voluntary petitions for relief under
chapter 11 of title 11 of the United States Code in the United States Bankruptcy Court for the Southern District of Texas (the “Bankruptcy
Court”);
WHEREAS, on April 21,
2026, the Debtors filed the Fourth Amended Joint Chapter 11 Plan of Reorganization of Office Properties Income Trust and
its Debtor Affiliates [Docket No. 1223] (as may be amended, modified, or supplemented from time to time, the “Plan”);
WHEREAS, on April 22,
2026, the Bankruptcy Court entered an order confirming the Plan, and the Debtors emerged from their chapter 11 cases on the date first
written above (the “Effective Date”);
WHEREAS, pursuant to
the Plan, the Company will issue or cause to be issued, on or as soon as reasonably practicable after the Effective Date, common shares
of beneficial interest of the Company, $.01 par value per share (“Common Shares”);
WHEREAS, as of the
Effective Date, each of the Shareholders “beneficially owns” (as such term is defined and determined pursuant to Rule 13d-3
promulgated under the Exchange Act (as defined below)) at least 1.00% of the outstanding Common Shares (without duplication with any other
Shareholder);
WHEREAS, the Company
desires to provide for certain rights and obligations with respect to the Shareholders and the Common Shares beneficially owned thereby
as provided for in that certain term sheet describing the principal terms of the settlement by and among the Debtors, the Committee, the
September 2029 Ad Hoc Group, and RMR (each as defined in the Plan) with regards to the Plan, which term sheet was incorporated into
the Plan and filed with the Bankruptcy Court; and
WHEREAS, all acts have
been done and performed which are necessary to authorize the execution and delivery of this Agreement.
NOW, THEREFORE, in
consideration of the mutual agreements herein contained, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.1. Definition
of Terms. As used in this Agreement, the following capitalized terms shall have the following respective meanings:
(a) “Affiliate”
has the meaning set forth in Rule 12b-2 of the Exchange Act.
(b) “Board
of Trustees” means the Board of Trustees of the Company.
(c) “Business
Day” means any day other than a Saturday, Sunday or any day on which the Federal Reserve Bank of New York is authorized or required
by law or executive order to close or be closed.
(d) “Common
Shares” has the meaning set forth in the Recitals, and shall include any successor security as a result of any recapitalization,
reorganization, reclassification, or similar transaction involving the Company.
(e) “Convertible
Securities” means any equity securities convertible into or exchangeable for Common Shares, but excluding Options.
(f) “Effective
Date” has the meaning set forth in the Recitals.
(g) “Equity
Securities” means the Common Shares and any Options or Convertible Securities and excludes all Excluded Issuances.
(h) “Exchange
Act” means the Securities Exchange Act of 1934, as amended.
(i) “Excluded
Issuances” means any issuance or sale by the Company after the Effective Date of (a) Common Shares issued upon the exercise
of any New Warrants (as defined in the Plan); (b) Common Shares issued directly or upon the exercise or settlement of Options, restricted
shares, or other equity-based awards to directors, officers, trustees, employees, managers, or consultants of the Company in connection
with their service as trustees, directors or managers of the Company, their employment by the Company, or their retention as consultants
by the Company, in each case as authorized by the Board of Trustees of the Company; (c) Common Shares or Convertible Securities issued
as consideration in any business combination or acquisition by the Company or its Affiliates with any third party, whether by merger,
consolidation, purchase of assets, or otherwise; or (d) Common Shares, Options or Convertible Securities issued to a debt financing
source as an incentive in connection with providing the contemplated debt financing (other than in connection with an issuance or sale
subject to Section 2.1(f)).
(j) “Governmental
Authority” means any (i) government, (ii) governmental or quasi-governmental authority of any nature (including any
governmental agency, branch, department, official, or entity and any court or other tribunal), or (iii) body exercising, or entitled
to exercise, any administrative, executive, judicial, legislative, police, regulatory, or taxing authority or power of any nature, in
each case, whether federal, state, local, municipal, foreign, supranational, or of any other jurisdiction.
(k) “Law”
means all laws, statutes, rules, regulations, codes, injunctions, decrees, orders, ordinances, registration requirements, disclosure requirements,
and other pronouncements having the effect of law of the United States, any foreign country or any domestic or foreign state, county,
city, or other political subdivision or of any Governmental Authority.
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(l) “Options”
means any warrants or other rights or options to subscribe for, purchase, or otherwise receive Common Shares or Convertible Securities.
(m) “Person”
means any individual, firm, corporation, partnership, limited partnership, limited liability company, association, indenture trustee,
organization, joint stock company, joint venture, estate, trust, governmental unit or any political subdivision thereof, or any other
entity (as such term is defined in the Bankruptcy Code).
(n) “Plan”
has the meaning set forth in the Recitals.
(o) “Preemptive
Right” has the meaning set forth in Section 2.1(a) hereof.
(p) “Preemptive
Right Notice” has the meaning set forth in Section 2.1(a) hereof.
(q) “Preemptive
Right Percentage Interest” has the meaning set forth in Section 2.1(a) hereof.
(r) “Proposed
Securities” has the meaning set forth in Section 2.1(a) hereof.
(s) “Requisite
Holders” means Shareholders holding a majority of the Common Shares held by all Shareholders then party to this Agreement.
(t) “SEC”
means the Securities and Exchange Commission or any other federal agency at the time administering the Securities Act or the Exchange
Act.
(u) “Securities
Act” means the Securities Act of 1933, as amended.
(v) “September 2029
Ad Hoc Group SteerCo” means Helix Partners Management LP and Redwood Capital Management LLC, in each case, on behalf of certain
funds and accounts which they manage or advise.
Section 1.2. Rules of
Construction.
(a) The
singular form of any word used herein, including the terms defined in Section 1.1 hereof, shall include the plural, and vice
versa.
(b) The
use herein of a word of any gender shall include correlative words of all genders.
(c) The
words “include,” “includes,” and “including” shall be deemed to be followed by the words “without
limitation.”
(d) Unless
otherwise specified, references to Articles, Sections, and other subdivisions of this Agreement are to the designated Articles, Sections,
and other subdivision of this Agreement as originally executed.
(e) The
word “or” when used in this Agreement is not exclusive.
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(f) References
to a party or the parties mean the parties to this Agreement, in each case, unless another agreement is specified.
(g) Unless
otherwise expressly indicated, any agreement, instrument, law, or statute defined or referred to in this Agreement means such agreement,
instrument, law, or statute as from time to time amended, restated, modified, or supplemented, including (in the case of agreements or
instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes, and any statute defined
or referred to in this Agreement shall include all rules and regulations promulgated under the same.
(h) References
to “day” or “days” are to calendar days, and whenever any action must be taken under this Agreement on or by a
day that is not a Business Day, then that action may be validly taken on or by the next day that is a Business Day.
(i) References
to a Person are also to its permitted successors and assigns and, in the case of such Persons that are individuals, such individual’s
heirs, executors, and administrators.
(j) In
the event that any claim is made by any Person relating to any conflict, omission, or ambiguity in this Agreement, no presumption or burden
of proof or persuasion shall be implied by virtue of the fact that this Agreement was prepared by or at the request of a particular Person
or such Person’s counsel.
(k) The
words “hereof,” “herein,” “hereunder,” and words of similar import refer to this Agreement as a whole.
(l) References
to “$” are to dollars in lawful currency of the United States of America.
ARTICLE II.
PREEMPTIVE
RIGHTS
Section 2.1. Preemptive
Rights.
(a) If
at any time following the Effective Date and prior to the termination of this Agreement in respect of a Shareholder under Section 3.10
hereof the Company proposes to issue and sell any Equity Securities in an offering not registered under the Securities Act (the “Proposed
Securities”), the Company shall deliver written notice (a “Preemptive Right Notice”) thereof to each Shareholder
describing the material terms of such Proposed Securities, the estimated amount of Proposed Securities to be issued, the estimated per
share purchase price therefor, the applicable Acceptance Period (defined below) and the estimated date of issuance of such Proposed Securities.
The Preemptive Right Notice shall also contain a request for each Shareholder to confirm the total number of Equity Securities beneficially
owned by each such Shareholder (without duplication with any other Shareholder) as of the Business Day prior to, and as of the date of,
the date of delivery the Preemptive Right Notice. Each Shareholder shall have the right (a “Preemptive Right”) to purchase
a portion of the Proposed Securities equal to up to the aggregate offering price of Proposed Securities proposed to be issued multiplied
by the relative proportion of Common Shares such Shareholder beneficially owns in the Company (without duplication with any other Shareholder)
(the “Preemptive Right Percentage Interest”), as of the Business Day prior to the date of delivery of the Preemptive
Right Notice and as confirmed in writing to the Company. Notwithstanding anything to the contrary herein, this Section 2.1
shall not apply to Excluded Issuances.
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(b) A
Shareholder must exercise such Preemptive Right (if it elects to) in writing within seven (7) Business Days following receipt of
the Preemptive Right Notice from the Company (the “Acceptance Period”); provided, however, that if the Company determines
in good faith that the proposed issuance requires an expedited timeline (including in the case of a private investment in public equity
transaction), the Acceptance Period shall be four (4) Business Days after such Shareholder’s receipt of the Preemptive Right
Notice. Any failure to exercise such Preemptive Right by a Shareholder in writing within the Acceptance Period (including any failure
to confirm such Shareholder’s beneficial ownership information described in the penultimate sentence of this Section 2.1(b))
shall be deemed a waiver of the Preemptive Right by such Shareholder in respect of the Proposed Securities referred to in the related
Preemptive Right Notice. Such written notice of the Shareholder’s election to exercise such Preemptive Right shall include the total
number of Equity Securities beneficially owned by each such Shareholder as of the Business Day prior to, and as of the date of, the date
of delivery of the Preemptive Right Notice. In the event a Shareholder’s beneficial ownership of Equity Securities is reduced to
below the 1.00% threshold described in Section 3.10 hereof within the fifteen (15) Business Day period following delivery
of written notice of the Shareholder’s election to exercise such Preemptive Right, such Shareholder must promptly notify the Company
in writing of the change in its beneficial ownership information on the same date of such change.
(c) To
the extent that the Company proposes to issue, in an offering to which Section 2.1(a) applies that does not include any
Excluded Issuance, more than one type of Equity Security that are coupled or combined in such offering, then to exercise the Preemptive
Rights hereunder, a Shareholder shall be required to purchase all such Equity Securities as a whole (on the same terms and conditions)
in accordance with the portions described in Section 2.1(a) and will not be given the opportunity to purchase fewer than
all of the Equity Securities subject to such offering (and, for the avoidance of doubt, shall not be permitted to participate in the portion
of any such offering that constitutes an Excluded Issuance hereunder).
(d) Upon
the expiration of the Acceptance Period, the Company will be free to sell such Proposed Securities that the Shareholders have not elected
to purchase during the 90 days following such expiration (the “Sale Period”) on terms and conditions not more favorable
in any material respect (as determined in good faith by the Company), and at a price that is not more favorable, to the purchasers thereof
than those offered to the Shareholders pursuant to this Section 2.1. Any Proposed Securities offered or sold by the Company
after the Sale Period must be reoffered to the Shareholders pursuant to this Section 2.1.
(e) The
election by a Shareholder not to exercise such Shareholder’s Preemptive Right under this Section 2.1 in any one instance
shall not affect such Shareholder’s right (other than in respect of a reduction in the Preemptive Right Percentage Interest of such
Shareholder) as to any subsequent proposed issuance subject to this Section 2.1.
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(f) In
addition to the foregoing, if the Company at any time after the Effective Date and on or prior to the first anniversary of the Effective
Date and prior to the termination of this Agreement in respect of a Shareholder under Section 3.10 hereof proposes to sell
and issue (or enter into) any debt securities or evidences of indebtedness for borrowed money to, or receive any loans from, any members
of the September 2029 Ad Hoc Group SteerCo, then such debt securities, evidences of indebtedness for borrowed money, or loans shall
be subject to the preemptive rights requirements and procedures set forth in this Section 2.1 as if they were “Proposed
Securities” for purposes of this Section 2.1.
(g) Each
Shareholder hereby acknowledges that it understands that: (a) the delivery of a Preemptive Right Notice may contain or constitute
material non-public information concerning the Company; and (b) trading in the Company’s securities while in possession of
material non-public information or communicating that information to any other person who trades in such securities could subject the
Shareholder and/or the Company to liability under the U.S. federal and state securities laws, and the rules and regulations promulgated
thereunder, including Section 10(b) of the Securities Exchange Act of 1934, as amended, and Rule 10b-5 promulgated thereunder.
Each Shareholder agrees that it and its Affiliates will not trade, any it will instruct its Affiliates not to trade, in the Company’s
securities while in possession of material non-public information until the Shareholder and its Affiliates can do so in compliance with
all applicable laws.
ARTICLE III.
MISCELLANEOUS
PROVISIONS
Section 3.1. Binding
Effects; Benefits. This Agreement shall inure to the benefit of and shall be binding upon the Company and the Shareholders and their
respective heirs, legal representatives, successors, and assigns. Nothing in this Agreement, expressed or implied, is intended to or shall
confer on any person other than the Company and the Shareholders, or their respective heirs, legal representatives, successors, or assigns,
any rights, remedies, obligations, or liabilities under or by reason of this Agreement.
Section 3.2. Notices.
All notices, requests, consents, and other communications hereunder to any party shall be deemed to be sufficient if delivered in writing
in person, by electronic mail or facsimile, or sent by nationally-recognized overnight courier or first class registered or certified
mail, return receipt requested, postage prepaid, addressed to such party at the address set forth below or at such other address as may
hereafter be designated in writing by such party to the other parties. All such notices, requests, consents and other communications shall
be delivered as follows:
if to the Company, to:
Office Properties Income Trust
Two Newton Place, 255 Washington Street, Suite 300
Newton, MA 02458
Attention: Yael Duffy and Brian Donley
Email: YDuffy@rmrgroup.com and BDonley@rmrgroup.com
6
with copies (which shall not constitute notice) to:
Latham & Watkins LLP
1271 Avenue of the Americas
New York, NY 10020
Attention: Anu Yerramalli and Christopher Clark
Email: anu.yerramalli@lw.com and christopher.clark@lw.com
if to Shareholders, at the addresses appearing
in the records of the transfer agent or registrar for the Common Shares.
All such notices, requests, consents, and other
communications shall be deemed to have been received (i) in the case of personal delivery or delivery by facsimile or electronic
mail, on the date of such delivery, (ii) in the case of dispatch by nationally recognized overnight courier, on the next Business
Day following such dispatch, and (iii) in the case of mailing, on the fifth (5th) Business Day after the posting thereof.
Section 3.3. Persons
Having Rights under this Agreement. Nothing in this Agreement expressed and nothing that may be implied from any of the provisions
hereof is intended, or shall be construed, to confer upon, or give to, any person or corporation other than the parties hereto, any right,
remedy, or claim under or by reason of this Agreement or of any covenant, condition, stipulation, promise, or agreement hereof. No party
hereto may assign its rights and obligations hereunder without, in the case of the Company, the prior written consent of each Shareholder,
and, in the case of any Shareholder, the prior written consent of the Company. All covenants, conditions, stipulations, promises, and
agreements contained in this Agreement shall be for the sole and exclusive benefit of the parties hereto and their successors and assigns.
Section 3.4. Examination
of this Agreement. A copy of this Agreement shall be available at all reasonable times at an office designated for such purpose by
the Company for examination by the Shareholders.
Section 3.5. Counterparts.
This Agreement may be executed in any number of original or facsimile or electronic PDF counterparts and each of such counterparts shall
for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
Section 3.6. Effect
of Headings. The section headings herein are for convenience only and are not part of this Agreement and shall not affect the interpretation
hereof.
Section 3.7. Amendments.
(a) Subject
to Section 3.7(b) below, this Agreement may not be amended except in writing signed by the Company and the Shareholders.
(b) The
Company and the Shareholders may from time to time supplement or amend this Agreement as follows:
(i) without
the approval of any Shareholder in order to cure any ambiguity, manifest error or other mistake in this Agreement, or to correct or supplement
any provision contained herein that may be defective or inconsistent with any other provision herein, or to make any other provisions
in regard to matters or questions arising hereunder that the Company may deem necessary or desirable and that shall not adversely affect,
alter, or change the interests of the Shareholders in any material respect; or
7
(ii) with
the prior written consent of the Requisite Holders; provided, that the consent of each Shareholder adversely affected thereby shall
be required for any amendment that is disproportionately adverse to a Shareholder (relative to any other Shareholder).
(c) Any
amendment, modification, or waiver effected pursuant to and in accordance with the provisions of this Section 3.7 shall be
binding upon all Shareholders and the Company. In the event of any amendment, modification, or waiver, the Company shall give prompt notice
thereof to all Shareholders. Any failure of the Company to give such notice or any defect therein shall not, however, in any way impair
or affect the validity of any such amendment.
Section 3.8. Integration/Entire
Agreement. This Agreement is intended by the parties as a final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the Company and the Shareholders in respect of the subject matter contained herein. This
Agreement supersedes all prior agreements and understandings between the parties with respect to the matters contained herein.
Section 3.9. Governing
Law, Etc. This Agreement shall be deemed to be a contract made under the Laws of the State of Maryland and for all purposes shall
be governed by and construed in accordance with the Laws of such State. Each party hereto consents and submits to the exclusive jurisdiction
of the courts of the State of Maryland located in the City of Baltimore and of the U.S. federal courts located in Baltimore, Maryland
in connection with any action or proceeding brought against it that arises out of or in connection with, that is based upon, or that relates
to this Agreement or the transactions contemplated hereby; provided that nothing in this Section 3.10 shall limit or
restrict the exclusive jurisdiction retained by the Bankruptcy Court pursuant to Article XI of the Plan, including, without limitation,
the interpretation, implementation, or enforcement of the Plan or any Plan Supplement Document (as defined in the Plan). In connection
with any such action or proceeding in any such court, each party hereto hereby waives personal service of any summons, complaint, or other
process and hereby agrees that service thereof may be made in accordance with the procedures for giving notice set forth in Section 3.2
hereof. Each party hereto hereby waives any objection to jurisdiction or venue in any such court in any such action or proceeding and
agrees not to assert any defense based on forum non conveniens or lack of jurisdiction or venue in any such court in any such action
or proceeding.
Section 3.10. Termination.
This Agreement will terminate with respect to any Shareholder on such date that such Shareholder beneficially owns less than 1.00% of
the then-outstanding Common Stock (without duplication with any other Shareholder), and may otherwise be terminated with the consent
of the Company and the Requisite Holders. The provisions of this Article III shall survive any such termination. This Agreement
will also terminate in its entirety on such date on which it has been terminated with respect to each Shareholder as described above.
For the avoidance of doubt, any such termination shall be remain permanent and shall not be reinstated even if such Shareholder later
acquires Common Stock in an amount equal to or greater than 1.00% of the then-outstanding Common Stock.
8
Section 3.11. Waiver
of Trial by Jury. Each party hereto hereby irrevocably and unconditionally waives the right to a trial by jury in any action, suit,
counterclaim, or other proceeding (whether based on contract, tort, or otherwise) arising out of, connected with, or relating to this
Agreement and the transactions contemplated hereby.
Section 3.12. Severability.
In the event that any one or more of the provisions contained in this Agreement, or the application thereof in any circumstances, is held
invalid, illegal, or unenforceable, the validity, legality, and enforceability of any such provisions in every other respect and of the
remaining provisions contained herein shall not be affected or impaired thereby.
Section 3.13. Remedies.
The Company hereby agrees that, in the event that the Company violates any provisions of this Agreement (including the obligation to
deliver shares of Common Stock upon the exercise of any Preemptive Right in accordance with the terms hereof), the remedies at law available
to a Shareholder may be inadequate. In such event, any Shareholder shall have the right, in addition to all other rights and remedies
any of them may have, to seek specific performance and/or injunctive or other equitable relief to enforce the provisions of this Agreement.
Section 3.14. No
Inconsistent Agreements. The Company shall not, on or after the date hereof, and prior to the termination of this Agreement in its
entirety, enter into any agreement with respect to its securities which conflicts with the rights granted to the Shareholders in this
Agreement. The Company represents and warrants to the Shareholders that the rights granted hereunder do not in any way conflict with the
rights granted to holders of the Company’s securities under any other agreements. The Company shall not, by amendment of its articles
of incorporation, declaration of trust or bylaws, or through any reorganization, transfer of assets, consolidation, merger, dissolution,
issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to
be observed or performed hereunder by the Company, but will at all times in good faith assist in the carrying out of all the provisions
of this Agreement and in the taking of all such action as may be necessary in order to preserve each Shareholder’s Preemptive Right
hereunder.
Section 3.15. Confidentiality.
The Company and the Shareholders agree that personal, non-public Shareholder information, which is exchanged or received pursuant to
the negotiation or carrying out of this Agreement, shall remain confidential and shall not be voluntarily disclosed to any other person,
except as may be required by law, including, without limitation, pursuant to subpoenas from state or federal government authorities (e.g.,
in divorce and criminal actions), or pursuant to the requirements of the SEC.
[Signature Page Follows]
9
IN WITNESS WHEREOF, this Agreement has been duly
executed by the undersigned parties hereto as of the date first above written.
OFFICE PROPERTIES INCOME TRUST
By: /s/ Brian E. Donley
Name: Brian E. Donley
Title: Chief Financial Officer and Treasurer
[Intentionally Omitted], as a Shareholder
By:
Name:
Title:
[Signature Page to Preemptive Rights Agreement]
SCHEDULE 1
[Intentionally Omitted]
EX-99.1 — EXHIBIT 99.1
EX-99.1
Filename: tm2618043d2_ex99-1.htm · Sequence: 10
Exhibit 99.1
MATERIAL UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
The following summary of material United States
federal income tax considerations is based on existing law and is limited to investors who own our shares or the warrants we have issued
pursuant to the Fourth Amended Joint Chapter 11 Plan of Reorganization of Office Properties Income Trust and Its Debtor Affiliates, as
filed on April 21, 2026 with the United States Bankruptcy Court for the Southern District of Texas, or the Plan, as applicable, as investment
assets rather than as inventory or as property used in a trade or business. Holders of both our shares and warrants should apply this
summary separately to each type of interest except as otherwise provided in this summary. The summary does not discuss all of the particular
tax considerations that might be relevant to you if you are subject to special rules under federal income tax law, for example if you
are:
· a bank, insurance company or other financial institution;
· a regulated investment company or real estate investment trust, the latter
hereinafter referred to as a REIT;
· a subchapter S corporation;
· a broker, dealer or trader in securities or foreign currencies;
· a person who marks-to-market our shares or warrants, as applicable, for U.S.
federal income tax purposes;
· a U.S. holder (as defined below) that has a functional currency other than
the U.S. dollar;
· a person who acquires or owns our shares or warrants, as applicable, in connection
with employment or other performance of services;
· a person subject to alternative minimum tax;
· a person who acquires or owns our shares or warrants, as applicable, as part
of a straddle, hedging transaction, constructive sale transaction, constructive ownership transaction or conversion transaction, or as
part of a “synthetic security” or other integrated financial transaction;
· a person who owns 10% or more (by vote or value, directly or constructively
under the Internal Revenue Code of 1986, as amended, or the IRC) of any class of our shares;
· a U.S. expatriate;
· a non-U.S. holder (as defined below) whose investment in our shares or warrants,
as applicable, is effectively connected with the conduct of a trade or business in the United States;
· a nonresident alien individual present in the United States for 183 days
or more during an applicable taxable year;
1
· a “qualified shareholder” (as defined in Section 897(k)(3)(A)
of the IRC);
· a “qualified foreign pension fund” (as defined in Section 897(l)(2)
of the IRC) or any entity wholly owned by one or more qualified foreign pension funds;
· a non-U.S. holder that is a passive foreign investment company or controlled
foreign corporation;
· a person subject to special tax accounting rules as a result of their use
of applicable financial statements (within the meaning of Section 451(b)(3) of the IRC);
· a person that acquires our shares or warrants, as applicable, pursuant to
the Plan; or
· except as specifically described in the following summary, a trust, estate,
tax-exempt entity, governmental organization or foreign person.
The sections of the IRC that govern the federal
income tax qualification and treatment of a REIT and its shareholders are complex. This presentation is a summary of applicable IRC provisions,
related rules and regulations, and administrative and judicial interpretations, all of which are subject to change, possibly with retroactive
effect. Future legislative, judicial or administrative actions or decisions could also affect the accuracy of statements made in this
summary. We have not received a ruling from the U.S. Internal Revenue Service, or the IRS, with respect to any matter described in this
summary, and we cannot be sure that the IRS or a court will agree with all of the statements made in this summary. The IRS could, for
example, take a different position from that described in this summary with respect to our acquisitions, operations, valuations, restructurings
or other matters, which, if a court agreed, could result in significant tax liabilities for applicable parties. In addition, this summary
is not exhaustive of all possible tax considerations and does not discuss any estate, gift, state, local or foreign tax considerations.
For all these reasons, we urge you and any holder of or prospective acquiror of our shares or warrants, as applicable, to consult with
a tax advisor about the federal income tax and other tax consequences of the acquisition, ownership and disposition of our shares or warrants.
Our intentions and beliefs described in this summary are based upon our understanding of applicable laws and regulations that are in effect
as of the date of this Current Report on Form 8-K. If new laws or regulations are enacted which impact us directly or indirectly, we may
change our intentions or beliefs.
Your federal income tax consequences generally
will differ depending on whether or not you are a “U.S. holder.” For purposes of this summary, a “U.S. holder”
is a beneficial owner of our shares or warrants, as applicable, that is:
· an individual who is a citizen or resident of the United States, including
an alien individual who is a lawful permanent resident of the United States or meets the substantial presence residency test under the
federal income tax laws;
· an entity treated as a corporation for federal income tax purposes that is
created or organized in or under the laws of the United States, any state thereof or the District of Columbia;
2
· an estate the income of which is subject to federal income taxation regardless
of its source; or
· a trust if a court within the United States is able to exercise primary supervision
over the administration of the trust and one or more U.S. persons have the authority to control all substantial decisions of the trust,
or, to the extent provided in Treasury regulations, a trust in existence on August 20, 1996 that has elected to be treated as a domestic
trust;
whose status as a U.S. holder is not overridden by an applicable tax
treaty. Conversely, a “non-U.S. holder” is a beneficial owner of our shares or warrants, as applicable, that is not an entity
(or other arrangement) treated as a partnership for federal income tax purposes and is not a U.S. holder. References in this summary to
a “shareholder” refer particularly to a holder of our shares.
If any entity (or other arrangement) treated as
a partnership for federal income tax purposes holds our shares or warrants, as applicable, the tax treatment of a partner in the partnership
generally will depend upon the tax status of the partner and the activities of the partnership. Any entity (or other arrangement) treated
as a partnership for federal income tax purposes that is a holder of our shares or warrants, as applicable, and the partners in such a
partnership (as determined for federal income tax purposes) are urged to consult their own tax advisors about the federal income tax consequences
and other tax consequences of the acquisition, ownership and disposition of our shares or warrants.
Bankruptcy Reorganization
As anticipated in the discussion under “Business─Chapter
11 Bankruptcy Proceedings” in Part I, Item 1 of our Annual Report on Form 10-K for the fiscal year ended December 31, 2025, or our
Annual Report, we have emerged from a bankruptcy reorganization under chapter 11 of title 11, or Chapter 11, of the United States Code.
The reorganization has given rise to a number of material federal income tax issues for us, which may in turn affect our shareholders.
One effect of the reorganization is a material
reduction in our outstanding liabilities by us issuing our shares, our warrants and in some cases new issuances of our debt in exchange
for the existing liabilities of many classes of claimants. The aggregate value of the common shares, warrants and new debt we issued was
materially less than the balance of the liabilities extinguished in the exchanges. In general, relief of liabilities for less than our
adjusted issue price for such liabilities would result in our recognizing gross income from cancellation of debt, or COD. However, because
the COD income arose in the context of a bankruptcy reorganization, we are allowed to exclude the COD income from our gross income in
exchange for reductions in tax attributes that could give rise to future tax benefits. Given our circumstances, the COD income would in
general first reduce our accumulated net operating losses, or NOLs, dollar for dollar, and any remaining COD income not offset by the
reduction of NOLs would be applied to reduce the basis of our assets dollar for dollar. We may elect instead to offset the COD income
first against the basis of our depreciable assets, with any remaining COD income then reducing our NOLs, in each case dollar for dollar.
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With the consummation of the Plan, our shares that
were outstanding prior to the reorganization have been cancelled, and the new owners of our shares have for the most part received those
shares by surrendering debt claims against us. The resulting change in our share ownership constitutes an “ownership change”
for purposes of Section 382 of the IRC. At the time of the ownership change, we believe that the aggregate tax basis of our assets far
exceeded their aggregate value, which is a “Net Unrealized Built-In Loss”, or NUBIL.
Section 382 of the IRC generally requires that
an ownership change result in a severe restriction on our ability to offset our income with existing beneficial tax attributes, such as
our accumulated NOLs. We expect to continue our historic real estate leasing business for at least two years following our emergence from
bankruptcy, but if we do not, IRC Section 382 also has provisions that would effectively strip us of our beneficial tax attributes altogether.
In addition, for a five-year period following the ownership change, to the extent of our NUBIL, any recognized losses from the disposition
of property or any depreciation deductions attributable to the NUBIL would be currently disallowed and instead added to our balance of
existing beneficial tax attributes, causing only a relatively small portion of those losses and deductions to be deductible in each of
our tax years. Such limitations would cause such losses and depreciation generally not to be available to offset our ordinary income or
gains from dispositions of property. A likely result is that we would be required to report substantially more taxable income. Such an
increase in our taxable income would put a material strain on our ability to meet our obligation to distribute most of our taxable income
in order to maintain qualification for taxation as a REIT.
In general, IRC Section 382 limits annual use of
beneficial tax attributes to a dollar figure which is the product of the aggregate value of the corporation’s shares as of the ownership
change multiplied by an applicable interest rate at the time of the ownership change which is determined by the IRS. The standard rule
for a corporation in bankruptcy is that the value of the corporation is determined after the reduction of liabilities as a result of the
bankruptcy reorganization, that is, the value is increased by the amount of liabilities relieved. However, we believe that the specific
circumstances of our bankruptcy reorganization may allow us to qualify for an exception to the general effects of an IRC Section 382 ownership
change described above. The exception would exempt us from the limitations on deductions, losses and depreciation resulting from the ownership
change at the cost of reduction of a relatively small amount of tax attributes (generally interest expense deductions attributable to
debt that was surrendered in exchange for our shares). This exception is dependent upon many factual determinations and interpretations
of rules for which there is little guidance. If the IRS successfully challenged our qualification for the exception, then we would be
subject to the general limitations on losses and deductions described above. Even if we do qualify for the exception, if we were to undergo
another IRC Section 382 ownership change in the two-year period following our emergence from bankruptcy, then our accumulated beneficial
tax attributes and any resulting NUBIL-related losses and deductions would effectively be eliminated, not just limited. Our bylaws contain
restrictions on transfer intended to avoid such a subsequent ownership change, but we cannot be sure that they will be effective to prevent
one from happening. Any IRC Section 382 ownership change not eligible for an exemption from the effects of IRC Section 382 would increase
our taxable income and thereby increase our income distribution requirements to maintain our REIT taxation status.
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We will likely not be able to make final determinations
regarding the amounts of our COD income, the particular reductions to our beneficial tax attributes and our qualification for an exemption
from the limitations imposed by an IRC Section 382 ownership change until we file our federal income tax return for our 2026 tax year.
Taxation as a REIT
We have elected to be taxed as a REIT under Sections
856 through 860 of the IRC, commencing with our 2009 taxable year. Our REIT election, assuming continuing compliance with the then applicable
qualification tests, has continued and will continue in effect for subsequent taxable years. Although we cannot be sure, we believe that
from and after our 2009 taxable year we have been organized and have operated, and will continue to be organized and to operate, in a
manner that qualified us and will continue to qualify us to be taxed as a REIT under the IRC.
As a REIT, we generally are not subject to federal
income tax on our net income distributed as dividends to our shareholders. Distributions to our shareholders generally are included in
our shareholders’ income as dividends to the extent of our available current or accumulated earnings and profits. Our dividends
are not generally entitled to the preferential tax rates on qualified dividend income, but a portion of our dividends may be treated as
capital gain dividends or as qualified dividend income, all as explained below. In addition, pursuant to the deduction-without-outlay
mechanism of Section 199A of the IRC, our noncorporate U.S. shareholders that meet specified holding period requirements are generally
eligible for lower effective tax rates on our dividends that are not treated as capital gain dividends or as qualified dividend income.
No portion of any of our dividends is eligible for the dividends received deduction for corporate shareholders. Distributions in excess
of our current or accumulated earnings and profits generally are treated for federal income tax purposes as returns of capital to the
extent of a recipient shareholder’s basis in our shares, and will reduce this basis. Our current or accumulated earnings and profits
are generally allocated first to distributions made on our preferred shares, of which there are none outstanding at this time, and thereafter
to distributions made on our common shares. To the extent that such distributions exceed the basis of a U.S. shareholder’s shares,
the U.S. shareholder generally must include such distributions in income as long-term capital gain, or short-term capital gain if the
shares have been held for one year or less. For all these purposes, our distributions include cash distributions, any in kind distributions
of property that we might make, and deemed or constructive distributions resulting from capital market activities (such as some redemptions),
as described below.
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Our counsel, Sullivan & Worcester LLP, is of
the opinion that we have been organized and have qualified for taxation as a REIT under the IRC for our 2009 through 2025 taxable
years, and that our current and anticipated investments and plan of operation will enable us to continue to meet the requirements for
qualification and taxation as a REIT under the IRC. Our counsel’s opinions are conditioned upon the assumption that our leases,
our declaration of trust, and all other legal documents to which we have been or are a party (in their current form and as they may be
modified by the Plan) have been and will be complied with by all parties to those documents, upon the accuracy and completeness of the
factual matters described in our Annual Report and upon representations made by us to our counsel as to certain factual matters relating
to our organization and operations and our expected manner of operation. If this assumption or a description or representation is inaccurate
or incomplete, our counsel’s opinions may be adversely affected and may not be relied upon. The opinions of our counsel are based
upon the law as it exists today, but the law may change in the future, possibly with retroactive effect. Given the highly complex nature
of the rules governing REITs, the ongoing importance of factual determinations, and the possibility of future changes in our circumstances,
neither Sullivan & Worcester LLP nor we can be sure that we will qualify as or be taxed as a REIT for any particular year. Any opinion
of Sullivan & Worcester LLP as to our qualification or taxation as a REIT will be expressed as of the date issued. Our counsel will
have no obligation to advise us or our shareholders of any subsequent change in the matters stated, represented or assumed, or of any
subsequent change in the applicable law. Also, the opinions of our counsel are not binding on either the IRS or a court, and either could
take a position different from that expressed by our counsel.
Our continued qualification and taxation as a REIT
will depend upon our compliance with various qualification tests imposed under the IRC and summarized below. While we believe that we
have satisfied and will satisfy these tests, our counsel does not review compliance with these tests on a continuing basis. If we fail
to qualify for taxation as a REIT in any year, then we will be subject to federal income taxation as if we were a corporation taxed under
subchapter C of the IRC, or a C corporation, and our shareholders will be taxed like shareholders of a regular C corporation, meaning
that federal income tax generally will be applied at both the corporate and shareholder levels. In this event, we could be subject to
significant tax liabilities, and the amount of cash available for distribution to our shareholders could be reduced or eliminated.
If we continue to qualify for taxation as a REIT
and meet the tests described below, then we generally will not pay federal income tax on amounts that we distribute to our shareholders.
However, even if we continue to qualify for taxation as a REIT, we may still be subject to federal tax in the following circumstances,
as described below:
· We will be taxed at regular corporate income tax rates on any undistributed
“real estate investment trust taxable income,” including our undistributed ordinary income and net capital gains, if any.
We may elect to retain and pay income tax on our net capital gain, as well as on certain amounts attributable to COD income, if any. In
addition, if we so elect by making a timely designation to our shareholders, a shareholder would be taxed on its proportionate share of
our undistributed capital gain and would generally be expected to receive a credit or refund for its proportionate share of the federal
corporate income tax we paid on our retained net capital gain.
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· If we have net income from the disposition of “foreclosure property,”
as described in Section 856(e) of the IRC, that is held primarily for sale to customers in the ordinary course of a trade or business
or other nonqualifying income from foreclosure property, we will be subject to tax on this income at the highest regular corporate income
tax rate.
· If we have net income from “prohibited transactions,” that is,
dispositions at a gain of inventory or property held primarily for sale to customers in the ordinary course of a trade or business other
than dispositions of foreclosure property and other than dispositions excepted by statutory safe harbors, we will be subject to tax on
this income at a 100% rate.
· If we fail to satisfy the 75% gross income test or the 95% gross income test
discussed below, due to reasonable cause and not due to willful neglect, but nonetheless maintain our qualification for taxation as a
REIT because of specified cure provisions, we will be subject to tax at a 100% rate on the greater of the amount by which we fail the
75% gross income test or the 95% gross income test, with adjustments, multiplied by a fraction intended to reflect our profitability for
the taxable year.
· If we fail to satisfy any of the REIT asset tests described below (other
than a de minimis failure of the 5% or 10% asset tests) due to reasonable cause and not due to willful neglect, but nonetheless maintain
our qualification for taxation as a REIT because of specified cure provisions, we will be subject to a tax equal to the greater of $50,000
or the highest regular corporate income tax rate multiplied by the net income generated by the nonqualifying assets that caused us to
fail the test.
· If we fail to satisfy any provision of the IRC that would result in our failure
to qualify for taxation as a REIT (other than violations of the REIT gross income tests or violations of the REIT asset tests described
below) due to reasonable cause and not due to willful neglect, we may retain our qualification for taxation as a REIT but will be subject
to a penalty of $50,000 for each failure.
· If we fail to distribute for any calendar year at least the sum of 85% of
our REIT ordinary income for that year, 95% of our REIT capital gain net income for that year and any undistributed taxable income from
prior periods, we will be subject to a 4% nondeductible excise tax on the excess of the required distribution over the amounts actually
distributed.
· If we acquire a REIT asset where our adjusted tax basis in the asset is determined
by reference to the adjusted tax basis of the asset in the hands of a C corporation, under specified circumstances we may be subject to
federal income taxation on all or part of the built-in gain (calculated as of the date the property ceased being owned by the C corporation)
on such asset. We generally do not expect to sell assets if doing so would result in the imposition of a material built-in gains tax liability;
but if and when we do sell assets that may have associated built-in gains tax exposure, then we expect to make appropriate provision for
the associated tax liabilities on our financial statements.
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· If we acquire a corporation in a transaction where we succeed to its tax
attributes, to preserve our qualification for taxation as a REIT we must generally distribute all of the C corporation earnings and profits
inherited in that acquisition, if any, no later than the end of our taxable year in which the acquisition occurs. However, if we fail
to do so, relief provisions would allow us to maintain our qualification for taxation as a REIT provided we distribute any subsequently
discovered C corporation earnings and profits and pay an interest charge in respect of the period of delayed distribution.
· Our subsidiaries that are C corporations, including our “taxable REIT
subsidiaries,” as defined in Section 856(l) of the IRC, or TRSs, generally will be required to pay federal corporate income tax
on their earnings, and a 100% tax may be imposed on any transaction between us and one of our TRSs that does not reflect arm’s length
terms.
If we fail to qualify for taxation as a REIT in
any year, then we will be subject to federal income tax in the same manner as a regular C corporation. Further, as a regular C corporation,
distributions to our shareholders will not be deductible by us, nor will distributions be required under the IRC. Also, to the extent
of our current and accumulated earnings and profits, all distributions to our shareholders will generally be taxable as ordinary dividends
potentially eligible for the preferential tax rates discussed below under the heading “Taxation of Taxable U.S. Shareholders”
and, subject to limitations in the IRC, will be potentially eligible for the dividends received deduction for corporate shareholders.
Finally, we will generally be disqualified from taxation as a REIT for the four taxable years following the taxable year in which the
termination of our REIT status is effective. Our failure to qualify for taxation as a REIT for even one year could result in us reducing
or eliminating distributions to our shareholders, or in us incurring substantial indebtedness or liquidating substantial investments in
order to pay the resulting corporate-level income taxes. Relief provisions under the IRC may allow us to continue to qualify for taxation
as a REIT even if we fail to comply with various REIT requirements, all as discussed in more detail below. However, it is impossible to
state whether in any particular circumstance we would be entitled to the benefit of these relief provisions.
REIT Qualification Requirements
General Requirements. Section 856(a) of
the IRC defines a REIT as a corporation, trust or association:
(1) that is managed by one or more trustees or directors;
(2) the beneficial ownership of which is evidenced by transferable shares or by transferable certificates of beneficial interest;
(3) that would be taxable, but for Sections 856 through 859 of the IRC, as a domestic C corporation;
(4) that is not a financial institution or an insurance company subject to special provisions of the IRC;
(5) the beneficial ownership of which is held by 100 or more persons;
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(6) that is not “closely held,” meaning that during the last half of each taxable year, not more than 50% in value of the
outstanding shares are owned, directly or indirectly, by five or fewer “individuals” (as defined in the IRC to include specified
tax-exempt entities); and
(7) that meets other tests regarding the nature of its income and assets and the amount of its distributions, all as described below.
Section 856(b) of the IRC provides that conditions
(1) through (4) must be met during the entire taxable year and that condition (5) must be met during at least 335 days of a taxable year
of 12 months, or during a proportionate part of a taxable year of less than 12 months. Although we cannot be sure, we believe that we
have met conditions (1) through (7) during each of the requisite periods ending on or before the close of our most recently completed
taxable year, and that we will continue to meet these conditions in our current and future taxable years. To help comply with condition
(6), our declaration of trust restricts transfers of our shares that would otherwise result in concentrated ownership positions.
These restrictions, however, do not ensure that we have previously satisfied, and may not ensure that we will in all cases be able to
continue to satisfy, the share ownership requirements described in condition (6). If we comply with applicable Treasury regulations to
ascertain the ownership of our outstanding shares and do not know, or by exercising reasonable diligence would not have known, that we
failed condition (6), then we will be treated as having met condition (6). Accordingly, we have complied and will continue to comply with
these regulations, including by requesting annually from holders of significant percentages of our shares information regarding the ownership
of our shares. Under our declaration of trust, our shareholders are required to respond to these requests for information. A shareholder
that fails or refuses to comply with the request is required by Treasury regulations to submit a statement with its federal income tax
return disclosing its actual ownership of our shares and other information.
For purposes of condition (6), an “individual”
generally includes a natural person, a supplemental unemployment compensation benefit plan, a private foundation, or a portion of a trust
permanently set aside or used exclusively for charitable purposes, but does not include a qualified pension plan or profit-sharing trust.
As a result, REIT shares owned by an entity that is not an “individual” are considered to be owned by the direct and indirect
owners of the entity that are individuals (as so defined), rather than to be owned by the entity itself. Similarly, REIT shares held by
a qualified pension plan or profit-sharing trust are treated as held directly by the individual beneficiaries in proportion to their actuarial
interests in such plan or trust. Consequently, five or fewer such trusts could own more than 50% of the interests in an entity without
jeopardizing that entity’s qualification for taxation as a REIT.
The IRC provides that we will not automatically
fail to qualify for taxation as a REIT if we do not meet conditions (1) through (6), provided we can establish that such failure
was due to reasonable cause and not due to willful neglect. Each such excused failure will result in the imposition of a $50,000 penalty
instead of REIT disqualification. This relief provision may apply to a failure of the applicable conditions even if the failure first
occurred in a year prior to the taxable year in which the failure was discovered.
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Our Wholly Owned Subsidiaries and Our Investments
Through Partnerships. Except in respect of a TRS as discussed below, Section 856(i) of the IRC provides that any corporation, 100%
of whose stock is held by a REIT and its disregarded subsidiaries, is a qualified REIT subsidiary and shall not be treated as a separate
corporation for U.S. federal income tax purposes. The assets, liabilities and items of income, deduction and credit of a qualified REIT
subsidiary are treated as the REIT’s. We believe that each of our direct and indirect wholly owned subsidiaries, other than the
TRSs discussed below (and entities whose equity is owned in whole or in part by such TRSs), will be either a qualified REIT subsidiary
within the meaning of Section 856(i)(2) of the IRC or a noncorporate entity that for federal income tax purposes is not treated as separate
from its owner under Treasury regulations issued under Section 7701 of the IRC, each such entity referred to as a QRS. Thus, in applying
all of the REIT qualification requirements described in this summary, all assets, liabilities and items of income, deduction and credit
of our QRSs are treated as ours, and our investment in the stock and other securities of such QRSs will be disregarded.
We have invested and may in the future invest in
real estate through one or more entities that are treated as partnerships for federal income tax purposes. In the case of a REIT that
is a partner in a partnership, Treasury regulations under the IRC provide that, for purposes of the REIT qualification requirements regarding
income and assets described below, the REIT is generally deemed to own its proportionate share, based on respective capital interests
(including any preferred equity interests in the partnership), of the income and assets of the partnership (except that for purposes of
the 10% value test, described below, the REIT’s proportionate share of the partnership’s assets is based on its proportionate
interest in the equity and specified debt securities issued by the partnership). In addition, for these purposes, the character of the
assets and items of gross income of the partnership generally remains the same in the hands of the REIT. In contrast, for purposes of
the distribution requirements discussed below, we must take into account as a partner our share of the partnership’s income as determined
under the general federal income tax rules governing partners and partnerships under Subchapter K of the IRC.
Subsidiary REITs. We have in the past invested
in real estate through entities that were intended to qualify for taxation as REITs, and we may in the future form or acquire additional
entities that are intended to qualify for taxation as REITs. When a subsidiary qualifies for taxation as a REIT separate and apart from
its REIT parent, the subsidiary’s shares are qualifying real estate assets for purposes of the REIT parent’s 75% asset test
described below. However, failure of the subsidiary to separately satisfy the various REIT qualification requirements described in this
summary or that are otherwise applicable (and failure to qualify for the applicable relief provisions) would generally result in (a) the
subsidiary being subject to regular U.S. corporate income tax, as described above, and (b) the REIT parent’s ownership in the subsidiary
(i) ceasing to be qualifying real estate assets for purposes of the 75% asset test and (ii) becoming subject to the 5% asset test, the
10% vote test and the 10% value test, each as described below, generally applicable to a REIT’s ownership in corporations other
than REITs and TRSs. In such a situation, the REIT parent’s own qualification and taxation as a REIT could be jeopardized on account
of the subsidiary’s failure cascading up to the REIT parent, all as described below under the heading “─Asset Tests”.
We have made and expect to make protective TRS elections with respect to any subsidiary REIT that we form or acquire and may implement
other protective arrangements intended to avoid a cascading REIT failure if any of our intended subsidiary REITs were not to qualify for
taxation as a REIT, but we cannot be sure that such protective elections or other arrangements will be effective to avoid or mitigate
the resulting adverse consequences to us.
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Taxable REIT Subsidiaries. As a REIT, we
are permitted to own any or all of the securities of a TRS, provided that no more than 20% (25% with respect to taxable years beginning
after December 31, 2025) of the total value of our assets, at the close of each quarter, is comprised of our investments in the stock
or other securities of our TRSs. Very generally, a TRS is a subsidiary corporation other than a REIT in which a REIT directly or indirectly
holds stock and that has made a joint election with such REIT to be treated as a TRS. A TRS is taxed as a regular C corporation, separate
and apart from any affiliated REIT. Our ownership of stock and other securities in our TRSs is exempt from the 5% asset test, the 10%
vote test and the 10% value test discussed below. Among other requirements, a TRS of ours must:
(1) not directly or indirectly operate or manage a lodging facility or a health care facility; and
(2) not directly or indirectly provide to any person, under a franchise, license or otherwise, rights to any brand name under which any
lodging facility or health care facility is operated, except that in limited circumstances a subfranchise, sublicense or similar right
may be granted to an independent contractor to operate or manage a lodging facility or a health care facility.
In addition, any corporation (other than a REIT
and other than a QRS) in which a TRS directly or indirectly owns more than 35% of the voting power or value of the outstanding securities
is automatically a TRS (excluding, for this purpose, certain “straight debt” securities). Subject to the discussion below,
we believe that we and each of our TRSs have complied with, and will continue to comply with, the requirements for TRS status at all times
during which the subsidiary’s TRS election is intended to be in effect, and we believe that the same will be true for any TRS that
we later form or acquire.
As discussed below, TRSs can perform services for
our tenants without disqualifying the rents we receive from those tenants under the 75% gross income test or the 95% gross income test
discussed below. Moreover, because our TRSs are taxed as C corporations that are separate from us, their assets, liabilities and items
of income, deduction and credit generally are not imputed to us for purposes of the REIT qualification requirements described in this
summary. Therefore, our TRSs may generally conduct activities that would be treated as prohibited transactions or would give rise to nonqualified
income if conducted by us directly. Additionally, while a REIT is generally limited in its ability to earn qualifying rental income from
a TRS, a REIT can earn qualifying rental income from the lease of a qualified lodging facility to a TRS if an eligible independent contractor
operates the property, as discussed more fully below.
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Restrictions and sanctions are imposed on TRSs
and their affiliated REITs to ensure that the TRSs will be subject to an appropriate level of federal income taxation. For example, if
a TRS pays interest, rent or other amounts to its affiliated REIT in an amount that exceeds what an unrelated third party would have paid
in an arm’s length transaction, then the REIT generally will be subject to an excise tax equal to 100% of the excessive portion
of the payment. Further, if in comparison to an arm’s length transaction, a third-party tenant has overpaid rent to the REIT in
exchange for underpaying the TRS for services rendered, and if the REIT has not adequately compensated the TRS for services provided to
or on behalf of the third-party tenant, then the REIT may be subject to an excise tax equal to 100% of the undercompensation to the TRS.
A safe harbor exception to this excise tax applies if the TRS has been compensated at a rate at least equal to 150% of its direct cost
in furnishing or rendering the service. Finally, the 100% excise tax also applies to the underpricing of services provided by a TRS to
its affiliated REIT in contexts where the services are unrelated to services for REIT tenants. We cannot be sure that arrangements involving
our TRSs will not result in the imposition of one or more of these restrictions or sanctions, but we do not believe that we or our TRSs
are or will be subject to these impositions.
Income Tests. We must satisfy two gross
income tests annually to maintain our qualification for taxation as a REIT. First, at least 75% of our gross income for each taxable year
must be derived from investments relating to real property, including “rents from real property” within the meaning of Section
856(d) of the IRC, interest and gain from mortgages on real property or on interests in real property, income and gain from foreclosure
property, gain from the sale or other disposition of real property (including specified ancillary personal property treated as real property
under the IRC), or dividends on and gain from the sale or disposition of shares in other REITs (but excluding in all cases any gains subject
to the 100% tax on prohibited transactions). When we receive new capital in exchange for our shares or in a public offering of our five-year
or longer debt instruments, income attributable to the temporary investment of this new capital in stock or a debt instrument, if received
or accrued within one year of our receipt of the new capital, is generally also qualifying income under the 75% gross income test. Second,
at least 95% of our gross income for each taxable year must consist of income that is qualifying income for purposes of the 75% gross
income test, other types of interest and dividends, gain from the sale or disposition of stock or securities, or any combination of these.
Gross income from our sale of property that we hold primarily for sale to customers in the ordinary course of business, income and gain
from specified “hedging transactions” that are clearly and timely identified as such, and income from the repurchase or discharge
of indebtedness is excluded from both the numerator and the denominator in both gross income tests. In addition, specified foreign currency
gains will be excluded from gross income for purposes of one or both of the gross income tests.
In order to qualify as “rents from real property”
within the meaning of Section 856(d) of the IRC, several requirements must be met:
· The amount of rent received generally must not be based on the income or
profits of any person, but may be based on a fixed percentage or percentages of receipts or sales.
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· Rents generally do not qualify if the REIT owns 10% or more by vote or value
of stock of the tenant (or 10% or more of the interests in the assets or net profits of the tenant, if the tenant is not a corporation),
whether directly or after application of attribution rules. We generally do not intend to lease property to any party if rents from that
property would not qualify as “rents from real property,” but application of the 10% ownership rule is dependent upon complex
attribution rules and circumstances that may be beyond our control. Our declaration of trust generally disallows transfers or purported
acquisitions, directly or by attribution, of our shares to the extent necessary to maintain our qualification for taxation as a REIT under
the IRC. Nevertheless, we cannot be sure that these restrictions will be effective to prevent our qualification for taxation as a REIT
from being jeopardized under the 10% affiliated tenant rule. Furthermore, we cannot be sure that we will be able to monitor and enforce
these restrictions, nor will our shareholders necessarily be aware of ownership of our shares attributed to them under the IRC’s
attribution rules.
· There is a limited exception to the above prohibition on earning “rents
from real property” from a 10% affiliated tenant where the tenant is a TRS. If at least 90% of the leased space of a property is
leased to tenants other than TRSs and 10% affiliated tenants, and if the TRS’s rent to the REIT for space at that property is substantially
comparable to the rents paid by nonaffiliated tenants for comparable space at the property, then otherwise qualifying rents paid by the
TRS to the REIT will not be disqualified on account of the rule prohibiting 10% affiliated tenants.
· There is an additional exception to the above prohibition on earning “rents
from real property” from a 10% affiliated tenant. For this additional exception to apply, a real property interest in a “qualified
lodging facility” must be leased by the REIT to its TRS, and the property must be operated on behalf of the TRS by a person who
is an “eligible independent contractor,” all as described in Sections 856(d)(8)-(9) of the IRC. As described below, we believe
our lease with our applicable TRS has satisfied and will continue to satisfy these requirements.
· In order for rents to qualify, a REIT generally must not manage the property
or furnish or render services to the tenants of the property, except through an independent contractor from whom it derives no income
or through one of its TRSs. There is an exception to this rule permitting a REIT to perform customary management and tenant services of
the sort that a tax-exempt organization could perform without being considered in receipt of “unrelated business taxable income”
as defined in Section 512(b)(3) of the IRC, or UBTI. In addition, a de minimis amount of noncustomary services provided to tenants will
not disqualify income as “rents from real property” as long as the value of the impermissible tenant services does not exceed
1% of the gross income from the property.
· If rent attributable to personal property leased in connection with a lease
of real property is 15% or less of the total rent received under the lease, then the rent attributable to personal property will qualify
as “rents from real property;” if this 15% threshold is exceeded, then the rent attributable to personal property will not
so qualify. The portion of rental income treated as attributable to personal property is determined according to the ratio of the fair
market value of the personal property to the total fair market value of the real and personal property that is rented.
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· In addition, “rents from real property” includes both charges
we receive for services customarily rendered in connection with the rental of comparable real property in the same geographic area, even
if the charges are separately stated, as well as charges we receive for services provided by our TRSs when the charges are not separately
stated. Whether separately stated charges received by a REIT for services that are not geographically customary and provided by a TRS
are included in “rents from real property” has not been addressed clearly by the IRS in published authorities; however, our
counsel, Sullivan & Worcester LLP, is of the opinion that, although the matter is not free from doubt, “rents from real property”
also includes charges we receive for services provided by our TRSs when the charges are separately stated, even if the services are not
geographically customary. Accordingly, we believe that our revenues from TRS-provided services, whether the charges are separately
stated or not, qualify as “rents from real property” because the services satisfy the geographically customary standard, because
the services have been provided by a TRS, or for both reasons.
We believe that all or substantially all of our
rents and related service charges have qualified and will continue to qualify as “rents from real property” for purposes of
Section 856 of the IRC.
Absent the “foreclosure property” rules
of Section 856(e) of the IRC, a REIT’s receipt of active, nonrental gross income from a property would not qualify under the 75%
and 95% gross income tests. But as foreclosure property, the active, nonrental gross income from the property would so qualify. Foreclosure
property is generally any real property, including interests in real property, and any personal property incident to such real property:
· that is acquired by a REIT as a result of the REIT having bid on such property
at foreclosure, or having otherwise reduced such property to ownership or possession by agreement or process of law, after there was a
default or when default was imminent on a lease of such property or on indebtedness that such property secured;
· for which any related loan acquired by the REIT was acquired at a time when
the default was not imminent or anticipated; and
· for which the REIT makes a proper election to treat the property as foreclosure
property.
Any gain that a REIT recognizes on the sale of
foreclosure property held as inventory or primarily for sale to customers, plus any income it receives from foreclosure property that
would not otherwise qualify under the 75% gross income test in the absence of foreclosure property treatment, reduced by expenses directly
connected with the production of those items of income, would be subject to federal income tax at the highest regular corporate income
tax rate under the foreclosure property income tax rules of Section 857(b)(4) of the IRC. Thus, if a REIT should lease foreclosure property
in exchange for rent that qualifies as “rents from real property” as described above, then that rental income is not subject
to the foreclosure property income tax.
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Property generally ceases to be foreclosure property
at the end of the third taxable year following the taxable year in which the REIT acquired the property, or longer if an extension is
obtained from the IRS. However, this grace period terminates and foreclosure property ceases to be foreclosure property on the first day:
· on which a lease is entered into for the property that, by its terms, will
give rise to income that does not qualify for purposes of the 75% gross income test (disregarding income from foreclosure property), or
any nonqualified income under the 75% gross income test is received or accrued by the REIT, directly or indirectly, pursuant to a lease
entered into on or after such day;
· on which any construction takes place on the property, other than completion
of a building or any other improvement where more than 10% of the construction was completed before default became imminent and other
than specifically exempted forms of maintenance or deferred maintenance; or
· which is more than 90 days after the day on which the REIT acquired the property
and the property is used in a trade or business which is conducted by the REIT, other than through an independent contractor from whom
the REIT itself does not derive or receive any income or a TRS.
Other than sales of foreclosure property, any gain
that we realize on the sale of property held as inventory or other property held primarily for sale to customers in the ordinary course
of a trade or business, together known as dealer gains, may be treated as income from a prohibited transaction that is subject to a penalty
tax at a 100% rate. The 100% tax does not apply to gains from the sale of property that is held through a TRS, although such income will
be subject to tax in the hands of the TRS at regular corporate income tax rates; we may therefore utilize our TRSs in transactions in
which we might otherwise recognize dealer gains. Whether property is held as inventory or primarily for sale to customers in the ordinary
course of a trade or business is a question of fact that depends on all the facts and circumstances surrounding each particular transaction.
Sections 857(b)(6)(C) and (E) of the IRC provide safe harbors pursuant to which limited sales of real property held for at least two years
and meeting specified additional requirements will not be treated as prohibited transactions. However, compliance with the safe harbors
is not always achievable in practice. We attempt to structure our activities to avoid transactions that are prohibited transactions, or
otherwise conduct such activities through TRSs; but, we cannot be sure whether or not the IRS might successfully assert that we are subject
to the 100% penalty tax with respect to any particular transaction. Gains subject to the 100% penalty tax are excluded from the 75% and
95% gross income tests, whereas real property gains that are not dealer gains or that are exempted from the 100% penalty tax on account
of the safe harbors are considered qualifying gross income for purposes of the 75% and 95% gross income tests.
We believe that any gain that we have recognized,
or will recognize, in connection with our disposition of assets and other transactions, including through any partnerships, will generally
qualify as income that satisfies the 75% and 95% gross income tests, and will not be dealer gains or subject to the 100% penalty tax.
This is because our general intent has been and is to: (a) own our assets for investment (including through joint ventures) with a view
to long-term income production and capital appreciation; (b) engage in the business of developing, owning, leasing and managing our existing
properties and acquiring, developing, owning, leasing and managing new properties; and (c) make occasional dispositions of our assets
consistent with our long-term investment objectives.
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If we fail to satisfy one or both of the 75% gross
income test or the 95% gross income test in any taxable year, we may nevertheless qualify for taxation as a REIT for that year if we satisfy
the following requirements: (a) our failure to meet the test is due to reasonable cause and not due to willful neglect; and (b) after
we identify the failure, we file a schedule describing each item of our gross income included in the 75% gross income test or the 95%
gross income test for that taxable year. Even if this relief provision does apply, a 100% tax is imposed upon the greater of the amount
by which we failed the 75% gross income test or the amount by which we failed the 95% gross income test, with adjustments, multiplied
by a fraction intended to reflect our profitability for the taxable year. This relief provision may apply to a failure of the applicable
income tests even if the failure first occurred in a year prior to the taxable year in which the failure was discovered.
Based on the discussion above, we believe that
we have satisfied, and will continue to satisfy, the 75% and 95% gross income tests outlined above on a continuing basis beginning with
our first taxable year as a REIT.
Asset Tests. At the close of each calendar
quarter of each taxable year, we must also satisfy the following asset percentage tests in order to qualify for taxation as a REIT for
federal income tax purposes:
· At least 75% of the value of our total assets must consist of “real
estate assets,” defined as real property (including interests in real property and interests in mortgages on real property or on
interests in real property), ancillary personal property to the extent that rents attributable to such personal property are treated as
rents from real property in accordance with the rules described above, cash and cash items, shares in other REITs, debt instruments issued
by “publicly offered REITs” as defined in Section 562(c)(2) of the IRC, government securities and temporary investments of
new capital (that is, any stock or debt instrument that we hold that is attributable to any amount received by us (a) in exchange for
our shares or (b) in a public offering of our five-year or longer debt instruments, but in each case only for the one-year period commencing
with our receipt of the new capital).
· Not more than 25% of the value of our total assets may be represented by
securities other than those securities that count favorably toward the preceding 75% asset test.
· Of the investments included in the preceding 25% asset class, the value of
any one non-REIT issuer’s securities that we own may not exceed 5% of the value of our total assets. In addition, we may not own
more than 10% of the vote or value of any one non-REIT issuer’s outstanding securities, unless the securities are “straight
debt” securities or otherwise excepted as discussed below. Our stock and other securities in a TRS are exempted from these 5% and
10% asset tests.
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· Not more than 20% (25% with respect to taxable years beginning after December
31, 2025) of the value of our total assets may be represented by stock or other securities of our TRSs.
· Not more than 25% of the value of our total assets may be represented by
“nonqualified publicly offered REIT debt instruments” as defined in Section 856(c)(5)(L)(ii) of the IRC.
Our counsel, Sullivan & Worcester LLP, is of
the opinion that, although the matter is not free from doubt, our investments in the equity or debt of a TRS of ours, to the extent that
and during the period in which they qualify as temporary investments of new capital, will be treated as real estate assets, and not as
securities, for purposes of the above REIT asset tests.
The above REIT asset tests must be satisfied at
the close of each calendar quarter of each taxable year as a REIT. After a REIT meets the asset tests at the close of any quarter, it
will not lose its qualification for taxation as a REIT in any subsequent quarter solely because of fluctuations in the values of its assets.
This grandfathering rule may be of limited benefit to a REIT such as us that makes periodic acquisitions of both qualifying and nonqualifying
REIT assets. When a failure to satisfy the above asset tests results from an acquisition of securities or other property during a quarter,
the failure can be cured by disposition of sufficient nonqualifying assets within thirty days after the close of that quarter.
In addition, if we fail the 5% asset test, the
10% vote test or the 10% value test at the close of any quarter and we do not cure such failure within thirty days after the close of
that quarter, that failure will nevertheless be excused if (a) the failure is de minimis and (b) within six months after the last day
of the quarter in which we identify the failure, we either dispose of the assets causing the failure or otherwise satisfy the 5% asset
test, the 10% vote test and the 10% value test. For purposes of this relief provision, the failure will be de minimis if the value of
the assets causing the failure does not exceed the lesser of (a) 1% of the total value of our assets at the end of the relevant quarter
or (b) $10,000,000. If our failure is not de minimis, or if any of the other REIT asset tests have been violated, we may nevertheless
qualify for taxation as a REIT if (a) we provide the IRS with a description of each asset causing the failure, (b) the failure was due
to reasonable cause and not willful neglect, (c) we pay a tax equal to the greater of (1) $50,000 or (2) the highest regular corporate
income tax rate imposed on the net income generated by the assets causing the failure during the period of the failure, and (d) within
six months after the last day of the quarter in which we identify the failure, we either dispose of the assets causing the failure or
otherwise satisfy all of the REIT asset tests. These relief provisions may apply to a failure of the applicable asset tests even if the
failure first occurred in a year prior to the taxable year in which the failure was discovered.
The IRC also provides an excepted securities safe
harbor to the 10% value test that includes among other items (a) “straight debt” securities, (b) specified rental agreements
in which payment is to be made in subsequent years, (c) any obligation to pay “rents from real property,” (d) securities issued
by governmental entities that are not dependent in whole or in part on the profits of or payments from a nongovernmental entity, and (e)
any security issued by another REIT. In addition, any debt instrument issued by an entity classified as a partnership for federal income
tax purposes, and not otherwise excepted from the definition of a security for purposes of the above safe harbor, will not be treated
as a security for purposes of the 10% value test if at least 75% of the partnership’s gross income, excluding income from prohibited
transactions, is qualifying income for purposes of the 75% gross income test.
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We have maintained and will continue to maintain
records of the value of our assets to document our compliance with the above asset tests and intend to take actions as may be required
to cure any failure to satisfy the tests within thirty days after the close of any quarter or within the six month periods described above.
Based on the discussion above, we believe that
we have satisfied, and will continue to satisfy, the REIT asset tests outlined above on a continuing basis beginning with our first taxable
year as a REIT.
Annual Distribution Requirements. In order
to qualify for taxation as a REIT under the IRC, we are required to make annual distributions other than capital gain dividends to our
shareholders in an amount at least equal to the excess of:
(1) the sum of 90% of our “real estate investment trust taxable income” and 90% of our net income after tax, if any, from
property received in foreclosure, over
(2) the amount by which our noncash income (e.g., COD income, imputed rental income or income from transactions inadvertently failing
to qualify as like-kind exchanges) exceeds 5% of our “real estate investment trust taxable income.”
For these purposes, our “real estate investment
trust taxable income” is as defined under Section 857 of the IRC and is computed without regard to the dividends paid deduction
and our net capital gain and will generally be reduced by specified corporate-level income taxes that we pay (e.g., taxes on built-in
gains or foreclosure property income).
Beginning with the calendar taxable year 2018,
the IRC generally limits the deductibility of net interest expense paid or accrued on debt properly allocable to a trade or business to
30% of “adjusted taxable income,” subject to specified exceptions. For calendar taxable years 2018 through 2021 and beginning
with the calendar taxable year 2025, adjusted taxable income was (and is) an amount roughly equivalent to earnings before interest, taxes,
depreciation and amortization; adjusted taxable income for calendar taxable years 2022 through 2024 was an amount roughly equivalent to
earnings before interest and taxes (i.e., an amount after depreciation and amortization). For taxable years beginning after December 31,
2025, the interest deduction limitation generally is calculated prior to the application of any interest capitalization provisions under
the IRC. Any deduction in excess of the limitation is carried forward and may be used in a subsequent year, subject to that year’s
30% limitation. Provided a taxpayer makes an election (which is irrevocable), the limitation on the deductibility of net interest expense
does not apply to a trade or business involving real property development, redevelopment, construction, reconstruction, acquisition, conversion,
rental, operation, management, leasing, or brokerage, within the meaning of Section 469(c)(7)(C) of the IRC. Treasury regulations provide
that a real property trade or business includes a trade or business conducted by a REIT. We have made an election to be treated as a real
property trade or business and accordingly do not expect the foregoing interest deduction limitations to apply to us or to the calculation
of our “real estate investment trust taxable income”, but the interest deduction limitations could apply to our subsidiary
partnerships or subsidiary REITs, if any, that are not eligible for or otherwise do not make the election for electing real property trades
or businesses. Distributions must be paid in the taxable year to which they relate, or in the following taxable year if declared before
we timely file our federal income tax return for the earlier taxable year and if paid on or before the first regular distribution payment
after that declaration. If a dividend is declared in October, November or December to shareholders of record during one of those months
and is paid during the following January, then for federal income tax purposes such dividend will be treated as having been both paid
and received on December 31 of the prior taxable year to the extent of any undistributed earnings and profits.
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The 90% distribution requirements may be waived
by the IRS if a REIT establishes that it failed to meet them by reason of distributions previously made to meet the requirements of the
4% excise tax discussed below. To the extent that we do not distribute all of our net capital gain and all of our “real estate investment
trust taxable income,” as adjusted, we will be subject to federal income tax at regular corporate income tax rates on undistributed
amounts. In addition, we will be subject to a 4% nondeductible excise tax to the extent we fail within a calendar year to make required
distributions to our shareholders of 85% of our ordinary income and 95% of our capital gain net income plus the excess, if any, of the
“grossed up required distribution” for the preceding calendar year over the amount treated as distributed for that preceding
calendar year. For this purpose, the term “grossed up required distribution” for any calendar year is the sum of our taxable
income for the calendar year without regard to the deduction for dividends paid and all amounts from earlier years that are not treated
as having been distributed under the provision. We will be treated as having sufficient earnings and profits to treat as a dividend any
distribution by us up to the amount required to be distributed in order to avoid imposition of the 4% excise tax.
If we do not have enough cash or other liquid assets
to meet our distribution requirements, or if we so choose, we may find it necessary or desirable to arrange for new debt or equity financing
to provide funds for required distributions in order to maintain our qualification for taxation as a REIT. We cannot be sure that financing
would be available for these purposes on favorable terms, or at all.
We may be able to rectify a failure to pay sufficient
dividends for any year by paying “deficiency dividends” to shareholders in a later year. These deficiency dividends may be
included in our deduction for dividends paid for the earlier year, but an interest charge would be imposed upon us for the delay in distribution.
While the payment of a deficiency dividend will apply to a prior year for purposes of our REIT distribution requirements and our dividends
paid deduction, it will be treated as an additional distribution to the shareholders receiving it in the year such dividend is paid.
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In addition to the other distribution requirements
above, to preserve our qualification for taxation as a REIT we are required to timely distribute all C corporation earnings and profits
that we inherit from acquired corporations, as described below.
We may elect to retain, rather than distribute,
some or all of our net capital gain and certain of our COD income, if any, and pay income tax on such retained amounts. In addition, if
we so elect by making a timely designation to our shareholders, our shareholders would include their proportionate share of such undistributed
capital gain in their taxable income, and they would receive a corresponding credit for their share of the federal corporate income tax
that we pay thereon. Our shareholders would then increase the adjusted tax basis of their shares by the difference between (a) the amount
of capital gain dividends that we designated and that they included in their taxable income, and (b) the tax that we paid on their behalf
with respect to that capital gain.
Acquisitions of C Corporations
We may in the future engage in transactions where
we acquire all of the outstanding stock of a C corporation. Upon these acquisitions, except to the extent we make an applicable TRS election,
each of our acquired entities and their various wholly-owned corporate and noncorporate subsidiaries will become our QRSs. Thus, after
such acquisitions, all assets, liabilities and items of income, deduction and credit of the acquired and then disregarded entities will
be treated as ours for purposes of the various REIT qualification tests described above. In addition, we generally will be treated as
the successor to the acquired (and then disregarded) entities’ federal income tax attributes, such as those entities’ (a)
adjusted tax bases in their assets and their depreciation schedules; and (b) earnings and profits for federal income tax purposes, if
any. The carryover of these attributes creates REIT implications such as built-in gains tax exposure and additional distribution requirements,
as described below. However, when we make an election under Section 338(g) of the IRC with respect to corporations that we acquire, we
generally will not be subject to such attribute carryovers in respect of attributes existing prior to such election.
Built-in Gains from C Corporations. Notwithstanding
our qualification and taxation as a REIT, under specified circumstances we may be subject to corporate income taxation if we acquire a
REIT asset where our adjusted tax basis in the asset is determined by reference to the adjusted tax basis of the asset as owned by a C
corporation. For instance, we may be subject to federal income taxation on all or part of the built-in gain that was present on the last
date an asset was owned by a C corporation, if we succeed to a carryover tax basis in that asset directly or indirectly from such C corporation
and if we sell the asset during the five year period beginning on the day the asset ceased being owned by such C corporation. To the extent
of our income and gains in a taxable year that are subject to the built-in gains tax, net of any taxes paid on such income and gains with
respect to that taxable year, our taxable dividends paid in the following year will be potentially eligible for taxation to noncorporate
U.S. shareholders at the preferential tax rates for “qualified dividends” as described below under the heading “─Taxation
of Taxable U.S. Shareholders”. We generally do not expect to sell assets if doing so would result in the imposition of a material
built-in gains tax liability; but if and when we do sell assets that may have associated built-in gains tax exposure, then we expect to
make appropriate provision for the associated tax liabilities on our financial statements.
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Earnings and Profits. Following a corporate
acquisition, we must generally distribute all of the C corporation earnings and profits inherited in that transaction, if any, no later
than the end of our taxable year in which the transaction occurs, in order to preserve our qualification for taxation as a REIT. However,
if we fail to do so, relief provisions would allow us to maintain our qualification for taxation as a REIT, provided we distribute any
subsequently discovered C corporation earnings and profits and pay an interest charge in respect of the period of delayed distribution.
C corporation earnings and profits that we inherit are, in general, specially allocated under a priority rule to the earliest possible
distributions following the event causing the inheritance, and only then is the balance of our earnings and profits for the taxable year
allocated among our distributions to the extent not already treated as a distribution of C corporation earnings and profits under the
priority rule. The distribution of these C corporation earnings and profits is potentially eligible for taxation to noncorporate U.S.
shareholders at the preferential tax rates for “qualified dividends” as described below under the heading “─Taxation
of Taxable U.S. Shareholders”.
Depreciation and Federal Income Tax Treatment of Leases
Our initial tax bases in our assets will generally
be our acquisition cost. We will generally depreciate our depreciable real property on a straight-line basis over forty years and our
personal property over the applicable shorter periods. These depreciation schedules, and our initial tax bases, may vary for properties
that we acquire through tax-free or carryover basis acquisitions, or that are the subject of cost segregation analyses.
We are entitled to depreciation deductions from
our properties only if we are treated for federal income tax purposes as the owner of the properties. This means that the leases of our
properties must be classified for U.S. federal income tax purposes as true leases, rather than as sales or financing arrangements, and
we believe this to be the case.
Distributions to our Shareholders
As described above, we expect to make distributions
to our shareholders from time to time. These distributions may include cash distributions, in kind distributions of property, and deemed
or constructive distributions resulting from capital market activities. The U.S. federal income tax treatment of our distributions will
vary based on the status of the recipient shareholder as more fully described below under the headings “─Taxation of Taxable
U.S. Shareholders,” “─Taxation of Tax-Exempt U.S. Shareholders,” and “─Taxation of Non-U.S. Shareholders.”
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Section 302 of the IRC treats a redemption of our
shares for cash only as a distribution under Section 301 of the IRC, and hence taxable as a dividend to the extent of our available current
or accumulated earnings and profits, unless the redemption satisfies one of the tests set forth in Section 302(b) of the IRC enabling
the redemption to be treated as a sale or exchange of the shares. The redemption for cash only will be treated as a sale or exchange if
it (a) is “substantially disproportionate” with respect to the surrendering shareholder’s ownership in us, (b) results
in a “complete termination” of the surrendering shareholder’s entire share interest in us, or (c) is “not essentially
equivalent to a dividend” with respect to the surrendering shareholder, all within the meaning of Section 302(b) of the IRC. In
determining whether any of these tests have been met, a shareholder must generally take into account shares considered to be owned by
such shareholder by reason of constructive ownership rules set forth in the IRC (including ownership of our warrants, which are treated
as shares under the constructive ownership rules), as well as shares actually owned by such shareholder. In addition, if a redemption
is treated as a distribution under the preceding tests, then a shareholder’s tax basis in the redeemed shares generally will be
transferred to the shareholder’s remaining shares in us, if any, and if such shareholder owns no other shares in us, such basis
generally may be transferred to a related person or may be lost entirely. Because the determination as to whether a shareholder will satisfy
any of the tests of Section 302(b) of the IRC depends upon the facts and circumstances at the time that our shares are redeemed, we urge
you to consult your own tax advisor to determine the particular tax treatment of any redemption.
If the exercise price of our warrants is adjusted
or in some circumstances not adjusted as a result of certain events affecting our shares, the adjustment or lack of adjustment may result
in the deemed payment of a taxable dividend to a shareholder. Shareholders should consult their tax advisors regarding the proper treatment
for shareholders of any adjustment or lack of adjustment to the exercise price of our warrants.
Taxation of Taxable U.S. Shareholders
For noncorporate U.S. shareholders, to the extent
that their total adjusted income does not exceed applicable thresholds, the maximum federal income tax rate for long-term capital gains
and most corporate dividends is generally 15%. For those noncorporate U.S. shareholders whose total adjusted income exceeds the applicable
thresholds, the maximum federal income tax rate for long-term capital gains and most corporate dividends is generally 20%. However, because
we are not generally subject to federal income tax on the portion of our “real estate investment trust taxable income” distributed
to our shareholders, dividends on our shares generally are not eligible for these preferential tax rates, except that any distribution
of C corporation earnings and profits and taxed built-in gain items will potentially be eligible for these preferential tax rates. As
a result, our ordinary dividends generally are taxed at the higher federal income tax rates applicable to ordinary income (subject to
the lower effective tax rates applicable to qualified REIT dividends via the deduction-without-outlay mechanism of Section 199A of the
IRC, which is generally available to our noncorporate U.S. shareholders that meet specified holding period requirements). To summarize,
the preferential federal income tax rates for long-term capital gains and for qualified dividends generally apply to:
(1) long-term capital gains, if any, recognized on the disposition of our shares;
(2) our distributions designated as long-term capital gain dividends (except to the extent attributable to real estate depreciation recapture,
in which case the distributions are subject to a maximum 25% federal income tax rate);
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(3) our dividends attributable to dividend income, if any, received by us from C corporations such as TRSs;
(4) our dividends attributable to earnings and profits that we inherit from C corporations; and
(5) our dividends to the extent attributable to income upon which we have paid federal corporate income tax (such as taxes on foreclosure
property income or on built-in gains), net of the corporate income taxes thereon.
As long as we qualify for taxation as a REIT, a
distribution to our U.S. shareholders that we do not designate as a capital gain dividend generally will be treated as an ordinary income
dividend to the extent of our available current or accumulated earnings and profits (subject to the lower effective tax rates applicable
to qualified REIT dividends via the deduction-without-outlay mechanism of Section 199A of the IRC, which is generally available to our
noncorporate U.S. shareholders that meet specified holding period requirements). Distributions made out of our current or accumulated
earnings and profits that we properly designate as capital gain dividends generally will be taxed as long-term capital gains, as discussed
below, to the extent they do not exceed our actual net capital gain for the taxable year. However, corporate shareholders may be required
to treat up to 20% of any capital gain dividend as ordinary income under Section 291 of the IRC.
If for any taxable year we designate capital gain
dividends for our shareholders, then a portion of the capital gain dividends we designate will be allocated to the holders of a particular
class of shares on a percentage basis equal to the ratio of the amount of the total dividends paid or made available for the year to the
holders of that class of shares to the total dividends paid or made available for the year to holders of all outstanding classes of our
shares. We will similarly designate the portion of any dividend that is to be taxed to noncorporate U.S. shareholders at preferential
maximum rates (including any qualified dividend income and any capital gains attributable to real estate depreciation recapture that are
subject to a maximum 25% federal income tax rate) so that the designations will be proportionate among all outstanding classes of our
shares.
We may elect to retain and pay income taxes on
some or all of our net capital gain. In addition, if we so elect by making a timely designation to our shareholders:
(1) each of our U.S. shareholders will be taxed on its designated proportionate share of our retained net capital gains as though that
amount were distributed and designated as a capital gain dividend;
(2) each of our U.S. shareholders will receive a credit or refund for its designated proportionate share of the tax that we pay;
(3) each of our U.S. shareholders will increase its adjusted basis in our shares by the excess of the amount of its proportionate share
of these retained net capital gains over the U.S. shareholder’s proportionate share of the tax that we pay; and
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(4) both we and our corporate shareholders will make commensurate adjustments in our respective earnings and profits for federal income
tax purposes.
Distributions in excess of our current or accumulated
earnings and profits will not be taxable to a U.S. shareholder to the extent that they do not exceed the shareholder’s adjusted
tax basis in our shares, but will reduce the shareholder’s basis in such shares. To the extent that these excess distributions exceed
a U.S. shareholder’s adjusted basis in such shares, they will be included in income as capital gain, with long-term gain generally
taxed to noncorporate U.S. shareholders at preferential maximum rates. No U.S. shareholder may include on its federal income tax return
any of our net operating losses or any of our capital losses. In addition, no portion of any of our dividends is eligible for the dividends
received deduction for corporate shareholders.
If a dividend is declared in October, November
or December to shareholders of record during one of those months and is paid during the following January, then for federal income tax
purposes the dividend will be treated as having been both paid and received on December 31 of the prior taxable year.
A U.S. shareholder will generally recognize gain
or loss equal to the difference between the amount realized and the shareholder’s adjusted basis in our shares that are sold or
exchanged. This gain or loss will generally be capital gain or loss, and will be long-term capital gain or loss if the shareholder’s
holding period in our shares exceeds one year. In addition, any loss upon a sale or exchange of our shares held for six months or less
will generally be treated as a long-term capital loss to the extent of any long-term capital gain dividends we paid on such shares during
the holding period.
U.S. shareholders who are individuals, estates
or trusts are generally required to pay a 3.8% Medicare tax on their net investment income (including dividends on our shares (without
regard to any deduction allowed by Section 199A of the IRC) and gains from the sale or other disposition of our shares), or in the case
of estates and trusts on their net investment income that is not distributed, in each case to the extent that their total adjusted income
exceeds applicable thresholds. U.S. shareholders are urged to consult their tax advisors regarding the application of the 3.8% Medicare
tax.
If a U.S. shareholder recognizes a loss upon a
disposition of our shares in an amount that exceeds a prescribed threshold, it is possible that the provisions of Treasury regulations
involving “reportable transactions” could apply, with a resulting requirement to separately disclose the loss-generating transaction
to the IRS. These Treasury regulations are written quite broadly, and apply to many routine and simple transactions. A reportable transaction
currently includes, among other things, a sale or exchange of our shares resulting in a tax loss in excess of (a) $10 million in any single
year or $20 million in a prescribed combination of taxable years in the case of our shares held by a C corporation or by a partnership
with only C corporation partners or (b) $2 million in any single year or $4 million in a prescribed combination of taxable years in the
case of our shares held by any other partnership or an S corporation, trust or individual, including losses that flow through pass through
entities to individuals. A taxpayer discloses a reportable transaction by filing IRS Form 8886 with its federal income tax return and,
in the first year of filing, a copy of IRS Form 8886 must be sent to the IRS’s Office of Tax Shelter Analysis. The annual maximum
penalty for failing to disclose a reportable transaction is generally $10,000 in the case of a natural person and $50,000 in any other
case.
24
Noncorporate U.S. shareholders who borrow funds
to finance their acquisition of our shares could be limited in the amount of deductions allowed for the interest paid on the indebtedness
incurred. Under Section 163(d) of the IRC, interest paid or accrued on indebtedness incurred or continued to purchase or carry property
held for investment is generally deductible only to the extent of the investor’s net investment income. A U.S. shareholder’s
net investment income will include ordinary income dividend distributions received from us and, only if an appropriate election is made
by the shareholder, capital gain dividend distributions and qualified dividends received from us; however, distributions treated as a
nontaxable return of the shareholder’s basis will not enter into the computation of net investment income.
Taxation of Tax-Exempt U.S. Shareholders
The rules governing the federal income taxation
of tax-exempt entities are complex, and the following discussion is intended only as a summary of material considerations of an investment
in our shares relevant to such investors. If you are a tax-exempt shareholder, we urge you to consult your own tax advisor to determine
the impact of federal, state, local and foreign tax laws, including any tax return filing and other reporting requirements, with respect
to your acquisition of or investment in our shares.
We expect that shareholders that are tax-exempt
pension plans, individual retirement accounts or other qualifying tax-exempt entities, and that receive (a) distributions from us, or
(b) proceeds from the sale of our shares, should not have such amounts treated as UBTI, provided in each case (x) that the shareholder
has not financed its acquisition of our shares with “acquisition indebtedness” within the meaning of the IRC, (y) that the
shares are not otherwise used in an unrelated trade or business of the tax-exempt entity, and (z) that, consistent with our present intent,
we do not hold a residual interest in a real estate mortgage investment conduit or otherwise hold mortgage assets or conduct mortgage
securitization activities that generate “excess inclusion” income.
Taxation of Non-U.S. Shareholders
The rules governing the U.S. federal income taxation
of non-U.S. shareholders are complex, and the following discussion is intended only as a summary of material considerations of an investment
in our shares relevant to such investors. If you are a non-U.S. shareholder, we urge you to consult your own tax advisor to determine
the impact of U.S. federal, state, local and foreign tax laws, including any tax return filing and other reporting requirements, with
respect to your acquisition of or investment in our shares.
25
We expect that a non-U.S. shareholder’s
receipt of (a) distributions from us, and (b) proceeds from the sale of our shares, will not be treated as income effectively
connected with a U.S. trade or business and a non-U.S. shareholder will therefore not be subject to the often higher federal tax and
withholding rates, branch profits taxes and increased reporting and filing requirements that apply to income effectively connected
with a U.S. trade or business. This expectation and a number of the determinations below are predicated on our shares being
regularly traded on an established securities market in the United States. Based on an analysis of applicable Treasury regulations,
we believe that our shares have continued to be regularly traded on an established securities market in the United States, even
after the October 2025 delisting of our shares from The Nasdaq Stock Market LLC, or Nasdaq, and the commencement of trading of our
shares on over-the-counter markets established by OTC Markets Group Inc., including at various times on its “Pink Limited
Information Market” and its “Expert Market.” Also, starting on June 18, 2026, our shares are again listed on
Nasdaq. Accordingly, we believe that prior to, during the pendency of, and subsequent to our bankruptcy reorganization our shares
have continued to be regularly traded on an established securities market in the United States. However, we cannot be sure that the
IRS or a court will agree or that our shares will in the future continue to be regularly traded on an established securities market
in the United States.
Distributions. A distribution by us to a
non-U.S. shareholder that is not designated as a capital gain dividend will be treated as an ordinary income dividend to the extent that
it is made out of our current or accumulated earnings and profits. A distribution of this type will generally be subject to U.S. federal
income tax and withholding at the rate of 30%, or at a lower rate if the non-U.S. shareholder has in the manner prescribed by the IRS
demonstrated to the applicable withholding agent its entitlement to benefits under a tax treaty. Because we cannot determine our current
and accumulated earnings and profits until the end of the taxable year, withholding at the statutory rate of 30% or applicable lower treaty
rate will generally be imposed on the gross amount of any distribution to a non-U.S. shareholder that we make and do not designate as
a capital gain dividend. Notwithstanding this potential withholding on distributions in excess of our current and accumulated earnings
and profits, these excess portions of distributions are a nontaxable return of capital to the extent that they do not exceed the non-U.S.
shareholder’s adjusted basis in our shares, and the nontaxable return of capital will reduce the adjusted basis in these shares.
To the extent that distributions in excess of our current and accumulated earnings and profits exceed the non-U.S. shareholder’s
adjusted basis in our shares, the distributions will give rise to U.S. federal income tax liability only in the unlikely event that the
non-U.S. shareholder would otherwise be subject to tax on any gain from the sale or exchange of these shares, as discussed below under
the heading “─Dispositions of Our Shares.” A non-U.S. shareholder may seek a refund from the IRS of amounts withheld
on distributions to it in excess of such shareholder’s allocable share of our current and accumulated earnings and profits.
For so long as a class of our shares is regularly
traded on an established securities market in the United States, capital gain dividends that we declare and pay to a non-U.S. shareholder
on those shares, as well as dividends to such a non-U.S. shareholder on those shares attributable to our sale or exchange of “United
States real property interests” within the meaning of Section 897 of the IRC, or USRPIs, will not be subject to withholding as though
those amounts were effectively connected with a U.S. trade or business, and non-U.S. shareholders will not be required to file U.S. federal
income tax returns or pay branch profits tax in respect of these dividends. Instead, these dividends will generally be treated as ordinary
dividends and subject to withholding in the manner described above.
26
Tax treaties may reduce the withholding obligations
on our distributions. Under some treaties, however, rates below 30% that are applicable to ordinary income dividends from U.S. corporations
may not apply to ordinary income dividends from a REIT or may apply only if the REIT meets specified additional conditions. A non-U.S.
shareholder must generally use an applicable IRS Form W-8, or substantially similar form, to claim tax treaty benefits. If the amount
of tax withheld with respect to a distribution to a non-U.S. shareholder exceeds the shareholder’s U.S. federal income tax liability
with respect to the distribution, the non-U.S. shareholder may file for a refund of the excess from the IRS. Treasury regulations also
provide special rules to determine whether, for purposes of determining the applicability of a tax treaty, our distributions to a non-U.S.
shareholder that is an entity should be treated as paid to the entity or to those owning an interest in that entity, and whether the entity
or its owners are entitled to benefits under the tax treaty.
If, contrary to our expectation, a class of our
shares was not regularly traded on an established securities market in the United States and we made a distribution on those shares that
was attributable to gain from the sale or exchange of a USRPI, then a non-U.S. shareholder holding those shares would be taxed as if the
distribution was gain effectively connected with a trade or business in the United States conducted by the non-U.S. shareholder. In addition,
the applicable withholding agent would be required to withhold from a distribution to such a non-U.S. shareholder, and remit to the IRS,
up to 21% of the maximum amount of any distribution that was or could have been designated as a capital gain dividend. The non-U.S. shareholder
also would generally be subject to the same treatment as a U.S. shareholder with respect to the distribution (subject to any applicable
alternative minimum tax and a special alternative minimum tax in the case of a nonresident alien individual), would be subject to fulsome
U.S. federal income tax return reporting requirements, and, in the case of a corporate non-U.S. shareholder, may owe the up to 30% branch
profits tax under Section 884 of the IRC (or lower applicable tax treaty rate) in respect of these amounts.
Although the law is not entirely clear on the matter,
it appears that amounts designated by us as undistributed capital gain in respect of our shares that are held by non-U.S. shareholders
generally should be treated in the same manner as actual distributions by us of capital gain dividends. Under this approach, the non-U.S.
shareholder would be able to offset as a credit against its resulting U.S. federal income tax liability its proportionate share of the
tax paid by us on the undistributed capital gain treated as distributed to the non-U.S. shareholder, and receive from the IRS a refund
to the extent its proportionate share of the tax paid by us were to exceed the non-U.S. shareholder’s actual U.S. federal income
tax liability on such deemed distribution. If we were to designate any portion of our net capital gain as undistributed capital gain,
a non-U.S. shareholder should consult its tax advisors regarding taxation of such undistributed capital gain.
Dispositions of Our Shares. If as expected
our shares are not USRPIs, then a non-U.S. shareholder’s gain on the sale of these shares generally will not be subject to U.S.
federal income taxation or withholding. We expect that our shares will not be USRPIs because one or both of the following exemptions will
be available at all times.
27
First, for so long as a class of our shares is
regularly traded on an established securities market in the United States, a non-U.S. shareholder’s gain on the sale of those shares
will not be subject to U.S. federal income taxation as a sale of a USRPI. Second, our shares will not constitute USRPIs if we are a “domestically
controlled” REIT. We will be a “domestically controlled” REIT if less than 50% of the value of our shares (including
any future class of shares that we may issue) is held, directly or indirectly, by non-U.S. shareholders at all times during the preceding
five years, after applying specified presumptions regarding the ownership of our shares as described in Section 897(h)(4)(E) of the IRC.
For these purposes, we believe that the statutory ownership presumptions apply to validate our status as a “domestically controlled”
REIT. Accordingly, we believe that we are and will remain a “domestically controlled” REIT.
If, contrary to our expectation, a gain on the
sale of our shares is subject to U.S. federal income taxation (for example, because neither of the above exemptions were then available,
i.e., that class of our shares were not then regularly traded on an established securities market in the United States and we were not
a “domestically controlled” REIT), then (a) a non-U.S. shareholder would generally be subject to the same treatment as a U.S.
shareholder with respect to its gain (subject to any applicable alternative minimum tax and a special alternative minimum tax in the case
of nonresident alien individuals), (b) the non-U.S. shareholder would also be subject to fulsome U.S. federal income tax return reporting
requirements, and (c) a purchaser of that class of our shares from the non-U.S. shareholder may be required to withhold 15% of the purchase
price paid to the non-U.S. shareholder and to remit the withheld amount to the IRS.
Taxation of Holders of Our Warrants
A holder of our warrants, whether a U.S. holder,
tax-exempt entity or non-U.S. holder, is not expected to recognize income, gain or loss upon exercise of a warrant by paying its exercise
price to acquire our shares. A holder’s tax basis in one of our shares received upon such exercise would be equal to the sum of
(1) the holder’s tax basis in the warrant exchanged therefor and (2) the exercise price of such warrant. A holder’s holding
period in a share received upon exercise would commence on the day after the holder exercises the warrant. Although not free from doubt,
it is possible that a holder’s exercise of warrants on a cashless basis to acquire our shares may not be treated as a sale or disposition
of the warrants. Otherwise, upon a sale or disposition of our warrants other than by exercise, (i) if you are a U.S. holder, you would
generally recognize gain or loss; (ii) if you are a U.S. tax-exempt entity holder, you would generally not recognize gain or loss (subject
to similar exceptions as for a tax-exempt U.S. shareholder’s disposition of our shares); and (iii) if you are a non-U.S. holder,
because we believe that no position in our warrants would ever have a value in excess of 5% of the value of our shares, we anticipate
that you would not be subject to U.S. federal income tax on gain, provided our shares are regularly traded on an established securities
market (we cannot be sure whether this is or will continue to be the case). A non-U.S. holder may also not be taxable on gain on the sale
or disposition of a warrant other than by exercise if we are a “domestically controlled” REIT, as discussed above under “Taxation
of Non-U.S. Shareholders─Dispositions of Our Shares.” If a warrant expired without being exercised, a U.S. holder should recognize
a capital loss in an amount equal to such holder’s tax basis in the warrant. Any recognized gain or loss on the disposition of a
warrant other than by exercise or loss on expiration would be long-term capital gain or loss if the holder’s holding period in the
warrant were more than one year at the time of disposition or expiration, else it would be short-term capital gain or loss. The deductibility
of capital losses is subject to limitations.
28
If the exercise price of a warrant is adjusted
or in some circumstances not adjusted as a result of certain events affecting our shares, the adjustment or lack of adjustment may result
in the deemed payment of a taxable dividend to a holder. Similarly, the receipt of an actual distribution with respect to a warrant as
a result of an event affecting our shares may constitute in whole or in part a taxable dividend to a holder. A deemed dividend would generally
give rise to a U.S. federal withholding tax liability for any warrants held by non-U.S. holders. Holders should consult their tax advisors
regarding the proper treatment of any adjustments to the exercise price of our warrants.
Information Reporting, Backup Withholding, and Foreign Account Withholding
Information reporting, backup withholding, and
foreign account withholding may apply to distributions or proceeds paid to our holders under the circumstances discussed below. If a holder
is subject to backup or other U.S. federal income tax withholding, then the applicable withholding agent will be required to withhold
the appropriate amount with respect to a deemed or constructive distribution or a distribution in kind even though there is insufficient
cash from which to satisfy the withholding obligation. To satisfy this withholding obligation, the applicable withholding agent may collect
the amount of U.S. federal income tax required to be withheld by reducing to cash for remittance to the IRS a sufficient portion of the
property that the holder would otherwise receive or own, and the holder may bear brokerage or other costs for this withholding procedure.
Amounts withheld under backup withholding are generally
not an additional tax and may be refunded by the IRS or credited against the holder’s federal income tax liability, provided that
such holder timely files for a refund or credit with the IRS. A U.S. holder may be subject to backup withholding when it receives distributions
on our shares or warrants, as applicable, or proceeds upon the sale, exchange, redemption, retirement or other disposition of our shares
or warrants, as applicable, unless the U.S. holder properly executes, or has previously properly executed, under penalties of perjury
an IRS Form W-9 or substantially similar form that:
· provides the U.S. holder’s correct taxpayer identification number;
· certifies that the U.S. holder is exempt from backup withholding because
(a) it comes within an enumerated exempt category, (b) it has not been notified by the IRS that it is subject to backup withholding, or
(c) it has been notified by the IRS that it is no longer subject to backup withholding; and
· certifies that it is a U.S. citizen or other U.S. person.
29
If the U.S. holder has not provided and does not
provide its correct taxpayer identification number and appropriate certifications on an IRS Form W-9 or substantially similar form, it
may be subject to penalties imposed by the IRS, and the applicable withholding agent may have to withhold a portion of any distributions
or proceeds paid to such U.S. holder. Unless the U.S. holder has established on a properly executed IRS Form W-9 or substantially similar
form that it comes within an enumerated exempt category, distributions or proceeds on our shares paid to it during the calendar year,
and the amount of tax withheld, if any, will be reported to it and to the IRS.
Distributions on our shares or warrants, as applicable,
to a non-U.S. holder during each calendar year and the amount of tax withheld, if any, will generally be reported to the non-U.S. holder
and to the IRS. This information reporting requirement applies regardless of whether the non-U.S. holder is subject to withholding on
distributions on our shares or warrants, as applicable, or whether the withholding was reduced or eliminated by an applicable tax treaty.
Also, distributions paid to a non-U.S. holder on our shares or warrants, as applicable, will generally be subject to backup withholding,
unless the non-U.S. holder properly certifies to the applicable withholding agent its non-U.S. holder status on an applicable IRS Form
W-8 or substantially similar form. Information reporting and backup withholding will not apply to proceeds a non-U.S. holder receives
upon the sale, exchange, redemption, retirement or other disposition of our shares or warrants, as applicable, if the non-U.S. holder
properly certifies to the applicable withholding agent its non-U.S. holder status on an applicable IRS Form W-8 or substantially similar
form. Even without having executed an applicable IRS Form W-8 or substantially similar form, however, in some cases information reporting
and backup withholding will not apply to proceeds that a non-U.S. holder receives upon the sale, exchange, redemption, retirement or other
disposition of our shares or warrants, as applicable, if the non-U.S. holder receives those proceeds through a broker’s foreign
office.
Non-U.S. financial institutions and other non-U.S.
entities are subject to diligence and reporting requirements for purposes of identifying accounts and investments held directly or indirectly
by U.S. persons. The failure to comply with these additional information reporting, certification and other requirements could result
in a 30% U.S. withholding tax on applicable payments to non-U.S. persons, notwithstanding any otherwise applicable provisions of an income
tax treaty. In particular, a payee that is a foreign financial institution that is subject to the diligence and reporting requirements
described above must enter into an agreement with the U.S. Department of the Treasury requiring, among other things, that it undertake
to identify accounts held by “specified United States persons” or “United States owned foreign entities” (each
as defined in the IRC and administrative guidance thereunder), annually report information about such accounts, and withhold 30% on applicable
payments to noncompliant foreign financial institutions and account holders. Foreign financial institutions located in jurisdictions that
have an intergovernmental agreement with the United States with respect to these requirements may be subject to different rules. The foregoing
withholding regime generally applies to payments of dividends on our shares. In general, to avoid withholding, any non-U.S. intermediary
through which a holder owns our shares or warrants, as applicable, must establish its compliance with the foregoing regime, and a non-U.S.
holder must provide specified documentation (usually an applicable IRS Form W-8) containing information about its identity, its status,
and if required, its direct and indirect U.S. owners. Non-U.S. holders and holders who hold our shares or warrants, as applicable, through
a non-U.S. intermediary are encouraged to consult their own tax advisors regarding foreign account tax compliance.
30
Other Tax Considerations
Our tax treatment and that of our shareholders
and warrant holders may be modified by legislative, judicial or administrative actions at any time, which actions may have retroactive
effect. The rules dealing with federal income taxation are constantly under review by the U.S. Congress, the IRS and the U.S. Department
of the Treasury, and statutory changes, new regulations, revisions to existing regulations and revised interpretations of established
concepts are issued frequently. Likewise, the rules regarding taxes other than U.S. federal income taxes may also be modified. No prediction
can be made as to the likelihood of passage of new tax legislation or other provisions, or the direct or indirect effect on us, our shareholders
and our warrant holders. Revisions to tax laws and interpretations of these laws could adversely affect our ability to qualify and be
taxed as a REIT, as well as the tax or other consequences of an investment in our shares or warrants, as applicable. We and our holders
may also be subject to taxation by state, local or other jurisdictions, including those in which we or our holders transact business or
reside. These tax consequences may not be comparable to the U.S. federal income tax consequences discussed above.
31
ERISA PLANS, KEOGH PLANS AND INDIVIDUAL RETIREMENT
ACCOUNTS
General Fiduciary Obligations
The Employee Retirement Income Security Act of
1974, as amended, or ERISA, the IRC and similar provisions to those described below under applicable foreign or state law, individually
and collectively, impose certain duties on persons who are fiduciaries of any employee benefit plan subject to Title I of ERISA, or an
ERISA Plan, or an individual retirement account or annuity, or an IRA, a Roth IRA, a tax-favored account (such as an Archer MSA, Coverdell
education savings account or health savings account), a Keogh plan or other qualified retirement plan not subject to Title I of ERISA,
each a Non-ERISA Plan. Under ERISA and the IRC, any person who exercises any discretionary authority or control over the administration
of, or the management or disposition of the assets of, an ERISA Plan or Non-ERISA Plan, or who renders investment advice for a fee or
other compensation to an ERISA Plan or Non-ERISA Plan, is generally considered to be a fiduciary of the ERISA Plan or Non-ERISA Plan.
Fiduciaries of an ERISA Plan must consider whether:
· their investment in our shares or other securities satisfies the diversification
requirements of ERISA;
· the investment is prudent in light of possible limitations on the marketability
of our shares;
· they have authority to acquire our shares or other securities under the applicable
governing instrument and Title I of ERISA; and
· the investment is otherwise consistent with their fiduciary responsibilities.
Fiduciaries of an ERISA Plan may incur personal
liability for any loss suffered by the ERISA Plan on account of a violation of their fiduciary responsibilities. In addition, these fiduciaries
may be subject to a civil penalty of up to 20% of any amount recovered by the ERISA Plan on account of a violation. Fiduciaries of any
Non-ERISA Plan should consider that the Non-ERISA Plan may only make investments that are authorized by the appropriate governing instrument
and applicable law.
Fiduciaries considering an investment in our securities
should consult their own legal advisors if they have any concern as to whether the investment is consistent with the foregoing criteria
or is otherwise appropriate. The sale of our securities to an ERISA Plan or Non-ERISA Plan is in no respect a representation by us or
any underwriter of the securities that the investment meets all relevant legal requirements with respect to investments by the arrangements
generally or any particular arrangement, or that the investment is appropriate for arrangements generally or any particular arrangement.
32
Prohibited Transactions
Fiduciaries of ERISA Plans and persons making the
investment decision for Non-ERISA Plans should consider the application of the prohibited transaction provisions of ERISA and the IRC
in making their investment decision. Sales and other transactions between an ERISA Plan or a Non-ERISA Plan and disqualified persons or
parties in interest, as applicable, are prohibited transactions and result in adverse consequences absent an exemption. The particular
facts concerning the sponsorship, operations and other investments of an ERISA Plan or Non-ERISA Plan may cause a wide range of persons
to be treated as disqualified persons or parties in interest with respect to it. A non-exempt prohibited transaction, in addition to imposing
potential personal liability upon ERISA Plan fiduciaries, may also result in the imposition of an excise tax under the IRC or a penalty
under ERISA upon the disqualified person or party in interest. If the disqualified person who engages in the transaction is the individual
on behalf of whom an IRA, Roth IRA or other tax-favored account is maintained (or their beneficiary), the IRA, Roth IRA or other tax-favored
account may lose its tax-exempt status and its assets may be deemed to have been distributed to the individual in a taxable distribution
on account of the non-exempt prohibited transaction, but no excise tax will be imposed. Fiduciaries considering an investment in our securities
should consult their own legal advisors as to whether the ownership of our securities involves a non-exempt prohibited transaction.
“Plan Assets” Considerations
The U.S. Department of Labor has issued a regulation
defining “plan assets.” The regulation, as subsequently modified by ERISA, generally provides that when an ERISA Plan or a
Non-ERISA Plan otherwise subject to Title I of ERISA and/or Section 4975 of the IRC acquires an equity interest in an entity that is neither
a “publicly offered security” nor a security issued by an investment company registered under the Investment Company Act of
1940, as amended, the assets of the ERISA Plan or Non-ERISA Plan include both the equity interest and an undivided interest in each of
the underlying assets of the entity, unless it is established either that the entity is an operating company or that equity participation
in the entity by benefit plan investors is not significant. We are not an investment company registered under the Investment Company Act
of 1940, as amended.
Each class of our equity (that is, our common shares
and any other class of equity that we may issue) must be analyzed separately to ascertain whether it is a publicly offered security. The
regulation defines a publicly offered security as a security that is “widely held,” “freely transferable” and
either part of a class of securities registered under the Exchange Act, or sold under an effective registration statement under the Securities
Act of 1933, as amended, or the Securities Act, provided the securities are registered under the Exchange Act within 120 days after the
end of the fiscal year of the issuer during which the offering occurred. Each class of our outstanding equity has been registered under
the Exchange Act within the necessary time frame to satisfy the foregoing condition.
33
The regulation provides that a security is “widely
held” only if it is part of a class of securities that is owned by 100 or more investors independent of the issuer and of one another.
However, a security will not fail to be “widely held” because the number of independent investors falls below 100 subsequent
to the initial public offering as a result of events beyond the issuer’s control. Although we cannot be sure, we believe our common
shares have been and will remain widely held, and we expect the same to be true of any future class of equity that we may issue.
The regulation provides that whether a security
is “freely transferable” is a factual question to be determined on the basis of all relevant facts and circumstances. The
regulation further provides that, where a security is part of an offering in which the minimum investment is $10,000 or less, some restrictions
on transfer ordinarily will not, alone or in combination, affect a finding that the securities are freely transferable. The restrictions
on transfer enumerated in the regulation as not affecting that finding include any restriction on or prohibition against any transfer
or assignment that would result in a termination or reclassification for federal or state tax purposes, or would otherwise violate any
state or federal law or court order. Additionally, limitations or restrictions on the transfer or assignment of a security that are created
or imposed by persons other than the issuer of a security or persons acting for or on behalf of the issuer will ordinarily not prevent
the security from being considered freely transferable.
We believe that the restrictions imposed under
our declaration of trust and bylaws on the transfer of our common shares do not result in the failure of our shares to be “freely
transferable.” In addition, we do not expect or intend to impose in the future, or to permit any person to impose on our behalf,
on common shares owned by an ERISA Plan or Non-ERISA Plan, any limitations or restrictions on transfer that would not be among the enumerated
permissible limitations or restrictions in the regulation and that would otherwise result in the failure of our common shares to be “freely
transferable”. Assuming that each class of our common shares will be “widely held” and that no facts and circumstances
exist that prevent common shares owned by an ERISA Plan or Non-ERISA Plan from being “freely transferable” for purposes of
the regulation, our counsel, Sullivan & Worcester LLP, is of the opinion that under the regulation each class of our currently outstanding
equity is publicly offered and our assets will not be deemed to be “plan assets” of any ERISA Plan or Non-ERISA Plan that
acquires our equity in a public offering. This opinion is conditioned upon certain assumptions and representations, as discussed above
under the heading “Material United States Federal Income Tax Considerations—Taxation as a REIT.” Also, the opinion of
our counsel is not binding on either the Department of Labor or a court, and either could take a position different from that expressed
by our counsel.
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No definition available.
+ Details
Name:
dei_CurrentFiscalYearEndDate
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dei_
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xbrli:gMonthDayItemType
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na
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duration
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- Definition
For the EDGAR submission types of Form 8-K: the date of the report, the date of the earliest event reported; for the EDGAR submission types of Form N-1A: the filing date; for all other submission types: the end of the reporting or transition period. The format of the date is YYYY-MM-DD.
+ References
No definition available.
+ Details
Name:
dei_DocumentPeriodEndDate
Namespace Prefix:
dei_
Data Type:
xbrli:dateItemType
Balance Type:
na
Period Type:
duration
X
- Definition
The type of document being provided (such as 10-K, 10-Q, 485BPOS, etc). The document type is limited to the same value as the supporting SEC submission type, or the word 'Other'.
+ References
No definition available.
+ Details
Name:
dei_DocumentType
Namespace Prefix:
dei_
Data Type:
dei:submissionTypeItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Address Line 1 such as Attn, Building Name, Street Name
+ References
No definition available.
+ Details
Name:
dei_EntityAddressAddressLine1
Namespace Prefix:
dei_
Data Type:
xbrli:normalizedStringItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Address Line 2 such as Street or Suite number
+ References
No definition available.
+ Details
Name:
dei_EntityAddressAddressLine2
Namespace Prefix:
dei_
Data Type:
xbrli:normalizedStringItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Address Line 3 such as an Office Park
+ References
No definition available.
+ Details
Name:
dei_EntityAddressAddressLine3
Namespace Prefix:
dei_
Data Type:
xbrli:normalizedStringItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Name of the City or Town
+ References
No definition available.
+ Details
Name:
dei_EntityAddressCityOrTown
Namespace Prefix:
dei_
Data Type:
xbrli:normalizedStringItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Code for the postal or zip code
+ References
No definition available.
+ Details
Name:
dei_EntityAddressPostalZipCode
Namespace Prefix:
dei_
Data Type:
xbrli:normalizedStringItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Name of the state or province.
+ References
No definition available.
+ Details
Name:
dei_EntityAddressStateOrProvince
Namespace Prefix:
dei_
Data Type:
dei:stateOrProvinceItemType
Balance Type:
na
Period Type:
duration
X
- Definition
A unique 10-digit SEC-issued value to identify entities that have filed disclosures with the SEC. It is commonly abbreviated as CIK.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
+ Details
Name:
dei_EntityCentralIndexKey
Namespace Prefix:
dei_
Data Type:
dei:centralIndexKeyItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Indicate if registrant meets the emerging growth company criteria.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
+ Details
Name:
dei_EntityEmergingGrowthCompany
Namespace Prefix:
dei_
Data Type:
xbrli:booleanItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Commission file number. The field allows up to 17 characters. The prefix may contain 1-3 digits, the sequence number may contain 1-8 digits, the optional suffix may contain 1-4 characters, and the fields are separated with a hyphen.
+ References
No definition available.
+ Details
Name:
dei_EntityFileNumber
Namespace Prefix:
dei_
Data Type:
dei:fileNumberItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Two-character EDGAR code representing the state or country of incorporation.
+ References
No definition available.
+ Details
Name:
dei_EntityIncorporationStateCountryCode
Namespace Prefix:
dei_
Data Type:
dei:edgarStateCountryItemType
Balance Type:
na
Period Type:
duration
X
- Definition
The exact name of the entity filing the report as specified in its charter, which is required by forms filed with the SEC.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
+ Details
Name:
dei_EntityRegistrantName
Namespace Prefix:
dei_
Data Type:
xbrli:normalizedStringItemType
Balance Type:
na
Period Type:
duration
X
- Definition
The Tax Identification Number (TIN), also known as an Employer Identification Number (EIN), is a unique 9-digit value assigned by the IRS.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
+ Details
Name:
dei_EntityTaxIdentificationNumber
Namespace Prefix:
dei_
Data Type:
dei:employerIdItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Local phone number for entity.
+ References
No definition available.
+ Details
Name:
dei_LocalPhoneNumber
Namespace Prefix:
dei_
Data Type:
xbrli:normalizedStringItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 13e
-Subsection 4c
+ Details
Name:
dei_PreCommencementIssuerTenderOffer
Namespace Prefix:
dei_
Data Type:
xbrli:booleanItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 14d
-Subsection 2b
+ Details
Name:
dei_PreCommencementTenderOffer
Namespace Prefix:
dei_
Data Type:
xbrli:booleanItemType
Balance Type:
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Period Type:
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X
- Definition
Title of a 12(b) registered security.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b
+ Details
Name:
dei_Security12bTitle
Namespace Prefix:
dei_
Data Type:
dei:securityTitleItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Name of the Exchange on which a security is registered.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection d1-1
+ Details
Name:
dei_SecurityExchangeName
Namespace Prefix:
dei_
Data Type:
dei:edgarExchangeCodeItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as soliciting material pursuant to Rule 14a-12 under the Exchange Act.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 14a
-Subsection 12
+ Details
Name:
dei_SolicitingMaterial
Namespace Prefix:
dei_
Data Type:
xbrli:booleanItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Trading symbol of an instrument as listed on an exchange.
+ References
No definition available.
+ Details
Name:
dei_TradingSymbol
Namespace Prefix:
dei_
Data Type:
dei:tradingSymbolItemType
Balance Type:
na
Period Type:
duration
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- Definition
Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as written communications pursuant to Rule 425 under the Securities Act.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Securities Act
-Number 230
-Section 425
+ Details
Name:
dei_WrittenCommunications
Namespace Prefix:
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