8-K

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):

July 17, 2013

Spirit Realty Capital, Inc.

(Exact name of registrant as specified in its charter)

Maryland	000-51963	20-1676382
(State or other jurisdiction of incorporation)	(Commission File Number)	(IRS Employer Identification No.)

16767 North Perimeter Drive, Suite 210, Scottsdale, Arizona 85260

(Address of principal executive offices) (Zip Code)

Registrant’s telephone number, including area code: (480) 606-0820

Cole Credit Property Trust II, Inc.

2325 East Camelback Road, Suite 1100, Phoenix, Arizona 85016

(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 (see General Instructions A.2.):

¨ 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))

Introductory Note

This Current Report on Form 8-K is being filed in connection with the consummation on July 17, 2013 (the “Closing Date”) of the transactions contemplated by that certain Agreement and Plan of Merger, dated as of January 22, 2013, as amended by the First Amendment to Agreement and Plan of Merger, dated as of May 8, 2013 (the “Merger Agreement”), by and among Spirit Realty Capital, Inc. (f/k/a Cole Credit Property Trust II, Inc.), a Maryland corporation (the “Company”), Spirit Realty Capital, Inc., a Maryland corporation (“Old Spirit”), Cole Operating Partnership II, LP, a Delaware limited partnership and Spirit Realty, L.P., a Delaware limited partnership. Pursuant to the Merger Agreement, (i) on July 17, 2013, Old Spirit merged with and into the Company, then known as Cole Credit Property Trust II, Inc. (the “Company Merger”), at which time Old Spirit ceased to exist, the Company continued as the surviving corporation and the Company changed its name to Spirit Realty Capital, Inc.; and (ii) on July 17, 2013, the Cole Operating Partnership II, LP merged with and into Spirit Realty, L.P. (the “Partnership Merger” and together with the Company Merger, the “Mergers”), with Spirit Realty, L.P. continuing as the surviving limited partnership (the “Surviving Partnership”). The following events took place in connection with the consummation of the Mergers:

Item 1.01. Entry into a Material Definitive Agreement

Credit Facility

On July 17, 2013, the Surviving Partnership and various affiliates thereof, entered into a credit agreement (the “Credit Agreement”) with various lenders and with Deutsche Bank Securities Inc., as lead arranger and book running manager, and with Deutsche Bank AG New York Branch, as lead arranger and administrative agent. The Surviving Partnership’s obligations under the Credit Agreement are guaranteed by the Company, OP Holdings (as defined below), Spirit Master Funding IV, LLC, a Delaware limited liability company, and Spirit Master Funding V, LLC, a Delaware limited liability company. Pursuant to the Credit Agreement, consistent with the terms, conditions and provisions of a three-year revolving credit facility, the Surviving Partnership and its affiliates may obtain loans and/or extensions of credit (under a revolving credit facility) in an aggregate amount not exceeding $400,000,000.

The initial term expires on July 17, 2016 and may be extended for an additional 12 months subject to the satisfaction of specified requirements. The credit facility bears interest, at the Surviving Partnership’s option, of either (i) the “Base Rate” (as defined in the credit agreement) plus 1.00% to 2.00%; or (ii) LIBOR plus 2.00% to 3.00%, depending on the Surviving Partnership’s leverage ratio. The Surviving Partnership is also required to pay a fee on the unused portion of the credit facility at a rate of either 0.25% or 0.35% per annum, based on percentage thresholds for the average daily unused balance during a fiscal quarter.

In connection with the Credit Agreement, the Company and Spirit General OP Holdings, LLC, a Delaware limited liability company all of the interests of which are now owned by the Company and which is the general partner of the Surviving Partnership (“OP Holdings”), entered into the following agreements, each dated as of July 17, 2013:

Guaranty, pursuant to which the Company and OP Holdings provide a guaranty of the obligations of the Surviving Partnership under the Credit Agreement;

Security Agreement, pursuant to which the Company, OP Holdings, the Surviving Partnership and the other entities party thereto will each grant a security interest in all of its right, title and interest in all tangible and intangible property and assets of such party to secure the obligations of the Surviving Partnership under the Credit Agreement; and

Omnibus Collateral Assignment of Material Agreements, Permits and Licenses, pursuant to which each of the Company, OP Holdings and the other entities party thereto will collaterally assign and grant to the administrative agent a security interest in all of such party’s rights, title and interest in and to all material agreements, permits and licenses to secure the obligations of the Surviving Partnership under the Credit Agreement.

The foregoing description is qualified in its entirety by reference to the Credit Agreement and each of the agreements referenced above, which have been included herewith as Exhibit 10.1 through Exhibit 10.4 and are incorporated herein by reference.

CMBS

On July 17, 2013, Spirit SPE Loan Portfolio 2013-2, LLC, a Delaware limited liability company (“Spirit SPE 2013-2”), of which the Surviving Partnership is the sole Member, entered into a Loan Agreement (“GACC Loan Agreement”) with German American Capital Corporation, a Maryland corporation (“GACC”), pursuant to which GACC may make extensions of credit to Spirit SPE 2013-2 in an aggregate amount not to exceed $100,865,909.35. In connection with the GACC Loan Agreement, the Surviving Partnership has entered into a Guaranty of Recourse Obligations of Borrower, dated as of the date of the GACC Loan Agreement (the “GACC Guaranty”), in favor of GACC, pursuant to which the Surviving Partnership will provide a guaranty of Spirit SPE 2013-2’s recourse obligations under the GACC Loan Agreement, as more fully described therein.

On July 17, 2013, Spirit SPE Loan Portfolio 2013-3, LLC, a Delaware limited liability company (“Spirit SPE 2013-3”), of which the Surviving Partnership is the sole Member, entered into a Loan Agreement (“Barclays Loan Agreement” and, together with the GACC Loan Agreement, the “Loan Agreements”) with Barclays Bank PLC, a public company registered in England and Wales (“Barclays”), pursuant to which Barclays may make extensions of credit to Spirit SPE 2013-3 in an aggregate amount not to exceed $102,134,090.65. In connection with the Barclays Loan Agreement, the Surviving Partnership has entered into a Guaranty of Recourse Obligations of Borrower, dated as of the date of the Barclays Loan Agreement (the “Barclays Guaranty” and, together with the GACC Guaranty, the “Guaranties”), in favor of Barclays, pursuant to which the Surviving Partnership will provide a guaranty of Spirit SPE 2013-3’s recourse obligations under the Barclays Loan Agreement, as more fully described therein.

The foregoing description is qualified in its entirety by reference to the Loan Agreements and the Guaranties, which have been included herewith as Exhibit 10.5 through Exhibit 10.8 and are incorporated herein by reference.

Item 1.02. Termination of a Material Definitive Agreement

In connection with the Mergers, the Company and Cole Operating Partnership II, LP terminated the secured revolving credit facility, pursuant to that certain Amended and Restated Credit Agreement dated as of December 17, 2010, by and among the Cole Operating Partnership II, LP, Bank of America, N.A., as administrative agent, swing line lender and L/C issuer, and the various financial institutions parties thereto, as guaranteed by the Company.

Also in connection with the Mergers, the current agreements between the Company and each of Cole REIT Advisors II, LLC and Cole Realty Advisors, Inc. (f/k/a Fund Realty Advisors, Inc.) were terminated upon the closing of the Company Merger.

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

The information contained in Item 1.01 of this report is incorporated by reference in this Item 2.03.

Item 9.01. Financial Statements and Exhibits

(d) Exhibits

Exhibit No.	Description
10.1	Credit Agreement, by and among Deutsche Bank Securities Inc., Deutsche Bank AG New York Branch, Spirit Realty, L.P. and various lenders, dated as of July 17, 2013.
10.2	Guaranty, by and among Spirit Realty Capital, Inc. (f/k/a Cole Credit Property Trust II, Inc.), Spirit General OP Holdings, LLC, Deutsche Bank Securities Inc. and various lenders, dated as of July 17, 2013.
10.3	Security Agreement, by and among Spirit Realty Capital, Inc. (f/k/a Cole Credit Property Trust II, Inc.), Spirit General OP Holdings, LLC, Spirit Realty, L.P., Spirit Master Funding IV, LLC, Spirit Master Funding V, LLC, Deutsche Bank Securities Inc. and various lenders, dated as of July 17, 2013.
10.4	Omnibus Collateral Assignment of Material Agreements, Permits and Licenses, by and among Spirit Realty Capital, Inc. (f/k/a Cole Credit Property Trust II, Inc.), Spirit General OP Holdings, LLC, Spirit Realty, L.P., Spirit Master Funding IV, LLC, Spirit Master Funding V, LLC, Deutsche Bank Securities Inc. and various lenders, dated as of July 17, 2013.
10.5	Loan Agreement, between German American Capital Corporation and Spirit SPE Loan Portfolio 2013-2, LLC, dated as of July 17, 2013.
10.6	Guaranty of Recourse Obligations of Borrower, by Spirit Realty, L.P. in favor of German American Capital Corporation, dated as of July 17, 2013.
10.7	Loan Agreement, between Barclays Bank PLC and Spirit SPE Loan Portfolio 2013-3, LLC, dated as of July 17, 2013.
10.8	Guaranty of Recourse Obligations of Borrower by Spirit Realty, L.P. in favor of Barclays Bank PLC, dated as of July 17, 2013.

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.

SPIRIT REALTY CAPITAL, INC.
By:	/s/ Michael A. Bender
	Michael A. Bender
	Chief Financial Officer, Senior Vice President and Treasurer

Date: July 17, 2013

EXHIBIT INDEX

Exhibit Number	Description
10.1	Credit Agreement, by and among Deutsche Bank Securities Inc., Deutsche Bank AG New York Branch, Spirit Realty, L.P. and various lenders, dated as of July 17, 2013.
10.2	Guaranty, by and among Spirit Realty Capital, Inc. (f/k/a Cole Credit Property Trust II, Inc.), Spirit General OP Holdings, LLC, Deutsche Bank Securities Inc. and various lenders, dated as of July 17, 2013.
10.3	Security Agreement, by and among Spirit Realty Capital, Inc. (f/k/a Cole Credit Property Trust II, Inc.), Spirit General OP Holdings, LLC, Spirit Realty, L.P., Spirit Master Funding IV, LLC, Spirit Master Funding V, LLC, Deutsche Bank Securities Inc. and various lenders, dated as of July 17, 2013.
10.4	Omnibus Collateral Assignment of Material Agreements, Permits and Licenses, by and among Spirit Realty Capital, Inc. (f/k/a Cole Credit Property Trust II, Inc.), Spirit General OP Holdings, LLC, Spirit Realty, L.P., Spirit Master Funding IV, LLC, Spirit Master Funding V, LLC, Deutsche Bank Securities Inc. and various lenders, dated as of July 17, 2013.
10.5	Loan Agreement, between German American Capital Corporation and Spirit SPE Loan Portfolio 2013-2, LLC, dated as of July 17, 2013.
10.6	Guaranty of Recourse Obligations of Borrower by Spirit Realty, L.P. in favor of German American Capital Corporation, dated as of July 17, 2013.
10.7	Loan Agreement, between Barclays Bank PLC and Spirit SPE Loan Portfolio 2013-3, LLC, dated as of July 17, 2013.
10.8	Guaranty of Recourse Obligations of Borrower by Spirit Realty, L.P. in favor of Barclays Bank PLC, dated as of July 17, 2013.

EX-10.1

Exhibit 10.1

U.S. $400,000,000

CREDIT AGREEMENT

dated as of July 17, 2013

among

SPIRIT REALTY, L.P.,

as the Borrower,

VARIOUS FINANCIAL INSTITUTIONS,

as the Lenders,

DEUTSCHE BANK AG NEW YORK BRANCH,

as the Lead Arranger and Administrative Agent,

BANK OF AMERICA, N.A. and RBC CAPITAL MARKETS¹

as Co-Syndication Agents,

CAPITAL ONE BANK NATIONAL ASSOCIATION, SUNTRUST BANK,

BARCLAYS BANK PLC and REGIONS BANK

as Senior Managing Agents,

and.

MORGAN STANLEY SENIOR FUNDING, INC. and UBS SECURITIES LLC

as Co-Documentation Agents

DEUTSCHE BANK SECURITIES INC.

as Book Running Manager

¹  RBC Capital Markets is the global brand name for the corporate and investment banking businesses of Royal Bank of Canada and its affiliates.

TABLE OF CONTENTS

		Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.1	Defined Terms		1
Section 1.2	Use of Defined Terms		33
Section 1.3	Cross-References		33
Section 1.4	Accounting and Financial Determinations		33
ARTICLE II
REVOLVING LOAN COMMITMENT AND
BORROWING PROCEDURES, NOTES
Section 2.1	Commitments		34
Section 2.2	Reduction of the Commitment Amounts		35
Section 2.3	Borrowing Procedures		36
Section 2.4	Continuation and Conversion Elections		37
Section 2.5	Funding		37
Section 2.6	Issuance Procedures		38
Section 2.7	Loan Accounts and Revolving Notes		41
Section 2.8	Intentionally Omitted		41
Section 2.9	Swingline Loan Subfacility		42
ARTICLE III
MATURITY DATE; REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
Section 3.1	Maturity Date; Extension Option		44
Section 3.2	Repayments and Prepayments; Application		45
Section 3.3	Interest Provisions		47
Section 3.4	Fees		48
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
Section 4.1	LIBO Rate Lending Unlawful		49
Section 4.2	Deposits Unavailable		49
Section 4.3	Change of Circumstances		49
Section 4.4	Replacement of Lender		50
Section 4.5	Funding Losses		51
Section 4.6	Taxes		52

i

Section 4.7	Change of Lending Office	55
Section 4.8	Payments, Computations, etc.	56
Section 4.9	Sharing of Payments	56
Section 4.10	Setoff	57
ARTICLE V
CONDITIONS TO EFFECTIVENESS AND TO FUTURE CREDIT EXTENSIONS
Section 5.1	Conditions Precedent to Making of Initial Loan and the Issuance of Letters of Credit	57
Section 5.2	All Future Credit Extensions	62
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Section 6.1	Organization, etc.	63
Section 6.2	Due Authorization, Non-Contravention, etc.	63
Section 6.3	Government Approval, Regulation, etc.	64
Section 6.4	Validity, etc.	64
Section 6.5	Financial Information	64
Section 6.6	No Material Adverse Effect	65
Section 6.7	Litigation, etc.	66
Section 6.8	Subsidiaries	66
Section 6.9	Properties	66
Section 6.10	Taxes	68
Section 6.11	ERISA Compliance	69
Section 6.12	Compliance with Environmental Laws	69
Section 6.13	Regulations T, U and X	70
Section 6.14	Accuracy of Information	70
Section 6.15	REIT	70
Section 6.16	No Bankruptcy Filing	70
Section 6.17	Use of Proceeds	71
Section 6.18	Business	71
Section 6.19	Security Interests	71
Section 6.20	Material Agreements	71
Section 6.21	Office of Foreign Assets Control	72
Section 6.22	Labor Relations	72
Section 6.23	Intellectual Property, Licenses, Franchises and Formulas	72
ARTICLE VII
COVENANTS
Section 7.1	Affirmative Covenants	72
Section 7.2	Negative Covenants	83

ii

ARTICLE VIII
EVENTS OF DEFAULT
Section 8.1	Listing of Events of Default	90
Section 8.2	Action if Bankruptcy	93
Section 8.3	Action if Other Event of Default	93
Section 8.4	Actions in Respect of Letters of Credit	93
Section 8.5	Allocation of Proceeds	95
ARTICLE IX
THE ADMINISTRATIVE AGENT
Section 9.1	Appointment	96
Section 9.2	Intentionally Omitted	96
Section 9.3	Nature of Duties	96
Section 9.4	Lack of Reliance on the Administrative Agent	97
Section 9.5	Certain Rights of the Administrative Agent	97
Section 9.6	Reliance	97
Section 9.7	Indemnification	98
Section 9.8	The Administrative Agent in its Individual Capacity	98
Section 9.9	Holders	98
Section 9.10	Resignation by the Administrative Agent	98
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.1	Waivers, Amendments, etc.	99
Section 10.2	Notices	101
Section 10.3	Payment of Costs and Expenses; Indemnification	101
Section 10.4	Survival and Recourse Nature of Obligations	102
Section 10.5	Headings	103
Section 10.6	Execution in Counterparts, Effectiveness, etc.	103
Section 10.7	Governing Law; Entire Agreement	103
Section 10.8	Successors and Assigns	103
Section 10.9	Sale and Transfer of Loans and Notes; Participations in Loans and Notes	104
Section 10.10	No Fiduciary Duties	107
Section 10.11	Confidentiality	107
Section 10.12	Tax Advice	108
Section 10.13	Forum Selection and Consent to Jurisdiction	109
Section 10.14	Waiver of Jury Trial	109

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ANNEX I	Lender Information
SCHEDULE I	Disclosure Schedule
SCHEDULE II	Initial Unencumbered Real Properties & Qualified Tenant Notes
SCHEDULE III	Lenders
SCHEDULE IV	Material Agreements
SCHEDULE V	Pledged Subsidiaries
SCHEDULE VI	Cash Collateral Deposits
EXHIBIT A	Form of Revolving Note
EXHIBIT B-1	Form of Borrowing Request
EXHIBIT B-2	Form of Issuance Request
EXHIBIT C	Form of Continuation and Conversion Notice
EXHIBIT D	Form of Closing Date Certificate
EXHIBIT E	Form of Compliance Certificate
EXHIBIT F	Form of Lender Assignment Agreement
EXHIBIT G-1	Form of Security Agreement
EXHIBIT G-2	Form of Joinder (Security Agreement)
EXHIBIT H-1	Form of Joinder (Guaranty)
EXHIBIT H-2	Form of Guaranty
EXHIBIT H-3	Subsidiary Guaranty
EXHIBIT I	Form of Solvency Certificate
EXHIBIT J	Intentionally Omitted
EXHIBIT K-1	Form of Pledge Agreement
EXHIBIT K-2	Form of Joinder (Pledge Agreement)
EXHIBIT L	Form of Tenant Estoppel Certificate
EXHIBIT M	Form of Omnibus Collateral Assignment of Material Agreements
EXHIBIT N	Form of Tax Compliance Certificate

iv

CREDIT AGREEMENT

THIS CREDIT AGREEMENT, dated as of July 17, 2013, is by and among SPIRIT REALTY, L.P., a Delaware limited partnership (the “Borrower”), DEUTSCHE BANK AG NEW YORK BRANCH (“DBNY”), as the administrative agent (in such capacity, the “Administrative Agent”) and the various financial institutions as are or may become parties hereto (together with DBNY, collectively the “Lenders” and individually, a “Lender”).

W I T N E S S E T H:

WHEREAS, Borrower has requested that the Lenders make a revolving loan in the maximum initial amount of $400,000,000.

WHEREAS, the Lenders are willing to make such loan to Borrower and DBNY is willing to act as administrative agent on behalf of Lenders, subject to and in accordance with the terms of this Agreement and the other Loan Documents (as hereinafter defined).

NOW, THEREFORE, in consideration of the above recitals and the making of the Loan by Lenders and the covenants, agreements, representations and warranties set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby covenant, agree, represent and warrant as follows:

ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS

Section 1.1 Defined Terms. The following terms (whether or not underscored) when used in this Agreement, including its preamble and recitals, shall, except where the context otherwise requires, have the following meanings (such meanings to be equally applicable to the singular and plural forms thereof):

“Acquisition Cost” means, with respect to any Property, (i) the purchase price of a Property as set forth in the applicable purchase and sale agreement or otherwise as approved by the Administrative Agent, plus or minus (ii) increases or reductions to such purchase price as provided in such purchase and sale agreement or the final closing statement.

“Acquisition Expenses” means, with respect to any acquisition or proposed acquisition of assets or properties (including, without limitation, New Acquisitions) by any Member of the Consolidated Group, actual transaction costs and expenses incurred by such member of the Consolidated Group in connection therewith.

“Administrative Agent” is defined in the preamble and includes each other Person as shall have subsequently been appointed as the successor Administrative Agent pursuant to Section 9.10.

“Affiliate” of any Person means any other Person which, directly or indirectly, controls, is controlled by or is under common control with such Person (excluding any trustee

under, or any committee with responsibility for administering, any Plan). With respect to any Lender or the Issuer, a Person shall be deemed to be “controlled by” another Person if such other Person possesses, directly or indirectly, power to vote 51% or more of the securities (on a fully diluted basis) having ordinary voting power for the election of directors or managing general partners of such “controlled” Person. With respect to all other Persons, a Person shall be deemed to be “controlled by” another Person if such other Person possesses, directly or indirectly, power:

(a) to vote 10% or more of the securities (on a fully diluted basis) having ordinary voting power for the election of directors or managing general partners or managing members of such “controlled” Person; or

(b) to direct or cause the direction of the management and policies of such “controlled” Person whether through ownership of voting securities, membership or partnership interests, by contract or otherwise.

“Agreement” means, on any date, this Credit Agreement as amended, supplemented, amended and restated or otherwise modified from time to time and in effect on such date.

“Alternate Base Rate” means, on any date and with respect to all Base Rate Loans, a fluctuating rate of interest per annum (rounded upward, if necessary, to the next highest 1/1000 of 1%) equal to the highest of

(a) the Base Rate in effect on such day;

(b) the Federal Funds Rate in effect on such day plus  ¹/₂ of 1%; and

(c) the LIBO Rate in effect on such date plus 1%.

Changes in the rate of interest on that portion of any Loans maintained as Base Rate Loans will take effect simultaneously with each change in the Alternate Base Rate.

“Applicable Margin” means, with respect to each Loan, the respective percentages per annum determined, at any time, based on the range into which Borrower’s Total Leverage Ratio then falls, in accordance with the following table, as of the last day of the most recent preceding Fiscal Quarter for which financial results have been reported, as determined by Administrative Agent in its reasonable discretion, which percentage shall change upon the date Administrative Agent has received a Compliance Certificate from Borrower with respect to such preceding Fiscal Quarter and approved the same in its reasonable discretion; provided however until the delivery and approval of the first Compliance Certificate in connection with the 4^th Fiscal Quarter of 2013, the Applicable Margin will be determined by reference to the following Total Leverage Ratio: greater than or equal to 50% but less than 55%:

Total Leverage Ratio	Applicable Margin for LIBO Rate Loans (% per annum)			Applicable Margin for Base Rate Loans (% per annum)
Less than 50%		2.00	%		1.00	%

2

Greater than or equal to 50% but less than 55%	2.25	%	1.25	%
Greater than or equal to 55% but less than 60%	2.50	%	1.50	%
Greater than or equal to 60% but less than 65%	3.00	%	2.00	%

Notwithstanding the foregoing, in the event that Borrower does not deliver the applicable Compliance Certificate when due, the Applicable Margin will be determined by reference to the highest Total Leverage Ratio (greater than or equal to 60% but less than 65%) until such Compliance Certificate is delivered. In the event that the Administrative Agent and the Borrower determine that any financial statements previously delivered were incorrect or inaccurate (regardless of whether this Agreement or the Commitments are in effect when such inaccuracy is discovered), and such inaccuracy, if corrected, would have led to the application of a higher Applicable Margin for any period than the Applicable Margin applied for such period, then (i) the Borrower shall as soon as practicable deliver to the Administrative Agent the corrected financial statements for such period, (ii) the Applicable Margin shall be determined based on such corrected financial statements for such period, and (iii) the Borrower shall within three (3) Business Days of demand thereof by the Administrative Agent pay to the Administrative Agent the accrued additional amount owing as a result of such increased Applicable Margin for such period, which payment shall be promptly applied by the Administrative Agent in accordance with this Agreement.

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

“Arranger” means Deutsche Bank Securities Inc. in its capacity as lead arranger and book running manager for the Facility.

“Authorized Officer” means, relative to the Credit Parties, those of its officers whose signatures and incumbency shall have been certified to the Administrative Agent and the Lenders pursuant to Section 5.1.1 and such other officers of the Credit Parties as the applicable Credit Party designates in writing as such to the Administrative Agent.

“Base Rate” means, at any time, the rate of interest which the Person serving as the Administrative Agent announces from time to time as its prime lending rate. The Base Rate is a reference rate and does not necessarily represent the lowest or best rate of interest actually charged to any customer by the Administrative Agent, which may make commercial loans or other loans at rates of interest at, above or below the Base Rate.

3

“Base Rate Loan” means a Loan bearing interest at a fluctuating rate determined by reference to the Alternate Base Rate.

“Borrower” is defined in the preamble.

“Borrower Cash Flow” means, for any period, Consolidated EBITDA less, (i) Total Interest Expense, (ii) any payments of principal made or due on any Non-Recourse Indebtedness by any Borrower Group Member, (iii) any reserves escrowed or cash held in escrow (such as in a cash trap) with respect to any Non-Recourse Indebtedness by any Borrower Group Member, or (iv) any maintenance related Capital Expenditures.

“Borrower Group Member” shall mean each Credit Party and their respective Subsidiaries.

“Borrowing” means the Loans of the same type and, in the case of LIBO Rate Loans, having the same Interest Period, made by all Lenders required to make such Loans on the same Business Day and pursuant to the same Borrowing Request in accordance with Section 2.1; provided that Base Rate Loans incurred pursuant to Section 4.1 shall be considered part of the related Borrowing of LIBO Rate Loans.

“Borrowing Request” means a Loan request and certificate duly executed by an Authorized Officer of the Borrower, substantially in the form of Exhibit B-1 hereto.

“Business Day” means

(a) any day which is neither a Saturday or Sunday nor a legal holiday on which banks are authorized or required to be closed in New York, New York; and

(b) relative to the making, continuing, prepaying or repaying of any LIBO Rate Loans, any day which is a Business Day described in clause (a) above and which is also a day on which dealings in Dollars are carried on in the London interbank eurodollar market.

“Capital Expenditures” means, for any period, the aggregate amount of all expenditures of the Borrower Group Members for fixed or capital assets made during such period which, in accordance with GAAP, would be classified as capital expenditures; provided, however, that the term “Capital Expenditures” shall not include (i) expenditures made in connection with the replacement, substitution or restoration of assets (A) to the extent financed from insurance proceeds paid on account of the loss of or damage to the assets being replaced, substituted or restored, (B) with awards of compensation arising from the taking by eminent domain or condemnation of the assets being replaced or (C) to the extent paid from existing reserves or which are reimbursed by Tenants or other third parties, (ii) the purchase price of equipment that is purchased simultaneously with the trade-in of existing equipment to the extent that the gross amount of such purchase price is reduced by the credit granted by the seller of such equipment for the equipment being traded in at such time, and (iii) the purchase of plant, property or equipment made within one year of the sale of any asset in replacement of such asset to the extent purchased with the proceeds of such sale and Capitalized Lease Liabilities paid in respect of such replaced asset.

4

“Capital Stock” means, with respect to any Person, any and all shares, interests, participations or other equivalents (however designated, whether voting or non-voting) of capital of such Person, including if such Person is a partnership or a limited liability company, partnership interests (whether general or limited) or membership interests, as applicable, and any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, such partnership or limited liability company, as applicable, whether now outstanding or issued after the Closing Date.

“Capitalized Lease Liabilities” means all monetary obligations of the Borrower Group Members under any leasing or similar arrangement which, in accordance with GAAP, are classified as capitalized leases, and, for purposes of this Agreement and each other Loan Document, the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP, and the stated maturity thereof shall be determined in accordance with GAAP.

“Cash Equivalents” shall mean (a) securities issued or directly and fully guaranteed or insured by the United States of America or any agency or instrumentality thereof (provided that the full faith and credit of the United States of America is pledged in support thereof) having maturities of not more than one year from the date of acquisition, (b) U.S. dollar denominated time deposits, certificates of deposit, and bankers’ acceptances of (i) any Lender, or (ii) any bank whose short-term commercial paper rating from S&P is at least A-1 or the equivalent thereof or from Moody’s is at least P-1 or the equivalent thereof (any such bank, an “Approved Lender”), in each case with maturities of not more than one (1) year from the date of acquisition, (c) commercial paper issued by any Lender or Approved Lender or by the parent company of any Lender or Approved Lender and commercial paper issued by, or guaranteed by, any industrial or financial company with a short-term commercial paper rating of at least A-2 or the equivalent thereof by S&P or at least P-2 or the equivalent thereof by Moody’s, or guaranteed by any industrial company with a long term unsecured debt rating of at least A or A2, or the equivalent of each thereof, from S&P or Moody’s, as the case may be, and in each case maturing within one (1) year after the date of acquisition, (d) investments in money market funds (x) substantially all the assets of which are comprised of securities of the types described in clauses (a) through (c) above or (y) which have a AAA rating, and (e) cash collateral deposits identified on Schedule VI held for the benefit of the Lenders.

“CERCLA” has the meaning specified in the definition of “Environmental Laws.”

“Change of Control” shall mean the occurrence of any of the following events: (a) General Partner shall at any time and for any reason whatsoever cease to be the general partner of Borrower, or Guarantor shall at any time and for any reason whatsoever cease to be the sole member of General Partner; (b) any merger or consolidation of the Guarantor, General Partner or Borrower with or into any Person, in one transaction or a series of related transactions, if, immediately after giving effect to such transaction, any Person or group of Persons (within the meaning of Sections 13 or 14 of the Exchange Act) is or becomes the beneficial owner (within the meaning of Rule 13d-3 promulgated by the SEC under the Exchange Act) of the Capital Stock representing a majority of the total voting power of the aggregate outstanding securities of the transferee or surviving entity normally entitled to vote in the election of directors, managers, or trustees, as applicable, of the transferee or surviving entity, (c) any Person or group of Persons

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(within the meaning of Sections 13 or 14 of the Exchange Act) is or becomes the beneficial owner (within the meaning of Rule 13d-3 promulgated by the SEC under the Exchange Act) of the Capital Stock representing a majority of total voting power of the aggregate outstanding Capital Stock of the Guarantor normally entitled to vote in the election of directors of the Guarantor, or (d) during any period of twelve (12) consecutive calendar months, individuals who were directors of the Guarantor on the first day of such period (together with any new directors whose election by the board of directors of the Guarantor or whose nomination for election by the stockholders of the Guarantor was approved by a vote of a majority of the directors then still in office who were either directors 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 directors of the Guarantor, subject to the terms of the last sentence of this paragraph. For purposes of determining the occurrence of (d) above, the following shall be expressly excluded: any change in directors resulting from (w) the death or incapacity of any director and/or (x) the resignation or removal of or refusing to stand or failure to be re-nominated for reelection of the board of any director for reasons unrelated to the issuance, sale or pledge of any shares of common stock in the Guarantor (other than a pledge to secure corporate or other debt of the Guarantor, the Borrower or the General Partner), provided any replacement director has been approved by a vote of at least a majority (or such higher percentage as may be required by the governing documents of the Guarantor) of the board of directors of the Guarantor then in office.

“Closing Date” means the date hereof.

“Closing Date Certificate” means the Closing Date Certificate executed and delivered by the Borrower on the Closing Date, substantially in the form of Exhibit D hereto.

“Code” means the Internal Revenue Code of 1986, as amended, reformed or otherwise modified from time to time.

“Cole” means Cole Credit Property Trust II, Inc., a Maryland corporation.

“Cole Material Adverse Effect” means any event, circumstance, change or effect (a) that is material and adverse to the business, assets, properties, liabilities, financial condition or results of operations of Cole and the Cole Subsidiaries taken as a whole or (b) that will, or would reasonably be expected to, prevent or materially impair the ability of Cole or Cole Operating Partnership to consummate the Mergers before July 22, 2013; provided, however, that for purposes of clause (a) “Cole Material Adverse Effect” shall not include any event, circumstance, change or effect to the extent arising out of or resulting from (i) any failure of Cole and the Cole Subsidiaries to meet any projections or forecasts (provided that any event, circumstance, change or effect giving rise to such failure or decrease shall be taken into account in determining whether there has been a Cole Material Adverse Effect), (ii) any events, circumstances, changes or effects that affect the commercial real estate REIT industry generally, (iii) any changes in the United States or global economy or capital, financial or securities markets generally, including changes in interest or exchange rates, (iv) any changes in the legal or regulatory conditions in the geographic regions in which Cole and the Cole Subsidiaries operate or own or lease properties, (v) the commencement, escalation or worsening of a war or armed hostilities or the occurrence of acts of terrorism or sabotage, (vi) the execution or

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announcement of the Merger Agreement, or the anticipation of the Mergers or the other transactions contemplated thereby, (vii) the taking of any action expressly required by, or the failure to take any action expressly prohibited by, the Merger Agreement, or the taking of any action at the written request of an executive officer of Guarantor, (viii) earthquakes, hurricanes, floods or other natural disasters, (ix) any damage or destruction of any Cole Property (as defined in the Merger Agreement) that is substantially covered by insurance, or (x) changes in Law or GAAP (each as defined in the Merger Agreement), which in the case of each of clauses (ii), (iii), (iv), (v) and (x) do not disproportionately affect Cole and the Cole Subsidiaries, taken as a whole, relative to other similarly situated participants in the commercial real estate REIT industry in the United States, and in the case of clause (viii) do not disproportionately affect Cole and the Cole Subsidiaries, taken as a whole, relative to other participants in the commercial real estate REIT industry in the geographic regions in which Cole and the Cole Subsidiaries operate or own or lease properties.

“Cole Operating Partnership” means Cole Operating Partnership II, LP, a Delaware limited partnership.

“Cole Subsidiary” means the Cole Operating Partnership and any corporation, other partnership, limited liability company, joint venture, business trust, real estate investment trust or other organization, whether incorporated or unincorporated, or other legal entity of which (a) Cole and/or the Cole Operating Partnership directly or indirectly owns or controls at least a majority of the capital stock or other equity interests having by their terms ordinary voting power to elect a majority of the board of directors or others performing similar functions, (b) Cole and/or any Person that is a Cole Subsidiary by reason of the application of clause (a) or clause (c) of this definition of “Cole Subsidiary” is a general partner, manager, managing member, trustee, director or the equivalent, or (c) Cole and/or the Cole Operating Partnership, directly or indirectly, holds a majority of the beneficial, equity, capital, profits or other economic interest.

“Collateral” means, collectively, all “Collateral” under and as defined in the Pledge Agreement and under the Security Agreement, as applicable.

“Commitment” means, as the context may require, a Lender’s Revolving Loan Commitment, Swingline Commitment or Letter of Credit Commitment.

“Commitment Amount” means, as the context may require, the Revolving Loan Commitment Amount, Swingline Commitment Amount or the Letter of Credit Commitment Amount, or both.

“Commitment Termination Event” means

(a) the occurrence of any Event of Default described in Section 8.1.9 with respect to the Borrower; or

(b) the occurrence and continuance of any other Event of Default and either

(i) the declaration of all of the Loans to be due and payable pursuant to Section 8.3, or

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(ii) the giving of notice by the Administrative Agent, acting at the direction, or with the consent, of the Required Lenders, to the Borrower that the Commitments have been terminated pursuant to Section 8.3.

“Compliance Certificate” means a certificate duly completed and executed by the chief executive, financial or accounting Authorized Officer of the Borrower, substantially in the form of Exhibit E hereto, as amended, supplemented, amended and restated or otherwise modified from time to time, together with such changes thereto as the Administrative Agent may from time to time reasonably request for the purpose of monitoring the Borrower’s compliance with the financial covenants contained herein.

“Confidential Information” has the meaning set forth in Section 10.11.

“Consolidated” or “consolidated” shall mean “consolidated” in accordance with GAAP.

“Consolidated Debt” shall mean, at any time, the sum of (without duplication) (i) all indebtedness (including principal, interest, fees and charges) of the Consolidated Group for borrowed money (including obligations evidenced by bonds, notes or similar instruments) and for the deferred purchase price of property or services (excluding ordinary payable and accrued expenses and deferred purchase price which is not yet a liquidated sum), (ii) the aggregate amount of all Capitalized Lease Liabilities of the Consolidated Group, (iii) all Indebtedness of the types described in clause (i) or (ii) of this definition of Persons other than members of the Consolidated Group secured by any Lien on any property owned by the Consolidated Group, whether or not such Indebtedness has been assumed by such Person (provided that, if the Person has not assumed or otherwise become liable in respect of such Indebtedness, such Indebtedness shall be deemed to be the outstanding principal amount (or maximum principal amount, if larger) of such Indebtedness or, if not stated or if indeterminable, in an amount equal to the fair market value of the property to which such Lien relates, as determined in good faith by such Person), (iv) all Contingent Obligations of the Consolidated Group, and (v) all Indebtedness of the Consolidated Group of the type described in clause (ii) of the definition of Indebtedness contained herein; provided that for purposes of this definition, the amount of Indebtedness in respect of Hedging Agreements included pursuant to preceding clause (v) shall be at any time the Net Termination Value of all such Hedging Agreements, all as determined on a consolidated basis, in accordance with GAAP, and without duplication.

“Consolidated EBITDA” shall mean, for any period, Consolidated Net Income for such period, adjusted by (x) adding thereto (i) to the extent actually deducted in determining said Consolidated Net Income, consolidated interest expense, minority interest and provision for taxes for such period, (ii) the amount of all amortization of intangibles and depreciation that were deducted determining Consolidated Net Income for such period, (iii) the amount, in the aggregate not to exceed the lesser of $10,000,000 or 3.0% of Consolidated EBITDA (calculated by excluding any credit given for amounts considered in the calculation of Consolidated EBITDA pursuant to this clause (iii) for such period), of (A) net cost savings and synergies and (B) any workforce severance, relocation or termination costs or expenses, in the case of each of the foregoing clauses (A) and (B), projected by the Borrower in good faith to be realized as a result of specified actions taken on or prior to the calculation date or within 12 months of the

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calculation date in connection with the Transactions, the Merger or any Investment, Disposition, merger, consolidation, discontinued operation, cost saving, restructuring and other similar initiatives, net of the amount of actual benefits realized during such period from such actions; provided that such cost savings and synergies are reasonably identified and factually supportable, (iv) any non-recurring non-cash charges in such period to the extent that (A) such non-cash charges do not give rise to a liability that would be required to be reflected on the consolidated balance sheet of the Guarantor and General Partner (and so long as no cash payments or cash expenses will be associated therewith (whether in the current period or for any future period)) and (B) same were deducted in determining Consolidated Net Income for such period and (v) non-recurring cash expenses in connection with the Merger, and (y) subtracting therefrom, to the extent included in determining Consolidated Net Income for such period, (i) the amount of non-recurring non-cash gains during such period and (ii) the amount of Consolidated EBITDA attributable to any Disposition that occurred during such period; provided that Consolidated EBITDA shall be determined without giving effect to any extraordinary gains or losses (including any taxes attributable to any such extraordinary gains or losses) or gains or losses (including any taxes attributable to such gains or losses) from sales of assets other than from sales of inventory (excluding the Property) in the ordinary course of business. Consolidated EBITDA shall be adjusted to remove any impact from straight line rent leveling adjustments required under GAAP and amortization of above and below market rent intangibles pursuant to FASB ASC 805.

“Consolidated Group” shall mean, collectively, Borrower, Guarantor and General Partner and their Subsidiaries, determined in accordance with GAAP.

“Consolidated Group Properties” shall mean those Properties owned or leased by a member of the Consolidated Group.

“Consolidated Net Income” shall mean, for any period, the consolidated net income (or loss) of the Consolidated Group for such period, including, in the case of any New Acquisition consummated during such period, net income therefrom for such period as though the New Acquisition had been acquired on the first day of such period; provided that (without duplication of exclusions) (i) the net income of any member of the Consolidated Group (to the extent otherwise included in determining Consolidated Net Income) shall be excluded to the extent that the declaration or payment of dividends and distributions by such Person of net income is not permitted at the date of determination without any prior governmental approval (that has not been obtained) or, directly or indirectly, by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to such Person or its equityholders, as applicable, and (ii) except for determinations expressly required to be made on a pro forma basis, the net income (or loss) of any member of the Consolidated Group accrued prior to the date it becomes a member of the Consolidated Group, or the date that all or substantially all of the property or assets of such Person are acquired by a member of the Consolidated Group, shall be excluded from such determination.

“Consolidated Tangible Net Worth” shall mean, at any time, the tangible net worth of the Consolidated Group determined in accordance with GAAP, calculated based on (a) the shareholder book equity of Guarantor plus (b) accumulated depreciation and amortization of the Consolidated Group, plus (c) to the extent not included in clause (a), the amount properly

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attributable to the minority interests, if any, of other Persons in the common Capital Stock of Borrower, minus (d) the aggregate of all amounts appearing on the assets side reflected in any balance sheet resulting from revaluation thereof for franchises, licenses, permits, patents, patent applications, copyrights, trademarks, service marks, trade names, goodwill, treasury stock, experimental or organizational expenses and other like assets which would be classified as intangible assets under GAAP, in each case determined without duplication and in accordance with GAAP.

“Contingent Obligation” means any agreement, undertaking or arrangement by which any Person guarantees, endorses or otherwise becomes or is contingently liable upon (by direct or indirect agreement, contingent or otherwise, with or without recourse, to provide funds for payment to, to purchase from, to supply funds to, or otherwise to invest in, a debtor, or otherwise to assure a creditor against loss) the Indebtedness of any other Person (other than by endorsements of instruments in the course of collection), or guarantees the payment of scheduled dividends or other distributions upon the shares of any other Person. The amount of any Person’s obligation under any Contingent Obligation shall (subject to any limitation set forth therein) be deemed to be the outstanding principal amount (or maximum principal amount, if larger) of the debt, obligation or other liability guaranteed thereby or, if not stated or if indeterminable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder), as determined by such Person in good faith and agreed to by the Administrative Agent in its reasonable discretion. Notwithstanding the foregoing, the term “Contingent Obligation” shall not include (a) endorsements of instruments for deposit or collection in the ordinary course of business (b) guarantees made by a Person of the obligations of a Subsidiary of such Person that do not constitute Indebtedness of such Subsidiary and are incurred in the ordinary course of business of such Subsidiary, (c) any portion of the Commitment Amount which at any time is unused, (d) any portion of an obligation which would otherwise be considered to be a Contingent Obligation if such portion is secured by cash or Cash Equivalents, but Contingent Obligations shall include the deferred purchase price of property or services which is not yet a liquidated sum.

“Continuation/Conversion Notice” means a notice of continuation or conversion and certificate duly executed by an Authorized Officer of the Borrower, substantially in the form of Exhibit C hereto.

“Credit Extension” means, as the context may require,

(a) the making of a Loan by a Lender; or

(b) the issuance of any Letter of Credit, or the extension of any Stated Expiry Date of any existing Letter of Credit, by the Issuer.

“Credit Hedging Agreements” shall mean one or more Hedging Agreements entered into between or among Borrower, General Partner, and/or Guarantor, on the one hand, and another Person (other than Borrower, Guarantor and General Partner or any Subsidiary of either), to the extent such other Person is a Lender or any affiliate thereof, and their subsequent successors and assigns, on the other.

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“Credit Party” shall mean each of the Guarantor, General Partner, Borrower and the Subsidiary Guarantors.

“DBNY” is defined in the preamble.

“Default” means any condition, occurrence or event which, after notice or lapse of time or both, would constitute an Event of Default.

“Defaulting Lender” means any Lender with respect to which a Lender Default is in effect.

“Development Property” means a (i) Property being developed or redeveloped by the applicable Property Owner until the Property is both generating rental income, from a Tenant in possession, for such Property Owner and is open for business to the general public or (ii) vacant Property.

“Disbursement” is defined in Section 2.6.2.

“Disbursement Date” is defined in Section 2.6.2.

“Disclosure Schedule” means the Disclosure Schedule attached hereto as Schedule I, as it may be amended, supplemented, amended and restated or otherwise modified from time to time by the Borrower with the written consent of the Administrative Agent.

“Disposition” means the sale, conveyance or other disposition of any Consolidated Group Property, material business or other material property, interests or assets by any Borrower Group Member (including Capital Stock owned by, such Borrower Group Member, and in all cases whether now owned or hereafter acquired).

“Dividend” with respect to any Person shall mean that such Person has declared or paid a dividend or distribution or returned any equity capital to its stockholders, partners, members or other holders of its Capital Stock or authorized or made any other distribution, payment or delivery of property or cash to its holders of Capital Stock as such, or redeemed, retired, purchased, repurchased or otherwise acquired, directly or indirectly, for a consideration any shares of any class of its Capital Stock outstanding on or after the Closing Date (or any options or warrants issued by such Person with respect to its Capital Stock), or set aside any funds for any of the foregoing purposes, or shall have permitted any of its Subsidiaries to purchase or otherwise acquire for a consideration any shares of any class of the Capital Stock of such Person outstanding on or after the Closing Date (or any options or warrants issued by such Person with respect to its Capital Stock). Without limiting the foregoing, “dividends” with respect to any Person shall also include all payments made (or required to be made in the applicable period) by such Person with respect to any stock appreciation rights, plans, equity incentive or achievement plans or any similar plans or setting aside of any funds for the foregoing purposes, in each case except to the extent (x) the same are paid in common stock of the Guarantor or (y) such payments reduced Consolidated EBITDA.

“Dollar” and the sign “$” mean lawful money of the United States.

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“Eligible Assignee” means and includes Lender (and any Affiliate thereof), an Approved Fund, a Pfandbrief, any commercial bank, any financial institution, any finance company, any fund that is regularly engaged in making, purchasing or investing in loans or any other Person that would satisfy the requirements of an “accredited investor” (as defined in SEC Regulation D, but excluding Borrower or an Affiliate of Borrower).

“Environmental Claims” means any and all administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation, investigations or proceedings relating in any way to any Environmental Law or any permit issued, or any approval given, under any such Environmental Law (hereafter, “Claims”), including, without limitation, (i) any and all Claims by governmental or regulatory authorities for enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to any applicable Environmental Law and (ii) any and all Claims by any third party seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief resulting from Hazardous Materials or arising from alleged injury or threat of injury to health, safety or the environment.

“Environmental Laws” means any and all present and future laws, statutes, ordinances, rules, regulations, requirements, restrictions, permits, orders, and determinations of any governmental authority that have the force and effect of law, pertaining to pollution (including Hazardous Materials), natural resources or the environment, whether federal, state, or local, including environmental response laws such as the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, and as the same may be further amended (hereinafter collectively called “CERCLA”).

“Environmental Occurrence” means any occurrence or event that would cause the representations set forth in Section 6.12 to become untrue.

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

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and regulations promulgated thereunder.

“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).

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“ERISA Event” means any of the following if such event or occurrence could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect: (a) the failure to make a required contribution to a Pension Plan or a Multiemployer Plan; (b) a withdrawal by the Borrower or any ERISA Affiliate from a Pension 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 which is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal (within the meaning of Section 4203 and 4205 of ERISA) by the Borrower or any ERISA Affiliate from a Multiemployer Plan or receipt of notification that a Multiemployer Plan is in reorganization within the meaning of Section 4241 of ERISA or insolvent within the meaning of Section 4245 of ERISA; (d) the filing of a notice of intent to terminate a Pension Plan or a Multiemployer Plan, the treatment of a Pension Plan or Multiemployer Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA, for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; (f) the occurrence of a reportable event described in Section 4043(c) of ERISA with respect to any Pension Plan (other than an event for which the thirty-day notice period is waived); or (g) the imposition of any liability under Title IV of ERISA other than PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate.

“Event of Default” is defined in Section 8.1.

“Excess Cash Collateral” is defined in Section 2.6.6.

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

“Excluded Taxes” means any of the following Taxes imposed on or with respect to any Lender, any Issuer or the Administrative Agent or required to be withheld or deducted from a payment to any Lender, any Issuer or the Administrative Agent, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, imposed as a result of (i) such Lender, Issuer or the Administrative Agent, as applicable, being organized under the laws of, or having its principal office or, in the case of such Lender, its applicable lending office located in, the jurisdiction of the Governmental Authority imposing such Tax (or any political subdivision thereof) or (ii) a present or former connection between such Lender, Issuer or the Administrative Agent, as applicable, and the jurisdiction of the Governmental Authority imposing such Tax (other than any such connection arising solely from such Lender, Issuer or the Administrative Agent, as applicable, having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement or any other Loan Documents), (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 a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 4.4) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 4.6, 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)

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Taxes attributable to such Lender’s, Issuer’s or the Administrative Agent’s failure to comply with Section 4.6(c) or Section 4.6(d), and (d) any U.S. federal withholding Taxes imposed under FATCA.

“Extended Maturity Date” is defined in Section 3.1(b).

“Extension Notice” is defined in Section 3.1(b).

“Extension Option” is defined in Section 3.1(b).

“Existing Revolving Facility” means that certain revolving credit facility made pursuant to that certain Credit Agreement, dated as of September 25, 2012, by and among Borrower, various lenders thereunder and Administrative Agent, as administrative agent.

“Extension Term” is defined in Section 3.1(b).

“F.R.S. Board” means the Board of Governors of the Federal Reserve System or any successor thereto.

“Facility” means the $400,000,000 revolving credit facility evidenced by this Agreement, as the same may be increased, amended, supplemented, amended and restated or otherwise modified from time to time and in effect on such date.

“Facility Interest Expense” means, at any time, an amount equal to the product of (a) the total amount outstanding under the Facility taking into account requested Borrowings and (b) the average interest rate applicable to such existing and requested Borrowings under the Facility then in effect.

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

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

“Federal Funds Rate” means, for any day, a fluctuating interest rate per annum equal to

(a) the rate set forth in the weekly statistical release designated as H.15(519), or any successor publication, published by the Federal Reserve Bank of New York (including any such successor, “H.15(519)”) on the preceding Business Day opposite the caption “Federal Funds (Effective)”; or

(b) 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 Lender from three federal funds brokers of recognized standing selected by it.

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“Fee Letters” means those certain confidential letters, dated as of the date hereof between the Borrower, the Arranger, the Lenders, and the Administrative Agent.

“FF&E” shall mean furniture, fixtures, and equipment.

“Fiscal Quarter” means any quarter of a Fiscal Year ending on the last day of March, June, September or December.

“Fiscal Year” means any period of twelve consecutive calendar months ending on December 31; references to a Fiscal Year with a number corresponding to any calendar year (e.g., the “2013 Fiscal Year”) refer to the Fiscal Year ending on December 31 of such calendar year.

“Fiscal Year End” is defined in Section 7.1.10.

“Funds From Operations” shall mean, for any period, Consolidated Net Income for such period plus (a) the sum of the following amounts for such period (without duplication) to the extent deducted in the determination of Consolidated Net Income for such period: (i) depreciation expense, (ii) amortization expense and other non-cash charges of Borrower Group Members with respect to their real estate assets for such period, (iii) losses from Dispositions, losses resulting from restructuring of Indebtedness and other extraordinary losses, (iv) amortization of financing cost, and (v) minority interest; less (b) the sum of the following amounts to the extent included in the determination of Consolidated Net Income for such period: (i) gains from Dispositions, gains resulting from restructuring of Indebtedness and other extraordinary gains, (ii) the applicable share of Consolidated Net Income attributable to Guarantor’s Unconsolidated Subsidiaries, and (iii) the portions of Funds From Operations allocable to minority partners of Subsidiaries; plus (without duplication of any amounts referred to in clause (a) above in this definition) (c) Borrower’s Share of funds from operations (determined on the same basis as this definition but with respect to Unconsolidated Subsidiaries) of Guarantor’s Unconsolidated Subsidiaries, determined in accordance with GAAP.

“GAAP” is defined in Section 1.4.

“General Partner” shall mean Spirit General OP Holdings, LLC, a Delaware limited liability company.

“Governmental Authority” means any nation or government, any state or other political subdivision thereof, any central bank (or similar monetary or regulatory authority) thereof, any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including any corporation or other entity owned or controlled, through stock or capital ownership or otherwise, by any of the foregoing.

“Gross Asset Value” shall mean, without duplication, the aggregate sum of:

(a) for any Property,

(i) other than New Acquisitions and Development Property, on a fiscal quarterly basis ending on the date of determination, an amount equal to Net Operating Income (as adjusted for minimum capital expenditure reserves for Properties that are not

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subject to “triple-net” leases, and to include the principal component of payments received under finance leases) attributable to such Property for such period, divided by eight and one quarter percent (8.25%),

(ii) for New Acquisitions, an amount equal to the Acquisition Cost with respect thereto, and

(iii) for Development Property, an amount equal to fifty percent (50%) of the undepreciated book value with respect thereto;

(b) the outstanding principal amounts of notes and loan receivables not in default;

(c) all cash, Cash Equivalents (excluding tenant deposits and other cash and cash equivalents the disposition of which is restricted) and marketable securities of the Borrower and its Subsidiaries at such time; and

(d) the Borrower’s respective Ownership Shares of the net operating income of all real property of each Unconsolidated Subsidiary, divided by eight and one quarter percent (8.25%); provided, that,

no more than 5% of the Gross Asset Value may be attributable to the current book value of Development Property.

“Guaranties” is defined in Section 5.1.4.

“Guarantor” shall mean Spirit Realty Capital, Inc., a Maryland corporation formerly known as Cole Credit Property Trust II, Inc.

“Hazardous Materials” means any substance that is defined or listed as a hazardous, toxic or dangerous substance under any present or future Environmental Law or that is otherwise regulated or prohibited or subject to investigation or remediation under any present or future Environmental Law because of its hazardous, toxic, or dangerous properties, including (a) any substance that is a “hazardous substance” under CERCLA and (b) petroleum wastes or products.

“Hedging Agreements” shall mean any Interest Rate Protection Agreements and any foreign exchange contracts, currency swap agreements, commodity agreements or other similar agreements or arrangements designed to protect against the fluctuations in currency values or instruments to hedge and protect against fluctuations in the Borrower Group Members’ cash flow and earnings from changes in financial markets, including, without limitation, any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master

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agreement, and any and all transactions of any kind, and their related confirmations and schedules, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement.

“herein,” “hereof,” “hereto,” “hereunder” and similar terms contained in this Agreement or any other Loan Document refer to this Agreement or such other Loan Document, as the case may be, as a whole and not to any particular Section, paragraph or provision of this Agreement or such other Loan Document.

“Impermissible Qualification” means, relative to the opinion or certification of any independent public accountant as to any financial statement of the Borrower, any qualification or exception to such opinion or certification

(a) which questions the status of the Borrower and its Subsidiaries, taken as a whole, as a “going concern”;

(b) which relates to the limited scope of examination of any material portion of the records of the Borrower and its Subsidiaries relevant to such financial statement; or

(c) which relates to the treatment or classification of any item in such financial statement and which, as a condition to its removal, would require an adjustment to such item the effect of which would be to cause the Borrower to be in default of any of its obligations under Section 7.2.4.

“including” and “include” means including without limiting the generality of any description preceding such term.

“Indebtedness” shall mean, as to any Person, without duplication, (i) all indebtedness (including principal, interest, fees and charges) of such Person for borrowed money or for the deferred purchase price of property or services (excluding accounts payable, current trade liabilities and accrued expenses arising in the ordinary course of business) or otherwise evidenced by bonds, debentures, notes or similar instruments, (ii) the maximum amount available to be drawn under all letters of credit issued for the account of such Person and all unpaid drawings in respect of such letters of credit, (iii) all Indebtedness of the types described in clause (i), (ii), (iv), (v) or (vi) of this definition secured by any Lien on any property owned by such Person, whether or not such Indebtedness has been assumed by such Person (provided that, if the Person has not assumed or otherwise become liable in respect of such Indebtedness, such Indebtedness shall be deemed to be the outstanding principal amount (or maximum principal amount, if larger) of such Indebtedness or, if not stated or if indeterminable, the maximum reasonably anticipated liability in respect thereof, as determined by such Person in good faith), (iv) all obligations for the payment of money relating to a Capitalized Lease Liability, (v) all Contingent Obligations of such Person and (vi) all obligations under any Hedging Agreement or under any similar type of agreement.

“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 any Credit Party under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.

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“Initial Maturity Date” shall mean July 17, 2016 (i.e., the third-year anniversary date of the Closing Date).

“Initial Unencumbered Real Properties” shall mean those Properties set forth on Schedule II.

“Insurance Policies” shall mean satisfactory evidence (including appropriate certificates or certified copies of policies) of insurance and reinsurance policies (whether individual or blanket) including policies covering liability, casualty, hazard, theft, malicious mischief, flood and other risks, including perils of fire and extended coverages such as flood and earthquake, as applicable, and other perils as are normally covered under standard “special risk” policies.

“Interest Period” means, relative to any LIBO Rate Loan, the period beginning on (and including) the date on which such LIBO Rate Loan is made or continued as, or converted into, a LIBO Rate Loan pursuant to Section 2.3 and shall end on (but exclude) the day which numerically corresponds to such date one, two, three, six or twelve months thereafter (or, if such month has no numerically corresponding day, on the last Business Day of such month), as the Borrower may select in its relevant notice pursuant to Section 2.3 or 2.4; provided, however, that

(a) the Borrower shall not be permitted to select Interest Periods to be in effect at any one time which have expiration dates occurring on more than five different dates;

(b) if such Interest Period would otherwise end on a day which is not a Business Day, such Interest Period shall end on the next following Business Day (unless such next following Business Day is the first Business Day of a calendar month, in which case such Interest Period shall end on the Business Day preceding such numerically corresponding day);

(c) no Interest Period for any LIBO Rate Loan may end later than the Maturity Date (or if the Maturity Date is not a Business Day, the Business Day preceding such numerically corresponding day); and

(d) no Interest Period may be elected at any time when an Event of Default is then in existence unless Lenders in their sole discretion otherwise agree.

“Interest Rate Protection Agreement” shall mean any interest rate swap agreement, interest rate cap agreement, interest collar agreement, interest rate hedging agreement or other similar agreement or arrangement.

“Investment” means, relative to any Person,

(a) any loan or advance made by such Person to any other Person;

(b) any Contingent Obligation of such Person to make a loan or advance;

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(c) any ownership or similar interest held or acquired by such Person in any other Person and any capital contribution made by such Person in any other Person; and

(d) any other acquisition by such Person of any assets or properties of another Person outside the ordinary course of business of such first Person.

The amount of any Investment shall be the original principal or capital amount thereof less all returns of principal or equity, or distributions or dividends paid, thereon and shall, if made by the transfer or exchange of property other than cash, be deemed to have been made in an original principal or capital amount equal to the fair value of such property at the time of such Investment, as determined in good faith by the Borrower.

“Issuance Request” means a Letter of Credit request and certificate duly executed by an Authorized Officer of the Borrower, substantially in the form of Exhibit B-2 hereto.

“Issuer” means DBNY in its capacity as issuer of the Letters of Credit, together with each other Person as shall have subsequently been appointed as the successor Issuer in accordance with Section 9.10. At the request of Borrower, upon providing notice to Administrative Agent, another Lender with a Revolving Loan Commitment or an Affiliate of DBNY may, with such other Lender’s or Affiliate’s (as applicable) consent, in its sole discretion, issue one or more Letters of Credit hereunder and shall be deemed to be the Issuer with respect to such Letter(s) of Credit.

“Joinder” means a Joinder duly executed by an Authorized Officer of any Subsidiary, substantially in the form of Exhibit H-1, Exhibit K-2 and Exhibit G-2 hereto, as applicable.

“Lease” means any lease, sublease or subsublease, letting, license, concession or other agreement (whether written or oral and whether now or hereafter in effect) pursuant to which any Person (a “Tenant”) is granted by or on behalf of any Borrower Group Member a possessory interest in, or right to use or occupy all or any portion of any space in any Property, and every modification, amendment or other agreement relating to such lease, sublease, subsublease, or other agreement entered into in connection with such lease, sublease, subsublease, or other agreement and every guarantee of the performance and observance of the covenants, conditions and agreements to be performed and observed by the other party thereto.

“Lender Assignment Agreement” means a lender assignment agreement substantially in the form of Exhibit F hereto.

“Lender Default” shall mean (i) the wrongful refusal (which has not been retracted) or the failure of a Lender to make available its portion of any Borrowing or to fund its portion of any unreimbursed payment or to purchase participating interests under Section 2.6.1 or 2.9 or (ii) a Lender having notified in writing any Borrower and/or the Administrative Agent that such Lender does not intend to comply with its obligations under Section 2.1 in circumstances where such non-compliance would constitute a breach of such Lender’s obligations under the respective Section.

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“Lenders” is defined in the preamble and, in addition, shall include any Eligible Assignee that becomes a Lender pursuant to Section 10.9.1. The Lenders on the Closing Date shall be the Lenders set forth on Schedule III as of the Closing Date.

“Letter of Credit” is defined in Section 2.1.2.

“Letter of Credit Collateral” is defined in Section 8.4(b).

“Letter of Credit Collateral Account” is defined in Section 8.4(a).

“Letter of Credit Commitment” means, with respect to the Issuer, the Issuer’s obligation to issue Letters of Credit pursuant to Section 2.1.2 and, with respect to each of the other Lenders that has a Revolving Loan Commitment, the obligations of each such Lender to participate in such Letters of Credit pursuant to Section 2.6.1.

“Letter of Credit Commitment Amount” means, on any date, a maximum amount equal to the lesser of (i) $40,000,000.00, as such amount may be permanently reduced from time to time pursuant to Section 2.2 and (ii) the Revolving Loan Commitment Amount on such date.

“Letter of Credit Outstandings” means, on any date, an amount equal to the sum of

(a) the then aggregate amount which is undrawn and available under all issued and outstanding Letters of Credit, plus

(b) the then aggregate amount of all unpaid and outstanding Reimbursement Obligations.

“LIBO Office” means, relative to any Lender, the office of such Lender designated as such Lender’s “LIBO Office” below its name in Annex I hereto or as set forth in a Lender Assignment Agreement, or such other office of a Lender as designated from time to time by notice from such Lender to the Borrower and the Administrative Agent, whether or not outside the United States, which shall be making or maintaining LIBO Rate Loans of such Lender hereunder.

“LIBO Rate” means, with respect to each day during each Interest Period pertaining to a LIBO Rate Loan, the rate of interest per annum determined on the basis of the rate for deposits in Dollars for a period equal to such Interest Period commencing on the first day of such Interest Period appearing on Reuters LIBO Page 1 as of approximately 11:00 a.m., London time, two Business Days prior to the beginning of such Interest Period. In the event that such rate does not appear on Reuters LIBO Page 1, “LIBO Rate” for the purposes of this paragraph shall be the rate per annum equal to the arithmetic average as determined by the Administrative Agent of the rates at which deposits in immediately available Dollars in an amount equal to the amount of such LIBO Rate Loan having a maturity approximately equal to such Interest Period are offered to four (4) reference banks to be selected by the Administrative Agent in the London interbank market, at approximately 11:00 a.m., London time, two Business Days prior to the first day of such Interest Period.

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“LIBO Rate Loan” means a Revolving Loan bearing interest, at all times during an Interest Period applicable to such Revolving Loan, at a fixed rate of interest determined by reference to the LIBO Rate.

“LIBO Reserve Percentage” is defined in Section 4.5.

“Lien” means any mortgage, deed of trust, pledge, security interest, hypothecation, charge, lien (statutory or other), escrow or similar encumbrance of any kind, or any other type of similar preferential arrangement (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement or any lease in the nature thereof).

“Loan Commitment” means the Revolving Loan Commitment, Swingline Commitment and Letter of Credit Commitment.

“Loan Documents” means, collectively, this Agreement, the Notes (if any), the Letters of Credit, the Security Documents, the Guaranty, the Subsidiary Guaranty, each Borrowing Request and each Issuance Request and any certificates delivered in connection with this Agreement or any Credit Extension.

“Loans” means a Revolving Loan or a Swingline Loan of any type.

“Major Tenant” means, individually or collectively, as the context requires, from time to time, (i) any Tenant that is obligated to pay rents which would constitute, in the aggregate in any Fiscal Quarter, 10% or more of the Net Operating Income for such Fiscal Quarter that is generated by all of the Unencumbered Real Properties, or (ii) any Tenant that is obligated to pay rents which would constitute, in the aggregate in any Fiscal Quarter, 3% or more of Borrower Cash Flow for the immediately preceding Fiscal Quarter.

“Mandatory Borrowing” is defined in Section 2.9.2(c).

“Material Adverse Effect” means a circumstance or condition that, either individually or in the aggregate has had, or could reasonably be expected to have, a material adverse effect on (i) the business, assets, operations, properties or financial condition of the Borrower Group Members (including actual or contingent liabilities) taken as a whole, (ii) the ability of the Borrower to perform its obligations under this Agreement and the other Loan Documents taken as a whole, (iii) the ability of the Credit Parties, taken together as a whole, to perform their obligations under this Agreement and the other Loan Documents taken as a whole, (iv) the legality, validity or enforceability of the Loan Documents taken as a whole, or (v) the rights and remedies of the Administrative Agent and the Lenders under this Agreement and the other Loan Documents.

“Material Agreements” shall mean any license, contract, joint venture, management, or other agreement, that (i) is identified on Schedule IV hereto or (ii) accounted for five percent (5%) of revenues of the Borrower and its Subsidiaries taken as a whole for the most recently ended Fiscal Year for which financial statements have been delivered pursuant to Section 7.1.1.

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“Material Indebtedness” means any Non-Recourse Indebtedness in excess of $100,000,000 (inclusive of accrued interest and fees) of any Borrower Group Member other than the Loans.

“Maturity Date” shall mean the Initial Maturity Date unless the Extension Option is properly exercised pursuant to Section 3.1, in which case “Maturity Date” shall mean the Extended Maturity Date.

“Merger” means, collectively, the Company Merger and the Partnership Merger (each as defined in the Merger Agreement).

“Merger Agreement” shall mean that certain Agreement and Plan of Merger, dated as of January 22, 2013, as amended, entered into by and between Spirit, Borrower, Cole and Cole Operating Partnership.

“Minimum Unencumbered Interest Coverage Ratio” is defined in Section 7.2.4(d).

“Monthly Payment Date” means the last day of each calendar month, or, if any such day is not a Business Day, the next succeeding Business Day.

“Moody’s” means Moody’s Investors Service, Inc.

“Mortgage Indebtedness” means Property-level non-recourse Indebtedness, where the borrower under such Indebtedness is a special purpose bankruptcy-remote entity, and customary recourse guaranties provided in connection therewith.

“Multiemployer Plan” means a “multiemployer plan,” within the meaning of Section 4001(a)(3) of ERISA, with respect to which the Borrower or any ERISA Affiliate may have any liability.

“NAIC” means the National Association of Insurance Commissioners or any successor thereto with similar authority.

“Net Operating Income” shall mean the amount obtained by subtracting Operating Expenses from Operating Income.

“Net Termination Value” shall mean at any time, with respect to all Hedging Agreements for which a Net Termination Value is being determined, the excess, if positive, of (i) the aggregate of the unrealized net loss position, if any, of the Borrower Group Members under each such Hedging Agreement on a marked-to-market basis determined no more than one month prior to such time less (ii) the aggregate of the unrealized net gain position, if any, of the Borrower Group Members under each such Hedging Agreement on a marked-to-market basis determined no more than one month prior to such time, with each marked-to market determination made pursuant to clauses (i) and (ii) above in connection with a determination of “Net Termination Value” to be made on the same date.

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“New Acquisitions” shall mean a Property (other than the Initial Unencumbered Real Properties) that has been owned or leased by a Property Owner for less than a full Fiscal Quarter.

“Non-Defaulting Lender” means and includes each Lender other than a “Defaulting Lender.”

“Non-Recourse Indebtedness” means Indebtedness with respect to which the right of recovery of the obligee is limited to recourse against collateral, if any, securing such Indebtedness excluding customary carve-outs, such as, for example, personal recourse for fraud, misrepresentation, bankruptcy, misapplication of cash, waste, environmental claims and liabilities and other circumstances customarily excluded by lenders from exculpation provisions and/or included in separate indemnification agreements with respect to non-recourse financings of real estate.

“Non-U.S. Lender” has the meaning specified in clause (d) of Section 4.6.

“Non-U.S. Participant” means a Participant that is not incorporated or organized in or under the laws of the United States or a state thereof.

“Note” means a Revolving Note.

“Obligations” means all monetary obligations (whether absolute or contingent, matured or unmatured, direct or indirect, choate or inchoate, sole, joint, several or joint and several, due or to become due, heretofore or hereafter contracted or acquired) of the Credit Parties to any Lender or the Issuer or the Administrative Agent arising under this Agreement, the Notes, the Letters of Credit and each other Loan Document.

“OFAC” means the Office of Foreign Assets Control of the U.S. Department of the Treasury.

“Operating Expenses” shall mean, for any specified period, without duplication, all expenses actually paid or payable by or on behalf of Property Owner during such period in connection with the ownership or operation of the Property, including costs (including labor) of providing services including, as applicable, telecommunications, garage and parking and other operating departments, as well as real estate and other business taxes, rental expenses, insurance premiums, utilities costs, administrative and general costs, repairs and maintenance costs, other costs and expenses relating to the Property, legal expenses (incurred in connection with the ordinary course operation of the Property), determined, in each case on an accrual basis, in accordance with GAAP. “Operating Expenses” shall not include (i) depreciation or amortization or other noncash items, (ii) the principal of and interest on Indebtedness for borrowed money, (iii) income taxes or other taxes in the nature of income taxes, (iv) any expenses (including legal, accounting and other professional fees, expenses and disbursements) incurred in connection with and allocable to the issuance of the Revolving Note, or (v) distributions to the shareholders of a Property Owner.

“Operating Income” shall mean for any specified period and any Property, all income received by a Property Owner from any Person during such period in connection with the

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ownership or operation of the Property, determined on an accrual basis of accounting determined in accordance with GAAP, including the following:

(i) all amounts payable to a Property Owner by any Person as rent;

(ii) all amounts payable to a Property Owner pursuant to any reciprocal easement and/or operating agreements, covenants, conditions and restrictions, condominium documents and similar agreements affecting the Property and binding upon and/or benefiting Property Owner and other third parties, but specifically excluding any management agreement;

(iii) condemnation awards to the extent that such awards are compensation for lost rent allocable to such specified period;

(iv) business interruption and loss of “rental value” insurance proceeds (but allocating such proceeds to the period to which they relate); and

(v) all investment income with respect to any collateral accounts.

Notwithstanding the foregoing clauses (i) through (v), Operating Income (A) shall not include (I) any insurance proceeds (other than of the types described in clauses (iii) and (iv) above), (II) any proceeds resulting from the sale, exchange, transfer, financing or refinancing of all or any part of the Property (other than of the types described in clause (i), (iii) and (v) above), (III) any repayments received from Tenants of principal loaned or advanced to Tenants by Property Owner, (IV) any type of income that would otherwise be considered Operating Income pursuant to the provisions above but is paid directly by any tenant to a Person other than Property Owner or its agent and (V) any fees or other amounts payable by a Tenant or another Person to Property Owner that are reimbursable to Tenant or such other Person and (B) shall be adjusted to remove any impact from straight line rent leveling adjustments required under GAAP and amortization of above and below market rent intangibles pursuant to FASB ASC 805.

“Organic Document” means, relative to Borrower, each Subsidiary and Guarantor and General Partner, as applicable, its certificate of incorporation, by-laws, certificate of partnership, partnership agreement, certificate of formation or limited liability company agreement and any certificate of designations or similar instrument relating to the rights of shareholder, including preferred shareholders, of such Person.

“Other Taxes” means any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies which arise from any payment made hereunder or from the execution, delivery, performance, enforcement or registration of, or otherwise with respect to, this Agreement or any other Loan Document, except any such taxes imposed on any Lender, Issuer or the Administrative Agent as a result of a present or former connection between such Lender, Issuer or the Administrative Agent, as applicable, and the jurisdiction of the Governmental Authority imposing such tax (other than any such connection arising solely from such Lender, Issuer or the Administrative Agent, as applicable, having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement or any other Loan Document) with respect to an assignment (other than an assignment requested by the Borrower under Section 4.4).

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“Ownership Share” means, with respect to any Subsidiary of a Person (other than a wholly owned Subsidiary) or any Unconsolidated Subsidiary of a Person, the greater of (a) such Person’s relative nominal direct and indirect ownership interest (expressed as a percentage) in such Subsidiary or Unconsolidated Subsidiary or (b) subject to compliance with Section 7.1.1(r), such Person’s relative direct and indirect economic interest (calculated as a percentage) in such Subsidiary or Unconsolidated Subsidiary determined in accordance with the applicable provisions of the declaration of trust, articles or certificate of incorporation, articles of organization, partnership agreement, joint venture agreement or other applicable organizational document of such Subsidiary or Unconsolidated Subsidiary.

“Parent Guaranty” is defined in Section 5.1.4.

“Participant” is defined in Section 10.9.2.

“Participant Register” is defined in Section 10.9.3.

“Patriot Act” has the meaning specified in Section 6.21.

“PBGC” means the Pension Benefit Guaranty Corporation, or any Governmental Authority succeeding to any of its principal functions under ERISA.

“Pension Plan” means a “pension plan” (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA (other than a Multiemployer Plan) with respect to which the Borrower or any ERISA Affiliate may have any liability.

“Percentage” means, relative to any Lender, the applicable fraction, expressed as a percentage, relating to Revolving Loans, Swingline Loans, and Letter of Credit Outstandings, the numerator of which shall be such Lender’s Commitment and the denominator of which shall be the Commitment Amount, as such percentage may be adjusted from time to time.

“Person” means any natural person, corporation, limited liability company, partnership, joint venture, joint stock company, firm, association, trust or unincorporated organization, government, governmental agency, court or any other legal entity, whether acting in an individual, fiduciary or other capacity.

“Pfandbrief” shall mean the trustee, administrator or receiver (or a nominee, collateral agent or collateral trustee) of, a mortgage pool securing covered mortgage bonds issued by an eligible German bank (Pfandbriefbanken), the bondholders (as a collective whole) thereof, or by any other Person otherwise permitted to issue covered mortgage bonds (Hypothekenpfandbriefe) under German bond law (Pfandbriefgesetz 2005, as the same may be amended or modified and in effect from time to time, and/or any substitute or successor legislation thereto).

“Plan” means an employee benefit plan (as defined in Section 3(3) of ERISA) which the Borrower sponsors or maintains or to which the Borrower makes, is making or is obligated to make contributions and includes any Pension Plan.

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“Pledge Agreement” means the Pledge Agreement in substantially the form of Exhibit K-1 hereto executed by Borrower and each acknowledgement executed by each Pledged Subsidiary (as modified, supplemented or amended from time to time).

“Pledged Subsidiaries” means, as of the date hereof, the Subsidiaries listed in Schedule V or Subsidiaries which are pledged as a result of a Joinder.

“Projections” is defined in Section 5.1.9(b).

“Properties” shall mean all land, buildings and improvements owned or leased by the Borrower Group Members.

“Property Owner” means a Person that owns a Property.

“Qualified Ground Lease” means a ground lease that (x) has a remaining term of at least thirty (30) years (including, for this purpose, any renewal option exercisable at the sole option of the ground lessee with no veto or approval rights by the ground lessor or any lender to such ground lessor other than customary requirements that no defaults exist) and (y) can be mortgaged without the consent of the ground lessor and (z) contains customary leasehold mortgagee protection rights (including, without limitation, the right to receive notice of any ground lease default, the right to cure any such default and the right to a new ground lease in favor of the leasehold mortgagee or its designee in the event that the ground lease should terminate on account of a default thereunder or for any other reason).

“Qualified Tenant Notes” means, subject to Section 7.1.16(e), those notes listed in Schedule II attached hereto.

“Quarterly Payment Date” means the last day of each March, June, September and December, or, if any such day is not a Business Day, the next succeeding Business Day.

“Recourse Indebtedness” means Indebtedness with respect to which the right of recovery of the obligee is not limited to recourse against collateral, if any, securing such Indebtedness.

“Register” is defined in Section 10.9.1(c).

“Reimbursement Obligations” is defined in Section 2.6.3.

“REIT” shall mean a real estate investment trust under Sections 856 through 860 of the Code.

“Replaced Lender” is defined in Section 4.4.

“Replacement Lender” is defined in Section 4.4.

“Required Lenders” means, at any time, Non-Defaulting Lenders having or holding greater than fifty percent (50%) of the sum (without duplication) of the aggregate outstanding principal amount of the Revolving Loans, the aggregate amount of the Letters of

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Credit Outstanding and the unfunded amount of the Revolving Loan Commitment Amount, in each case, taken as a whole, of the Non-Defaulting Lenders, but in no event fewer than three (3) Lenders.

“Required Maximum Unencumbered Asset Ratio” is defined in Section 7.2.4(e).

“Requirement of Law” means, as to any Person, any law, treaty, rule or regulation or determination of an arbitrator or of a Governmental Authority, in each case applicable to or legally binding upon the Person or any of its property or to which the Person or any of its property is subject.

“Reserve Adjusted LIBO Rate” is defined in Section 4.5.

“Responsible Officer” means, with respect to any Person, its chief executive officer, its president or any vice president, managing director, chief financial officer, treasurer, controller or other officer thereof having substantially the same authority and responsibility.

“Restricted Subsidiary” means a Subsidiary that is prohibited, whether (i) contractually by the terms of Mortgage Indebtedness encumbering the related Property, (ii) by the Organic Documents of such Subsidiary if such Subsidiary is not wholly-owned (directly or indirectly) by Borrower (unless such Subsidiary will realize benefits from this Facility as a result of the contribution or loan by Borrower of proceeds of Loans to such Subsidiary) or (iii) by law, (to be determined, in each case, in the discretion of the Administrative Agent unless the Borrower delivers (x) a legal opinion that such Subsidiary is so restricted and (y) an officer’s certificate to the effect that such restriction was not entered into to circumvent or otherwise avoid the requirements of Section 7.1.7), from (A) becoming a Subsidiary Guarantor, (B) pledging its interests in the Capital Stock of another Subsidiary, (C) having its Capital Stock pledged by Borrower or another Subsidiary pursuant to the provisions hereof and of the Pledge Agreement or (D) granting a security interest in its non-real property assets.

“Revolving Loan Commitment” shall mean, for each Lender, the commitment by such Lender to make Revolving Loans pursuant to Section 2.1.1 as set forth on Annex I attached hereto.

“Revolving Loan Commitment Amount” means $400,000,000, as such amount may be reduced from time to time pursuant to Section 2.2.

“Revolving Loan Commitment Termination Date” means the earliest of

(a) the Maturity Date;

(b) the date on which the Revolving Loan Commitment Amount is terminated in full or reduced to zero pursuant to Section 2.2; and

(c) the date on which any Commitment Termination Event occurs.

Upon the occurrence of any event described in the preceding clause (b) or (c), the Revolving Loan Commitments shall terminate automatically and without any further action.

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“Revolving Loan Commitments” means, relative to any Lender, such Lender’s obligation (if any) to make Revolving Loans pursuant to Section 2.1.1.

“Revolving Loans” is defined in Section 2.1.1.

“Revolving Note” means a promissory note, if any, executed by the Borrower and payable to any Lender, in the form of Exhibit A hereto (as such promissory note may be amended, endorsed or otherwise modified from time to time), evidencing the aggregate Indebtedness of the Borrower to such Lender resulting from outstanding Revolving Loans, and also means all other promissory notes accepted from time to time in substitution therefor or renewal thereof.

“S&P” means Standard & Poor’s Rating Services.

“SEC” means the Securities and Exchange Commission (including the staff thereof).

“Secured Creditors” means and includes each of the Administrative Agent, the Issuer, the Lenders and their subsequent assigns.

“Security Agreement” means the Security Agreement in substantially the form of Exhibit G-1 hereto executed by Credit Parties (as modified, supplemented or amended from time to time).

“Security Documents” shall mean: (i) the Pledge Agreement (including any supplements or Joinders thereto, as applicable) (ii) the Security Agreement (including supplements or joiners thereto, as applicable); (iii) the Omnibus Collateral Assignment of Material Agreements, Permits and Licenses in the form attached hereto as Exhibit M; (iv) financing statements to be filed with the appropriate state and/or county offices for the perfection of a security interest in any of the Collateral or any other collateral or security for the Obligations; (v) all other agreements, documents, and instruments evidencing, securing, or pertaining to the Obligations or any part thereof, as shall from time to time be executed and delivered by the Credit Parties, or any other Person in favor of any Lender; and (vi) all renewals, extensions, and restatements of, and amendments and supplements to, any of the foregoing.

“Share” shall mean, for any Person, such Person’s share of the assets, liabilities, revenues, income, losses, or expenses of a Subsidiary based upon such Person’s percentage ownership of such Subsidiary.

“Specified Representations” shall mean, representations and warranties by or with respect to the Borrower, Guarantor, or any other guarantors, relating to existence, organization, requisite power and authority, qualification to enter into the Loan Documents and consummate the Transactions; due authorization, execution and delivery and enforceability of the Loan Documents; no conflicts with or consents under organizational documents, applicable law or material contracts; binding obligation; Investment Company Act; margin stock; solvency of the Borrower and its Subsidiaries on a consolidated basis, pro forma for the Transactions; OFAC, Patriot Act; status as senior debt and, subject to the immediately preceding sentence, the creation, validity and perfection of security interests in the intended Collateral

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“Spirit” shall mean Spirit Realty Capital, Inc., a Maryland corporation formerly known as Spirit Finance Corporation.

“Stated Amount” of each Letter of Credit means the total amount available to be drawn under such Letter of Credit upon the issuance thereof, as such amount may be amended from time to time, determined without regard to whether any conditions to drawing could then be met.

“Stated Expiry Date” is defined in Section 2.6.

“Stop Issue Notice” shall mean a notice received by Issuer from the Administrative Agent, whether on its own initiative or at the direction of the Required Lenders, that one or more of the conditions specified in Section 5.2 are not then satisfied, or that the issuance of a Letter of Credit would violate Section 2.1.4.

“Subsidiary” shall mean, for any Person, any other Person in whom such first Person or a Subsidiary of such Person holds Capital Stock and whose financial results would be consolidated under GAAP with the financial results of such first Person on the consolidated financial statements of such first Person.

“Subsidiary Guarantor” means as of the date hereof, the Pledged Subsidiaries, and thereafter, each Subsidiary of Guarantor or Borrower that is, or becomes, party to the Subsidiary Guaranty, on a joint and several basis.

“Subsidiary Guaranty” is defined in Section 5.1.4.

“Swingline Borrowing” means a Borrowing under Section 2.9 hereof.

“Swingline Commitment” means, for each Lender, the commitment by the Swingline Lender to make, or obligation by the other Lenders to participate in, Swingline Loans as set forth in Section 2.9.

“Swingline Commitment Amount” means, subject to Section 2.5, on any date, a maximum amount equal to $20,000,000.00, as such amount may be permanently reduced from time to time pursuant to Section 2.2.

“Swingline Lender” means the Administrative Agent and any other Lender designated by the Borrower from among those Lenders identified by the Administrative Agent as permissible Swingline Lenders.

“Swingline Loan” means a loan made by the Swingline Lender pursuant to Section 2.9.

“Tax Compliance Certificate” is defined in Section 4.6(d)(i).

“Taxes” means any and all present or future taxes, levies, assessments, imposts, duties, deductions, fees, withholdings or similar charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

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“Tenant” is defined in the definition of Lease.

“Tenant Estoppel Certificate” means an estoppel certificate in the form of Exhibit L attached hereto, evidencing no matter that would (i) cause a Lease with a Major Tenant not to be in full, force and effect, (ii) cause an Unencumbered Property to cease to qualify as such or (iii) evidence facts which would materially and adversely affect the financial terms of a Lease, and is otherwise reasonably satisfactory to the Administrative Agent.

“Test Period” means, for any determination under this Agreement the four consecutive Fiscal Quarters then last ended (in each case taken as one accounting period).

“Total Fixed Charge Coverage Ratio” means, as of the close of any Fiscal Quarter, the ratio computed for the period proscribed in 7.2.4(b) of (a) Consolidated EBITDA for such period to (b) the sum, on a consolidated basis, of (i) Total Interest Expense for such period, plus (ii) the scheduled principal amount of all amortization payments (but not final balloon payments at maturity) for such period on all Indebtedness of the Consolidated Group; plus (iii) distributions made by the Borrower in such period for the purpose of paying Dividends on preferred shares in Guarantor and General Partner.

“Total Indebtedness” means, as to any Person as of a given date, all liabilities which would, in conformity with GAAP, be properly classified as a liability on a consolidated balance sheet of such Person as of such date, and in any event shall include (without duplication): (a) all Indebtedness of such Person (whether or not Nonrecourse Indebtedness and whether or not secured by a Lien), including without limitation, Capitalized Lease Liabilities and reimbursement obligations with respect to any letter of credit; (b) all accounts payable and accrued expenses of such Person; (c) all purchase and repurchase obligations and forward commitments of such Person to the extent such obligations or commitments are evidenced by a binding purchase agreement (forward commitments shall include without limitation (i) forward equity commitments and (ii) commitments to purchase any real property under development, redevelopment or renovation); (d) all unfunded obligations of such Person; (e) all lease obligations of such Person (including ground leases) to the extent required under GAAP to be classified as a liability on a balance sheet of such Person; (f) all contingent obligations of such Person including, without limitation, all guarantees of Indebtedness by such Person; (g) all liabilities of any Unconsolidated Subsidiary of such Person, which liabilities such Person has guaranteed or is otherwise obligated on a recourse basis; and (h) such Person’s Ownership Share of the Indebtedness of any Unconsolidated Subsidiary of such Person, including Nonrecourse Indebtedness of such Person. For purposes of clauses (c) and (d) of this definition, the amount of Total Indebtedness of a Person at any given time in respect of (x) a contract to purchase or otherwise acquire unimproved or fully developed real property shall be equal to (i) the total purchase price payable by such Person under such contract if, at such time, the seller of such real property would be entitled to specifically enforce such contract against such Person, otherwise, (ii) the aggregate amount of due diligence deposits, earnest money payments and other similar payments made by such Person under such contract which, at such time, would be subject to forfeiture upon termination of the contract and (y) a contract relating to the acquisition of real property which the seller is required to develop or renovate prior to, and as a condition precedent to, such acquisition, shall equal the maximum amount reasonably estimated to be payable by such Person under such contract assuming performance by the seller of its obligations under such

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contract, which amount shall include, without limitation, any amounts payable after consummation of such acquisition which may be based on certain performance levels or other related criteria. For purposes of this definition, if the assets of a Subsidiary of a Person consist solely of Equity Interests in one Unconsolidated Subsidiary of such Person and such Person is not otherwise obligated in respect of the Indebtedness of such Unconsolidated Subsidiary, then only such Person’s Ownership Share of the Indebtedness of such Unconsolidated Subsidiary shall be included as Total Indebtedness of such Person. Notwithstanding the use of GAAP, the calculation of Total Indebtedness shall not include any fair value adjustments to the carrying value of liabilities to record such liabilities at fair value pursuant to electing the fair value option election under FASB ASC 825-10-25 (formerly known as FAS 159, The Fair Value Option for Financial Assets and Financial Liabilities) or other FASB standards allowing entities to elect fair value option for financial liabilities.

“Total Interest Expense” means the aggregate cash interest expense of the Consolidated Group for such period, as determined in accordance with GAAP, including capitalized interest and the portion of any payments made in respect of Capitalized Lease Liabilities allocable to interest expense, but excluding (i) deferred financing costs, (ii) other non-cash interest expense and (iii) any capitalized interest relating to construction financing for a Property to the extent an interest reserve or a loan “holdback” is maintained in respect of such capitalized interest pursuant to the terms of such financing as reasonably approved by the Administrative Agent.

“Total Leverage Ratio” shall mean, at any time, the ratio computed for the period proscribed in 7.2.4(a) of: (a) Total Indebtedness to (b) Gross Asset Value; provided that in determining Gross Asset Value, (i) the Net Operating Income for the first three (3) Fiscal Quarters beginning with the Fiscal Quarter ending December 31, 2013 shall be based on the results of the then ending Fiscal Quarter, multiplied by four and (ii) the Net Operating Income for each Fiscal Quarter ending on and after September 30, 2014 shall be based on the results of the then ending Fiscal Quarter and each of the three immediately prior Fiscal Quarters.

“Total Unencumbered Interest Coverage Ratio” means, as of the close of any Fiscal Quarter, the ratio computed for the period proscribed in Section 7.2.4(d) of (a) Net Operating Income from Unencumbered Properties and (b) Facility Interest Expense.

“Transaction” means the entering into of this Agreement and the other Loan Documents on the Closing Date and the incurrence of Loans, if any, hereunder on the Closing Date.

“Treasury Regulations” means the regulations promulgated under the Code, as amended, reformed or otherwise modified from time to time (include corresponding provisions of successor regulations).

“type” means, relative to any Loan, the portion thereof, if any, being maintained as a Base Rate Loan or a LIBO Rate Loan.

“U.C.C.” means the Uniform Commercial Code as from time to time in effect in the State of New York or State of Delaware, as stated herein.

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“UCC Searches” shall mean central and local current financing statement searches from the State of Delaware and each state in which a Property is located, and such other jurisdictions as Administrative Agent may request, covering the Borrower Group Members, together with copies of all financing statements listed in such searches.

“Unconsolidated Subsidiary” shall mean, for any Person, any other Person in whom such first Person holds Capital Stock and whose financial results would not be consolidated under GAAP with the financial results of such first Person on the consolidated financial statements of such first Person.

“Unencumbered Pool Covenants” shall mean collectively, (i) the covenant regarding the Minimum Unencumbered Assets pursuant to Section 7.2.4(e) hereof and (ii) the covenant regarding the Minimum Unencumbered Interest Coverage Ratio pursuant to Section 7.2.4(d) hereof.

“Unencumbered Properties” means the Unencumbered Real Properties.

“Unencumbered Real Properties” means Properties that, at all times, satisfy the following criteria: (i) Borrower or a wholly-owned Subsidiary of the Borrower holds good title (by fee or pursuant to a Qualified Ground Lease) to such Property, free and clear of all Liens (except for the Liens permitted under Section 7.2.3) and the Property Owner has no Indebtedness other than the Obligations, (ii) such Property is located in the United States of America, (iii) except for Development Property, such Property is leased to a Tenant that is not subject to any bankruptcy or similar insolvency proceeding under a valid lease with no less than six (6) months term remaining before expiration, and operated in accordance with the applicable industry standards, (iv) except for Development Property, such Property is fully operating, open to the public and not under development or redevelopment (except for routine, ordinary course renovation, maintenance and repair that does not result in the closure of more than fifteen percent (15%) of the rentable square feet); provided, however, that (A) temporary closure due to force majeure events, not to exceed ten (10) Business Days, shall be permitted, and (B) with respect to Properties that satisfy the requirements of this clause (iv) but are covered by a single performing master lease that also covers Properties that do not satisfy the requirements of this clause (iv) may be included, however the calculations of Unencumbered Total Value and Net Operating Income therefrom shall be based on the percentage that the square footage of such Unencumbered Properties bears to the total square footage of all Properties covered by the single performing master lease, and (v) such Property is free of material structural defects or any issues that have resulted, or could result, in an Environmental Occurrence.

“Unencumbered Total Value” shall mean, as of any date of determination, (i) the sum of the Gross Asset Values of the Unencumbered Real Properties as of the last day of such Fiscal Quarter plus (ii) the sum of the Qualified Tenant Notes as of the last day of such Fiscal Quarter. To the extent that (x) Unencumbered Real Properties leased pursuant to ground leases would, in the aggregate, account for more than 10.0% of Unencumbered Total Value, such excess shall be excluded and (y) Qualified Tenant Notes outstanding would, in the aggregate, account for more than 5.0% of the Unencumbered Total Value, such excess shall be excluded.

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“Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities under Section 4001(a)(16) of ERISA over the current value of that Pension Plan’s assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to Sections 412 and 430 of the Code for the applicable plan year.

“United States” or “U.S.” means the United States of America, its fifty states and the District of Columbia.

“U.S. Lender” is defined in Section 4.6(c).

“wholly-owned” means, with respect to any direct or indirect Subsidiary, any Subsidiary all of the outstanding Capital Stock of which is owned directly or indirectly by the Borrower.

Section 1.2 Use of Defined Terms. Unless otherwise defined or the context otherwise requires, terms for which meanings are provided in this Agreement shall have such meanings when used in each other Loan Document, the Disclosure Schedule, or any Borrowing Request, Issuance Request, Closing Date Certificate, Compliance Certificate, solvency certificate, Lender Assignment Agreement, notice or other communications delivered from time to time in connection with this Agreement or any other Loan Document.

Section 1.3 Cross-References. Unless otherwise specified, references in this Agreement and in each other Loan Document to any Article or Section are references to such Article or Section of this Agreement or such other Loan Document, as the case may be, and, unless otherwise specified, references in any Article, Section or definition to any clause are references to such clause of such Article, Section or definition.

Section 1.4 Accounting and Financial Determinations. Unless otherwise specified, all accounting terms used herein or in any other Loan Document or solvency certificate, shall be interpreted, all accounting determinations and computations hereunder or thereunder (including under Section 7.2.4) shall be made, and all financial statements required to be delivered hereunder or thereunder shall be prepared, in accordance with, those generally accepted accounting principles (“GAAP”) applied in the preparation of the financial statements referred to in Section 5.1.5; provided, however, that at any time the computations determining compliance with Section 7.2 utilize accounting principles different from those utilized in the financial statements furnished to the Lenders pursuant to Section 7.1.1, such financial statements shall be accompanied by reconciliation work-sheets. Unless otherwise expressly provided, all financial covenants and defined financial terms shall be computed on a consolidated basis for the Guarantor and General Partner, Borrower and its Subsidiaries, in each case without duplication. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made (i) without giving effect to any election under Accounting Standards Codification 825-10-25 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of the Guarantor, Borrower or any Subsidiary at “fair value”, as defined therein, and (ii) without giving effect to any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting

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Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. In the event there are revisions to GAAP that would affect the computation of financial covenants, ratios, or other requirements set forth in the Loan Documents, Borrower agrees to negotiate in good faith to amend such affected provisions to provide substantially the same financial covenants, ratios, or other requirements of the Borrower Group Members as in effect prior to such change to GAAP.

ARTICLE II

REVOLVING LOAN COMMITMENT AND

BORROWING PROCEDURES, NOTES

Section 2.1 Commitments. On the terms and subject to the conditions of this Agreement (including Section 2.1.3, Section 2.1.4, Section 2.1.5 and Article V), the Lenders and the Issuer severally agree to make Credit Extensions as set forth below.

Section 2.1.1 Revolving Loan Commitment. From time to time on any Business Day occurring from and after the Closing Date but prior to the Revolving Loan Commitment Termination Date, each Lender will make loans (relative to such Lender, its “Revolving Loans”) to the Borrower equal to such Lender’s Percentage of the aggregate amount of each Borrowing of the Revolving Loans requested by the Borrower to be made on such day. The commitment of each such Lender described in this Section 2.1.1 is herein referred to as its “Revolving Loan Commitment.” On the terms and subject to the conditions hereof, the Borrower may from time to time borrow, prepay and reborrow the Revolving Loans.

Section 2.1.2 Letter of Credit Commitment. From time to time on any Business Day occurring from and after the Closing Date but prior to the tenth (10th) Business Day prior to the Revolving Loan Commitment Termination Date, the Issuer will:

(a) issue one or more standby letters of credit in the form customarily used by the Issuer or in such other form as requested by Borrower and approved by the Issuer, in its sole discretion (each, a “Letter of Credit”) for the account of the Borrower in the Stated Amount requested by the Borrower on such day; or

(b) extend the Stated Expiry Date of an existing standby Letter of Credit previously issued hereunder to a date not later than the earlier of (x) the Maturity Date and (y) one year from the date of the then current Stated Expiry Date, provided that the Issuer shall be under no obligation to issue any Letter of Credit, or extend a Stated Expiry Date, if at the time of such issuance:

(i) any order, judgment or decree of any Governmental Authority or arbitrator shall purport by its terms to enjoin or restrain such Issuer from issuing such Letter of Credit or any Requirement of Law applicable to such Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such Issuer shall prohibit, or

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request that such Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such Issuer with respect to such Letter of Credit any restriction or reserve or capital requirement (for which such Issuer is not otherwise compensated) not in effect on the date hereof, or any unreimbursed loss, cost or expense which was not applicable, in effect or known to such Issuer as of the date hereof and which such Issuer reasonably and in good faith deems material to it; or

(ii) such Issuer shall have received a Stop Issue Notice from the Administrative Agent prior to the issuance of such Letter of Credit.

Each Letter of Credit shall be issued in Dollars and on a sight basis only.

Section 2.1.3 Lenders Not Permitted or Required to Make Loans. No Lender shall be permitted or required to make any Loan if, after giving effect thereto, the aggregate outstanding principal amount of all Revolving Loans, Swingline Loans and all Letter of Credit Outstandings with respect to such Lender would exceed the then existing Revolving Loan Commitment of such Lender, including such Lender’s Percentage of the aggregate amount of all Letter of Credit Outstandings and outstanding Swingline Loans.

Section 2.1.4 Issuer Not Permitted or Required to Issue Letters of Credit. The Issuer shall not be permitted or required to issue any Letter of Credit if, after giving effect thereto, (i) the aggregate amount of all Letter of Credit Outstandings would exceed the Letter of Credit Commitment Amount or (ii) the sum of the aggregate amount of all Letter of Credit Outstandings plus the aggregate principal amount of all Swingline Loans and Revolving Loans then outstanding would exceed the Revolving Loan Commitment Amount; or a Lender Default known to the Issuer exists, unless the Issuer has entered into arrangements reasonably satisfactory to it and the Borrower to eliminate the Issuer’s risk with respect to the participation in Letter of Credit Outstandings by each Defaulting Lender, including cash collateralizing such Defaulting Lender’s Percentage of Letter of Credit Outstandings in respect thereof.

Section 2.1.5 Swingline Lender Not Permitted or Required to Make Swingline Loans. The Swingline Lender shall not be permitted or required to make any Swingline Loan if, after giving effect thereto, (i) the aggregate amount of all outstanding Swingline Loans would exceed the Swingline Commitment or (ii) the sum of the aggregate amount of all outstanding Swingline Loans, plus Letter of Credit Outstandings plus the aggregate principal amount of all Revolving Loans then outstanding would exceed the Revolving Loan Commitment Amount; or a Lender Default known to the Issuer exists, unless the Swingline Lender has entered into arrangements reasonably satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the participation in Swingline Loans by each Defaulting Lender, including cash collateralizing such Defaulting Lender’s Percentage of Swingline Loans in respect thereof.

Section 2.2 Reduction of the Commitment Amounts. The Commitment Amounts are subject to reduction from time to time pursuant to this Section 2.2.

Section 2.2.1 Optional. The Borrower may, from time to time on any Business Day occurring after the Closing Date, voluntarily reduce the amount of the Revolving Loan

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Commitment Amount, Swingline Commitment Amount or the Letter of Credit Commitment Amount on the Business Day so specified by the Borrower; provided, however, that (a) all such reductions shall require at least three (3) Business Day’s prior written notice to the Administrative Agent and shall be permanent, and any partial reduction of any Commitment Amount shall be in a minimum amount of $1,000,000 and in an integral multiple of $250,000 in excess thereof and (b) in no event shall the Borrower be permitted to cancel Commitments for which a Letter of Credit has been issued and is outstanding unless the Borrower returns (or causes to be returned) such Letter of Credit to the Issuer.

Section 2.2.2 Mandatory. The Commitment Amount shall be reduced to zero on the Revolving Loan Commitment Termination Date.

Section 2.3 Borrowing Procedures. Revolving Loans shall be made by the Lenders in accordance with Section 2.3.1.

Section 2.3.1 Revolving Loans. By delivering a Borrowing Request to the Administrative Agent on or before 1:00 p.m., New York City time, on a Business Day, the Borrower may from time to time irrevocably request, on not less than one (1) Business Day’s notice in the case of Base Rate Loans or three (3) Business Days’ notice in the case of LIBO Rate Loans, that a Borrowing be made, in the case of LIBO Rate Loans, in a minimum amount of $1,000,000 and an integral multiple of $250,000 in excess thereof, in the case of Base Rate Loans, in a minimum amount of $1,000,000 and in integral multiples of $250,000 in excess thereof or, in either case, in the unused amount of the Revolving Loan Commitment. Notwithstanding the foregoing, the initial Borrowing Request associated with a Borrowing as of the Closing Date may be revocable provided Borrower reimburse each Lender for any actual loss or expense that such Lender sustains or incurs as a consequence of the failure by Borrower to borrow under the Facility on the date specified by Borrower which results in LIBOR breakage costs of the Lenders. On the terms and subject to the conditions of this Agreement, each Borrowing shall be comprised of the Revolving Loans, and shall be made on the Business Day, specified in such Borrowing Request. On or before 2:00p.m. New York City time, on such Business Day, each Lender shall deposit with the Administrative Agent same day funds in an amount equal to such Lender’s Percentage of the requested Borrowing. Such deposit will be made to an account which the Administrative Agent shall specify from time to time by notice to the Lenders. To the extent funds are received from the Lenders, the Administrative Agent shall make such funds available to the Borrower by wire transfer to the accounts the Borrower shall have specified in its Borrowing Request. Unless Administrative Agent shall have been notified by any Lender prior to the date of Borrowing that such Lender does not intend to make available to Administrative Agent its portion of the Borrowing or Borrowings to be made on such date, Administrative Agent may assume that such Lender has made such amount available to Administrative Agent on such date of Borrowing, and Administrative Agent, in reliance upon such assumption, may (in its sole discretion and without any obligation to do so) make available to Borrower a corresponding amount. If such corresponding amount is not in fact made available to Administrative Agent by such Lender and Administrative Agent has made available same to Borrower, then Administrative Agent shall be entitled to recover such corresponding amount from such Lender. If such Lender does not pay such corresponding amount forthwith upon Administrative Agent’s demand therefor, then Administrative Agent shall promptly notify Borrower, and Borrower shall, within five (5) Business Days, pay such corresponding amount to

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Administrative Agent. Administrative Agent shall also be entitled to recover from such Lender or Borrower, as the case may be, interest on such corresponding amount in respect of each day from the date such corresponding amount was made available by Administrative Agent to Borrower to the date such corresponding amount is recovered by Administrative Agent, at a rate per annum equal to the then applicable rate of interest, calculated in accordance with Section 3.3, for the respective Loans. No Lender’s obligation to make any Loan shall be affected by any other Lender’s failure to make any Loan. No more than five (5) LIBO Rate Loans may be outstanding at any time during the term of the Loan. At any time that an Event of Default has occurred and is continuing, Borrower shall not be entitled to elect or request LIBO Rate Loans.

Section 2.3.2 Telephonic Notice. Without in any way limiting the obligation of Borrower to confirm in writing any telephonic notice permitted to be given hereunder, Administrative Agent may act prior to receipt of written confirmation without liability upon the basis of such telephonic notice believed by Administrative Agent in good faith to be from an Authorized Officer of Borrower entitled to give telephonic notices under this Agreement on behalf of Borrower. In each such case, Administrative Agent’s record of the terms of such telephonic notice shall be conclusive absent manifest error and Borrower hereby waives the right to dispute such record.

Section 2.4 Continuation and Conversion Elections. By delivering a Continuation/Conversion Notice to the Administrative Agent on or before 1:00 p.m., New York City time, on a Business Day, the Borrower may from time to time irrevocably elect, on not less than one (1) Business Day’s notice in the case of any Revolving Loans that are to be continued as, or converted into Base Rate Loans, or three (3) Business Days’ notice in the case of any Revolving Loans that are to be continued as, or converted into, LIBO Rate Loans, that all, or any portion in an aggregate minimum amount of $1,000,000 and in integral multiples of $250,000 in excess thereof, in the case of any Revolving Loans that are to be continued as, or converted into, LIBO Rate Loans, or an aggregate minimum amount of $1,000,000 and an integral multiple of $250,000 in excess thereof, in the case of any Revolving Loans that are to be continued as, or converted into, Base Rate Loans, be, in the case of Base Rate Loans, converted into LIBO Rate Loans or continued as Base Rate Loans, or be, in the case of LIBO Rate Loans, converted into Base Rate Loans or continued as LIBO Rate Loans (in the absence of delivery of a Continuation/Conversion Notice with respect to any LIBO Rate Loan at least three (3) Business Days before the last day of the then current Interest Period with respect thereto, such LIBO Rate Loan shall, on such last day, automatically be continued as a LIBO Rate Loan having an Interest Period of one (1) month); provided, however, that (x) each such conversion or continuation shall be pro rated among the applicable outstanding Revolving Loans of all Lenders, and (y) if any Event of Default is in existence at the applicable time of any proposed continuation of, or conversion into, any LIBO Rate Loans, the Borrower may not elect to have a Revolving Loan converted into or continued as a LIBO Rate Loan and any outstanding LIBO Rate Loans shall be automatically converted on the last day of the current Interest Period applicable thereto into Base Rate Loans. No more than five (5) LIBO Rate Loans may be outstanding at any time during the term of the Loan. Administrative Agent shall give each Lender prompt notice of any such proposed conversion affecting any of its Loans.

Section 2.5 Funding. Each Lender may, if it so elects, fulfill its obligation to make, continue or convert LIBO Rate Loans hereunder by causing one of its foreign branches or

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Affiliates (or an international banking facility created by such Lender) to make or maintain such LIBO Rate Loan; provided, however, that such LIBO Rate Loan shall nonetheless be deemed to have been made and to be held by Lender, and the obligation of the Borrower to repay such LIBO Rate Loan shall nevertheless be to Lender for the account of such foreign branch, Affiliate or international banking facility.

Section 2.6 Issuance Procedures. By delivering to the Administrative Agent and the Issuer an Issuance Request (including by way of facsimile) on or before 11:00 a.m., New York City time, on a Business Day, the Borrower may, from time to time irrevocably request, on not less than three (3) nor more than ten (10) Business Days’ notice, in the case of an initial issuance of a Letter of Credit for the account of the Borrower, that the Issuer issue an irrevocable Letter of Credit. Any standby Letter of Credit theretofore issued which contains an “evergreen” or similar automatic extension feature shall, unless the Borrower shall have notified the Issuer in writing not less than thirty (30) days’ (or such shorter period as may be acceptable to the Issuer in its sole discretion or such longer period as may be required by the beneficiary of such Letter of Credit) prior to the date that such standby Letter of Credit is scheduled to be automatically extended that the Borrower desires that such standby Letter of Credit not be so extended, be automatically extended in accordance with the terms thereof subject to the Issuer’s right not to so extend if the conditions precedent to the issuance of such a Letter of Credit would not be satisfied. Each Letter of Credit shall by its terms be stated to expire on a date (its “Stated Expiry Date”) no later than the earlier to occur of (i) the fifth (5^th) Business Day prior to the Maturity Date and (ii) one (1) year from the date of its issuance.

Section 2.6.1 Other Lenders’ Participation. Upon the issuance of each Letter of Credit issued by the Issuer pursuant hereto, and without further action, each Lender (other than the Issuer) shall be deemed to have irrevocably purchased, to the extent of its Percentage to make Revolving Loans, a participation interest in such Letter of Credit (including the Contingent Obligation and any Reimbursement Obligation with respect thereto), and such Lender shall, to the extent of its Percentage, be responsible for reimbursing promptly (and in any event within one (1) Business Day) the Issuer for Reimbursement Obligations which have not been reimbursed by the Borrower in accordance with Section 2.6.3. In addition, such Lender shall, to the extent of its Percentage to make Revolving Loans, be entitled to receive a ratable portion of the Letter of Credit fees payable pursuant to Section 3.4.3 with respect to each Letter of Credit (other than the issuance and processing fees and other charges payable to the Issuer of such Letter of Credit pursuant to the last sentence of Section 3.4.3) and of interest payable pursuant to Section 3.4 with respect to any Reimbursement Obligation. To the extent that any Lender has reimbursed the Issuer for a Disbursement as required by Section 2.6.3, such Lender shall be entitled to receive its ratable portion of any amounts subsequently received (from the Borrower or otherwise) in respect of such Disbursement.

Section 2.6.2 Disbursements. The Issuer will notify the Borrower and the Administrative Agent promptly of the presentment for payment of any Letter of Credit issued by the Issuer, together with notice of the date (the “Disbursement Date”) such payment shall be made (each such payment, a “Disbursement”). The Administrative Agent shall apply all funds then on deposit with the Administrative Agent pursuant to Section 3.2.1(b)(C), Section 8.2, Section 8.3 or Section 8.4 for the purpose of cash collateralizing the Letter of Credit Outstandings to reimburse the Issuer for any such Disbursement provided such cash collateral,

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after giving effect to such disbursement would not otherwise be required to be re-deposited under any such Section. Subject to the terms and provisions of such Letter of Credit and this Agreement, the Issuer shall make such payment to the beneficiary (or its designee) of such Letter of Credit. Prior to 1:00 p.m., New York City time, on the first Business Day following the Disbursement Date, the Borrower will reimburse the Administrative Agent, for the account of Issuer, for all amounts which the Issuer has disbursed under such Letter of Credit to the extent that the amounts on deposit with the Administrative Agent are insufficient to satisfy such disbursement, together with interest thereon at a rate per annum equal to the interest rate then in effect for Base Rate Loans pursuant to Section 3.3 for the period from the Disbursement Date through the date of such reimbursement. Notwithstanding anything contained herein to the contrary, however, unless the Borrower shall have notified the Administrative Agent and the Issuer prior to 1:00 P.M. (New York City time) on the Business Day immediately preceding the date of such drawing that the Borrower intends to reimburse the Issuer for the amount of such drawing with funds other than the proceeds of the Loans, the Borrower shall be deemed to have timely given a Notice of Borrowing pursuant to Section 2.3 to the Administrative Agent, requesting a Borrowing of Base Rate Loans on the date on which such drawing is honored and in an amount equal to the amount of such drawing less amounts, if any, applied, or required to be applied, to reimburse the Issuer pursuant to the second sentence of this Section 2.6.2. Each Lender (other than the Issuer) shall, in accordance with Section 2.3.1, make available its pro rata share of such Borrowing to the Administrative Agent, the proceeds of which shall be applied directly by the Administrative Agent to reimburse the Issuer for the amount of such draw notwithstanding (I) that the amount of such Borrowing may not comply with the minimum amount of Borrowings otherwise required hereunder, (II) whether any conditions specified in Section 5.2 are then satisfied, (III) whether a Default or an Event of Default then exists, (IV) failure of any such deemed request for a Borrowing to be made by the time otherwise required in Section 2.1, (V) the date of such Borrowing (provided that such date must be a Business Day), or (VI) any termination of the Commitments immediately prior to such Borrowing or contemporaneously therewith. Without limiting in any way the foregoing and notwithstanding anything to the contrary contained herein, the Borrower hereby acknowledges and agrees that it shall be obligated to reimburse the Lender as set forth herein upon each Disbursement of a Letter of Credit.

Section 2.6.3 Reimbursement Obligations. The obligation (a “Reimbursement Obligation”) of the Borrower under Section 2.6.2 to reimburse the Issuer with respect to each Disbursement (including interest thereon), and, upon the failure of the Borrower to reimburse the Issuer, each Lender’s obligation under Section 2.6.1 to reimburse the Issuer, shall be absolute and unconditional under any and all circumstances and irrespective of any setoff, counterclaim or defense to payment which the Borrower or such Lender, as the case may be, may have or have had against the Issuer or any such Lender, including any defense based upon the failure of any Disbursement to conform to the terms of the applicable Letter of Credit (if, in the Issuer’s good faith opinion, such Disbursement is determined to be appropriate) or any non-application or misapplication by the beneficiary of the proceeds of such Letter of Credit; provided, however, that after paying in full its Reimbursement Obligation hereunder, nothing herein shall preclude the right of such Lender to commence any proceeding against the Issuer for any wrongful Disbursement made by the Issuer under a Letter of Credit as a result of acts or omissions constituting gross negligence or willful misconduct (as determined by a court of competent jurisdiction on the part of the Issuer in a final and non-appealable decision); provided, further,

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that, in any event, the Borrower may have a claim against the Issuer, and the Issuer may be liable to the extent (but only to the extent) of any direct, as opposed to consequential or exemplary, damages suffered by the Borrower which were caused by the Issuer’s willful misconduct or gross negligence as determined by a court of competent jurisdiction in a final and non-appealable decision or the Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a demand for payment strictly complying with the terms and conditions of such Letter of Credit.

Section 2.6.4 Nature of Reimbursement Obligations. The Borrower and, to the extent set forth in Section 2.6.1, each Lender shall assume all risks of the acts, omissions or misuse of any Letter of Credit by the beneficiary thereof. The Issuer (except to the extent of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision)) shall not be responsible for:

(a) the form, validity, sufficiency, accuracy, genuineness or legal effect of any Letter of Credit or any document submitted by any party in connection with the application for and issuance of a Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged;

(b) the form, validity, sufficiency, accuracy, genuineness or legal effect of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or the proceeds thereof in whole or in part, which may prove to be invalid or ineffective for any reason;

(c) failure of the beneficiary to comply fully with conditions required in order to demand payment under a Letter of Credit;

(d) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise; or

(e) any loss or delay in the transmission or otherwise of any document or draft required in order to make a Disbursement under a Letter of Credit.

None of the foregoing shall affect, impair or prevent the vesting of any of the rights or powers granted to the Issuer or any Lender hereunder. In furtherance and extension and not in limitation or derogation of any of the foregoing, any action taken or omitted to be taken by the Issuer in good faith (and not constituting gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision)) shall be binding upon the Borrower and each Lender, and shall not put the Issuer under any resulting liability to the Borrower or any Lender, as the case may be.

Section 2.6.5 Certain Notifications Regarding Letters of Credit. Promptly after the issuance of, or any modification or amendment to, any standby Letter of Credit, the Issuer shall notify the Borrower and the Administrative Agent in writing of such issuance, modification or amendment. Promptly after receipt of such notice, the Administrative Agent shall notify the Lenders in writing of such issuance, modification or amendment. On the first Business Day of each week, the Issuer shall furnish the Administrative Agent with a written (including via

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facsimile) report of the daily aggregate outstandings of Letters of Credit issued by the Issuer for the immediately preceding week.

Section 2.6.6 Excess Cash Collateral. Subject to Section 8.4, unless a Default or an Event of Default has occurred and is continuing, if the amount on deposit with the Administrative Agent designated for, or intended to be used for, the purpose of cash collateralizing the Letter of Credit Outstandings is in excess of the Letter of Credit Outstandings at such time and would not otherwise be required to be deposited under Section 3.2.1(b)(B), Section 8.2, Section 8.3, or Section 8.4 (the amount of any such excess is referred to herein as the “Excess Cash Collateral”), the Administrative Agent shall promptly return to the Borrower the Excess Cash Collateral.

Section 2.7 Loan Accounts and Revolving Notes. All Loans under this Agreement shall be severally made by Lenders pro rata on the basis of their respective Revolving Loan Commitments, it being understood that no Lender shall be responsible for any default by any other Lender in its obligation to make Loans hereunder or any other breach by any other Lender of this Agreement and that each Lender shall be obligated to make the Loans provided to be made by it hereunder, regardless of the failure of any other Lender to fulfill its commitments hereunder.

(a) The Loans made by each Lender and the Letters of Credit issued by the Issuer shall be evidenced by one or more loan accounts or records maintained by such Lender or the Issuer, as the case may be, in the ordinary course of business. Subject to Section 10.9.1(c), which shall control in the event of any inconsistency with this Section 2.7(a), the loan accounts or records maintained by the Administrative Agent, the Issuer and each Lender shall be conclusive absent clearly demonstrable error of the amount of the Loans made by the Lenders to, and the Letters of Credit issued by the Issuer for the account of, the Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Loans and the Reimbursement Obligations.

(b) Upon the request of any Lender made through the Administrative Agent, the Loans made by such Lender may be evidenced by (and the Borrowers agree to issue) one or more Revolving Notes, instead of or in addition to loan accounts. Each such Lender is irrevocably authorized by the Borrower to endorse on the Revolving Note(s) the date, amount and maturity of each Loan made, continued or converted by it and the amount of each payment of principal made by the Borrower with respect thereto. Subject to Section 10.9.1(c), which shall control in the event of any inconsistency with this Section 2.7(b), each such Lender’s record shall be conclusive absent clearly demonstrable error; provided, however, that the failure of a Lender to make, or an error in making, a notation thereon with respect to any Loan shall not limit or otherwise affect the obligations of the Borrower hereunder or under any such Revolving Note to such Lender. The reasonable costs and expenses incurred in connection with the issuance of each Note shall be for the account of the Borrower.

Section 2.8 Intentionally Omitted.

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Section 2.9 Swingline Loan Subfacility.

Section 2.9.1 Swingline Commitment.

Subject to the terms and conditions of this Section 2.9, the Swingline Lender, in its individual capacity, agrees to make certain revolving credit loans to the Borrower (each a “Swingline Loan” and, collectively, the “Swingline Loans”) from time to time prior to the Revolving Loan Commitment Termination Date; provided, however, that the aggregate amount of Swingline Loans outstanding at any time shall not exceed the Swingline Commitment Amount. Subject to the limitations set forth herein, any amounts repaid in respect of Swingline Loans may be reborrowed.

Section 2.9.2 Swingline Borrowings.

(a) Notice of Borrowing. With respect to any Swingline Borrowing, the Borrower shall give the Swingline Lender and the Administrative Agent a Borrowing Request which shall be received by the Swingline Lender and Administrative Agent not later than 12:00 noon (New York City time) on the proposed date of such Swingline Borrowing (and confirmed by telephone by such time).

(b) Minimum Amounts. Each Swingline Borrowing shall be in a minimum principal amount of $500,000, or an integral multiple of $100,000 in excess thereof.

(c) Repayment of Swingline Loans. Each Swingline Loan shall be due and payable on the earliest of (A) five (5) Business Days from and including the date of the applicable Swingline Borrowing, (B) the date of the next Revolving Loan or (C) the Maturity Date. If, and to the extent, any Swingline Loans shall be outstanding on the date of any Revolving Loan, such Swingline Loans shall first be repaid from the proceeds of such Revolving Loan prior to the disbursement of the same to the Borrower. If, and to the extent, a Revolving Loan is not requested prior to the Maturity Date or the end of the five Business Day period after a Swingline Borrowing, or unless the Borrower shall have notified the Administrative Agent and the Swingline Lender prior to 1:00 P.M. (New York City time) on the fourth (4th) Business Day after the Swingline Borrowing that the Borrower intends to reimburse the Swingline Lender for the amount of such Swingline Borrowing with funds other than proceeds of the Revolving Loans, the Borrower shall be deemed to have requested a Borrowing comprised entirely of Base Rate Loans in the amount of the applicable Swingline Loan then outstanding, the proceeds of which shall be used to repay such Swingline Loan to the Swingline Lender. In addition, if (x) the Borrower does not repay the Swingline Loan on or prior to the end of such five Business Day period, or (y) a Default or Event of Default shall have occurred during such five Business Day period, the Swingline Lender may, at any time, in its sole discretion, by written notice to the Borrower and the Administrative Agent, demand repayment of its Swingline Loans by way of a Borrowing, in which case the Borrower shall be deemed to have requested a Borrowing comprised entirely of Base Rate Loans in the amount of such Swingline Loans then outstanding, the proceeds of which shall be used to repay such Swingline Loans to the Swingline Lender. Any Borrowing which is deemed requested by the Borrower in accordance with this Section 2.9.2(c) is hereinafter referred to as a

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“Mandatory Borrowing”. Each Lender shall, promptly upon receipt of notice from the Swingline Lender of any such deemed request for a Mandatory Borrowing in the amount and in the manner specified in the preceding sentences and on the date such notice is received by such Lender (or the next Business Day if such notice is received after 12:00 noon (New York City time)) make available its pro rata share of such Borrowing notwithstanding (I) that the amount of the Mandatory Borrowing may not comply with the minimum amount of Borrowings otherwise required hereunder, (II) whether any conditions specified in Section 5.2 are then satisfied, (III) whether a Default or an Event of Default then exists, (IV) failure of any such deemed request for a Borrowing to be made by the time otherwise required in Section 2.1, (V) the date of such Mandatory Borrowing (provided that such date must be a Business Day), or (VI) any termination of the Commitments immediately prior to such Mandatory Borrowing or contemporaneously therewith. Notwithstanding anything to the contrary herein, Borrower shall not be permitted to pay any outstanding Swingline Borrowing with funds received from another Swingline Borrowing.

(d) Purchase of Participations. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to the Borrower), then each Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payment received from the Borrower on or after such date and prior to such purchase) from the Swingline Lender such participations in the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon its pro rata share (determined before giving effect to any termination of the Commitments pursuant hereto), provided that (A) all interest payable on the Swingline Loans with respect to any participation shall be for the account of the Swingline Lender until but excluding the day upon which the Mandatory Borrowing would otherwise have occurred, and (B) in the event of a delay between the day upon which the Mandatory Borrowing would otherwise have occurred and the time any purchase of a participation pursuant to this sentence is actually made, the purchasing Lender shall be required to pay to the Swingline Lender interest on the principal amount of such participation for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the rate equal to the Federal Funds Rate, for the two (2) Business Days after the date the Mandatory Borrowing would otherwise have occurred, and thereafter at a rate equal to the Base Rate.

Section 2.9.3 Interest Rate. Each Swingline Loan shall bear interest on the outstanding principal amount thereof, for each day from the date such Swingline Loan is made until the date it is repaid, at a rate per annum equal to the Alternate Base Rate from time to time in effect on such date plus the Applicable Margin.

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ARTICLE III

MATURITY DATE; REPAYMENTS, PREPAYMENTS, INTEREST AND FEES

Section 3.1 Maturity Date; Extension Option.

(a) Initial Maturity Date. The term of the Loans shall terminate and expire on the Initial Maturity Date, unless extended by Borrower pursuant to clause (b) below.

(b) Extended Maturity Date. Subject to the provisions of this Section 3.1 (b), Borrower shall have the option (the “Extension Option”), by irrevocable written notice (the “Extension Notice”) delivered to Administrative Agent no later than ninety (90) days prior to the Initial Maturity Date, to extend the Initial Maturity Date for a period of twelve (12) months (the “Extension Term”) to the fourth (4^th) anniversary of the Closing Date (the “Extended Maturity Date”). Borrower’s right to so extend the Initial Maturity Date shall be subject to the satisfaction (or waiver, in the sole discretion of the Required Lenders) of the following conditions precedent prior to the commencement of the Extension Term:

(i) payment by Borrower on or prior to the Initial Maturity Date of an extension fee equal to 0.25% of the aggregate outstanding Revolving Loan Commitment Amount and Swingline Commitment Amount, and Letter of Credit Outstandings as of such date, together with all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Lenders in connection with the Extension Option;

(ii) no Event of Default shall have occurred and be continuing on the date Borrower delivers the Extension Notice; and

(iii) on the Initial Maturity Date, Borrower shall deliver an Officer’s Certificate which confirms and certifies that:

(1) no Event of Default has occurred and is continuing as of the Initial Maturity Date or would result from such extension after the Initial Maturity Date;

(2) all representations and warranties contained in the Loan Documents are true, correct and accurate in all material respects (or, to the extent any such representations and warranties already are qualified or modified by materiality in the text thereof, in all respects) as if made on and as of the Initial Maturity Date (unless stated to relate solely to an earlier date, in which case such representations and warranties shall be true, correct and accurate in all respects as of such earlier date), it being understood that such representations and warranties shall be updated as of the date of the requested Credit Extension if requested by Administrative Agent;

(3) no breach of covenants set forth in Section 7.2.4, exist as of the Initial Maturity Date or would result from such extension (which such Officer’s Certificate shall be accompanied by an updated Compliance Certificate showing

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(in reasonable detail, including with respect to appropriate calculations and computations) compliance with the financial covenants set forth in Section 7.2.4 (including reconciliation to GAAP, if applicable) as of such date; and

(4) such other acknowledgments and ratifications from the Credit Parties and execution and delivery of such other documents (including opinions of counsel and other back up documentation, in each case reasonably satisfactory to Administrative Agent) and as the Administrative Agent may reasonably request.

(c) Extension Documentation. Subject to Section 3.1(b)(iii)(4), as soon as practicable following any extension of the Maturity Date pursuant to this Section 3.1, Borrower shall, if requested by Administrative Agent, execute and deliver an amendment or restatement of the then existing Notes and shall, if requested by Administrative Agent, enter into such other amendments or modifications to the related then existing Loan Documents as may be necessary or appropriate to evidence the extension of the Maturity Date as provided in this Section 3.1; provided, however, that failure by Borrower to enter into any such amendments and/or restatements (other than as required by Section 3.1(b)(iii)(4)), in and of itself, shall not affect the rights or obligations of Borrower or Administrative Agent with respect to the extension of the Maturity Date.

Section 3.2 Repayments and Prepayments; Application.

Section 3.2.1 Repayments and Prepayments. The Borrower shall repay in full the unpaid principal amount of all Loans on the Maturity Date. Prior thereto, payments and prepayments of Loans shall or may be made as set forth below.

(a) Voluntary Prepayments. From time to time on any Business Day, the Borrower may make a voluntary prepayment, in whole or in part, of the outstanding principal amount of any Loans, provided that

(A) any such prepayment of the Loans shall be made pro rata among the Loans of the same type and, if applicable, having the same Interest Period of all Lenders that have made such Loans;

(B) all such voluntary prepayments shall require at least one (1) Business Days’ irrevocable prior written notice to the Administrative Agent; and

(C) all such voluntary partial prepayments shall be, in an aggregate minimum amount of $1,000,000 and an integral multiple of $250,000 in excess thereof (or, if less, in the remaining outstanding principal amount thereof), except in the case of Swingline Loans, which shall be in the minimum amount of $500,000, and integral multiples of $100,000.

(b) Exceeding Commitment Amounts.

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(A) On each date when (i) the aggregate outstanding principal amount of all Revolving Loans, Swingline Loans and Letter of Credit Outstandings exceeds the Revolving Loan Commitment Amount, the Borrower shall make a mandatory prepayment of the Swingline Loans and/or Revolving Loans in an aggregate amount equal to the amount by which the Swingline Loans, Revolving Loans and Letter of Credit Outstandings exceed the then applicable Revolving Loan Commitment Amount, and (ii) the aggregate outstanding principal amount of Swingline Loans exceeds the Swingline Commitment Amount, the Borrower shall make a mandatory prepayment of the Swingline Loans in an aggregate amount equal to the amount by which the Swingline Loans exceed the applicable Swingline Commitment Amount.

(B) In the event that on any date the Borrower fails to satisfy the Required Maximum Unencumbered Asset Ratio, the Borrower shall, within five (5) Business Days, make a mandatory prepayment of the Swingline Loans, Letter of Credit Outstandings and/or Revolving Loans in an aggregate amount equal to the amount which would cause Borrower to be in compliance with the Required Maximum Unencumbered Asset Ratio.

(C) On each date when the aggregate amount of all Letter of Credit Outstandings exceeds the Letter of Credit Commitment Amount (as it may be reduced from time to time, including pursuant to Section 2.2), the Borrower shall give cash collateral to the Administrative Agent, pursuant to Section 8.4 hereof, to collateralize Letter of Credit Outstandings in an aggregate amount (taking into account any amounts then on deposit in the Letter of Credit Collateral Account) equal to such excess.

(c) Acceleration of Maturity. Immediately upon any acceleration of any Loans pursuant to Section 8.2 or Section 8.3, the Borrower shall repay all the Loans.

Each prepayment of any Loans made pursuant to this Section shall be without premium or penalty, except as may be required by Section 4.5. No prepayment of principal of any Loans pursuant to clause (a) or (b) of this Section shall cause a reduction in the Revolving Loan Commitment Amount.

Section 3.2.2 Application. Each prepayment or repayment of the principal of the Loans shall be applied, to the extent of such prepayment or repayment, as the Borrower shall direct (and in the absence of such direction, shall be applied first, to the principal amount thereof being maintained as Base Rate Loans, second to the principal amount thereof being maintained as LIBO Rate Loans with respect to which the rate of such prepayment or repayment is the last day of the Interest Period applicable thereto and third, to the principal amount thereof being maintained as LIBO Rate Loans with the shortest Interest Periods remaining); provided, that prepayments or repayments of LIBO Rate Loans not made on the last day of the Interest Period with respect thereto, shall be prepaid or repaid subject to the provisions of Section 4.5 (together with a payment of all accrued interest).

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Section 3.3 Interest Provisions. Interest on the outstanding principal amount of Loans shall accrue and be payable in accordance with this Section 3.3.

Section 3.3.1 Rates. Pursuant to an appropriately delivered Borrowing Request or Continuation/Conversion Notice, the Borrower may elect that Loans comprising a Borrowing accrue interest at a rate per annum:

(a) on that portion maintained from time to time as a Base Rate Loan, equal to the sum of the Alternate Base Rate from time to time in effect plus the Applicable Margin; and

(b) on that portion maintained as a LIBO Rate Loan, during each Interest Period applicable thereto, equal to the sum of the LIBO Rate for such Interest Period plus the Applicable Margin.

All LIBO Rate Loans shall bear interest from and including the first day of the applicable Interest Period to (but not including) the last day of such Interest Period at the interest rate determined as applicable to such LIBO Rate Loan. All Base Rate Loans shall bear interest from and including the day they are made to and excluding the day they are repaid or converted into LIBO Rate Loans.

Section 3.3.2 Post-Maturity Rates. After the date any principal amount of any Loan or Reimbursement Obligation is due and payable (whether on the Maturity Date, upon acceleration, an Event of Default or otherwise), or after any other monetary Obligation of the Borrower shall have become due and payable, the Borrower shall pay, but only to the extent permitted by law, interest (after as well as before the entry of judgment thereon) on all outstanding Obligations at a rate per annum equal to the rate which is 2% in excess of the rate applicable to Base Rate Loans from time to time. Anything herein to the contrary notwithstanding, the obligations of the Borrower to any Lender hereunder shall be subject to the limitation that payments of interest shall not be required for any period for which interest is computed hereunder, to the extent (but only to the extent) that contracting for or receiving such payment by such Lender would be contrary to the provisions of any law applicable to such Lender limiting the highest rate of interest that may be lawfully contracted for, charged or received by such Lender, and in such event the Borrower shall pay such Lender interest at the highest rate permitted by applicable law.

Section 3.3.3 Payment Dates. Interest accrued on each Loan shall be payable, without duplication:

(a) on the Maturity Date (and if such date is not a Business Day, such payment shall be made on the preceding Business Day;

(b) on the date of any payment or prepayment, in whole or in part, of principal outstanding on such Loan on the principal amount so paid or prepaid;

(c) with respect to Base Rate Loans, in arrears on each Monthly Payment Date occurring after the Closing Date;

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(d) with respect to LIBO Rate Loans, in arrears on the last day of each applicable Interest Period; provided, however, with respect to LIBO Rate Loans with Interest Periods of six (6) and twelve (12) months, Interest shall be payable in three (3) month successive intervals beginning the date which is three (3) months from the date of the subject Borrowing.

(e) with respect to any Base Rate Loans converted into LIBO Rate Loans on a day when interest would not otherwise have been payable pursuant to clause (c) above, on the date of such conversion;

(f) with respect to Swingline Loans, as provided in Section 2.9; and

(g) on that portion of any Loans which is accelerated pursuant to Section 8.2 or Section 8.3, immediately upon such acceleration.

Interest accrued on Loans or other monetary Obligations arising under this Agreement or any other Loan Document after the date such amount is due and payable (whether on the Maturity Date, upon acceleration or otherwise) shall be payable upon demand.

Section 3.4 Fees. The Borrower agrees to pay the fees set forth in this Section 3.4. All such fees shall be non-refundable.

Section 3.4.1 Revolving Loan Unused Fee. The Borrower agrees to pay to the Administrative Agent for the account of each Lender, for the period (including any portion thereof when any of its Commitments are suspended by reason of the Borrower’s inability to satisfy any condition of Article V) commencing on the Closing Date and continuing through the Revolving Loan Commitment Termination Date, an unused fee at a rate per annum equal to (a) 0.35% for any Fiscal Quarters that the average daily unused Revolving Loan Commitment Amount was greater than fifty percent (50%) and (b) 0.25% for any Fiscal Quarter that the average daily unused Revolving Loan Commitment Amount was fifty percent (50%) or less, in each case on such Lender’s Percentage of the average daily unused portion of the Revolving Loan Commitment Amount (net of Letter of Credit Outstandings but without giving effect to Swingline Loans made during such Fiscal Quarter). All unused fees payable pursuant to this Section shall be calculated on a year comprised of 360 days and payable by the Borrower in arrears on each Quarterly Payment Date, commencing with the first Quarterly Payment Date following the Closing Date, and on the Revolving Loan Commitment Termination Date.

Section 3.4.2 Fees. The Borrower agrees to pay to the Arranger, the Administrative Agent, and the Lenders, each for its own account, the fees in the amounts and on the dates set forth in the Fee Letters.

Section 3.4.3 Letter of Credit Fee. The Borrower agrees to pay to the Administrative Agent, for the pro rata account of each Lender, a Letter of Credit fee for each Letter of Credit in an amount equal to a rate per annum equal to the then Applicable Margin for LIBO Rate Loans on the Stated Amount of each such Letter of Credit, with such fees being payable in arrears on each Quarterly Payment Date. The Borrower further agrees to pay to the Issuer, for its own account, (x) for each Letter of Credit issued by it, a facing fee, at the time of issuance of such Letter of Credit, which is equal to the greater of $1,500 or 1/8 of 1% multiplied

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by the Stated Amount of each such Letter of Credit, and (y) from time to time promptly after demand, the normal issuance, payment, amendment and other processing fees, and other standard administrative costs and charges of the Issuer relating to Letters of Credit as from time to time in effect.

ARTICLE IV

CERTAIN LIBO RATE AND OTHER PROVISIONS

Section 4.1 LIBO Rate Lending Unlawful. If any Lender shall reasonably determine (which determination shall, upon notice thereof to the Borrower and the Administrative Agent, be conclusive and binding on the Borrower) that the introduction of or any change in or in the interpretation of any law makes it unlawful, or any central bank or other Governmental Authority asserts that it is unlawful, for such Lender to make, continue or maintain any Revolving Loan as, or to convert any Revolving Loan into, a LIBO Rate Loan, the obligations of such Lender to make, continue or maintain or to convert any Revolving Loan into, a LIBO Rate Loan shall, upon such determination, forthwith be suspended until such Lender shall notify the Administrative Agent that the circumstances causing such suspension no longer exist, and all outstanding LIBO Rate Loans of such Lender shall automatically convert into Base Rate Loans at the end of the then current Interest Periods with respect thereto or sooner, if required by such law or assertion. Each Lender agrees to promptly give notice to the Administrative Agent and the Borrower when the circumstances causing such suspension cease to exist.

Section 4.2 Deposits Unavailable. If the Required Lenders shall have reasonably determined that (a) Dollar deposits in the relevant amount and for the relevant Interest Period are neither available to such Required Lenders in the eurodollar market nor available to them in their respective relevant markets, or (b) by reason of circumstances affecting the eurodollar market, adequate means do not exist for ascertaining the interest rate applicable hereunder to LIBO Rate Loans, then, upon notice from the Administrative Agent to the Borrower and the Lenders, the obligations of all Lenders under Section 2.3 and Section 2.4 to make or continue any Revolving Loans as, or to convert any Revolving Loans into, LIBO Rate Loans shall forthwith be suspended until the Administrative Agent shall notify the Borrower and the Lenders that the circumstances causing such suspension no longer exist. Upon receipt of notice from the Administrative Agent that the Required Lenders are unable to determine the LIBO Rate, the Borrower may revoke any Borrowing Request or Continuation/Conversion Notice then submitted by it. If the Borrower does not revoke such Borrowing Request or Continuation/Conversion Notice, the Lenders shall make, convert or continue the Revolving Loans, as proposed by the Borrower, in the amount specified in the applicable notice submitted by the Borrower, but such Revolving Loans shall be made, converted or continued as Base Rate Loans instead of LIBO Rate Loans. The Administrative Agent agrees to give prompt notice to the Borrower and the Lenders when it ascertains that the circumstances causing such suspension cease to exist.

Section 4.3 Change of Circumstances. If, after the Closing Date, the introduction of or any change in or in the interpretation of, or any change in the application of, any law or any regulation (including Regulation D of the F.R.S. Board) or guideline issued by

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any central bank or other Governmental Authority (whether or not having the force of law), or by the NAIC or any other comparable agency charged with the interpretation or administration thereof or including any reserve or special deposit requirement or any tax (other than Indemnified Taxes covered by Section 4.6 and Excluded Taxes) or any capital or liquidity requirement, has, due to a Lender’s compliance the effect, directly or indirectly, of (i) increasing the cost to such Lender or any entity controlling such Lender of performing its obligations hereunder (including the making, continuing or maintaining of any Revolving Loans as or converting any Revolving Loans into, LIBO Rate Loans); (ii) reducing any amount received or receivable by such Lender or any entity controlling such Lender hereunder or its effective return hereunder or on its capital; or (iii) causing such Lender or any entity controlling such Lender to make any payment or to forego any return based on any amount received or receivable by such Lender hereunder, then upon demand of such Lender to the Borrower through the Administrative Agent, accompanied by written notice showing in reasonable detail the basis for calculation of any such amounts, from time to time, the Borrower shall be obligated to pay such amounts and shall compensate such Lender promptly after receipt of such notice and demand for any such cost, reduction, payment or foregone return. Any certificate of Lender in respect of the foregoing will be conclusive and binding upon the Borrower, except for clearly demonstrable error. For the avoidance of doubt, this Section 4.3 shall apply to all requests, rules, guidelines or directives concerning capital adequacy issued in connection with the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives concerning capital adequacy promulgated by the Bank for International Settlements, the Basel Committee on Banking Regulations and Supervisory Practices (or any successor or similar authority) of the United States financial regulatory authorities, regardless of the date adopted, issued, promulgated or implemented.

Section 4.4 Replacement of Lender. If (a) the Borrower receives notice from any Lender requesting increased costs or additional amounts under Section 4.3 or 4.6, (b) any Lender is affected in the manner described in Section 4.1 or (c) a Lender becomes a Defaulting Lender, then in each case, the Borrower shall have the right, so long as no Event of Default shall have occurred and be continuing and unless, in the case of clause (a) above, such Lender has removed or cured the conditions which resulted in the obligation to pay such increased costs or additional amounts or agreed to waive and otherwise forego any right it may have to any payments provided for under Section 4.3 or 4.6 in respect of such conditions, to replace in its entirety such Lender (the “Replaced Lender”), upon prior written notice to the Administrative Agent and such Replaced Lender, with one or more other Eligible Assignee(s) (collectively, the “Replacement Lender”) acceptable to the Administrative Agent and the Issuer (which acceptance, in each case, shall not be unreasonably withheld); provided, however, that, at the time of any replacement pursuant to this Section 4.4, the Replaced Lender and the Replacement Lender shall enter into (each Replaced Lender hereby unconditionally agreeing to enter into) one or more Lender Assignment Agreements (appropriately completed), pursuant to which (A) the Replacement Lender shall acquire all of the Commitments and outstanding Loans of, and participations in Letter of Credit Outstandings of, the Replaced Lender and, in connection therewith, shall pay (x) to the Replaced Lender in respect thereof an amount equal to the sum of (1) an amount equal to the principal of, and all accrued but unpaid interest on, all outstanding Loans of the Replaced Lender and (2) an amount equal to all accrued but theretofore unpaid fees owing to the Replaced Lender pursuant to Section 3.4, (y) to the Issuer, an amount equal to any portion of the Replaced Lender’s funding of an unpaid drawing under a Letter of Credit as to

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which the Replaced Lender is then in default; and (z) to the Swingline Lender, an amount equal to any portion of the Replaced Lender’s obligations under Section 2.9 which has not been satisfied by such Replaced Lender; and (B) the Borrower shall pay to the Replaced Lender any other amounts payable to the Replaced Lender under this Agreement (including amounts payable under Sections 4.3, 4.5 and 4.6 which have accrued to the date of such replacement). Upon the execution of the Lender Assignment Agreement(s), the payment to the Administrative Agent of the processing fee referred to in clause (a) of Section 10.9.1, the payment of the amounts referred to in the preceding sentence and, if so requested by the Replacement Lender in accordance with clause (b) of Section 10.9.1, delivery to the Replacement Lender of a Revolving Note executed by the Borrower, the Replacement Lender shall automatically become a Lender hereunder and the Replaced Lender shall cease to constitute a Lender hereunder, except with respect to indemnification provisions under this Agreement, which shall survive as to such Replaced Lender. It is understood and agreed that if any Replaced Lender shall fail to enter into a Lender Assignment Agreement in accordance with the foregoing, it shall be deemed to have entered into such a Lender Assignment Agreement.

Section 4.5 Funding Losses. In the event any Lender shall reasonably incur any loss or expense (including any loss or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to make, continue or maintain any portion of the principal amount of any Revolving Loan as, or to convert any portion of the principal amount of any Revolving Loan into, a LIBO Rate Loan, or any loss attributable to any prepayment in excess, if any, of (i) the amount of interest that such Lender would have accrued on the principal amount so prepaid from the date of such payment to the last day of the then-current Interest Period if the interest rate payable on such deposit were equal to the Reserve Adjusted LIBO Rate for such Interest Period, over (ii) the amount of interest that such Lender would earn for such period on an amount equal to such payment if such Lender were to invest such amount for such period at the interest rate that would be bid by such Lender (or an affiliate of such Lender) for dollar deposits from other banks in the eurodollar market at the commencement of such period) as a result of (a) any conversion or repayment or prepayment of the principal amount of any LIBO Rate Loans on a date other than the scheduled last day of the Interest Period applicable thereto, whether pursuant to Section 3.2 or otherwise, or (b) any Revolving Loans not being made or continued as, or converted into, LIBO Rate Loans as a result of a withdrawn or revoked Borrowing Request or Continuation/Conversion Notice or for any other reason (other than a default by such Lender or the Administrative Agent), then, upon the written notice of such Lender to the Borrower (with a copy to the Administrative Agent), the Borrower shall, promptly after its receipt thereof and prior to the expiration of the applicable Interest Period, pay to the Administrative Agent for the account of such Lender such amounts required to compensate such Lender for any additional losses, costs or expenses that such Lender may reasonably incur as a result of such payment, failure to convert or failure to continue, including any loss, cost or expense (excluding loss of anticipated profits) actually incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain such LIBO Rate Loan. Such written notice (which shall set forth in reasonable detail the basis for requesting such amount and include calculations in reasonable detail in support thereof) shall, in the absence of clearly demonstrable error, be conclusive and binding on the Borrower. “Reserve Adjusted LIBO Rate” shall mean the rate per annum calculated as of the first day of such Interest Period in accordance with the following formula: LIBO Rate over (1-LIBO Reserve Percentage). “LIBO Reserve Percentage” shall mean with respect to an Interest

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Period, the maximum aggregate reserve requirement (including all basic, supplemental, marginal and other reserves and taking into account any transitional adjustments) which is actually imposed on a Lender under Regulation D on eurocurrency liabilities.

Section 4.6 Taxes.

(a) Any and all payments by the Borrower to each Lender and the Administrative Agent under this Agreement and under any other Loan Document shall be made free and clear of, and 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 the Borrower) requires deduction or withholding of any Tax from any such payment, then the Borrower 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.

If the Borrower shall be so required by applicable law to deduct or withhold any Indemnified Tax, then the sum payable shall be increased as necessary so that, after making all required deductions and withholdings (including deductions and withholdings applicable to additional sums payable under this Section), such Lender or the Administrative Agent, as the case may be, receives an amount equal to the sum it would have received had no such deductions or withholdings been made. In addition, the Borrower shall timely pay all Other Taxes to the relevant Governmental Authority in accordance with applicable law.

(b) The Borrower agrees to indemnify and hold harmless each Lender and the Administrative Agent for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) that are payable by, or required to be withheld or deducted from a payment to such Lender or the Administrative Agent whether or not such Indemnified Taxes were correctly or legally asserted by the relevant Governmental Authority. Payment under this indemnification shall be made within forty-five (45) days after the date such Lender or the Administrative Agent makes written demand therefor. 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.

(c) Each Lender that is a U.S. Person (as such term is defined in Section 7701(a)(30) of the Code) (a “U.S. Lender”) shall:

(i) deliver to the Borrower and the Administrative Agent, prior to the first day on which the Borrower is required to make any payments hereunder to Lender, two (2) properly completed and duly executed originals of United States Internal Revenue Service Form W-9 (or successor forms). Each U.S. Lender that shall become a Participant pursuant to Section 10.9.2 or a Lender pursuant to Section 10.9.1 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 4.6(c)(i), provided that in the case of a Participant such Participant shall furnish all such

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required forms and statements to the Lender from which the related participation shall have been purchased; and

(ii) deliver to the Borrower and the Administrative Agent, two (2) further, properly completed and duly executed originals of any form or certification required to be delivered hereunder, on or before the date that any such form or certification expires or becomes obsolete or inaccurate in any respect and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the Borrower or the Administrative Agent.

(d) Each Lender that is not a U.S. Person (as such term is defined in Section 7701(a)(30) of the Code) (a “Non-U.S. Lender”) shall:

(i) deliver to the Borrower and the Administrative Agent, prior to the first day on which the Borrower is required to make any payments hereunder to Lender, two (2), properly completed and duly executed originals of (A) either United States Internal Revenue Service Form W-8BEN or Form W-8ECI (or successor forms), as applicable, (B) in the case of a Non-U.S. Lender claiming exemption from U.S. federal withholding Tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest,” a Form W-8BEN, or any subsequent versions thereof or successors thereto and, a certificate representing that such Non-U.S. Lender (x) is not a bank for purposes of Section 881(c) of the Code, is not subject to regulatory or other legal requirements as a bank in any jurisdiction, and has not been treated as a bank for purposes of any Tax, securities law or other filing or submission made to any Governmental Authority, any application made to a rating agency or qualification for any exemption from Tax, securities law or other legal requirements, (y) is not a 10-percent shareholder (within the meaning of Section 881(c)(3)(B) of the Code) of the Borrower or the Guarantor and (z) is not a controlled foreign corporation related to the Borrower or the Guarantor (within the meaning of Section 881(c)(3)(C) of the Code) substantially in the form of Exhibit N hereto (a “Tax Compliance Certificate”)), (C) in the case of a Non-U.S. Lender that is not the beneficial owner, United Stated Internal Revenue Service Form W-8IMY, accompanied by Form W-8ECI, Form W-8BEN, a certificate substantially similar to the Tax Compliance Certificate, Form W-9, and/or other certification documents from each beneficial owner, as applicable, provided that if the Non-U.S. Lender is a partnership and one or more direct or indirect partners of such Non-U.S. Lender are claiming the portfolio interest exemption, such Non-U.S. Lender may provide a certificate substantially similar to the Tax Compliance Certificate on behalf of each such direct and indirect partner, or (D) such other documentation reasonably requested by the Borrower or the Administrative Agent; in each case claiming or permitting complete exemption from, or a reduced rate of, U.S. federal withholding Tax on payments by the Borrower under this Agreement;

(ii) deliver to the Borrower and the Administrative Agent two (2) further, properly completed and duly executed originals of any form or certification required to be delivered hereunder, on or before the date that any

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such form or certification expires or becomes obsolete or inaccurate in any respect and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the Borrower or the Administrative Agent; and

(iii) obtain such extensions of time for filing and completing such forms or certifications as may reasonably be requested by the Borrower or the Administrative Agent;

unless in any such case any change in treaty, law or regulation has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Lender from duly completing and delivering any such form with respect to it and such Lender so advises the Borrower and the Administrative Agent. Each Non-U.S. Lender that shall become a Participant pursuant to Section 10.9.2 or a Lender pursuant to Section 10.9.1 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 4.6(d) and Section 4.6(e), provided that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased.

(e) 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 Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by 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 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 Section 4.6(e), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

(f) Notwithstanding anything to the contrary herein, the Borrower shall not be required to indemnify any Non-U.S. Lender or the Administrative Agent, or to pay any additional amounts to such Non-U.S. Lender or the Administrative Agent, in respect of U.S. federal withholding Tax pursuant to this Section 4.6 to the extent that any of the representations or certifications made by a Non-U.S. Lender or Non-U.S. Participant pursuant to clause (d) and clause (e) above are incorrect at the time a payment hereunder is made, other than by reason of any change in treaty, law or regulation having effect after the date such representations or certifications were made.

(g) If the Borrower determines in good faith that a reasonable basis exists for contesting any Taxes for which indemnification has been demanded hereunder, the relevant Lender or the Administrative Agent, as applicable (to the extent such Lender or the Administrative Agent reasonably determines in good faith that it will not suffer any

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adverse effect as a result thereof), shall, subject to clause (i) of the proviso in the immediately succeeding sentence, cooperate with the Borrower in challenging such Taxes at the Borrower’s expense if so requested by the Borrower in writing. If any Lender or the Administrative Agent, as applicable, receives a refund of, or a credit relating to a Tax for which a payment has been made or borne by the Borrower pursuant to this Agreement, which refund in the good faith judgment of such Lender or the Administrative Agent, as the case may be, is attributable to such payment, then such Lender or the Administrative Agent, as the case may be, shall reimburse the Borrower for such amount as such Lender or the Administrative Agent, as the case may be, determines to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment by or borne by the Borrower had not been required; provided, however, that (i) any Lender or the Administrative Agent may determine, in its reasonable discretion consistent with the policies of such Lender or the Administrative Agent, whether to seek a refund and (ii) any Taxes that are imposed on a Lender or the Administrative Agent as a result of a disallowance or reduction of any refund with respect to which such Lender or the Administrative Agent has made a payment to the Borrower pursuant to this clause (g) shall be treated as a Tax for which the Borrower is obligated to indemnify such Lender or the Administrative Agent pursuant to this Section 4.6. Neither the Lenders nor the Administrative Agent shall be obliged to disclose information regarding its tax affairs or computations to the Borrower in connection with this clause (g) or any other provision of this Section 4.6.

(h) Promptly after the date of any payment by the Borrower of any Taxes or Other Taxes pursuant to this Section, the Borrower shall furnish to each Lender and the Administrative Agent the original or a certified copy of a receipt evidencing payment thereof, or other evidence of payment reasonably satisfactory to such Lender or the Administrative Agent.

(i) For purposes of this Section 4.6, the term “Lender” includes any Issuer and the term “applicable law” includes FATCA. The Administrative Agent shall be subject to Sections 4.6(c), (d) and (e), and shall deliver to the Borrower any required forms described therein, as applicable, as if it were a Lender.

Section 4.7 Change of Lending Office. Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that would give rise to the operation of Sections 4.1, 4.3, 4.6(a) or 4.6(b) with respect to such Lender, it will exercise commercially reasonable efforts to make, fund or maintain the affected Revolving Loans of such Lender through another lending office and to take such other actions as it deems appropriate to remove or lessen the impact of such condition and if, as determined by such Lender in its discretion, the making, funding or maintaining of such affected Loans through such other lending office or the taking of such other actions would not otherwise adversely affect such Revolving Loans or such Lender and would not, in such Lender’s discretion, be commercially unreasonable. Nothing in this Section 4.7 shall affect or postpone any of the Obligations of the Borrower or the right of any Lender provided in Sections 4.1, 4.3, 4.6(a) or 4.6(b).

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Section 4.8 Payments, Computations, etc. Unless otherwise expressly provided, all payments by the Borrower pursuant to this Agreement, the Notes, each Letter of Credit or any other Loan Document shall be made by the Borrower to the Administrative Agent for the pro rata account of the Lenders entitled to receive such payment. All such payments required to be made to the Administrative Agent shall be made, without setoff, deduction or counterclaim, not later than 1:00 p.m., New York City time, on the date due, in same day or immediately available funds, to such account as the Administrative Agent shall specify from time to time by notice to the Borrower. Funds received after 1:00 p.m., New York City time, on such due date shall be deemed to have been received by the Administrative Agent on the next succeeding Business Day. The Administrative Agent shall promptly remit in same day funds to each Lender its share, if any, of such payments received by the Administrative Agent for the account of such Lender. All computations of interest and fees for LIBO Rate Loans and Base Rate Loans (other than with respect to Base Rate Loans accruing interest based on the Base Rate as compared to Alternate Base Rate) and issuance fees pursuant to Section 3.3.3, in each case shall be made on the basis of a 360-day year and actual days elapsed, and, with respect to LIBO Rate Loans, on the expiration of the applicable LIBO contract. All computations of interest and fees for Base Rate Loans accruing interest based on the Base Rate as compared to Alternate Base Rate shall be made on the basis of a 365/366-day year and actual days elapsed. Whenever any payment to be made shall otherwise be due on a day which is not a Business Day, such payment shall (except as otherwise required by clause (c) of the definition of the term “Interest Period” and except with respect to the Maturity Date) be made on the next succeeding Business Day and such extension of time shall be included in computing interest and fees, if any, in connection with such payment.

Section 4.9 Sharing of Payments. If any Lender shall obtain any payment or other recovery (whether voluntary, involuntary, by application of setoff or otherwise) on account of any Loan or Reimbursement Obligation (other than pursuant to the terms of Section 4.3, 4.4, 4.5 or 4.6) in excess of its pro rata share of payments then or therewith obtained by all Lenders, such Lender shall purchase from the other Lenders such participations in Credit Extensions made by them as shall be necessary to cause such purchasing Lender to share the excess payment or other recovery ratably with each of them; provided, however, that if all or any portion of the excess payment or other recovery is thereafter recovered from such purchasing Lender, the purchase shall be rescinded and each Lender which has sold a participation to the purchasing Lender shall repay to the purchasing Lender the purchase price to the ratable extent of such recovery together with an amount equal to such selling Lender’s ratable share (according to a fraction having a numerator of (a) the amount of such selling Lender’s required repayment to the purchasing Lender and a denominator of (b) total amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered. The Borrower agrees that any Lender so purchasing a participation from another Lender pursuant to this Section may, to the fullest extent permitted by law, exercise all its rights of payment (including pursuant to Section 4.10) with respect to such participation as fully as if such Lender were the direct creditor of the Borrower in the amount of such participation. If under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section to share in the benefits of any recovery on such secured claim.

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Section 4.10 Setoff. Each Lender shall, if the Loans have been accelerated or otherwise have become due and payable or upon the occurrence and during the continuance of any Event of Default described in Section 8.1.1 or in Section 8.1.9 with respect to the Borrower or, with the consent of the Required Lenders, upon the occurrence and during the continuance of any other Event of Default, without prior notice to the Borrower (any such notice being waived by the Borrower to the fullest extent permitted by law), have the right to appropriate and apply to the payment of the Obligations then due or owing to it, any and all balances, credits, deposits, accounts or moneys of the Borrower or its Affiliates then or thereafter maintained with such Lender; provided, however, that any such appropriation and application shall be subject to the provisions of Section 4.9. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender; provided, however, that the failure to give such notice shall not affect the validity of such setoff and application. The rights of each Lender under this Section are in addition to other rights and remedies (including other rights of setoff under applicable law or otherwise) which such Lender may have.

ARTICLE V

CONDITIONS TO EFFECTIVENESS AND TO FUTURE CREDIT EXTENSIONS

Section 5.1 Conditions Precedent to Making of Initial Loan and the Issuance of Letters of Credit. The obligations of the Lenders to make the first Loan hereunder and the obligations of the Issuer to issue the first Letter of Credit (if issued concurrently with the first Loan made hereunder) shall be subject to the prior or concurrent satisfaction or waiver of each of the conditions precedent set forth in this Section 5.1, in Section 5.2 and in Section 10.6 on or before the Closing Date.

Section 5.1.1 Resolutions, etc. The Administrative Agent shall have received from the Credit Parties, (i) good standing certificates for each such Person from the Secretary of State (or similar applicable Governmental Authority) of such Person’s state of incorporation or formation and each state where the Borrower or such other Credit Party, as the case may be, owns Property or has a ground lease on a Property (with respect to the ground lease to the extent the nature of such Credit Party’s business requires such qualification), certifying that such Credit Party is qualified to do business as a foreign corporation as of a recent date, together with a bring-down certificate by facsimile, dated a date reasonably close to the Closing Date, (ii) a chart depicting the ownership structure for the Borrower Group Members and (iii) a certificate, dated the Closing Date, duly executed and delivered each Credit Party’s Secretary or Assistant Secretary, as to:

(a) resolutions of each such Person’s board of directors or a similar body then in full force and effect authorizing, to the extent relevant, the execution, delivery and performance of this Agreement, the Notes, each other Loan Document to be executed by such Person and the transactions contemplated hereby and thereby;

(b) the incumbency and signatures of those of its officers authorized to act with respect to this Agreement, the Notes and each other Loan Document to be executed by such Person; and

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(c) each Organic Document of such Person,

upon which certificates the Administrative Agent and each Lender may conclusively rely until it shall have received a further certificate of the Secretary or Assistant Secretary of any such Person canceling or amending the prior certificate of such Person.

Section 5.1.2 Closing Date Certificate. The Administrative Agent shall have received, the Closing Date Certificate, dated the Closing Date and duly executed and delivered by an Authorized Officer of the Borrower, in which certificate the Borrower shall (a) agree and acknowledge that the statements made herein and therein shall be deemed to be true, correct and accurate representations and warranties in all respects of the Borrower made as of such date and under this Agreement, and, at the time such certificate is delivered, such statements shall in fact be true, correct and accurate in all respects and (b) certify to the satisfaction, on a pro forma basis after giving effect to the Loan, of the Unencumbered Pool Covenants. All documents and agreements required to be appended to the Closing Date Certificate shall be in form and substance reasonably satisfactory to the Administrative Agent and such certificate shall specify that none of such documents or agreements have been modified except as set forth in such certificate.

Section 5.1.3 Pledge Agreement; Security Agreement.

(a) The Borrower shall have duly authorized, executed and delivered to the Administrative Agent the Pledge Agreement and shall have, as applicable, delivered to the Administrative Agent all of the certificated Collateral, together with duly executed and undated stock powers, or, if any Collateral is uncertificated securities, confirmation and evidence reasonably satisfactory to the Administrative Agent that the security interest in such uncertificated securities has been transferred to and perfected by the Administrative Agent for the benefit of the Lenders in accordance with Article 8 of the U.C.C., as in effect in the State of New York, and all laws otherwise applicable to the perfection of the pledge of such shares.

(b) The Credit Parties shall have duly authorized, executed and delivered to the Administrative Agent the Security Agreement and shall have delivered to the Administrative Agent confirmation and evidence reasonably satisfactory to the Administrative Agent that the security interest in Collateral covered by the Security Agreement has been perfected by the Administrative Agent for the benefit of the Lenders in accordance with Article 8 and/or 9 of the U.C.C., as applicable, as in effect in the State of Delaware and New York, and all laws otherwise applicable to the perfection of such security interests (it being understood that a control agreement with respect to any accounts over which a security interest is created can be entered within 30 days of the Closing Date, which 30 days may be extended at Administrative Agent’s sole discretion).

(c) The Administrative Agent and its counsel shall be satisfied that:

(i) the Lien granted to the Administrative Agent, for the benefit of the Secured Creditors, in the Collateral is a first priority security interest; and

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(ii) no Lien exists on any of the Collateral other than the Lien created in favor of the Administrative Agent, for the benefit of the Secured Creditors, pursuant to the Pledge Agreement and Security Agreement, or Liens expressly permitted under this Agreement.

Section 5.1.4 Guaranty. The Guarantor and General Partner shall have duly authorized, executed and delivered to the Administrative Agent the Guaranty in the form of Exhibit H-2 hereto (as modified, supplemented or amended from time to time, the “Parent Guaranty”), and the Guaranty shall be in full force and effect. Each Subsidiary Guarantor shall have duly authorized, executed and delivered to the Administrative Agent the Subsidiary Guaranty in the form of Exhibit H-3 hereto (as modified, supplemented or amended from time to time, the “Subsidiary Guaranty”, and together with the Parent Guaranty, the “Guaranties”), and the Subsidiary Guaranty shall be in full force and effect.

Section 5.1.5 Merger Agreement. The Merger shall be consummated in accordance with the Merger Agreement in all material respects; provided that, no amendment, modification, material consent or waiver of any term thereof or any condition to the Borrower’s obligation to consummate the Merger (other than any such amendment, modification or waiver that is not materially adverse to any interest of the Lenders) shall be made or granted, as the case may be, without the prior written consent of the Lenders (such consent not to be unreasonably withheld, conditioned or delayed) (it being understood that any non-cash change in the price (including any price decrease) will not be deemed to be materially adverse to the interests of the Lenders and will not require the prior written consent of the Lenders).

Section 5.1.6 “Know-Your Customer”; PATRIOT Act. The Lenders and the Administrative Agent shall have received at least ten (10) days prior to the Closing Date all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the Patriot Act, including, without limitation, the information required under Section 6.21 hereof.

Section 5.1.7 Existing Revolving Facility. The Administrative Agent shall have received evidence that the Existing Revolving Facility has been, or concurrently with the Closing Date is being, paid off in full.

Section 5.1.8 Litigation. There shall exist no pending or threatened action, suit, investigation, litigation or proceeding in any court or before any arbitrator or governmental instrumentality which (x) purports to affect the consummation of the Transaction or the legality or validity of the Merger, this Agreement or any other Loan Document or (y) could reasonably be expected to have a Material Adverse Effect.

Section 5.1.9 Financial Information; Projections.

(a) The Arranger shall have received (i) each of the consolidated financial statements of Guarantor and its Subsidiaries included or incorporated by reference in each report, schedule, registration statement and definitive proxy statement filed or furnished by Guarantor with the SEC since November 10, 2011, (ii) each of the consolidated financial statements of Cole and the Cole Subsidiaries included or

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incorporated by reference in each report, schedule, registration statement and definitive proxy statement filed or furnished by Cole with the SEC since January 1, 2010, and (iii) customary pro forma financial statements, in the cases of clauses (i) and (ii), by public filing with the SEC or otherwise.

(b) At least thirty (30) days prior to the Closing Date, the Arranger shall have received financial projections (the “Projections”) of Guarantor and Cole and the Cole Subsidiaries through its 2016 fiscal year following the Closing Date (which for the first two such fiscal years will be shown on a quarterly basis), which will be prepared on a pro forma basis to give effect to the Transactions and will include consolidated income statements (with earnings before interest, taxes, depreciation and amortization clearly noted), consolidated balance sheets and consolidated cash flow statements, a pro forma schedule of sources and uses and a pro forma consolidated balance sheet of Guarantor and Cole and the Cole Subsidiaries as at the Closing Date, all of which will be in form reasonably satisfactory to the Arranger (it being agreed that the financial projections dated February 25, 2013 provided to the Arranger are reasonably satisfactory to the Arranger).

Section 5.1.10 Approvals. All governmental and third party approvals necessary in connection with the Transaction and the financing contemplated hereby and the continuing operations of the Borrower Group Members shall have been obtained and shall be in full force and effect (except, with respect to third party approvals as could not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect), and all applicable waiting periods, if any, shall have expired without any action being taken or threatened by any competent authority which could restrain, prevent or otherwise impose materially adverse conditions on the financing contemplated hereby.

Section 5.1.11 Opinions of Counsel. The Administrative Agent shall have received opinions (including, without limitation, a tax opinion regarding Guarantor), each dated the Closing Date and addressed to the Administrative Agent, each Lender and the Issuer, from counsel(s) to the Credit Parties, in form and substance reasonably satisfactory to the Administrative Agent.

Section 5.1.12 Solvency Certificate. On or prior to the Closing Date, there shall have been delivered to the Lenders:

(a) a solvency certificate as to the Guarantor, the Borrower and its Subsidiaries, taken as a whole, from the chief financial officer or treasurer of the Borrower and the Guarantor, substantially in the form of Exhibit I hereto, addressed to the Administrative Agent and the Lenders and dated the Closing Date.

Section 5.1.13 Diligence. Administrative Agent shall have received: (i) summaries of Insurance Policies together with certificates evidencing coverage and other proof reasonably requested by Administrative Agent, (ii) lien search reports, judgment searches and UCC Searches which searches and reports shall reflect no Liens other than Liens permitted by Section 7.2.3, (iii) existing environmental reports and studies and existing title commitments or

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policies for the Unencumbered Real Properties, and (iv) existing documents evidencing or securing the Qualified Tenant Notes.

Section 5.1.14 Closing Fees, Expenses, etc. The Administrative Agent shall have received evidence of payment by the Borrower of (or a draw request with respect to) all accrued and unpaid fees, costs and expenses to the extent then due and payable under this Agreement on the Closing Date, together with all reasonable legal costs and expenses of the Administrative Agent to the extent invoiced prior to or on the Closing Date, including any such fees, costs and expenses arising under or referenced in Sections 3.3 and 10.3.

Section 5.1.15 No Cole Default. None of Cole nor any the Cole Subsidiaries shall be in default or violation (and to the Knowledge (as defined in the Merger Agreement) of Cole, there shall not have occurred any event which, with notice or the lapse of time or both, would constitute a default or violation) of any term, condition or provision of any loan or credit agreement, note, or any bond, mortgage or indenture, to which Cole or any of the Cole Subsidiaries is a party, or by which Cole, any of the Cole Subsidiaries or any of their respective properties or assets is bound, except for defaults or violations which, individually or in the aggregate, would not reasonably be expected to have a Cole Material Adverse Effect.

Section 5.1.16 Reserved.

Section 5.1.17 Execution of Agreement; Notes.

(a) On or prior to the Closing Date, there shall have been delivered to the Administrative Agent for the account of each of the Lenders (i) the appropriate Revolving Notes executed by the Borrower, in each case in the amount, maturity and as otherwise provided herein, and (ii) duly executed copies of each Loan Document.

Section 5.1.18 Unencumbered Pool Covenants. As of the date of this Agreement, after giving effect to the making of the first Loan hereunder and the issuance of the first Letter of Credit, if issued concurrently with the first Loan made hereunder, the Borrower along with the Subsidiary Guarantors on a consolidated basis pro forma for the Transaction satisfy the Unencumbered Pool Covenants.

Section 5.1.19 Termination of Commitments, Liens and Security Interests. Concurrently with the consummation of the Transactions, the indebtedness of Guarantor, Cole, the Borrower and their respective Subsidiaries set forth on Schedule 5.1.19 shall have been repaid or repurchased in full, all commitments relating thereto shall have been terminated and all liens or security interests related thereto shall have been terminated or released, in each case on terms reasonably satisfactory to the Arranger.

Section 5.1.20 No Default. There shall not exist (pro forma for the Transactions and the financing thereof) any Default or Event of Default under any of the Loan Documents. Notwithstanding the foregoing sentence or anything to the contrary contained in any Loan Documents, (i) the only representations relating to Cole the making or accuracy of which will be a condition to the availability of the Facility on the Closing Date will be (a) the representations made by or with respect to Cole in the Merger Agreement as are material to the interests of the

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Lenders (but only to the extent that the breach of such representations and warranties would permit Borrower not to close the Merger Agreement) and (b) the Specified Representations.

Section 5.1.21 Cole Material Adverse Effect. Since January 22, 2013, there shall not exist any event, change, or occurrence that, individually, or in the aggregate, constitutes a Cole Material Adverse Effect.

Section 5.1.22 Borrowing Request. Administrative Agent shall have received a Borrowing Request or an Issuance Request in the form attached as Exhibit B-1 and Exhibit B-2.

Section 5.2 All Future Credit Extensions. The obligation of each Lender and the Issuer to make any Credit Extension after the initial Credit Extension shall be subject to Sections 2.1.3, 2.1.4, 2.1.5. and the satisfaction of each of the conditions precedent set forth in this Section 5.2.

Section 5.2.1 Representations and Warranties, No Default, etc. Both before and after giving effect to any Credit Extension:

(a) the representations and warranties set forth herein and in each other Loan Document shall, in each case, be true, correct and accurate in all material respects (or, to the extent any such representations or warranties already are qualified or modified by materiality in the text thereof, in all respects) with the same effect as if then made unless stated to relate solely to an earlier date, in which case such representations and warranties shall be true, correct and accurate in all material respects (or, to the extent any such representation and warranties already are qualified or modified by materiality in the text thereof, in all respects) as of such earlier date;

(b) no Default or Event of Default shall have then occurred and be continuing or would occur due to such Credit Extension;

(c) the occurrence of such Credit Extension on such date does not violate any Requirement of Law and is not enjoined, temporarily, preliminarily or permanently and no litigation shall be pending or threatened, which in the good faith judgment of Administrative Agent or the Required Lenders would enjoin, prohibit or restrain, or impose or result in the imposition of any material adverse condition upon, such Credit Extension or any member of the Consolidated Group’s obligations with respect thereto; and

(d) the Unencumbered Pool Covenants shall, in each case, be true correct and accurate in all material respects and prior to any such Credit Extension, Borrower shall deliver to Administrative Agent a Compliance Certificate certifying to the satisfaction, on a pro forma basis after giving effect to the Credit Extension, of the Unencumbered Pool Covenants.

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ARTICLE VI

REPRESENTATIONS AND WARRANTIES

In order to induce the Lenders, the Issuer and the Administrative Agent to enter into this Agreement and to make Credit Extensions hereunder, the Borrower represents and warrants unto the Administrative Agent, the Issuer and each Lender as set forth in this Article VI.

Section 6.1 Organization, etc. Each Borrower Group Member:

(a) is a corporation, limited liability company, or partnership, as the case may be, validly organized and existing and in good standing under the laws of the state or jurisdiction of its incorporation or organization, except where, with respect to the Borrower Group Members that are not Credit Parties, the failure to be validly organized and existing and in good standing could not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or a material adverse effect on the operation of such Borrower Group Members that are not Credit Parties;

(b) is duly qualified to do business and is in good standing as a foreign corporation, limited liability company or partnership, as the case may be, in each jurisdiction where the nature of its business requires such qualification except where the failure to be so qualified and in good standing could not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or a material adverse effect on the operation of any Credit Party; and

(c) has full power and authority and holds all requisite governmental licenses, permits and other approvals to enter into and perform in all material respects its Obligations under this Agreement, the Notes and each other Loan Document to which it is a party and to own and hold under lease its property and, except where the failure to hold such governmental licenses, permits and other approvals could not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or a material adverse effect on the operation of any Credit Party, to conduct its business substantially as currently conducted by it.

Section 6.2 Due Authorization, Non-Contravention, etc. The execution, delivery and performance by the Credit Parties of this Agreement, the Notes and each other Loan Document executed or to be executed by it, the execution, delivery and performance by such Credit Party of each Loan Document executed or to be executed by it, the granting of the Liens contemplated by the Security Documents and such Credit Party’s participation in the consummation of all aspects of the transactions contemplated hereby, are in each case within each such Person’s corporate, limited liability company or partnership powers, as the case may be, have been duly authorized by all necessary corporate, limited liability company or partnership action, as the case may be, and do not

(a) contravene any such Person’s Organic Documents;

(b) contravene any material contractual restriction binding on or affecting any such Person or result in any breach of any of the terms, covenants, conditions or

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provisions of, or constitute a default under the terms of any material indenture, loan agreement, lease agreement, mortgage, deed of trust, security agreement, or other material agreement or instrument to which any Borrower Group Member is a party or by which it or any of its property or assets is bound, except to the extent such contravention, breach or default could not reasonably be expected to have a Material Adverse Effect or have a material adverse effect on the operations of any Credit Party;

(c) contravene (i) any court decree or order binding on or affecting any such Person or (ii) any law or governmental regulation binding on or affecting any such Person, except to the extent such contravention, breach or default could not reasonably be expected to have a Material Adverse Effect or have a material adverse effect on the operations of any Credit Party; or

(d) result in, or require the creation or imposition of, any Lien on any of such Person’s material properties (except as permitted by this Agreement).

Section 6.3 Government Approval, Regulation, etc. No approval, consent, exemption, authorization or other action by, or notice to, or filing with, any Governmental Authority or regulatory body or other Person (other than those that have been, or on the Closing Date will be, duly obtained or made and which are, or on the Closing Date will be, in full force and effect is necessary or required for the consummation of the transactions contemplated hereby or the due execution, delivery or performance by, or to make enforceable against, the Credit Parties, the Notes or any other Loan Document to which it is a party or the granting of the Liens contemplated by the Security Documents. None of the Credit Parties is an “investment company” within the meaning of the Investment Company Act of 1940, as amended. None of the Credit Parties is a “holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding company” or of a “subsidiary company” of a “holding company” within the meaning of the Public Utility Holdings Company Act of 1935, as amended.

Section 6.4 Validity, etc. Each Credit Party has duly executed and delivered each Loan Document to which it is a party. This Agreement and each other Loan Document executed pursuant hereto by each Credit Party constitutes the legal, valid and binding obligation of such Credit Party enforceable against such Credit Party in accordance with its terms (except, in any case above, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally and by principles of equity).

Section 6.5 Financial Information.

(a) The financial statements furnished to the Administrative Agent and the Lenders pursuant to Section 5.1.9 have been prepared in accordance with GAAP consistently applied, except as otherwise expressly noted therein, and present fairly the consolidated financial condition of the Persons covered thereby as at the dates thereof and the results of their operations for the periods then ended. All balance sheets, all statements of operations, shareholders’ equity, earnings and cash flow and all other financial information of each member of the Consolidated Group have been and will for periods following the Closing Date be prepared in accordance with GAAP consistently applied, except as otherwise expressly noted therein, and do or will present fairly the

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consolidated financial condition of the Persons covered thereby as at the dates thereof and the results of their operations for the periods then ended.

(b) On and as of the Closing Date, after giving effect to all Indebtedness (including the Loans) being incurred or assumed and Liens created by the Credit Parties in connection therewith, (a) the sum of the assets, at a fair valuation, of the Borrower Group Members taken as a whole, and the Credit Parties taken as a whole will exceed their respective debts; (b) Borrower Group Members taken as a whole, and the Credit Parties taken as a whole have not incurred and do not intend to incur, and do not believe that they will incur, debts beyond their ability to pay such debts as such debts mature; and (c) the Borrower Group Members taken as a whole, and the Credit Parties taken as a whole will have sufficient capital with which to conduct their respective businesses. For purposes of this Section 6.5(b), “debt” means any liability on a claim, and “claim” means (i) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured or (ii) right to an equitable remedy for breach of performance if such breach gives rise to a payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured or unsecured.

(c) Except as disclosed in the financial statements delivered pursuant to Section 6.5(a) or in Item 6.5(c) of the Disclosure Schedule and the Indebtedness incurred in connection with the Commitments, there were as of the Closing Date no liabilities or obligations with respect to the Borrower Group Members of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, has had or could reasonably be expected to have a Material Adverse Effect. As of the Closing Date, to the best of its knowledge, after due inquiry, Borrower does not know of any basis for the assertion against any Borrower Group Member of any liability or obligation of any nature whatsoever that is not disclosed in the financial statements delivered pursuant to Section 6.5(a) which, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect.

(d) On and as of the Closing Date, the Projections have been prepared in good faith and are based on assumptions believed by Borrower to be reasonable and attainable under the then known facts and circumstances, and there are no statements or conclusions in any of the Projections which are based upon or include information known to the Borrower to be misleading in any material respect or which knowingly fail to take into account material information regarding the matters reported therein; it being understood, however, that nothing contained herein shall constitute a representation that the results forecasted in such Projections will in fact be achieved.

Section 6.6 No Material Adverse Effect. Since December 31, 2012, no Material Adverse Effect shall have occurred; and neither Administrative Agent nor the Lenders shall have become aware of any facts, conditions or other information not previously known to it which could reasonably be expected to have a Material Adverse Effect.

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Section 6.7 Litigation, etc. Other than as listed in Item 6.7 of the Disclosure Schedule, there is no pending or, to the knowledge of the Borrower, threatened litigation, action, proceeding or controversy affecting the Borrower Group Members, or any of their respective Properties, businesses, assets or revenues which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.

Section 6.8 Subsidiaries. The organizational chart attached hereto as Item 6.18 of the Disclosure Schedule accurately depicts the names and ownership structure of each Borrower Group Member as of the Closing Date. The Borrower has no Subsidiaries, except (i) those Subsidiaries existing on the Closing Date which are identified in Item 6.8 of the Disclosure Schedule or (ii) those Subsidiaries which have been identified to the Administrative Agent pursuant to Section 7.1.7 hereof.

Section 6.9 Properties.

Section 6.9.1 The Borrower and the Consolidated Subsidiaries own (or lease) all of the Properties and no real property assets are held directly by the General Partner or the Guarantor.

Section 6.9.2 Subject to Section 6.9.4, with respect to the Properties where the Borrower or, as applicable, any Property Owner, holds a leasehold interest, in each case except where the failure to comply with the following could not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect: (i) the Borrower or, as applicable, such Property Owner, has a good and valid leasehold interest in the applicable lease, free and clear of all Liens or claims, except for Liens permitted pursuant to Section 7.2.3,; (ii) the applicable lease is legal, valid, binding, enforceable and in full force and effect, subject to bankruptcy, insolvency, reorganization, moratoriums or similar laws now or hereafter in effect relating to creditor’s rights generally or to general principles of equity; (iii) none of the Borrower Group Members nor, to the knowledge of the Borrower Group Members, any other party, is in material breach or violation of, or event of default under, any such lease, and no event has occurred, is pending or, to the knowledge of the Borrower Group Members, is threatened, which, after the giving of notice, with lapse of time, or otherwise, would constitute a material breach or event of default by any of the Borrower Group Members or, to the knowledge of the Borrower Group Members, any other party under such lease; and (iv) there are no material disputes, oral agreements or forbearance programs in effect as to such lease.

Section 6.9.3 Subject to Section 6.9.4, with respect to the Properties where the Borrower or, as applicable, any Property Owner, holds a fee interest, the Borrower or, as applicable, such Property Owner, is the record owner thereof has good and clear record and marketable fee title to such Property, free and clear of all Liens or claims, except for Liens permitted pursuant to Section 7.2.3, in each case except which could not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

Section 6.9.4 With respect to each Unencumbered Real Property:

(a) As of the Closing Date, Schedule II lists: (i) each of the Unencumbered Real Properties, (ii) the street address of each Unencumbered Real Property, (iii) the

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landlord and/or owner of each Unencumbered Real Property as of the date of this Agreement, (iv) if the interest in such Unencumbered Real Property is a leasehold interest, the term of the applicable lease, and any extension and expansion or purchase options with respect thereto;

(b) Schedule II lists: (i) each of the Qualified Tenant Notes, and the information contained in Schedule II with respect to each such Qualified Tenant Note is true, correct and accurate in all respects.

(c) such Property is supplied with utilities adequate for the operation of such Property and, except for Development Property, such Property (and related structures, fixtures, building systems and equipment) is in good repair and working order sufficient for normal operation of the business conducted at such Property, subject to normal wear and tear, and such Property is currently open for business and is adequate and suitable for the purposes for which they are presently being used;

(d) to the knowledge of the Borrower Group Members, such Property has access to and from publicly dedicated streets, the responsibility for maintenance of which has been accepted by the appropriate Governmental Authority;

(e) there are no (x) pending or, to the knowledge of the Borrower Group Members, threatened condemnation proceedings relating to such Property or (y) pending or, to the knowledge of the Borrower Group Members, threatened litigation, claims, actions, suits, proceedings, investigations or administrative actions relating to such Property, in each case, which could reasonably be expected to materially adversely affect the value, ownership, use or operation of the Property;

(f) the existing buildings and improvements located on such Property are located entirely within the boundary lines of such Property or on permanent easements on adjoining land benefiting such Property and may lawfully be used under applicable zoning and land use laws (either as of right, by special permit or variance, or as a grandfathered use) for the purposes for which they are presently being used, and such Property is not located within any flood plain or subject to any similar type restriction for which any permits or licenses, if any, necessary to the use thereof have not been obtained, in each case, except for title defects, encroachments, and irregularities that do not materially adversely affect the value, ownership, use or operation of the Property; and

(g) none of the Borrower Group Members have received written notice of any, and to the knowledge of the Borrower Group Members, there is no proposed or pending proceeding to change or redefine the zoning classification of all or any portion of such Property that would materially impair the use of such Property for its current uses.

Section 6.9.5 With respect to each Unencumbered Real Property, (i) no such Property is subject to any Leases other than the Leases described in the rent roll delivered in connection with the origination of the Loan (as maybe updated in connection with any Credit Extension) and no Person has any possessory interest in such Property or right to occupy the same except under and pursuant to the provisions of the Leases, (ii) there has been no prior sale,

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transfer or assignment, hypothecation or pledge by the Borrower Group Members of any Lease or of the rents received therein, which will be outstanding following the funding of the Loan, (iii) except as set forth on Item 6.9.5(iii) of the Disclosure Schedule, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the Unencumbered Real Property of which the leased premises are a part. All of the current Leases of the Unencumbered Real Properties are in full force and effect and, (i) none of the Borrower Group Members are in default thereunder an no event has occurred that, with the passage of time and/or the giving of notice would constitute an event of default by the applicable Borrower Group Member thereunder, and (ii) to the knowledge of Borrower Group Members, there is no default thereunder by any other party thereto and no event has occurred that, with the passage of time and/or the giving of notice would constitute an event of default thereunder.

Section 6.9.6 With respect to each Qualified Tenant Note:

(a) Such Qualified Tenant Note is fully assignable by the holder thereof and pledged to the Lenders as collateral or is validly held by a Pledged Subsidiary;

(b) No event has occurred that, with the passage of time and/or the giving of notice would constitute an event of default by any of the parties to such Qualified Tenant Note or their Affiliates under such Qualified Tenant Note;

(c) Each Qualified Tenant Note and related loan and security documents is the legal, valid and binding obligation of the parties party thereto, enforceable in accordance with its terms;

(d) The borrower or guarantor under any such Qualified Tenant Note is not a debtor in any state or federal bankruptcy or insolvency proceeding;

(e) None of such Qualified Tenant Note, any payments thereunder or the rights of the holder of such Qualified Tenant Note are (i) other than those Qualified Tenant Notes listed in Item 6.9.6(e) of the Disclosure Schedule, subordinate to any other Indebtedness of the maker or its Affiliates, or (ii) subject to any Lien (other than the Lien of this Facility); and

(f) The holder of such Qualified Tenant Note has not waived or modified its rights thereunder.

Section 6.10 Taxes. The members of the Consolidated Group and all other Persons with whom the members of the Consolidated Group join in the filing of a consolidated return have filed all federal income tax returns and other material tax returns and reports, domestic and foreign, required by law to have been filed, and have paid all material Taxes, levied or imposed upon them or their properties, income or assets otherwise due and payable except those not yet delinquent or those which are being diligently contested in good faith and for which adequate reserves have been established (in the good faith judgment of the Borrower) in accordance with GAAP. The members of the Consolidated Group and each such other Person with whom the members of the Consolidated Group join in the filing of a consolidated return have paid, or have provided adequate reserves (in the good faith judgment of the management of the Borrower) in accordance with GAAP for the payment of all such material Taxes relating to

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all prior taxable years and the current taxable year of the members of the Consolidated Group and each such other Person with whom the members of the Consolidated Group join in the filing of a consolidated return. To the best knowledge of the Borrower, there is no proposed tax assessment against the members of the Consolidated Group or any such other Person with whom the members of the Consolidated Group join in the filing of a consolidated return that, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.

Section 6.11 ERISA Compliance.

(a) Each Plan is in compliance in all material respects with the terms thereof and the applicable provisions of ERISA, the Code and other federal or state law except to the extent that failure to comply could not result, either individually or in the aggregate, in an amount of liability that could reasonably be expected to have a Material Adverse Effect. The Borrower and each ERISA Affiliate have made all required contributions to each Plan, except to the extent that a failure to do so could not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and no application for a funding waiver or an extension of any amortization period pursuant to Section 412 of the Code or Section 302 of ERISA has been made with respect to any Pension Plan or Multiemployer Plan subject to either such Section of the Code or ERISA that has resulted or could reasonably be expected to result in, either individually or in the aggregate, a Material Adverse Effect.

(b) There are no pending or, to the best knowledge of Borrower, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Pension Plan which has resulted or could reasonably be expected to result in, either individually or in the aggregate, a Material Adverse Effect.

(c) (i) No ERISA Event has occurred or, to the knowledge of Borrower, is reasonably expected to occur; (ii) no Pension Plan has any Unfunded Pension Liability in an amount which could reasonably be expected to have a Material Adverse Effect if such Pension Plan were then terminated; and (iii) neither the Borrower nor any ERISA Affiliate has engaged in a transaction that is subject to Section 4069 or 4212(c) of ERISA that, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.

Section 6.12 Compliance with Environmental Laws. Each Borrower Group Member is in material compliance with all applicable Environmental Laws in respect of the conduct of its business and the ownership of its Property. Without limiting the effect of the preceding sentence, other than as provided in Item 6.12 of the Disclosure Schedule:

(a) no Credit Party has received a complaint, order, citation, notice or other written communication with respect to the existence or alleged existence of a material violation of, or material liability arising under, any applicable Environmental Law;

(b) to the best of the Borrower’s knowledge, there are no material environmental, health or safety conditions existing or reasonably expected to exist at any Unencumbered Real Property, or at any other material real property owned, operated,

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leased or used by the Guarantor, General Partner, Borrower or any of their existing or former Subsidiaries or any of their respective predecessors that are Affiliates or to Borrower’s knowledge, any of their respective non-affiliate predecessors (including off site waste treatment or disposal facilities used by the Guarantor, General Partner, Borrower, Credit Parties or their existing or former Subsidiaries) that, in each case, could reasonably be expected to require any material construction or other material capital costs or material clean-up obligations to be incurred by any Credit Party prior to the Maturity Date in order to assure material compliance with any Environmental Law, including provisions regarding clean-up; and

(c) neither the Borrower nor any other of its Subsidiaries or to Borrower’s knowledge, any Tenants under the Leases has treated, stored or disposed of Hazardous Materials at any currently or formerly owned real estate, with respect to the Borrower or its Subsidiaries, any other facility relating to its business except in material compliance with Environmental Laws and in a manner that would not be reasonably expected to result in material liability to any Credit Party under Environmental Laws.

Section 6.13 Regulations T, U and X. None of the Credit Parties is engaged in the business of extending credit for the purpose of purchasing or carrying margin stock, and no use of any proceeds of any Credit Extensions will violate F.R.S. Board Regulation T, U or X. Terms for which meanings are provided in F.R.S. Board Regulation T, U or X or any regulations substituted therefor, as from time to time in effect, are used in this Section with such meanings.

Section 6.14 Accuracy of Information. All factual information (taken as a whole) heretofore or contemporaneously furnished by or on behalf of the Consolidated Group in writing to the Administrative Agent, the Issuer or any Lender on or before the Closing Date (including (i) the confidential memorandum and (ii) all information contained in the Loan Documents) for purposes of or in connection with this Agreement or any transaction contemplated hereby is true, correct, accurate and complete in all material respects (except as otherwise expressly stated herein) on the date as of which such information is dated or certified and not incomplete by omitting to state any material fact necessary to make such information (taken as a whole) not misleading at such time in light of the circumstances under which such information was provided, it being understood and agreed that for purposes of this Section 6.14, such factual information shall not include Projections and pro forma financial information.

Section 6.15 REIT. Guarantor is qualified as a REIT and its proposed methods of operation will enable it to continue to be so qualified.

Section 6.16 No Bankruptcy Filing. None of the members of the Consolidated Group are contemplating either the filing of a petition by it under any state or federal bankruptcy or insolvency laws or the liquidation of all or a major portion of such entity’s assets or property, and Borrower has no knowledge of any Person contemplating the filing of any such petition against it or against any Borrower Group Member, except for any such filing or liquidation after the date hereof which would not constitute an Event of Default hereunder and regarding which the Administrative Agent has received written notice.

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Section 6.17 Use of Proceeds. The proceeds of all Loans shall be used by the Borrower and its Subsidiaries, subject to the other restrictions set forth in this Agreement, for their general corporate, partnership or limited liability company purposes, including, without limitation, for working capital, capital expenditures, and acquisitions. None of the proceeds of any Loan will be used for the purpose of issuing Dividends to the Guarantor or General Partner or other persons with equity interests in the Borrower; provided, however, that Dividends otherwise permitted hereunder shall not be restricted by the foregoing. Each Letter of Credit may be used in support of any purpose not prohibited by this Agreement or the other Loan Documents.

Section 6.18 Business. As of the date hereof, Borrower and its Subsidiaries are engaged primarily in the business of buying, owning, funding the development of, operating, selling and managing completed commercial properties leased to third party tenants principally, but not exclusively, on a net lease basis.

Section 6.19 Security Interests. (a) Once executed and delivered, and until terminated in accordance with the terms thereof, each of the Pledge Agreement and the Security Agreement creates, as security for the obligations purported to be secured thereby, a valid and enforceable Lien on all of the Collateral subject thereto from time to time in favor of the Administrative Agent, for the benefit of the Lenders except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditor’s rights generally and by general principles of equity, (b) when the Collateral (as defined in the Pledge Agreement) is delivered to the Administrative Agent and upon the taking of possession or control by the Administrative Agent of any such Collateral with respect to which a security interest may be perfected by possession or control, the Lien created under the Pledge Agreement in such Collateral shall constitute a perfected Lien on, and security interest in, all right, title and interest of the Credit Parties in such Collateral, prior and superior in right to any other Person but in case of priority, other than with respect to Liens expressly permitted under this Agreement, and (c) when financing statements provided to the satisfaction of Administrative Agent are filed in the appropriate offices, the Lien created under the Security Agreement will constitute a fully perfected Lien on, and security interest in, all right, title and interest of the Credit Parties in such Collateral (as defined in the Security Agreement) that can be perfected by the filing of a financing statement under the Uniform Commercial Code as in effect in any jurisdiction, prior and superior in right to any other Person, other than with respect to Liens expressly permitted under this Agreement. No filings or recordings are required in order to perfect the security interests created under the Pledge Agreement and the Security Agreement that can be perfected by the filing of a financing statement under the U.C.C. in the applicable jurisdiction except for such filings as have been made, or provided for to the satisfaction of Administrative Agent, at the time of the execution and delivery thereof.

Section 6.20 Material Agreements. Each Material Agreement is in full force and effect, and no terminating event, default, or failure or performance has accrued thereunder. The Material Agreements furnished to Administrative Agent constitute all Material Agreements of the Credit Parties as of the Closing Date. No party to any Material Agreement has challenged or denied the validity or enforceability of any such agreement. The Borrower shall promptly furnish to Administrative Agent copies of all Material Agreements of the Borrower Group Members entered into after the Closing Date.

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Section 6.21 Office of Foreign Assets Control. None of the Credit Parties and Pledged Subsidiaries shall (a) be or become subject at any time to any law, regulation, or list of any government agency (including, without limitation, the OFAC List) that prohibits or limits any Lender from making any advance or extension of credit to Borrower or from otherwise conducting business with the Credit Parties, or (b) fail to provide documentary and other evidence of Borrower’s identity as may be requested by the Administrative Agent or any Lender at any time to enable the Administrative Agent or any Lender to verify such Credit Party’s identity or to comply with any applicable law or regulation, including, without limitation, Section 326 of the USA Patriot Act of 2001, 31 U.S.C. § 5318 (the “Patriot Act”). In addition, Borrower hereby agrees to provide Administrative Agent or any Lender with any additional information that Administrative Agent or any Lender deems reasonably necessary from time to time in order to ensure compliance with all legal requirements concerning money laundering and similar activities.

Section 6.22 Labor Relations. No Borrower Group Member has received written notice, or otherwise has reason to believe that it is engaged in any unfair labor practice that could reasonably be expected to have a Material Adverse Effect. There is (i) no unfair labor practice complaint pending against any Borrower Group Member or, to the best knowledge of Borrower, threatened against any of them, before the National Labor Relations Board, and no grievance or arbitration proceeding arising out of or under any collective bargaining agreement is so pending against any Borrower Group Member or, to the best knowledge of Borrower, threatened against any of them, (ii) no strike, labor dispute, slowdown or stoppage pending against any Borrower Group Member or, to the best knowledge of Borrower, threatened against any of them and (iii) to the best knowledge of Borrower, no union representation question existing with respect to the employees of any Borrower Group Member and, to the best knowledge of Borrower, no union organizing activities are taking place with respect to employees of any of them, except (with respect to any matter specified in clause (i), (ii) or (iii) above, either individually or in the aggregate) such as could not reasonably be expected to have a Material Adverse Effect.

Section 6.23 Intellectual Property, Licenses, Franchises and Formulas. Borrower Group Members own, or has the right to use, all the patents, trademarks, permits, service marks, trade names, copyrights, licenses, franchises, proprietary information (including, but not limited to, rights in computer programs and databases) and formulas, or other rights with respect to the foregoing, or has obtained assignments of all leases and other rights of whatever nature, necessary for the present conduct of its business, without any known conflict with the rights of others which, or the failure to obtain which, as the case may be, could reasonably be expected to result in a Material Adverse Effect.

ARTICLE VII

COVENANTS

Section 7.1 Affirmative Covenants. The Borrower hereby agrees with the Administrative Agent, the Issuer and each Lender that, until all Commitments have terminated (with respect to Letters of Credit Commitments, such Commitments have terminated or expired)

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and all Obligations have been paid and performed in full, the Borrower will perform or cause to be performed the obligations set forth in this Section 7.1.

Section 7.1.1 Financial Information, Reports, Notices, etc. The Borrower will furnish, or will cause to be furnished, to the Administrative Agent (for distribution to the Issuer and each Lender) copies of the following financial statements, reports, notices and information (it being agreed that most recent copies of such financial statements, reports, notices and information shall have been delivered prior to the date hereof):

(a) as soon as available and in any event within 45 days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year of the Borrower, unaudited consolidated balance sheets of the Consolidated Group as of the end of such Fiscal Quarter and unaudited consolidated statements of operations and cash flow of the Consolidated Group for such Fiscal Quarter and for the period commencing at the end of the previous Fiscal Year and ending with the end of such Fiscal Quarter, certified by the chief financial officer of the Borrower, Guarantor and/or General Partner as fairly presenting the financial position and results of operations of the Consolidated Group covered thereby as of the date thereof, in accordance with GAAP in all material respects (except, for the lack of footnotes and subject to year-end audit adjustments);

(b) as soon as available and in any event within 90 days after the end of each Fiscal Year of the Borrower, a copy of the annual audited financial statements for such Fiscal Year for the Consolidated Group, including therein consolidated balance sheets of the Consolidated Group as of the end of such Fiscal Year and consolidated statements of operations and cash flow of the Consolidated Group for such Fiscal Year, in each case as audited (without any Impermissible Qualification) by KPMG or other nationally recognized independent public accountants;

(c) as soon as available and in any event within forty-five (45) days after the end of each of the first three Fiscal Quarters of each Fiscal Year of the Consolidated Group and within ninety (90) days after the end of each Fiscal Year of the Consolidated Group, a Compliance Certificate, executed and certified by the chief executive, financial or accounting Authorized Officer of the Borrower, showing (in reasonable detail, including with respect to appropriate calculations and computations) compliance with the financial covenants set forth in Section 7.2.4 (including reconciliation to GAAP, if applicable);

(d) as soon as reasonably practicable after preparation, and no later than forty-five (45) days after the last day of each Fiscal Quarter of the Consolidated Group with respect to each Property, quarterly rent rolls for each of the Unencumbered Real Properties which shall include such detail as may be reasonably requested by the Administrative Agent, in each case for the period then ended; provided, that, once per calendar year, upon the written request of any Lender, the rent roll delivered shall be supplemented with the revenues, expenses, Net Operating Income and Capital Expenditures for each such Unencumbered Real Property with respect to the trailing twelve month period ended as of the last day of the most recent Fiscal Quarter;

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(e) intentionally omitted;

(f) as soon as reasonably practicable and in any event within seven (7) Business Days after any Responsible Officer of the Borrower obtains knowledge of the occurrence of a Default or an Event of Default a statement of the chief executive, financial or accounting Authorized Officer of the Borrower setting forth details of such Default or Event of Default and the action which the Borrower has taken and proposes to take with respect thereto;

(g) as soon as reasonably practicable and in any event within seven (7) Business Days after any Responsible Officer of the Borrower obtains knowledge of (x) the occurrence of any development, commencement of any litigation, action, proceeding, or labor controversy, or written notice thereof, with respect to any Borrower Group Member (other than a Credit Party), which could reasonably be expected to give rise to a Material Adverse Effect, or (y) the occurrence of any adverse development, commencement of any litigation, action, proceeding, or labor controversy, or written notice thereof, with respect to any Credit Party or any Unencumbered Property (including approved substitutions to such collateral pool);

(h) intentionally omitted;

(i) to the extent prepared in the course of business of Borrower or its Affiliates, as soon as practicable after such availability, (i) quarterly operating statements for each of the Unencumbered Real Properties which shall detail the revenues, expenses, Net Operating Income, occupancy levels, leases, and revenue for each such Property, in each case for the period then ended, (ii) a preliminary annual operating budget, leasing and capital expenditure schedule for each Unencumbered Real Property for the following Fiscal Year, and (iii) the final annual operating budget and Capital Expenditure schedule for each Unencumbered Real Property for the such Fiscal Year;

(j) as soon as reasonably practicable after transmission thereof, copies of any notices or reports that the Consolidated Group shall send to the holders of any publicly issued debt of the Consolidated Group;

(k) as soon as reasonably practicable after a Responsible Officer of Borrower obtains knowledge of the occurrence of any ERISA Event (but in no event more than ten (10) days after a Responsible Officer of Borrower obtains knowledge of such ERISA Event), notice thereof together with a copy of any notice with respect to such event that is filed with a Governmental Authority and any notice delivered by a Governmental Authority to the Consolidated Group with respect to such event;

(l) as soon as reasonably practicable after becoming available and in any event within sixty (60) days after the last day of each Fiscal Year of the Borrower, a budget for the then current Fiscal Year of the Borrower as customarily prepared by the management of the Borrower for its internal use, which budget shall be prepared on a Fiscal Quarter basis and shall set forth the principal assumptions on which such budget is based;

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(m) as soon as reasonably practicable after obtaining knowledge of any one or more of the following environmental matters in each case, which could reasonably be expected to give rise to a Material Adverse Effect or materially adversely affect the value, ownership, use or operation of a Property, written notice of:

(i) any pending or threatened Environmental Claim against any Borrower Group Member or any Property;

(ii) any condition or occurrence on any Property that (x) results in noncompliance by the Consolidated Group with any applicable Environmental Law or (y) could reasonably be anticipated to form the basis of an Environmental Claim against any Borrower Group Member or any Property;

(iii) any condition or occurrence on any Property that could reasonably be anticipated to cause such Property to be subject to any restrictions on the ownership, occupancy, use or transferability of such Property under any Environmental Law; and

(iv) the taking of any removal or remedial action in response to the actual or alleged presence of any Hazardous Material on any Property.

All such notices shall describe in reasonable detail the nature of the claim, investigation, condition, occurrence or removal or remedial action and the Borrower’s response thereto;

(n) promptly and in any event within five (5) Business Days after any Responsible Officer of the Borrower becomes aware of the existence of any circumstances at the commencement (whether commenced or not) of a “cash trap period” under any Indebtedness equal to or in excess of $25,000,000 of any Borrower Group Member, notice of such occurrence;

(o) intentionally omitted;

(p) intentionally omitted;

(q) promptly and in any event within (5) Business Days after termination of any Material Agreement (by its term or otherwise), notice of such termination;

(r) promptly upon the reasonable request of the Administrative Agent, evidence of the Borrower’s calculation of the Ownership Share with respect to a Subsidiary or an Unconsolidated Subsidiary, such evidence to be in form and detail satisfactory to the Administrative Agent; and

(s) such other information respecting the condition or operations, financial or otherwise, of the Consolidated Group as the Administrative Agent, or the Required Lenders through the Administrative Agent, may from time to time reasonably request in writing.

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Section 7.1.2 Preservation of Corporate Existence, etc. The Borrower will, and will cause the other Borrower Group Members to:

(a) preserve and maintain in full force and effect its corporate, limited liability company or partnership existence, as the case may be, under the laws of its state or jurisdiction of incorporation or organization (provided that the Borrower Group Members may consummate any transaction permitted under Section 7.2.7), except, in the case of any such Subsidiary that is not Subsidiary Guarantor or Pledged Subsidiary, to the extent that the failure to do so, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect; and

(b) preserve and maintain in full force and effect its good standing under the laws of its state or jurisdiction of incorporation or organization and all governmental and other rights, privileges, qualification, permits, licenses, intellectual property and franchises necessary in the normal conduct of its business except in the case of any Subsidiary that is not a Subsidiary Guarantor or Pledged Subsidiary in each case to the extent that the failure to do so, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.

Section 7.1.3 Payment of Taxes. The Borrower will, and will cause each other Borrower Group Member to, pay and discharge all material Taxes charged or levied (upon it or upon its income or profits, or upon any properties belonging to it) prior to the date on which material penalties attach thereto; provided, however, that no Borrower Group Member shall be required hereunder to pay any such Tax that is being contested in good faith if it has maintained adequate reserves (in the good faith judgment of the management of such Borrower Group Member) with respect thereto in accordance with GAAP.

Section 7.1.4 Compliance with Statutes, etc. The Borrower will, and will cause the other Borrower Group Members (other than Credit Parties) to, comply, in all material respects, with all applicable statutes, regulations, licenses and other Requirements of Law (including Environmental Laws) having jurisdiction over it or its business noncompliance with which could reasonably be expected to have, except such as may be contested in good faith or as to which a bona fide dispute may exist, in the aggregate, a Material Adverse Effect or adversely affect the value, ownership, use or operation of a Property. The Borrower will, and will cause the other Credit Parties to, comply, in all material respects, with all applicable statutes, regulations, licenses and other Requirements of Law (including Environmental Laws) having jurisdiction over it or its business, except such as may be contested in good faith or as to which a bona fide dispute may exist.

Section 7.1.5 Insurance. The Borrower will, and will cause (i) the other Borrower Group Members, or (ii) the various Tenants, as required under the applicable Lease, to, at all times maintain in full force and effect, with third party insurance companies which are financially sound and responsible at the time the relevant coverage is placed or renewed, insurance with respect to its properties and business (including business interruption, terrorism insurance (to the extent commercially reasonable or as required under Mortgage Indebtedness) and hurricane insurance) against such casualties and contingencies and of such types and in such amounts, and with such deductibles, retentions, self-insured amounts and reinsurance provisions,

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as are customarily maintained by companies engaged in the same or similar businesses in the same general area, as well as corporate level excess liability coverage of at least $5,000,000. The Borrower will, upon request of the Administrative Agent or any Lender, furnish to Administrative Agent information presented in reasonable detail as to the insurance maintained by the Borrower Group Members.

Section 7.1.6 Further Assurances. Borrower will, and will cause the other Borrower Group Members to: (a) promptly execute and deliver any and all other and further instruments which may be reasonably requested by Administrative Agent to cure any defect in the execution and delivery of any Loan Document or more fully describe particular aspects of any Borrower Group Member’s agreements set forth in the Loan Documents; and (b) promptly execute, deliver, and file all such notices, statements, and other documents and take such other steps, including but not limited to the amendment of the Pledge Agreement or the Security Agreement and any financing statements prepared thereunder, as may be reasonably necessary or advisable, or that Administrative Agent may reasonably request, to render fully valid and enforceable under all applicable laws, the rights, liens, and priorities of Administrative Agent, for the benefit of the Lenders, with respect to all security from time to time furnished under this Agreement, Pledge Agreement, or the Security Agreement or intended to be so furnished, in each case in such form and at such times as shall be reasonably satisfactory to Administrative Agent.

Section 7.1.7 Future Pledgors.

(a) Upon the formation or acquisition by Borrower of any (direct or indirect) Subsidiary, the Borrower shall notify the Administrative Agent of such event, and, unless such Person is a Restricted Subsidiary or as otherwise provided in this Section 7.1.7:

(i) if such Person owns Capital Stock in another Subsidiary that is not a Restricted Subsidiary, and such Person is not theretofore a party to the Pledge Agreement, execute and deliver to the Administrative Agent a supplement to the Pledge Agreement for the purposes of becoming a pledgor thereunder with respect to the Capital Stock of such other Subsidiary, as applicable; and

(ii) the Person that is required to become a pledgor under Section 7.1.7(a) above, shall, (x) pursuant to (and to the extent required by) the Pledge Agreement, pledge to the Administrative Agent all of the outstanding shares of Capital Stock of such Subsidiary owned directly by it, along with undated stock powers for such certificates, executed in blank (or, if any such shares of capital stock are uncertificated, confirmation and evidence reasonably satisfactory to the Administrative Agent that the security interest in such uncertificated securities has been transferred to and perfected by the Administrative Agent, for the benefit of the Secured Creditors, in accordance with Article 8 of the U.C.C. in effect in the State of Delaware or any other similar law which may be applicable) and (y) pursuant to (and to the extent required by) the Security Agreement, grant to the Administrative Agent a first priority perfected security interests in all other non-real estate assets owned by such Person, including, without limitation, accounts (it being understood that a control agreement with respect to such accounts can be entered within 30 days of such party becoming a pledgor, which 30 days may be

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extended at Administrative Agent’s sole discretion), inventory, equipment, investment property, instruments, chattel paper, deposit accounts, contracts, patents, copyrights, trademarks and other general intangibles with confirmation and evidence reasonably satisfactory to the Administrative Agent that a first priority security interests in such assets has been perfected by the Administrative Agent, for the benefit of the Secured Creditors, in accordance with Article 9 of the U.C.C. in effect in the states of Delaware and New York (or any other similar law which may be applicable); and

(iii) such Person shall execute a Joinder to become party to the Pledge Agreement, Subsidiary Guaranty, and the Security Agreement substantially in the form attached as Exhibit H-1, Exhibit K-2 and Exhibit G-2 hereto, as applicable.

Notwithstanding the foregoing, in the event that the Administrative Agent is satisfied that any Subsidiary that is (or will be) a Property Owner, or a single purpose entity that owns the Capital Stock of a Property Owner, will incur Mortgage Indebtedness such that it will become a Restricted Subsidiary, then upon the request of the Borrower, the Administrative Agent may in its discretion waive the requirements of this Section 7.1.7 for a period of time, as established by the Administrative Agent, to enable such financing to be incurred; provided, however, that, if granted, such waiver may, prior to such Subsidiary becoming a Restricted Subsidiary, be revoked by the Administrative Agent upon the occurrence of a Default and provided, further that no such waiver shall be applicable to subsequent transactions.

In the event that any Subsidiary Guarantor becomes a Restricted Subsidiary in connection with the permitted incurrence of Mortgage Indebtedness, or is otherwise released with the consent of the Required Lenders, the Administrative Agent, at the request and expense of the Borrower, will promptly deliver to the Borrower or such Subsidiary Guarantor and General Partner, as applicable (without recourse and without any representation or warranty) releases thereof from the Subsidiary Guaranty, the Pledge Agreement and the Security Agreement, as applicable.

(b) Upon the occurrence of an event that would enable the pledge of any interest in Borrower and/or General Partner, the Borrower shall notify the Administrative Agent of such event and the interest in Borrower and/or General Partner not restricted to be pledged shall be pledged. In connection with such pledge, (i) the Organic Documents of Borrower and/or General Partner, to the extent reasonably requested by Administrative Agent, shall be amended to provide (x) for the pledge of such interest in Borrower and/or General Partner, (y) that in the event of a foreclosure or transfer in lieu of foreclosure of such interest in Borrower and/or General Partner or other exercise of remedies under the Loan Documents whereby Administrative Agent, its successors and/or assigns, its nominee or any of its Affiliates, any purchaser at a foreclosure sale or any transferee in lieu of foreclosure acquires the partnership interest of the Borrower and/or membership interest in the General Partner, (A) such purchase or transfer shall be permitted notwithstanding any provision of the Organic Documents of Borrower and/or General Partner, as applicable, to the contrary, (B) such purchaser or transferee shall, upon its execution of a counterpart to the Organic Documents of Borrower and/or General Partner, as applicable, be deemed to be a substitute limited partner, general partner and/or

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member, with all rights, power, privileges, obligations and liabilities of such Person, and (z) for any other reasonably requested modifications to the applicable Organic Documents, (ii) the Person that is required to become a pledgor, shall, execute a Joinder to become party to the Pledge Agreement, substantially in the form attached as Exhibit K-2 hereto, and (iii) pursuant to (and to the extent required by) the Pledge Agreement, pledge to the Administrative Agent all of the outstanding shares of Capital Stock owned directly by it, along with undated stock powers for such certificates, executed in blank (or, if any such shares of capital stock are uncertificated, confirmation and evidence reasonably satisfactory to the Administrative Agent that the security interest in such uncertificated securities has been transferred to and perfected by the Administrative Agent, for the benefit of the Secured Creditors, in accordance with Article 8 of the U.C.C. or any other similar law which may be applicable).

In addition, in the event that an existing Restricted Subsidiary ceases to qualify as a Restricted Subsidiary in whole or in part or interests in Borrower can be pledged in whole or in part, Borrower (or Guarantor, as applicable) shall promptly cause such interest to be pledged to Administrative Agent. Further, if at any time a Restricted Subsidiary is restricted (as and to the extent set forth in the definition of “Restricted Subsidiary”) from complying with a portion, but not all, of the provisions of this Section 7.1.7, or Borrower, General Partner or Guarantor is restricted from complying with a portion, but not all, of the provisions of this Section 7.1.7, Borrower shall cause such Person to comply with the portions hereof that are not so restricted.

Section 7.1.8 Transactions with Affiliates. The Borrower will, and will cause the other Borrower Group Members to, conduct all transactions with any of their respective Affiliates upon fair and reasonable terms that are substantially as favorable to the Borrower Group Members as it would obtain in a comparable arm’s-length transaction with a Person not an Affiliate of the Borrower Group Members. Intercompany Indebtedness shall generally be permitted provided (i) the same is subordinated to this Facility and the full repayment of the Obligations and all obligations of Credit Parties under this Facility, (ii) the incurrence of such Indebtedness will not otherwise cause an Event of Default, (iii) intercompany loans to Subsidiaries which are not wholly-owned directly or indirectly by the Borrower are subject to reasonable approval by Administrative Agent and (iv) such Indebtedness otherwise complies with the terms and restrictions set forth in this Agreement.

Section 7.1.9 Corporate Separateness. Borrower will, and will cause the other Borrower Group Members to, take all such action as is necessary to keep the operations of Borrower and its Subsidiaries separate and apart from those of Guarantor and General Partner including, without limitation, ensuring that all customary formalities regarding corporate existence, including holding regular board of directors’ meetings and maintenance of corporate records, are followed. All financial statements of Credit Parties provided to creditors will, to the full extent permitted by GAAP, clearly evidence the corporate separateness of Borrower and its Subsidiaries from Guarantor and General Partner. Finally, no such company will take any action, or conduct its affairs in a manner which is likely to result in the corporate existence of Borrower and/or any of its Subsidiaries on the one hand, and Guarantor and General Partner on the other, being ignored, or in the assets and liabilities of Borrower or any of its Subsidiaries being substantively consolidated with those of Guarantor and General Partner in a bankruptcy, reorganization, or other insolvency proceeding.

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Section 7.1.10 End of Fiscal Year. The Borrower will, for financial reporting purposes, cause each of its Subsidiaries’, Fiscal Years to end on December 31 of each year (the “Fiscal Year End”); provided, however, that the Borrower may, upon written notice to the Administrative Agent, change the definition of Fiscal Year End set forth above to any other date reasonably acceptable to the Administrative Agent, in which case the Borrower and the Administrative Agent, will and are hereby authorized by the Lenders to, make any adjustments to this Agreement that are necessary in order to reflect such change in financial reporting.

Section 7.1.11 Interest Rate Protection Agreements. At least eighty percent (80%) of the outstanding principal amount of all Indebtedness for borrowed money of the Consolidated Group shall be either (a) subject to a fixed interest rate or (b) hedged pursuant to an Interest Rate Protection Agreement that is: (i) (x) acceptable to the lender or lenders providing such Indebtedness, if such lenders or lenders required such Interest Rate Protection Agreement with respect to such Indebtedness, and (y) reasonably acceptable to Administrative Agent, (ii) acceptable to Moody’s Investors Service, Inc., Standard & Poor’s Rating Group, a division of McGraw Hill, Inc., a New York corporation, or Fitch Ratings, Inc., if such ratings agency required such Interest Rate Protection Agreement with respect to rating such Indebtedness, or (iii) reasonably acceptable to Administrative Agent, in all other cases.

Section 7.1.12 Guarantor. Guarantor will at all times (i) qualify and maintain its status as a self-directed and self-administered REIT, (ii) remain a publicly traded company with common stock listed on the New York Stock Exchange or NASDAQ, (iii) conduct substantially all of its business and hold substantially all of its assets through the General Partner and Borrower and operate its business at all times so as to satisfy all requirements necessary to qualify as a REIT, and (iv) maintain adequate records so as to comply with all record-keeping requirements relating to the qualification of Guarantor as a REIT as required by the Code and applicable Treasury Regulations and will properly prepare in all material respects and timely file with the U.S. Internal Revenue Service all U.S. federal income and other material tax returns and reports required thereby.

Section 7.1.13 Maintenance, Repairs, and Alterations. Under all circumstances with respect to the Unencumbered Real Properties, and with respect to the Consolidated Group Properties that are not Unencumbered Real Properties:

(a) except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect, Borrower will cause each of the Consolidated Group Properties to be operated, maintained, and managed in a professional manner at all times in accordance with the applicable customary industry standards and in a manner consistent with the way it is operated, maintained, and managed as of the date hereof with respect to any Consolidated Group Property owned or leased by Borrower on the date hereof. Borrower will keep in effect (or cause to be kept in effect) at all times all permits, licenses, and contractual arrangements as may be necessary to meet the standard of operation described in the foregoing sentence or as may be required by the law. Upon the request of the Administrative Agent, the Borrower will deliver to Administrative Agent true, correct, and complete copies of all permits and licenses necessary for the ownership and operation of the Consolidated Group, issued in the name of the applicable entity and consistent with any legal requirements.

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(b) except to the extent the failure to do so could reasonably be expected to have a Material Adverse Effect, Borrower will not commit or permit any waste or deterioration of or to any Consolidated Group Property.

(c) except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect, Borrower will act prudently and in accordance with customary industry standards in managing and operating the Consolidated Group Properties. Borrower will keep the Consolidated Group Properties and all of its other assets which are reasonably necessary to the conduct of its business in good working order and condition, normal wear and tear excepted.

(d) except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect, Borrower will, and will cause other Borrower Group Members to pay and discharge all lawful material claims that, if unpaid, could reasonably be expected to become a material Lien upon any properties of the Borrower, or any other Borrower Group Member; provided, however, that neither the Borrower, nor any other Borrower Group Members shall be required hereunder to pay any such claim that is being contested in good faith if it has maintained adequate reserves (in the good faith judgment of the management of the Borrower or any other Borrower Group Member) with respect thereto in accordance with GAAP.

Section 7.1.14 Access; Annual Conference Call with Lenders.

(a) Access. The Borrower shall, at any reasonable time and from time to time upon reasonable advance notice, permit the Administrative Agent or any of the Lenders or any their respective agents or representatives thereof (coordinating with Borrower through the Administrative Agent), under the guidance of officers of the Borrower (unless such officers are not made available for such purpose upon reasonable advance notice), (i) examine and make copies (at the expense of Borrower) of and abstracts from the records and books of account of the Consolidated Group, (ii) visit the Consolidated Group Properties, (iii) discuss the affairs, finances and accounts of the Consolidated Group with any of their respective officers or directors, and (iv) communicate directly with the Borrower’s independent certified public accountants at Administrative Agent’s or the applicable Lender’s sole cost and expense and not to exceed one time per calendar year, provided however, notwithstanding anything to the contrary, if an Event of Default has occurred and is continuing, such examinations, visitations, discussions and communications shall be at Borrower’s sole cost and expense and shall not be subject to any restriction on frequency.

(b) Annual Conference Call with Lenders. At the request of the Administrative Agent, the Borrower shall, at least once during each Fiscal Year (other than during the Fiscal Year in effect on the Closing Date) of the Borrower, hold a conference call (at a mutually agreeable location and time) with all of the Lenders at which conference call the financial results of the previous Fiscal Year and the financial condition of the Consolidated Group and the budgets presented for the current Fiscal Year of the Consolidated Group shall be reviewed.

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Section 7.1.15 Keeping of Books. The Borrower shall keep, and shall cause Guarantor and General Partner and each of their respective Subsidiaries to keep, proper books of record and account, in which proper entries shall be made of all financial transactions and the assets and business of the Borrower, Guarantor and General Partner and each respective Subsidiary.

Section 7.1.16 Unencumbered Properties.

(a) No Unencumbered Property shall be subject to or encumbered by any Indebtedness, or by any other Material Agreement that by its terms precludes the grant of the Collateral or the exercise by or on behalf of the Secured Creditors of remedies with respect to the Collateral.

(b) A Property may cease to qualify as an Unencumbered Real Property, but may subsequently regain its status as a Unencumbered Real Property as provided in clause (c) below; provided, however, if an Event of Default has occurred as a result of the Borrower’s failure to satisfy the Required Maximum Unencumbered Asset Ratio, such Event of Default shall not be cured as a result of such re-qualification.

(c) Borrower may include additional Properties (whether New Acquisitions, former Development Properties or Properties that had been Unencumbered Real Properties but ceased to qualify as such) by sending (i) a written certification that such Property then satisfies the criteria for a Unencumbered Real Property or, if a waiver or discretionary approval is required by the Required Lenders with respect to any element thereof, so specifying, and (ii) if requested by Administrative Agent or the Required Lenders, reasonable supporting documentation with respect to each of the elements of such certification or request. The Administrative Agent will make such request and materials available to the Lenders.

(d) Borrower shall promptly after any Responsible Officer of the Borrower obtains knowledge thereof notify Administrative Agent of: (i) any material structural defects or Environmental Occurrence affecting an Unencumbered Real Property or (ii) the occurrence of any material casualty event or condemnation affecting an Unencumbered Real Property, or (iii) any bankruptcy or insolvency proceeding involving a Tenant at an Unencumbered Real Property, or (iv) any other event or occurrence which would cause an Unencumbered Real Property to cease to qualify as such. In such event, the affected Unencumbered Real Property will immediately, as of the occurrence, cease to qualify as an Unencumbered Real Property hereunder, except to the extent provided in the following sentence. In the event that structural defects, Environmental Occurrence or casualty result in the temporary closure (for repair, restoration or remediation) of less than 25% of the rentable square footage and provided that the Tenant, by way of business interruption insurance proceeds or otherwise, is continuing to pay rent and other charges under its lease and the applicable Property Owner has given reasonable security to the Lenders to insure that such repair, restoration or remediation will be promptly and diligently resolved in a good and workman-like manner within sixty (60) days, then such Property will not cease to qualify as an Unencumbered Real Property for so long as such

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conditions remain satisfied and provided that such issues are finally repaired or resolved within sixty (60) days.

(e) Borrower shall promptly after any Responsible Officer of the Borrower obtains knowledge thereof notify Administrative Agent (i) of any pay-down, pay off or other reduction in the outstanding amount of any Qualified Tenant Note, in which event the amount of the affected Qualified Tenant Note will immediately, as of the occurrence, be reduced in calculating the Unencumbered Total Value; (ii) (x) of any event or occurrence which would cause the representations in Section 6.9.6 with respect to a Qualified Tenant Note to be inaccurate in any respect, or (y) if any Qualified Tenant Note is not held and/or economic and beneficial interest in such Qualified Tenant Note is not owned by the holder by such Qualified Tenant Note as of the date hereof, in which event, the affected Qualified Tenant Note will immediately, as of the occurrence, cease to qualify with respect to Unencumbered Total Value hereunder.

Section 7.1.17 Leases and Estoppel Certificates.

(a) Borrower shall, and shall cause Borrower Group Members to, not breach any of their obligations under any Lease, and Borrower shall use commercially reasonable efforts to ensure that each Lease in the Unencumbered Real Properties and any lease with a Major Tenant is in full force and effect (other than as provided in such Lease).

(b) Borrower shall use commercially reasonable efforts to deliver to Administrative Agent promptly after Closing Date, Tenant Estoppel Certificates from all Major Tenants with respect their Leases and shall thereafter use commercially reasonable efforts to deliver additional Tenant Estoppel Certificates to Administrative Agent within ninety (90) days of Administrative Agent’s request therefor, provided, however, that Administrative Agent shall not make any such additional request prior to the sixth month of the Closing Date and thereafter not more often than twice in any 12 month period unless otherwise necessary in Administrative Agent’s reasonable determination.

Section 7.1.18 Material Agreements. Borrower shall, and shall cause each other Credit Party to duly and punctually perform and comply with all terms and conditions of the Material Agreements identified on Schedule IV, the failure of which to comply would permit any other party thereto to terminate such Material Agreement. The Borrower shall not, and shall not permit any other Credit Party to, do or knowingly permit to be done anything to impair materially the value of any such Material Agreements.

Section 7.2 Negative Covenants. The Borrower agrees with the Administrative Agent, the Issuer and each Lender that, until all Commitments have terminated, all Letters of Credit have terminated or expired and all Obligations have been paid and performed in full, the Borrower will comply with the covenants set forth in this Section 7.2.

Section 7.2.1 Changes in Business. Borrower will not, and will not permit the other Borrower Group Members to, engage in any significant business or activities in any industries or business segments, other than the business and activities conducted by Borrower, or

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the other Borrower Group Members (taken as a whole) on the Closing Date (i.e., the acquisition, ownership and “triple-net” leasing of real property and interests therein), other businesses and activities related or incidental thereto or reasonable extensions thereof.

Section 7.2.2 Indebtedness. The Borrower will not and will not permit any Borrower Group Member to create, incur, assume or suffer to exist or otherwise become or be liable in respect of any Indebtedness, other than, without duplication, the following, in all cases subject to Section 7.2.4:

(a) Mortgage Indebtedness, including customary recourse guaranties provided in connection therewith;

(b) Indebtedness incurred by Borrower, or the other Borrower Group Members in respect of (i) Credit Hedging Agreements and other Hedging Agreements entered into in connection with a Mortgage Indebtedness and not otherwise or for speculative purposes, (ii) purchase money indebtedness and capital lease obligations, in each case only for FF&E incurred in the ordinary course of business (but, in either case, not with respect to Property acquisitions or in any event recourse to Borrower, Guarantor or General Partner), and (iii) other trade payables incurred in the ordinary course of business not to exceed 2% of Consolidated Debt at any time.

(c) All Obligations hereunder, including pursuant to the Guaranties;

(d) Indebtedness secured by any Liens permitted pursuant to Section 7.2.3;

(e) Indebtedness existing as of the Closing Date and identified in Item 7.2.2 (e) of the Disclosure Schedule and any refinancings, refundings, renewals or extensions thereof for an amount equal to or less than such Indebtedness as of the date hereof;

(f) Recourse Indebtedness, not secured by a Lien or otherwise permitted under the foregoing clauses (a)-(e), subject to compliance with the covenants set forth in Section 7.2.9, not to exceed $10,000,000 in aggregate principal amount outstanding at any time;

(g) Indebtedness incurred in respect of indemnification claims relating to adjustments of purchase price or similar obligations in any case incurred in connection with any Disposition permitted under Section 7.2.7; and

(h) Indebtedness in respect of workers’ compensation claims, self insurance premiums, performance, bid and surety bonds and completion guaranties, in each case, in the ordinary course of business.

Section 7.2.3 Liens. The Borrower will not and will not permit any Borrower Group Member to create, incur, assume or suffer to exist any Lien upon the Borrower’s or any such Borrower Group Member’s respective property, revenues or assets (real or personal, tangible or intangible), whether now owned or hereafter acquired or sell any such property or assets subject to an understanding or agreement, contingent or otherwise, to repurchase or leaseback such property or assets (including sales or accounts receivable with recourse to

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Borrower or the other Borrower Group Members), or assign any right to receive income or permit the filing of any financing statement under the U.C.C. as in effect in the State of New York and/or Delaware or any other similar notice of Lien under any similar recording or notice statute, except:

(a) Liens securing payment of the Obligations granted pursuant to any Loan Document or Liens securing Credit Hedging Agreements;

(b) Liens securing Mortgage Indebtedness;

(c) Liens on cash or Cash Equivalents or deposit accounts holding cash or Cash Equivalents securing Hedging Agreements or letter of credit reimbursement obligations permitted under Section 7.2.2(b) or Liens securing FF&E purchase money indebtedness or capital lease obligations permitted under Section 7.2.2(b);

(d) inchoate Liens for Taxes not at the time delinquent or thereafter payable without penalty or to the extent payment is not required pursuant to Section 7.1.3;

(e) Liens of carriers, warehousemen, mechanics, materialmen and landlords and other similar Liens imposed by law incurred in the ordinary course of business;

(f) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business in connection with workmen’s compensation, unemployment insurance or other forms of governmental insurance or benefits, or to secure performance of tenders, statutory and regulatory obligations, bids, leases and contracts or other similar obligations (other than for borrowed money) entered into in the ordinary course of business or to secure obligations on surety bonds or performance or return-of-money bonds;

(g) Liens consisting of judgment or judicial attachment liens in circumstances not constituting an Event of Default under Section 8.1.6;

(h) easements, rights-of-way, municipal and zoning ordinances or similar restrictions, minor defects or irregularities in title and other similar charges or encumbrances not securing Indebtedness and not interfering in any material respect with the ordinary conduct of the business of the Borrower or its Subsidiaries;

(i) Leases for space entered into in the ordinary course of business affecting any Property (to Tenants as tenants only, without purchase rights or options);

(j) Liens existing as of the Closing Date and identified in Item 7.2.3 (j) of the Disclosure Schedule or securing Indebtedness permitted by Section 7.2.2(e), provided that, no such Lien is spread to cover any additional Property after the Closing Date (other than any Property that becomes collateral for any Indebtedness permitted by Section 7.2.2(e)), and that the amount of Indebtedness secured thereby is not increased except as otherwise permitted herein;

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(k) The rights of Tenants under leases and subleases of Properties entered into in the ordinary course of business consistent with past practice of the applicable Borrower Group Member as tenants only; provided, that (i) such leases and subleases contain market terms and conditions (excluding rent) and (ii) such Liens do not secure any Indebtedness;

(l) Liens arising solely by virtue of any statutory or common law provision relating to banks’ liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a creditor depository institution, provided that such deposit account is not a cash collateral account; and

(m) Lien encumbering assets of a Borrower Group Member thereof not otherwise permitted under this Section 7.2.3.; provided that the aggregate amount of obligations secured by Liens pursuant to this clause (m) does not at any time exceed $5,000,000.

Section 7.2.4 Financial Covenants. Except as otherwise provided below, commencing with the Fiscal Quarter ending on December 31, 2013 as evidenced by the Compliance Certificate delivered with respect to the Fiscal Year 2013:

(a) Maximum Total Leverage Ratio. The Borrower will not permit the Total Leverage Ratio, as of the end of any Fiscal Quarter, to be greater than sixty-five percent (65%).

Except as provided for in the definition of “Total Leverage Ratio” the determination of the Total Leverage Ratio (i) for the first three (3) Fiscal Quarters beginning with the Fiscal Quarter ending December 31, 2013 shall be based on the results of the then ending Fiscal Quarter, multiplied by four and (ii) for each Fiscal Quarter ending on and after September 30, 2014 shall be based on the results of the then ending Fiscal Quarter and each of the three immediately prior Fiscal Quarters.

(b) Minimum Fixed Charge Coverage Ratio. The Borrower will not permit the Total Fixed Charge Coverage Ratio, on a consolidated basis, as of the end of any Fiscal Quarter, to be less than the levels set forth opposite such Fiscal Quarter below:

Fiscal Quarter	Minimum Fixed Charge Coverage Ratio
Fiscal Quarter ending December 31, 2013 through and including 1st Fiscal Quarter of 2015	1.35x
2nd Fiscal Quarter of 2015 through and including 1st Fiscal Quarter of 2016	1.40x
Thereafter	1.45x

The determination of the Minimum Fixed Charge Coverage Ratio (i) for the first three (3) Fiscal Quarters beginning with the Fiscal Quarter ending December 31, 2013 shall be based on the results of the then ending Fiscal Quarter, multiplied by four and (ii)

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for each Fiscal Quarter ending on and after September 30, 2014 shall be based on the results of the then ending Fiscal Quarter and each of the three immediately prior Fiscal Quarters.

(c) Minimum Net Worth. At all times, the Borrower will not permit Consolidated Tangible Net Worth to be less than an amount equal to eighty percent (80%) of the Consolidated Tangible Net Worth deemed as of the Closing Date hereof plus eighty percent (80%) of the proceeds to Guarantor of any new issuances of common Capital Stock at any date following the Closing Date.

(d) Minimum Unencumbered Interest Coverage Ratio. The Borrower will not permit the Total Unencumbered Interest Coverage Ratio as of the end of any Fiscal Quarter, to be less than 1.50x. The determination of the Minimum Unencumbered Interests Coverage Ratio (i) for the first three (3) Fiscal Quarters beginning with the Fiscal Quarter ending December 31, 2013 shall be based on the results of the then ending Fiscal Quarter, multiplied by four and (ii) for each Fiscal Quarter ending on and after September 30, 2014 shall be based on the results of the then ending Fiscal Quarter and each of the three immediately prior Fiscal Quarters.

(e) Required Maximum Unencumbered Asset Ratio. At all times, the Borrower will not permit the ratio of the outstanding amount from all Borrowings (after giving effect to the initial loan and any subsequent Credit Extensions) to the Unencumbered Total Value to exceed sixty-two and one-half percent (62.5%).

Section 7.2.5 Investments. The Borrower will not, and will not permit any other Borrower Group Member to, make, incur, assume or suffer to exist any Investment in any other Person except:

(a) Investments existing as of the Closing Date and identified in Item 7.2.5(a) of the Disclosure Schedule, provided that any additional Investments made with respect thereto shall be permitted only if permitted under the other provisions of this Section 7.2.5;

(b) Investments in Cash Equivalents;

(c) without duplication, Investments to the extent permitted as Indebtedness pursuant to Section 7.2.2;

(d) Capital Expenditures not to exceed $50,000,000 per annum for any Fiscal Year; provided, that the amount of permitted Capital Expenditures set forth herein in respect of any Fiscal Year, may at the Borrower’s option be increased by (i) the amount equal to 50% of the unused permitted Capital Expenditures for the immediately preceding Fiscal Year, in no event to exceed the amount of $25,000,000 and/or (ii) the amount equal to 50% of the permitted Capital Expenditures for the immediately following Fiscal Year (in which event the permitted Capital Expenditures for the immediately following Fiscal Year shall be reduced on a dollar by dollar basis);

(e) without duplication, Investments permitted by Section 7.2.6;

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(f) acquisitions of Properties provided that the financial covenants in Section 7.2.4 are complied with;

(g) Investments constituting (i) accounts receivable arising, (ii) trade debt granted, or (iii) deposits made in connection with the purchase price of goods or services, in each case in the ordinary course of business;

(h) loans to Subsidiaries permitted pursuant to Section 7.1.6;

(i) loans to Tenants in the ordinary course of business not to exceed (i) $10,000,000 with respect to any single Tenant or its Affiliates, at any one time outstanding, or (ii) $100,000,000 in the aggregate with respect to all Tenants and their respective Affiliates, at any one time outstanding;

(j) loans and advances to employees of Guarantor, the Borrower or any Subsidiaries of the Borrower in the ordinary course of business (including, without limitation, for travel, entertainment and relocation expenses) in an aggregate amount for Guarantor, the Borrower and Subsidiaries of the Borrower not to exceed $250,000 at any one time outstanding;

(k) Investments not otherwise permitted hereunder in an aggregate principal amount not to exceed $50,000,000 in the aggregate at any one time outstanding;

(l) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;

(m) Investments consisting of debt securities, equity securities and other non-cash consideration received as consideration for a Disposition permitted by Section 7.2.7;

(n) Investments in the Capital Stock of any Subsidiary;

(o) Investments in Unconsolidated Subsidiaries unless the Borrower’s Share of the net asset value of Properties held in all Unconsolidated Subsidiaries is equal to or greater than 10% of Gross Asset Value; and

(p) Investments in Development Property unless such Investment would cause more than 5% of the Gross Asset Value to be attributable to the current book value of Development Property.

Section 7.2.6 Restricted Payments, etc.

(a) Borrower will not, nor will Borrower permit any Borrower Group Member to, authorize, declare or pay any Dividends, except that:

(i) any Borrower Group Member may authorize, declare and pay cash Dividends to Borrower or to any Subsidiary of Borrower that is a parent of such Borrower Group Member; and

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(ii) any Borrower Group Member may authorize, declare or pay Dividends from time to time (in addition to those permitted pursuant to the preceding clause (i)), so long as (A) no Event of Default exists at the time of the respective authorization, declaration or payment or would exist immediately after giving effect thereto, (B) for the first four (4) Fiscal Quarters after the Closing Date, such Dividends does not exceed $1.50 per share, and (C) commencing with the Fiscal Quarter ending on December 31, 2014, such Dividends do not, in the aggregate exceed Funds From Operations in any Fiscal Year.

(b) No Dividend or other payment may be paid or made under this Section 7.2.6 at any time that an Event of Default shall have occurred and be continuing or would result from any such Dividend or other payment; provided, however, that notwithstanding the restrictions of Section 7.2.6(a) or the first part of this sentence, for so long as Guarantor qualifies, or has taken all other actions necessary to qualify, as a REIT during any Fiscal Year of Guarantor, General Partner and the Borrower may authorize, declare and pay cash Dividends (which may be based on estimates) to General Partner (to be further distributed to Guarantor) or Guarantor, as applicable, when and to the extent necessary for Guarantor to distribute, and Guarantor may (and if it receives such cash Dividends from General Partner and/or the Borrower, shall) so distribute, cash Dividends to its shareholders in an aggregate amount not to exceed the minimum amount necessary for Guarantor to maintain its qualification as a REIT and avoid imposition of income and excise taxes under Section 857 and 4981 of the Code.

Section 7.2.7 Consolidations and Mergers; Dispositions. The Borrower will not, and will not suffer or permit any Borrower Group Member to, merge, consolidate, reorganize or otherwise combine or liquidate with or into, whether in one transaction or in a series of transactions to or in favor of, any Person except for (i) transactions that occur between wholly-owned Subsidiaries, (ii) transactions where the Borrower is the surviving entity and there is no change in the type of business conducted and no other Change of Control or Default results from such transaction, (iii) transactions otherwise permitted hereunder including in connection with a permitted Disposition, or (iv) transactions otherwise approved in advance by Administrative Agent or the Required Lenders. The Borrower will not, and will not permit any Borrower Group Member to enter into or consummate any Disposition (other than any Disposition resulting from a casualty or condemnation, a Disposition by any Subsidiary to any wholly-owned Subsidiary of Borrower or to Borrower or otherwise approved in advance by the Required Lenders) if (A) an Event of Default then exists; or (B) the Disposition would result in (1) proceeds of less than eighty-five percent (85%) cash or Cash Equivalents or (2) the Disposition of Capital Stock in a Subsidiary that would otherwise not be permitted under this Agreement; or (C) the Disposition is not on a bona fide arms-length basis; or (D) the Disposition would, on an actual or pro forma basis, cause an Event of Default or the breach of the financial covenants set forth in Section 7.2.4.

Section 7.2.8 Limitation on Certain Restrictions on Subsidiaries. The Borrower will not, and will not permit any Borrower Group Member to, directly or indirectly, create or otherwise cause or suffer to exist or become effective, any encumbrance or restriction on the ability of any such Person to (x) pay Dividends or make any other distributions on its Capital Stock or any other interest or participation in its profits owned by any Borrower Group Member, or pay any Indebtedness owed to any Borrower Group Member, (y) make loans or advances to

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any Borrower Group Member or (z) transfer any of its properties or assets to any Borrower Group Member, except for such encumbrances or restrictions existing under or by reason of (i) applicable law, (ii) this Agreement and the other Loan Documents, (iii) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Borrower Group Member, (iv) customary provisions restricting assignment of any licensing agreement or other contract entered into by any Borrower Group Member in the ordinary course of business and (v) restrictions on the transfer of any assets subject to or restrictions on the making of distributions imposed in connection with a Lien permitted by Section 7.2.3(b).

Section 7.2.9 Covenant Restrictions; No Negative Pledges. No Recourse Indebtedness of the Borrower, Guarantor or General Partner shall contain any covenant or restriction which is more restrictive than any covenant or restriction contained in this Agreement or any other Loan Documents. Without limiting the rights and remedies of the Lenders with respect to any breach of the foregoing covenant, any such more restrictive covenant or restriction shall be deemed incorporated herein, mutatis mutandis, and applicable to the Facility. None of the Borrower, Guarantor or the General Partner or any Subsidiary will agree to limits on Liens on the Borrower or General Partner or any Unencumbered Property, except as may otherwise be required pursuant to the terms of this Agreement. Notwithstanding anything to the contrary set forth in this Section 7.2.9, this Section shall not prohibit the restrictions on Liens, assignments and transfers of assets existing on the Closing Date set forth on Item 7.2.9 of the Disclosure Schedule or any agreements governing any purchase money Liens or Capitalized Lease Liabilities otherwise permitted hereby.

Section 7.2.10 Organic Documents. None of the Credit Parties and the Pledged Subsidiaries shall amend, modify or otherwise change any of the terms or provisions in any of its respective Organic Documents as in effect on the Closing Date, except amendments to effect changes that could not be reasonably expected to have Material Adverse Effect; provided, however in no event shall the Organic Documents of General Partner, Borrower and Pledged Subsidiaries be amended in any manner to reduce or otherwise diminish the management rights and powers of the managing member or general partner without the consent of the Administrative Agent.

Section 7.2.11 Reserved.

ARTICLE VIII

EVENTS OF DEFAULT

Section 8.1 Listing of Events of Default. Each of the following events or occurrences described in this Section 8.1 shall constitute an “Event of Default.”

Section 8.1.1 Non-Payment of Obligations. The Borrower shall default in the payment or prepayment of

(a) any principal or interest of any Loan when due; or

(b) any fees described in Article III or of any other amount payable hereunder or under any other Loan Document within five Business Days of the date due.

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Section 8.1.2 Breach of Warranty. Any representation or warranty of the Borrower made or deemed to be made hereunder or in any other Loan Document executed by it or any other writing or certificate furnished by or on behalf of the Borrower to the Lender for the purposes of or in connection with this Agreement or any such other Loan Document (including any certificates delivered pursuant to Article V), is or shall be incorrect, false or misleading when made or deemed to have been made in any material respect.

Section 8.1.3 Non-Performance of Certain Covenants and Obligations. (a)(i) The Borrower shall default in the due performance and observance of any of its obligations under Section 7.1.1(g), (k) or (m), Section 7.1.5, Section 7.1.16(d) or Section 7.1.16(e) hereof or (ii) a default shall occur in the due performance and observance of any obligations under Section 7.1.11 hereof and such default described in clauses (a)(i) and (a)(ii) shall continue unremedied for a period of ten (10) days, or (b) a default shall occur in the due performance and observance of any of (i) its obligations under Section 7.1.1 (f) hereof, (ii) its or a Borrower Group Member’s obligations under Section 7.1.2, Section 7.1.12, Section 7.1.17(a), or Section 7.2 hereof or (iii) its or the Guarantor’s obligations under Section 7.1.12 hereof.

Section 8.1.4 Non-Performance of Other Covenants and Obligations. The Borrower shall default in the due performance and observance of any other agreement contained herein or in any other Loan Document executed by it, and such default shall continue unremedied for a period of thirty (30) days after written notice thereof shall have been given to the Borrower by the Administrative Agent or the Required Lenders; provided, however, that if such default is susceptible of cure but cannot reasonably be cured within such 30 day period and the Borrower shall have commenced to cure such default within such 30 day period and is working in good faith to cure the same, such 30 day period shall be extended for up to an additional thirty (30) days; provided, further that notwithstanding anything in this Section 8.1.4 to the contrary, in the event Borrower is unable, after using good faith and commercially reasonable efforts, to obtain a Tenant Estoppel Certificates from a Major Tenants, such event shall not be considered an Event of Default, however any Unencumbered Real Property occupied by, or Qualified Tenant Note made by, such Major Tenant, rents or payments from which constitute, in the aggregate in any Fiscal Quarter, fifteen percent (15%) or more of the sum of the Gross Asset Values of the Unencumbered Real Properties for such Fiscal Quarter, shall be excluded from the calculation of “Unencumbered Total Value” until such time as a Tenant Estoppel Certificate is obtained.

Section 8.1.5 Default on Other Indebtedness. (a) An event of default shall occur under any Recourse Indebtedness in excess of $35,000,000 (inclusive of accrued interest and fees) of any Borrower Group Member, regardless of whether such event of default is declared or waived, or (b) an event of default shall occur under any Material Indebtedness, regardless of whether such event of default is declared or waived.

Section 8.1.6 Judgments. Any judgment, order, decree or arbitration award for the payment of money in excess of $25,000,000 (to the extent not fully covered by a solvent third party insurance company (less any applicable deductible) and as to which the insurer has not disputed in writing its responsibility to cover such judgment, order, decree or arbitration award) shall be rendered against any Borrower Group Member and the same shall not have been

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satisfied or vacated or discharged or stayed or bonded pending appeal within 60 days after the entry thereof.

Section 8.1.7 ERISA. An ERISA Event shall occur with respect to a Pension Plan or Multiemployer Plan.

Section 8.1.8 Change of Control. Any Change of Control shall occur.

Section 8.1.9 Bankruptcy, Insolvency, etc. Any Credit Party shall or any other Borrower Group Member party to a Material Indebtedness shall or any other Borrower Group Member shall (to the extent the same may be reasonably be expected to have a Material Adverse Effect):

(a) become insolvent or generally fail to pay, or admit in writing its inability or unwillingness generally to pay, debts as they become due;

(b) apply for, consent to, or acquiesce in, the appointment of a trustee, receiver, sequestrator or other custodian for any substantial part of the property of any thereof, or make a general assignment for the benefit of creditors;

(c) in the absence of such application, consent or acquiescence, permit or suffer to exist the appointment of a trustee, receiver, sequestrator or other custodian for a substantial part of the property of any thereof, and such trustee, receiver, sequestrator or other custodian shall not be discharged within 60 days;

(d) permit or suffer to exist the commencement of any bankruptcy, reorganization, debt arrangement or other case or proceeding under any bankruptcy or insolvency law, or any dissolution, winding up or liquidation proceeding, in respect thereof, and, if any such case or proceeding is not commenced by the Borrower or any such Subsidiary, such case or proceeding shall be consented to or acquiesced in by the Borrower or any Subsidiary, as the case may be, or shall result in the entry of an order for relief or shall remain for 60 days undismissed; or

(e) take any corporate action authorizing, or in furtherance of, any of the foregoing.

Section 8.1.10 Impairment of Security, etc. The Pledge Agreement or the Guaranties, in whole or in material part, or any Lien granted under the Pledge Agreement shall (except in accordance with its terms and except as a result of acts or omissions of the Administrative Agent or any Lender) terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of any party thereto; the Credit Parties or any other party shall, directly or indirectly, deny or disaffirm in writing such effectiveness, validity, binding nature or enforceability; or, except as permitted under any Loan Document, any Lien securing any Obligation shall, in whole or in part, cease to be a perfected first priority Lien.

Section 8.1.11 Intentionally Omitted.

Section 8.1.12 Intentionally Omitted.

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Section 8.1.13 REIT Status. Guarantor shall for any reason, whether or not within the control of the Borrower, cease to maintain its status as a REIT, after taking into account, any cure provisions set forth in the Code that are promptly complied with by the Guarantor.

Section 8.1.14 Intentionally Omitted.

Section 8.1.15 Illegal or Invalid. If this Agreement or any other Loan Document (including, without limitation, the Guaranty) shall terminate or shall cease to be effective or shall cease to be a legally valid, binding and enforceable obligation of the Credit Parties, as applicable.

Section 8.2 Action if Bankruptcy. If any Event of Default described in Section 8.1.9 shall occur with respect to the Borrower, the Commitments (if not theretofore terminated) shall automatically terminate and the outstanding principal amount of all outstanding Loans and all other Obligations (including Reimbursement Obligations) shall automatically be and become immediately due and payable, without notice or demand and the Borrower shall automatically and immediately be obligated to deposit with the Administrative Agent cash collateral in an amount equal to all Letter of Credit Outstandings.

Section 8.3 Action if Other Event of Default. If any Event of Default (other than any Event of Default described in Section 8.1.9 with respect to the Borrower) shall occur for any reason, whether voluntary or involuntary, and be continuing, the Administrative Agent, upon the direction or with the consent of the Required Lenders, shall by written notice to the Borrower declare all of the outstanding principal amount of the Loans and other Obligations (including Reimbursement Obligations) to be due and payable and/or the Revolving Loan Commitments (if not theretofore terminated) to be terminated, whereupon the full unpaid amount of the Loans and other Obligations shall be and become immediately due and payable, without further notice, demand or presentment, and the Commitments shall terminate and the Borrower shall automatically and immediately be obligated to deposit with the Administrative Agent cash collateral in an amount equal to all Letter of Credit Outstandings.

Section 8.4 Actions in Respect of Letters of Credit.

(a) If, at any time and from time to time, any Letter of Credit shall have been issued hereunder and an Event of Default shall have occurred and be continuing, then, upon the occurrence and during the continuation thereof, the Administrative Agent, after consultation with the Lenders, may, and upon the demand of the Required Lenders shall, whether in addition to the taking by the Administrative Agent of any of the actions described in this Article or otherwise, make a demand upon the Borrower to, and forthwith upon such demand (but in any event within five (5) days after such demand) the Borrower shall, pay to the Administrative Agent, on behalf of the Lenders, in same day funds at the Administrative Agent’s office designated in such demand, for deposit in a special cash collateral account (the “Letter of Credit Collateral Account”) to be maintained in the name of the Administrative Agent (on behalf of the Lenders) and under its sole dominion and control at such place as shall be designated by the Administrative Agent, an amount equal to the amount of the Letter of Credit Outstandings (taking into account any amounts then on deposit in the Letter of Credit Collateral Account) under the

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Letters of Credit. Interest shall accrue on the Letter of Credit Collateral Account at a rate equal to the rate on overnight funds.

(b) The Borrower hereby pledges, assigns and grants to the Administrative Agent, as administrative agent for its benefit and the ratable benefit of the Lenders a lien on and a security interest in, the following collateral (the “Letter of Credit Collateral”):

(i) the Letter of Credit Collateral Account, all cash deposited therein and all certificates and instruments, if any, from time to time representing or evidencing the Letter of Credit Collateral Account;

(ii) all notes, certificates of deposit and other instruments from time to time hereafter delivered to or otherwise possessed by the Administrative Agent for or on behalf of the Borrower in substitution for or in respect of any or all of the then existing Letter of Credit Collateral;

(iii) all interest, dividends, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of the then existing Letter of Credit Collateral; and

(iv) to the extent not covered by the above clauses, all proceeds of any or all of the foregoing Letter of Credit Collateral.

The lien and security interest granted hereby secures the payment of all obligations of the Borrower now or hereafter existing hereunder and under any other Loan Document.

(c) The Borrower hereby authorizes the Administrative Agent for the ratable benefit of the Lenders to apply, from time to time after funds are deposited in the Letter of Credit Collateral Account, funds then held in the Letter of Credit Collateral Account to the payment of any amounts, in such order as the Administrative Agent may elect, as shall have become due and payable by the Borrower to the Lenders in respect of the Letters of Credit.

(d) Neither the Borrower nor any Person claiming or acting on behalf of or through the Borrower shall have any right to withdraw any of the funds held in the Letter of Credit Collateral Account, except as provided in Section 8.4(h) or Section 2.6.6 hereof.

(e) The Borrower agrees that it will not (i) sell or otherwise dispose of any interest in the Letter of Credit Collateral or (ii) create or permit to exist any lien, security interest or other charge or encumbrance upon or with respect to any of the Letter of Credit Collateral, except for the security interest created by this Section 8.4.

(f) If any Event of Default shall have occurred and be continuing:

(i) The Administrative Agent may, in its sole discretion, without notice to the Borrower except as required by law and at any time from time to time, charge, set off or otherwise apply all or any part of any unpaid Obligations then due and payable, in such order as the Administrative Agent shall elect

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against the Letter of Credit Collateral Account or any part thereof. The rights of the Administrative Agent under this Section 8.4 are in addition to any rights and remedies which any Lender may have.

(ii) The Administrative Agent may also exercise, in its sole discretion, in respect of the Letter of Credit Collateral Account, in addition to the other rights and remedies provided herein or otherwise available to it, all the rights and remedies of a secured party upon default under the Uniform Commercial Code in effect in the State of New York at that time.

(g) The Administrative Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Letter of Credit Collateral if the Letter of Credit Collateral is accorded treatment substantially equal to that which the Administrative Agent accords its own property, it being understood that, assuming such treatment, the Administrative Agent shall not have any responsibility or liability with respect thereto.

(h) At such time as all Events of Default have been cured or waived in writing, all amounts remaining in the Letter of Credit Collateral Account shall be promptly returned to the Borrower. Absent such cure or written waiver, any surplus of the funds held in the Letter of Credit Collateral Account and remaining after payment in full of all of the Obligations (including without limitation all Letter of Credit Outstandings) hereunder and under any other Loan Document after the termination or expiration of all of the Commitments shall be paid to the Borrower or to whomsoever may be lawfully entitled to receive such surplus.

Section 8.5 Allocation of Proceeds. If an Event of Default exists, all payments received by the Administrative Agent 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) amounts due to the Administrative Agent, the Issuer and the Lenders in respect of expenses due under Section 10.3. until paid in full, and then fees due under Section 3.4;

(b) payments of interest on Swingline Loans;

(c) payments of interest on all other Loans and Reimbursement Obligations, to be applied for the ratable benefit of the Lenders and the Issuer;

(d) payments of principal on Swingline Loans;

(e) payments of principal of all other Loans, Reimbursement Obligations and other Letter of Credit Outstandings, to be applied for the ratable benefit of the Lenders and the Issuer; provided, however, to the extent that any amounts available for distribution pursuant to this subsection are attributable to the issued but undrawn amount of an outstanding Letter of Credit, such amounts shall be paid to the Administrative Agent for deposit into the Letter of Credit Collateral Account;

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(f) amounts due to the Administrative Agent and the Lenders pursuant to Sections 9.7;

(g) payments of all other amounts due under any of the Loan Documents, if any, to be applied for the ratable benefit of the Lenders; and

(h) any amount remaining after application as provided above, shall be paid to the Borrower or whomever else may be legally entitled thereto.

ARTICLE IX

THE ADMINISTRATIVE AGENT

Section 9.1 Appointment.

(a) The Lenders hereby irrevocably designate and appoint DBNY as Administrative Agent to act as specified herein and in the other Loan Documents. Each Lender hereby irrevocably authorizes, and each holder of any Note by the acceptance of such Note shall be deemed irrevocably to authorize, the Administrative Agent to take such action on its behalf under the provisions of this Agreement, the other Loan Documents and any other instruments and agreements referred to herein or therein and to exercise such powers and to perform such duties hereunder and thereunder as are specifically delegated to or required of the Administrative Agent by the terms hereof and thereof and such other powers as are reasonably incidental thereto. The Administrative Agent may perform any of its respective duties hereunder or under the other Loan Documents by or through its officers, directors, agents, employees or affiliates.

(b) Each Lender hereby irrevocably appoints the Issuer to act on behalf of such Lenders with respect to any Letters of Credit issued by the Issuer and the documents associated therewith until such time and except for so long as the Administrative Agent may agree at the request of the Required Lenders to act for such Issuer with respect thereto; provided, however, that the Issuer shall have all of the benefits and immunities (i) provided to the Administrative Agent in this Article IX with respect to any acts taken or omissions suffered by the Issuer in connection with Letters of Credit issued by it or proposed to be issued by it pertaining to the Letters of Credit as fully as if the term “Administrative Agent,” as used in this Article IX, included the Issuer with respect to such acts or omissions and (ii) as additionally provided in this Agreement with respect to the Issuer.

Section 9.2 Intentionally Omitted.

Section 9.3 Nature of Duties. The Administrative Agent shall not have any duties or responsibilities except those expressly set forth in this Agreement and in the other Loan Documents. Neither the Administrative Agent nor any of its officers, directors, agents, employees or affiliates shall be liable to any Person for any action taken or omitted by it or them hereunder or under any other Loan Document or in connection herewith or therewith, unless

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caused by its or their gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision). The duties of the Administrative Agent shall be mechanical and administrative in nature; the Administrative Agent shall not have by reason of this Agreement or any other Loan Document a fiduciary relationship in respect of any Lender or the holder of any Note; and nothing in this Agreement or in any other Loan Document, expressed or implied, is intended to or shall be so construed as to impose upon the Administrative Agent any obligations in respect of this Agreement or any other Loan Document except as expressly set forth herein or therein.

Section 9.4 Lack of Reliance on the Administrative Agent. Independently and without reliance upon the Administrative Agent, each Lender and the holder of each Note, to the extent it deems appropriate, has made and shall continue to make (i) its own independent investigation of the financial condition and affairs of the Credit Parties in connection with the making and the continuance of the Credit Extensions and the taking or not taking of any action in connection herewith and (ii) its own appraisal of the creditworthiness of the Credit Parties and, except as expressly provided in this Agreement, the Administrative Agent shall not have any duty or responsibility, either initially or on a continuing basis, to provide any Lender or the holder of any Note with any credit or other information with respect thereto, whether coming into its possession before the making of any Credit Extension or at any time or times thereafter. The Administrative Agent shall not be responsible to any Lender or the holder of any Note for any recitals, statements, information, representations or warranties herein, in any other Loan Document or in any document, certificate or other writing delivered in connection herewith or therewith or for the execution, effectiveness, genuineness, validity, enforceability, perfection, collectibility, priority or sufficiency of this Agreement or any other Loan Document or the financial condition of the Credit Parties or be required to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement or any other Loan Document, or the financial condition of the Credit Parties or the existence or possible existence of any Default or Event of Default.

Section 9.5 Certain Rights of the Administrative Agent. If the Administrative Agent requests instructions from the Required Lenders with respect to any act or action (including failure to act) in connection with this Agreement or any other Loan Document, the Administrative Agent shall be entitled to refrain from such act or taking such action unless and until the Administrative Agent shall have received written instructions from the Required Lenders; and the Administrative Agent shall not incur liability to any Lender by reason of so refraining. Without limiting the foregoing, neither any Lender nor the holder of any Note shall have any right of action whatsoever against the Administrative Agent as a result of the Administrative Agent acting or refraining from acting hereunder or under any other Loan Document in accordance with the instructions of the Required Lenders, or such greater number of Lenders as may be expressly required under Section 10.1.

Section 9.6 Reliance. The Administrative Agent shall be entitled to rely, and shall be fully protected in relying, upon any note, writing, resolution, notice, statement, certificate, telex, teletype or telecopier message, cablegram, radiogram, order or other document or telephone message signed, sent or made by any Person that the Administrative Agent believed to be the proper Person, and, with respect to all legal matters pertaining to this Agreement and

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any other Loan Document and its duties hereunder and thereunder, upon advice of counsel selected by the Administrative Agent.

Section 9.7 Indemnification. To the extent the Administrative Agent (or any affiliate thereof) is not reimbursed and indemnified by the Borrower on behalf of the Subsidiary Guarantors, the Lenders will reimburse and indemnify the Administrative Agent (and any affiliate thereof) in proportion to their respective “percentage” as used in determining the Required Lenders for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature which may be imposed on, asserted against or incurred by the Administrative Agent (or any affiliate thereof) in performing its duties hereunder or under any other Loan Document or in any way relating to or arising out of this Agreement or any other Loan Document; provided that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, claims, actions, judgments, suits, costs, expenses or disbursements (i) resulting from the Administrative Agent’s (or such affiliate’s) gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision) or (ii) solely from a disputes among Persons to be indemnified (as determined by a court of competent jurisdiction in a final and non-appealable judgment).

Section 9.8 The Administrative Agent in its Individual Capacity. With respect to its obligation to make Loans, or issue or participate in Letters of Credit, under this Agreement, the Administrative Agent shall have the rights and powers specified herein for a “Lender” and may exercise the same rights and powers as though it were not performing the duties specified herein; and the terms “Lender,” “Required Lenders,” or any similar terms shall, unless the context clearly indicates otherwise, include the Administrative Agent in its respective individual capacities. The Administrative Agent and its affiliates may accept deposits from, lend money to, and generally engage in any kind of banking, investment banking, trust or other business with, or provide debt financing, equity capital or other services (including financial advisory services) to any member of the Consolidated Group or any Affiliate of any member of the Consolidated Group (or any Person engaged in a similar business with any member of the Consolidated Group or any Affiliate thereof) as if they were not performing the duties specified herein, and may accept fees and other consideration from any member of the Consolidated Group or any Affiliate of any member of the Consolidated Group for services in connection with this Agreement and otherwise without having to account for the same to the Lenders.

Section 9.9 Holders. The Administrative Agent may deem and treat the payee of any Note as the owner thereof for all purposes hereof unless and until a written notice of the assignment, transfer or endorsement thereof, as the case may be, shall have been filed with the Administrative Agent. Any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is the holder of any Note shall be conclusive and binding on any subsequent holder, transferee, assignee or endorsee, as the case may be, of such Note or of any Note or Notes issued in exchange therefor.

Section 9.10 Resignation by the Administrative Agent.

(a) The Administrative Agent may resign from the performance of all its respective functions and duties hereunder and/or under the other Loan Documents at any

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time by giving thirty (30) days prior written notice to the Lenders and, unless an Event of Default then exists with respect to the Borrower, the Borrower. Any such resignation by the Administrative Agent hereunder shall also constitute its resignation as the Issuer, in which case the resigning Administrative Agent (x) shall not be required to issue any further Letters of Credit and (y) shall maintain all of its rights as the Issuer with respect to any Letters of Credit issued by it prior to the date of such resignation. Such resignation shall take effect upon the appointment of a successor Administrative Agent pursuant to clauses (b) and (c) below in this Section 9.10 or as otherwise provided below in this Section 9.10.

(b) Upon any such notice of resignation by the Administrative Agent, the Required Lenders shall appoint a successor Administrative Agent and Issuer hereunder and who shall be either an Affiliate of the Administrative Agent or a commercial bank or trust company reasonably acceptable to the Borrower, which acceptance shall not be unreasonably withheld or delayed (provided that the Borrower’s approval or acceptance shall not be required if an Event of Default then exists).

(c) If a successor Administrative Agent shall not have been so appointed within such 30 day period, the Administrative Agent, with the consent of the Borrower (which consent shall not be unreasonably withheld or delayed, provided that the Borrower’s consent shall not be required if an Event of Default then exists), shall then appoint a successor Administrative Agent who shall serve as Administrative Agent and Issuer hereunder and until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided above.

(d) If no successor Administrative Agent has been appointed pursuant to clause (b) or (c) above in this Section 9.10 by the 35th Business Day after the date such notice of resignation was given by the Administrative Agent, the Administrative Agent’s resignation shall become effective and the Required Lenders shall thereafter perform all the duties of the Administrative Agent hereunder and/or under any other Loan Document until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided above.

(e) Upon a resignation of the Administrative Agent pursuant to this Section 9.10, the Administrative Agent shall remain indemnified to the extent provided in this Agreement and the other Loan Documents and the provisions of this Article IX shall continue in effect for the benefit of the Administrative Agent for all of its actions and inactions while serving as the Administrative Agent.

ARTICLE X

MISCELLANEOUS PROVISIONS

Section 10.1 Waivers, Amendments, etc.

(a) Neither this Agreement nor any other Loan Document nor any terms hereof or thereof may be changed, waived, discharged or terminated unless such change,

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waiver, discharge or termination is in writing signed by the respective parties thereto and the Required Lenders, provided that no such change, waiver, discharge or termination shall, without the consent of the Administrative Agent and each Lender with Obligations being directly and adversely affected thereby, (i) extend the final scheduled maturity of any Loan or Note (other than pursuant to Section 3.1(b) hereof) or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash), or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor or the General Partner from the Guaranty, (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, except, in each case, as provided in Section 7.1.7 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement, or (vii) amend any provision of this Agreement which provides for pro-rata contributions by or pro-rata payment to such affected Lender; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitment Amounts of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment Amount of any Lender, that an increase in the available portion of any Revolving Loan Commitment Amount of any Lender shall not constitute an increase of the Revolving Loan Commitment Amount of such Lender, and that any payments made pursuant to Sections 2.6 and 2.9 shall not constitute an increase of the Revolving Loan Commitment Amount of such Lender), or (B) without the consent of the Issuer, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, 2.6, or alter its rights or obligations with respect to Letters of Credit.

(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the Borrower shall not have the right to replace a

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Lender solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) pursuant to the second proviso to Section 10.1(a).

(c) No failure or delay on the part of the Administrative Agent, the Issuer or any Lender in exercising any power, privilege or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege or right preclude any other or further exercise thereof or the exercise of any other power, privilege or right. No notice to or demand on the Borrower in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.

Section 10.2 Notices. All notices and other communications provided to any party hereto under this Agreement or under any other Loan Document shall be in writing, or by facsimile or by e-mail of a PDF copy and addressed, delivered or transmitted to such party at its address, facsimile number or e-mail set forth below its signature hereto, in the case of the Borrower or the Administrative Agent, or set forth below its name in Annex I hereto or in a Lender Assignment Agreement, in the case of any Lender (including in its separate capacity as the Issuer), or at such other address, facsimile number or e-mail as may be designated by such party in a notice to the other parties. Any notice, if mailed and properly addressed with postage prepaid or if properly addressed and sent by pre-paid courier service, shall be deemed given when received; any notice, if transmitted by facsimile, shall be deemed given when the confirmation of transmission thereof is received by the transmitter; and any notice, if sent by e-mail, shall be deemed given on the date of such e-mail if sent before 5.00 pm New York Time on a Business Day (or if sent after 5:00 pm, on the next Business Day).

Section 10.3 Payment of Costs and Expenses; Indemnification. The Borrower hereby agrees to: (i) (a) whether or not the transactions herein contemplated are consummated, pay all reasonable out-of-pocket costs and expenses of the Administrative Agent, and the Arranger (including, without limitation, the reasonable fees and disbursements of Skadden, Arps, Slate, Meagher & Flom LLP and the Administrative Agent’s, and the Arranger’s other counsel and consultants) in connection with the preparation, execution and delivery of this Agreement and the other Loan Documents and the documents and instruments referred to herein and therein (including filing fees for any financing statements filed in connection with the transactions contemplated in this Agreement) and any amendment, waiver or consent relating hereto or thereto, of the Administrative Agent, and the Arranger in connection with its syndication efforts and administrative functions with respect to this Agreement and of the Administrative Agent and, after the occurrence of an Event of Default, each of the Lenders and the Issuer in connection with the enforcement of this Agreement and the other Loan Documents and the documents and instruments referred to herein and therein or in connection with any refinancing (including, in each case without limitation, the reasonable fees and disbursements of counsel and consultants

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for the Administrative Agent, and the Arranger, and, after the occurrence of an Event of Default, counsel for each of the Lenders and the Issuer), and (b) pay all costs and expenses of the Administrative Agent, the Issuer and Lenders in connection with restructuring of the credit arrangements provided under this Agreement in the nature of a “work-out” or pursuant to any insolvency or bankruptcy proceedings (including, in each case without limitation, the fees and disbursements of counsel and consultants for the Administrative Agent and each of the Lenders and the Issuer); and (ii) without duplication of any amounts payable pursuant to Section 4.6, pay and hold the Administrative Agent, each of the Lenders and the Issuer harmless from and against any and all Other Taxes with respect to the foregoing matters and save the Administrative Agent, each of the Lenders and the Issuer harmless from and against any and all liabilities with respect to or resulting from any delay or omission (other than to the extent attributable to the Administrative Agent, each of the Lenders and the Issuer) to pay such Other Taxes; and (iii) indemnify the Administrative Agent, the Arranger, each Lender, the Issuer, their respective Affiliates, and each of their and their respective Affiliates officers, directors, employees, representatives, agents, trustees and investment advisors from and hold each of them harmless against any and all liabilities, obligations (including removal or remedial actions), losses, damages, penalties, claims, actions, judgments, suits, costs, expenses and disbursements (including reasonable attorneys’ and consultants’ fees and disbursements) incurred by, imposed on or assessed against any of them as a result of, or arising out of, or in any way related to, (a) entering into and/or performance of this Agreement or any other Loan Document or the use of any Letter of Credit or the proceeds of any Loans hereunder or the consummation of the Transaction or any other transactions contemplated herein or in any other Loan Document or the exercise of any of their rights or remedies provided herein or in the other Loan Documents, or (b) the actual or alleged presence of Hazardous Materials in the air, surface water or groundwater or on the surface or subsurface of any real property at any time owned, leased or operated by the Borrower or any of its Affiliates, the generation, storage, transportation, handling or disposal of Hazardous Materials by the Borrower or any of its Affiliates at any location, whether or not owned, leased or operated by the Borrower or any of its Affiliates, the non-compliance by the Borrower or any of its Affiliates with any Environmental Law (including applicable permits thereunder) applicable to any real property, or any Environmental Claim asserted against the Borrower, any of its Affiliates or any real property at any time owned, leased or operated by the Borrower or any of its Affiliates, including, in each case, without limitation, the reasonable fees and disbursements of counsel and other consultants incurred in connection therewith (but excluding any portion of any such losses, liabilities, claims, damages or expenses to the extent incurred (i) by reason of the gross negligence, willful misconduct or bad faith of the Person to be indemnified (as determined by a court of competent jurisdiction in a final and non-appealable judgment) or (ii) solely from a dispute among Persons to be indemnified (as determined by a court of competent jurisdiction in a final and non-appealable judgment)). To the extent that the undertaking to indemnify, pay or hold harmless the Administrative Agent, the Arranger, any Lenders or the Issuer set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, the Borrower shall make the maximum contribution to the payment and satisfaction of each of the indemnified liabilities which is permissible under applicable law.

Section 10.4 Survival and Recourse Nature of Obligations. The obligations of the Borrower under Sections 4.3, 4.4, 4.5, 4.6 and 10.3, and the obligations of the Lenders under Section 9.7 and Section 10.9.2, shall in each case survive any assignment from one Lender to

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another (in the case of Section 10.3 or Section 10.9.2) and any termination of this Agreement, the payment in full of all the Obligations and the termination of all the Loan Commitments. In addition, all provisions herein and in any other Loan Document (other than Section 3.3.3 hereof) relating to outstanding Letters of Credit and Excess Cash Collateral shall survive termination of this Agreement until all outstanding Letters of Credit have been drawn in full or terminated and all Excess Cash Collateral has been returned to the Borrower if required pursuant to Section 2.6.6 or Section 8.4. The representations and warranties made by the Credit Parties, in this Agreement and in each other Loan Document shall survive the execution and delivery of this Agreement and each such other Loan Document. Borrower, pursuant to this Agreement, and the other Credit Parties pursuant to the Guaranty and the Subsidiary Guaranty, as applicable, agrees that they shall be personally, and jointly and severally liable (whether by suit, deficiency judgment or otherwise) and there shall be full recourse to each Credit Party, for the full payment and performance of the Obligations. It is understood and agreed that each Credit Party shall remain liable with respect to their Obligations to the extent of any deficiency between the amount of the proceeds of the Collateral pledged to Lender under the Pledge Agreement and the aggregate amount of such Obligations.

Section 10.5 Headings. The various headings of this Agreement and of each other Loan Document are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement or such other Loan Document or any provisions hereof or thereof.

Section 10.6 Execution in Counterparts, Effectiveness, etc. This Agreement may be executed by the parties hereto in several counterparts, each of which shall be an original and all of which shall constitute together but one and the same agreement. This Agreement shall become effective when counterparts hereof executed on behalf of the Borrower, the Administrative Agent and each of the Lenders (or notice thereof satisfactory to the Administrative Agent) shall have been received by the Administrative Agent and notice thereof shall have been given by the Administrative Agent to the Borrower and each Lender.

Section 10.7 Governing Law; Entire Agreement. THIS AGREEMENT (INCLUDING PROVISIONS WITH RESPECT TO INTEREST, LOAN CHARGES AND COMMITMENT FEES) SHALL EACH BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAW OF THE STATE OF NEW YORK (INCLUDING FOR SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK). This Agreement, the Notes and the other Loan Documents constitute the entire understanding among the parties hereto with respect to the subject matter hereof and thereof and supersede any prior agreements, written or oral, with respect thereto.

Section 10.8 Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns; provided, however, that:

(a) the Borrower may not assign or transfer its rights or obligations hereunder or under any of the other Loan Documents without the prior written consent of the Administrative Agent and all of the Lenders; and

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(b) the rights of sale, assignment and transfer of the Lenders are subject to Section 10.9.

Section 10.9 Sale and Transfer of Loans and Notes; Participations in Loans and Notes. Lender may assign, or sell participations in, its Loans, Letters of Credit Outstandings and Commitments to one or more other Persons in accordance with this Section 10.9.

Section 10.9.1 Assignments.

(a) Any Lender may at any time assign and delegate to one or more Eligible Assignees with the consent of the Borrower, the Administrative Agent and the Issuer (which consents of the Borrower and the Issuer shall not be required (w) if the Eligible Assignee is a Lender or an Affiliate of a Lender, or (x) in the case of the Borrower, if a Default or Event of Default has occurred and is continuing, and each of which consents shall not be unreasonably withheld or delayed if such consents are in fact required), all or any fraction of such Lender’s total Loans, Letter of Credit Outstandings and Commitments; provided, however, that (y) the assigning Lender must assign a pro rata portion of each of its Loan Commitments, Loans and interest in Letters of Credit Outstandings and (z) no Lender may assign a Commitment of less than $5,000,000 (unless the entirety of such Lender’s Commitment is less than $5,000,000). The Borrower and the Administrative Agent shall be entitled to continue to deal solely and directly with such Lender in connection with the interests so assigned and delegated to an Eligible Assignee until:

(i) notice of such assignment and delegation, together with (A) payment instructions, (B) the Internal Revenue Service Forms or other statements contemplated or required to be delivered pursuant to Section 4.6, if applicable, (C) addresses and related information with respect to such Eligible Assignee, shall have been delivered to the Borrower and the Administrative Agent by such Lender and such Eligible Assignee and (D) the Administrative Agent has made the appropriate entries in the Register;

(ii) such Eligible Assignee shall have executed and delivered to the Borrower and the Administrative Agent a Lender Assignment Agreement, accepted by the Administrative Agent; and

(iii) the processing fees described below shall have been paid.

From and after the date that the Administrative Agent accepts such Lender Assignment Agreement, (x) the Eligible Assignee thereunder shall be deemed automatically to have become a party hereto and to the extent that rights and obligations hereunder have been assigned and delegated to such Eligible Assignee in connection with the Lender Assignment Agreement, shall have the rights and obligations of assignor Lender hereunder and under the other Loan Documents, and (y) the assignor Lender, to the extent that rights and obligations hereunder have been assigned and delegated by it in connection with the Lender Assignment Agreement, shall be released from its obligations hereunder and under the other Loan Documents. Accrued interest on that part of the Loans assigned, if any, and accrued fees, shall be paid as provided in the

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Lender Assignment Agreement. Accrued interest and accrued fees shall be paid at the same time or times provided in this Agreement. Unless such Eligible Assignee is an Affiliate of the assignor Lender, such assignor Lender or such Eligible Assignee must also pay a processing fee in the amount of $3,500 to the Administrative Agent upon delivery of any Lender Assignment Agreement, which fee may be waived by the Administrative Agent at its sole discretion. Any attempted assignment and delegation not made in accordance with this Section 10.9.1 shall be null and void.

(b) Nothing in this Agreement shall prevent or prohibit Lender from pledging its Loans and Notes hereunder to a Federal Reserve Bank (or the United States Treasury as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve System) in support of borrowings made by Lender from such Federal Reserve Bank or the United States Treasury and, with prior notification to the Administrative Agent (but without the consent of the Administrative Agent or the Borrower), any Lender which is a fund may pledge all or any portion of its Loans and Notes to its trustee or to a collateral agent (which may be a Pfandbrief) providing credit or credit support to Lender in support of its obligations to such trustee, such collateral agent or a holder of such obligations, as the case may be, with prior notification to the Administrative Agent (but without the consent of the Administrative Agent or the Borrower). No pledge pursuant to this clause (b) shall release the transferor Lender from any of its obligations hereunder. In connection with any assignment, pledge or transfer of a Lender’s interest in the Loan to a Pfandbrief, such Lender, at its own expense, may order an appraisal, and Administrative Agent will reasonably cooperate, at such Lender’s expense, in coordinating the same with Borrower to the extent necessary to obtain such appraisal.

(c) The Administrative Agent, on behalf of the Borrower, shall maintain at the address of the Administrative Agent specified below its signature hereto (or at such other address as may be designated by the Administrative Agent from time to time in accordance with Section 10.2) a copy of each Lender Assignment Agreement delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of and principal amount of the Loans owing to each Lender from time to time. The entries in the Register shall be conclusive and binding, in the absence of clearly demonstrable error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of a Loan or other obligation hereunder as the owner thereof for all purposes of this Agreement and the other Loan Documents, notwithstanding any notice to the contrary. Any assignment of any Loan or other obligation hereunder shall be effective only upon appropriate entries with respect thereto being made in the Register. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.

Section 10.9.2 Participations. Any Lender may at any time sell to one or more commercial lenders, financial institutions or other Persons (each of such commercial lenders, financial institutions or other Persons being herein called a “Participant”) participating interests in any of the Loans, Letter of Credit Outstandings, Commitments, or other interests of such Lender hereunder (including loan derivatives and similar swap arrangements based on such Lender’s interests hereunder); provided, however, that

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(a) no participation contemplated in this Section 10.9.2 shall relieve Lender from its Commitments or its other obligations hereunder or under any other Loan Document;

(b) Lender shall remain solely responsible for the performance of its Commitments and such other obligations;

(c) the Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and under each of the other Loan Documents;

(d) no Lender may assign a participation of less than $5,000,000 (unless the entirety of such Lender’s Commitment is less than $5,000,000);

(e) no Lender may sell a participation to a natural Person, Borrower, or an Affiliate of Borrower; and

(f) the Borrower shall not be required to pay any amount under this Agreement that is greater than the amount which it would have been required to pay had no participating interest been sold.

In the case of any such participation, the Participant shall not have any rights under this Agreement or any of the other Loan Documents (the Participant’s rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the Participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined and paid as if such Lender had not sold such participation. Any Lender that sells a participating interest in any Loan, Revolving Loan Commitment or other interest to a Participant under this Section 10.9.2, shall indemnify and hold harmless the Borrower and the Administrative Agent from and against any Taxes or other costs or losses (including reasonable attorneys’ fees and expenses) incurred or payable by the Borrower or the Administrative Agent as a result of the failure of the Borrower or the Administrative Agent to comply with its obligations to deduct or withhold any Taxes from any payments made pursuant to this Agreement to such Lender or the Administrative Agent, as the case may be, which Taxes would not have been incurred or payable if such Participant had delivered a valid United States Internal Revenue Service Form W-9 (or successor form) to the Borrower or if such Participant had been a Non-U.S. Lender that was entitled to deliver to the Borrower, the Administrative Agent or such Lender, and had delivered, a duly completed and valid United States Internal Revenue Service Form W-8ECI, Form W-8IMY or W-8BEN (or applicable successor form) entitling such Participant to receive payments under this Agreement without or at a reduced rate of deduction or withholding of any United States federal Taxes.

Section 10.9.3 Participant Register. 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

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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 Treasury Regulations Section 5f.103-1(c). 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.

Section 10.10 No Fiduciary Duties. The obligations of the Lenders shall be those of lenders only and Lenders shall not have by reason of this Agreement or any other Loan Document a fiduciary relationship in respect of any other Lender or the holder of any Note or any Borrower Group Member; and nothing in this Agreement or in any other Loan Document, expressed or implied, is intended to or shall be so construed as to impose upon any Lender any obligations in respect of this Agreement or any other Loan Document except as expressly set forth herein or therein. The Lead Arranger, the Book Running Manager, the Co-Syndication Agents, the Senior Managing Agents and the Co-Documentation Agents (each a “Titled Agent”) in each such respective capacity, assume 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 Credit 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 10.11 Confidentiality. Administrative Agent, Issuer and each Lender agrees to maintain, in accordance with its customary procedures for handling confidential information, the confidentiality of all information provided to it by or on behalf of the Borrower Group Members or by the Administrative Agent on the Borrower Group Members’ behalf, under this Agreement or any other Loan Document (“Confidential Information”), and neither it nor any of its Affiliates shall use any such information other than in connection with or in enforcement of this Agreement and the other Loan Documents or in connection with other business now or hereafter existing or contemplated with the Borrower Group Members, except to the extent such information (i) was or becomes generally available to the public other than as a result of disclosure by the Administrative Agent, Issuer or the Lender or (ii) was or becomes available on a non-confidential basis from a source other than the Borrower, provided that such source is not bound by a confidentiality agreement with the Borrower Group Members known to the Lender; provided, however, that Lender may disclose such information (A) at the request or pursuant to any requirement of any Governmental Authority to which the Lender is subject or in connection with an examination of such Lender by any such Governmental Authority; (B) pursuant to subpoena or other court process; (C) when required to do so in accordance with the provisions of any applicable Requirement of Law; (D) to the extent reasonably required in connection with any litigation or proceeding to which the Administrative Agent, any Lender or their respective Affiliates may be party; (E) to the extent reasonably required in connection with the exercise of any remedy hereunder or under any other Loan Document; (F) to such Lender’s independent auditors, other professional advisors or agents (including rating agencies, credit insurers and the

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CUSIP Bureau) who have been advised that such information is confidential pursuant to this Section 10.11; (G) to any Participant or Eligible Assignee in respect of such Lender’s rights and obligations hereunder, actual or potential, provided that such Person shall have agreed in writing to keep such information confidential to the same extent required of the Lenders hereunder with the Borrower being a third party beneficiary of such agreement; (H) to its Affiliates and to its Affiliates’ respective partners, directors, officers, employees, agents, advisors and other representatives who have been advised that such information is confidential pursuant to this Section 10.11; or (I) to any direct or indirect contractual counterparty to swap agreements or such contractual counterparty’s professional advisor, provided that such Person shall have agreed in writing to keep such information confidential to the same extent required of the Lenders hereunder with the Borrower being a third party beneficiary of such agreement. Unless prohibited by applicable law or court order, each Lender and the Administrative Agent shall notify the Borrower of any request by any Governmental Authority (other than any request in connection with an examination of the financial condition of such Lender) for disclosure of Confidential Information prior to such disclosure; provided further, that in no event shall the Administrative Agent or any Lender be obligated to return any materials furnished by the Borrower Group Members. This Section shall supersede any confidentiality letter or agreement with respect to the Borrower Group Members or the Transaction entered into prior to the date hereof.

Section 10.12 Tax Advice. None of the Borrower, the Lenders or the Administrative Agent provides accounting, tax or legal advice. Notwithstanding anything provided herein, and any express or implied claims of exclusivity or proprietary rights, the Borrower, each Lender and the Administrative Agent hereby agree and acknowledge that the Borrower, each Lender and Administrative Agent (and each of their employees, representatives or other agents) are authorized to disclose to any and all Persons, beginning immediately upon commencement of their discussions and without limitation of any kind, the tax treatment and tax structure of the transactions contemplated by this Agreement, and all materials of any kind (including opinions or other tax analyses) that are provided by the Borrower, any Lender or the Administrative Agent to the other relating to such tax treatment and tax structure except to the extent that such disclosure is subject to restrictions reasonably necessary to comply with securities laws. In this regard, the Borrower, each Lender and the Administrative Agent acknowledge and agree that disclosure of the tax treatment and tax structure of the transactions contemplated by this Agreement has not been and is not limited in any way by an express or implied understanding or agreement, whether oral or written, and whether or not such understanding or agreement is legally binding, except to the extent that such disclosure is subject to restrictions reasonably necessary to comply with securities laws. For purposes of this authorization, “tax treatment” means the purported or claimed U.S. federal income tax treatment of the transaction, and “tax structure” means any fact that may be relevant to understanding the purported or claimed U.S. federal income tax treatment of the transaction. This Section 10.12 is intended to reflect the understanding of the Borrower, any Lender or the Administrative Agent that no transaction contemplated by this Agreement has been offered under “Conditions of Confidentiality” as that phrase is used in Treasury Regulations Sections 1.6011-4(b)(3)(i) and 301.6111-2(c)(i), and shall be interpreted in a manner consistent therewith. Nothing herein is intended to imply that any of the Borrower, each Lender and the Administrative Agent has made or provided to, or for the benefit of, the other any oral or written statement as to any potential tax

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consequences that are related to, or may result from, the transactions contemplated by this Agreement.

Section 10.13 Forum Selection and Consent to Jurisdiction. ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE AGENT, THE LENDERS, THE ISSUER OR THE BORROWER IN CONNECTION HEREWITH OR THEREWITH SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE COUNTY OF NEW YORK OF THE STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE ADMINISTRATIVE AGENT’S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE PERSONAL JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE COUNTY OF NEW YORK OF THE STATE OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION, SUBJECT TO THE BORROWER’S RIGHT TO CONTEST SUCH JUDGMENT BY MOTION OR APPEAL ON ANY GROUNDS NOT EXPRESSLY WAIVED IN THIS SECTION 10.13. THE BORROWER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK AT THE ADDRESS FOR NOTICES SPECIFIED IN SECTION 10.2. EACH OF THE BORROWER, ADMINISTRATIVE AGENT, LENDER AND ISSUER HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT THE BORROWER HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, THE BORROWER HEREBY IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.

Section 10.14 Waiver of Jury Trial. THE ADMINISTRATIVE AGENT, THE LENDERS, THE ISSUER AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE TO THE FULLEST EXTENT PERMITTED BY LAW ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER,

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OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE AGENT, THE LENDERS, THE ISSUER OR THE BORROWER IN CONNECTION HEREWITH OR THEREWITH. THE BORROWER ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENTS, THE LENDERS, AND THE ISSUER ENTERING INTO THIS AGREEMENT AND EACH SUCH OTHER LOAN DOCUMENT.

*        *        *

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized as of the day and year first above written.

SPIRIT REALTY, L.P., a Delaware limited partnership
By:
	Name:
	Title:
Address:
Facsimile No.:
Telephone No.:
Attention:

DEUTSCHE BANK AG NEW YORK BRANCH
By:
	Name:
	Title:
By:
	Name:
	Title:

DEUTSCHE BANK AG NEW YORK BRANCH ADDRESS

Address:	60 Wall Street
	New York, New York 10005
Facsimile:	(212) 797-4496 (J. Rollison)
	(212) 797-4496 (G. Reynolds)
	(212) 797-4496 (C. King)
	(212) 797-4885 (A. DePass)
Telephone:	(212) 250-3352 (J. Rollison)
	(212) 250-2362 (G. Reynolds)
	(212) 250-5341 (C. King)
	(212) 250-4125 (A. DePass)
E-mail:	james.rolison@db.com
	George.r.reynolds@db.com
	Candice.king@db.com
	Angella.depass@db.com
Attention:	James Rolison
	George Reynolds
	Candice King
	Angella DePass
With a copy to:
Deutsche Bank Securities Inc. Crescent Court Suite 550
Dallas, Texas 75201
Facsimile No.:	(214) 740-7910
Telephone No.:	(214) 740-7900
E-mail:	Linda.davis@db.com
	Charlotte.deinhart@db.com
Attention:	Linda Davis
	Charlotte Deinhart

LENDERS:
DEUTSCHE BANK AG, NEW YORK BRANCH
BY:
	NAME:
	TITLE:
BY:
	NAME:
	TITLE:

BARCLAYS BANK
BY:
	NAME:
	TITLE:
BY:
	NAME:
	TITLE:

[ADDITIONAL LENDERS]
BY:
	NAME:
	TITLE:

EX-10.2

Exhibit 10.2

GUARANTY

THIS GUARANTY, dated as of July 17, 2013 (as amended, modified, or supplemented from time to time, this “Guaranty”), is made by the undersigned (each a, “Guarantor” and together with any other entity that becomes a party hereto pursuant to Section 23 hereof, collectively, the “Guarantors”) to and for the benefit of the “Credit Parties” (as defined herein). Except as otherwise defined herein, terms used herein and defined in the Credit Agreement (as defined below) shall be used herein as therein defined.

W I T N E S S E T H:

WHEREAS, Spirit Realty, L.P. (“Borrower”), various financial institutions as are or may become parties thereto (“Lenders”), as Lenders, and Deutsche Bank AG New York Branch, as administrative agent (“Administrative Agent”), and together with the Issuer, the Lenders and their subsequent successors and assigns (the “Credit Parties”) have entered into a Credit Agreement, dated as of July 17, 2013 (as amended, modified, or supplemented from time to time, the “Credit Agreement”);

WHEREAS, each Guarantor is a parent of Borrower;

WHEREAS, it is a condition to the extensions of credit under the Credit Agreement that each Guarantor shall have executed and delivered this Guaranty; and

WHEREAS, each Guarantor will obtain material direct and indirect benefits from the extensions of credit to Borrower under the Credit Agreement and, accordingly, desires to execute this Guaranty in order to satisfy the conditions described in the preceding paragraph;

NOW, THEREFORE, in consideration of the foregoing and other benefits accruing to each Guarantor, the receipt and sufficiency of which are hereby acknowledged, each Guarantor hereby makes the following representations and warranties to the Credit Parties and hereby covenants and agrees with each Credit Party as follows:

1. Each Guarantor hereby absolutely irrevocably and unconditionally, and jointly and severally, guarantees:

(a) to the Credit Parties the full, prompt and unconditional payment when due (whether at the stated maturity, by acceleration or otherwise) of (i) the principal of and interest on the Notes issued to, the Loans made to (including any Loans made pursuant to an Additional Revolving Loan Commitment), and the issued Letters of Credit for the account of, Borrower under the Credit Agreement; provided that, with respect to the issued Letters of Credit, expired, terminated, cash collateralized, backstopped by an entity acceptable to Administrative Agent in its reasonable discretion or issued Letters of

Credit that are converted into letters of credit deemed issued under other credit facilities in a manner satisfactory to the Administrative Agent shall be excluded and (ii) all other obligations (including obligations which, but for any automatic stay under Section 362(a) of Title 11 of the United States Code, entitled “Bankruptcy”, as amended from time to time and any successor statute or statutes (the “Bankruptcy Code”), would become due) and liabilities owing by Borrower to the Credit Parties under the Credit Agreement and the Loan Documents referred to therein (including, without limitation, indemnities, fees, and interest thereon) now existing or hereafter incurred under, arising out of or in connection with the Credit Agreement or any other Loan Document, and the due performance and compliance with the terms of the Loan Documents (all such principal, interest, liabilities, and obligations, the “Guaranteed Obligations”).

This Guaranty shall constitute a guaranty of payment, and not of collection and upon any failure of Borrower to pay the Guaranteed Obligations, the Credit Parties may, at their option, proceed directly and at once, without notice, against any Guarantor to collect and recover the full amount of the liability to pay the Guaranteed Obligations hereunder or any portion thereof, without proceeding against Borrower or any other Person, or foreclosing upon, selling, or otherwise disposing of or collecting or applying against any of the collateral for the Loans.

2. Additionally, each Guarantor, jointly and severally, unconditionally and irrevocably, guarantees the payment of any and all Guaranteed Obligations whether or not due or payable by Borrower upon the occurrence in respect of Borrower of any of the events specified in Section 8.1.9 of the Credit Agreement, and unconditionally and irrevocably, jointly and severally, promises to pay such Guaranteed Obligations to the Credit Parties, on demand, in lawful money of the United States.

3. The liability of each Guarantor hereunder is exclusive and independent of any security for or other guaranty of the indebtedness of Borrower whether executed by such Guarantor, any other Guarantor, Borrower, or by any other party, and the liability of each Guarantor hereunder shall not be affected or impaired by (a) any direction as to application of payment by Borrower or by any other party, (b) any other continuing or other guaranty, undertaking or maximum liability of a guarantor or of any other party as to the indebtedness of Borrower, (c) any payment on or in reduction of any such other guaranty or undertaking, (d) any dissolution, termination, or increase, decrease, or change in personnel by Borrower, or (e) any payment made to any Credit Party on the indebtedness which any Credit Party repays to Borrower pursuant to court order in any bankruptcy, reorganization, arrangement, moratorium, or other debtor relief proceeding, and each Guarantor waives any right to the deferral or modification of its obligations hereunder by reason of any such proceeding.

4. The obligations of each Guarantor hereunder are independent of the obligations of any other Guarantor or Borrower, and a separate action or actions may be brought and

2

prosecuted against each Guarantor whether or not action is brought against any other Guarantor or Borrower and whether or not any other Guarantor or Borrower be joined in any such action or actions.

5. Each Guarantor hereby waives notice of acceptance of this Guaranty and notice of any liability to which it may apply, and waives notices of the existence, creation, or incurring of additional Indebtedness, promptness, diligence, presentment, demand for performance, notice of non-performance, demand of payment, notice of intention to accelerate, notice of acceleration, protest, notice of dishonor or nonpayment of any such liabilities, suit or taking of other action by Administrative Agent or any other Credit Party against, and any other notice to, any party liable thereon (including such Guarantor or any other guarantor of Borrower).

6. Any Credit Party may at any time and from time to time without the consent of, or notice to, any Guarantor, without incurring responsibility to such Guarantor, without impairing or releasing the obligations of such Guarantor hereunder, upon or without any terms or conditions and in whole or in part:

(a) change the manner, place, or terms of payment of, and/or change or extend the time of payment of, renew, or alter, any of the Guaranteed Obligations, any security therefor, or any liability incurred directly or indirectly in respect thereof, and the guaranty herein made shall apply to the Guaranteed Obligations as so changed, extended, renewed, or altered;

(b) sell, exchange, release, surrender, realize upon, or otherwise deal with in any manner and in any order any property by whomsoever at any time pledged or mortgaged to secure, or howsoever securing, the Guaranteed Obligations or any liabilities (including any of those hereunder) incurred directly or indirectly in respect thereof or hereof, and/or any offset there against;

(c) exercise or refrain from exercising any rights against Borrower, any other guarantor, or others or otherwise act or refrain from acting;

(d) settle or compromise any of the Guaranteed Obligations, any security therefor or any liability (including any of those hereunder) incurred directly or indirectly in respect thereof or hereof, and may subordinate the payment of all or any part thereof to the payment of any liability (whether due or not) of Borrower to creditors of such Borrower (other than the Credit Parties);

(e) apply any sums by whomsoever paid or howsoever realized to any liability or liabilities of Borrower to the Credit Parties regardless of what liabilities of such Borrower remain unpaid;

3

(f) consent to or waive any breach of, or any act, omission or default under, any of the Loan Documents or any of the instruments or agreements referred to therein, or otherwise amend, modify, or supplement any of the Loan Documents or any of such other instruments or agreements; and/or

(g) act or fail to act in any manner referred to in this Guaranty which may deprive such Guarantor of its right to subrogation against Borrower to recover full indemnity for any payments made pursuant to this Guaranty.

7. No invalidity, irregularity, or unenforceability of all or any part of the Guaranteed Obligations or of any security therefor shall affect, impair, or be a defense to this Guaranty, and this Guaranty shall be primary, absolute, and unconditional notwithstanding the occurrence of any event or the existence of any other circumstances which might constitute a legal or equitable discharge of a surety or Guarantor except payment in full of the Guaranteed Obligations.

8. This Guaranty is a continuing one and all liabilities to which it applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon. No failure or delay on the part of any Credit Party in exercising any right, power, or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein expressly specified are cumulative and not exclusive of any rights or remedies which any Credit Party would otherwise have. No notice to or demand on any Guarantor in any case shall entitle such Guarantor to any other further notice or demand in similar or other circumstances or constitute a waiver of the rights of any Credit Party to any other or further action in any circumstances without notice or demand. It is not necessary for any Credit Party to inquire into the capacity or powers of Borrower or any of its Subsidiaries or the officers, directors, partners, or agents acting or purporting to act on its behalf, and any indebtedness made or created in reliance upon the professed exercise of such powers shall be guaranteed hereunder.

9. Any Indebtedness of Borrower to Guarantor, excluding Indebtedness arising in the ordinary course of business in connection with a centralized cash management system used by Borrower and some or all of its Affiliates, now or hereafter existing, including, without limitation, any rights to subrogation which Guarantor may have as a result of any payment by Guarantor under this Guaranty, together with any interest thereon, shall be, and such Indebtedness is, hereby deferred, postponed and subordinated to the prior payment in full of the Guaranteed Obligations. Until payment in full of the Guaranteed Obligations, including interest accruing on the Notes after the commencement of a proceeding by or against Borrower under the Bankruptcy Code which interest the parties

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agree shall remain a claim that is prior and superior to any claim of Guarantor notwithstanding any contrary practice, custom or ruling in cases under the Bankruptcy Code generally, Guarantor agrees not to accept any payment or satisfaction of any kind of Indebtedness of Borrower to Guarantor (other than the Indebtedness excluded in the preceding sentence) and hereby assigns such Indebtedness to the Administrative Agent, including the right to file proof of claim and to vote thereon in connection with any such proceeding under the Bankruptcy Code, including the right to vote on any plan of reorganization.

10. Each Guarantor:

(a) hereby waives any right (except as shall be required by applicable statute and cannot be waived) to require the Credit Parties to: (i) proceed against Borrower, any other Guarantor, or any other party; (ii) proceed against or exhaust any security held from Borrower, any other Guarantor, or any other party; or (iii) pursue any other remedy in the Credit Parties’ power whatsoever. Each Guarantor waives any defense based on or arising out of any defense of Borrower, any other Guarantor, or any other party other than payment in full of the Guaranteed Obligations, including, without limitation, any defense based on or arising out of the disability of Borrower, any other Guarantor, or any other party, or the unenforceability of the Guaranteed Obligations or any part thereof from any cause, or the cessation from any cause of the liability of Borrower other than payment in full of the Guaranteed Obligations of Borrower. The Credit Parties may, at their election, foreclose on any security held by the Administrative Agent or the other Credit Parties by one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable (to the extent such sale is permitted by applicable law), or exercise any other right or remedy the Credit Parties may have against Borrower or any other party, or any security, without affecting or impairing in any way the liability of any Guarantor hereunder except to the extent the Guaranteed Obligations have been paid in full or otherwise satisfied. Each Guarantor waives any defense arising out of any such election by the Administrative Agent and/or any other Credit Parties, even though such election operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of such Guarantor against Borrower, any other Guarantor, or any other party or any security.

(b) assumes all responsibility for being and keeping itself informed of Borrower’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope, and extent of the risks which any Guarantor assumes and incurs hereunder, and agrees that the Credit Parties shall have no duty to advise such Guarantor of information known to them regarding such circumstances or risks.

11. If and to the extent that any Guarantor makes any payment to any Credit Party or to any other Person pursuant to or in respect of this Guaranty, then any claim which such Guarantor may have against Borrower by reason thereof shall be subject and subordinate

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to the prior payment in full of the Guaranteed Obligations to each Credit Party. Prior to the transfer by any Guarantor of any note or negotiable instrument evidencing any Indebtedness of Borrower to such Guarantor, such Guarantor shall mark such note or negotiable instrument with a legend that the same is subject to this subordination.

12. Each Guarantor covenants and agrees that on and after the date hereof and until the Commitments under the Credit Agreement have been terminated and all Guaranteed Obligations have been paid in full or otherwise satisfied, such Guarantor shall take, or will refrain from taking, as the case may be, all actions that are necessary to be taken or not taken so that no Event of Default is caused by the actions of such Guarantor or any of its Subsidiaries.

13. Each Guarantor hereby jointly and severally agrees to pay, to the extent not paid by Borrower pursuant to Section 10.3 of the Credit Agreement, all out of pocket costs and expenses (including, without limitation, the reasonable fees and disbursements of counsel) of each Credit Party in connection with the enforcement of this Guaranty or the collection of the Guaranteed Obligations and in connection with any amendment, waiver or consent relating to this Guaranty.

14. This Guaranty shall be binding upon each Guarantor and its successors and assigns and shall inure to the benefit of the Credit Parties and their successors and assigns to the extent permitted under the Credit Agreement.

15. Neither this Guaranty nor any provision hereof may be changed, waived, discharged or terminated except with the written consent of the Required Lenders (or to the extent required by Section 10.1 of the Credit Agreement, Administrative Agent and each Lender, as the case may be) and each Guarantor affected thereby (it being understood that the addition or release of any Guarantor hereunder shall not constitute a change, waiver, discharge or termination affecting any Guarantor other than the Guarantor so added or released). In the event that any Guarantor is released from the Guaranteed Obligations hereunder pursuant to Section 7.1.7 of the Credit Agreement or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of the Credit Agreement, the Administrative Agent, at the request and expense of such Guarantor, shall execute and deliver an instrument acknowledging such Guarantor’s release from this Guaranty.

16. Each Guarantor acknowledges that an executed (or conformed) copy of each of the Loan Documents has been made available to its principal executive officers and such officers are familiar with the contents thereof.

17. In addition to any rights now or hereafter granted under applicable law and not by way of limitation of any such rights, upon the occurrence and during the continuance of an Event

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of Default, each Credit Party is hereby authorized, at any time or from time to time, without notice to any Guarantor or to any other Person, any such notice being expressly waived, to set off and to appropriate and apply any and all deposits (general or special) and any other indebtedness at any time held or owing by such Credit Party to or for the credit or the account of any Guarantor, against and on account of the obligations and liabilities of such Guarantor to such Credit Party under this Guaranty, irrespective of whether or not such Credit Party shall have made any demand hereunder; provided that said obligations, liabilities, deposits, or claims, or any of them, shall be then due and owing. Each Credit Party agrees to promptly notify the relevant Guarantor after any such set off and application, provided that the failure to give such notice shall not affect the validity of such set off and application.

18. All notices, requests, demands, or other communications provided for hereunder made in writing (including communications by facsimile transmission) shall be deemed to have been duly given or made when delivered to the Person to which such notice, request, demand, or other communication is required or permitted to be given or made under this Guaranty, addressed to such party (i) in the case of any Credit Party, as provided in the Credit Agreement and (ii) in the case of each Guarantor, at its address set forth in Schedule I to this Guaranty.

19. Each Guarantor hereby agrees that if at any time all or any part of any payment at any time received by a Credit Party from the Borrower under any of the Notes or other Loan Documents or from any Guarantor under or with respect to this Guaranty is or must be rescinded or returned by such Credit Party for any reason whatsoever (including, without limitation, the insolvency, bankruptcy or reorganization of the Borrower or any such Guarantor), then each Guarantor’s obligations hereunder shall, to the extent of the payment rescinded or returned, be deemed to have continued in existence notwithstanding such previous receipt by such Credit Party, and each Guarantor’s obligations hereunder shall continue to be effective or reinstated, as the case may be, as to such payment, as though such previous payment to the Credit Party had never been made. In addition, if any court of competent jurisdiction determines that the incurrence by any Guarantor of its obligations under this Guaranty or the payment by a Guarantor of its obligations hereunder is or would be voidable as a fraudulent transfer or conveyance under Section 548 of the Bankruptcy Code, any analogous state law, or any other law relating to debtor protection or creditors’ rights, the obligation of that Guarantor hereunder shall automatically be reduced to the maximum amount (if any) of the obligation that the Guarantor could incur or pay without such incurrence or payment being subject to avoidance as a fraudulent transfer or conveyance. Each Guarantor’s obligations hereunder shall not exceed its tangible net worth.

20. (a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW

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YORK. THE PARTIES HERETO, IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING THEREIN, AND HEREBY IRREVOCABLY AND EXPRESSLY WAIVE ANY OTHER JURISDICTION TO WHICH THEY MAY BE ENTITLED TO BY VIRTUE OF THEIR PRESENT OR FUTURE DOMICILE OR OTHERWISE.

(b) JURY TRIAL WAIVER. EACH GUARANTOR AND ALL PERSONS CLAIMING BY, THROUGH OR UNDER IT, HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE TO THE FULLEST EXTENT PERMITTED BY LAW ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF EACH GUARANTOR IN CONNECTION HEREWITH OR THEREWITH. EACH GUARANTOR AND ALL PERSONS CLAIMING BY, THROUGH OR UNDER IT, ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENTS, THE LENDERS, AND THE ISSUER ENTERING INTO THIS AGREEMENT AND EACH SUCH OTHER LOAN DOCUMENT.

(c) MARSHALING. EACH GUARANTOR WAIVES ANY RIGHT OR CLAIM OF RIGHT TO CAUSE A MARSHALING OF BORROWER’S ASSETS OR TO CAUSE ANY CREDIT PARTY TO PROCEED AGAINST ANY OF THE SECURITY FOR THE LOAN BEFORE PROCEEDING UNDER THIS AGREEMENT AGAINST BORROWER OR TO PROCEED AGAINST GUARANTOR IN ANY PARTICULAR ORDER. EACH GUARANTOR AGREES THAT ANY PAYMENTS REQUIRED TO BE MADE HEREUNDER SHALL BECOME DUE AND PAYABLE TEN (10) DAYS AFTER DEMAND. EACH GUARANTOR EXPRESSLY WAIVES AND RELINQUISHES ALL RIGHTS AND REMEDIES (INCLUDING ANY RIGHTS OF SUBROGATION) ACCORDED BY APPLICABLE LAW TO SUCH GUARANTOR.

(d) Special California Waivers. In the event that (and only in the event that) any court of competent jurisdiction determines that the laws of the State of California are applicable in any respect to the interpretation or enforcement of all or any portion this Agreement then the terms and provisions of this subsection (d) shall apply.

(i) To the extent permitted by law, each Guarantor hereby waives and agrees not to assert or take advantage of:

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(1) Any defense based upon any Lender’s election of any remedy against a Guarantor, including, without limitation, the defense to enforcement of this Agreement (the “Gradsky” defense based upon Union Bank v. Gradsky, 265 Cal. App. 2d 40 (1968) or subsequent cases) which, absent this waiver, Guarantors would have by virtue of an election by any Lender to conduct a non-judicial foreclosure sale of the Property, it being understood by each Guarantor that any such non-judicial foreclosure sale will destroy, by operation of California Code of Civil Procedure Section 580d, all rights of any party to a deficiency judgment against the Borrower, and, as a consequence, will destroy all rights which Guarantors would otherwise have (including, without limitation, the right of subrogation, the right of reimbursement, and the right of contribution) to proceed against the Borrower and to recover any such amount, and that a Lender could be otherwise estopped from pursuing Guarantors for a deficiency judgment after a non-judicial foreclosure sale on the theory that a obligor should be exonerated if a lender elects a remedy that eliminates the obligor’s subrogation, reimbursement or contribution rights;

(2) Any rights under California Code of Civil Procedure Sections 580a and 726(b), which provide, among other things: that a creditor must file a complaint for deficiency within three (3) months of a nonjudicial foreclosure sale or judicial foreclosure sale, as applicable; that a fair market value hearing must be held; and that the amount of the deficiency judgment shall be limited to the amount by which the unpaid debt exceeds the fair market value of the security, but not more than the amount by which the unpaid debt exceeds the sale price of the security; and

(3) Without limiting the generality of the foregoing or any other provision hereof, Guarantors expressly waive any and all benefits which might otherwise be available to Guarantors under California Civil Code Sections 2787 to 2855, inclusive, 2899 and 3433 and California Code of Civil Procedure Sections 580a, 580b, 580d and 726, or any of such sections.

(e) Waiver Pursuant to California Civil Code Section 2856. In addition to all the other waivers agreed to and made by Guarantors as set forth in this Guaranty, and pursuant to the provisions of California Civil Code Section 2856, each Guarantor hereby waives all rights and defenses that such Guarantor may have because the debtor’s debt is

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secured directly or indirectly by real property. This means, among other things:

(i) The creditor may collect from Guarantors without first foreclosing on any real or personal property collateral pledged by the debtor.

(ii) If the creditor forecloses on any collateral pledged by the debtor that is in the form of interests in real property:

(1) The amount of the debt may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price; and

(2) The creditor may collect from Guarantors even if the creditor, by foreclosing on the collateral, has destroyed any right Guarantors may have to collect from the debtor.

This is an unconditional and irrevocable waiver of any rights and defenses Guarantors may have because the debtor’s debt is secured directly or indirectly by real property. These rights and defenses include, but are not limited to, any rights or defenses based upon Sections 580a, 580b, 580d, or 726 of the California Code of Civil Procedure.

Each Guarantor further hereby waives all rights and defenses arising out of an election of remedies by the creditor, even though that election of remedies, such as a non-judicial foreclosure with respect to security for a guaranteed obligation, has destroyed such Guarantor’s rights of subrogation and reimbursement against the principal by the operation of Section 580d of the California Code of Civil Procedure or otherwise.

21. The Credit Parties agree that this Guaranty may be enforced only by the action of Administrative Agent acting upon the instructions of the Required Lenders and until the Credit Agreement is terminated, no other Credit Party shall have any right individually to seek to enforce or to enforce this Guaranty, it being understood and agreed that such rights and remedies may be exercised by Administrative Agent for the benefit of the Credit Parties upon the terms of this Guaranty.

22. This Guaranty may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same instrument.

23. It is understood and agreed that any Subsidiary of Borrower that is required to execute a counterpart of this Guaranty after the date hereof pursuant to the Credit Agreement shall

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become a Guarantor hereunder by executing a counterpart hereof and delivering the same to Administrative Agent.

24. THIS GUARANTY AND THE OTHER WRITTEN LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BY THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.

25. Except with respect to Section 19 hereof, upon repayment in full of the Guaranteed Obligations or if the Guaranteed Obligations are otherwise deemed satisfied, this Guaranty shall automatically terminate and cease to be of any further force or effect.

[Remainder of page intentionally left blank. Signature pages follow.]

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IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be executed and delivered as of the date first above written.

SPIRIT REALTY CAPITAL, INC., a Maryland corporation
By:
	Name:
	Title:
SPIRIT GENERAL OP HOLDINGS, LLC, a Delaware limited liability company
By:
	Name:
	Title:

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Accepted and Agreed to:

DEUTSCHE BANK AG NEW YORK BRANCH,
as Administrative Agent for the Lenders
By:
	Name:
	Title:
By:
	Name:
	Title:

EX-10.3

Exhibit 10.3

SECURITY AGREEMENT

SECURITY AGREEMENT (as amended, modified or supplemented from time to time, this “Agreement”), dated as of July 17, 2013, among Spirit Realty, L.P., Spirit Realty Capital, Inc., Spirit General OP Holdings, LLC and each of the other entities listed on the signature pages hereof or that becomes a party hereto pursuant to Section 30 hereof (individually and collectively, “Grantor”) and Deutsche Bank AG New York Branch, as administrative agent (together with any successor administrative agent, the “Administrative Agent”), for the benefit of the Secured Creditors (as defined below). Except as otherwise defined herein, all capitalized terms used herein and defined in the Credit Agreement (as defined below) shall be used herein as therein defined.

W I T N E S S E T H :

WHEREAS, SPIRIT REALTY, L.P. (the “Borrower”), the Administrative Agent and various financial institutions parties thereto (“Lenders”) have entered into a Credit Agreement, dated as of July 17, 2013 (as amended, modified or supplemented from time to time, the “Credit Agreement”), providing for the making of Loans to and the issuance of, and participation in, Letters of Credit for the account of the Borrower, all as contemplated therein (the Administrative Agent, the Issuer, the Lenders and their subsequent successors and assigns, are herein called the “Secured Creditors”);

WHEREAS, pursuant to the Subsidiary Guaranty and the Parent Guaranty, certain Grantors (other than the Borrower) have jointly and severally guaranteed the payment and performance when due of all Guaranteed Obligations as described and defined therein;

WHEREAS, pursuant to the Pledge Agreement (the “Pledge Agreement”), Borrower has pledged to the Administrative Agent for the benefit of the Secured Creditors its interest in the Pledge Agreement Collateral to secure the Obligations (as defined therein) now or hereafter owed or to be performed by Borrower under the Credit Agreement.

WHEREAS, it is a condition precedent to the making of Loans to, and the issuance of Letters of Credit for the account of, the Borrower under the Credit Agreement that Grantor shall have executed and delivered to the Administrative Agent this Agreement; and

WHEREAS, Grantor will obtain direct and indirect material benefits from the incurrence of Loans by the Borrower and the issuance of Letters of Credit for the account of the Borrower under the Credit Agreement and, accordingly, desires to enter into this Agreement in order to satisfy the conditions described in the preceding recital and to induce the Lenders to make Loans to the Borrower and issue, and/or participate in, Letters of Credit for the account of the Borrower;

NOW, THEREFORE, in consideration of the foregoing and other benefits accruing to Grantor, the receipt and sufficiency of which are hereby acknowledged, Grantor hereby makes the following representations and warranties to the Administrative Agent for the benefit of the

Secured Creditors and hereby covenants and agrees with the Administrative Agent for the benefit of the Secured Creditors as follows:

1. SECURITY FOR OBLIGATIONS. This Agreement is made by Grantor in favor of the Administrative Agent for the benefit of the Secured Creditors to secure:

(i) the full and prompt payment when due (whether at the stated maturity, by acceleration or otherwise) of all obligations, liabilities and indebtedness (including, without limitation, principal, premium, interest, reimbursement obligations (both actual and contingent) under Revolving Loans, Swingline Loans and Letters of Credit, fees, costs, and indemnities (including in each case, without limitation, all interest that accrues after the commencement of any case, proceeding or other action relating to the bankruptcy, insolvency, reorganization or similar proceeding of Grantor at the rate provided for in the respective documentation, whether or not a claim for post-petition interest is allowed in any such proceeding) of Grantor to the Secured Creditors, whether now existing or hereafter incurred under, arising out of, or in connection with, the Credit Agreement and the other Loan Documents to which Grantor is a party (including, in the case of Grantor that is party to the Subsidiary Guaranty, all Guaranteed Obligations (as defined in the Subsidiary Guaranty)) and the due performance and compliance by Grantor with all of the terms, conditions and agreements contained in the Credit Agreement and in such other Loan Documents (all such obligations, liabilities and indebtedness under this clause (i) being herein collectively called the “Credit Document Obligations”);

(ii) any and all sums advanced by the Administrative Agent in order to preserve the Collateral (as hereinafter defined) or preserve its security interest in the Collateral;

(iii) in the event of any proceeding for the collection or enforcement of any indebtedness, obligations or liabilities of Grantor referred to in clause (i) above, after an Event of Default shall have occurred and be continuing, the reasonable expenses of retaking, holding, preparing for sale or lease, selling or otherwise disposing of or realizing on the Collateral, or of any exercise by the Administrative Agent of its rights hereunder, together with reasonable attorneys’ fees and court costs; and

(iv) all amounts paid by any Secured Creditor as to which such Secured Creditor has the right to reimbursement under Section 11 of this Agreement;

all such obligations, liabilities, sums and expenses set forth in clauses (i) through (iv) of this Section 1 being herein collectively called the “Obligations,” it being acknowledged and agreed that the “Obligations” shall include extensions of credit of the types described above, whether outstanding on the date of this Agreement or extended from time to time after the date of this Agreement.

2. DEFINITIONS.

(a) Reference to singular terms shall include the plural and vice versa.

(b) The following capitalized terms used herein shall have the definitions specified below:

“Administrative Agent” shall have the meaning set forth in the recitals hereto.

“Adverse Claim” shall have the meaning given such term in Section 8-102(a)(1) of the UCC.

“Agreement” shall have the meaning set forth in the first paragraph hereof.

“Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy,” as now and hereafter in effect, or any successor statute.

“Borrower” shall have the meaning set forth in the recitals hereto.

“Collateral” shall have the meaning set forth in Section 3.1 hereof.

“Credit Agreement” shall have the meaning set forth in the recitals hereto.

“Credit Document Obligations” shall have the meaning set forth in Section 1(i) hereof.

“Equity Interest” of any Subsidiary of a Grantor shall mean any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interest in (however designated) equity of such Subsidiary, including, without limitation, any common stock, preferred stock, any limited or general partnership interest and any limited liability company membership interest.

“Event of Default” shall mean any Event of Default (or equivalent term) under, and as defined in, the Credit Agreement and shall in any event include, without limitation, any payment default on any of the Obligations after the expiration of any applicable grace period.

“Grantor” shall have the meaning set forth in the first paragraph hereof.

“Indemnitees” shall have the meaning set forth in Section 10 hereof.

“Lenders” shall have the meaning set forth in the recitals hereto.

“Loan Documents” shall have the meaning set forth in the Credit Agreement.

“Obligations” shall have the meaning set forth in Section 1 hereof.

“Person” means any individual, partnership, joint venture, firm, corporation, association, limited liability company, trust or other enterprise or any government or political subdivision or any agency, department or instrumentality thereof.

“Pledge Agreement Collateral” shall have the meaning given to “Collateral” in the Pledge Agreement.

“Primary Obligations” shall have the meaning set forth in Section 9(b) hereof.

“Pro Rata Share” shall have the meaning set forth in Section 9(b) hereof.

“Proceeds” shall have the meaning given such term in Section 9-102(a)(64) of the UCC and, in any event, shall also include, but not be limited to, (i) any and all proceeds of any insurance, indemnity, warranty or guaranty payable to the Administrative Agent or Grantor from time to time with respect to any of the Collateral, (ii) any and all payments (in any form whatsoever) made or due and payable to Grantor from time to time in connection with any requisition, confiscation, condemnation, seizure or forfeiture of all or any part of the Collateral by any governmental authority (or any Person acting under color of governmental authority) and (iii) any and all other amounts from time to time paid or payable under or in connection with any of the Collateral.

“Registered Organization” shall mean a “registered organization” as such term is defined in Section 9-102(a)(70) of the UCC.

“Required Lenders” shall have the meaning set forth in the Credit Agreement.

“Secondary Obligations” shall have the meaning set forth in Section 8(b) hereof.

“Secured Creditors” shall have the meaning set forth in the recitals hereof.

“Subsidiary” shall have the meaning given such term in the Credit Agreement.

“Subsidiary Guaranty” shall have the meaning given such term in the Credit Agreement.

“Termination Date” shall have the meaning set forth in Section 19 hereof.

“Transmitting Utility” shall mean a “transmitting utility” as such term is defined in Section 9-102(a)(80) of the UCC.

“UCC” shall mean the Uniform Commercial Code as in effect in the State of New York from time to time; provided that all references herein to specific sections or subsections of the UCC are references to such sections or subsections, as the case may be, of the Uniform Commercial Code as in effect in the State of New York on the date hereof.

The following capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the UCC: Accounts, Chattel Paper, Deposit Accounts, Documents, General Intangibles, Goods, Instruments and Money.

3. CREATION OF SECURITY INTEREST.

3.1 Grant. Subject to Section 3.6 hereof, as collateral security for the performance and payment in full of the Obligations, Grantor hereby grants and assigns to Administrative Agent, for the benefit of the Secured Creditors, a lien and security interest in and against any and all of Grantor’s right, title and interest in and to the following assets (other than Pledge Agreement Collateral), whether tangible or intangible, real or personal, and in and against any and all additions, attachments, accessories and accessions thereto, any and all substitutions,

replacements or exchanges therefor, and any and all insurance and/or other proceeds thereof (all of the foregoing being hereinafter individually and collectively referred to as the “Collateral”):

(a) All apparatus, machinery, devices, fixtures, communication devices, systems and equipment, fittings, appurtenances, equipment, appliances, furniture, furnishings, appointments, accessories, landscaping, plants and all other items of personal property located at the Properties or otherwise, or used in the operation or maintenance of the Properties or otherwise, or any business or operation conducted thereon or at any other location. All fixtures and equipment now or hereafter installed for use in the operation of the buildings, structures and improvements now or hereafter on the Properties or otherwise, including but not limited to, all lighting, heating, cooling, ventilating, air-conditioning, plumbing, sprinkling, incinerating, refrigerating, air-cooling, lifting, fire extinguishing, cleaning, entertaining, security, communicating and electrical and power systems, and the machinery, appliances, fixtures and equipment pertaining thereto, all awnings, ovens, stoves, refrigerators, dishwashers, disposals, carpeting, switchboards, engines, motors, tanks, pumps, screens, storm doors and windows, shades, floor coverings, ranges, washers, dryers, disposals, cabinets, furniture, partitions, conduits, ducts and compressors, and all elevators and escalators and the machinery and appliances, fixtures and equipment pertaining thereto.

(b) All Accounts, now owned or hereafter acquired by the Grantor, including: (i) all accounts receivable, other receivables (including health care receivables), book debts and other forms of obligations; (ii) all of Grantor’s rights in, to and under all purchase orders or receipts for goods or services; (iii) all of Grantor’s rights to any goods represented by any of the foregoing (including unpaid sellers’ rights of rescission, replevin, reclamation and stoppage in transit and rights to returned, reclaimed or repossessed goods); (iv) all moneys due or to become due to Grantor under all purchase orders and contracts for the sale of goods or the performance of services or both by Grantor or in connection with any other transaction (whether or not yet earned by performance on the part of Grantor), including the right to receive the proceeds of said purchase orders and contracts; and (v) all collateral security and guarantees of any kind given by Grantor with respect to any of the foregoing.

(c) Any and all other revenues and income now owned or hereafter acquired and arising from or out of the Properties and/or the businesses and operations conducted thereon, to the extent not already covered by subsection (b) above.

(d) Any and all other personal property of any kind, nature or description, whether tangible or intangible, (including without limitation, any and all Goods, Accounts, contract rights, franchises, licenses, permits, copyrights, trademarks, all other intellectual property of every kind or nature whatsoever, Chattel Paper, Money, Deposit Accounts, Documents, Instruments and General Intangibles of Grantor, whether now owned or hereafter acquired, or in which Grantor now have or shall hereafter acquire any right, title or interest whatsoever (whether by bill of sale, lease, conditional sales contract, or other title retention document or otherwise).

(e) Any and all additions and accessories to all of the foregoing and any and all Proceeds, renewals, replacements and substitutions of all of the foregoing.

(f) To the extent assignable by Grantor, all books, records, manager minutes, contracts, insurance policies, environmental audits, files, computer files, computer discs and other data and software storage and media devices, accounting books and records, filings with governmental authorities, all feasibility and marketing studies, percolation tests, soil borings, surveys, topographical studies and the like with respect to the Properties and the uses thereof, all licenses, permits and warranties with respect to the improvements located on the Properties (the “Improvements”), all contracts of sale with respect to the Improvements, all operating and service contracts relating to the operation of the Improvements, and all warranties with respect to the Improvements and/or any work completed or materials supplied in connection with the Improvements, all plans and specifications with respect to the Improvements, all contracts with architects, engineers and surveyors with respect to the Improvements, all construction contracts with respect to the Improvements and any and all records and instruments relating to the Collateral.

The foregoing security interest grant is intended to and shall serve to cover all of Grantor’s properties and assets whatsoever pursuant to Section 9-504 of the UCC (other than the Pledge Agreement Collateral) and shall be first in priority for so long as any Obligations remain outstanding.

3.2 Procedures.

(a) To the extent that Grantor at any time or from time to time owns, acquires or obtains any right, title or interest in any Collateral, such Collateral shall automatically (and without the taking of any action by the respective Grantor) become part of the security interest pursuant to Section 3.1 of this Agreement. In addition thereto, the Grantor shall with respect to cash proceeds from any of the Collateral described in Section 3.1 hereof which are required to be paid over to (or may be received by) the Administrative Agent or any of the other Secured Creditors pursuant to Section 7 of this Agreement (as promptly as practicable and, in any event, within five (5) days after it obtains such Collateral) for the benefit of the Administrative Agent and the other Secured Creditors), (i) establish, for the benefit of the Administrative Agent, a cash account in the name of Grantor over which the Administrative Agent shall have “exclusive control” (and no withdrawals or transfers may be made therefrom by any Person except with the prior written consent of the Administrative Agent) and (ii) deposit of such cash in such cash account.

(b) In addition to the actions required to be taken pursuant to Section 3.2(a) hereof, Grantor shall, from time to time cause appropriate financing statements (on Form UCC-1 or other appropriate form) under the UCC as in effect in the various relevant States, covering all Collateral hereunder (with the form of such financing statements to be satisfactory to the Administrative Agent), to be filed in the relevant filing offices as reasonably determined by the Administrative Agent so that at all times the Administrative Agent has a security interest in all Collateral which can be perfected by the filing of such financing statements under the laws of the relevant States, including, without limitation, Section 9-312(a) of the UCC.

3.3 INTENTIONALLY OMITTED.

3.4 Transfer Taxes. Each grant of a security interest in Collateral under Section 3.1 hereof shall be accompanied by any transfer tax stamps required in connection with the grant of such security interest in the Collateral.

3.5 Certain Representations and Warranties Regarding the Collateral. Grantor represents and warrants that on the date hereof: (i) the exact legal name of Grantor, the type of organization of Grantor, whether or not Grantor is a Registered Organization, the jurisdiction of organization of Grantor, the organizational identification number (if any) of Grantor, and whether or not Grantor is a Transmitting Utility, is listed on Annex A hereto; (ii) the Grantor has complied with the respective procedure set forth in Section 3.2(a) hereof with respect to each item of Collateral. With respect to the Collateral, Grantor hereby represents and warrants that:

(a) no financing statement covering the Collateral, or any part thereof, has been filed and remains in effect other than any financing statements filed in connection with Liens permitted to exist on the Collateral under the Loan Documents and financing statements for which duly authorized proper termination statements have been delivered to the Administrative Agent for filing;

(b) except for Liens permitted to exist on the Collateral under the Loan Documents, no other security agreement covering the Collateral, or any part thereof, has been made and no security interest, other than the one herein created or created in the other Loan Documents, has attached or been perfected in the Collateral or in any part thereof; and

(c) except for the Liens permitted to exist on the Collateral under the Loan Documents, no dispute, right of setoff, counterclaim or defense exists with respect to any part of the Collateral.

(d) There is listed on Annex B hereto the location of the principal place of business of Grantor, all of the other places of business of Grantor and all locations where the Collateral and the books and records of Grantor are kept. Grantor shall not change the location of (i) its places of business or its book and records, or (ii) any Collateral without in each case providing concurrent written notice thereof to Administrative Agent.

3.6 Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the security interest granted under Section 3.1 hereof attach to (a) any lease, license, contract or agreement to which any Grantor is a party, and any of its rights or interest thereunder, if and to the extent that a security interest is prohibited by or in violation of any law, rule or regulation applicable to such Grantor; (b) any license, contract or agreement to which any Grantor is a party, and any of its rights or interest thereunder, if and to the extent that a security interest is prohibited by or in violation of a term, provision or condition (including any requirement to obtain the consent of any third party that has not been obtained) that constitutes a breach or default under such lease, license, contract or agreement or results in the termination of such lease, license, contract or agreement and only to the extent that such term or provision was not rendered ineffective pursuant to Section 9-406 through 9-409 of the UCC; provided however that the Collateral shall include (and such security interest shall

attach) immediately at such time as the prohibition shall no longer be applicable and to the extent severable, shall attach immediately to any portion of such lease, license, contract or agreement not subject to the prohibitions specified above; provided further that the exclusions referred to in this Section 3.6 shall not include any proceeds of any such lease, license, contract or agreement; (c) any “intent-to-use” application for registration of a trademark filed pursuant to Section 1(b) of the Lanham Act, 15 U.S.C. §1051, prior to the filing of a “Statement of Use” pursuant to Section 1(d) of the Lanham Act or an “Amendment to Allege Use” pursuant to Section 1(c) of the Lanham Act with respect thereto, solely to the extent, if any, that, and solely during the period, if any, in which, the grant of a security interest therein would impair the validity or enforceability of any registration that issues from such intent-to-use application under applicable federal; provided, however, that a security interest in such trademark application (and the resulting registration) is promptly granted to the Administrative Agent upon the filing of a Statement of Use or an Amendment to Allege Use, as the case may be; (d) any assets of Grantor financed by purchase money Indebtedness or Capitalized Leases in each case permitted under the Credit Agreement, but only to the extent that the documentation governing such Indebtedness or Capitalized Leases validly prohibits the creation by such Grantor of a security interest therein or requires the consent of any Person as a condition to the creation of any other security interest on such property and (e) any Deposit Account, Securities Account, Commodity Account (each as defined in the UCC) or other account of any Grantor (and all cash, cash equivalents and other securities or investments credited thereto or deposited therein) (i) used for all or any of the following purposes: payroll, benefits, taxes, escrow, customs, insurance imprest accounts or other fiduciary purposes or compliance with legal requirements, in all aforementioned cases, solely to the extent such legal or fiduciary requirements expressly prohibit the granting of a Lien thereon; (ii) to the extent that it is cash collateral for letters of credit (other than Letters of Credit issued under the Credit Agreement ) to the extent permitted by the Credit Agreement; and (iii) any specifically identified account with respect to which the Administrative Agent has determined (in its reasonable judgment) in writing that the costs of obtaining, perfecting or maintaining a security interest in such asset exceeds the fair market value thereof or the practical benefit to the secured parties afforded thereby and (f) the Equity Interests in any Restricted Subsidiary.

4. APPOINTMENT OF SUB-AGENTS; ENDORSEMENTS, ETC. If and to the extent necessary to enable the Administrative Agent to perfect its security interest in any of the Collateral or to exercise any of its remedies hereunder, the Administrative Agent shall have the right to appoint one or more sub-agents for the purpose of retaining physical possession of the Collateral, which may be held (in the discretion of the Administrative Agent) in the name of Grantor, endorsed or assigned in blank or in favor of the Administrative Agent or any nominee or nominees of the Administrative Agent or a sub-agent appointed by the Administrative Agent.

5. INTENTIONALLY OMITTED.

6. INTENTIONALLY OMITTED.

7. REMEDIES IN CASE OF AN EVENT OF DEFAULT. If there shall have occurred and be continuing an Event of Default, then and in every such case, the Administrative Agent shall be entitled to exercise all of the rights, powers and remedies (whether vested in it by this Agreement, any other Loan Document or by law) for the protection and enforcement of its

rights in respect of the Collateral, and the Administrative Agent shall be entitled to exercise all the rights and remedies of a secured party under the Uniform Commercial Code as in effect in any relevant jurisdiction and also shall be entitled, without limitation, to exercise the following rights, which Grantor hereby agrees to be commercially reasonable:

(i) to receive all amounts payable in respect of the Collateral otherwise payable to the Grantor;

(ii) to give all consents, waivers and ratifications in respect of the Collateral and otherwise act with respect thereto as though it were the outright owner thereof (Grantor hereby irrevocably constituting and appointing the Administrative Agent the proxy and attorney-in-fact of Grantor, with full power of substitution to do so);

(iii) at any time and from time to time to sell, assign and deliver, or grant options to purchase, all or any part of the Collateral, or any interest therein, at any public or private sale, without demand of performance, advertisement or, notice of intention to sell or of the time or place of sale or adjournment thereof or to redeem or otherwise (all of which are hereby waived by Grantor), for cash, on credit or for other property, for immediate or future delivery without any assumption of credit risk, and for such price or prices and on such terms as the Administrative Agent in its absolute discretion may determine, provided that at least ten (10) days written notice of the time and place of any such sale shall be given to Grantor. Upon the occurrence of an Event of Default, Grantor, immediately upon demand by Administrative Agent, shall assemble the Collateral and make it available to Administrative Agent at a place or places to be designated by Administrative Agent, The Administrative Agent shall not be obligated to make any such sale of Collateral regardless of whether any such notice of sale has theretofore been given. Grantor hereby waives and releases to the fullest extent permitted by law any right or equity of redemption with respect to the Collateral, whether before or after sale hereunder, and all rights, if any, of marshalling the Collateral and any other security or the obligations or otherwise. At any such sale, unless prohibited by applicable law, the Administrative Agent on behalf of the Secured Creditors may bid for and purchase all or any part of the Collateral so sold free from any such right of equity of redemption. Neither the Administrative Agent nor any other Secured Creditor shall be liable for failure to collect or realize upon any or all of the Collateral or for any delay in so doing nor shall any of them be under any obligation to take any action whatsoever with regard thereto.

(iv) to set-off any and all Collateral against any and all Obligations, and to withdraw any and all cash or other Collateral from any and all accounts referred to Section 3.1(a) hereof and to apply such cash and other Collateral to the payment of any and all Obligations.

8. REMEDIES, CUMULATIVE, ETC.

(a) Each Grantor agrees that a breach of any obligation under this Agreement will cause irreparable injury to the Administrative Agent, that the Administrative Agent has no adequate remedy at law in respect of such breach and, as a consequence, that such obligations shall be specifically enforceable against such Grantor and such Grantor hereby waives and agrees not assert any defenses against an action for specific performance of such obligations except for a defense that no default has occurred giving rise to the Credit Document Obligations becoming due and payable prior to their stated maturities.

(b) Each and every right, power and remedy of the Administrative Agent provided for in this Agreement or in any other Loan Document, or now or hereafter existing at law or in equity or by statute shall be cumulative and concurrent and shall be in addition to every other such right, power or remedy. The exercise or beginning of the exercise by the Administrative Agent or any other Secured Creditor of any one or more of the rights, powers or remedies provided for in this Agreement or any other Loan Document or now or hereafter existing at law or in equity or by statute or otherwise shall not preclude the simultaneous or later exercise by the Administrative Agent or any other Secured Creditor of all such other rights, powers or remedies, and no failure or delay on the part of the Administrative Agent or any other Secured Creditor to exercise any such right, power or remedy shall operate as a waiver thereof. No notice to or demand on Grantor in any case shall entitle it to any other or further notice or demand in similar or other circumstances or constitute a waiver of any of the rights of the Administrative Agent or any other Secured Creditor to any other or further action in any circumstances without notice or demand. The Secured Creditors agree that this Agreement may be enforced only by the action of the Administrative Agent, acting upon the instructions of the Required Lender and that no other Secured Creditor shall have any right individually to seek to enforce or to enforce this Agreement or to realize upon the security to be granted hereby, it being understood and agreed that such rights and remedies may be exercised by the Administrative Agent for the benefit of the Secured Creditors upon the terms of this Agreement.

9. APPLICATION OF PROCEEDS. (a) All moneys collected by the Administrative Agent upon any sale or other disposition of the Collateral, together with all other moneys received by the Administrative Agent hereunder, shall be applied as follows:

(i) first, to the payment of all amounts owing the Administrative Agent of the type described in clauses (i), (ii), (iii) and (iv) of the definition of “Obligations” contained in Section 1 hereof;

(ii) second, to the extent proceeds remain after the application pursuant to preceding clause (i), an amount equal to the outstanding Primary Obligations shall be paid to the Secured Creditors, as provided in Section 9(e) hereof, with each Secured Creditor receiving an amount equal to its outstanding Primary Obligations or, if the proceeds are insufficient to pay in full all such Primary Obligations, its Pro Rata Share of such amount remaining to be distributed;

(iii) third, to the extent proceeds remain after the application pursuant to preceding clauses (i) and (ii), an amount equal to the outstanding Secondary Obligations shall be paid to the Secured Creditors, as provided in Section 9(e) hereof, with each Secured Creditor receiving an amount equal to its outstanding Secondary Obligations or,

if the proceeds are insufficient to pay in full all such Secondary Obligations, its Pro Rata Share of such amount remaining to be distributed; and

(iv) fourth, to the extent proceeds remain after the application pursuant to preceding clauses (i) through (iii), inclusive, and following the termination of this Agreement pursuant to Section 20(a) hereof, to the relevant Grantor or to whomever may be lawfully entitled to receive such surplus.

(b) For purposes of this Agreement, (x) “Pro Rata Share” shall mean, when calculating a Secured Creditor’s portion of any distribution or amount, that amount (expressed as a percentage) equal to a fraction the numerator of which is the then unpaid amount of such Secured Creditor’s Primary Obligations or Secondary Obligations, as the case may be, and the denominator of which is the then outstanding amount of all Primary Obligations or Secondary Obligations, as the case may be, (y) “Primary Obligations” shall mean all principal of, premium, if any, and interest on, all Loans, all Disbursements, all contingent reimbursement obligations equal to the Stated Amount of all outstanding Letters of Credit and all fees payable under the Credit Agreement, and (z) “Secondary Obligations” shall mean all Obligations other than Primary Obligations.

(c) When payments to Secured Creditors are based upon their respective Pro Rata Shares, the amounts received by such Secured Creditors hereunder shall be applied (for purposes of making determinations under this Section 9 only) (i) first, to their Primary Obligations and (ii) second, to their Secondary Obligations. If any payment to any Secured Creditor of its Pro Rata Share of any distribution would result in overpayment to such Secured Creditor, such excess amount shall instead be distributed in respect of the unpaid Primary Obligations or Secondary Obligations, as the case may be, of the other Secured Creditors, with each Secured Creditor whose Primary Obligations or Secondary Obligations, as the case may be, have not been paid in full to receive an amount equal to such excess amount multiplied by a fraction the numerator of which is the unpaid Primary Obligations or Secondary Obligations, as the case may be, of such Secured Creditor entitled to distribution and the denominator of which is the unpaid Primary Obligations or Secondary Obligations, as the case may be, of all Secured Creditors entitled to such distribution.

(d) Each of the Secured Creditors, by their acceptance of the benefits hereof and of the other Loan Documents, agrees and acknowledges that if the Secured Creditors are to receive a distribution on account of undrawn amounts with respect to Letters of Credit issued under the Credit Agreement (which shall only occur after all outstanding Loans under the Credit Agreement and Disbursements have been paid in full), such amounts shall be paid to the Administrative Agent under the Credit Agreement and held by it, for the equal and ratable benefit of the Secured Creditors, as cash security for the repayment of Obligations owing to the Secured Creditors as such. If any amounts are held as cash security pursuant to the immediately preceding sentence, then upon the termination of all outstanding Letters of Credit under the Credit Agreement, and after the application of all such cash security to the repayment of all Obligations owing to the Secured Creditors after giving effect to the termination of all such Letters of Credit, if there remains any excess cash, such excess cash shall be distributed by the Administrative Agent in accordance with Section 9(a) hereof.

(e) All payments required to be made hereunder shall be made to the Administrative Agent for the account of the Secured Creditors.

(f) This Agreement is made with full recourse to Grantor and pursuant to and upon all the warranties, representations, covenants and agreements on the part of Grantor contained herein, in the Loan Documents and otherwise in writing in connection herewith or therewith. It is understood and agreed that Grantor shall remain liable with respect to its Obligations to the extent of any deficiency between the amount of the proceeds of the Collateral pledged by it hereunder and the aggregate amount of such Obligations.

10. PURCHASERS OF COLLATERAL. Upon any sale of the Collateral by the Administrative Agent hereunder (whether by virtue of the power of sale herein granted, pursuant to judicial process or otherwise), the receipt of the Administrative Agent or the officer making such sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold, and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Administrative Agent or such officer or be answerable in any way for the misapplication or nonapplication thereof.

11. INDEMNITY. Grantor agrees (i) to indemnify and hold harmless the Administrative Agent and each other Secured Creditors and their respective successors, assigns, employees, advisors, agents and affiliates (individually an “Indemnitee,” and collectively, the “Indemnitees”) from and against any and all claims, demands, losses, judgments and liabilities (including liabilities for penalties) of whatsoever kind or nature, and (ii) to reimburse each Indemnitee for all reasonable costs and expenses, including reasonable attorneys’ fees, in each case arising out of or resulting from this Agreement or the exercise by any Indemnitee of any right or remedy granted to it hereunder (but excluding any claims, demands, losses, judgments and liabilities or expenses to the extent incurred by reason of gross negligence or willful misconduct of such Indemnitee (as determined by a court of competent jurisdiction in a final and non-appealable decision)). In no event shall the Administrative Agent be liable, in the absence of gross negligence or willful misconduct on its part (as determined by a court of competent jurisdiction in a final and non-appealable decision), for any matter or thing in connection with this Agreement other than to account for monies actually received by it in accordance with the terms hereof. If and to the extent that the obligations of Grantor under this Section 11 are unenforceable for any reason, Grantor hereby agrees to make the maximum contribution to the payment and satisfaction of such obligations which is permissible under applicable law. The indemnity obligations of Grantor contained in this Section 11 shall continue in full force and effect notwithstanding the full payment of all the Notes issued under the Credit Agreement, the termination of all Letters of Credit, and the payment of all other Obligations and notwithstanding the discharge thereof.

12. NO OBLIGATIONS FOR THE ADMINISTRATIVE AGENT. The Administrative Agent and the other Secured Creditors shall not be obligated to perform or discharge any obligation of Grantor as a result of the grant of the security interest hereby effected.

(b) The acceptance by the Administrative Agent of this Agreement, with all the rights, powers, privileges and authority so created, shall not at any time or in any event obligate the Administrative Agent or any other Secured Creditor to appear in or defend any action or proceeding relating to the Collateral to which it is not a party, or to take any action hereunder or thereunder, or to expend any money or incur any expenses or perform or discharge any obligation, duty or liability under the Collateral.

13. FURTHER ASSURANCES; POWER-OF-ATTORNEY. (a) Grantor authorizes the Administrative Agent to cause to be filed, at Grantor’s own expense, UCC financing statements, continuation statements or amendments thereto and other documents, in form reasonably acceptable to the Administrative Agent, in such offices as the Administrative Agent may deem reasonably necessary and wherever required by law in order to perfect the Administrative Agent’s security interest in the Collateral, and agrees to do such further acts and things and to execute and deliver to the Administrative Agent such additional conveyances, assignments, agreements and instruments as the Administrative Agent may reasonably require or deem necessary to carry into effect the purposes of this Agreement or to further assure and confirm unto the Administrative Agent its rights, powers and remedies hereunder.

(b) Grantor hereby appoints the Administrative Agent as Grantor’s attorney-in-fact with full authority in the place and stead of Grantor and in the name of Grantor or otherwise, to act from time to time solely after the occurrence and during the continuance of an Event of Default, in the Administrative Agent’s discretion, to take any action and to execute any instrument which the Administrative Agent may deem reasonably necessary or advisable to accomplish the purposes of this Agreement, which appointment as attorney is coupled with an interest.

14. THE ADMINISTRATIVE AGENT. The Administrative Agent will hold in accordance with this Agreement all items of the Collateral at any time received under this Agreement. It is expressly understood and agreed by each Secured Creditor that by accepting the benefits of this Agreement, each such Secured Creditor acknowledges and agrees that the obligations of the Administrative Agent as holder of the Collateral and interests therein and with respect to the disposition thereof, and otherwise under this Agreement, are only those expressly set forth in this Agreement and in Article IX of the Credit Agreement. The Administrative Agent shall act hereunder on the terms and conditions set forth herein and in Article IX of the Credit Agreement.

15. TRANSFER BY THE GRANTORS. Grantor will not sell or otherwise dispose of, grant any option with respect to, or mortgage, pledge or otherwise encumber any of the Collateral or any interest therein except as permitted by the respective Loan Documents.

16. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE GRANTOR. (a) Grantor represents, warrants and covenants that on the date hereof with respect to Grantor’s Collateral that:

(i) it is the sole legal, beneficial and record owner of all of its Collateral and that it has sufficient interest in all of its Collateral in which a security interest is purported to be created hereunder for such security interest to attach (subject, in each case, to no

pledge, lien, mortgage, hypothecation, security interest, charge, option, Adverse Claim or other encumbrance whatsoever, except the liens and security interests created by this Agreement or by the Credit Agreement and the liens and security interests permitted to exist under the Loan Documents);

(ii) it has full power, authority and legal right to grant a security interest in all the Collateral pursuant to this Agreement;

(iii) this Agreement constitutes a legal, valid and binding obligation of the Grantor, enforceable against the Grantor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, moratorium or similar laws affecting the enforcement of creditors’ rights generally and general principles of equity;

(iv) to the Grantor’s knowledge, all of the Collateral has been duly and validly acquired, is fully paid and non-assessable, and is subject to no options to purchase or similar rights;

(v) upon the filing of UCC financing statements naming each applicable Grantor as “debtor” and the Administrative Agent as “secured party” in the applicable jurisdictions the security interest granted to the Administrative Agent pursuant to this Agreement will constitute a valid and perfected first priority security interest in the Collateral and the proceeds thereof, to the extent such security interest can be perfected by filing of a financing statement under the applicable Uniform Commercial Code, subject to no prior Lien or encumbrance or to any agreement purporting to grant to any third party a Lien or encumbrance on the property or assets of Grantor other than the Liens or encumbrances permitted to exist on the Collateral under the Loan Documents and the Administrative Agent is entitled to all rights, priorities and benefits afford by the UCC or other relevant law as enacted in any relevant jurisdiction to perfect security interests in respect of such Collateral.

(vi) Grantor shall (a) promptly furnish Administrative Agent with any information or writings which Administrative Agent may reasonably request concerning the Collateral; (b) allow Administrative Agent to inspect all records of Grantor relating to the Collateral, the Obligations and the business and operation of Grantor with respect to the Collateral, and to make and take away copies of such records in accordance with Section 7.1.14 of the Credit Agreement; and (c) promptly, after receiving written request by Administrative Agent, pay, to the extent not paid by Borrower pursuant to Section 10.3 of the Credit Agreement, all costs and expenses (including, without limitation, the reasonable fees and disbursements of counsel), together with interest thereon from the date incurred by Administrative Agent until the date repaid to Administrative Agent, of each Credit Party in connection with the enforcement of the security interest created herein, and in connection with any amendment, waiver or consent relating to this Agreement.

(vii) Grantor shall not, without the prior written consent of Administrative Agent, create any other security interest in, mortgage, pledge, or otherwise encumber the

Collateral, or any part thereof, or permit the same to be or become subject to any lien, attachment, execution, sequestration, other legal or equitable process, or any encumbrance of any kind or character other than as permitted by the Credit Agreement.

(viii) Grantor shall not sell, transfer, lease or otherwise dispose of any of the Collateral or any interest therein or offer to do so other than in the ordinary course of Grantor’s business without the prior written consent of Administrative Agent, or permit anything to be done that may impair the value of any of the Collateral or the security intended to be afforded by this Agreement other than as permitted in the Credit Agreement.

(b) Grantor covenants and agrees that (i) it will promptly notify Administrative Agent of any claim, action or proceeding affecting title to the Collateral, or any part thereof, or the security interest created herein and defend the Administrative Agent’s right, title and security interest in and to the Collateral and the proceeds thereof against the claims and demands of all Persons whomsoever; and (ii) that it will have like title to and right to grant a security interest in any other property at any time hereafter with respect to which a security interest is granted to Administrative Agent as Collateral hereunder and will likewise defend the right thereto and security interest therein of the Administrative Agent and the other Secured Creditors.

17. CHANGES TO LEGAL NAMES; TYPE OF ORGANIZATION (AND WHETHER A REGISTERED ORGANIZATION AND/OR TRANSMITTING UTILITY); JURISDICTION OF ORGANIZATION; ORGANIZATIONAL IDENTIFICATION NUMBERS; CHANGES THERETO; ETC. Grantor shall not change its legal name, its type of organization, its status as a Registered Organization, subject to applicable law, its status as a Transmitting Utility or as a Person which is not a Transmitting Utility, as the case may be, its jurisdiction of organization or its organizational identification number (if any), except that any such changes shall be permitted if (i) it shall have given to the Administrative Agent not less than ten (10) days prior written notice of each change to the information listed on Annex A (as adjusted for any subsequent changes thereto previously made in accordance with this sentence); provided that any change in status as a Registered Organization that is the result of or related to a change in applicable law shall require prompt written notification upon Grantor’s knowledge of such change in applicable law in lieu of prior written notification, and (ii) in connection with such respective change or changes, it shall have taken all action reasonably requested by the Administrative Agent to maintain the security interests of the Administrative Agent in the Collateral intended to be granted hereby at all times fully perfected and in full force and effect. In addition, to the extent that Grantor does not have an organizational identification number on the date hereof and later obtains one, Grantor shall promptly thereafter notify the Administrative Agent of such organizational identification number and shall take all actions reasonably satisfactory to the Administrative Agent to the extent necessary to maintain the security interest of the Administrative Agent in the Collateral intended to be granted hereby fully perfected and in full force and effect.

18. GRANTOR’S OBLIGATIONS ABSOLUTE, ETC. The obligations of Grantor under this Agreement shall be absolute and unconditional and shall remain in full force and effect without regard to, and shall not be released, suspended, discharged, terminated or otherwise affected by any circumstance or occurrence whatsoever, including, without limitation:

(i) any renewal, extension, amendment or modification of or addition or supplement to or deletion from any Loan Document or any other instrument or agreement referred to therein, or any assignment or transfer of any thereof; (ii) any waiver, consent, extension, indulgence or other action or inaction under or in respect of any such agreement or instrument including, without limitation, this Agreement; (iii) any furnishing of any additional security to the Administrative Agent or its assignee or any acceptance thereof or any security by the Administrative Agent or its assignee; (iv) any limitation on any party’s liability or obligations under any such instrument or agreement or any invalidity or unenforceability, in whole or in part, of any such instrument or agreement or any term thereof; or (v) any bankruptcy, insolvency, reorganization, composition, adjustment, dissolution, liquidation or other like proceeding relating to Grantor or any Subsidiary of Grantor, or any action taken with respect to this Agreement by any trustee or receiver, or by any court, in any such proceeding, whether or not Grantor shall have notice or knowledge of any of the foregoing.

19. PRIVATE SALES. If at any time when the Administrative Agent shall determine to exercise its right to sell all or any part of the Collateral pursuant to Section 7 hereof, as then in effect, the Administrative Agent may, in its sole and absolute discretion, sell such Collateral, as the case may be, or part thereof by private sale in such manner and under such circumstances as the Administrative Agent may deem necessary or advisable. Without limiting the generality of the foregoing, in any such event the Administrative Agent, in its sole and absolute discretion (i) may proceed to make such private sale, (ii) may approach and negotiate with a single possible purchaser to effect such sale, and (iii) may restrict such sale to a purchaser who will represent and agree that such purchaser is purchasing for its own account, for investments, and not with a view to the distribution or sale of such Collateral or part thereof. In the event of any such sale, the Administrative Agent shall incur no responsibility or liability for selling all or any part of the Collateral at a price which the Administrative Agent, in its sole and absolute discretion, in good faith deems reasonable under the circumstances, notwithstanding the possibility that a substantially higher price might be realized at a public sale.

20. TERMINATION; RELEASE. (a) After the Termination Date, this Agreement and the security interest created hereby shall automatically terminate (provided that all indemnities set forth herein including, without limitation, in Section 11 hereof shall survive any such termination), and the Administrative Agent, at the request and expense of the Grantor, will execute and deliver to Grantor a proper instrument or instruments acknowledging the satisfaction and termination of this Agreement, and will duly assign, transfer and deliver to Grantor (without recourse and without any representation or warranty) such of the Collateral as has not theretofore been sold or otherwise applied or released pursuant to this Agreement, together with any monies at the time held by the Administrative Agent or any of its sub-agents hereunder. As used in this Agreement, “Termination Date” shall mean the date upon which all Commitments under the Credit Agreement have been terminated, no Note under the Credit Agreement is outstanding and all Loans thereunder have been repaid in full in accordance with the terms thereof, all Letters of Credit issued under the Credit Agreement have been terminated, and all other Obligations then due and payable have been paid in full in cash in accordance with the terms thereof. In the event that any Subsidiary Guarantor is released from its Obligations hereunder pursuant to Section 7.1.9 of the Credit Agreement, the Administrative Agent, at the request and expense of such Subsidiary Guarantor, shall execute and deliver an instrument acknowledging such Subsidiary Guarantor’s release from this Agreement.

(b) In the event that any part of the Collateral is sold or otherwise disposed of in connection with a sale or other disposition permitted by the Loan Documents (other than a sale or other disposition to Grantor or any Subsidiary thereof) or is otherwise released with the consent of the Required Lenders and the proceeds of such other sale or disposition or from such release are applied in accordance with the provisions of the Loan Documents to the extent required to be so applied, the Administrative Agent, at the request and expense of Grantor, will duly assign, transfer and deliver to Grantor (without recourse and without any representation or warranty) such of the Collateral (and releases therefore) as is then being (or has been) so sold or released and has not theretofore been released pursuant to this Agreement.

(c) At any time that Grantor desires that the Administrative Agent assign, transfer and deliver Collateral (and releases therefore) as provided in Section 20(a) or (b) hereof, Grantor shall deliver to the Administrative Agent a certificate signed by an authorized officer of Grantor stating that the release of the respective Collateral is permitted pursuant to such Section 20(a) or (b).

(d) The Administrative Agent shall have no liability whatsoever to any other Secured Creditor as the result of any release of Collateral by it in accordance with this Section 20.

21. NOTICES, ETC. All notices and communications hereunder shall be in writing and sent or delivered by mail, telegraph, telex, telecopy, cable or overnight courier service and all such notices and communications shall, when mailed, telegraphed, telexed, telecopied, or cabled or sent by overnight courier, be effective when deposited in the mails, delivered to the telegraph company, cable company or overnight courier, as the case may be, or sent by telex or telecopier, except that notices and communications to the Administrative Agent or Grantor shall not be effective until received by the Administrative Agent or Grantor, as the

case may be. All such notices and other communications shall be in writing and addressed as follows:

(a) if to Grantor, at:

Spirit Realty, L.P.

c/o Spirit Realty Capital, Inc.

16767 North Perimeter Drive, Suite 210

Scottsdale, Arizona 85260

Attn: Michael Bender, Chief Financial Officer

(b) if to the Administrative Agent, at:

60 Wall Street

New York, New York 10005

Attn: James Rolison

Telephone No.:  (212) 250-3352

Telecopier No.:  (646) 324-7091

with a copy to:

Deutsche Bank Securities Inc.

Crescent Court

Suite 550

Dallas, Texas 75201

Attn: Linda Davis

Telephone No.: (214) 740-7900

Telecopier No.: (214) 740 - 7910

Skadden, Arps, Slate, Meagher & Flom LLP

Four Times Square

New York, New York 10036

Attn: Audrey Sokoloff

Telephone No.:  (212) 735-2170

Telecopier No.:  (917) 777-2170

(c) if to any Secured Creditor, at such address as such Secured Creditor shall have specified in the Credit Agreement; or at such other address or addressed to such other individual as shall have been furnished in writing by any Person described above to the party required to give notice hereunder.

22. WAIVER; AMENDMENT. Except as provided in Sections 20 and 30 hereof, none of the terms and conditions of this Agreement may be changed, waived, modified or varied in any manner whatsoever unless in writing duly signed by Grantor directly affected thereby (it being understood that the addition or release of any Grantor hereunder shall not constitute a chance, waiver, discharge or termination affecting any Grantor other than the Grantor so added or released) and the Administrative Agent (with the written consent of the Required Lenders).

23. MISCELLANEOUS. This Agreement shall and shall be binding upon the parties hereto and their respective successors and assigns and shall inure to the benefit of and be enforceable by each of the parties hereto and their respective successors and assigns, provided that Grantor may not assign any of its rights or obligations except in accordance with the terms of the other Loan Documents.

24. HEADINGS DESCRIPTIVE. The headings of the several Sections of this Agreement are inserted for convenience only and shall not in any way affect the meaning or construction of any provision of this Agreement.

25. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL. (a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, IN EACH CASE WHICH ARE LOCATED IN THE COUNTY OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, GRANTOR HEREBY IRREVOCABLY ACCEPTS FOR ITSELF, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. GRANTOR HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK PERSONAL JURISDICTION OVER GRANTOR, AND AGREES NOT TO PLEAD OR CLAIM IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT BROUGHT IN ANY OF THE AFORESAID COURTS THAT ANY SUCH COURT LACKS PERSONAL JURISDICTION OVER GRANTOR. GRANTOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO GRANTOR AT ITS ADDRESS FOR NOTICES AS PROVIDED IN SECTION 21 ABOVE, SUCH SERVICE TO BECOME EFFECTIVE THIRTY (30) DAYS AFTER SUCH MAILING. GRANTOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER OR UNDER ANY OTHER LOAN DOCUMENT THAT SUCH SERVICE OF PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT UNDER THIS AGREEMENT, OR ANY SECURED CREDITOR, TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED

BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST GRANTOR IN ANY OTHER JURISDICTION.

(b) GRANTOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (a) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.

26. GRANTOR’S DUTIES. It is expressly agreed, anything herein contained to the contrary notwithstanding, that Grantor shall remain liable to perform all of the obligations, if any, assumed by it with respect to the Collateral and the Administrative Agent shall not have any obligations or liabilities, except as expressly set forth herein, with respect to the Collateral by reason of or arising out of this Agreement, nor shall the Administrative Agent be required or obligated in any manner to perform or fulfill any of the obligations of Grantor under or with respect to any Collateral.

27. COUNTERPARTS. This Agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same instrument. A set of counterparts executed by all the parties hereto shall be lodged with Grantor and the Administrative Agent.

28. SEVERABILITY. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

29. RECOURSE. This Agreement is made with full recourse to Grantor and pursuant to and upon all the representations, warranties, covenants and agreements on the part of Grantor contained herein and in the other Loan Documents and otherwise in writing in connection herewith or therewith.

30. ADDITIONAL GRANTORS. In the event more than one Person is a Grantor hereunder, the obligations and liabilities shall be joint and several and Annex A shall be updated as appropriate.

31. LIMITED OBLIGATIONS. It is the desire and intent of Grantor and the Secured Creditors that this Agreement shall be enforced against Grantor to the fullest extent permissible under the laws applied in each jurisdiction in which enforcement is sought.

32. RELEASE OF GRANTOR. If at any time all of the Equity Interests of Grantor are sold (to a Person other than the Borrower or a Subsidiary) in a transaction permitted pursuant to the Loan Documents, Grantor shall be released as a Grantor pursuant to this Agreement without any further action hereunder (it being understood that the sale of all of the Equity Interests (and all Collateral owned by Grantor shall be released from any liens on the security interest granted hereunder) in any Person that owns, directly or indirectly, all of the Equity Interests in Grantor shall be deemed to be a sale of all of the Equity Interests in Grantor for purposes of this Section 32), and the Administrative Agent is authorized and directed to execute and deliver such instruments of release as are reasonably satisfactory to it. If at any time all of the Collateral of Grantor is sold (in a manner permitted under the Loan Documents), Grantor will be released from any liens on the security interest granted hereunder. At any time that the Borrower desires that Grantor be released from this Agreement as provided in this Section 32, the Borrower shall deliver to the Administrative Agent a certificate signed by an officer of the Borrower stating that the release of Grantor is permitted pursuant to the terms of the Credit Agreement and this Section 32 and including reasonable supporting documentation with respect thereto. The Administrative Agent shall have no liability whatsoever to any other Secured Creditor as a result of the release of Grantor by it in accordance with, or which it believes to be in accordance with, this Section 32.

* * * *

IN WITNESS WHEREOF, Grantor and the Administrative Agent have caused this Agreement to be executed by their duly elected officers duly authorized as of the date first above written.

GRANTOR:

SPIRIT REALTY, L.P., a Delaware limited partnership

By: Spirit General OP Holdings, LLC, as sole general partner

By:

Name:

Title:

SPIRIT REALTY CAPITAL, INC. a Maryland corporation

By:

Name:

Title:

SPIRIT GENERAL OP HOLDINGS, LLC, a Delaware limited liability company

By:

Name:

Title:

SPIRIT MASTER FUNDING IV, LLC a Delaware limited liability company

By:

Name:

Title:

SPIRIT MASTER FUNDING V, LLC a Delaware limited liability company

By:

Name:

Title:

Accepted and Agreed to:
ADMINISTRATIVE AGENT:
DEUTSCHE BANK AG NEW YORK BRANCH
By:
	Name:
	Title:
By:
	Name:

EX-10.4

Exhibit 10.4

OMNIBUS COLLATERAL ASSIGNMENT OF MATERIAL AGREEMENTS, PERMITS AND LICENSES

THIS OMNIBUS COLLATERAL ASSIGNMENT OF MATERIAL AGREEMENTS, PERMITS AND LICENSES dated as of July 17, 2013 (this “Assignment”), by the undersigned (each, an “Assignor” and together, the “Assignors”) to DEUTSCHE BANK AG NEW YORK BRANCH, as administrative agent (in such capacity, together with its successors and assigns, “Assignee”).

RECITALS:

WHEREAS, Spirit Realty, L.P. (the “Borrower”), the lenders from time to time party thereto (the “Lenders”), and the Assignee, as administrative agent, have entered into a Credit Agreement, dated as of July 17, 2013 (as amended, modified or supplemented from time to time, the “Credit Agreement”), providing for the making of Loans to and the issuance of, and participation in, Letters of Credit for the account of the Borrower, all as contemplated therein (the Assignee, the Issuer, the Lenders and their subsequent successors and assigns, are herein called the “Secured Creditors”).

WHEREAS, each of Guarantor and General Partner is the owner of a direct or indirect beneficial interest in the Borrower.

WHEREAS, it is a condition to the extensions of credit under the Credit Agreement that, as additional security for the payment or performance of the Obligations under the Credit Agreement and the observance and performance by Assignors of the terms, covenants and conditions of the Security Documents and the Loan Documents on the part of Assignors to be observed or performed thereunder, the Assignors in the manner hereinafter set forth collaterally assign to Assignee all of Assignors’ right, title and interest in and to (i) all Material Agreements entered into as of the date hereof, a complete list of which is more particularly described on Schedule A attached hereto and incorporated herein; (ii) any material permits and licenses (“Material Permits”) entered into as of the date hereof as more particularly described on Schedule B attached hereto and (iii) any Material Agreements entered into from and after the Closing Date and/or any Material Permits obtained from and after the Closing Date until the Revolving Loan Commitment Termination Date, in each case, as more particularly described on Schedule A and/or Schedule B, respectively (as each such exhibit may be supplemented or amended from time to time).

WHEREAS, Guarantor, General Partner and each of their subsidiaries will obtain direct and indirect material benefits from the incurrence of Loans by the Borrower and the issuance of Letters of Credit for the account of the Borrower under the Credit Agreement by the Secured Creditors and, accordingly, desires to enter into this Agreement in order to induce the Lenders to make Loans to the Borrower and issue, and/or participate in, Letters of Credit for the account of the Borrower.

WHEREAS, the forgoing recitals are intended to form an integral part of this Assignment.

1

AGREEMENT:

For good and valuable consideration the parties hereto agree as follows:

Section 1. Definitions. Unless the context otherwise requires, capitalized terms used but not otherwise defined herein shall have the respective meanings provided therefor in the Credit Agreement.

Section 2. Collateral Assignment of the Material Agreements, Permits and Licenses. As additional security for the payment or performance of the Obligations under the Credit Agreement and the observance and performance by such Assignor of the terms, covenants and conditions of the Security Documents and the Loan Documents on the part of such Assignor to be observed or performed, each Assignor hereby collaterally assigns and grants to Assignee a security interest in all of such Assignor’s rights, title and interest in and to the Material Agreements and Material Permits; provided however, that Assignor shall not be required to collaterally assign any Material Agreement that is pledged or assigned to holder(s) of Mortgage Indebtedness which prohibits the further assignment or grant of a security interest to Assignee hereunder. Assignee hereby grants to Assignors a license to perform under and to receive performance by the parties to the Material Agreements and Material Permits, which license shall terminate upon delivery of notice by Assignee after the occurrence and during the continuance of an Event of Default. Upon repayment of the Obligations under the Credit Agreement and termination of the Credit Agreement, this Assignment shall automatically terminate and all rights and interest granted hereunder shall be automatically released. Notwithstanding anything herein to the contrary, in no event shall the Material Agreements or Material Permits include or the collateral assignment or security interest granted herein attach to (a) any Material Agreement or Material Permit to which any Assignor is a party, and any of its rights or interest thereunder, if and to the extent that a security interest is prohibited by or in violation of any law, rule or regulation applicable to such Assignor, (b) any Material Agreement or Material Permit to which any Assignor is a party, and any of its rights or interest thereunder, if and to the extent that a security interest is prohibited by or in violation of a term, provision or condition (including any requirement to obtain the consent of any third party that has not been obtained) that constitutes a breach or default under such Material Agreement or Material Permit or results in the termination of such Material Agreement or Material Permit and only to the extent that such term or provision was not rendered ineffective pursuant to Section 9-406 through 9-409 of the UCC; provided however, that the Material Agreements and Material Permits shall include (and such security interest shall attach) immediately at such time as the prohibition shall no longer be applicable and to the extent severable, shall attach immediately to any portion of such Material Agreement or Material Permit not subject to the prohibitions specified above; provided further that the exclusions referred to in this Section 2 shall not include any proceeds of any such Material Agreement or Material Permit.

2

Section 3. Governing Law. This Assignment shall be deemed to be governed, construed, applied and enforced in accordance with the laws of the State of New York and the applicable laws of the United States of America.

Section 4. Notices. All notices or other written communications hereunder shall be deemed to have been properly given and become effective as provided in the Credit Agreement.

Section 5. No Oral Change. This Assignment, and any provisions hereof, may not be modified, amended, waived, extended, changed, discharged or terminated orally or by any act or failure to act on the part of Assignors or Assignee, but only by an agreement in writing signed by the party against whom enforcement of any modification, amendment, waiver, extension, change, discharge or termination is sought.

Section 6. Security Agreement. The collateral assignment and security interest granted pursuant to this Assignment is granted in conjunction with the security interest granted to the Assignee pursuant to the Security Agreement, and each Assignor hereby acknowledges and affirms that the rights and remedies of the Assignee with respect to the collateral assignment and security interest granted by them in the Material Agreements and Material Permits made and granted hereby are more fully set forth in the Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein. To the extent there is any conflict between the terms of this Assignment and the Security Agreement, the Security Agreement shall control.

Section 7. Inapplicable Provisions. If any term, covenant or condition of this Assignment is held to be invalid, illegal or unenforceable in any respect, this Assignment shall be construed without such provision.

Section 8. Headings, etc. The headings and captions of various paragraphs of this Assignment are for convenience of reference only and are not to be construed as defining or limiting, in any way, the scope or intent of the provisions hereof.

Section 9. Counterparts. This Assignment may be executed in several counterparts, each of which counterparts shall be deemed an original instrument and all of which together shall constitute a single Assignment.

Section 10. Number and Gender. Whenever the context may require, any pronouns used herein shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns shall include the plural and vice versa.

Section 11. Successors and Assigns. This Assignment shall be binding upon and inure to the benefit of the parties hereto and their respective successors, transferees and assigns.

[REMAINDER OF PAGE INTENTIONALLY BLANK]

3

IN WITNESS WHEREOF, Assignors have executed this Assignment as of the date first written above.

ASSIGNOR:

SPIRIT REALTY, L.P., a Delaware limited partnership

By: Spirit General OP Holdings, LLC, as sole general partner

By:

Name:

Title:

SPIRIT REALTY CAPITAL, INC. a Maryland corporation

By:

Name:

Title:

SPIRIT GENERAL OP HOLDINGS, LLC, a Delaware limited liability company

By:

Name:

Title:

SPIRIT MASTER FUNDING IV, LLC, a Delaware limited liability company

By:

Name:

Title:

4

SPIRIT MASTER FUNDING V, LLC, a Delaware limited liability company

By:

Name:

Title:

5

IN WITNESS WHEREOF, Assignee has executed this Assignment as of the date and year first written above.

DEUTSCHE BANK AG NEW YORK BRANCH
By:
	Name:
	Title:
DEUTSCHE BANK AG NEW YORK BRANCH
By:
	Name:
	Title:

6

EX-10.5

Exhibit 10.5

LOAN AGREEMENT

Dated as of July 17, 2013

between

SPIRIT SPE LOAN PORTFOLIO 2013-2, LLC,

as Borrower

and

GERMAN AMERICAN CAPITAL CORPORATION,

as Lender

Table of Contents

				Page
I.	DEFINITIONS; PRINCIPLES OF CONSTRUCTION				1
	Section 1.1.	Definitions			1
	Section 1.2.	Principles of Construction			30
II.	GENERAL TERMS				30
	Section 2.1.	Loan Commitment; Disbursement to Borrower			30
		2.1.1.	Agreement to Lend and Borrow		30
		2.1.2.	Single Disbursement to Borrower		30
		2.1.3.	The Note, Security Instruments and Loan Documents		30
		2.1.4.	Use of Proceeds		30
	Section 2.2.	Interest; Loan Payments; Late Payment Charge			30
		2.2.1.	Payments		30
		2.2.2.	Interest Calculation		31
		2.2.3.	Payment on Maturity Date		31
		2.2.4.	Payments after Default		31
		2.2.5.	Late Payment Charge		32
		2.2.6.	Usury Savings		32
		2.2.7.	Indemnified Taxes		32
		2.2.8.	Invalidated Payments		34
	Section 2.3.	Prepayments			35
		2.3.1.	Voluntary Prepayments		35
		2.3.2.	Mandatory Prepayments		36
		2.3.3.	Prepayments After Default		36
		2.3.4.	Making of Payments		37
		2.3.5.	Application of Principal Prepayments		37
	Section 2.4.	[Intentionally deleted.]			37
	Section 2.5.	Release of an Individual Property			37
	Section 2.6.	Substitutions of Property			40
III.	CASH MANAGEMENT				45
	Section 3.1.	Establishment of Accounts			45
	Section 3.2.	Deposits into Lockbox Account			46
	Section 3.3.	Account Name			47
	Section 3.4.	Eligible Accounts			47
	Section 3.5.	Permitted Investments			47
	Section 3.6.	The Initial Deposits			47
	Section 3.7.	Transfer to and Disbursements from the Cash Management Account			48
	Section 3.8.	Withdrawals From the Tax Account and the Insurance Premium Account			49
	Section 3.9.	Withdrawals from the Required Repair Account			49

i

Table of Contents

(continued)

				Page
	Section 3.10.	Withdrawals from the Replacement Reserve Account			49
	Section 3.11.	Withdrawals from the Debt Service Account			49
	Section 3.12.	Withdrawals from the Rollover Reserve Account			50
	Section 3.13.	Withdrawals from the Excess Cash Reserve Account			50
	Section 3.14.	Sole Dominion and Control			50
	Section 3.15.	Security Interest			50
	Section 3.16.	Rights on Default			50
	Section 3.17.	Financing Statement; Further Assurances			50
	Section 3.18.	Borrower’s Obligation Not Affected			51
	Section 3.19.	Payments Received Under this Agreement			51
IV.	REPRESENTATIONS AND WARRANTIES				51
	Section 4.1.	Borrower Representations			51
		4.1.1.	Organization		51
		4.1.2.	Proceedings		52
		4.1.3.	No Conflicts		52
		4.1.4.	Litigation		52
		4.1.5.	Agreements		53
		4.1.6.	Title		53
		4.1.7.	Permitted Encumbrances		53
		4.1.8.	Solvency		54
		4.1.9.	Full and Accurate Disclosure		54
		4.1.10.	No Plan Assets		54
		4.1.11.	Compliance		54
		4.1.12.	Financial Information		55
		4.1.13.	Condemnation		55
		4.1.14.	Federal Reserve Regulations		55
		4.1.15.	Utilities and Public Access		55
		4.1.16.	Not a Foreign Person		56
		4.1.17.	Separate Lots		56
		4.1.18.	Assessments		56
		4.1.19.	Enforceability		56
		4.1.20.	No Prior Assignment		56
		4.1.21.	Insurance		56
		4.1.22.	Use of Property		56
		4.1.23.	Certificate of Occupancy; Licenses		57
		4.1.24.	Flood Zone		57
		4.1.25.	Physical Condition		57
		4.1.26.	Boundaries		57
		4.1.27.	Leases		58
		4.1.28.	Title and Survey		58
		4.1.29.	Loan to Value		59
		4.1.30.	Filing and Recording Taxes		59

ii

Table of Contents

(continued)

				Page
		4.1.31.	Management Agreement		59
		4.1.32.	Illegal Activity		59
		4.1.33.	No Change in Facts or Circumstances; Disclosure		59
		4.1.34.	Investment Company Act		60
		4.1.35.	Principal Place of Business; State of Organization		60
		4.1.36.	Single Purpose Entity		60
		4.1.37.	Business Purposes		65
		4.1.38.	Taxes		65
		4.1.39.	Forfeiture		65
		4.1.40.	Environmental Representations and Warranties		66
		4.1.41.	Taxpayer Identification Number		66
		4.1.42.	OFAC		66
		4.1.43.	Pre-Existing Liability		67
		4.1.44.	Deposit Accounts		67
		4.1.45.	Embargoed Person		68
		4.1.46.	Third Party Representations		69
		4.1.47.	Insolvency Opinion Assumptions		69
	Section 4.2.	Survival of Representations			69
V.	BORROWER COVENANTS				69
	Section 5.1.	Affirmative Covenants			69
		5.1.1.	Existence; Compliance with Legal Requirements		69
		5.1.2.	Taxes and Other Charges		70
		5.1.3.	Litigation		70
		5.1.4.	Access to Property		71
		5.1.5.	Notice of Default		71
		5.1.6.	Cooperate in Legal Proceedings		71
		5.1.7.	Award and Insurance Benefits		71
		5.1.8.	Further Assurances		71
		5.1.9.	Mortgage and Intangible Taxes		72
		5.1.10.	Financial Reporting		72
		5.1.11.	Business and Operations		75
		5.1.12.	Costs of Enforcement		75
		5.1.13.	Estoppel Statement		75
		5.1.14.	Loan Proceeds		76
		5.1.15.	Performance by Borrower		76
		5.1.16.	Confirmation of Representations		76
		5.1.17.	Leasing Matters		76
		5.1.18.	Management Agreement		78
		5.1.19.	Environmental Covenants		79
		5.1.20.	Alterations		80
		5.1.21.	Intentionally Omitted		81

iii

Table of Contents

(continued)

				Page
		5.1.22.	OFAC		81
		5.1.23.	O&M Program		81
		5.1.24.	Single Purpose Entity Compliance		82
	Section 5.2.	Negative Covenants			82
		5.2.1.	Liens		82
		5.2.2.	Dissolution		82
		5.2.3.	Change In Business		83
		5.2.4.	Debt Cancellation		83
		5.2.5.	Zoning		83
		5.2.6.	No Joint Assessment		83
		5.2.7.	Name, Identity, Structure, or Principal Place of Business		83
		5.2.8.	ERISA		84
		5.2.9.	Affiliate Transactions		84
		5.2.10.	Transfers		84
		5.2.11.	Transfer and Assumption		87
VI.	INSURANCE; CASUALTY; CONDEMNATION; REQUIRED REPAIRS				89
	Section 6.1.	Insurance			89
	Section 6.2.	Casualty			95
	Section 6.3.	Condemnation			95
	Section 6.4.	Restoration			96
VII.	RESERVE FUNDS				102
	Section 7.1.	Required Repair Funds			102
		7.1.1.	Deposits to Required Repair Fund		102
		7.1.2.	Release of Required Repair Funds		102
	Section 7.2.	Tax and Insurance Escrow Fund			103
	Section 7.3.	Replacements and Replacement Reserve Fund			104
		7.3.1.	Deposits to Replacement Reserve Fund		104
		7.3.2.	Disbursements from Replacement Reserve Account		105
		7.3.3.	Performance of Replacements		106
		7.3.4.	Failure to Make Replacements		108
		7.3.5.	Balance in the Replacement Reserve Account		109
	Section 7.4.	Rollover Reserve Fund			109
		7.4.1.	Deposits to Rollover Reserve Fund		109
		7.4.2.	Letter of Credit		109
		7.4.3.	Withdrawal of Rollover Reserve Funds		110
	Section 7.5.	Fed Ex (Walker, MI) Lease Reserve Fund			111
	Section 7.6.	Excess Cash Flow Reserve Fund			111

iv

Table of Contents

(continued)

				Page
		7.6.1.	Deposits to Excess Cash Reserve Fund		111
		7.6.2.	Withdrawal of Excess Cash Flow Reserve Funds		111
	Section 7.7.	Reserve Funds, Generally			111
VIII.	DEFAULTS				112
	Section 8.1.	Event of Default			112
	Section 8.2.	Remedies			116
	Section 8.3.	Remedies Cumulative; Waivers			117
IX.	SPECIAL PROVISIONS				118
	Section 9.1.	Sale of Notes and Securitization			118
	Section 9.2.	Securitization Indemnification			120
	Section 9.3.	Servicer			123
	Section 9.4.	Exculpation			123
	Section 9.5.	Mezzanine Financing			127
	Section 9.6.	Splitting the Loan			129
	Section 9.7.	Loan Component Repayment			129
X.	MISCELLANEOUS				129
	Section 10.1.	Survival			129
	Section 10.2.	Lender’s Discretion			130
	Section 10.3.	Governing Law			130
	Section 10.4.	Modification, Waiver in Writing			130
	Section 10.5.	Delay Not a Waiver			131
	Section 10.6.	Notices			131
	Section 10.7.	Trial by Jury			132
	Section 10.8.	Headings			132
	Section 10.9.	Severability			132
	Section 10.10.	Preferences			133
	Section 10.11.	Waiver of Notice			133
	Section 10.12.	Remedies of Borrower			133
	Section 10.13.	Expenses; Indemnity			133
	Section 10.14.	Schedules and Exhibits Incorporated			135
	Section 10.15.	Offsets, Counterclaims and Defenses			135
	Section 10.16.	No Joint Venture or Partnership; No Third Party Beneficiaries			135
	Section 10.17.	Publicity			135
	Section 10.18.	Cross-Default; Cross-Collateralization; Waiver of Marshalling of Assets			136
	Section 10.19.	Waiver of Counterclaim			136
	Section 10.20.	Conflict; Construction of Documents; Reliance			136
	Section 10.21.	Brokers and Financial Advisors			137
	Section 10.22.	Prior Agreements			137

v

LOAN AGREEMENT

THIS LOAN AGREEMENT, dated as of July 17, 2013 (as amended, restated, replaced, supplemented or otherwise modified from time to time, this “Agreement”), between GERMAN AMERICAN CAPITAL CORPORATION, a Maryland corporation having an address at 60 Wall Street, New York, New York 10005 ( “GACC” or “Lender”) and SPIRIT SPE LOAN PORTFOLIO 2013-2, LLC, a Delaware limited liability company, having its principal place of business at 16767 N. Perimeter Drive, Suite 210, Scottsdale, Arizona 85260-1042 (“Borrower”).

W I T N E S S E T H:

WHEREAS, Borrower desires to obtain the Loan (as hereinafter defined) from Lender; and

WHEREAS, Lender is willing to make the Loan to Borrower, subject to and in accordance with the terms of this Agreement and the other Loan Documents (as hereinafter defined).

NOW THEREFORE, in consideration of the making of the Loan by Lender and the covenants, agreements, representations and warranties set forth in this Agreement, the parties hereto hereby covenant, agree, represent and warrant as follows:

I. DEFINITIONS; PRINCIPLES OF CONSTRUCTION

Section 1.1. Definitions.

For all purposes of this Agreement, except as otherwise expressly required or unless the context clearly indicates a contrary intent:

“Account Collateral” shall mean: (i) the Accounts, and all Cash, checks, drafts, certificates and instruments, if any, from time to time deposited or held in the Accounts from time to time; (ii) any and all amounts invested in Permitted Investments; (iii) all interest, dividends, Cash, instruments and other property from time to time received, receivable or otherwise payable in respect of, or in exchange for, any or all of the foregoing; and (iv) to the extent not covered by clauses (i) - (iii) above, all “proceeds” (as defined under the UCC as in effect in the State in which the Accounts are located) of any or all of the foregoing.

“Accounts” shall mean, collectively, the Lockbox Account, the Tax Account, the Insurance Premium Account, the Required Repair Account, the Replacement Reserve Account, the Debt Service Account, the Rollover Reserve Account, the Cash Management Account, the Excess Cash Reserve Account or any other escrow accounts or reserve accounts established by the Loan Documents.

“Additional Collateral” shall have the meaning set forth in the Assignment of Agreements Affecting Real Estate.

“Additional Indemnified Liabilities” shall have the meaning set forth in Section 10.13(b) hereof.

“Affiliate” shall mean, as to any Person, any other Person that, directly or indirectly, is in control of, is controlled by or is under common control with such Person or is a director or officer of such Person or of an Affiliate of such Person. Such term shall include Guarantor unless otherwise specified or if the context may otherwise require.

“Affiliated Manager” shall mean any property manager which is an Affiliate of, or in which Borrower or Guarantor has, directly or indirectly, any legal, beneficial or economic interest.

“Allocated Loan Amount” shall mean, for an Individual Property, the amount set forth on Schedule I attached hereto.

“ALTA” shall mean American Land Title Association or any successor thereto.

“Alteration Threshold” shall mean an amount equal to five percent (5%) of the Allocated Loan Amount for the related Individual Property.

“Annual Budget” shall mean the projected budget for all anticipated operating expenditures required to be made by Borrower as landlord and solely to the extent any Tenant under a Single Tenant Lease is not otherwise obligated to pay the same, including maintenance, operating expenses, capital expenditures and repair obligations (excluding any allocated insurance premium), for the applicable Individual Property, prepared by Borrower for the applicable Fiscal Year or other period.

“Applicable Interest Rate” shall mean 5.5% per annum.

“Applicable Laws” shall mean all existing and future federal, state and local laws, orders, ordinances, governmental rules and regulations and court orders.

“Appraisal” shall mean an appraisal prepared in accordance with the requirements of FIRREA and USPAP, prepared by an independent third party appraiser holding an MAI designation, who is State licensed or State certified if required under the laws of the State where the applicable Individual Property is located, who meets the requirements of FIRREA and USPAP and who is otherwise satisfactory to Lender.

“Approved Accountant” shall mean a “Big Four” accounting firm or other independent certified public accountant acceptable to Lender.

“Approved Annual Budget” shall have the meaning set forth in Section 5.1.10(e) hereof.

“Approved Bank” means either (a) a bank or other financial institution which has the Required Rating, (b) if a Securitization has not occurred, a bank or other financial institution acceptable to Lender or (c) if a Securitization has occurred, a bank or other financial institution reasonably acceptable to Lender with respect to which Lender shall have received confirmation in writing from the applicable Rating Agencies to the effect that the issuance of a Letter of Credit from such bank or such financial institution will not result in a downgrading, withdrawal or qualification of the respective ratings in effect immediately prior to the issuance of such Letter of Credit.

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“Assignment of Agreements Affecting Real Estate” shall mean, that certain Assignment of Agreements Affecting Real Estate, dated as of the date hereof, from Borrower, as assignor, to Lender, as assignee, assigning to Lender all of Borrower’s interest in and to the Additional Collateral as security for the Loan, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Assignment of Management Agreement” shall mean, if Borrower has hired a Manager, a conditional assignment of management agreement in form and substance acceptable to Lender as and when required to be delivered to Lender in accordance with the terms of this Agreement.

“Award” shall mean any compensation paid by any Governmental Authority in connection with a Condemnation in respect of all or any part of any Individual Property.

“Bankruptcy Code” shall mean Title 11 U.S.C. § 101 et seq., and the regulations adopted and promulgated pursuant thereto (as the same may be amended from time to time).

“Bankruptcy Event” shall mean the occurrence of any one or more the of the following: (i) Borrower files a voluntary petition under the Bankruptcy Code or any other Creditors Rights Laws; (ii) any Borrower Party files, or joins in the filing of, an involuntary petition against Borrower under the Bankruptcy Code or any other Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower from any Person; (iii) Borrower files an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person under the Bankruptcy Code or any other Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition from any Person; (iv) any Borrower Party consents to or acquiesces in or joins in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower or any portion of any Individual Property; (v) Borrower makes an assignment for the benefit of creditors; (vi) Borrower admits, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due unless failure to do so would be a violation of or contrary to any Legal requirement; (vii) the substantive consolidation of any Restricted Party with any other entity in connection with any proceeding under the Bankruptcy Code or any other Creditors Rights Laws involving Guarantor or its subsidiaries due to a breach by Borrower of Section 4.1.36 hereof; (viii) any Loan Party contesting or opposing any motion made by Lender to obtain relief from the automatic stay or seeking to reinstate the automatic stay in the event of any proceeding under the Bankruptcy Code or any other Creditors Rights Laws involving Guarantor its subsidiaries; and (ix) in the event Lender receives less than the full value of its claim in any proceeding under the Bankruptcy Code or any other Creditors Rights Laws, Guarantor or any of its Affiliates receiving an equity interest or other financial benefit of any kind as a result of a “new value” plan or equity contribution, unless consented to by Lender in its sole and absolute discretion.

“Basic Carrying Costs” shall mean, with respect to each Individual Property, the sum of the following costs associated with such Individual Property for the relevant Fiscal Year or payment period: (i) Taxes and (ii) Insurance Premiums.

“Borrower” shall have the meaning set forth in the introductory paragraph hereto, together with its successors and assigns.

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“Borrower Party” shall mean each of Borrower and Guarantor.

“Business Day” shall mean any day other than a Saturday, Sunday or any other day on which national banks in New York, New York are not open for business.

“Capital Expenditures” shall mean, for any period, the amount expended by Borrower for items capitalized under GAAP (including expenditures for building improvements or major repairs, leasing commissions and tenant improvements).

“Cash” shall mean coin or currency of the United States of America or immediately available federal funds, including such fund delivered by wire transfer.

“Cash Management Account” shall have the meaning set forth in Section 3.1(b)(i) hereof.

“Cash Management Bank” shall mean a financial institution selected by Lender, in Lender’s sole and absolute discretion.

“Casualty” shall have the meaning set forth in Section 6.2 hereof.

“Casualty Consultant” shall have the meaning set forth in Section 6.4(b)(iii) hereof.

“Casualty Retainage” shall have the meaning set forth in Section 6.4(b)(iv) hereof.

“Closing Date” shall mean the date of the funding of the Loan.

“Code” shall mean the Internal Revenue Code of 1986, as amended, as it may be further amended from time to time, and any successor statutes thereto, and all applicable U.S. Department of Treasury regulations issued pursuant thereto in temporary or final form.

“Collateral” shall mean the Properties, the Accounts, the Reserve Funds, the Guaranty, the Personal Property, the Rents, the Account Collateral, and all other real or personal property of Borrower or any Guarantor that is at any time pledged, mortgaged or otherwise given as security to Lender for the payment of the Debt under the Security Instruments, this Agreement or any other Loan Document.

“Condemnation” shall mean a temporary or permanent taking by any Governmental Authority as the result or in lieu or in anticipation of the exercise of the right of condemnation or eminent domain, of all or any part of any Individual Property, or any interest therein or right accruing thereto, including any right of access thereto or any change of grade affecting such Individual Property or any part thereof.

“Condemnation Proceeds” shall have the meaning set forth in Section 6.4(b) hereof.

“Control” (and the correlative terms “controlled by” and “controlling”) shall mean the possession, directly or indirectly, of the power to direct or cause the direction of management and policies of the business and affairs of the entity in question by reason of the ownership of beneficial interests, by contract or otherwise.

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“Creditors Rights Laws” shall mean with respect to any Person, any existing or future law of any jurisdiction, domestic or foreign, applicable to such Person and relating to bankruptcy, insolvency, reorganization, conservatorship, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to its debts or debtors.

“Debt” shall mean the outstanding principal amount set forth in, and evidenced by, this Agreement and the Note together with all interest accrued and unpaid thereon and all other sums (including the Yield Maintenance Premium and any applicable Liquidated Damages Amount) due to Lender in respect of the Loan under the Note, this Agreement, the Security Instruments or any other Loan Document.

“Debt Service” shall mean, with respect to any particular period of time, interest and principal payments due under the Note, for such period.

“Debt Service Account” shall have the meaning set forth in Section 3.1(b)(ii)(C) hereof.

“Debt Service Coverage Ratio” shall mean as of the date of calculation, a ratio, as reasonably determined by Lender for the applicable period in which:

(a) the numerator is the Underwritten Net Cash Flow for such period; and

(b) the denominator is the Debt Service due for such period.

Lender’s calculation of the Debt Service Coverage Ratio shall be conclusive absent manifest error.

“Debt Yield” shall mean as of the date of calculation, a ratio conveyed as a percentage in which: (i) the numerator is the Underwritten Net Cash Flow for such period; and (ii) the denominator is the then outstanding principal balance of the Loan.

“Default” shall mean the occurrence of any event hereunder or under any other Loan Document which, but for the giving of notice or passage of time, or both, would constitute an Event of Default.

“Default Rate” shall mean, with respect to the Loan, a rate per annum equal to the lesser of (a) the Maximum Legal Rate, or (b) three percent (3%) above the Applicable Interest Rate.

“Disclosure Document” shall have the meaning set forth in Section 9.2(a) hereof.

“Discount Rate” shall mean the rate which, when compounded monthly, is equivalent to the Treasury Rate when compounded semi annually.

“Eligible Account” shall mean a separate and identifiable account from all other funds held by the holding institution that is either (a) an account or accounts maintained with a federal or State-chartered depository institution or trust company which complies with the definition of Eligible Institution or (b) a segregated trust account or accounts maintained with a federal or State chartered depository institution or trust company acting in its fiduciary capacity which, in the case of a State chartered depository institution or trust company, is subject to regulations

5

substantially similar to 12 C.F.R.§9.10(b), having in either case a combined capital and surplus of at least $50,000,000 and subject to supervision or examination by federal and State authority. An Eligible Account will not be evidenced by a certificate of deposit, passbook or other instrument.

“Eligible Institution” shall mean a depository institution or trust company, insured by the Federal Deposit Insurance Corporation, (a) the short term unsecured debt obligations or commercial paper of which are rated at least A-1 by S&P, P-1 by Moody’s and F-1 by Fitch in the case of accounts in which funds are held for thirty (30) days or less, or (b) the long term unsecured debt obligations of which are rated at least “AA” by Fitch and S&P and “Aa2” by Moody’s in the case of accounts in which funds are held for more than thirty (30) days.

“Embargoed Person” shall have the meaning set forth in Section 4.1.45 hereof.

“Environmental Indemnity” shall mean that certain Environmental Indemnity Agreement dated as of the date hereof by Borrower and Guarantor in connection with the Loan for the benefit of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Environmental Law” shall mean any present and future federal, State and local laws, statutes, ordinances, rules, regulations, standards, and other governmental requirements, as well as common law, relating to the protection of the environment, Hazardous Materials and human exposure to Hazardous Materials, liability for, or costs of, other actual or threatened danger to human health or the environment. The term “Environmental Law” includes, but is not limited to, the following statutes, as amended, any successor thereto, and any regulations promulgated pursuant thereto, and any State or local statutes, ordinances, rules, regulations and the like addressing similar issues: the Comprehensive Environmental Response, Compensation and Liability Act; the Emergency Planning and Community Right-to-Know Act; the Hazardous Substances Transportation Act; the Resource Conservation and Recovery Act (including but not limited to Subtitle I relating to underground storage tanks); the Solid Waste Disposal Act; the Clean Water Act; the Clean Air Act; the Toxic Substances Control Act; the Safe Drinking Water Act; the Occupational Safety and Health Act; the Federal Water Pollution Control Act; the Federal Insecticide, Fungicide and Rodenticide Act; the Endangered Species Act; the National Environmental Policy Act; and the River and Harbors Appropriation Act. The term “Environmental Law” also includes, but is not limited to, any present and future federal, State and local laws, statutes ordinances, rules, regulations and the like, as well as common law, conditioning transfer of property upon a negative declaration or other approval of a governmental authority of the environmental condition of any Individual Property; requiring notification or disclosure of Releases of Hazardous Materials or other environmental condition of any Individual Property to any Governmental Authority or other Person, whether or not in connection with transfer of title to or interest in property; imposing conditions or requirements in connection with permits or other authorization for lawful activity; relating to Hazardous Materials on or affecting any Individual Property; and relating to wrongful death or personal injury resulting from exposure to Hazardous Materials, or property damage or other damage from the presence or Release of Hazardous Materials from an Individual Property.

“Environmental Liens” shall have the meaning set forth in Section 5.1.19(a) hereof.

6

“Environmental Report” shall have the meaning set forth in Section 4.1.40 hereof.

“Equity Change of Control” shall occur when: (i) Guarantor is no longer the sole member of Borrower, (ii) Spirit Holdings is no longer the sole general partner of Guarantor, (iii) the REIT’s direct interest in Guarantor and/or its indirect interest in Borrower falls below 51%, (iv) the Guarantor is no longer the guarantor/indemnitor of the Loan, (v) one person or entity or group of affiliated persons or entities (other than the REIT, which owns more than 49% of the OP Interests on the date hereof) acquires more than 49% of the REIT Shares or the OP Interests in one or a series of transactions, (vi) the individuals comprising the board of directors of the REIT, as the same exists for the twelve (12) month period immediately prior to the REIT Share Transfer, fail to represent a majority of the board of directors of the REIT as of the date of completion of the REIT Share Transfer and for a period of six (6) months following the REIT Share Transfer, subject to the terms of the last sentence of this paragraph, or (vii) if the REIT enters into a merger, consolidation or other business combination, or a sale of all or substantially all of the REIT’s assets and/or ownership interests which results in the REIT or Guarantor not being the surviving entity or Borrower otherwise no longer being controlled by the REIT. For purposes of determining the occurrence of (vi) above, the following shall be expressly excluded: any change in directors resulting from (A) the death or incapacity of any director and/or (B) the resignation or removal of or refusing to stand or failure to be re-nominated for reelection of the Board of any director for reasons unrelated to a REIT Share Transfer, provided any replacement director has been approved by a vote of at least a majority (or such higher percentage as may be required by the governing documents of the REIT) of the board of directors of the REIT then in office.

“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as the same may be amended from time to time.

“Event of Default” shall have the meaning set forth in Section 8.1(a) hereof.

“Excess Cash Reserve Account” shall have the meaning set forth in Section 3.1(b)(ii)(G) hereof.

“Excess Cash Reserve Fund” shall have the meaning set forth in Section 7.6.1 hereof.

“Exchange Act” shall have the meaning set forth in Section 9.2(a) hereof.

“Exchange Act Filing” shall have the meaning set forth in Section 9.2(a) hereof.

“Exchange Property” shall have the meaning set forth in Section 2.6 hereof.

“Executive Order” shall have the meaning set forth in the definition of Prohibited Persons.

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

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“FIRREA” shall mean the Financial Institutions Reform, Recovery and Enforcement Act of 1989, as the same may be amended from time to time.

“Fiscal Year” shall mean each twelve (12) month period commencing on January 1 and ending on December 31 during the term of the Loan.

“Fitch” shall mean Fitch, Inc.

“Flood Insurance Acts” shall have the meaning set forth in Section 6.1(a)(vii) hereof.

“Flood Insurance Policy” shall have the meaning set forth in Section 6.1(a)(vii) hereof.

“GAAP” shall mean generally accepted accounting principles in the United States of America as of the date of the applicable financial report.

“GACC” shall have the meaning set forth in the introductory paragraph hereto, together with its successors and assigns.

“Governmental Authority” shall mean any court, board, agency, commission, office, central bank or other authority of any nature whatsoever for any governmental unit (federal, State, county, district, municipal, city, country or otherwise) or quasi-governmental unit whether now or hereafter in existence.

“Governmental Plan” shall mean a “governmental plan” as defined in Section 3(32) of ERISA.

“Gross Income from Operations” shall mean all income, computed in accordance with GAAP derived from the ownership and operation of the Properties from whatever source, including, but not limited to, the Rents, utility charges, escalations, service fees or charges, license fees, parking fees, rent concessions or credits, and other required pass-throughs, but excluding sales, use and occupancy or other taxes on receipts required to be accounted for by Borrower to any Governmental Authority, refunds and uncollectible accounts, sales of furniture, fixtures and equipment, Insurance Proceeds (other than business interruption or other loss of income insurance), Awards, interest on credit accounts, security deposits, utility and other similar deposits, interest on the Reserve Funds, and any disbursements to Borrower from the Reserve Funds. Gross income shall not be diminished as a result of the Security Instruments or the creation of any intervening estate or interest in an Individual Property or any part thereof.

“Guarantor” shall mean Spirit Realty, L.P., a Delaware limited partnership, and any other entity guaranteeing any payment or performance obligation of Borrower.

“Guaranty” shall mean that certain Guaranty of Recourse Obligations of Borrower, dated as of the date hereof, from Guarantor to Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Hazardous Materials” shall mean any and all substances (whether solid, liquid or gas) defined, listed, or otherwise classified as pollutants, hazardous wastes, hazardous substances, hazardous materials, extremely hazardous wastes, or words of similar meaning or regulatory

8

effect under any present or future Environmental Laws, including but not limited to Mold, petroleum and petroleum products, asbestos and asbestos-containing materials, polychlorinated biphenyls, lead, radon, radioactive materials, flammables and explosives, but excluding substances of kinds and in amounts ordinarily and customarily used or stored in similar properties for the purposes of cleaning or other maintenance or operations and otherwise in compliance with all Environmental Laws.

“Improvements” shall have the meaning set forth in Article 1 of the related Security Instrument with respect to each Individual Property.

“Indemnified Parties” shall mean Lender, any Affiliate of Lender who is or will have been involved in the origination of the Loan, any Person who is or will have been involved in the servicing of the Loan, any Person in whose name the encumbrance created by the Security Instruments is or will have been recorded, Persons who may hold or acquire or will have held a full or partial interest in the Loan, the holders of any Securities, as well as custodians, trustees and other fiduciaries who hold or have held a full or partial interest in the Loan for the benefit of third parties) as well as the respective directors, officers, shareholders, partners, members, employees, agents, servants, representatives, contractors, subcontractors, Affiliates, subsidiaries, participants, successors and assigns of any and all of the foregoing (including but not limited to any other Person who holds or acquires or will have held a participation or other full or partial interest in the Loan or any Individual Property, whether during the term of the Loan or as a part of or following a foreclosure of the Loan and including, but not limited to, any successors by merger, consolidation or acquisition of all or a substantial portion of Lender’s assets and business).

“Indemnified Taxes” shall mean any present or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

“Independent Director” shall mean a natural Person who (a) is not at the time of initial appointment and has never been, and will not while serving as Independent Director be: (i) a stockholder, director (with the exception of serving as the Independent Director of Borrower or Principal, if any), officer, employee, partner, member (other than a “Special Member” or “springing member”), manager (other than as an Independent Director), attorney or counsel of Borrower, equity owners of Borrower or any Guarantor or any Affiliate of Borrower or any Guarantor; (ii) a customer, supplier or other person who derives any of its purchases or revenues from its activities with Borrower or any Guarantor, equity owners of Borrower or any Guarantor or any Affiliate of Borrower or any Guarantor; (iii) a Person controlling or under common control with any such stockholder, director, officer, employee, partner, member, manager, attorney, counsel, equity owner, customer, supplier or other Person of Borrower, equity owners of Borrower or any Guarantor or any Affiliate of Borrower or any Guarantor; or (iv) a member of the immediate family of any such stockholder, director, officer, employee, partner, member, manager, attorney, counsel, equity owner, customer, supplier or other Person of Borrower, equity owners of Borrower or any Guarantor or any Affiliate of Borrower or any Guarantor and (b) has (i) prior experience as an independent director or independent manager for a corporation, a trust or limited liability company whose charter documents required the unanimous consent of all

9

independent directors or independent managers thereof before such corporation, trust or limited liability company could consent to the institution of bankruptcy or insolvency proceedings against it or could file a petition seeking relief under any applicable federal or state law relating to bankruptcy and (ii) at least three (3) years of employment experience with CT Corporation, Corporation Service Company or National Registered Agents, Inc. or if none of these companies is then providing professional independent directors, another nationally recognized company acceptable to Lender, that is not an Affiliate of Borrower and that provides, inter alia, professional independent directors or independent managers in the ordinary course of their respective business to issuers of securitization or structured finance instruments, agreements or securities or lenders originating commercial real estate loans for inclusion in securitization or structured finance instruments, agreements or securities (a “Professional Independent Director”) and is an employee of such a company or companies at all times during his or her service as an Independent Director. A natural Person who satisfies the foregoing definition except for being (or having been) the independent director or independent manager of a “special purpose entity” Affiliated with Borrower or Principal, if any (provided such Affiliate does not or did not own a direct or indirect equity interest in Borrower or Principal, if any) shall not be disqualified from serving as an Independent Director, provided that such natural Person satisfies all other criteria set forth above and that the fees such individual earns from serving as independent director or independent manager of Affiliates of Borrower or in any given year constitute in the aggregate less than five percent (5%) of such individual’s annual income for that year. A natural Person who satisfies the foregoing definition other than subparagraph (a)(ii) shall not be disqualified from serving as an Independent Director if such individual is a Professional Independent Director and such individual complies with the requirements of the previous sentence.

“Initial Deposits” shall have the meaning set forth in Section 3.6 hereof.

“Individual Property” shall mean each parcel of real property, the Improvements thereon and all Personal Property owned by Borrower and encumbered by a Security Instrument, together with all rights pertaining to such Property and the Improvements, as more particularly described in Article 1 of each Security Instrument and referred to therein as the “Property.”

“Insolvency Opinion” shall mean, that certain substantive bankruptcy non-consolidation opinion letter delivered to Lender by Richards, Layton & Finger, P.A. in connection with the closing of the Loan.

“Insurance Premium Account” shall have the meaning set forth in Section 3.1(b)(ii)(B) hereof.

“Insurance Premiums” shall have the meaning set forth in Section 6.1(b) hereof.

“Insurance Proceeds” shall have the meaning set forth in Section 6.4(b) hereof.

“Interest Accrual Period” shall mean shall mean the period beginning on (and including) the sixth (6^th) day of each calendar month during the term of the Loan and terminating on the fifth (5^th) day of the next succeeding calendar month; provided, however, that the initial Interest Accrual Period shall begin on the Closing Date and shall end on the immediately following fifth (5^th) day of a calendar month.

10

“Investment Grade Tenant” shall mean shall mean a tenant under a Lease whose short term unsecured debt obligations or commercial paper or long term unsecured debt obligations are rated BBB- (or its equivalent) or better by S&P or Baa3 (or its equivalent) or better by Moody’s, and, if rated by both S&P and Moody’s, then rated BBB- (or its equivalent) or better by S&P and Baa3 (or its equivalent) or better by Moody’s. A tenant shall also be deemed to be an Investment Grade Tenant to the extent the applicable Lease is guaranteed by an entity meeting the foregoing criteria.

“Investor” shall have the meaning set forth in Section 5.1.10(h) hereof.

“Investor Eligibility Requirements” means, with respect to any Person, that such Person (i) has total assets (in name or under management or advisement) in excess of $750,000,000 (exclusive of the Properties) and (except with respect to a pension advisory firm, asset manager or similar fiduciary) capital/statutory surplus or shareholder’s equity or net worth of at least $400,000,000 (exclusive of the Properties) and (ii) has ownership interests in or operates commercial properties similar to the Properties in the United States totaling at least 2,000,000 square feet (exclusive of the Properties).

“Lease Termination Payments” shall mean all payments made to Borrower in connection with any termination, cancellation, surrender, sale or other disposition of any Lease.

“Leases” shall have the meaning set forth in Article 1 of the Security Instrument with respect to each Individual Property.

“Legal Requirements” shall mean, with respect to each Individual Property, all federal, State, county, municipal and other governmental statutes, laws, rules, orders, regulations, ordinances, judgments, decrees and injunctions of Governmental Authorities affecting such Individual Property or any part thereof, or the zoning, construction, use, alteration, occupancy or operation thereof, or any part thereof, whether now or hereafter enacted and in force, and all permits, licenses and authorizations and regulations relating thereto, and all covenants, agreements, restrictions and encumbrances contained in any instruments, either of record or known to Borrower, at any time in force affecting such Individual Property or any part thereof, including any which may (a) require repairs, modifications or alterations in or to such Individual Property or any part thereof, or (b) in any way limit the use and enjoyment thereof.

“Lender” shall have the meaning set forth in the introductory paragraph hereto, together with its successors and assigns.

“Lender Group” shall have the meaning set forth in Section 9.2(b) hereof.

“Lender 80% Determination” means a determination by Lender that, based on a current or updated appraisal, a broker’s price opinion or other written determination of value using a commercially reasonable valuation method permitted pursuant to a REMIC Trust, the aggregate fair market value of the Properties securing the Debt at the time of such determination is at least eighty percent (80%) of the amount of the Debt (including any accrued and unpaid interest) at the time of such determination.

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“Letter of Credit” shall mean an irrevocable, auto-renewing, unconditional, transferable, clean sight draft standby letter of credit having an initial term of not less than one (1) year and with automatic renewals for one (1) year periods (unless the obligation being secured by, or otherwise requiring the delivery of, such letter of credit is required to be performed at least thirty (30) days prior to the initial expiry date of such letter of credit), for which Borrower shall have no reimbursement obligation and which reimbursement obligation is not secured by the Properties or any other property pledged to secure the Note, in favor of Lender and entitling Lender to draw thereon in New York, New York, based solely on a statement that Lender has the right to draw thereon executed by an officer or authorized signatory of Lender. A Letter of Credit must be issued by an Approved Bank. Borrower’s delivery of any Letter of Credit hereunder shall, at Lender’s option, be conditioned upon Lender’s receipt of a new non-consolidation opinion relating to such Letter of Credit.

“Liabilities” shall have the meaning set forth in Section 9.2(b) hereof.

“Licenses” shall have the meaning set forth in Section 4.1.23 hereof.

“Lien” shall mean, with respect to each Individual Property, any mortgage, deed of trust, lien, pledge, hypothecation, assignment, security interest, or any other encumbrance, charge or transfer of, or on any of Borrower, the related Individual Property, any portion thereof or any interest therein, including any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, the filing of any financing statement, and mechanic’s, materialmen’s and other similar liens and encumbrances.

“Liquidated Damages Amount” shall have the meaning set forth in Section 2.3.3(b) hereof.

“LLC Agreement” shall have the meaning set forth in Section 4.1.36(cc) hereof.

“Loan” shall mean the loan made by Lender to Borrower pursuant to this Agreement and the other Loan Documents as the same may be amended or split pursuant to the terms hereof.

“Loan Documents” shall mean, collectively, this Agreement, the Note, the Security Instruments, the Assignment of Agreements Affecting Real Estate, the Environmental Indemnity, the Assignment of Management Agreement (if any), the Guaranty, the Lockbox Agreements and all other documents executed and/or delivered in connection with the Loan.

“Loan Party” shall mean each of Borrower, Guarantor and their respective Affiliates.

“Loan to Value Ratio” shall mean the ratio obtained by dividing (a) the outstanding principal balance of the Loan, by (b) the value of the Properties as set forth in the Appraisals obtained by Lender in connection with its underwriting of the Loan or any new Appraisals or updates thereto (which such appraisals or updates shall be in form and substance, reasonably acceptable to Lender) as applicable.

“Lockbox Account” shall have the meaning set forth in Section 3.1(a) hereof.

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“Lockbox Agreement” shall mean that certain Blocked Account Control Agreement dated as of the date hereof, among Lender, Borrower, and Lockbox Bank.

“Lockbox Bank” shall mean JPMorgan Chase Bank, N.A., provided that it remains an Eligible Institution, and any successor Eligible Institution or other Eligible Institution selected by Borrower, subject to Lender’s prior written consent.

“Lockout Date” shall mean the date that is the earlier of (a) three (3) years from the Closing Date, or (b) two (2) years from the “startup day” within the meaning of Section 860G(a)(9) of the Code of the REMIC Trust of the final Securitization of any portion of the Loan.

“Losses” shall mean any and all claims, suits, liabilities (including, without limitation, strict liabilities), actions, proceedings, obligations, debts, damages, losses, costs, expenses, fines, penalties, charges, fees, expenses, judgments, awards, amounts paid in settlement of whatever kind or nature (including but not limited to reasonable attorneys’ fees and other costs of defense).

“Major Lease” shall mean (i) any Lease which together with all other Leases to the same Tenant and to all Affiliates of such Tenant, (A) provides for rental income representing twenty-five percent (25%) or more of the total rental income for any Individual Property, (B) covers twenty-five percent (25%) or more of the total space at any Individual Property, in the aggregate, (C) provides for a lease term of more than ten (10) years including options to renew or (D) is with an Affiliate of Borrower and (ii) any instrument guaranteeing or providing credit support for any Major Lease.

“Management Agreement” shall mean at such time, if any, that any Individual Property is managed by a Person other than Borrower, collectively, (a) a management agreement with a Qualified Manager, which management agreement shall be acceptable to Lender in form and substance, provided, with respect to this clause (a), after a Securitization, Lender, at its option, may require that Borrower obtain confirmation from the applicable Rating Agencies that such management agreement will not result in a downgrade, withdrawal or qualification of the initial, or if higher, then current rating of the Securities or any class thereof; (b) an Assignment of Management Agreement in form and substance acceptable to Lender, executed and delivered to Lender by Borrower and such Qualified Manager, in each case at Borrower’s expense; and (c) if such manager is an Affiliated Manager, Borrower shall have delivered, or cause to be delivered, to Lender, an updated Insolvency Opinion reasonably acceptable to Lender with respect to such Affiliated Manager. As of the date hereof, the Properties are self-managed and there is no Management Agreement in place.

“Manager” shall mean an entity selected as the manager of the Properties or any Individual Property in accordance with the terms of this Agreement.

“Maturity Date” shall mean the Payment Date in August 2023, or such other date on which the final payment of the principal of the Note becomes due and payable as therein or herein provided, whether at such stated maturity date, by declaration of acceleration, or otherwise.

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“Maximum Legal Rate” shall mean the maximum nonusurious interest rate, if any, that at any time or from time to time may be contracted for, taken, reserved, charged or received on the indebtedness evidenced by the Note and as provided for herein or in the other Loan Documents, under the laws of such State or States whose laws are held by any court of competent jurisdiction to govern the interest rate provisions of the Loan.

“Member” shall have the meaning set forth in Section 4.1.36(cc) hereof.

“Mezzanine Borrower” shall have the meaning set forth in Section 9.5 hereof.

“Mezzanine Loan” shall have the meaning set forth in Section 9.5 hereof.

“Mezzanine Option” shall have the meaning set forth in Section 9.5 hereof.

“Minimum Disbursement Amount” shall mean Twenty-Five Thousand and No/100 ($25,000.00), or such lesser amount remaining in the applicable Reserve Account.

“Mold” shall mean fungi or bacterial matter which reproduces through the release of spores or the splitting of cells, including, but not limited to, mold, mildew, and viruses, whether or not such Mold is living.

“Monthly Debt Service Payment Amount” shall mean a constant monthly payment amount of $572,705.54.

“Monthly Insurance Premium Deposit” shall have the meaning set forth in Section 7.2 hereof.

“Monthly Tax Deposit” shall have the meaning set forth in Section 7.2 hereof.

“Moody’s” shall mean Moody’s Investors Service, Inc.

“Mortgage Loan” shall have the meaning set forth in Section 9.5 hereof.

“Net Cash Flow” for any period shall mean the amount obtained by subtracting Operating Expenses and Capital Expenditures for such period from Gross Income from Operations for such period.

“Net Cash Flow After Debt Service” for any period shall mean the amount obtained by subtracting Debt Service for such period from Net Cash Flow for such period.

“Net Operating Income” shall mean the amount obtained by subtracting Operating Expenses from Gross Income from Operations.

“Net Proceeds” shall have the meaning set forth in Section 6.4(b) hereof.

“Net Proceeds Deficiency” shall have the meaning set forth in Section 6.4(b)(vi) hereof.

“Net Sales Proceeds” shall mean, with respect to any Individual Property, an amount equal to (a) the gross sales price and all other consideration from whatever source derived from

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the sale of such Individual Property less (b) the reasonable, demonstrable, out of pocket, third party, customary closing costs (excluding (i) prepaid brokerage commissions funded from the proceeds of the Loan and (ii) costs associated with qualifying hereunder for the applicable release of the Lien of the applicable Loan Documents) actually incurred by Borrower in connection with such sale (provided that the closing costs referenced in the foregoing subsection (b) shall not, in the aggregate, exceed six percent (6%) of the gross sales price for such Individual Property).

“Non-U.S. Entity” shall have the meaning set forth in Section 2.2.7(b) hereof.

“Note” shall mean, individually or collectively, as the context shall require that certain Promissory Note of even date herewith in the original principal amount of One Hundred Million, Eight Hundred Sixty-Five Thousand, Nine Hundred Nine and 35/100 Dollars ($100,865,909.35), made by Borrower in favor of Lender, as the same may be amended, restated, replaced, extended, renewed, supplemented, severed, split, or otherwise modified from time to time.

“O&M Program” shall mean, with respect to each Individual Property listed on Schedule VI hereof, the asbestos operations and maintenance program developed by Borrower and approved by Lender, as the same may be amended, replaced, supplemented or otherwise modified from time to time.

“OFAC” shall have the meaning set forth in Section 4.1.42 hereof.

“Obligations” shall mean Borrower’s obligation to pay the Debt and perform its obligations under the Note, this Agreement and the other Loan Documents.

“Officer’s Certificate” shall mean a certificate delivered to Lender by Borrower which is signed by a Responsible Officer of Borrower.

“OP Interests” shall have the meaning set forth in Section 5.2.10(c).

“OP Transfer” shall have the meaning set forth in Section 5.2.10(c).

“Open Date” shall have the meaning set forth in Section 2.3.1 hereof.

“Operating Expenses” shall mean, for any period, without duplication, all expenses actually paid or payable by Borrower during such period in connection with the operation, management, maintenance, repair and use of the Property, except to the extent otherwise provided in this definition, determined, in each case, on an accrual basis, in accordance with GAAP. Operating Expenses specifically shall include (i) all expenses incurred by Borrower in the immediately preceding twelve (12) month period based on quarterly financial statements delivered to Lender in accordance with Section 5.1.10(c) hereof, (ii) all payments required to be made pursuant to any reciprocal easement agreement or any other covenants, restrictions, easements, declarations or agreements of record relating to the construction, operation or use of the Property, together with all amendments, modifications or supplements thereto, (iii) property management fees in an amount equal to the greater of four percent (4%) of Operating Income and the management fees actually paid under the Management Agreement, (iv) administrative, payroll, security and general expenses for the Property, (v) the cost of utilities, inventories and

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fixed asset supplies consumed in the operation of the Property, (vi) a reasonable reserve for uncollectible accounts, (vii) costs and fees of independent professionals (including legal, accounting, consultants and other professional expenses), technical consultants, operational experts (including quality assurance inspectors) or other third parties retained to perform services required or permitted hereunder, (viii) cost of attendance by employees at training and manpower development programs, (ix) association dues, (x) computer processing charges, (xi) operational equipment and other lease payments as reasonably approved by Lender, (xii) Taxes and Other Charges (other than income taxes or Other Charges in the nature of income taxes) and Insurance Premiums and (xiii) all underwritten reserves required by Lender hereunder (without duplication). Notwithstanding the foregoing, Operating Expenses shall not include (1) depreciation or amortization, (2) income taxes or Other Charges in the nature of income taxes, (3) any expenses (including legal, accounting and other professional fees, expenses and disbursements) incurred in connection with the making of the Loan or the sale, exchange, transfer, financing or refinancing of all or any portion of the Property or in connection with the recovery of Insurance Proceeds or Awards which are applied to prepay the Note, (4) Capital Expenditures, (5) Debt Service, and (6) any item of expense which would otherwise be considered within Operating Expenses pursuant to the provisions above but is paid directly by any Tenant. Notwithstanding the foregoing, for the purposes of the remittance of funds to Borrower pursuant to Section 3.7(b)(ix), the amount of such funds shall be calculated in a cash (and not an accrual) basis.

“Operating Income” shall mean, for any period, all income of Borrower during such period from the use, ownership or operation of the Property, determined on an accrual basis of accounting determined in accordance with GAAP, including:

(a) all amounts payable to Borrower by any Person as Rent and other amounts under Leases or other agreements relating to the Property;

(b) business interruption insurance proceeds allocable to the applicable reporting period; and

(c) all other amounts which in accordance with GAAP are included in Borrower’s annual financial statements as operating income attributable to the Property.

Notwithstanding the foregoing, Operating Income shall not include (a) any Insurance Proceeds (other than business interruption and/or rental loss insurance proceeds and only to the extent allocable to the applicable reporting period), (b) any proceeds resulting from the Transfer of all or any portion of the Property, (c) any Rent attributable to a Lease prior to the date in which Tenant thereunder has taken occupancy or in which the actual payment of rent is required to commence thereunder, (d) any item of income otherwise included in Operating Income but paid directly by any Tenant to a Person other than Borrower as an offset or deduction against Rent payable by such Tenant, provided such item of income is for payment of an item of expense (such as payments for utilities paid directly to a utility company) and such expense is otherwise excluded from the definition of Operating Expenses pursuant to clause “(6)” of the definition thereof, (e) forfeited or applied Security Deposits, and (f) any Rents paid by or on behalf of any Tenant under a Lease which is the subject of any proceeding or action relating to its bankruptcy, reorganization or other arrangement pursuant to federal bankruptcy law or any similar federal or

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state law or which has been adjudicated a bankrupt or insolvent unless such Lease has been assumed by the trustee in such proceeding or action. Operating Income shall be calculated on the accrual basis of accounting and, except to the extent otherwise provided in this definition, in accordance with GAAP.

“Other Charges” shall mean all maintenance charges, impositions other than Taxes, and any other charges, including vault charges and license fees for the use of vaults, chutes and similar areas adjoining any Individual Property, now or hereafter levied or assessed or imposed against any Individual Property or any part thereof.

“Patriot Act” shall have the meaning set forth in Section 4.1.42 hereof.

“Payment Date” shall mean the sixth (6th) day of each calendar month during the term of the Loan or, if such day is not a Business Day, the immediately preceding Business Day.

“Permitted Encumbrances” shall mean, with respect to an Individual Property, collectively, (a) the Liens and security interests created by the Loan Documents, (b) all Liens, encumbrances, matters of record and other matters disclosed in the Title Insurance Policy relating to such Individual Property or any part thereof, (c) Liens, if any, for Taxes imposed by any Governmental Authority not yet delinquent or being contested pursuant to Section 5.1.2, or, if such Liens for Taxes are the obligation of a Tenant under a Single Tenant Lease, until the expiration of the earlier of (i) forty-five (45) days after delinquency and (ii) ten (10) Business Days after Borrower becoming aware of such delinquency, (d) “de minimis” easements, rights of way, restrictions and other encumbrances incurred in accordance with the terms of this Agreement, (e) matters reflected in the Surveys provided to Lender with respect to the Properties in connection with the closing of the Loan, (f) Liens (other than Liens arising from Taxes) being contested by Borrower in accordance with this Agreement and the other Loan Documents or any Liens (other than Liens arising from Taxes) that are solely attributable to a Tenant under a Single Tenant Lease until the expiration of ten (10) Business Days after Borrower becoming aware of such Liens, and (g) such other title and Survey exceptions as Lender has approved or may approve in writing in Lender’s sole discretion; provided that, none of which items (a) through (g), individually or in the aggregate, materially interferes with the value, current use or operation of any Individual Property or the security intended to be provided by the Security Instruments or with the current ability of the Properties to generate net cash flow sufficient to service the Loan or Borrower’s ability to pay and perform the Obligations under the Loan Documents when they become due.

“Permitted Investments” shall mean any one or more of the following obligations or securities acquired at a purchase price of not greater than par, including those issued by Servicer, the trustee under any Securitization or any of their respective Affiliates, payable on demand or having a maturity date not later than the Business Day immediately prior to the first Payment Date following the date of acquiring such investment and meeting one of the appropriate standards set forth below:

(i) obligations of, or obligations fully guaranteed as to payment of principal and interest by, the United States or any agency or instrumentality thereof provided such obligations are backed by the full faith and credit of the United States of America and are

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obligations of one or more of the following: the U.S. Treasury (all direct or fully guaranteed obligations), the General Services Administration (participation certificates), the Small Business Administration (guaranteed participation certificates and guaranteed pool certificates), and the U.S. Department of Housing and Urban Development (local authority bonds); provided, however, that the investments described in this clause must (A) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if rated by S&P, must not have an “r” highlighter affixed to their rating, (C) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (D) such investments must not be subject to liquidation prior to their maturity;

(ii) Federal Housing Administration debentures;

(iii) obligations of the following United States government sponsored agencies: Federal Home Loan Mortgage Corp. (debt obligations), the Farm Credit System (consolidated systemwide bonds and notes), the Federal Home Loan Banks (consolidated debt obligations), the Federal National Mortgage Association (debt obligations) and the Student Loan Marketing Association (debt obligations); provided, however, that the investments described in this clause must (A) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if rated by S&P, must not have an “r” highlighter affixed to their rating, (C) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (D) such investments must not be subject to liquidation prior to their maturity;

(iv) unsecured certificates of deposit or time deposits, in each case with maturities of not more than 365 days of any bank, the short term obligations of which at all times are rated in the highest short term rating category by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency in the highest short term rating category and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities); provided, however, that the investments described in this clause must (A) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if rated by S&P, must not have an “r” highlighter affixed to their rating, (C) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (D) such investments must not be subject to liquidation prior to their maturity;

(v) fully Federal Deposit Insurance Corporation-insured demand and time deposits in, or certificates of deposit with maturities of not more than 365 days of, any bank or trust company, savings and loan association or savings bank, the short term obligations of which at all times are rated in the highest short term rating category by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency in the highest short term rating category and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself,

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result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities); provided, however, that the investments described in this clause must (A) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if rated by S&P, must not have an “r” highlighter affixed to their rating, (C) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (D) such investments must not be subject to liquidation prior to their maturity; and

(vi) units of taxable money market funds, which funds are regulated investment companies, seek to maintain a constant net asset value per share, which funds have the highest rating available from each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities) for money market funds;

provided, however, that no obligation or security shall be a Permitted Investment if (A) such obligation or security evidences a right to receive only interest payments or (B) the right to receive principal and interest payments on such obligation or security are derived from an underlying investment that provides a yield to maturity in excess of 120% of the yield to maturity at par of such underlying investment.

“Permitted Preferred Stock” shall mean (a) any non-voting preferred stock in the REIT issued and outstanding solely to maintain its status as a real estate investment trust, and (b) other preferred stock in the REIT so long as the terms upon which such preferred stock were issued do not grant the holders thereof any voting rights, other than the right to vote for two (2) members of the board of directors of the REIT (which will not constitute a majority or control of the board of directors or the REIT) in the event of a default in the payment of dividends on the preferred stock for six (6) consecutive quarters or if the REIT fails to timely and fully redeem such preferred stock.

“Permitted Transferee” means one or more of the following: (a) a real estate investment trust, bank, saving and loan association, investment bank, insurance company, trust company, commercial credit corporation, pension plan, pension fund or pension advisory firm, mutual fund, government entity or plan, sovereign wealth fund, private equity fund or real estate operating company, provided that any such Person referred to in this clause (a) satisfies the Investor Eligibility Requirements; (b) an investment company, money management firm or “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act or an institutional “accredited investor” within the meaning of Regulation D under the Securities Act, provided that any such Person referred to in this clause (b) satisfies the Investor Eligibility Requirements; (c) an institution substantially similar to any of the entities described in clause (a), clause (b) or clause (d) that satisfies the Investor Eligibility Requirements; (d) any entity 100% owned by and Controlled by, Controlling or under common Control with any one or more of the entities described in clause (a), clause (b) or clause (c) above; (e) a Qualified Transferee; or (f) any Person approved by Lender in its sole discretion, and, following a Securitization, for which the Rating Agencies have issued a confirmation in writing from the applicable Rating

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Agencies to the effect that any Transfer to such Person will not result in a downgrading, withdrawal or qualification of the respective ratings in effect immediately prior to such Transfer.

“Person” shall mean any individual, corporation, partnership, joint venture, limited liability company, estate, trust, unincorporated association, any federal, State, county or municipal government or any bureau, department or agency thereof and any fiduciary acting in such capacity on behalf of any of the foregoing.

“Personal Property” shall have the meaning set forth in Article 1 of the Security Instrument with respect to each Individual Property.

“Physical Conditions Report” shall mean, with respect to each Individual Property, a structural engineering report prepared by a company satisfactory to Lender regarding the physical condition of such Individual Property, satisfactory in form and substance to Lender, which report shall, among other things, (a) confirm that such Individual Property and its use complies, in all material respects, with all applicable Legal Requirements (including, without limitation, zoning, subdivision and building laws) and (b) include a copy of a final certificate of occupancy with respect to all Improvements on such Individual Property.

“Plan” shall mean an employee benefit plan (as defined in Section 3(3) of ERISA, subject to Title I of ERISA) whether or not subject to ERISA or a plan or other arrangement within the meaning of Section 4975 of the Code.

“Plan Assets” shall mean assets of a Plan within the meaning of 29 C.F.R. Section 2510.3-101 or similar law.

“Policy” or Policies” shall have the meaning set forth in Section 6.1(b) hereof.

“Pre-Existing Liability” shall mean any liability, obligation, claim, suit, proceeding, loss, damage, penalty, judgment, cost, expense, fine, disbursement, or demand of or against any predecessor entity that merged into Borrower, other than liabilities and obligations in respect of the Leases and the other Assigned Agreements (as defined in the Assignment of Agreements Affecting Real Estate).

“Preferred Share Transfer” shall have the meaning set forth in Section 5.2.10(c) hereof.

“Preferred Shares” shall have the meaning set forth in Section 5.2.10(c) hereof.

“Prepayment Date” shall mean the date of a prepayment of the Loan pursuant to the provisions of Section 2.3 and 2.5 hereof.

“Prepayment Notice” shall mean a prior written notice to Lender specifying the proposed Business Day on which a prepayment of the Debt is to be made pursuant to Section 2.5 hereof, which date must be a Payment Date and shall be no earlier than thirty (30) days after the date of such Prepayment Notice and no later than sixty (60) days after the date of such Prepayment Notice. In the event a Prepayment Notice is revoked and/or modified by Borrower, Borrower shall reimburse Lender for all out of pocket costs and expenses incurred by Lender in connection therewith, including reasonable attorneys’ fees.

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“Principal” shall have the meaning set forth in Section 4.1.36 hereof, together with its successors and assigns.

“Prohibited Governmental Transactions” shall mean transactions by or with Borrower that are subject to state statutes regulating investment of, and fiduciary obligations with respect to, governmental plans similar to the provisions of Section 406 of ERISA or Section 4975 of the Code currently in effect.

“Prohibited Person” shall mean any Person:

(a) listed in the Annex to, or otherwise subject to the provisions of, the Executive Order Nos. 12947, 130199 and 13224 and all modifications thereto or thereof (collectively, the “Executive Order”);

(b) that is owned or controlled by, or acting for or on behalf of, any person or entity that is listed to the Annex to, or is otherwise subject to the provisions of, the Executive Order;

(c) with whom Lender is prohibited from dealing or otherwise engaging in any transaction by any terrorism or money laundering law, including the Executive Order;

(d) who commits, threatens or conspires to commit or supports “terrorism” as defined in the Executive Order;

(e) that is named as a “specially designated national and blocked person” on the most current list published by the U.S. Treasury Department Office of Foreign Assets Control at its official website, http://www.treas.gov.ofac/downloads/t11sdn.pdf or at any replacement website or other replacement official publication of such list; or

(f) who is an Affiliate of or affiliated with a Person listed above.

“Professional Independent Director” shall have the meaning set forth in the definition of Independent Director.

“Prohibited Transaction” shall mean any transaction which could cause any obligation, or action taken or to be taken, hereunder (or the exercise by Lender of any of its rights under the Note, this Agreement, the Security Instruments or the other Loan Documents) to be a non-exempt (under a statutory or administrative class exemption) prohibited transaction under ERISA.

“Properties” shall mean, collectively, each and every Individual Property which is subject to the terms of this Agreement, to the extent that the same is encumbered by the Security Instrument and has not been released therefrom pursuant to the terms hereof.

“Property” shall mean, as the context may require, the Properties or an Individual Property.

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“Provided Information” shall have the meaning set forth in Section 9.1(b)(i) hereof.

“Qualified Insurer” shall have the meaning set forth in Section 6.1(b) hereof.

“Qualified Manager” shall mean a Person approved by Lender in writing (which such consent may be conditioned upon Lender’s receipt of confirmation from the applicable Rating Agencies that the management of the applicable Individual Property or the Properties by such Person will not result in a downgrade, withdrawal or qualification of the initial, or if higher, then current rating of the Securities or any class thereof).

“Qualified Transferee” shall mean a transferee for whom, prior to a proposed transfer, Lender shall have received: (x) evidence that such proposed transferee (1) has never been indicted or convicted of, or pled guilty or no contest to, a felony, (2) has never been indicted or convicted of, or pled guilty or no contest to, a violation of the Patriot Act and is not listed as a Specially Designated Terrorist or as a “blocked” Person on any lists maintained by the OFAC pursuant to the Patriot Act or any other list of terrorists or terrorist organizations maintained pursuant to any of the rules and regulations of the OFAC issued pursuant to the Patriot Act or on any other list of terrorists or terrorist organizations maintained pursuant to the Patriot Act, (3) has never been the subject of a voluntary or involuntary (to the extent the same has not been discharged) bankruptcy proceeding, and (4) has no material outstanding judgments against such proposed transferee; and (y) if the proposed transferee will obtain Control of or obtain a direct or indirect interest of ten percent (10%) or more in Borrower as a result of such proposed transfer, a credit check against such proposed transferee that is reasonably acceptable to Lender.

“Rating Agencies” shall mean, including, but not limited to, S&P, Moody’s, and Fitch, and any other nationally-recognized statistical rating organization, as identified by the Securities and Exchange Commission to the extent any of the foregoing have been engaged by Lender or its designee in connection with or in anticipation of any Securitization.

“Registration Statement” shall have the meaning set forth in Section 9.2(b) hereof.

“REIT” shall have the meaning set forth in Section 5.2.10(c).

“REIT Shares” shall have the meaning set forth in Section 5.2.10(c).

“REIT Share Transfer” shall have the meaning set forth in Section 5.2.10(c).

“Release” shall mean, with respect to any Hazardous Materials, any release, deposit, discharge, emission, leaking, leaching, spilling, seeping, migrating, injecting, pumping, pouring, emptying, escaping, dumping, disposing or other movement of Hazardous Materials.

“Release Date” shall have the meaning set forth in Section 2.5(c).

“Release Price” shall mean, with respect to any Individual Property, an amount equal to the greater of (a) (i) with respect to Properties with Allocated Loan Amounts representing the first ten percent (10%) of the Loan amount to be released, 115% of the Allocated Loan Amount with respect to such Individual Property, and (ii) after the date that Properties with Allocated Loan Amounts in excess of ten percent (10%) of the Loan amount have been released, 120% of

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the Allocated Loan Amount with respect to such Individual Property, and (b) the Net Sales Proceeds applicable to such Individual Property.

“Remediation” shall mean but shall not be limited to any response, remedial, removal, or corrective action; any activity to clean up, detoxify, decontaminate, contain or otherwise remediate any Hazardous Materials; any actions to prevent, cure or mitigate any Release of any Hazardous Materials; any action to comply with any Environmental Laws or with any permits issued pursuant thereto; any inspection, investigation, study, monitoring, assessment, audit, sampling and testing, laboratory or other analysis, or evaluation relating to any Hazardous Materials or to anything referred to herein.

“REMIC Trust” shall mean a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code that holds any interest in all or any portion of the Loan (including the Note).

“Renewal Lease” shall have the meaning set forth in Section 5.1.17(a) hereof.

“Rent Roll” means a statement from Borrower substantially in the form attached hereto as Schedule II detailing the names of all Tenants of each Individual Property, the portion of each Individual Property occupied by each Tenant, the base rent and any other charges payable under each Lease, the term of each Lease, the beginning date and expiration date of each Lease, whether any Tenant is in default under its Lease (and detailing the nature of such default), and any other information as is reasonably required by Lender, all certified by a Responsible Officer to be true, correct and complete.

“Rents” shall have the meaning set forth in Article 1 of the Security Instrument with respect to each Individual Property.

“Replacement Management Agreement” shall mean, collectively, (a) either (i) a management agreement with a Qualified Manager substantially in the same form and substance as the Management Agreement, or (ii) a management agreement with a Qualified Manager, which management agreement shall be acceptable to Lender in form and substance, provided, with respect to this subclause (ii), after a Securitization, Lender, at its option, may require that Borrower obtain confirmation from the applicable Rating Agencies that such management agreement will not result in a downgrade, withdrawal or qualification of the initial, or if higher, then current rating of the Securities or any class thereof; (b) an Assignment of Management Agreement in form acceptable to Lender, executed and delivered to Lender by Borrower and such Qualified Manager at Borrower’s expense; and (c) if such replacement manager is an Affiliated Manager, Borrower shall have delivered, or cause to be delivered, to Lender, an updated Insolvency Opinion reasonably acceptable to Lender with respect to such Affiliated Manager.

“Replacement Reserve Account” shall have the meaning set forth in Section 3.1(b)(ii)(D) hereof.

“Replacement Reserve Fund” shall have the meaning set forth in Section 7.3.1 hereof.

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“Replacement Reserve Monthly Deposit” shall have the meaning set forth in Section 7.3.1 hereof.

“Replacements” shall have the meaning set forth in Section 7.3.1 hereof.

“Required Rating” means (i) a long-term unsecured debt rating of not less than “AA-” by Fitch & S&P and “Aa3” by Moody’s (or its equivalent) and equivalent rating from each of the other Rating Agencies, if applicable, or (ii) following a Securitization, such other rating with respect to which Lender shall have received a confirmation from the applicable Rating Agencies to the effect that the delivery of such Letter of Credit in lieu of cash deposits into the Rollover Reserve Account pursuant to Section 7.4.1 hereof will not result in a downgrading, withdrawal or qualification of the respective ratings for the Securities.

“Required Repair Account” shall have the meaning set forth in Section 3.1(b)(ii)(E) hereof.

“Required Repair Fund” shall have the meaning set forth in Section 7.1.1 hereof.

“Required Repairs” shall have the meaning set forth in Section 7.1.1 hereof.

“Reserve Fund Deposits” shall mean the amounts to be deposited into the Reserve Funds for any given month or at any other time as provided in this Agreement or in the other Loan Documents.

“Reserve Funds” shall mean the Tax and Insurance Escrow Fund, the Replacement Reserve Fund, the Required Repair Fund, the Rollover Reserve Fund, the Excess Cash Reserve Fund or any other escrow or reserve fund established by the Loan Documents.

“Responsible Officer” shall mean with respect to a Person, the chairman of the board, president, chief operating officer, chief financial officer, treasurer, vice president-finance or such other authorized representative of such Person.

“Restoration” shall mean the repair and restoration of an Individual Property after a Casualty or Condemnation as nearly as possible to the condition the Individual Property was in immediately prior to such Casualty or Condemnation, with such alterations as may be approved by Lender.

“Restoration Threshold” shall mean an amount equal to five percent (5%) of the Allocated Loan Amount for each Individual Property that is the subject of a Restoration.

“Restricted Party” shall mean Borrower, Principal, if any, Guarantor, or any Affiliated Manager or any shareholder, partner, member or non-member manager, or any direct or indirect legal or beneficial owner of, Borrower, Principal, if any, Guarantor, any Affiliated Manager or any non-member manager.

“Rollover Reserve Account” shall have the meaning set forth in Section 3.1(b)(ii)(F) hereof.

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“Rollover Reserve Deposit” shall have the meaning set forth in Section 7.4.1 hereof.

“Rollover Reserve Fund” shall have the meaning set forth in Section 7.4.1 hereof.

“S&P” shall mean Standard & Poor’s Ratings Services.

“Sale or Pledge” shall have the meaning set forth in 5.2.10(c).

“Second Level SPE” shall have the meaning set forth in Section 9.5(b) hereof.

“Secondary Market Transaction” shall have the meaning set forth in Section 9.1(a) hereof.

“Securities” shall have the meaning set forth in Section 9.1(a) hereof.

“Securitization” shall have the meaning set forth in Section 9.1(a) hereof.

“Securities Act” shall have the meaning set forth in Section 9.2(a) hereof.

“Security Deposits” shall have the meaning set forth in Section 5.1.17(e) hereof.

“Security Instrument” shall mean, with respect to each Individual Property, that certain first priority Mortgage (or Deed of Trust or Deed to Secure Debt, as applicable), Assignment of Leases and Rents, Fixture Filing and Security Agreement, executed and delivered by the applicable Borrower as security for the Loan and encumbering such Individual Property, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Servicer” shall have the meaning set forth in Section 9.3 hereof.

“Servicing Agreement” shall have the meaning set forth in Section 9.3 hereof.

“Servicing Fee” shall have the meaning set forth in Section 9.3 hereof.

“Severed Loan Documents” shall have the meaning set forth in Section 8.2(c) hereof.

“Single Tenant Lease” shall mean, with respect to any Individual Property, any Lease between Borrower and one single tenant (or Affiliated tenants) occupying the entire rentable space at such Individual Property pursuant to a Lease.

“Special Member” shall have the meaning set forth in Section 4.1.36(cc) hereof.

“Spirit Holdings” shall have the meaning set forth in Section 5.2.10(c).

“Splitting Documentation” shall have the meaning set forth in Section 9.6 hereof.

“State” shall mean, with respect to an Individual Property, the State or Commonwealth in which such Individual Property or any part thereof is located.

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“Substitute Loan Documents” shall mean an executed and acknowledged (i) at Lender’s election, either an amendment to the Environmental Indemnity or an additional environmental indemnity agreement with respect to the Substitute Property, (ii) a mortgage (or deed of trust or deed to secure debt, as applicable), assignment of leases and rents, fixture filing and security agreement (the “Substitute Security Instrument”), and (iii) UCC-1 financing statements with respect to the applicable Substitute Property, together with a letter from Borrower countersigned by a title insurance company acknowledging receipt of such Substitute Security Instrument and UCC-1 financing statements and agreeing to record or file, as applicable, such Substitute Security Instrument and, with regard to the UCC-1 financing statements, if recordation or a system of filing is accepted or established in the applicable jurisdiction, the UCC-1 financing statements in the real estate records for the county in which the applicable Substitute Property is located so as to effectively create upon such recording or filing valid and enforceable first-priority Liens upon the applicable Substitute Property, in favor of Lender, subject only to the Permitted Encumbrances. Any environmental indemnity agreement, the Substitute Security Instrument and the UCC-1 financing statements shall be the same in form and substance as the counterparts of such documents executed and delivered on the Closing Date with respect to the Individual Property (including the related Exchange Property) subject to modifications reflecting the applicable Substitute Property. Each Substitute Loan Document shall constitute one of the Loan Documents and secure all amounts evidenced by the Note, provided that in the event that the jurisdiction in which the Substitute Property is located imposes a mortgage recording, intangibles or similar tax and does not permit the allocation of the total principal amount of the Loan, together with all accrued and unpaid interest on the Loan and all other obligations, liabilities and amounts payable under the Note, for purpose of determining the amount of such tax payable, the principal amount secured by the Substitute Loan Documents will be equal to 125% of the applicable Allocated Loan Amount for the Substitute Property.

“Substitute Security Instrument” shall have the meaning set forth in the definition of “Substitute Loan Documents”.

“Substitution” shall have the meaning set forth in Section 2.6 hereof.

“Substitution Date” shall have the meaning set forth in Section 2.6 hereof.

“Substitution Property” shall have the meaning set forth in Section 2.6 hereof.

“Survey” shall mean, with respect to an Individual Property, a survey prepared by a surveyor licensed in the State where such Individual Property is located and reasonably satisfactory to Lender and the company or companies issuing the Title Insurance Policies, and containing a certification of such surveyor reasonably satisfactory to Lender.

“Tax Account” shall have the meaning set forth in Section 3.1(b)(ii)(A) hereof.

“Tax and Insurance Escrow Fund” shall have the meaning set forth in Section 7.2 hereof.

“Taxes” shall mean all real estate and personal property taxes (or payments in lieu thereof), assessments, water rates or sewer rents, now or hereafter levied or assessed or imposed against any Individual Property or part thereof (including “service” or other similar payment in lieu of Taxes required to be made pursuant to any declaration of covenants, reciprocal easement

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agreement or similar agreement, and any city improvement district assessments), and specifically including, with respect to the Property located in Yuma, AZ (Allstate Insurance), any district improvement payments.

“Tenant” shall mean any tenant or lessee pursuant to any Lease.

“TI/LC Cash Sweep Triggering Event” shall mean (A) a period commencing upon the earliest of:

(i) any Tenant or Tenants under Leases at Properties with cumulative Allocated Loan Amounts of more than five percent (5%) of the outstanding principal balance of the Loan substantially cease operations, give notice of intent to substantially cease operations, or otherwise “goes dark” (provided, however, that this clause shall not apply to any Tenant of an Individual Property that has substantially ceased operations or “gone dark” as a result of a Restoration provided such Restoration is being diligently pursued in accordance with the terms of the applicable Lease and this Agreement, and that Investment Grade Tenants shall only be considered under this clause (i) (x) during the last two (2) years of the term of the Loan and/or (y) during the last two (2) years of the term of such Tenant’s Lease);

(ii) any Tenant has engaged in any voluntary or involuntary bankruptcy or other insolvency proceedings;

(iii) any Tenant does not renew any Lease by the renewal notice date set forth in such Lease, or any termination of a Lease prior to its related termination date; or

(v) any Tenant has defaulted in any material respect under the terms of the relevant Lease; and

(B) expiring upon:

(1) with regard to any TI/LC Cash Sweep Triggering Event commenced in connection with clause (i) above, the date that new Leases have been executed with respect to all such “dark” space, all free rent periods for the new tenant or Tenants have expired, and all Landlord obligations under the new Lease or Leases are fully satisfied;

(2) with regard to any TI/LC Cash Sweep Triggering Event commenced in connection with clause (ii) above, the date that such Tenant is no longer insolvent or subject to any bankruptcy or insolvency proceedings and Tenant has affirmed the Lease pursuant to a final, non-appealable order of a court of competent jurisdiction, or a new tenant executes a new Lease with respect to such Individual Property, all free rent periods for such new tenant have expired, and all Landlord obligations under the new Lease or Leases are fully satisfied;

(3) with regard to any TI/LC Cash Sweep Triggering Event commenced in connection with clause (iii) above, the date that such Tenant renews the

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Lease or a new tenant executes a new Lease with respect to such Individual Property, all free rent periods for such new tenant have expired, and all Landlord obligations under the new Lease or Leases are fully satisfied; and

(4) with regard to any TI/LC Cash Sweep Triggering Event commenced in connection with clause (iv) above, the date that the event of default has been cured or a new tenant executes a new Lease with respect to such Individual Property, all free rent periods for such new tenant have expired, and all Landlord obligations under the new Lease or Leases are fully satisfied.

“Title Insurance Policy” shall mean, with respect to each Individual Property, an ALTA mortgagee title insurance policy in a form acceptable to Lender (or, if such Individual Property is located in a State which does not permit the issuance of such ALTA policy, such form as shall be permitted in such State and acceptable to Lender) issued by a title insurance company satisfactory to Lender with respect to such Individual Property and insuring the Lien of such related Security Instrument subject only to Permitted Encumbrances, with endorsements thereto as to such matters as Lender may designate.

“Transfer” shall have the meaning set forth in Section 5.2.10(a) hereof.

“Transferee” shall have the meaning set forth in Section 5.2.11(a) hereof.

“Treasury Rate” shall mean the yield calculated by the linear interpolation of the yields, as reported in Federal Reserve Statistical Release H.15 Selected Interest Rates under the heading U.S. Government Securities/Treasury Constant Maturities for the week ending prior to any Prepayment Date, of U.S. Treasury constant maturities with maturity dates (one longer and one shorter) most nearly approximating the Maturity Date. (In the event Release H.15 is no longer published, Lender shall select a comparable publication to determine the Treasury Rate.)

“Triggering Event” shall mean a period (A) commencing upon the earliest of (i) the occurrence of an Event of Default and (ii) the Debt Service Coverage Ratio being less than 1.20 to 1.00; and (B) expiring upon (y) with regard to any Triggering Event commenced in connection with clause (i) above, the cure (if applicable) of such Event of Default and (z) with regard to any Triggering Event commenced in connection with clause (ii) above, the last day of any two (2) consecutive calendar quarters thereafter for which the Debt Service Coverage Ratio is equal to or greater than 1.25 to 1.00, unless, after the Lockout Date, such level is achieved pursuant to a prepayment of the Loan in accordance with Section 2.3.1 hereof, in which case such Triggering Event shall expire on such Prepayment Date. Notwithstanding the foregoing, a Triggering Event shall not be deemed to expire in the event that a Triggering Event then exists for any other reason.

“Trustee” shall mean any trustee of a Securitization.

“UCC” or “Uniform Commercial Code” shall mean the Uniform Commercial Code as in effect in the State in which the related Individual Property is located.

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“Underwriter Group” shall have the meaning set forth in Section 9.2(b) hereof.

“Underwritten Net Cash Flow” shall mean, as of the end of any calendar quarter for which Underwritten Net Cash Flow is determined (or such other date for which Underwritten Net Cash Flow is determined) the excess of: (a) the sum of: (i) annualized actual in place base rents and monthly recoveries received by Borrower under bona fide Leases at the Property with Tenants in occupancy, open for business and paying full, unabated rent as of the date of such calculation and actual percentage rents received by Borrower under such Leases for the twelve (12) months preceding such calculation; plus (ii) for the twelve (12) month period preceding the month in which such Underwritten Net Cash Flow is calculated, actual net cash flow receipts received by Borrower from other sources at the Properties to the extent such receipts are recurring in nature and properly included as Operating Income for such twelve month calculation period; over (b) for the twelve (12) month period preceding the month in which such Underwritten Net Cash Flow is calculated, Operating Expenses over such twelve months, in each case adjusted to reflect Lender’s determination of: (i) a vacancy factor equal to the greatest of (A) the market vacancy rate (as determined by Lender in its reasonable discretion) for similar properties in the commercial business district or market area in which the Property is located, (B) the actual vacancy rate at the Property, and (C) five percent (5%) of the rentable area of the Property; (ii) a reduction of above market rents at the Property to market rents as determined by Lender; (iii) subtraction of (A) an imputed capital improvement requirement amount equal to $0.10 per rentable square foot at the Property per annum (regardless of whether a reserve therefore is required hereunder or the amount of such reserve), and (B) an imputed tenant improvement and leasing commission requirement amount equal to $0.46 per rentable square foot at the Property per annum (regardless of whether a reserve therefore is required hereunder or the amount of such reserve); (iv) exclusion of (X) amounts representing non-recurring items and (Y) amounts received from Tenants not currently in occupancy and paying full, unabated rent, from Tenants affiliated with Borrower or Guarantor, from Tenants in default or in bankruptcy and from Tenants under month-to-month Leases or Leases where the term is about to expire; and (v) such other adjustments deemed necessary by Lender based upon Lender’s reasonable underwriting criteria and Lender’s reasonable determination of Rating Agency underwriting and evaluation criteria. Lender’s calculation of Underwritten Net Cash Flow shall be final absent manifest error.

“U.S. Obligations” shall mean securities evidencing an obligation to timely pay principal and/or interest in a full and timely manner that are (i) direct obligations of the United States of America for the payment of which its full faith and credit is pledged, and (ii) not subject to prepayment, call or early redemption.

“USPAP” shall mean the Uniform Standard of Professional Appraisal Practice.

“Yield Maintenance Premium” shall mean an amount equal to the greater of (a) one percent (1%) of the outstanding principal amount of the Loan to be prepaid or satisfied, and (b) the present value, as of the applicable Prepayment Date, of the remaining scheduled payments of principal and interest from such Prepayment Date through the Maturity Date (including any balloon payment) determined by discounting such payments at the Discount Rate, less the amount of principal being prepaid on such Prepayment Date, calculated based upon the

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outstanding principal amount of the Loan to be prepaid or satisfied. Lender’s calculation of the Yield Maintenance Premium shall be conclusive absent manifest error.

Section 1.2. Principles of Construction.

All references to sections and schedules are to sections and schedules in or to this Agreement unless otherwise specified. All uses of the word “including” shall mean “including, without limitation” unless the context shall indicate otherwise. Unless otherwise specified, the words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. Unless otherwise specified, all meanings attributed to defined terms herein shall be equally applicable to both the singular and plural forms of the terms so defined.

II. GENERAL TERMS

Section 2.1. Loan Commitment; Disbursement to Borrower.

2.1.1. Agreement to Lend and Borrow.

Subject to and upon the terms and conditions set forth herein, Lender hereby agrees to make and Borrower hereby agrees to accept the Loan on the Closing Date.

2.1.2. Single Disbursement to Borrower.

Borrower may request and receive only one borrowing hereunder in respect of the Loan and any amount borrowed and repaid hereunder in respect of the Loan may not be reborrowed.

2.1.3. The Note, Security Instruments and Loan Documents.

The Loan shall be evidenced by the Note and secured by the Security Instruments, the Assignments of Leases and the other Loan Documents.

2.1.4. Use of Proceeds.

Borrower shall use the proceeds of the Loan to (a) repay and discharge any existing loans relating to the Properties, (b) pay all past-due Basic Carrying Costs, if any, in respect of the Properties, (c) make deposits into the Reserve Funds on the Closing Date in the amounts provided herein or in the other Loan Documents, (d) pay costs and expenses incurred in connection with the closing of the Loan, as approved by Lender, or (e) fund any working capital requirements of the Properties. The balance, if any, shall be distributed to Borrower.

Section 2.2. Interest; Loan Payments; Late Payment Charge.

2.2.1. Payments.

(a) Borrower shall make a payment to Lender of interest and principal in the amount of the Monthly Debt Service Payment Amount on the Payment Date occurring in September, 2013 and on each Payment Date thereafter to and including the Maturity Date. Each

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payment shall be applied first to accrued and unpaid interest and the balance to principal. The principal portion of Monthly Debt Service Payment Amount required hereunder is based upon a thirty (30) year amortization schedule. Interest on the outstanding principal amount of the Loan for the period through and including August 5, 2013 shall be paid by Borrower to Lender on the Closing Date.

(b) All payments and other amounts due under the Note, this Agreement and the other Loan Documents shall be made without any setoff, defense or irrespective of, and without deduction for, counterclaims.

2.2.2. Interest Calculation.

Interest on the outstanding principal balance of the Loan shall be calculated by multiplying (a) the actual number of days elapsed in the period for which the calculation is being made by (b) the Applicable Interest Rate divided by three hundred sixty (360) by (c) the outstanding principal balance. The accrual period for calculating interest due on each Payment Date shall be the Interest Accrual Period in which the related Payment Date occurs.

2.2.3. Payment on Maturity Date.

Borrower shall pay to Lender on the Maturity Date the outstanding principal balance of the Loan, all accrued and unpaid interest thereon, and all other amounts due hereunder and under the Note, the Security Instruments and the other Loan Documents, including all interest that would accrue on the outstanding principal balance of the Loan through and including the end of the Interest Accrual Period in which the Maturity Date occurs (even if such Interest Accrual Period extends beyond the Maturity Date).

2.2.4. Payments after Default.

Upon the occurrence and during the continuance of an Event of Default, (a) interest on the outstanding principal balance of the Loan and, to the extent permitted by Applicable Law, overdue interest and other amounts due in respect of the Loan, shall accrue at the Default Rate, calculated from the date such Default becomes an Event of Default and (b) Lender shall be entitled to receive and Borrower shall pay to Lender on each Payment Date an amount equal to the Net Cash Flow After Debt Service for the prior month, such amount to be applied by Lender to the payment of the Debt in such order as Lender shall determine in its sole discretion, including alternating applications thereof between interest and principal. Interest at the Default Rate and Net Cash Flow After Debt Service shall both be computed from the occurrence of the Event of Default until the actual receipt and collection of the Debt (or that portion thereof that is then due), and, in connection with the foregoing, to the extent permitted by Applicable Law, interest at the Default Rate shall be added to the Debt, shall itself accrue interest at the same rate as the Loan and shall be secured by the Security Instruments. This paragraph shall not be construed as an agreement or privilege to extend the date of the payment of the Debt, nor as a waiver of any other right or remedy accruing to Lender by reason of the occurrence of any Event of Default. The acceptance of any payment of Net Cash Flow After Debt Service shall not be deemed to cure or constitute a waiver of any Event of Default. Lender retains its rights under the Note to accelerate and to continue to demand payment of the Debt upon the happening and

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during the continuance of any Event of Default, despite any payment of Net Cash Flow After Debt Service.

2.2.5. Late Payment Charge.

If any principal, interest or any other sums due under the Loan Documents is not paid by Borrower on the date on which it is due after any applicable notice and cure period (if any) and not including the Payment Date coinciding with the Maturity Date, Borrower shall pay to Lender upon demand an amount equal to the lesser of five percent (5%) of such unpaid sum or the maximum amount permitted by Applicable Law in order to defray the expense incurred by Lender in handling and processing such delinquent payment and to compensate Lender for the loss of the use of such delinquent payment. Any such amount shall be secured by the Security Instruments and the other Loan Documents to the extent permitted by Applicable Law.

2.2.6. Usury Savings.

This Agreement and the Note are subject to the express condition that at no time shall Borrower be obligated or required to pay interest on the principal balance of the Loan at a rate which could subject Lender to either civil or criminal liability as a result of being in excess of the Maximum Legal Rate. If, by the terms of this Agreement or the other Loan Documents, Borrower is at any time required or obligated to pay interest on the principal balance due hereunder at a rate in excess of the Maximum Legal Rate, the Applicable Interest Rate or the Default Rate, as the case may be, shall be deemed to be immediately reduced to the Maximum Legal Rate and all previous payments in excess of the Maximum Legal Rate shall be deemed to have been payments in reduction of principal and not on account of the interest due hereunder. All sums paid or agreed to be paid to Lender for the use, forbearance, or detention of the sums due under the Loan, shall, to the extent permitted by Applicable Law, be amortized, prorated, allocated, and spread throughout the full stated term of the Loan until payment in full so that the rate or amount of interest on account of the Loan does not exceed the Maximum Legal Rate of interest from time to time in effect and applicable to the Loan for so long as the Loan is outstanding.

2.2.7. Indemnified Taxes.

(a) All payments made by Borrower hereunder shall be made free and clear of, and without reduction for or on account of, Indemnified Taxes, excluding (i) Indemnified Taxes measured by Lender’s net income, branch profits taxes and franchise taxes imposed on it, by the jurisdiction under the laws of which Lender is resident or organized, or any political subdivision thereof, (ii) Indemnified Taxes measured by Lender’s overall net income, branch profit taxes and franchise taxes imposed on it, by the jurisdiction of Lender’s principal office or lending office or any political subdivision thereof or in which Lender is resident or engaged in business, and (iii) U.S. federal withholding taxes (including backup withholding taxes) (A) as a result of the failure of Lender to comply with the terms of paragraph (b) below, (B) on amounts payable to or for the account of Lender with respect to an interest in the Loan pursuant to a law in effect on the date on which (1) Lender acquires an interest in the Loan or (2) Lender changes its lending office, or (C) under FATCA, except, in the case of the foregoing clauses (B)(1) and (B)(2), to the extent that, pursuant to this Section 2.2.7(a), amounts with

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respect to such taxes were payable either to Lender’s assignor immediately before Lender became party hereto or to Lender immediately before it changed its lending office. If any Indemnified Taxes are required to be deducted or withheld from any amounts payable to Lender hereunder, Borrower shall be entitled to make such deduction or withholding, and the amounts so payable to Lender shall be increased to the extent necessary to yield to Lender (after deduction or withholding of all non-excluded Indemnified Taxes) interest or any such other amounts payable hereunder at the rate or in the amounts specified hereunder. Whenever any non-excluded Indemnified Tax is payable pursuant to Applicable Law by Borrower, Borrower shall send to Lender an original official receipt showing payment of such non-excluded Indemnified Tax or other evidence of payment reasonably satisfactory to Lender. Borrower hereby indemnifies Lender for any incremental taxes, interest or penalties that may become payable by Lender as a result of any failure by Borrower to pay any such non-excluded Indemnified Tax when due to the appropriate taxing authority or any failure by Borrower to remit to Lender the required receipts or other required documentary evidence. Borrower agrees to indemnify Lender within ten (10) days after written demand thereof for the full amount of any non-excluded Indemnified Taxes attributable to or asserted on payments under this Agreement, whether or not correctly imposed or asserted.

(b) In the event that Lender or any successor and/or assign of Lender is incorporated under the laws of the United States of America or a state thereof, such entity shall, prior to the first date on which any payment is due such entity hereunder, deliver to Borrower two (2) duly completed copies of United States Internal Revenue Service Form W-9 or successor form, certifying that such entity is exempt from U.S. federal backup withholding tax. In the event that Lender or any successor and/or assign of Lender is not incorporated under the laws of the United States of America or a state thereof (a “Non-U.S. Entity”), such entity shall, prior to the first date on which any payment is due such entity hereunder, deliver, to the extent legally able to do so, to Borrower two (2) duly completed copies of United States Internal Revenue Service Form W-8BEN, W-8ECI or W-8IMY or successor applicable form, as the case may be (together with any other required documentation), certifying in each case that such entity is entitled to receive payments under the Note, without deduction or withholding of any United States federal income taxes (or, if applicable, subject to a reduced rate of U.S. federal withholding tax); provided, however, that in the event such entity claims the benefits of the exemption for portfolio interest under Section 881(c) of the Code, such entity shall deliver to Borrower two (2) duly completed copies of (i) a certificate, in form and substance reasonably acceptable to Borrower, to the effect that such entity is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of Borrower or Guarantor within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code and (ii) United States Internal Revenue Service Form W-8BEN or successor form. Each entity required to deliver to Borrower a Form W-8BEN, W-8ECI or W-8IMY pursuant to the preceding sentence further undertakes to deliver to Borrower two (2) further copies of such forms, or successor applicable forms, or other manner of certification, as the case may be (together with any other required documentation), after the occurrence of any event requiring a change in the most recent form previously delivered by it to Borrower, and such other extensions or renewals thereof as may reasonably be requested by Borrower, certifying, to the extent legally able to do so, that such entity is entitled to receive payments under the Note without deduction or withholding of any United States federal income taxes (or, if applicable, subject to a reduced rate of U.S. federal withholding). Lender agrees that if any

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form or certification it previously delivered becomes inaccurate in any respect, it shall update such form or certification or promptly notify Borrower in writing of its legal inability to do so. If a payment made to Lender under any Loan Document would be subject to U.S. federal withholding tax imposed by FATCA if Lender were to fail to comply with the applicable reporting requirements of FATCA, Lender shall deliver to Borrower at the time or times prescribed by Applicable Law and at such time or times reasonably requested by Borrower such documentation prescribed by Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by Borrower as may be necessary for Borrower to comply with its obligations under FATCA and to determine whether Lender has complied with Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. For purposes of this paragraph (b), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

(c) If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes as to which it has been indemnified or received a gross-up payment pursuant to this Agreement, it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments or gross-up payments made with respect to the Indemnified Taxes giving rise to such refund), net of all out-of-pocket expenses (including Indemnified 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 paragraph (c) (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 paragraph (c), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (c) the payment of which would place the indemnified party in a less favorable net after-tax position than the indemnified party would have been in if the Indemnified Tax subject to indemnification or gross-up 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 Indemnified Tax had never been paid. This paragraph 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.

2.2.8. Invalidated Payments.

If any payment received by Lender is deemed by a court of competent jurisdiction to be a voidable preference or fraudulent conveyance under any Creditors Rights Laws, and is required to be returned by Lender, then the obligation to make such payment shall be reinstated, notwithstanding that the Note may have been marked satisfied and returned to Borrower or otherwise canceled, and such payment shall be immediately due and payable upon demand.

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Section 2.3. Prepayments.

2.3.1. Voluntary Prepayments.

(a) Except as otherwise expressly set forth herein (including any payment of principal to avoid or terminate a Triggering Event after the Lockout Date), Borrower shall not have the right to prepay the Loan in whole or in part prior to the Maturity Date. Notwithstanding anything in this Agreement to the contrary, any prepayment of principal to avoid or terminate a Triggering Event shall be subject to the Yield Maintenance Premium.

(b) On the Payment Date in February 2023 (the “Open Date”) or on any Payment Date thereafter, Borrower may, at its option and upon thirty (30) days prior written notice to Lender, prepay the Loan in whole, but not in part, without payment of the Yield Maintenance Premium, provided that Borrower simultaneously pays to Lender an amount equal to the sum of (i) the Debt plus (ii) all interest that would have accrued on the amount of principal being prepaid through and including the last day of the Interest Accrual Period related to the Payment Date next occurring following the date of such prepayment, notwithstanding that such Interest Accrual Period extends beyond the date of prepayment.

(c) After the Lockout Date, Borrower shall have the right, only on a Business Day, to prepay the outstanding principal balance of the Loan in whole, but not in part, upon satisfaction of the following conditions:

(i) Borrower shall deliver to Lender a Prepayment Notice;

(ii) Borrower shall pay to Lender all unpaid interest on the then outstanding principal balance prepaid plus, if the Prepayment Date is not a Payment Date, all interest accruing for the full Interest Accrual Period in which the Prepayment Date falls;

(iii) On the Prepayment Date, Borrower shall pay to Lender (i) the Yield Maintenance Premium (if such payment is made prior to the Open Date) and (ii) all other sums, then due under the Note, this Agreement, the Mortgage, and the other Loan Documents; and

(iv) Borrower shall pay all reasonable costs and expenses of Lender incurred in connection with the repayment or prepayment (including any costs and expenses associated with a release of the Lien of the Mortgage and reasonable attorneys’ fees and expenses).

(d) In connection with any release of the Security Instruments pursuant to this Section 2.3.1, Borrower shall submit to Lender, not less than thirty (30) days prior to the Prepayment Date, a release of Lien (and related Loan Documents) for each Individual Property for execution by Lender. Such release shall be in a form appropriate in each jurisdiction in which an Individual Property is located and that would be satisfactory to a prudent institutional lender and shall contain standard provisions, if any, protecting the rights of the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably

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requires to be delivered by Borrower in connection with such release, together with an Officer’s Certificate certifying that such documentation (i) is in compliance with all applicable Legal Requirements, and (ii) will, following execution by Lender and recordation thereof, effect such releases in accordance with the terms of this Agreement.

(e) Lender shall, upon the written request and at the expense of Borrower, upon payment in full of all principal and interest due on the Loan and all other amounts due and payable under the Loan Documents in accordance with the terms and provisions of the Note and this Agreement, release the Lien of the Security Instrument on each Individual Property not theretofore released and remit any remaining Reserve Funds to or at the direction of Borrower. Provided that no Default or Event of Default shall exist and be continuing, upon written request of Borrower, Lender shall reasonably cooperate in assigning any mortgage and/or deed of trust in connection with release of an Individual Property and such assignment shall be without recourse, representation or warranty (except with respect to Lender’s right, title and interest in and to such mortgage and/or deed of trust and Lender’s authority to transfer its interest therein), and Borrower shall pay all costs and expenses incurred by Lender in connection with such assignment and any actions related thereto.

2.3.2. Mandatory Prepayments.

On each date on which Borrower actually receives any Net Proceeds, if and to the extent Lender is not obligated to make such Net Proceeds available to Borrower for the Restoration of an Individual Property, Borrower shall prepay the outstanding principal balance of the Note together with all interest which would have accrued on the amount of the Loan through and including the last day of the Interest Accrual Period related to the Payment Date next occurring following the date of such prepayment (or, if such prepayment occurs on a Payment Date, through and including the last day of the Interest Accrual Period related to such Payment Date) in an amount equal to one hundred percent (100%) of such Net Proceeds. Additionally, throughout the term of the Loan if an Event of Default is continuing, then Borrower shall pay to Lender, with respect to any payment of the Debt pursuant to this Section 2.3.2, an additional amount equal to the Yield Maintenance Premium calculated based upon any principal amount being prepaid with such Net Proceeds; provided, however, that if an Event of Default is not continuing, then no Yield Maintenance Premium shall be payable.

2.3.3. Prepayments After Default.

(a) If, following an Event of Default, Borrower tenders payment of all or any part of the Debt, or if all or any portion of the Debt is recovered by Lender (including through application of any Reserve Funds) after such Event of Default such tender or recovery shall be deemed a voluntary prepayment by Borrower in violation of the prohibition against prepayment set forth in Section 2.3.1 hereof and Borrower shall pay, in addition to the Debt, (i) an amount equal to the Yield Maintenance Premium, (ii) all interest which would have accrued at the Default Rate on the amount of the Loan through and including the last day of the Interest Accrual Period related to the Payment Date next occurring following the date of such prepayment, notwithstanding that such Interest Accrual Period extends beyond the date of prepayment, (iii) all other sums due and payable under the Loan Documents, and (iv) in the event

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the payment occurs on or prior to the Lockout Date and the Debt has been accelerated, the Liquidated Damages Amount.

(b) DURING THE CONTINUANCE OF AN EVENT OF DEFAULT, AND PRIOR TO THE LOCKOUT DATE, IF THE LOAN HAS BEEN ACCELERATED AND ALL OR ANY PART OF THE LOAN IS REPAID, THEN BORROWER SHALL PAY TO LENDER, AS LIQUIDATED DAMAGES AND NOT AS A PENALTY, AND IN ADDITION TO ANY AND ALL OTHER SUMS AND FEES PAYABLE UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AN AMOUNT EQUAL TO THREE PERCENT (3%) OF THE PRINCIPAL AMOUNT BEING REPAID (THE “LIQUIDATED DAMAGES AMOUNT”).

2.3.4. Making of Payments.

Each payment by Borrower hereunder or under the Note shall be made in funds settled through the New York Clearing House Interbank Payments System or other funds immediately available to Lender by 12:00 p.m., New York City time (except in the case of a payment of the entire Loan at the Maturity Date or as permitted hereunder, in which case such funds shall be available to Lender by 3:00 p.m. New York City time), on or prior to the date such payment is due, to Lender by deposit to such account as Lender may designate by written notice to Borrower. Whenever any payment hereunder or under the Note shall be stated to be due on a day which is not a Business Day, such payment shall be made on the Business Day immediately preceding such scheduled due date.

2.3.5. Application of Principal Prepayments.

All prepayments received pursuant to this Section 2.3 shall be applied to the payments of principal due under the Loan in the inverse order of maturity, except for prepayments received by Lender pursuant to Section 2.3.3 hereof, which prepayments may be applied by Lender in the order and manner determined by Lender in its sole and absolute discretion.

Section 2.4. [Intentionally deleted.]

Section 2.5. Release of an Individual Property.

Except as set forth in Section 2.3, Section 2.6, Section 6.4(e) and this Section 2.5, no repayment or prepayment of all or any portion of the Loan shall cause, give rise to a right to require, or otherwise result in, the release of any Lien of any Security Instrument on any Individual Property. Subject to Section 6.4(e) below, after the Lockout Date, Borrower may obtain the release of an Individual Property from the Lien of the Security Instrument thereon (and related Loan Documents) upon a bona fide third-party sale of such Individual Property and the release of Borrower’s obligations under the Loan Documents with respect to such Individual Property (other than those expressly stated to survive), upon the satisfaction of each of the following conditions:

(a) No Event of Default shall exist as of the date of Borrower’s notice to Lender pursuant to Section 2.5 (c) and no Event of Default exist immediately after the consummation of such release;

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(b) The amount of the outstanding principal balance of the Loan to be prepaid in connection with such release shall equal the Release Price for the applicable Individual Property;

(c) Borrower shall provide Lender with at least thirty (30) days but no more than ninety (90) days prior written notice of its request to obtain a release of the Individual Property, which such notice shall specify the date, which must be a Business Day (the “Release Date”), on which the release is to be consummated;

(d) On the Release Date, Borrower shall pay to Lender all unpaid interest on the portion of the outstanding principal amount of the Loan being prepaid plus, if the Release Date is not a Payment Date, all interest accruing for the full Interest Accrual Period in which the Release Date falls;

(e) On the Release Date, Borrower shall pay to Lender the Yield Maintenance Premium (if such payment is made prior to the Open Date);

(f) In accordance with the release of a Security Instrument in accordance with the terms hereof, Borrower shall submit to Lender, not less than thirty (30) days prior to the Release Date, a release of Lien (and related Loan Documents) for each Individual Property for execution by Lender. Such release shall be in a form appropriate in the jurisdiction in which each Individual Property is located and that would be satisfactory to a prudent institutional lender and shall contain standard provisions, if any, protecting the rights of the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release, together with an Officer’s Certificate certifying that such documentation (i) is in compliance with all applicable Legal Requirements, (ii) will, following execution by Lender and recordation thereof, effect such releases in accordance with the terms of this Agreement, and (iii) will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released (or as to the parties to the Loan Documents and Properties subject to the Loan Documents not being released). Borrower and Guarantor shall execute and deliver any documents as Lender may reasonably request to evidence the continued validity of the Liens, security interests and other rights of Lender under the Loan Documents not being released;

(g) As of the date of Borrower’s notice to Lender pursuant to Section 2.5(c) hereof and as of the date of the consummation of such release, Lender shall have determined that the Debt Service Coverage Ratio for the Properties then remaining subject to the Liens of the Security Instruments shall be greater than the greater of (i) the Debt Service Coverage Ratio for all of the Properties existing on the Closing Date, and (ii) the Debt Service Coverage Ratio for all of the then remaining Properties (including each Individual Property to be released) immediately preceding the release of each Individual Property;

(h) As of the date of Borrower’s notice to Lender pursuant to Section 2.5(c) hereof and as of the date of the consummation of such release, Lender shall have determined that the Loan to Value Ratio for the Properties then remaining subject to the Liens of the Security Instruments shall be no greater than the Loan to Value Ratio immediately preceding the Closing Date;

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(i) Lender shall have received evidence that the Individual Property to be released shall be conveyed pursuant to an arm’s length agreement to a Person other than Borrower, Guarantor or any Affiliate thereof;

(j) Either (i) a Lender 80% Determination in connection with such release shall have been made at Borrower’s expense or (ii) Borrower shall deliver an opinion of counsel for Borrower that is standard in commercial lending transactions and subject only to customary qualifications, assumptions and exceptions opining that any REMIC Trust formed pursuant to a Securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code as a result of the release and that no federal income tax will be imposed on the REMIC Trust as a result of the proposed release. In connection with such opinion, any determination of the fair market value of the Properties required by the provisions regarding REMIC Trusts shall be made by Lender based on an appraisal or other commercially reasonable valuation method selected by Lender;

(k) Lender shall have received payment of all Lender’s costs and expenses, including due diligence review costs and counsel fees and disbursements incurred in connection with the release of the Individual Property from the lien of the related Security Instrument and the review and approval of the documents and information required to be delivered in connection therewith;

(l) On and after the date of the consummation of the release, Borrower shall be in compliance with Section 4.1.36 of this Agreement;

(m) Borrower shall have delivered to Lender an Officer’s Certificate stating that the representations and warranties of Borrower and Guarantor set forth in this Agreement and any other Loan Document shall be true and correct on and as of the date of the consummation of the release;

(n) On or prior to the date of the consummation of the release, Borrower shall have delivered to Lender a true, correct and complete copy of the final executed closing settlement statement for the sale of the Individual Property being released; and

(o) Borrower shall have delivered confirmation in writing from the applicable Rating Agencies to the effect that such release will not result in a downgrading, withdrawal or qualification of the respective ratings in effect immediately prior to such release for the Securities.

Provided that no Default or Event of Default shall exist and be continuing, upon written request of Borrower, Lender shall reasonably cooperate in assigning any mortgage and/or deed of trust in connection with release of an Individual Property and such assignment shall be without recourse, representation or warranty (except with respect to Lender’s right, title and interest in and to such mortgage and/or deed of trust and Lender’s authority to transfer its interest therein), and Borrower shall pay all costs and expenses incurred by Lender in connection with such assignment and any actions related thereto.

In connection with any release of an Individual Property pursuant to this Section 2.5, Lender shall readjust any required reserve payments and any amortization payments to reflect

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such release, such adjustments to be determined by Lender in its sole discretion absent manifest error.

Section 2.6. Substitutions of Property.

Notwithstanding anything to the contrary herein contained, Borrower, at Borrower’s sole cost and expense, may obtain a release of the Lien of a Security Instrument and the other Loan Documents from one or more Individual Properties (each such Individual Property, an “Exchange Property”) on one or more occasions provided that the conditions set forth in this Section 2.6 are satisfied in connection with each Substitution. For the purposes of this Agreement, each such release of the Lien of a Security Instrument and the other Loan Documents from an Individual Property and the corresponding encumbrance of the Substitute Property and satisfaction of the requirements of this Section are herein referred to as a “Substitution”. A “Substitute Property” shall mean real property that is (1) acceptable to Lender in Lender’s sole discretion, and (2) owned by Borrower in fee simple that is reasonably equivalent in use and condition to the Exchange Property; notwithstanding the foregoing, the designation of such real property as a “Substitute Property” shall be made subject to Lender’s prior written approval to be granted or withheld in its sole and absolute discretion. Each Substitution shall be subject to the satisfaction of the following conditions:

(a) Not less than thirty (30) days prior to the date of Substitution, Borrower delivers to Lender a notice setting forth (A) the date of the proposed Substitution (the “Substitution Date”), (B) copies of all leases and tenant information with respect to the Substitute Property, and (C) such other information that Lender shall require to grant or withhold its consent to the designation of the real property as a Substitute Property and the consummation of the Substitution;

(b) No Event of Default shall have occurred and be continuing on the date of Borrower’s notice to Lender pursuant to Section 2.6(a) hereof, the Substitution Date or after giving effect to the Substitution;

(c) The Exchange Property, together with all Exchange Properties previously released pursuant to this Section, shall not have aggregate Allocated Loan Amounts in excess of fifteen percent (15%) of the outstanding principal balance of the Loan as of the Closing Date;

(d) As of the date of Borrower’s notice to Lender pursuant to Section 2.6(a) hereof and as of the date of the consummation of such Substitution, Lender shall have determined that the Debt Service Coverage Ratio for the Properties then remaining subject to the Liens of the Security Instruments shall be greater than the greater of (i) the Debt Service Coverage Ratio for all of the Properties existing on the Closing Date, and (ii) the Debt Service Coverage Ratio for all of the then remaining Properties (including the Exchange Property to be substituted) immediately preceding the Substitution;

(e) As of the date of Borrower’s notice to Lender pursuant to Section 2.6(a) hereof and as of the date of the consummation of such Substitution, Lender shall have determined that the Loan to Value Ratio for the Properties then remaining subject to the Liens of

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the Security Instruments shall be no greater than the lesser of (i) the Loan to Value Ratio immediately preceding the Closing Date, and (ii) the Loan to Value Ratio for all of the then remaining Properties (including the Exchange Property to be substituted) immediately prior to the consummation of the Substitution;

(f) As of the date of Borrower’s notice to Lender pursuant to Section 2.6(a) hereof and as of the date of the consummation of such Substitution, (1) the Debt Yield for the Properties shall be greater than the greater of (A) the Debt Yield for all of the Properties existing on the Closing Date of the Loan and (B) the Debt Yield for all of the Properties (including the Exchange Property) immediately prior to the consummation of the Substitution, and (2) the Debt Yield for the Substitute Property, based on its Allocated Loan Amount, shall be greater than the greater of (A) the Debt Yield for the Exchange Property, based on its Allocated Loan Amount, as of the Closing Date of the Loan, and (b) the Debt Yield for such Exchange Property, based on its Allocated Loan Amount, immediately prior to the consummation of the Substitution;

(g) Borrower shall have delivered with respect to the Substitute Property an Appraisal prepared not more than three (3) months prior to the Substitution evidencing that the appraised value of the Substitute Property is equal to or greater than the appraised value of the Exchange Property as of the Closing Date;

(h) Simultaneously with the Substitution, Borrower shall convey all of Borrower’s right, title and interest in, to and under the Exchange Property to a Person other than Borrower, Guarantor or a Person Affiliated with Borrower or Guarantor;

(i) Borrower shall deliver to Lender an Officer’s Certificate stating that the representations and warranties set forth in Article III applicable to the Exchange Property shall be true and correct as to the Substitute Property on the Substitution Date (and after giving effect to the Substitution) in all material respects;

(j) Borrower shall have executed and delivered the Substitute Loan Documents;

(k) Borrower shall have executed and delivered such other modifications and amendments to the Loan Agreement, the other Loan Documents and the Leases as Lender may require in its reasonable discretion in order to reflect and effect the Substitution and to protect and preserve the liens and security interests of Lender in and to the Property and the Substitute Property;

(l) Borrower shall deliver to Lender evidence that Borrower has the organizational authority to undertake and complete the Substitution and that the Substitute Loan Documents have been duly authorized and validly executed by or on behalf of Borrower, including any good standing certificates, qualifications to do business, resolutions, consents or other documentation as Lender may reasonably request;

(m) Lender shall have received such lien, credit, bankruptcy, litigation and judgment searches with respect to the Substitute Property and Borrower as Lender shall require;

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(n) Borrower shall deliver or cause to be delivered to Lender an opinion of counsel opining as to the enforceability of the Substitute Loan Documents with respect to the Substitute Property in substantially the same form and substance as the opinion of counsel originally delivered at the Closing Date in connection with the Loan and the Property (including the Exchange Property);

(o) Borrower shall deliver or cause to be delivered to Lender a copy of the deed conveying to Borrower all right, title and fee interest in and to the Substitute Property;

(p) If the Substitute Property is in a flood plain area, Borrower shall deliver on the date of Substitution evidence of flood insurance meeting the requirements of Article VI of this Agreement;

(q) Borrower shall deliver or cause to be delivered to Lender a Phase I environmental report acceptable to Lender in its sole discretion issued by a recognized environmental consultant at Borrower’s expense, and, if recommended under the Phase I environmental report, a Phase II environmental report which either (I) concludes that the Substitute Property does not contain any Hazardous Substance except for nominal amounts of such substances commonly incorporated in or used in the operation of properties similar to the Property (in either case in compliance with all Environmental Laws) and is not subject to any risk of contamination from any off-site Hazardous Substance, or (II) in the event the same discloses the presence of any Hazardous Substance or the risk of contamination from any off-site Hazardous Substance, includes an estimate of the cost of any related remediation, and in such event, Borrower shall (x) deposit with Lender an amount equal to one hundred twenty-five percent (125%) of such estimated cost, which deposit shall constitute additional security for the Loan and shall be released to Borrower upon the delivery to Lender of (1) an update to such report indicating that there is no longer any Hazardous Substance on the Property except for nominal amounts of such substances commonly incorporated in or used in the operation of properties similar to the Substitute Property (in either case in compliance with all Environmental Laws) or any danger of contamination from any off-site Hazardous Substance that has not been fully remediated and (2) paid receipts indicating that the costs of all such remediation work have been paid, (y) promptly commence and diligently prosecute to completion (subject to Force Majeure) by no later than such date as Lender shall notify to Borrower on or before the Substitution Date, and (z) deliver to Lender a “no further action” letter from each Governmental Authority having jurisdiction over matters of Environmental Law applicable to such Hazardous Substances;

(r) the Substitute Property will not have suffered a Casualty or Condemnation which has not been fully restored;

(s) Borrower shall deliver or cause to be delivered to Lender a Physical Conditions Report acceptable to Lender in its reasonable discretion with respect to the Substitute Property which (I) indicates that the Substitute Property is in good condition and repair, ordinary wear and tear excepted, and free of damage or waste or (II) in the event the same recommends that any repairs be made with respect to the Substitute Property, includes an estimate acceptable to Lender of the cost of such recommended repairs, and in such event Borrower shall (x) promptly commence and diligently prosecute to completion (subject to Force

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Majeure) by no later than such date as Lender shall notify to Borrower on or before the Substitution Date, and (y) deposit with Lender an amount equal to one hundred twenty-five percent (125%) of such estimated cost, which deposit shall constitute additional security for the Loan and shall be released to Borrower in accordance with terms and conditions set forth in Section 3.9 hereof;

(t) Lender shall have received either a title insurance policy or an endorsement, which may be a tie-in endorsement, (the “Endorsement”) to the existing Title Insurance Policy (or a marked, signed and redated commitment to issue such policy or Endorsement) insuring the Lien of the Substitute Security Instrument as a first mortgage lien on the Substitute Property dated as of the date of the Substitution, providing coverage in the amount of the Loan, free and clear of all exceptions (including past due and unpaid real estate taxes) from coverage other than Permitted Encumbrances and standard exceptions and exclusions from coverage (as modified by the terms of any endorsements) reasonably acceptable to Lender, and containing such legally available endorsements and affirmative coverages as are legally available with respect to the Substitute Property similar to such endorsements and affirmative coverages with respect to the Loan and the Property (including the Exchange Property) and naming Lender and its successors and assigns as the insured. Lender also shall have received copies of paid receipts showing that all costs of or premiums for such endorsements and title insurance policies have been paid or confirmation of same from the applicable title insurance company;

(u) Lender will have received an endorsement to the existing Title Insurance Policy, a new title insurance policy for the Substitute Property, or a letter from the appropriate governmental authority, that, in each case, either insures (in the case of an endorsement or new policy) or states (in the case of a governmental authority) that the Substitute Property constitutes a separate tax lot;

(v) Borrower shall deliver or cause to be delivered to Lender a Survey of the Substitute Property in form and substance satisfactory to Lender;

(w) If a Securitization has occurred, Borrower shall deliver to Lender written confirmation from the Rating Agencies that the Substitution shall not result in a downgrade, withdrawal or qualification of the ratings then assigned to the Securities;

(x) Borrower shall deliver to Lender such other information and further approvals, opinions, documents, instruments and information in connection with the substitution as any Rating Agency may require;

(y) Borrower shall have delivered valid certificates of insurance evidencing insurance coverage with respect to the Substitute Property, which insurance coverage and the insurance companies providing such coverage will be in compliance with the requirements of this Agreement, together with evidence of the payment of all premiums then due for such insurance;

(z) if the Substitute Property is located in the State of California or a seismic area designated as Zone 3 or 4, Borrower shall have delivered a PML study and a seismic report, and Borrower shall obtain such earthquake insurance if necessary;

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(aa) Borrower shall have delivered evidence that all taxes relating to the Substitute Property have been paid if then due and payable, unless being contested, subject to and in accordance with the requirements of this Agreement;

(bb) Borrower shall have made such additional deposits to the Reserve Funds in respect of the Substitute Property in connection with the Substitution as are required with respect to the insurance, replacements and taxes that are applicable to such Substitute Property;

(cc) with respect to the Substitute Property, Borrower shall have delivered to Lender (i) annual operating statements for the three (3) years immediately prior to the Substitution Date to the extent available and provided by Tenant of such Substitute Property, (ii) financial statements for the most current completed fiscal year, which financial statements will be required to be accompanied by an Officer’s Certificate in the form required pursuant to this Agreement, (iii) a current operating statement, (iv) an annual budget for the Substitute Property; and (v) an Officer’s Certificate certifying that each of the foregoing presents fairly the financial condition and the results of operations of the Borrower and the Substitute Property;

(dd) Borrower shall have paid all costs and expenses incurred by Lender (including due diligence costs, reasonable attorneys’ fees and disbursements) in connection with the Substitution and the review and approval of the documents and information required to be delivered in connection therewith, and Borrower shall have paid all recording charges, filing fees, taxes or other similar expenses (including mortgage and intangibles taxes and documentary stamp taxes) payable in connection with the Substitution. Borrower shall have paid all reasonable out-of-pocket costs and expenses and fees of any Rating Agency incurred in connection with the substitution;

(ee) Borrower shall have delivered to Lender a release of Lien (and related Loan Documents) for the Exchange Property for execution by Lender. Such release shall be in a form appropriate in the jurisdiction in which the Exchange Property is located and that would be satisfactory to a prudent lender and contains standard provisions, if any, protecting the rights of the releasing lender. In addition, Borrower shall provide all other certificates, documents and instruments Lender reasonably requires to be delivered by Borrower in connection with such release, together with an Officer’s Certificate certifying that such documentation (A) is in compliance with all applicable Legal Requirements, (B) will effect such release in accordance with the terms of this Agreement; and (C) will not impair or otherwise adversely affect the Liens of the Lender under the Loan Documents not being released (or as to the parties to the Loan Documents and the Properties subject to the Loan Documents not being released);

(ff) Borrower and Guarantor shall have delivered to Lender a reaffirmation, in form and substance reasonably satisfactory to Lender, of their respective obligations (as applicable) under each Guaranty and the Environmental Indemnity with respect to the Property (after giving effect to such Substitution);

(gg) A Lender 80% Determination in connection with such Substitution shall have been made at Borrower’s expense and Borrower shall deliver an opinion of counsel

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for Borrower that is standard in commercial lending transactions and subject only to customary qualifications, assumptions and exceptions opining that any REMIC Trust formed pursuant to a Securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code as a result of the Substitution and that no federal income tax will be imposed on the REMIC Trust as a result of the Substitution. In connection with such opinion, any determination of the fair market value of the Properties required by the provisions regarding REMIC Trusts shall be made by Lender based on an appraisal or other commercially reasonable valuation method selected by Lender;

(hh) Borrower shall have complied with any requirements applicable to the Substitution (if any) in the Leases, parking agreements or other similar agreements affecting the Property (including each applicable Substitute Property) and the Substitution does not violate any of the provisions of such documents in any respect that would result in a termination (or give any other party thereto the right to terminate), extinguishment or other loss of material rights of Borrower or in a material increase in Borrower’s obligations under such documents; and

(ii) Borrower shall have delivered to Lender such other documents, instruments and agreements as Lender may reasonably require relating to such Substitution.

III. CASH MANAGEMENT

Section 3.1. Establishment of Accounts.

(a) Borrower shall, simultaneously herewith establish, and hereby covenants to maintain, an account (the “Lockbox Account”) with Lockbox Bank acceptable to Lender in the name of Borrower for the sole and exclusive benefit of Lender into which Borrower shall deposit, or cause to be deposited, all Gross Income from Operations, all forfeited Security Deposits and all other revenue of any kind from the Properties received by Borrower or Manager.

(b) Lender, on Borrower’s behalf, shall, simultaneously herewith (i) establish an account with the Cash Management Bank (the “Cash Management Account”) in the name of Borrower for the sole and exclusive benefit of Lender (and Borrower shall also to the extent required by Lender, and promptly upon Lender’s request, execute the agreement referred to below in clause (ii) of this Section 3.1(b)), into which Borrower shall deposit or cause to be deposited (x) the Initial Deposits, in accordance with Section 3.6 hereof, and (y) all sums on deposit in the Lockbox Account, subject to and in accordance with Sections 3.2 and 3.7 hereof, and (ii) execute an agreement with the Cash Management Bank providing, among other things, for the control of the Cash Management Bank by Lender and establishing the following Accounts (which may be book entry sub-accounts) into which all amounts in the Lockbox Account, all Gross Income from Operations, all forfeited Security Deposits and all other revenue of any kind from the Property received by Borrower or Manager, as applicable, shall, subject to Sections 3.2 and 3.7 hereof, be deposited or allocated to:

(A) An account with Cash Management Bank into which Borrower shall deposit, or cause to be deposited, the Monthly Tax Deposit (the “Tax Account”);

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(B) An account with Cash Management Bank into which Borrower shall deposit, or cause to be deposited, the Monthly Insurance Premium Deposit (the “Insurance Premium Account”);

(C) An account with Cash Management Bank into which Borrower shall deposit, or cause to be deposited, the Monthly Debt Service Payment Amount (the “Debt Service Account”);

(D) An account with Cash Management Bank into which Borrower shall deposit, or cause to be deposited, the Replacement Reserve Monthly Deposit (the “Replacement Reserve Account”);

(E) An account with Cash Management Bank into which Borrower shall deposit, or cause to be deposited, the Required Repair Fund (the “Required Repair Account”);

(F) An account with Cash Management Bank into which Borrower shall deposit, or cause to be deposited, the Rollover Reserve Fund (the “Rollover Reserve Account”); and

(G) An account with Cash Management Bank which Borrower shall deposit, or cause to be deposited the Excess Cash Reserve Fund (the “Excess Cash Reserve Account”).

Section 3.2. Deposits into Lockbox Account.

Borrower represents, warrants and covenants that (i) Borrower shall, or shall cause Manager to, deposit all Gross Income from Operations, all forfeited Security Deposits and all other revenue of any kind from each Individual Property received by Borrower or Manager into the Lockbox Account no later than one (1) Business Day after receipt; provided, however, that all Lease Termination Payments and forfeited Security Deposits shall be deposited directly in to the Rollover Reserve Account; (ii) Borrower shall send a notice, substantially in the form of Exhibit A, to all Tenants now or hereafter occupying space at each Individual Property directing them to pay all Rents (including all Lease Termination Payments) and all other sums due under the Lease to which they are a party directly into the Lockbox Account; (iii) other than the Accounts and Borrower’s account referred to in Section 3.7(a)(i) hereof, there shall be no other accounts maintained by Borrower or any other Person into which revenues from the ownership and operation of the Properties are deposited; and (iv) neither Borrower nor any other Person shall open any other such account with respect to the deposit of income in connection with the Properties other than Borrower’s account referred to in Section 3.7(a)(i) hereof. Until deposited into the Lockbox Account, any Gross Income from Operations, forfeited Security Deposits and other revenue of any kind from the Properties received by Borrower or Manager shall be deemed to be Collateral and shall be held in trust by Borrower or Manager, as the case may be, for the benefit, and as the property, of Lender. Borrower warrants and covenants that it shall not

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rescind, withdraw or change any notices or instructions required to be sent by it pursuant to this Section 3.2 without Lender’s prior written consent.

Section 3.3. Account Name.

(a) The Accounts shall each be in the name of Borrower for the benefit of Lender, provided that Borrower shall be the owner of all funds on deposit in the Accounts for federal and applicable state and local tax purposes.

(b) In the event Lender enters into a Secondary Market Transaction, the title of each Account shall, at Lender’s request, be modified to change the name of the applicable Account to reflect the name of the transferee or assignee of the Loan or at the option of Lender, the title of each Account shall, at Lender’s request, be modified to change the name of the applicable Account to substitute the name of the Servicer as agent for Lender in place and stead of Lender. Borrower shall cooperate with Lender in changing the name of the applicable Account as set forth in this Section 3.3(b).

Section 3.4. Eligible Accounts.

Each Account shall be an Eligible Account.

Section 3.5. Permitted Investments.

Borrower hereby irrevocably directs Lender to invest sums on deposit in any Account other than the Lockbox Account or Cash Management Account in Permitted Investments provided (i) such investments are then regularly offered by Cash Management Bank for accounts of this size, category and type, (ii) such investments are permitted by Applicable Law, (iii) the maturity date of the Permitted Investment is not later than the date on which sums in the applicable Account are anticipated by Lender to be required for payment of an obligation for which such Account was created, and (iv) no Event of Default shall have occurred and be continuing. All income earned from Permitted Investments shall be the property of Borrower. Borrower hereby irrevocably authorizes and directs Cash Management Bank to hold any income earned from Permitted Investments as part of the Accounts. Borrower shall be responsible for payment of any federal, State or local income or other tax applicable to income earned from Permitted Investments. No other investments of the sums on deposit in the Accounts shall be permitted except as set forth in this Section 3.5. Lender shall not be liable for any loss sustained on the investment of any funds constituting the Reserve Funds or of any funds deposited in the Accounts.

Section 3.6. The Initial Deposits.

Lender shall determine, in its reasonable discretion, the initial deposit amounts (the “Initial Deposits”) required to be deposited in each of Accounts and Borrower shall deposit the respective Initial Deposits (or hereby authorizes Lender to fund the Initial Deposits from the proceeds of the Loan) into each Account on the Closing Date.

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Section 3.7. Transfer to and Disbursements from the Cash Management Account.

(a) The Lockbox Agreement shall provide that, among other things, Borrower, or Lender on behalf of Borrower, shall direct the Lockbox Bank to transfer, on each Business Day, all funds on deposit in the Lockbox Account to (i) prior to the occurrence of a Triggering Event or TI/LC Cash Sweep Triggering Event, such account as shall be specified by Borrower in writing to Lender and Lockbox Bank, and (ii) following and during the continuance of a Triggering Event or TI/LC Cash Sweep Triggering Event, provided that in the case of a TI/LC Cash Sweep Triggering Event only to the extent that the amounts on deposit in the Rollover Reserve Account are insufficient to pay the tenant improvement and leasing commission amounts set forth on Schedule V hereto, the Cash Management Account.

(b) Following the occurrence and during the continuance of a Triggering Event (other than an Event of Default) or a TI/LC Cash Sweep Triggering Event (to the extent that the amounts on deposit in the Rollover Reserve Account are insufficient to pay the tenant improvement and leasing commission amounts set forth on Schedule V hereto), provided no Event of Default is then continuing, Lender shall direct Cash Management Bank to withdraw all funds on deposit in the Cash Management Account on the date immediately preceding each Payment Date (and if such day is not a Business Day then the immediately preceding Business Day), and shall disburse such funds in the following order of priority:

(i) First, funds sufficient to pay the Monthly Tax Deposit shall be deposited in the Tax Account;

(ii) Second, funds sufficient to pay the Monthly Insurance Premium Deposit shall be deposited in the Insurance Premium Account;

(iii) Third, funds sufficient to pay the Monthly Debt Service Payment Amount shall be deposited into the Debt Service Account;

(iv) Fourth, funds sufficient to pay the Replacement Reserve Monthly Deposit shall be deposited in the Replacement Reserve Account;

(v) Fifth, funds sufficient to pay the Rollover Reserve Monthly Deposit shall be deposited in the Rollover Reserve Account;

(vi) Sixth, funds sufficient to pay any interest accruing at the Default Rate, late payment charges, if any, and any unpaid reimbursable costs and expenses incurred by Lender on Borrower’s behalf or in connection with the enforcement of Lender’s rights and remedies under the Loan Documents, at law or in equity, if any, shall be deposited in the Debt Service Account;

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(vii) Seventh, to the payment of Cash Management Bank for fees and expenses incurred in connection with this Agreement and the accounts established hereunder;

(viii) Eighth, to the payment of the Servicing Fee (if such Servicing Fee is due);

(ix) Ninth, to Borrower for the payment of Lender approved Operating Expenses for such period; and

(x) Tenth, all amounts remaining in the Cash Management Account after deposits pursuant to clauses (i) through (viii) above for the current month and all prior months shall be disbursed either (a) during the continuance of a TI/LC Cash Sweep Triggering Event to the extent that the amounts on deposit in the Rollover Reserve are insufficient to pay the tenant improvement and leasing commission amounts set forth on Schedule V hereto, to the Rollover Reserve Account, and (b) during the continuance of a Triggering Event (other than an Event of Default), to the Excess Cash Reserve Account.

Section 3.8. Withdrawals From the Tax Account and the Insurance Premium Account.

Lender shall have the right to withdraw funds on deposit in the Tax Account and Lender shall use such funds to pay all Taxes. Lender shall have the right to withdraw funds on deposit in the Insurance Premium Account to pay Insurance Premiums. The Cash Management Bank shall disburse funds on deposit in the Tax Account and the Insurance Premium Account in accordance with Lender’s written request therefor on the Business Day following the Cash Management Bank’s receipt of such written request.

Section 3.9. Withdrawals from the Required Repair Account.

Lender shall disburse funds on deposit in the Required Repair Account in accordance with the provisions of Section 7.1.2 hereof.

Section 3.10. Withdrawals from the Replacement Reserve Account.

Lender shall disburse funds on deposit in the Replacement Reserve Account in accordance with the provisions of Section 7.3.2 hereof.

Section 3.11. Withdrawals from the Debt Service Account.

Lender shall have the right to withdraw funds on deposit in the Debt Service Account to pay the Monthly Debt Service Payment Amount on or after the date when due, together with any late payment charges or interest accruing at the Default Rate and unpaid reimbursable costs and expenses incurred by Lender on Borrower’s behalf or in the enforcement of Lender’s rights or remedies under any of the Loan Documents, at law or in equity.

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Section 3.12. Withdrawals from the Rollover Reserve Account.

Lender shall disburse funds on deposit in the Rollover Reserve Account in accordance with the provisions of Section 7.4.3 hereof.

Section 3.13. Withdrawals from the Excess Cash Reserve Account.

Lender shall have the right to withdraw funds from the Excess Cash Reserve Account in accordance with Section 7.6 hereof.

Section 3.14. Sole Dominion and Control.

Borrower acknowledges and agrees that the Accounts are subject to the sole dominion, control and discretion of Lender, its authorized agents or designees, including Lockbox Account Bank and Cash Management Bank, subject to the terms hereof; and Borrower shall have no right of withdrawal with respect to any Account except with the prior written consent of Lender.

Section 3.15. Security Interest.

Borrower hereby grants to Lender a first priority security interest in each of the Accounts and the Account Collateral as additional security for the Debt.

Section 3.16. Rights on Default.

Notwithstanding anything to the contrary in this Article 3, upon the occurrence and during the continuance of an Event of Default, Lender may notify Lockbox Bank and Cash Management Bank in writing of such Event of Default and, without notice from Lockbox Bank, Cash Management Bank or Lender, (a) Borrower shall have no rights in respect of (including the right to instruct Lockbox Bank or Cash Management Bank to transfer from) the Accounts, (b) Lender may direct Cash Management Bank to liquidate and transfer any amounts then invested in Permitted Investments to the Accounts or reinvest such amounts in other Permitted Investments as Lender may reasonably determine is necessary to perfect or protect any security interest granted or purported to be granted hereby or pursuant to the other Loan Documents or to enable Cash Management Bank, as agent for Lender, or Lender to exercise and enforce Lender’s rights and remedies hereunder or under any other Loan Document with respect to any Account or any Account Collateral, and (c) Lender shall have all rights and remedies with respect to the Accounts and the amounts on deposit therein and the Account Collateral as described in this Agreement and in the Security Instruments, in addition to all of the rights and remedies available to a secured party under the UCC, and, notwithstanding anything to the contrary contained in this Agreement or in the Security Instruments, Lender may apply the amounts of such Accounts as Lender determines in its sole discretion including, but not limited to, payment of the Debt.

Section 3.17. Financing Statement; Further Assurances.

Borrower hereby authorizes Lender to file a financing statement or statements under the UCC in connection with any of the Accounts and the Account Collateral with respect thereto in the form required to properly perfect Lender’s first priority security interest therein. For the avoidance of doubt, Lender is hereby authorized to file a financing statement or financing

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statements describing the collateral secured by this Agreement as “all assets of debtor whether now owned or hereafter acquired” or any similar description. Borrower agrees that at any time and from time to time, at the expense of Borrower, Borrower will promptly execute and deliver all further instruments and documents, and take all further action, that may be necessary or desirable, or that Lender may request, in order to perfect and protect any security interest granted or purported to be granted hereby (including any security interest in and to any Permitted Investments) or to enable Cash Management Bank or Lender to exercise and enforce its rights and remedies hereunder with respect to any Account or Account Collateral.

Section 3.18. Borrower’s Obligation Not Affected.

The insufficiency of funds on deposit in the Accounts shall not absolve Borrower of the obligation to make any payments, as and when due pursuant to this Agreement and the other Loan Documents, and such obligations shall be separate and independent, and not conditioned on any event or circumstance whatsoever.

Section 3.19. Payments Received Under this Agreement.

Notwithstanding anything to the contrary contained in this Agreement or the other Loan Documents, and provided no Event of Default has occurred and is continuing, Borrower’s obligations with respect to the monthly payment of Debt Service and amounts due for the Tax and Insurance Escrow Fund, Required Repair Fund, Replacement Escrow Fund, Rollover Reserve Fund, and any other payment reserves established pursuant to this Agreement or any other Loan Document shall (provided Lender is not prohibited from withdrawing or applying any funds in the Accounts by Applicable Law or otherwise) be deemed satisfied to the extent sufficient amounts are deposited in the Cash Management Bank established pursuant to this Agreement to satisfy such obligations on the dates each such payment is required, regardless of whether any of such amounts are so applied by Lender.

IV. REPRESENTATIONS AND WARRANTIES

Section 4.1. Borrower Representations.

Borrower represents and warrants to Lender as of the Closing Date that:

4.1.1. Organization.

Borrower is duly organized and is validly existing and in good standing in the jurisdiction in which it is organized, with requisite power and authority to own the Properties and to transact the businesses in which it is now engaged. Borrower is duly qualified to do business and is in good standing in each jurisdiction where it is required to be so qualified in connection with the Properties, its businesses and operations. Borrower possesses all rights, licenses, permits and authorizations, governmental or otherwise, necessary to entitle it to own the Properties and to transact the businesses in which it is now engaged. Attached hereto as Schedule III is true, correct and complete organizational chart of Borrower which identifies all direct and indirect beneficial owners of Borrower.

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4.1.2. Proceedings.

Borrower has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the other Loan Documents. This Agreement and the other Loan Documents have been duly executed and delivered by or on behalf of Borrower and constitute legal, valid and binding obligations of Borrower enforceable against Borrower in accordance with their respective terms, subject only to applicable bankruptcy, insolvency and similar laws affecting rights of creditors generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and except that certain provisions in such Loan Documents may be further limited or rendered unenforceable by Applicable Law, but (subject to the limitations set forth above) such limitations or unenforceability will not render such Loan Documents invalid as a whole or materially interfere with Lender’s realization of the principal benefits and/or security provided thereby.

4.1.3. No Conflicts.

The execution, delivery and performance of this Agreement and the other Loan Documents by Borrower will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any Lien, charge or encumbrance (other than pursuant to the Loan Documents) upon any of the Properties or assets of Borrower pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, organizational document, management agreement, or other agreement or instrument to which Borrower is a party or by which any of Borrower’s Property or assets is subject, nor will such action result in any violation of the provisions of any statute or any order, rule or regulation of any court or Governmental Authority or other body having jurisdiction over Borrower or any of the Properties or any of Borrower’s other assets, or any license or other approval required to operate the Properties, and any consent, approval, authorization, order, registration or qualification of or with any Governmental Authority required for the execution, delivery and performance by Borrower of this Agreement or any other Loan Documents have been obtained and is in full force and effect.

4.1.4. Litigation.

There are no actions, suits or proceedings at law or in equity, arbitrations or governmental investigations by or before any Governmental Authority or other agency now pending, filed or, to Borrower’s knowledge, threatened against or affecting Borrower, Guarantor, or any Individual Property, which actions, suits or proceedings, arbitrations or governmental investigations, if determined against Borrower, Guarantor, or any Individual Property, would reasonably be expected to materially and adversely affect (a) title to any Individual Property, (b) the validity or enforceability of the Security Instruments, (c) Borrower’s ability to perform under the Loan Documents, (d) Guarantor’s ability to perform under the Loan Documents to which it is a party, (e) the use, operation or value of any Individual Property, (f) the principal benefit of the security intended to be provided by the Loan Documents, or (g) the current ability of the Properties to generate net cash flow sufficient to service the Loan.

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4.1.5. Agreements.

Borrower is not a party to any agreement or instrument or subject to any restriction which would reasonably be expected to materially and adversely affect Borrower or any Individual Property, or Borrower’s business, Properties or assets, operations or condition, financial or otherwise. Borrower is not in default in any respect in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any agreement or instrument to which it is a party or by which Borrower or any of the Properties are bound. Borrower has no financial obligation under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which Borrower is a party or by which Borrower or any Individual Property is otherwise bound, other than (a) obligations incurred in the ordinary course of the operation of any Individual Property and (b) obligations under the Loan Documents.

4.1.6. Title.

Borrower has good, marketable and insurable fee simple title to the real property comprising part of each Individual Property and good title to the balance of each Individual Property, free and clear of all Liens whatsoever except the Permitted Encumbrances. The Security Instruments, when properly recorded in the appropriate records, together with any Uniform Commercial Code financing statements required to be filed in connection therewith, will create (a) a legal, valid and enforceable perfected first priority lien on each Individual Property, subject only to the Permitted Encumbrances and (b) perfected first priority security interests in and to, and perfected collateral assignments of, all personalty (including Leases), all in accordance with the terms thereof, in each case subject only to any Permitted Encumbrances. There are no mechanics’ liens, materialmen’s liens or other encumbrances affecting any Individual Property and, to Borrower’s knowledge, no rights exist which under law could give rise to any such claims for payment of work, labor or materials which are or may become a lien prior to, or of equal priority with, the Liens created by the Loan Documents. The assignments of Leases contained in the Security Instrument are freely assignable without the consent of Borrower and, when properly recorded in the appropriate records, will create a perfected first priority security interest in and to, and perfected collateral assignment of, all Leases and Rents, all in accordance with the terms thereof, in each case subject only to any Permitted Encumbrances.

4.1.7. Permitted Encumbrances.

To the best of Borrower’s knowledge, none of the Permitted Encumbrances, individually or in the aggregate, materially interferes with the benefits of the security intended to be provided by this Agreement, the Security Instruments, the Note and the other Loan Documents, materially and adversely affects the value or marketability of any Individual Property, impairs the use or the operation of any Individual Property or impairs Borrower’s ability to pay the Obligations as and when required under the Loan Documents.

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4.1.8. Solvency.

Borrower (a) has not entered into the transaction or executed the Note, this Agreement or any other Loan Documents with the actual intent to hinder, delay or defraud any creditor and (b) has received reasonably equivalent value in exchange for its obligations under the Loan Documents. Giving effect to the Loan, the fair saleable value of Borrower’s assets exceeds and will, immediately following the making of the Loan, exceed Borrower’s total liabilities, including subordinated, unliquidated, disputed and contingent liabilities. Borrower’s assets do not and, immediately following the making of the Loan will not, constitute unreasonably small capital to carry out its business as conducted or as proposed to be conducted. Borrower does not intend to incur debt and liabilities (including contingent liabilities and other commitments) beyond its ability to pay such debt and liabilities as they mature (taking into account the timing and amounts of cash to be received by Borrower and the amounts to be payable on or in respect of obligations of Borrower). No petition under the Bankruptcy Code or similar state bankruptcy or insolvency law has been filed against any Borrower Party in the last seven (7) years, and no Borrower Party in the last seven (7) years has ever made an assignment for the benefit of creditors or taken advantage of any insolvency act for the benefit of debtors. No Borrower Party is contemplating either the filing of a petition by it under the Bankruptcy Code or similar state bankruptcy or insolvency law or the liquidation of all or a major portion of Borrower’s assets or property, and Borrower has no knowledge of any Person contemplating the filing of any such petition against it or any other Borrower Party.

4.1.9. Full and Accurate Disclosure.

No statement of fact made by Borrower in this Agreement or in any of the other Loan Documents contains any untrue statement of a material fact or omits to state any material fact necessary to make statements contained herein or therein not misleading. There is no fact presently known to Borrower which has not been disclosed to Lender which materially and adversely affects, or would be reasonably anticipated to materially and adversely affect, any Individual Property or the business, operations or condition (financial or otherwise) of Borrower.

4.1.10. No Plan Assets.

(a) (i) Borrower is not a Plan, (ii) none of the assets of Borrower constitutes or will constitute Plan Assets and (iii) Borrower is not engaging in any Prohibited Transaction.

(b) (i) Borrower is not a Governmental Plan and (ii) no transactions by or with Borrower are Prohibited Governmental Transactions.

4.1.11. Compliance.

To the best of Borrower’s knowledge, Borrower and the Properties and the occupancy, use and operation thereof materially comply with all applicable Legal Requirements, including all Environmental Laws, building and zoning ordinances and codes and all covenants and restrictions. Borrower is not in default or violation of any order, writ, injunction, decree or demand of any Governmental Authority. There has not been committed by Borrower or, to the best of Borrower’s knowledge, any other Person in occupancy of or involved with the operation or use of the Properties any act or omission affording the federal government or any other

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Governmental Authority the right of forfeiture as against any Individual Property or any part thereof or any monies paid in performance of Borrower’s obligations under any of the Loan Documents.

4.1.12. Financial Information.

All financial data, including the statements of cash flow and income and operating expense, that have been delivered to Lender by or on behalf of Borrower in respect of Borrower, Guarantor, and the Properties (i) are true, complete and correct in all material respects, (ii) accurately represent the financial condition in all material respects of Borrower, Guarantor, and the Properties, as applicable, as of the date of such reports, and (iii) have been prepared in accordance with GAAP (or such other method of accounting reasonably acceptable to Lender) throughout the periods covered, except as disclosed therein. Except for Permitted Encumbrances, Borrower does not have any contingent liabilities, liabilities for taxes, unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments that are known to Borrower and reasonably likely to have a materially adverse effect on any Individual Property or the operation thereof for the use set forth in Section 4.1.22 hereof, except as referred to or reflected in said financial statements. Since the date of such financial statements, there has been no materially adverse change in the financial condition, operations or business of Borrower or Guarantor from that set forth in said financial statements.

4.1.13. Condemnation.

Borrower has received no notice of, and is not otherwise aware of, the commencement of a Condemnation or other similar proceeding nor, to the best of Borrower’s knowledge, is there any threatened or contemplated with respect to all or any portion of any Individual Property or for the relocation of roadways providing access to any Individual Property.

4.1.14. Federal Reserve Regulations.

No part of the proceeds of the Loan will be used for the purpose of purchasing or acquiring any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System or for any other purpose which would be inconsistent with such Regulation U or any other Regulations of such Board of Governors, or for any purposes prohibited by Legal Requirements or by the terms and conditions of this Agreement or the other Loan Documents.

4.1.15. Utilities and Public Access.

Each Individual Property (a) is located on or adjacent to a public road and has direct legal access to such road, or has access via an irrevocable easement or irrevocable right of way permitting ingress and egress to/from a public road, and (b) is served by or has uninhibited access rights to public or private water and sewer (or well and septic) and all required utilities, all of which are appropriate for the current use of each Individual Property. To the best of Borrower’s knowledge, all public utilities necessary or convenient to the full use and enjoyment of each Individual Property are located either in the public right-of-way abutting each Individual Property (which are connected so as to serve such Individual Property without passing over other property) or in recorded easements serving each Individual Property and such easements are set

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forth in and insured by the Title Insurance Policies. To the best of Borrower’s knowledge, all roads necessary for the use of each Individual Property for its respective current purposes have been completed, are physically open and are dedicated to public use and have been accepted by all Governmental Authorities.

4.1.16. Not a Foreign Person.

Borrower is not a “foreign person” within the meaning of Section 1445(f)(3) of the Code.

4.1.17. Separate Lots.

Each Individual Property is comprised of one (1) or more parcels which constitute a separate tax lot or lots and does not constitute a portion of any other tax lot not a part of such Individual Property.

4.1.18. Assessments.

To the best of Borrower’s knowledge, there are no taxes, pending or proposed special or other government assessments for public improvements or other outstanding governmental charges (including water and sewage charges) otherwise affecting any Individual Property, nor are there any contemplated improvements to any Individual Property that may result in such special or other assessments.

4.1.19. Enforceability.

The Loan Documents are not subject to any right of rescission, set-off, counterclaim or defense by Borrower, including the defense of usury, and Borrower has not asserted any right of rescission, set-off, counterclaim or defense with respect thereto including any offset, defense, counterclaim or right based on fraud by Lender in connection with the origination of the Loan.

4.1.20. No Prior Assignment.

There are no prior assignments of the Leases or any portion of the Rents due and payable or to become due and payable which are presently outstanding.

4.1.21. Insurance.

Borrower has obtained and has delivered to Lender certified copies of all Policies or binders, pro formas or certificates of insurance, or, with respect to insurance maintained by a Tenant pursuant to the terms of a Single Tenant Lease, evidence reasonably acceptable to Lender, reflecting the insurance coverages, amounts and other requirements set forth in this Agreement. To Borrower’s knowledge, no Person, including Borrower, has done, by act or omission, anything which would impair the coverage of any such Policy.

4.1.22. Use of Property.

Each Individual Property is used for a lawful purpose (in accordance with the applicable Lease).

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4.1.23. Certificate of Occupancy; Licenses.

All certifications, permits, licenses and approvals, including certificates of completion and occupancy permits required for the legal use, occupancy and operation of each Individual Property by Borrower (collectively, the “Licenses”), have been obtained and are in full force and effect and are not subject to revocation, suspension or forfeiture. Borrower shall keep and maintain (or cause to be kept and maintained) all Licenses necessary for the operation of the each Individual Property. The use being made of each Individual Property is in conformity with the certificate of occupancy issued for such Individual Property.

4.1.24. Flood Zone.

None of the Improvements on any Individual Property are located in an area as identified by the Federal Emergency Management Agency as an area having special flood hazards and, if so located, the flood insurance required pursuant to Section 6.1(a)(vii) is in full force and effect with respect to each such Individual Property.

4.1.25. Physical Condition.

To the best of Borrower’s knowledge, and except as otherwise disclosed in the property conditions reports obtained by Lender, each Individual 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, are in good repair and condition, reasonable wear and tear excepted, there exists no structural or other material defects or damages in any Individual Property, whether latent or otherwise, and Borrower has not received notice from any insurance company or bonding company of any defects or inadequacies in any Individual 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 of any termination or threatened termination of any policy of insurance or bond. Each Individual Property is free from material damage covered by fire or other casualty. To the best of Borrower’s knowledge, and except as otherwise disclosed in the property condition reports obtained by Lender, all liquid and solid waste disposal, septic and sewer systems located on each Individual Property are in a good and safe condition and repair and in compliance with all Legal Requirements.

4.1.26. Boundaries.

Except for encroachments reflected on Surveys delivered to Lender or which are insured pursuant to a Title Insurance Policy, and which do not otherwise have a material adverse affect on the Tenant’s operation of an Individual Property, all of the Improvements which were included in determining the appraised value of the each Individual Property lie wholly within the boundaries and building restriction lines of the such Individual Property, and no improvements on adjoining Properties encroach upon such Individual Property, and no easements or other encumbrances upon the applicable Individual Property encroach upon any of the Improvements.

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4.1.27. Leases.

(a) The Properties are not subject to any Leases other than the Leases described on the Rent Roll attached as Schedule II hereto. Borrower is the owner and lessor of landlord’s interest in the Leases. To Borrower’s knowledge, no Person has any possessory interest in any Individual Property or right to occupy the same except under and pursuant to the provisions of the Leases. The current Leases are in full force and effect and there are no defaults by Borrower or, to Borrower’s knowledge, any Tenant under any Lease, and there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults under any Lease. To Borrower’s knowledge, all Tenants under the Leases are currently in occupancy and have not ceased or substantially ceased operations, or otherwise “gone dark”. No Tenant has given notice of intent to cease operations, substantially cease operations or otherwise “go dark.” No Rent has been paid more than one (1) month in advance of its due date. To Borrower’s knowledge, there are no offsets or defenses to the payment of any portion of the Rents. All work to be performed by Borrower under each Lease has been, or is being, performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant has already been received by such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein which is still in effect. Except as described on Schedule II, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. To Borrower’s knowledge, no Hazardous Materials have been disposed, stored or treated by any Tenant under any Lease on or about the leased premises nor does Borrower have any knowledge of any Tenant’s intention to use its leased premises for any activity which, directly or indirectly, involves the use, generation, treatment, storage, disposal or transportation of any Hazardous Materials, except those that are both (i) in compliance with current Environmental Laws and with permits issued pursuant thereto (if such permits are required), and (ii) either (A) in amounts not in excess of that necessary to operate, clean, repair and maintain the applicable Individual Property or each Tenant’s respective business at such Individual Property as set forth in their respective Leases, (B) held by a Tenant for sale to the public in its ordinary course of business, or (C) fully disclosed to Lender in writing pursuant to the Environmental Reports.

(b) Lender shall have all of the rights against lessees of each Individual Property located in the State of New York set forth in Section 291-1 of the Real Property Law of New York.

4.1.28. Title and Survey.

(a) Neither Borrower, nor to Borrower’s knowledge, any Person, has done, by act or omission, anything that would materially impair the coverage under the Title Insurance Policies.

(b) To Borrower’s knowledge, the Survey for each Individual Property delivered to Lender in connection with this Agreement does not fail to reflect any material matter affecting such Individual Property or title thereto that would ordinarily be reflected on a Survey.

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4.1.29. Loan to Value.

The maximum principal amount of the Loan does not exceed one hundred twenty-five percent (125%) of the aggregate fair market value of the Properties.

4.1.30. Filing and Recording Taxes.

All transfer taxes, deed stamps, intangible taxes or other amounts in the nature of transfer taxes required to be paid by any Person under applicable Legal Requirements currently in effect in connection with the transfer of the Properties to Borrower have been paid or will be paid at or prior to the filing or recordation of the Security Instruments or any other Loan Document. All mortgage, mortgage recording, stamp, intangible or other similar tax required to be paid by any Person under applicable Legal Requirements currently in effect in connection with the execution, delivery, recordation, filing, registration, perfection or enforcement of any of the Loan Documents, including the Security Instruments, have been paid or will be paid at or prior to the filing or recordation of the Security Instruments or any other Loan Document.

4.1.31. Management Agreement.

As of the Closing Date, the Properties are not managed by any Person other than Borrower and no separate management agreement exists with respect to any Individual Property.

4.1.32. Illegal Activity.

No portion of any Individual Property has been or will be purchased with proceeds of any illegal activity and to the best of Borrower’s knowledge, there are no illegal activities or activities relating to any controlled substances at any Individual Property.

4.1.33. No Change in Facts or Circumstances; Disclosure.

(a) All information submitted by Borrower to Lender and in all financial statements, rent rolls, reports, certificates and other documents submitted in connection with the Loan by or on behalf of Borrower or in satisfaction of the terms thereof and all statements of fact made by Borrower in this Agreement or in any other Loan Document, are accurate, complete and correct in all material respects. There has been no material adverse change in any condition, fact, circumstance or event that would make any such information inaccurate, incomplete or otherwise misleading in any material respect or that otherwise materially and adversely affects or might materially and adversely affect the use, operation or value of the Properties or the business operations or the financial condition of Borrower which would result in the impairment of Borrower’s ability to comply with Borrower’s obligations under this Agreement and the other Loan Documents. Borrower has disclosed to Lender all material facts and has not failed to disclose any material fact that could cause any Provided Information or information described in this Section 4.1.33(a) or any representation or warranty made herein to be materially misleading.

(b) To Borrower’s knowledge, all information prepared by any Tenant and submitted by Borrower to Lender and in all financial statements, rent rolls, reports, certificates and other documents prepared by any Tenant and submitted in connection with the

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Loan or in satisfaction of the terms thereof are accurate, complete and correct in all material respects. To the best of Borrower’s knowledge, there has been no material adverse change in any condition, fact, circumstance or event that would make any such information inaccurate, incomplete or otherwise misleading in any material respect or that otherwise materially and adversely affects or might materially and adversely affect the use, operation or value of any Property or the business operations or the financial condition of Borrower which would result in the impairment of Borrower’s ability to comply with Borrower’s obligations under this Agreement and the other Loan Documents. To Borrower’s knowledge, Borrower has disclosed to Lender all material facts and has not failed to disclose any material fact that could cause any information described in this Section 4.1.33(b) to be materially misleading.

4.1.34. Investment Company Act.

Borrower is not (a) an “investment company” or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as amended; (b) a “holding company” or a “subsidiary company” of a “holding company” or an “affiliate” of either a “holding company” or a “subsidiary company” within the meaning of the Public Utility Holding Company Act of 1935, as amended; or (c) subject to any other federal or State law or regulation which purports to restrict or regulate its ability to borrow money.

4.1.35. Principal Place of Business; State of Organization.

Borrower’s principal place of business as of the date hereof is the address set forth in the introductory paragraph of this Agreement. Borrower is organized under the laws of the State of Delaware and its organizational identification number is set forth on Schedule I attached hereto.

4.1.36. Single Purpose Entity.

Borrower covenants and agrees that its organizational documents shall provide that Borrower has not since the date of its formation, and shall not, and that the organizational documents of its general partner(s), if Borrower is a partnership, or its managing member(s), if Borrower is a limited liability company with multiple members (in each case, such general partner(s) or managing member(s), “Principal”, it being agreed and acknowledged that as of the Closing Date there is no Principal) shall provide that it has not since the date of its formation and shall not:

(a) with respect to Borrower, engage in any business or activity other than the acquisition, development, ownership, operation, leasing, managing and maintenance of the Properties, and entering into the Loan, and activities incidental thereto and with respect to Principal, if any, engage in any business or activity other than the ownership of its equity interest in Borrower, and activities incidental thereto;

(b) with respect to Borrower, acquire or own any material assets other than (i) the Properties, and (ii) such incidental Personal Property as may be necessary for the operation of the Properties, as the case may be and with respect to Principal, if any, acquire or own any material asset other than its equity interest in Borrower;

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(c) merge into or consolidate with any Person or, to the fullest extent permitted by law, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, other than as set forth on Schedule VIII;

(d) (i) fail to observe in all material respects its organizational formalities or preserve its existence as an entity duly organized, validly existing and in good standing (if applicable) under the laws of the jurisdiction of its organization or formation, and qualification to do business in the State where the Properties are located (if the failure to so qualify would result in a material adverse affect on the Borrower or the Individual Property), if applicable, or (ii) without the prior written consent of Lender, amend, modify, terminate or fail to comply in all material respects with the provisions of Borrower’s organizational documents, as the case may be, or of Principal’s organizational documents, as the case may be, whichever is applicable;

(e) other than Principal’s equity ownership interest in Borrower, own any subsidiary or make any investment in, any Person without the prior written consent of Lender;

(f) commingle its assets with the assets of any of its members, general partners, Affiliates, principals or of any other Person, participate in a cash management system with any other Person or fail to use, to the extent applicable, its own separate stationery, invoices and checks bearing its own name;

(g) with respect to Borrower, incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than the Debt, except for trade payables in the ordinary course of its business of owning and operating the Properties, as applicable, provided that such debt (i) is not evidenced by a note, (ii) is paid within ninety (90) days of the date incurred, unless Borrower is disputing such amounts owed in good faith, (iii) does not exceed, in the aggregate, two percent (2%) of the outstanding principal balance of the Note and (iv) is payable to trade creditors and in amounts as are normal and reasonable under the circumstances and with respect to Principal, if any, incur any debt secured or unsecured, direct or contingent (including guaranteeing any obligations);

(h) to the extent the Properties produces sufficient revenue and such revenue is made available to Borrower, become insolvent and fail to pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due, except that the foregoing shall not require any direct or indirect member of Borrower (including any Principal, if any) to make any loan or capital contribution to Borrower or arrange for any loan or capital contribution from any third party, and the failure of Borrower to be or remain solvent shall not (by itself) result in recourse under Section 9.4 hereof;

(i) (i) fail to maintain its records (including financial statements), books of account and bank accounts separate and apart from those of the members, general partners, principals and Affiliates of Borrower or of Principal, if any, as the case may be, the Affiliates of a member, general partner or principal of Borrower or of Principal, if any, as the case may be, and any other Person, (ii) permit its assets or liabilities to be listed as assets or

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liabilities on the financial statement of any other Person or (iii) include the assets or liabilities of any other Person on its financial statements; provided, however, that its assets may be included in a consolidated financial statement of its Affiliates, provided that (A) any such consolidated financial statement shall contain a note indicating that its separate assets and liabilities are neither available to pay the debts of the consolidated entity nor constitute obligations of the consolidated entity, and (B) such assets shall also be listed on its own separate balance sheet;

(j) enter into any contract or agreement with any member, general partner, principal or Affiliate of Borrower or of Principal, if any, as the case may be, Guarantor or any member, general partner, principal or Affiliate thereof (other than a business management services agreement with an Affiliate of Borrower, provided that (i) such agreement is acceptable to Lender, (ii) the manager, or equivalent thereof, under such agreement holds itself out as an agent of Borrower and (iii) the agreement meets the standards set forth in this subsection (j) following this parenthetical), except upon terms and conditions that are commercially reasonable, intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than any member, general partner, principal or Affiliate of Borrower or of Principal, if any, as the case may be, Guarantor or any member, general partner, principal or Affiliate thereof;

(k) to the fullest extent permitted by law, seek the dissolution or winding up in whole, or in part, of Borrower or of Principal, if any, as the case may be;

(l) fail to correct any known misunderstandings regarding the separate identity of Borrower, or of Principal, if any, as the case may be, or any member, general partner, principal or Affiliate thereof or any other Person;

(m) guarantee or become obligated for the debts of any other Person or hold itself out to be responsible for the debts of another Person other than with respect to the Loan;

(n) make any loans or advances to any third party, including any member, general partner, principal or Affiliate of Borrower or of Principal, if any, as the case may be, or any member, general partner, principal or Affiliate thereof (which, for the avoidance of doubt, shall not be deemed to include distributions to the direct or indirect members of Borrower), and shall not acquire obligations or securities of any member, general partner, principal or Affiliate of Borrower or Principal, if any, as the case may be, or any member, general partner, or Affiliate thereof;

(o) fail to file its own tax returns separate from those of any other person except to the extent it is treated as a “disregarded entity” for tax purposes, and is not required to file tax returns under Applicable Law;

(p) fail either to hold itself out to the public as a legal entity separate and distinct from any other Person or to conduct its business solely in its own name or a name franchised or licensed to it by an entity other than an Affiliate of Borrower or of Principal, if any, as the case may be, and not as a division or part of any other entity in order not (i) to mislead others as to the identity with which such other party is transacting business, or (ii) to suggest that

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Borrower or Principal, if any, as the case may be, is responsible for the debts of any third party (including any member, general partner, principal or Affiliate of Borrower, or of Principal, if any, as the case may be, or any member, general partner, principal or Affiliate thereof);

(q) to the extent the Property produces sufficient revenue and such revenue is made available to Borrower, fail to 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, except that the foregoing shall not require any direct or indirect member of Borrower (including any Principal) to make any loan or capital contribution to Borrower or arrange for any loan or capital contribution from any third party, and the failure of Borrower to be or remain solvent shall not (by itself) result in recourse under Section 9.4 hereof;

(r) hold itself out as or be considered as a department or division of (i) any general partner, principal, member or Affiliate of Borrower or of Principal, if any, as the case may be, (ii) any Affiliate of a general partner, principal or member of Borrower or of Principal, as the case may be, or (iii) any other Person;

(s) fail to allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate;

(t) pledge its assets for the benefit of any other Person, and with respect to Borrower, other than with respect to the Loan;

(u) fail to maintain a sufficient number of employees, if any, in light of its contemplated business operation and pay the salaries of its own employees, if any, only from its own funds and only to the extent of such funds (provided, however, this provision shall not require any additional capital from any Affiliate of the Borrower);

(v) fail to provide in its organizational documents that for so long as the Loan is outstanding pursuant to the Note, this Agreement and the other Loan Documents, it shall not file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, or make an assignment for the benefit of creditors without the affirmative vote of each Independent Director and of all other general partners/managing members/directors;

(w) fail to hold its assets in its own name and it shall not fail to maintain its assets in such a manner that it will be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person;

(x) fail to consider the interests of Borrower or the Principal, if any, as the case may be, including the creditors of Borrower or Principal, if any, as the case may be, in connection with all limited liability company or corporate actions to the extent permitted by Applicable Law;

(y) have any of its obligations guaranteed by an Affiliate except Guarantor in connection with the Loan;

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(z) violate or cause to be violated the assumptions regarding separateness made with respect to Borrower, Guarantor, and Principal, if any, in the Insolvency Opinion;

(aa) with respect to Principal, if any, or Borrower, if Borrower is a corporation or a single member limited liability company that complies with the requirements of Section 4.1.36(cc) below, fail at any time to have at least two (2) Independent Directors;

(bb) with respect to a Principal, if any, or Borrower, if Borrower is a corporation or a single member limited liability company that complies with the requirements of Section 4.1.36(cc) below, permit its board of directors or other governing body to take any action which, under the terms of any certificate of incorporation, by-laws, voting trust agreement with respect to any common stock or other applicable organizational documents, requires the unanimous vote of one hundred percent (100%) of the members of the board or other governing body without the vote of each Independent Director; or

(cc) in the event Borrower is a Delaware limited liability company that does not have a managing member which complies with the requirements for a Principal under this Section 4.1.36, fail to have a limited liability company agreement of Borrower (the “LLC Agreement”) which provides that (A) upon the occurrence of any event that causes the last remaining member of Borrower (“Member”) to cease to be the Member of Borrower (other than (1) upon an assignment by Member of all of its limited liability company interest in Borrower and the admission of the transferee in accordance with the Loan Documents and the LLC Agreement, or (2) the resignation of Member and the admission of an additional member of Borrower in accordance with the terms of the Loan Documents and the LLC Agreement), any person acting as Independent Director of Borrower shall, without any action of any other Person and simultaneously with the Member ceasing to be the member of Borrower, automatically be admitted to Borrower (“Special Member”) and shall continue Borrower without dissolution and (B) Special Member may not resign from Borrower or transfer its rights as Special Member unless (1) a successor Special Member has been admitted to Borrower as Special Member in accordance with requirements of Delaware law and (2) such successor Special Member has also accepted its appointment as an Independent Director. The LLC Agreement shall further provide that (v) Special Member shall automatically cease to be a member of Borrower upon the admission to Borrower of a substitute Member, (w) Special Member shall be a member of Borrower that has no interest in the profits, losses and capital of Borrower and has no right to receive any distributions of Borrower assets, (x) pursuant to Section 18-301 of the Delaware Limited Liability Company Act (the “Act”), Special Member shall not be required to make any capital contributions to Borrower and shall not receive a limited liability company interest in Borrower, (y) Special Member, in its capacity as Special Member, may not bind Borrower and (z) except as required by any mandatory provision of the Act, Special Member, in its capacity as Special Member, shall have no right to vote on, approve or otherwise consent to any action by, or matter relating to, Borrower, including the merger, consolidation or conversion of Borrower; provided, however, such prohibition shall not limit the obligations of Special Member, in its capacity as Independent Director, to vote on such matters required by the LLC Agreement. In order to implement the admission to Borrower of Special Member, Special Member shall execute a counterpart to the LLC Agreement. Prior to its admission to Borrower as Special Member, Special Member shall not be a member of Borrower. The LLC Agreement shall further provide

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that upon the occurrence of any event that causes the Member to cease to be a member of Borrower, to the fullest extent permitted by law, the personal representative of Member shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of Member in Borrower, agree in writing (A) to continue Borrower and (B) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of Member of Borrower in Borrower. Any action initiated by or brought against Member or Special Member under any Creditors Rights Laws shall not cause Member or Special Member to cease to be a member of Borrower and upon the occurrence of such an event, the business of Borrower shall continue without dissolution. The LLC Agreement shall provide that each of Member and Special Member waives any right it might have to agree in writing to dissolve the Borrower upon the occurrence of any action initiated by or brought against Member or Special Member under any Creditors Rights Laws, or the occurrence of an event that causes Member or Special Member to cease to be a member of Borrower.

Without limiting the foregoing in Section 4.1.36, (i) each of Borrower and Principal, if any, shall have been since the date of its formation and will continue to be duly formed, validly existing and in good standing in the state of its incorporation or formation and in all other jurisdictions where it is qualified to do business (except with respect to any filings for qualification that have been submitted but not yet qualified, provided that there is no material adverse effect on the Properties or Borrower pending such completed qualification), and (ii) each of Borrower (including any entity previously merged into Borrower) and Principal, if any, (A) shall have paid all taxes which are due and payable, or be contesting such taxes in good faith and in accordance with this Agreement, (B) shall not now, nor have ever been, party to any lawsuit, arbitration, summons or legal proceeding that resulted in a judgment against it that has not been paid in full, (C) shall have no judgments or liens of any nature against it except for Permitted Encumbrances, (D) shall have no material contingent or actual obligations not related to the Property, and (E) shall have not owned any real property except for the Properties.

4.1.37. Business Purposes.

The Loan is solely for the business purpose of Borrower, and is not for personal, family, household, or agricultural purposes.

4.1.38. Taxes.

Borrower has filed all federal, State, county, municipal, and city income and other tax returns required to have been filed by it and has paid all taxes and related liabilities which have become due pursuant to such returns or pursuant to any assessments received by it. Borrower knows of no basis for any additional assessment in respect of any such taxes and related liabilities for prior years.

4.1.39. Forfeiture.

Neither Borrower nor any other Person in occupancy of or involved with the operation or use of any of the Properties has committed any act or omission affording the federal government or any State or local government the right of forfeiture as against any of the Properties or any

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part thereof or any monies paid in performance of Borrower’s obligations under the Note, this Agreement or the other Loan Documents. Borrower hereby covenants and agrees not to commit, permit or suffer to exist any act or omission affording such right of forfeiture.

4.1.40. Environmental Representations and Warranties.

Borrower represents and warrants, except as disclosed in the written reports resulting from the environmental site assessments of the Properties delivered to Lender prior to the Closing Date (the “Environmental Report”) that (a) to Borrower’s knowledge, there are no Hazardous Materials or underground storage tanks in, on, or under any of the Properties, except those that are both (i) in compliance with current Environmental Laws and with permits issued pursuant thereto (if such permits are required), and (ii) (A) in amounts not in excess of that necessary to operate, clean, repair and maintain the applicable Individual Property or each Tenant’s respective business at such Individual Property as set forth in their respective Leases, (B) held by a Tenant for sale to the public in its ordinary course of business, or (C) in a manner that does not result in the contamination of the applicable Individual Property or in a material adverse effect on the value, use or operations of the applicable Individual Property, (b) to Borrower’s knowledge, there are no past, present or threatened Releases of Hazardous Materials in violation of any Environmental Law and which would require Remediation by a Governmental Authority in, on, under or from any of the Properties; (c) to Borrower’s knowledge, there is no threat of any Release of Hazardous Materials migrating to any of the Properties; (d) to Borrower’s knowledge, there is no past or present non-compliance with current Environmental Laws, or with permits issued pursuant thereto, in connection with any of the Properties except as described in the Environmental Reports; (e) Borrower does not know of, and has not received, any written notice or other communication from any Person (including, but not limited to, a Governmental Authority) relating to Hazardous Materials in, on, under or from any of the Properties; and (f) Borrower has provided to Lender, in writing, any and all material information relating to environmental conditions of the Properties known to Borrower or contained in Borrower’s files and records and known to Borrower, including but not limited to any reports relating to Hazardous Materials in, on, under or migrating to or from any of the Properties and/or to the environmental condition of the Properties.

4.1.41. Taxpayer Identification Number.

Borrower’s United States taxpayer identification number is as set forth on Schedule I attached hereto.

4.1.42. OFAC.

Borrower represents and warrants that each Borrower Party and their respective Affiliates and any Person that to Borrower’s knowledge has an economic interest in any Borrower Party is (i) not a Prohibited Person; (ii) in full compliance with the requirements of the Patriot Act and all other applicable orders, rules, regulations and recommendations of The Office of Foreign Assets Control of the U.S. Department of the Treasury (as used in this Section only, “OFAC”); (iii) operated under policies, procedures and practices, if any, that are in compliance with the Patriot Act and available to Lender for Lender’s review and inspection during normal business hours and upon reasonable prior notice; (iv) not in receipt of any notice from the Secretary of State or

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the Attorney General of the United States or any other department, agency or office of the United States claiming a violation or possible violation of the Patriot Act; (v) not listed as a Specially Designated Terrorist or as a “blocked” Person on any lists maintained by the OFAC pursuant to the Patriot Act or any other list of terrorists or terrorist organizations maintained pursuant to any of the rules and regulations of the OFAC issued pursuant to the Patriot Act or on any other list of terrorists or terrorist organizations maintained pursuant to the Patriot Act; and (vi) not a Person who has been determined by competent authority to be subject to any of the prohibitions contained in the Patriot Act. Borrower covenants and agrees that in the event Borrower receives any notice that any Borrower Party (or any of their respective beneficial owners or Affiliates) become listed on the Annex or any other list promulgated under the Patriot Act or is indicted, arraigned, or custodially detained on charges involving money laundering or predicate crimes to money laundering, Borrower shall immediately notify Lender. It shall be an Event of Default hereunder if any Borrower Party or any other party to any Loan Document becomes listed on any list promulgated under the Patriot Act or is indicted, arraigned or custodially detained on charges involving money laundering or predicate crimes to money laundering. All capitalized words and phrases and all defined terms used in the USA Patriot Act of 2001, 107 Public Law 56 (October 26, 2001) and in other statutes and all orders, rules and regulations of the United States government and its various executive departments, agencies and offices related to the subject matter of the Patriot Act, including Executive Order 13224 effective September 24, 2001 (collectively referred to in this Section only as the “Patriot Act”) and are incorporated into this Section.

4.1.43. Pre-Existing Liability.

There are no Pre-Existing Liabilities.

4.1.44. Deposit Accounts.

(a) This Agreement and the Lockbox Agreement create valid and continuing security interests (as defined in the UCC) in the Lockbox Account and the Cash Management Account in favor of Lender, which security interests are prior to all other Liens and are enforceable as such against creditors of and purchasers from Borrower.

(b) The Lockbox Account is and shall be maintained (i) as a “deposit account” (as such term is defined in Section 9-102(a)(29) of the UCC), (ii) in such a manner that Lender shall have control (within the meaning of Section 9-104(a)(2) of the UCC) over the Lockbox Account and (iii) such that neither Borrower nor Manager shall have any right of withdrawal from the Lockbox Account and during the continuance of any Triggering Event, no Account Collateral shall be released to Borrower or Manager from the Lockbox Account.

(c) Each Account other than the Lockbox Account is and shall be maintained (i) as a “securities account” (as such term is defined in Section 8-501(a) of the UCC), (ii) in such a manner that Lender shall have control (within the meaning of Section 8-106(d)(2) of the UCC) over each such Account other than the Lockbox Account, (iii) such that neither Borrower nor Manager shall have any right of withdrawal from such Accounts and, except as expressly provided in this Agreement, no Account Collateral shall be released to Borrower from such Account, (iv) in such a manner that the Cash Management Bank shall agree to treat all

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property credited to each Account other than the Lockbox Account as “financial assets” and (v) such that all securities or other property underlying any financial assets credited to such Accounts shall be registered in the name of Cash Management Bank, indorsed to Cash Management Bank or in blank or credited to another securities account maintained in the name of Cash Management Bank and in no case will any financial asset credited to any Account be registered in the name of Borrower, payable to the order of Borrower or specially indorsed to Borrower except to the extent the foregoing have been specially indorsed to Cash Management Bank or in blank);

(d) Borrower owns and has good and marketable title to the Lockbox Account and the Cash Management Account free and clear of any Lien or claim of any Person (other than that of Lender);

(e) Borrower has delivered to Lender fully executed agreements pursuant to which Lockbox Bank and Cash Management Bank (if having been requested to do so by Lender pursuant to Section 3.1(b) hereof) have agreed to comply with all instructions originated by Lender directing disposition of the funds in such accounts without further consent by Borrower;

(f) Other than the security interest granted to Lender pursuant to this Agreement and the Lockbox Agreement, Borrower has not pledged, assigned, or sold, granted a security interest in, or otherwise conveyed the Lockbox Account or the Cash Management Account; and

(g) The Lockbox Account and the Cash Management Account are not in the name of any Person other than Borrower for the benefit of Lender. Borrower has not consented to Lockbox Bank or Cash Management Bank complying with instructions of any Person other than Lender.

4.1.45. Embargoed Person.

As of the date hereof and at all times throughout the term of the Loan, including after giving effect to any Transfers permitted pursuant to the Loan Documents, (a) none of the funds or other assets of any Borrower Party constitute Property of, or are beneficially owned, directly or indirectly, by any person, entity or government subject to trade restrictions under U.S. law, including but not limited to, the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701 et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., and any Executive Orders or regulations promulgated thereunder with the result that the investment in any such Borrower Party (whether directly or indirectly) is prohibited by Applicable Law or the Loan made by the Lender is in violation of Applicable Law (“Embargoed Person”); (b) no Embargoed Person has any interest of any nature whatsoever in any Borrower Party, with the result that the investment in any such Borrower Party (whether directly or indirectly), is prohibited by Applicable Law or the Loan is in violation of Applicable Law; and (c) none of the funds of any Borrower Party have been (or will be) derived from any unlawful activity with the result that the investment in any such Borrower Party (whether directly or indirectly), is prohibited by Applicable Law or the Loan is in violation of Applicable Law. Any violation of the foregoing shall, at Lender’s option, constitute an Event of Default hereunder.

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4.1.46. Third Party Representations.

Each of the representations and the warranties made by Guarantor in the other Loan Documents (if any) are true, complete and correct.

4.1.47. Insolvency Opinion Assumptions.

All of the assumptions regarding separateness made in the Insolvency Opinion, including, but not limited to, any exhibits attached thereto and/or certificates delivered in connection therewith, are true, complete and correct.

Section 4.2. Survival of Representations.

Borrower agrees that all of the representations and warranties of Borrower set forth in Section 4.1 and elsewhere in this Agreement and in the other Loan Documents shall survive for so long as any amount remains owing to Lender under this Agreement or any of the other Loan Documents by Borrower. All representations, warranties, covenants and agreements made in this Agreement or in the other Loan Documents by Borrower shall be deemed to have been relied upon by Lender notwithstanding any investigation heretofore or hereafter made by Lender or on its behalf.

V. BORROWER COVENANTS

Section 5.1. Affirmative Covenants.

From the date hereof and until payment and performance in full of the Obligations or the earlier release of the Liens of the Security Instruments encumbering the Properties (and all related obligations) in accordance with the terms of this Agreement and the other Loan Documents, Borrower hereby covenants and agrees with Lender that:

5.1.1. Existence; Compliance with Legal Requirements.

(a) Borrower shall do or cause to be done all things necessary to preserve, renew and keep in full force and effect its existence, rights, licenses, permits, franchises, certificates of occupancy, consents, and other approvals necessary for the operation by Borrower of the Properties, and comply with all Legal Requirements applicable to it and the Properties. There shall never be committed by Borrower, nor shall Borrower permit, allow or cause any other Person in occupancy of or involved with the operation or use of the Properties to commit any act or omission affording the federal government or any State or local government the right of forfeiture against any Individual Property or any part thereof or any monies paid in performance of Borrower’s obligations under any of the Loan Documents. Borrower hereby covenants and agrees not to commit, permit or suffer to exist any act or omission affording such right of forfeiture. Borrower shall at all times maintain, preserve and protect all franchises and trade names and preserve all the remainder of its Properties used or useful in the conduct of its business and shall keep the Properties in good working order and repair, reasonable wear and tear and Casualty excepted, and from time to time make, or cause to be made, all reasonably necessary repairs, renewals, replacements, betterments and improvements thereto, all as more fully provided in the Security Instruments. Borrower shall keep the Properties insured as

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required by Section 6.1 hereof at all times by financially sound and reputable insurers, to such extent and against such risks, and maintain liability and such other insurance, as is more fully provided in this Agreement. Borrower shall or shall cause each applicable Tenant to the extent permitted under the applicable Lease to operate each Individual Property that is the subject of any O&M Program in accordance with the terms and provisions of the O&M Program.

5.1.2. Taxes and Other Charges.

Subject to Section 7.2 hereof and any then-applicable obligations of Lender thereunder, Borrower shall pay (or cause Tenant to pay) all Taxes and Other Charges now or hereafter levied or assessed or imposed against the Properties or any part thereof as the same become due and payable. Borrower shall furnish to Lender receipts, or other evidence for the payment of the Taxes and the Other Charges prior to the date the same shall become delinquent; provided, however, that Borrower shall not be required to furnish such receipt or other evidence for payment of Taxes and Other Charges in the event that such Taxes and Other Charges have been paid by Lender pursuant to Section 7.2 hereof. Except for Liens that are being contested in accordance with the provisions of this Section 5.1.2, Borrower shall not suffer and shall promptly pay and discharge (or cause Tenant to pay and discharge) any Lien or charge whatsoever which may be or become a Lien or charge against the Properties, and shall promptly pay (or cause Tenant to pay) for all utility services provided to the Properties. After prior written notice to Lender, Borrower or Tenant, in each case at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges (which shall not constitute an Event of Default), provided that (i) no Event of Default has occurred and is continuing or such Taxes or Other Charges have been paid prior to being so contested; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all Applicable Laws; (iii) no Individual Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower or Tenant shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the applicable Individual Property or such Taxes or Other Charges have been paid prior to being so contested; and (vi) Borrower shall furnish such security as may be required in the proceeding, or as may be requested by Lender, to ensure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may apply such security or part thereof held by Lender at any time when, in the judgment of Lender, the entitlement of such claimants is established or any Individual Property (or part thereof or interest therein) shall be in danger of being sold, forfeited, terminated, cancelled or lost or there shall be any danger of the Lien of any Security Instrument being primed by any related Lien.

5.1.3. Litigation.

Borrower shall give prompt written notice to Lender of any litigation or governmental proceedings pending or threatened against Borrower, Guarantor, or any Individual Property upon Borrower obtaining actual knowledge thereof which would reasonably be expected to materially

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adversely affect Borrower’s or Guarantor’s condition (financial or otherwise) or business or the use, value or operation of any Individual Property.

5.1.4. Access to Property.

Subject to the rights of Tenants under the Leases, Borrower shall permit agents, representatives and employees of Lender to inspect the Properties or any part thereof at reasonable hours upon reasonable advance notice; provided, however, that other than during the continuance of a Default or in connection with a Securitization, Lender shall not exercise its access rights pursuant to this Section 5.1.4 more than one (1) time per calendar year for each Individual Property.

5.1.5. Notice of Default.

Borrower shall promptly advise Lender of any material adverse change in Borrower’s condition, financial or otherwise, which would impair Borrower’s ability to perform its obligations under this Agreement and the other Loan Documents, or of the occurrence of any Default or Event of Default of which Borrower has knowledge.

5.1.6. Cooperate in Legal Proceedings.

Borrower shall cooperate fully with Lender with respect to any proceedings before any court, board or other Governmental Authority which may in any way adversely affect the rights of Lender hereunder or any rights obtained by Lender under any of the other Loan Documents and, in connection therewith, permit Lender, at its election, to participate in any such proceedings.

5.1.7. Award and Insurance Benefits.

Borrower shall cooperate with Lender in obtaining for Lender the benefits of any Awards or Insurance Proceeds lawfully or equitably payable in connection with any Individual Property, and Lender shall be reimbursed for any expenses incurred in connection therewith (including reasonable attorneys’ fees and disbursements, and the payment by Borrower of the expense of an appraisal on behalf of Lender in case of Casualty or Condemnation affecting any Individual Property or any part thereof) out of such Award or Insurance Proceeds.

5.1.8. Further Assurances.

Borrower shall, at Borrower’s sole cost and expense within a reasonable time period after receiving written notice from Lender:

(a) furnish to Lender all instruments, documents, boundary surveys, footing or foundation surveys, certificates, plans and specifications, appraisals, title and other insurance reports and agreements, and each and every other document, certificate, agreement and instrument required to be furnished by Borrower pursuant to the terms of the Loan Documents or requested by Lender in connection therewith;

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(b) execute and deliver to Lender such documents, instruments, certificates, assignments and other writings, as required under the Loan Documents, and do such other acts necessary, to evidence, preserve and/or protect the collateral at any time securing or intended to secure the obligations of Borrower under the Loan Documents, in each case as Lender may reasonably require including the authorization of Lender to execute and/or the execution by Borrower of UCC financing statements; and

(c) do and execute all and such further lawful acts, conveyances and assurances for the better and more effective carrying out of the intents and purposes of this Agreement and the other Loan Documents, as Lender may reasonably require from time to time.

5.1.9. Mortgage and Intangible Taxes.

Borrower shall pay all State, county and municipal recording, mortgage, intangible, and all other taxes imposed upon the execution and recordation of the Security Instruments and/or upon the execution and delivery of the Note.

5.1.10. Financial Reporting.

(a) Borrower will keep and maintain or will cause to be kept and maintained on a Fiscal Year basis, in accordance with GAAP (or such other method of accounting reasonably acceptable to Lender), proper and accurate books, records and accounts reflecting all of the financial affairs of Borrower and all items of income and expense in connection with the operation on an individual basis of the Properties. Lender shall have the right from time to time during normal business hours upon reasonable notice to examine such books, records and accounts at the office of Borrower or any other Person maintaining such books, records and accounts and to make such copies or extracts thereof. After the occurrence and during the continuance of an Event of Default, Borrower shall pay any costs and expenses incurred by Lender to examine Borrower’s accounting records with respect to the Properties, as Lender shall determine to be necessary for the protection of Lender’s interest.

(b) Borrower will furnish to Lender annually, within ninety (90) days following the end of each Fiscal Year, a complete copy of Borrower’s annual financial statements audited by an Approved Accountant in accordance with GAAP (or such other method of accounting reasonably acceptable to Lender), or unaudited and prepared by Borrower, provided the conditions in Section 5.1.10(j) below are met, covering the Properties for such Fiscal Year and containing statements of profit and loss and balance sheet for Borrower. Such statements shall set forth the financial condition and the results of operations for the Borrower for such Fiscal Year, and shall include, but not be limited to, amounts representing annual Net Operating Income, Gross Income from Operations, Operating Expenses and Capital Expenditures. Borrower’s annual financial statements shall be accompanied by (i) [intentionally deleted]; (ii) a certificate executed by a Responsible Officer or other appropriate officer of Borrower or Principal, if any, as applicable, stating that each such annual financial statement presents fairly the financial condition and the results of operations of Borrower being reported upon and has been prepared in accordance with GAAP (or such other method of accounting reasonably acceptable to Lender); (iii) an unqualified opinion of an Approved Accountant at any time that the condition in Section 5.1.10(j) below is not met; (iv) a list of Tenants, if any,

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occupying more than twenty (20%) percent of the total floor area of the Properties on an aggregate basis; (v) a breakdown showing the year in which each Lease then in effect expires and the percentage of total floor area of the Improvements and the percentage of base rent with respect to which Leases shall expire in each such year, each such percentage to be expressed on both a per year and cumulative basis; (vi) [intentionally deleted]; and (vii) an unaudited Rent Roll. Together with Borrower’s annual financial statements, Borrower shall furnish to Lender an Officer’s Certificate certifying as of the date thereof whether there exists an event or circumstance which constitutes a Default or Event of Default under the Loan Documents executed and delivered by, or applicable to, Borrower, and if such Default or Event of Default exists, the nature thereof, the period of time it has existed and the action then being taken to remedy the same.

(c) Borrower will furnish, or cause to be furnished, to Lender on or before forty-five (45) days after the end of each calendar quarter the following items, accompanied by a certificate of a Responsible Officer or other appropriate officer of Borrower or Principal, if any, as applicable, stating that such items are true, correct, accurate, and complete and fairly present the financial condition, results of operations, and cash flows of Borrower (subject to normal year-end adjustments): (i) a Rent Roll for the subject quarter accompanied by an Officer’s Certificate with respect thereto; (ii) quarterly and year-to-date operating statements (including Capital Expenditures) prepared for each calendar quarter, noting Net Operating Income, Gross Income from Operations, and Operating Expenses, and other information necessary and sufficient to fairly represent the financial position, operations and cash flows of Borrower during such calendar quarter, and, during the continuance of a Triggering Event, containing a comparison of budgeted income and expenses and the actual income and expenses together with a detailed explanation of any variances of five percent (5%) or more between budgeted and actual amounts for such periods, all in form satisfactory to Lender; and (iii) a calculation reflecting the annual Debt Service Coverage Ratio for the immediately preceding twelve (12) month period as of the last day of such quarter accompanied by an Officer’s Certificate with respect thereto. In addition, such Officer’s Certificate shall also be accompanied by a certificate of a Responsible Officer or other appropriate officer of Borrower stating that the representations and warranties of Borrower set forth in Section 4.1.36 are true and correct in all material respects as of the date of such Officer’s Certificate and that there are no trade payables outstanding for more than sixty (60) days.

(d) Prior to any Secondary Market Transaction, Borrower shall furnish to Lender, within forty-five (45) days after the close of each calendar month, (i) a current Rent Roll (on a trailing twelve (12) month basis) together with an Officer’s Certificate certifying that such Rent Roll is true, correct and complete and (ii) operating statements (including Capital Expenditures) prepared for such calendar month, noting Net Operating Income, Gross Income from Operations, and Operating Expenses, and other information necessary and sufficient to fairly represent the financial position and results of operation of the Property during such calendar month.

(e) For the partial year period commencing on the date hereof, and for each Fiscal Year thereafter, Borrower shall submit to Lender an Annual Budget for each applicable Individual Property not later than sixty (60) days prior to the commencement of such period or Fiscal Year in form and substance satisfactory to Lender, and, provided a Triggering

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Event exists, such Annual Budget shall be subject to Lender’s written consent not to be unreasonably withheld, conditioned or delayed (each such Annual Budget after it has been approved in writing by Lender shall be hereinafter referred to as an “Approved Annual Budget”). In the event that Lender objects to a proposed Annual Budget submitted by Borrower, Lender shall advise Borrower of such objections within fifteen (15) days after receipt thereof (and deliver to Borrower in writing a reasonably detailed description of such objections) and Borrower shall promptly revise such Annual Budget and resubmit the same to Lender. Lender shall advise Borrower of any objections to such revised Annual Budget within ten (10) days after receipt thereof (and deliver to Borrower in writing a reasonably detailed description of such objections) and Borrower shall promptly revise the same in accordance with the process described in this subsection until Lender approves the Annual Budget. Until such time that Lender approves a proposed Annual Budget, the most recently Approved Annual Budget shall apply; provided that, such Approved Annual Budget shall be adjusted to reflect actual increases in Taxes, Insurance Premiums and utilities expenses.

(f) Borrower shall furnish to Lender, within thirty (30) days after request such further detailed information with respect to the operation of the Properties and the financial affairs of Borrower as may be reasonably requested by Lender.

(g) Any reports, statements or other information required to be delivered under this Agreement shall be delivered (i) in paper form, (ii) if requested by Lender, on a CD-Rom, and (iii) in electronic form and prepared using a Microsoft Word or Excel (which files may be prepared using a spreadsheet program and saved as word processing files).

(h) Borrower agrees that Lender may forward to each purchaser, transferee, assignee, servicer, participant or investor in all or any portion of the Loan or any Securities (collectively, the “Investor”) or any Rating Agency rating such participations and/or Securities and each prospective Investor, and any organization maintaining databases on the underwriting and performance of commercial mortgage loans, all documents and information which Lender now has or may hereafter acquire relating to the Debt and to Borrower, Guarantor, and the Properties, whether furnished by Borrower, Guarantor or otherwise, as Lender determines necessary or desirable. Borrower irrevocably waives any and all rights it may have under any Applicable Laws to prohibit such disclosure, including, but not limited, to any right of privacy.

(i) Upon request, Borrower shall furnish to Lender from time to time such financial data and financial statements as Lender determines to be necessary, advisable or appropriate for complying with any applicable Legal Requirements (including those applicable to Lender or any Servicer (including and to the extent applicable, Regulation AB)) within the timeframes necessary, advisable or appropriate in order to comply with such Legal Requirements.

(j) Borrower shall deliver the consolidated annual financial statements of the REIT audited by an Approved Accountant in accordance with GAAP (or such other method of accounting reasonably acceptable to Lender) for so long as (i) the REIT is a public company and continues to file public financial statements, (ii) the REIT Controls the Borrower and (iii) substantially all of the Properties are leased pursuant to Single Tenant Leases. In the

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event the Borrower delivers such audited annual financial statements of the REIT and the conditions in the immediately preceding sentence are met, then not withstanding anything in Section 5.1.10(b) to the contrary, Borrower shall not have to deliver any audited annual financial statements of Borrower and Borrower shall not be in breach under Section 5.1.10(b) provided that (i) such audited annual financial statements of the REIT shall contain a note indicating that Borrower’s separate assets and liabilities are neither available to pay the debts of the consolidated entity nor constitute obligations of the consolidated entity, and (B) such assets shall also be listed on Borrower’s own separate balance sheet.

5.1.11. Business and Operations.

Borrower will continue to engage in the businesses presently conducted by it as and to the extent the same are necessary for the ownership, maintenance, management and operation of the Properties. Borrower will remain in good standing under the laws of each jurisdiction as and to the extent required for the ownership, maintenance, management and operation of the Properties. To the extent that a Single Tenant Lease does not exist with respect to any Individual Property (or any portion thereof), Borrower will engage in the businesses needed to be conducted by it to the extent that the same are necessary for the maintenance, management and operation of the Properties.

5.1.12. Costs of Enforcement.

In the event (a) that any Security Instrument encumbering any Individual Property is foreclosed in whole or in part or that any such Security Instrument is put into the hands of an attorney for collection, suit, action or foreclosure, (b) of the foreclosure of any mortgage prior to or subsequent to any Security Instrument encumbering any Individual Property in which proceeding Lender is made a party, or (c) of the bankruptcy, insolvency, rehabilitation or other similar proceeding in respect of Borrower or any Borrower Party or an assignment by Borrower or Borrower Party for the benefit of its creditors, Borrower, its successors or assigns, shall be chargeable with and agrees to pay all costs of collection and defense, including attorneys’ fees and costs, incurred by Lender or Borrower in connection therewith and in connection with any appellate proceeding or post-judgment action involved therein, together with all required service or use taxes.

5.1.13. Estoppel Statement.

(a) After written request by Lender, Borrower shall within fifteen (15) Business Days furnish Lender with a statement, duly acknowledged and certified, setting forth (i) the amount of the original principal amount of the Note, (ii) the unpaid principal amount of the Note, (iii) the Applicable Interest Rate of the Note, (iv) the date installments of interest and/or principal were last paid, (v) any offsets or defenses to the payment of the Debt, and (vi) that the Note, this Agreement, the Security Instruments and the other Loan Documents are valid, legal and binding obligations and have not been modified or if modified, giving particulars of such modification.

(b) Borrower shall use commercially reasonable efforts to obtain, upon the written request of Lender, no more than once in any twelve (12) month period provided no

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Event of Default then exists and is continuing (in which case no limitation shall apply), tenant estoppel certificates from each commercial tenant leasing space at the Properties in form and substance reasonably satisfactory to Lender or otherwise required to be in the form provided in the applicable Lease.

(c) In connection with any Secondary Market Transaction, Borrower shall within fifteen (15) Business Days, upon the written request of Lender, furnish an estoppel certificate signed by Borrower to any Investor or any prospective Investor in such form, substance and detail as Lender, such Investor or prospective Investor may reasonably request.

5.1.14. Loan Proceeds.

Borrower shall use the proceeds of the Loan received by it on the Closing Date only for the purposes set forth in Section 2.1.4 hereof.

5.1.15. Performance by Borrower.

Borrower shall in a timely manner observe, perform and fulfill each and every covenant, term and provision of each Loan Document executed and delivered by, or applicable to, Borrower, and shall not enter into or otherwise suffer or permit any amendment, waiver, supplement, termination or other modification of any Loan Document executed and delivered by, or applicable to, Borrower without the prior written consent of Lender.

5.1.16. Confirmation of Representations.

Borrower shall deliver, in connection with any Secondary Market Transaction, (a) one or more Officer’s Certificates certifying as to the accuracy of all representations made by Borrower in the Loan Documents as of the date of the closing of such Secondary Market Transaction, and (b) certificates of the relevant Governmental Authorities in all relevant jurisdictions indicating the good standing and qualification of Borrower and Principal, if any, as of the date of the closing of such Securitization.

5.1.17. Leasing Matters.

(a) With respect to each Individual Property, Borrower may enter into a proposed Lease (including the renewal or extension of an existing Lease (a “Renewal Lease”)) without the prior written consent of Lender, provided such proposed Lease or Renewal Lease (i) provides for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a material adverse effect on the use, value or operation of the applicable Individual Property, (iv) is subject and subordinate to the related Security Instrument and the lessee thereunder agrees to attorn to Lender, (v) is written on one of the standard forms of lease used by Borrower or Tenant, if Tenant is a nationally-recognized tenant, and (vi) is not a Major Lease. All proposed Leases which do not satisfy the requirements set forth in this Section 5.1.17(a) shall be subject to the prior written consent of Lender. At Lender’s request, Borrower shall promptly deliver to Lender

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copies of all Leases which are entered into pursuant to this subsection together with Borrower’s certification that it has satisfied all of the conditions of this Section.

(b) Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (ii) shall promptly send copies to Lender of all notices of default or other material matters which Borrower shall send or receive with respect to the Leases; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the Tenant thereunder to be observed or performed (except for termination of a Major Lease by Borrower which shall require Lender’s prior written consent); (iv) shall not collect any of the Rents more than one (1) month in advance (except Security Deposits shall not be deemed Rents collected in advance); (v) shall, immediately upon receipt, deposit all Lease Termination Payments into the Rollover Reserve Account; (vi) shall not execute any other assignment of the lessor’s interest in any of the Leases or the Rents; and (vii) shall not consent to any assignment of or subletting by Tenant under any Leases not in accordance with their terms, without the prior written consent of Lender, which shall not be unreasonably withheld, conditioned or delayed.

(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such Lease is not a Major Lease and that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a material adverse effect on the use, value or operation of the applicable Individual Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Agreement and any lease subordination agreement binding upon Lender with respect to such Lease. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this subsection shall be subject to the prior written consent of Lender, which shall not be unreasonably withheld, conditioned or delayed, at Borrower’s expense. At Lender’s request, Borrower shall promptly deliver to Lender copies of all Leases, amendments, modifications and waivers which are entered into pursuant to this Section 5.1.17(c) together with Borrower’s certification that it has satisfied all of the conditions of this Section.

(d) Except as provided in the next sentence, notwithstanding anything contained herein to the contrary, with respect to any Major Lease, Borrower shall not, without the prior written consent of Lender, which shall not be unreasonably withheld, conditioned or delayed, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease or any instrument guaranteeing or providing credit support for any Major Lease. Notwithstanding the preceding sentence, or anything contained herein to the contrary or in any other Loan Document, Lender’s consent shall not be required in connection with (i) the exercise by a Tenant of a renewal option, purchase option, or right of first offer, in each case, exercised in accordance with the terms of the applicable Lease unless such Lease permits Lender’s prior approval, or (ii) modifications or amendments to Leases that are de minimis or ministerial in nature.

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(e) Borrower shall hold any and all monies representing security deposits under the Leases (the “Security Deposits”) received by Borrower, in accordance with the terms of the respective Lease and Applicable Law, and shall only release the Security Deposits in order to return a Tenant’s Security Deposit to such Tenant if such Tenant is entitled to the return of the Security Deposit under the terms of the Lease.

(f) Borrower shall not provide its consent to any substitution pursuant to Section 16 of that certain Lease relating to property located in River Oaks, Texas and dated August 22, 1996, by and between Borrower, as successor-in-interest to CNL Retail Joint Venture, as landlord, and CVS Pharmacy, Inc., as successor-in-interest to Eckerd Corporation, as amended and assigned, without first obtaining Lender’s prior written consent which may be withheld in Lender’s sole discretion.

5.1.18. Management Agreement.

(a) On the Closing Date, no Property is managed by any Person other than Borrower and no separate management agreement exists with respect to any Individual Property. Borrower shall not enter into a management agreement with respect to any Property that is not a Management Agreement as defined herein (which, for the avoidance of doubt, shall include the delivery by Borrower to Lender of an Assignment of Management Agreement). If Borrower shall enter into a Management Agreement, then the terms and conditions of this Section 5.1.18 shall apply to such Management Agreement.

(b) In no event shall the management fees under the Management Agreement exceed four percent (4%) of the Gross Income from Operations with respect to the Property or Properties to which such Management Agreement relates. Borrower shall (i) diligently perform and observe all of the terms, covenants and conditions of the Management Agreement, on the part of Borrower to be performed and observed to the end that all things shall be done which are necessary to keep unimpaired the rights of Borrower under the Management Agreement and (ii) promptly notify Lender of the giving of any notice by Manager to Borrower of any default by Borrower in the performance or observance of any of the terms, covenants or conditions of the Management Agreement on the part of Borrower to be performed and observed and deliver to Lender a true copy of each such notice. Borrower shall not surrender the Management Agreement, consent to the assignment by the Manager of its interest under the Management Agreement, or terminate or cancel the Management Agreement, or modify, change, supplement, alter or amend the Management Agreement, in any respect, either orally or in writing. Borrower hereby assigns to Lender as further security for the payment of the Debt and for the performance and observance of the terms, covenants and conditions of this Agreement, all the rights, privileges and prerogatives of Borrower to surrender the Management Agreement, or to terminate, cancel, modify, change, supplement, alter or amend the Management Agreement, in any respect, and any such surrender of the Management Agreement, or termination, cancellation, modification, change, supplement, alteration or amendment of the Management Agreement, without the prior written consent of Lender shall be void and of no force and effect. If Borrower shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Borrower to be performed or observed, then, without limiting the generality of the other provisions of this Agreement, and without waiving or releasing Borrower from any of its obligations hereunder, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all the terms, covenants and conditions of the Management Agreement on the part of Borrower to be performed or observed to be promptly performed or observed on behalf of Borrower, to the end that the rights of Borrower in, to and under the Management Agreement shall be kept unimpaired and free from default. Lender and any Person designated by Lender shall have, and are hereby granted, the right to enter upon the applicable Individual Property at any time and from time to time for the purpose of taking any such action. If the

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Manager shall deliver to Lender a copy of any notice sent to Borrower of default under the Management Agreement, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender in good faith, in reliance thereon. Borrower shall not, and shall not permit the Manager to, sub-contract any or all of its management responsibilities under the Management Agreement to a third-party without the prior written consent of Lender. Borrower shall, from time to time, obtain from the Manager such certificates of estoppel with respect to compliance by Borrower with the terms of the Management Agreement as may be requested by Lender. Borrower shall exercise each individual option, if any, to extend or renew the term of the Management Agreement upon demand by Lender made at any time within one (1) year of the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. Any sums expended by Lender pursuant to this paragraph (i) shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, (ii) shall be deemed to constitute a portion of the Debt, (iii) shall be secured by the lien of the Security Instruments and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender therefor.

(c) Without limitation of the foregoing, Borrower, upon the request of Lender, shall terminate any Management Agreement and replace Manager, without penalty or fee, if at any time during the Loan: (a) Manager shall become insolvent or a debtor in any bankruptcy or insolvency proceeding, (b) there exists an Event of Default, or (c) there exists a default by Manager under such Management Agreement. At such time as the Manager may be removed, a Qualified Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreement. Following the occurrence and during the continuance of an Event of Default and the Debt has been declared due and payable, if the Properties or any Individual Property is self-managed by Borrower, Lender shall have the right to cause Borrower to appoint a Qualified Manager to assume management of the applicable Individual Property pursuant to a Management Agreement.

5.1.19. Environmental Covenants.

(a) Borrower covenants and agrees that so long as the Loan is outstanding (i) all uses and operations on or of the Properties, whether by Borrower or any other Person, shall be in compliance with all Environmental Laws and permits issued pursuant thereto; (ii) Borrower shall not cause and shall use commercially reasonable efforts to ensure that there shall be no Releases of Hazardous Materials in, on, under or from the Properties; (iii) there shall be no Hazardous Materials in, on, or under any of the Properties, except those that are both (A) in compliance with all Environmental Laws and with permits issued pursuant thereto, if and to the extent required, and (B) (1) in amounts not in excess of that necessary to operate the applicable Individual Property or (2) fully disclosed to and approved by Lender in writing; (iv) Borrower shall keep the Properties free and clear of all liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of Borrower or any other Person (the “Environmental Liens”); (v) Borrower shall, at its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to paragraph (b) below, including but not limited to providing all relevant information and making knowledgeable persons available for interviews; (vi) Borrower shall, at its sole cost and expense, perform any environmental site

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assessment or other investigation of environmental conditions in connection with any of the Properties, pursuant to any reasonable written request of Lender, upon Lender’s reasonable belief that an Individual Property is not in material compliance with all Environmental Laws, and share with Lender the reports and other results thereof, and Lender and other Indemnified Parties shall be entitled to rely on such reports and other results thereof; (vii) Borrower shall, at its sole cost and expense, comply with all reasonable written requests of Lender to (A) reasonably effectuate Remediation of any Hazardous Materials (which are in violation of Environmental Laws) in, on, under or from any Individual Property; and (B) comply with any Environmental Law; (viii) Borrower shall not allow any Tenant or other user of any of the Properties to violate any Environmental Law; and (ix) Borrower shall promptly notify Lender in writing after it has become aware of (A) any presence or Release or threatened Releases of Hazardous Materials in, on, under, from or migrating towards any of the Properties; (B) any non-compliance with any Environmental Laws related in any way to any of the Properties; (C) any actual or pending Environmental Lien; (D) any required or proposed Remediation of environmental conditions relating to any of the Properties; and (E) any material written notice or other written communication of which Borrower becomes aware from any source whatsoever (including but not limited to a Governmental Authority) relating in any way to Hazardous Materials.

(b) No more frequently than once per year unless Lender has a reasonable basis to believe there is a violation of Environmental Law or presence of a Hazardous Material or on, under or from any Individual Property or at any time upon an Event of Default, Lender and any other Person designated by Lender, including but not limited to any representative of a Governmental Authority, and any environmental consultant, and any receiver appointed by any court of competent jurisdiction, shall have the right (provided written notice of such determination, together with the basis for such determination, has been provided to Borrower), but not the obligation, to enter upon any Individual Property at all reasonable times and upon reasonable notice to assess any and all aspects of the environmental condition of any Individual Property and its use, including but not limited to conducting any environmental assessment or audit (the scope of which shall be determined in Lender’s sole and absolute discretion) and taking samples of soil, groundwater or other water, air, or building materials, and conducting other invasive testing. Borrower shall reasonably cooperate with and provide access to Lender and any such Person or entity designated by Lender, subject to any restrictions with respect thereto set forth in the applicable Lease.

5.1.20. Alterations.

Borrower shall obtain Lender’s prior written consent to any alterations to any Improvements, which consent shall not be unreasonably withheld, conditioned or delayed except with respect to alterations that may have a material adverse effect on Borrower’s financial condition, the use, value or operation of the related Individual Property or the Net Operating Income. Notwithstanding the foregoing, Lender’s consent shall not be required in connection with any alterations that will not have a material adverse effect on Borrower’s financial condition, the use, value or operation of the related Individual Property or the Net Operating Income, provided that such alterations are made in connection with (a) tenant improvement work performed pursuant to or permitted under the terms of any existing Lease or any Lease executed in accordance with the terms hereof, (b) tenant improvement work performed pursuant to the terms and provisions of a Lease and not adversely affecting any structural component of any

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Improvements, any utility or HVAC system contained in any Improvements or the exterior of any building constituting a part of any Improvements, (c) alterations performed in connection with the Restoration of the related Individual Property in accordance with the terms and provisions of this Agreement, or (d) any work required to be performed by Borrower pursuant to the terms and conditions of the Leases, provided such work is completed in accordance with the terms of this Agreement and the Lease. If the total unpaid amounts with respect to any alterations to the Improvements (other than such amounts to be paid or reimbursed by Tenants under the Leases) at the related Individual Property shall at any time exceed the Alteration Threshold, Borrower shall promptly deliver to Lender as security for the payment of such amounts and as additional security for Borrower’s obligations under the Loan Documents any of the following: (A) Cash, (B) U.S. Obligations, or (C) a completion bond or letter of credit issued by a financial institution having a rating by S&P of not less than A-1+ if the term of such bond or letter of credit is no longer than three (3) months or, if such term is in excess of three (3) months, issued by a financial institution having a rating that is acceptable to Lender and that the applicable Rating Agencies have confirmed in writing will not, in and of itself, result in a downgrade, withdrawal or qualification of the initial, or, if higher, then current ratings assigned in connection with any Securitization. Such security shall be in an amount equal to the excess of the total unpaid amounts with respect to such alterations to the Improvements on the related Individual Property other than such amounts to be paid or reimbursed by Tenants under the Leases) over the Alteration Threshold and applied from time to time at the option of Lender to pay for such alterations or to terminate any of the alterations and restore the related Individual Property to the extent necessary to prevent any material adverse effect on the value of the related Individual Property; provided, however, that the amount of any Letter of Credit given as security under this Section 5.1.20 shall not exceed ten percent (10%) of the allocated loan amount (and if the amount to be deposited with Lender hereunder is in excess of such cap and Borrower obtains a Letter of Credit in an amount equal to such cap, then Borrower shall deposit a sufficient amount of either Cash or U.S. Obligations with Lender to cover the difference between the capped amount and the amount required to be deposited hereunder). Notwithstanding the foregoing in this Section 5.1.20, for so long as a Single Tenant Lease remains in full force and effect with respect to an Individual Property, the rights of the Tenant thereunder to conduct alterations shall control and shall not otherwise be subject to Lender’s approval.

5.1.21. Intentionally Omitted.

5.1.22. OFAC.

At all times throughout the term of the Loan, Borrower, Guarantor and each of their respective Affiliates shall be in full compliance with all applicable orders, rules, regulations and recommendations of The Office of Foreign Assets Control of the U.S. Department of the Treasury.

5.1.23. O&M Program.

Borrower covenants and agrees to implement and follow the terms and conditions of the O&M Program (or cause Tenant to do the same) for each Individual Property set forth on Schedule VI hereof during the term of the Loan, including any extension or renewal thereof. Lender’s requirement that Borrower comply with the O&M Program shall not be deemed to

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constitute a waiver or modification of any of Borrower’s covenants and agreements with respect to Hazardous Materials or Environmental Laws.

5.1.24. Single Purpose Entity Compliance.

(a) Borrower covenants and agrees to provide concurrently with the delivery of the annual Financial Reporting Requirements set forth in Section 5.1.10(b) hereof, an Officer’s Certificate stating that the representations and warranties of Borrower and Principal, if any, as applicable, set forth in Section 4.1.36 of this Agreement are true and correct as of the date of the Officer’s Certificate.

(b) Borrower covenants and agrees that prior, and as a condition precedent, to the removal of an Independent Director of Borrower or Principal, if any, as applicable, Borrower shall provide Lender with written notice of such proposed removal no later than thirty (30) days’ prior to such removal, which notice shall include the identity and address of such replacement Independent Director and an Officer’s Certificate certifying that such replacement Independent Director complies with the definition of Independent Director contained herein.

(c) Borrower covenants and agrees that within ten (10) Business Days of each anniversary of the Closing Date, Borrower shall cause the Independent Directors of Borrower and Principal, if any, as applicable, to certify in writing to Lender (i) the name and address of each Independent Director and (ii) that each Independent Director has complied with, and shall continue to comply with the requirements set forth in Section 4.1.36 of this Agreement.

Section 5.2. Negative Covenants.

From the date hereof until payment and performance in full of all of the Obligations or the earlier release of the Liens of the Security Instruments encumbering the Properties in accordance with the terms of this Agreement and the other Loan Documents, Borrower covenants and agrees with Lender that it will not do, directly or indirectly, any of the following:

5.2.1. Liens.

Borrower shall not create, incur, assume or suffer to exist any Lien on any portion of any Individual Property or permit any such action to be taken, except for the Permitted Encumbrances.

5.2.2. Dissolution.

Borrower shall not (a) engage in any dissolution, liquidation or consolidation or merger with or into any other business entity, (b) transfer, lease or sell, in one transaction or any combination of transactions, the assets or all or substantially all of the Properties or assets of Borrower except to the extent expressly permitted by the Loan Documents, (c) except as expressly permitted under the Loan Documents, modify, amend, waive or terminate its organizational documents or its qualification and good standing in any jurisdiction or (d) cause the Principal, if any, to (i) dissolve, wind up or liquidate or take any action, or omit to take an action, as a result of which the Principal would be dissolved, wound up or liquidated in whole or

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in part, or (ii) except as expressly permitted under the Loan Documents, amend, modify, waive or terminate the certificate of incorporation, bylaws or similar organizational documents of the Principal, in each case, without obtaining the prior written consent of Lender.

5.2.3. Change In Business.

Borrower shall not enter into any line of business other than the ownership, acquisition, development, operation, leasing and management of the Properties (including providing services in connection therewith), or make any material change in the scope or nature of its business objectives, purposes or operations or undertake or participate in activities other than the continuance of its present business.

5.2.4. Debt Cancellation.

Borrower shall not cancel or otherwise forgive or release any material claim or debt (other than termination of Leases in accordance herewith) owed to Borrower by any Person, except for adequate consideration and in the ordinary course of Borrower’s business.

5.2.5. Zoning.

Borrower shall not initiate or consent to any zoning reclassification of any portion of any Individual Property or seek any variance under any existing zoning ordinance or use or permit the use of any portion of any Individual Property in any manner that could reasonably be expected to result in such use becoming a non-conforming use under any zoning ordinance or any other Applicable Law, without the prior written consent of Lender. In the event Lender consents to any such nonconforming use, Borrower will not cause or permit such nonconforming use to be discontinued or any nonconforming Improvement to be abandoned without the prior written consent of Lender.

5.2.6. No Joint Assessment.

Borrower shall not suffer, permit or initiate the joint assessment of any Individual Property with (a) any other real Property constituting a tax lot separate from such Individual Property, or (b) any portion of such Individual Property which may be deemed to constitute personal property, or any other procedure whereby the Lien of any taxes which may be levied against such personal Property shall be assessed or levied or charged to such Individual Property.

5.2.7. Name, Identity, Structure, or Principal Place of Business.

Borrower shall not change its name, identity (including its trade name or names), or principal place of business set forth in the introductory paragraph of this Agreement, without, in each case, first giving Lender thirty (30) days prior written notice. Borrower shall not change its the place of its organization as set forth in Section 4.1.35, without, in each case, the consent of Lender. Upon Lender’s request, Borrower shall execute and deliver additional financing statements, security agreements and other instruments which may be necessary to effectively evidence or perfect Lender’s security interest in the Properties as a result of such change of principal place of business or place of organization.

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5.2.8. ERISA.

(a) During the term of the Loan or of any obligation or right hereunder, Borrower shall not engage in any Prohibited Transaction or Prohibited Governmental Transaction subjecting Lender to liability for a violation of ERISA, the Code, a state statute or other similar law.

(b) Borrower further covenants and agrees to deliver to Lender, within ten (10) Business Days after receipt of written request from Lender therefor, such certifications or other evidence from time to time throughout the term of the Loan, as reasonably requested by Lender, that (A) Borrower is not and does not maintain a Plan or Governmental Plan, (B) Borrower is not engaging in a Prohibited Transaction or any Prohibited Governmental Transactions; and (C) one or more of the following circumstances is true:

(i) Equity interests in Borrower are publicly offered securities, within the meaning of 29 C.F.R. §2510.3-101(b)(2);

(ii) Less than twenty-five percent (25%) of each outstanding class of equity interests in Borrower are held by “benefit plan investors” within the meaning of 29 C.F.R. §2510.3-101(f)(2); or

(iii) Borrower qualifies as an “operating company” or a “real estate operating company” within the meaning of 29 C.F.R. §2510.3-101(c) or (e) or an investment company registered under The Investment Company Act of 1940, as amended.

5.2.9. Affiliate Transactions.

Borrower shall not enter into, or be a party to, any transaction with an Affiliate of Borrower, Principal, if any, or any of the partners or members of Borrower or Principal, if any, except in the ordinary course of business and on terms which are fully disclosed to Lender in advance in writing and are not materially less favorable to Borrower or such Affiliate than would be obtained in a comparable arm’s-length transaction with an unrelated third party.

5.2.10. Transfers.

(a) Borrower shall not sell, convey, mortgage, grant, bargain, encumber, pledge, assign, grant options with respect to, or otherwise transfer or dispose of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) any Individual Property or any part thereof or any legal or beneficial interest therein or permit a Sale or Pledge of an interest in any Restricted Party (collectively, a “Transfer”; provided, however, that the term “Transfer” shall not be deemed to include a transfer of direct or indirect equity interests in the Borrower as the result of a foreclosure or assignment in lieu relating to any Mezzanine Loan), other than pursuant to Leases of space in the Improvements to Tenants in accordance with the provisions of Section 5.1.17 hereof or a release of an Individual Property in accordance with the provisions of Section 2.5, Section 2.6 or Transfers consummated pursuant to Section 5.2.11 hereof, or matters set forth in clause (d) of the definition of Permitted Encumbrances (provided that such Permitted

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Encumbrances are placed on the Property in Borrower’s ordinary course of business and so not, individually or in the aggregate, materially interfere with the value, current use or operation of any Individual Property) without (i) the prior written consent of Lender and (ii) if a Securitization has occurred, delivery to Lender of written confirmation from the Rating Agencies that the Transfer will not result in the downgrade, withdrawal or qualification of the then current ratings assigned to any Securities or the proposed rating of any Securities. The consent of Lender or the Rating Agencies, as applicable, pursuant to this Section 5.2.10, may be conditioned on, among other things: (i) the identity, experience, financial condition, creditworthiness, single purpose nature and bankruptcy remoteness of the Borrower, the proposed transferee, and any replacement guarantors and indemnitors being satisfactory to Lender and the Rating Agencies, as applicable, and (ii) counsel to the proposed transferee and replacement guarantors and indemnitors delivering to Lender and the Rating Agencies (A) opinion letters relating to such transfer (including tax and bankruptcy opinions) in form and substance satisfactory to Lender and the Rating Agencies, (B) copies of all documents evidencing or relating to such Transfer, and (C) organizational documents of the proposed transferee and any replacement or additional guarantors or indemnitors.

(b) A Transfer shall include, but not be limited to: (i) an installment sales agreement wherein Borrower agrees to sell one or more Individual Properties or any part thereof for a price to be paid in installments; (ii) an agreement by Borrower leasing all or a substantial part of any Individual Property for other than actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interests or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing membership interests or the creation or issuance of new non-managing membership interests; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; (vii) the removal or the resignation of the managing agent (including an Affiliated Manager) other than in accordance with Section 5.1.18 hereof; or (viii) the issuance or creation of any preferred equity interests directly or indirectly in Borrower.

(c) Notwithstanding the provisions of Sections 5.2.10(a) and (b), the following transfers, so long as no Event of Default is then continuing (other than with respect to subclauses (ii) and (iv) below), shall be permitted and shall not be deemed to be a Transfer:

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(i) a Transfer of up to forty-nine percent (49%) of the non-controlling direct and indirect interests in Borrower to any Person that satisfies the Investor Eligibility Requirements, provided that (A) Lender shall receive not less than ten (10) Business Days prior written notice of such Transfer, and (B) no such Transfer shall result in a change of Control of Guarantor and any Affiliated Manage;

(ii) the issuance, conveyance, assignment, sale, mortgage, encumbrance, pledge, disposition hypothecation, grant of a security interest, or grant of option (directly or indirectly or by operation of law) (any of the foregoing, a “Sale or Pledge”) of any shares of common stock (the “REIT Shares”) in Spirit Realty Capital, Inc., a Maryland corporation (the “REIT”) (other than a Sale or Pledge to secure corporate or other debt of the REIT, Guarantor, Spirit General OP Holdings, LLC, a Delaware limited liability company (“Spirit Holdings”) or Borrower) (each a “REIT Share Transfer”) so long as (a) at the time of the REIT Share Transfer, the REIT Shares are listed on the New York Stock Exchange or any other nationally recognized stock exchange (any such stock exchange, a “Recognized Stock Exchange”), or, after written notice to Lender, such REIT Shares are traded over the counter and listed in the National Association of Securities Dealers Automatic Quotations and registered with the Securities and Exchange Commission, and (b) the REIT Share Transfer does not result in or cause an Equity Change of Control;

(iii) the issuance, Sale or Pledge (each an “OP Transfer”) of any limited partnership interests (the “OP Interests”) in Guarantor (other than a Sale or Pledge to secure corporate or other debt of the REIT, Guarantor, Spirit Holdings or Borrower), so long as (a) at the time of the OP Transfer, the REIT Shares are listed on a Recognized Stock Exchange, or, after written notice to Lender, such REIT Shares are traded over the counter and listed in the National Association of Securities Dealers Automatic Quotations and registered with the Securities and Exchange Commission, and (b) the OP Transfer does not result in or cause an Equity Change of Control; and

(iv) the issuance, Sale or Pledge (each a “Preferred Share Transfer”) of any shares (the “Preferred Shares”) of Permitted Preferred Stock in the REIT (other than a Sale or Pledge to secure corporate or other debt of the REIT, Guarantor, Spirit Holdings or Borrower) so long as (a) at the time of the Preferred Share Transfer, the REIT Shares are listed on a Recognized Stock Exchange, or, after written notice to Lender, such REIT Shares are traded over the counter and listed in the National Association of Securities Dealers Automatic Quotations and registered with the Securities and Exchange Commission, and (b) the Preferred Share Transfer does not result in or cause an Equity Change of Control.

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(d) Notwithstanding anything to the contrary contained in this Section 5.2.10, at all times Guarantor must continue to control Borrower and own, directly or indirectly, at least a fifty-one percent (51%) interest in Borrower. At all times following a transfer of the Properties in accordance with the terms and provisions of Section 5.2.11 hereof, sponsor(s) and/or principal(s) approved by Lender pursuant to such Section 5.2.11 must continue to control the Transferee and the applicable replacement guarantor approved by Lender as required by such Section 5.2.11 and own, directly or indirectly, at least a 51% interest in such Transferee and such replacement guarantor.

(e) Lender shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon a Transfer in violation of this Section 5.2.10. This provision shall apply to every Transfer regardless of whether voluntary or not, or whether or not Lender has consented to any previous Transfer. Notwithstanding anything to the contrary contained in this Section 5.2.10, (a) no transfer (whether or not such transfer shall constitute a Transfer) shall be made to any Prohibited Person, (b) in the event any transfer (whether or not such transfer shall constitute a Transfer) results in any Person and its Affiliates owning in excess of ten percent (10%) of the ownership interest in a Restricted Party, Borrower shall provide to Lender, not less than thirty (30) days prior to such transfer, the name and identity of each proposed transferee, together with the names of its controlling principals, the social security number or employee identification number of such transferee and controlling principals, and such transferee’s and controlling principal’s home address or principal place of business, and home or business telephone number and (c) in the event any transfer (whether or not such transfer shall constitute a Transfer) results in any Person and its Affiliates owning in excess of forty-nine percent (49%) of the ownership interest in a Restricted Party and a Secondary Market Transaction has occurred, Borrower shall, prior to such transfer, deliver an updated Insolvency Opinion to Lender, which opinion shall be in form and substance acceptable to Lender and the Rating Agencies.

5.2.11. Transfer and Assumption.

Notwithstanding anything to the contrary contained in Section 5.2.10 hereof, Lender shall not unreasonably withhold its consent to a sale, assignment, or other transfer of all of the Properties (i) provided that (A) Lender receives at least sixty (60) days prior written notice of such transfer, (B) no Event of Default has occurred and is continuing both at the time such notice is given and as of the closing date of such transaction, (C) a Securitization has occurred, and (ii) upon the satisfaction of the following conditions precedent:

(a) The transferee shall be a single purpose and bankruptcy remote entity (“Transferee”) and controlled and majority owned (directly or indirectly) by a Permitted Transferee;

(b) The identity, experience (including demonstrated expertise in owning and operating properties similar in location, size, class and operation to the Properties), financial condition and creditworthiness (including no history of any bankruptcy or similar proceeding within the preceding ten (10) years) of the sponsor(s) or principals(s) of Transferee and of any party proposed to become a substitute guarantor, as evidenced by financial statements and other information requested by Lender, shall be satisfactory to Lender;

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(c) The organizational documents of Transferee and its sponsor(s) or principal(s) shall be in form and substance satisfactory to Lender, including lien searches and other internal “know your client” due diligence acceptable to Lender;

(d) Certified copies of all documents evidencing such transfer and assumption, which shall be in form and substance satisfactory to Lender;

(e) Borrower or Transferee shall pay any and all costs incurred in connection with the transfer (including Lender’s attorneys’ fees and disbursements and all recording fees, transfer taxes, title insurance premiums and mortgage and intangible taxes and any fees of any Rating Agencies), it being acknowledged and agreed that Borrower shall have this obligation if the transaction is not consummated;

(f) Transferee shall comply with all of the requirements of Section 4.1.36 hereof;

(g) Transferee shall not be an Affiliate of either Borrower or Guarantor;

(h) Transferee shall assume all of the obligations of Borrower under the Note, the Security Instruments, this Agreement and the other Loan Documents in a manner satisfactory to Lender in all respects, including by entering into an assumption agreement in form and substance satisfactory to Lender and delivering such legal opinions as Lender may reasonably require;

(i) A replacement guarantor satisfactory to Lender in its sole discretion shall assume all of the obligations of Guarantor under the Guaranty and the Environmental Indemnity in a manner satisfactory to Lender in all respects, including by entering into an assumption agreement and/or a new guaranty or environmental indemnity agreement, each in form and substance satisfactory to Lender, and delivering such legal opinions as Lender may reasonably require;

(j) The Properties shall be managed by a Qualified Manager following such transfer;

(k) If a Securitization has occurred, Transferee shall deliver to Lender written confirmation from the Rating Agency that the transfer and the assumption by Transferee shall not result in a downgrade, withdrawal or qualification of the ratings then assigned to the Securities;

(l) Transferee shall deliver an endorsement to the existing Title Insurance Policies in form and substance acceptable to Lender insuring the Security Instruments as modified by the assumption agreement, as a valid first lien on the Properties and naming Transferee as owner of the Properties, naming the then current holder of the Loan as the insured, bringing forward the date and time of the Title Insurance Policies to the date and time of recording of the assumption agreement or a memorandum thereof, and addressing such other matters as Lender shall require, and which endorsement shall insure that as of the recording of

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the assumption agreement, the Properties shall not be subject to any additional exceptions or liens other than those contained in the Title Insurance Policies;

(m) Borrower shall pay to Lender an assumption fee equal to (i) with respect to the first such assumption, one quarter of one percent (0.25%) of the outstanding principal balance of the Loan, and (ii) with respect to each assumption thereafter, one percent (1.0%) of the outstanding principal balance of the Loan; and

(n) Transferee shall deliver to Lender an opinion of counsel from an independent law firm with respect to the substantive non-consolidation of Transferee and its constituent entities (partners, members or shareholders), which law firm and which opinion shall be satisfactory to (i) Lender, if a Securitization has not occurred, or (ii) Lender and the Rating Agencies, if a Securitization has occurred.

VI. INSURANCE; CASUALTY; CONDEMNATION; REQUIRED REPAIRS

Section 6.1. Insurance.

(a) Borrower shall obtain and maintain, or cause to be obtained and maintained on behalf of the Borrower, Policies for Borrower and the Properties providing at least the following coverages:

(i) comprehensive all risk insurance, including the peril of wind (including named storms) on the Improvements and the Personal Property, in each case (A) in an amount equal to 100% of the “Full Replacement Cost,” which for purposes of this Agreement shall mean actual replacement value (exclusive of costs of excavations, foundations, underground utilities and footings) with a waiver of depreciation, (B) containing an agreed amount endorsement with respect to the Improvements and Personal Property waiving all co-insurance provisions; (C) providing for no deductible in excess of $50,000, except for wind/named storms and earthquake, which may provide for no deductible in excess of 5% of the total insurable value of the Property, subject to a $250,000 minimum; and (D) providing coverage for contingent liability from Operation of Building Laws, Demolition Costs and Increased Cost of Construction Endorsements together with an “Ordinance or Law Coverage” or “Enforcement” endorsement if any of the Improvements or the use of any Individual Property shall at any time constitute legal non-conforming structures or uses. The Full Replacement Cost shall be redetermined from time to time (but not more frequently than once in any twenty-four (24) calendar months) at the request of Lender by an appraiser or contractor designated and paid by Borrower and approved by Lender, or by an engineer or appraiser in the regular employ of the insurer. After the first appraisal, additional appraisals may be based on construction cost indices customarily employed in the trade. No omission on the part of Lender to request any such ascertainment shall relieve Borrower of any of its obligations under this subsection;

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(ii) commercial general liability insurance against claims for personal injury, bodily injury, death or property damage occurring upon, in or about any Individual Property, such insurance (A) to be on the so-called “occurrence” form with a combined single limit of not less than $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate; (B) to continue at not less than the aforesaid limit until required to be changed by Lender in writing by reason of changed economic conditions making such protection inadequate; and (C) to cover at least the following hazards: (1) premises and operations; (2) products and completed operations on an “if any” basis; (3) independent contractors; (4) contractual liability for all insured contracts; and (5) contractual liability covering the indemnities contained in Article 10 of the Security Instruments to the extent the same is available;

(iii) loss of rents and/or business interruption insurance (A) with loss payable to Lender; (B) covering all risks required to be covered by the insurance provided for in Sections 6.1(a)(i), (iv) and (vi) through (viii); (C) in an amount equal to 100% of the projected gross income from each Individual Property (on an actual loss sustained basis) for a period continuing until the Restoration of the Individual Property is completed; the amount of such business interruption/loss of rents insurance shall be determined prior to the Closing Date and at least once each year thereafter based on the greatest of: (x) Borrower’s reasonable estimate of the gross income from each Individual Property and (y) the highest gross income received during the term of the Note for any full calendar year prior to the date the amount of such insurance is being determined, in each case for the succeeding eighteen (18) month period and (D) containing an extended period of indemnity endorsement which provides that after the physical loss to the Improvements and the Personal Property has been repaired, the continued loss of income will be insured until such income either returns to the same level it was at prior to the loss, or the expiration of six (6) months from the date that the applicable Individual Property is repaired or replaced and operations are resumed, whichever first occurs, and notwithstanding that the policy may expire prior to the end of such period; All insurance proceeds payable to Lender pursuant to this Section 6.1(a)(iii) shall be held by Lender and shall be applied to the Obligations secured hereunder from time to time due and payable hereunder and under the Note and this Agreement; provided, however, that (I) nothing herein contained shall be deemed to relieve Borrower of its obligations to pay the obligations secured hereunder on the respective dates of payment provided for in the Note and this Agreement except to the extent such amounts are actually paid out of the proceeds of such business interruption/loss of rents insurance;

(iv) at all times during which structural construction, repairs or alterations are being made with respect to the Improvements (A) owner’s contingent or protective liability insurance covering claims not

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covered by or under the terms or provisions of the insurance provided for in Section 6.1(a)(ii); and (B) the insurance provided for in Section 6.1(a)(i) shall be written in a so-called builder’s risk completed value form (1) on a non-reporting basis, (2) against all risks insured against pursuant to Section 6.1(a)(i), (3) shall include permission to occupy each Individual Property, and (4) shall contain an agreed amount endorsement waiving co-insurance provisions;

(v) workers’ compensation, subject to the statutory limits of the State in which each Individual Property is located, and employer’s liability insurance with a limit of at least $2,000,000.00 per accident and per disease per employee, and $2,000,000.00 for disease aggregate in respect of any work or operations on or about each Individual Property, or in connection with such Individual Property or its operation (if applicable);

(vi) comprehensive boiler and machinery insurance, if applicable, in amounts as shall be reasonably required by Lender on terms consistent with the commercial Property insurance policy required under Section 6.1(a)(i);

(vii) if any portion of the Improvements is at any time located in an area identified by the Secretary of Housing and Urban Development or any successor thereto as an area having special flood hazards pursuant to the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973 or the National Flood Insurance Reform Act of 1994, as each may be amended, or any successor law (the “Flood Insurance Acts”), flood hazard insurance of the following types and in the following amounts (A) coverage under Policies issued pursuant to the Flood Insurance Acts (the “Flood Insurance Policies”) in an amount equal to the maximum limit of coverage available for the applicable Individual Property under the Flood Insurance Acts, subject only to customary deductibles under such Policies (or such higher amount as Lender may require in its sole discretion) and (B) coverage under a supplemental private Policies in an amount, which when added to the coverage provided under the Flood Act Policies with respect to an Individual Property, is not less than the Allocated Loan Amount for such Individual Property;

(viii) if required by Lender, sinkhole and mine subsidence and, if an Individual Property is located in Seismic Zone 3 or 4 and has a PML or SEL in excess of 20%, earthquake insurance in amounts equal to two times (2x) the probable maximum loss of each Individual Property as determined by Lender in its sole discretion and in form and substance satisfactory to Lender, provided that the insurance pursuant to this Section 6.1(a)(viii) hereof shall be on terms consistent with the all risk insurance policy required under Section 6.1(a)(i) hereof;

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(ix) umbrella liability insurance in an amount not less than Fifty Million and No/100 Dollars ($50,000,000.00) per occurrence on terms consistent with the commercial general liability insurance policy required under Section 6.1(a)(ii) hereof;

(x) motor vehicle liability coverage for all owned and non-owned vehicles, including rented and leased vehicles containing minimum limits per occurrence, including umbrella coverage, of One Million and No/100 Dollars ($1,000,000);

(xi) an Environmental Secured Creditor Insurance Policy issued by Steadfast Insurance Company, a Zurich member company, covering the Individual Properties located in Woodstock, GA (BJ’s Wholesale Club), Newton, IA (Walgreens), Atlanta, GA (CVS) and Lincoln, IL (CVS), for a period of not less than ten (10) years with a three (3) year extended reporting period and with a limit of $2,000,000 each incident and $10,000,000 in the aggregate; and

(xii) such other insurance and in such amounts or as Lender from time to time may reasonably request against such other insurable hazards which at the time are commonly insured against for property similar to each Individual Property located in or around the region in which each Individual Property is located.

(b) All insurance provided for in Section 6.1(a) hereof shall be obtained under valid and enforceable policies (the “Policies” or in the singular, the “Policy”), in such forms and, from time to time after the date hereof, in such amounts as may be satisfactory to Lender, issued by financially sound and responsible insurance companies authorized to do business in the State in which each Individual Property is located and approved by Lender. The insurance companies must be (A) one or more financially sound and responsible insurance companies authorized to do business in the State in which the Property is located and having a rating by each of the Rating Agencies (one of which will be S&P if they are rating the Securities and one of which shall be Moody’s if they are rating the Securities) not lower than “A-” or (B) a syndicate of insurers through which at least seventy-five percent (75%) of the coverage (if there are four (4) or fewer members of the syndicate) or at least sixty percent (60%) of the coverage (if there are five (5) or more members of the syndicate) and one hundred percent (100%) of the primary layer is with carriers having a minimum claims-paying-ability rating not lower than “A-” by S&P and “A:X” by A.M. Best (or, with respect to Factory Mutual Insurance Company, a rating by Fitch not lower than “A” and a rating by S&P not lower than “Api”) and the balance of the coverage is, in each case, with insurers having a minimum claims-paying-ability rating not lower than “BBB+” by S&P and “A-:VIII” by A.M. Best (each such insurer shall be referred to below as a “Qualified Insurer”). Borrower will be required to maintain insurance against terrorism, terrorist acts or similar acts of sabotage with amounts, terms and coverage consistent with those required under Sections 6.1(a)(i), (ii), (iii) and (ix) hereof. Not less than thirty (30) days prior to the expiration dates of the Policies theretofore furnished to Lender pursuant to Section 6.1(a), Borrower shall deliver insurance renewal documentation satisfactory to Lender

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and, upon renewal, Borrower will provide proof of full payment of the premiums due in connection with such renewal (the “Insurance Premiums”).

(c) Borrower shall not obtain (i) any umbrella or blanket liability or casualty Policy unless, in each case, such Policy is approved in advance in writing by Lender and Lender’s interest is included therein as provided in this Agreement and such Policy is issued by a Qualified Insurer, or (ii) separate insurance concurrent in form or contributing in the event of loss with that required in Section 6.1(a) to be furnished by, or which may be reasonably required to be furnished by, Borrower. In the event Borrower obtains separate insurance or an umbrella or a blanket policy, Borrower shall notify Lender of the same and shall cause complete copies of each Policy to be delivered as required in Section 6.1(a). Without limitation of any provision hereof, (1) Lender’s consent required hereunder with respect to any umbrella or blanket Policy shall include the schedule of locations and values with respect to the same and (2) any umbrella or blanket Policy shall otherwise provide the same protection as would a separate Policy insuring only such Individual Property in compliance with the provisions of Section 6.1(a). Notwithstanding Lender’s approval of any umbrella or blanket liability or casualty Policy hereunder, Lender reserves the right, in its sole discretion, to require Borrower to obtain a separate Policy in compliance with this Section 6.1.

(d) All Policies provided for or contemplated by Section 6.1(a) hereof shall name Borrower as a named insured and in the case of commercial liability policies, except for the Policy referenced in Section 6.1(a)(v) and (x), shall name the Lender, its successors and/or assigns, as additional insureds, as their respective interests may appear, and in the case of property damage policies, including but not limited to terrorism, boiler and machinery, and flood insurance, shall contain a standard non-contributing mortgagee clause in favor of Lender providing that the loss thereunder shall be payable to Lender. Borrower shall promptly forward to Lender a copy of each written notice received by Borrower of any modification, reduction or cancellation of any of the Policies or of any of the coverages afforded under any of the Policies.

(e) All Policies (other than commercial liability policies) provided for in Section 6.1(a) hereof shall contain clauses or endorsements to the effect that:

(i) no act or negligence of Borrower, or anyone acting for Borrower, or failure to comply with the provisions of any Policy which might otherwise result in a forfeiture of the insurance or any part thereof, or foreclosure or similar action, shall in any way affect the validity or enforceability of the insurance insofar as Lender is concerned;

(ii) the Policy shall not be cancelled without at least thirty (30) days’ written notice to Lender and any other party named therein as an insured (other than in the case of non-payment in which case only ten (10) days’ written prior notice shall be provided);

(iii) each Policy shall provide that the issuers thereof shall give written notice to Lender if the issuer elect not to renew the Policy prior to its expiration; and

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(iv) Lender shall not be liable for any Insurance Premiums thereon or subject to any assessments thereunder.

(f) Borrower shall furnish to Lender, on or before thirty (30) days after the close of each of Borrower’s fiscal years, a statement certified by Borrower or a duly authorized officer of Borrower of the amounts of insurance maintained in compliance herewith, of the risks covered by such insurance and of the insurance company or companies which carry such insurance and, if requested by Lender, verification of the adequacy of such insurance by an independent insurance broker or appraiser acceptable to Lender.

(g) If at any time Lender is not in receipt of written evidence that all insurance required hereunder is in full force and effect, Lender shall have the right, without notice to Borrower to take such action as Lender deems necessary to protect its interest in the Properties, including the obtaining of such insurance coverage as Lender in its sole discretion deems appropriate, and all expenses including reasonable attorneys’ fees, incurred by Lender in connection with such action or in obtaining such insurance and keeping it in effect shall be paid by Borrower to Lender upon demand and until paid shall be secured by the Security Instruments and shall bear interest at the Default Rate.

(h) In the event of a foreclosure of any of the Security Instruments, or other transfer of title to any Individual Property in extinguishment in whole or in part of the Debt all right, title and interest of Borrower in and to the Policies then in force and all proceeds payable thereunder shall thereupon vest in the purchaser at such foreclosure or Lender or other transferee in the event of such other transfer of title.

(i) Notwithstanding the foregoing, for so long as any Tenant pursuant to a Single Tenant Lease maintains the insurance policies meeting the requirements set forth in this Section 6.1, including terrorism on the property (including loss of rents and/or business interruption), general and umbrella liability policies, such insurance policies may satisfy Borrower’s insurance requirements described herein so long as (a) Tenant remains in compliance with all insurance requirements under this Section 6.1, (b) any insurance coverage provided by Tenant satisfies the requirements set forth in the Single Tenant Lease and any other material agreements applicable to the Individual Property and such Tenant delivers evidence reasonably acceptable to Lender of such coverage no less frequently than annually, and (c) all such policies shall name Lender, its successors and/or assigns, as an additional insureds, as their respective interests may appear, and in the case of property damage policies, including but not limited to terrorism, boiler and machinery, and flood insurance, shall contain standard non-contributing mortgagee clause in favor of Lender providing that the loss thereunder shall be payable to Lender. To the extent any of the foregoing conditions are not satisfied or to the extent Lender has been informed that relying solely on the insurance required pursuant in such Single Tenant Lease will result in an adverse impact to, a downgrade of or withdrawal of any rating then or to be assigned to any outstanding certificates issued or to be issued in conjunction with a Securitization of which this Loan is a part or otherwise adversely impacts the Securitization of the Loan, Borrower shall promptly, at its sole cost and expense, procure and maintain until Tenant’s compliance either (x) “primary” insurance coverage in the event that Tenant does not provide the applicable insurance coverage required in this subsection 6.1(i) or (y) “excess and contingent” insurance coverage in the event that Tenant does not have the sufficient insurance

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coverage required under this subsection 6.1(i) over and above any other valid and collectible coverage then in existence or that there are gaps between the insurance coverages provided for in the applicable Single Tenant Lease and the requirements under this Section 6.1, as shall be necessary to bring the insurance coverage for the Property into full compliance with all of the terms and conditions of this Section 6.1. With respect to insurance for acts of terror, in the event that the individual Single Tenant Lease excludes or does not otherwise provide terrorism coverage, Borrower shall be required to provide a policy for such coverage in an amount acceptable to Lender which satisfies the requirements of this Section 6.1.

(j) Within ten (10) days after receipt of written request from Lender, Borrower shall (i) provide certified copies of any and all Policies or binders, pro formas or certificates of insurance reflecting insurance coverages, amounts and other requirements required to be maintained by Borrower under this Agreement, and (ii) request each Tenant required to maintain insurance pursuant to the terms of a Single Tenant Lease and where Borrower is not obtaining insurance with respect to such Single Tenant Lease pursuant to Section 6.1(i) above, to provide evidence reasonably acceptable to Lender of such Tenant’s compliance with its obligations thereunder and to use commercially reasonable efforts to obtain such evidence. In the event Borrower is unable to obtain such evidence with respect to any Tenant’s insurance within such ten (10) day period, Borrower shall promptly obtain, but in no event less than ten (10) days after Tenant’s failure to provide any such evidence, any Policies for Borrower and the relevant Property as may be necessary to comply with this Section 6.1(a) and Borrower shall provide evidence reasonably acceptable to Lender of such Policies to Lender.

Section 6.2. Casualty.

If an Individual Property shall be damaged or destroyed, in whole or in part, by fire or other casualty (a “Casualty”), Borrower shall give prompt notice of such damage to Lender and shall promptly commence and diligently prosecute or cause Tenant of such Property to promptly commence and diligently prosecute the completion of the Restoration of the Individual Property as nearly as possible to the condition the Individual Property was in immediately prior to such Casualty, with such alterations as may be reasonably approved by Lender and otherwise in accordance with Section 6.4 hereof. Borrower shall pay all costs of such Restoration whether or not such costs are covered by insurance. Lender may, but shall not be obligated to make proof of loss if not made promptly by Borrower.

Section 6.3. Condemnation.

Borrower shall promptly give Lender notice of the actual or threatened commencement of any proceeding for the Condemnation of all or any part of any Individual Property and shall deliver to Lender copies of any and all papers served in connection with such proceedings. Lender may participate in any such proceedings, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through Condemnation or otherwise (including, but not limited to, any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Debt at the time and in the manner

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provided for its payment in the Note and in this Agreement and the Debt shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the Debt. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If any Individual Property or any portion thereof is taken by a condemning authority, Borrower shall, promptly commence and diligently prosecute the Restoration of the applicable Individual Property and otherwise comply with the provisions of Section 6.4 hereof. If any Individual Property is sold, through foreclosure or otherwise, prior to the receipt by Lender of the Award, Lender shall have the right, whether or not a deficiency judgment on the Note shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to pay the Debt.

Section 6.4. Restoration.

The following provisions shall apply in connection with the Restoration of any Individual Property:

(a) If the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence, or cause to be expeditiously commenced and satisfactory completed with due diligence, the Restoration in accordance with the terms of this Agreement.

(b) If the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration is equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.4. The term “Net Proceeds” shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1(a)(i), (iv), (vi), (vii), (viii) and (ix) as a result of such damage or destruction, after deduction of its reasonable costs and expenses (including, but not limited to, reasonable counsel fees), if any, in collecting same (“Insurance Proceeds”), or (ii) the net amount of the Award, after deduction of its reasonable costs and expenses (including, but not limited to, reasonable counsel fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may be.

(i) The Net Proceeds shall be made available to Borrower for Restoration provided that each of the following conditions is met:

(A) no Default or Event of Default shall have occurred and be continuing;

(B) (1) in the event the Net Proceeds are Insurance Proceeds, less than thirty percent (30%) of the total floor area of the Improvements on the Individual Property has been damaged, destroyed or rendered unusable as a result of such Casualty or (2)

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in the event the Net Proceeds are Condemnation Proceeds, the loss portion of the land affected thereby does not (I) materially adversely affect (a) the value of such Individual Property, (b) the use of the Individual Property by the Tenant, or (c) the payments due Borrower thereunder, in each case after taking into account the Condemnation Proceeds, or (II) result in the termination of a Lease or an abatement of rent under any Lease;

(C) Leases demising in the aggregate a percentage amount equal to or greater than ninety percent (90%) of the total rentable space in the Individual Property which has been demised under executed and delivered Leases in effect as of the date of the occurrence of such Casualty or Condemnation, whichever the case may be, shall remain in full force and effect during and after the completion of the Restoration, notwithstanding the occurrence of any such Casualty or Condemnation, whichever the case may be, and Borrower furnishes to Lender evidence reasonably satisfactory to Lender that all Tenants under Leases shall continue to operate their respective space at such Individual Property after the completion of the Restoration;

(D) Borrower shall commence the Restoration as soon as reasonably practicable (but in no event later than thirty (30) days after such Casualty or Condemnation, whichever the case may be, occurs) and shall diligently pursue the same to satisfactory completion in compliance with all Applicable Laws, including all applicable Environmental Laws;

(E) Lender shall be satisfied that any operating deficits, including all scheduled payments of principal and interest under the Note, which will be incurred with respect to the Individual Property as a result of the occurrence of any such Casualty or Condemnation, whichever the case may be, will be covered out of (1) the Net Proceeds, (2) the insurance coverage referred to in Section 6.1(a)(iii) hereof, if applicable, or (3) by other funds of Borrower;

(F) Lender shall be satisfied that the Restoration will be completed on or before the earliest to occur of (1) six (6) months prior to the Maturity Date, or (2) twelve (12) months after the occurrence of such Casualty or Condemnation, or (3) the earliest date required for such completion under the terms of any Leases which are required in accordance with the provisions of this Section 6.4(b) to remain in effect subsequent to the occurrence of such Casualty or Condemnation and the completion of the Restoration, or (4) such time as may be required under Applicable Law, in order to repair and restore the applicable Individual

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Property to the condition it was in immediately prior to such Casualty or Condemnation or (5) the expiration of the insurance coverage referred to in Section 6.1(a)(iii) hereof;

(G) the Individual Property and the use thereof after the Restoration will be in compliance with and permitted under all Applicable Laws;

(H) Lender shall be satisfied that the Debt Service Coverage Ratio for all the Properties after the completion of the Restoration shall be equal to or greater than 1.50 to 1.00;

(I) such Casualty or Condemnation, as applicable, does not result in the total loss of access to the Individual Property or the related Improvements;

(J) Borrower shall deliver, or cause to be delivered, to Lender a signed detailed budget approved in writing by Borrower’s architect or engineer stating the entire cost of completing the Restoration, which budget shall be reasonably acceptable to Lender;

(K) the Net Proceeds together with any Cash or Cash equivalent deposited by Borrower with Lender are sufficient in Lender’s discretion to cover the cost of the Restoration; and

(L) any Management Agreement in effect as of the date of the occurrence of such Casualty or Condemnation, whichever the case may be, shall (1) remain in full force and effect during the Restoration and shall not otherwise terminate as a result of the Casualty or Condemnation or the Restoration or (2) if terminated, shall have been replaced with a Replacement Management Agreement with a Qualified Manager, prior to the opening or reopening of the applicable Individual Property or any portion thereof for business with the public.

(ii) The Net Proceeds shall be held by Lender in an interest-bearing account and, until disbursed in accordance with the provisions of this Section 6.4(b), shall constitute additional security for the Debt and other obligations under the Loan Documents. The Net Proceeds shall be disbursed by Lender to, or as directed by, Borrower from time to time during the course of the Restoration, upon receipt of evidence reasonably satisfactory to Lender that (A) all materials installed and work and labor performed (except to the extent that they are to be paid for out of the requested disbursement) in connection with the Restoration have been paid for in full, and (B) there exist no notices of pendency, stop orders, mechanic’s or materialman’s liens or notices of intention to file same, or

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any other Liens or encumbrances of any nature whatsoever on the Individual Property which have not either been fully bonded to the satisfaction of Lender and discharged of record or in the alternative fully insured to the satisfaction of Lender by the title company issuing the Title Insurance Policy for the related Individual Property.

(iii) All plans and specifications required in connection with the Restoration shall be subject to prior review and acceptance in all respects by Lender and by an independent consulting engineer selected by Lender (the “Casualty Consultant”). With respect to all such plans and specifications submitted to Lender and/or the Casualty Consultant for approval, Lender shall have ten (10) days to respond after a written request from Borrower for such approval, which request shall be marked “PRIORITY” on its envelope and shall contain a bold-faced, conspicuous (in a font size that is not less than fourteen(14)) legend at the top of the first page thereof stating that “FIRST NOTICE: THIS IS A REQUEST FOR CONSENT UNDER THE LOAN BY GERMAN AMERICAN CAPITAL CORPORATION TO                     . FAILURE TO RESPOND TO THIS REQUEST WITHIN TEN (10) BUSINESS DAYS MAY RESULT IN THE REQUEST BEING DEEMED GRANTED”. In the event Lender fails to respond within such ten (10) day period, then Borrower shall give Lender written notice of such failure to respond which such notice shall be marked “PRIORITY” on its envelope and shall contain a bold-faced, conspicuous (in a font size that is not less than fourteen(14)) legend at the top of the first page thereof stating that “SECOND AND FINAL NOTICE: THIS IS A REQUEST FOR CONSENT UNDER THE LOAN BY GERMAN AMERICAN CAPITAL CORPORATION TO                     . IF YOU FAIL TO PROVIDE A SUBSTANTIVE RESPONSE (E.G., APPROVAL, DENIAL OR REQUEST FOR CLARIFICATION OR MORE INFORMATION) TO THIS REQUEST FOR APPROVAL IN WRITING WITHIN FIVE (5) BUSINESS DAYS, YOUR APPROVAL SHALL BE DEEMED GIVEN”. In the event Lender or the Casualty Consultant disapproves such plans and specifications, Lender shall provide Borrower with written notice setting forth in reasonable detail the reasons for which approval is not given. Lender shall have the use of the plans and specifications and all permits, licenses and approvals required or obtained in connection with the Restoration. The identity of the contractors, subcontractors and materialmen engaged in the Restoration as well as the contracts under which they have been engaged, shall be subject to prior review and acceptance by Lender and the Casualty Consultant. All costs and expenses incurred by Lender in connection with making the Net Proceeds available for the Restoration including reasonable counsel fees and disbursements and the Casualty Consultant’s fees, shall be paid by Borrower.

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(iv) In no event shall Lender be obligated to make disbursements of the Net Proceeds in excess of an amount equal to the costs actually incurred from time to time for work in place as part of the Restoration, as certified by the Casualty Consultant, minus the Casualty Retainage. The term “Casualty Retainage” shall mean an amount equal to ten percent (10%), of the costs actually incurred for work in place as part of the Restoration, as certified by the Casualty Consultant, until the Restoration has been completed. The Casualty Retainage shall in no event, and notwithstanding anything to the contrary set forth above in this Section 6.4(b), be less than the amount actually held back by Borrower from contractors, subcontractors and materialmen engaged in the Restoration. The Casualty Retainage shall not be released until the Casualty Consultant certifies to Lender that the Restoration has been completed in accordance with the provisions of this Section 6.4(b) and that all approvals necessary for the re-occupancy and use of the Individual Property have been obtained from all appropriate Governmental Authorities, and Lender receives evidence satisfactory to Lender that the costs of the Restoration have been paid in full or will be paid in full out of the Casualty Retainage; provided, however, that Lender will release the portion of the Casualty Retainage being held with respect to any contractor, subcontractor or materialman engaged in the Restoration as of the date upon which the Casualty Consultant certifies to Lender that the contractor, subcontractor or materialman has satisfactorily completed all work and has supplied all materials in accordance with the provisions of the contractor’s, subcontractor’s or materialman’s contract, the contractor, subcontractor or materialman delivers the lien waivers and evidence of payment in full of all sums due to the contractor, subcontractor or materialman as may be reasonably requested by Lender or by the title company issuing the Title Insurance Policy for the related Individual Property, and Lender receives an endorsement to such Title Insurance Policy insuring the continued priority of the Lien of the related Security Instrument and evidence of payment of any premium payable for such endorsement. If required by Lender, the release of any such portion of the Casualty Retainage shall be approved by the surety company, if any, which has issued a payment or performance bond with respect to the contractor, subcontractor or materialman.

(v) Lender shall not be obligated to make disbursements of the Net Proceeds more frequently than once every calendar month.

(vi) If at any time the Net Proceeds or the undisbursed balance thereof shall not, in the reasonable opinion of Lender in consultation with the Casualty Consultant, if any, be sufficient to pay in full the balance of the costs which are estimated by the Casualty Consultant to be incurred in connection with the completion of the Restoration, Borrower shall deposit the deficiency (the “Net Proceeds

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Deficiency”) with Lender before any further disbursement of the Net Proceeds shall be made. The Net Proceeds Deficiency deposited with Lender shall be held by Lender and shall be disbursed for costs actually incurred in connection with the Restoration on the same conditions applicable to the disbursement of the Net Proceeds, and until so disbursed pursuant to this Section 6.4(b) shall constitute additional security for the Debt and other obligations under the Loan Documents.

(vii) The excess, if any, of the Net Proceeds and the remaining balance, if any, of the Net Proceeds Deficiency deposited with Lender after the Casualty Consultant certifies to Lender that the Restoration has been completed in accordance with the provisions of this Section 6.4(b), and the receipt by Lender of evidence satisfactory to Lender that all costs incurred in connection with the Restoration have been paid in full, shall be remitted by Lender to Borrower, provided no Event of Default shall have occurred and shall be continuing under the Note, this Agreement or any of the other Loan Documents.

(c) All Net Proceeds not required (i) to be made available for the Restoration or (ii) to be returned to Borrower as excess Net Proceeds pursuant to Section 6.4(b)(vii) may be retained and applied by Lender toward the payment of the Debt whether or not then due and payable in such order, priority and proportions as Lender in its sole discretion shall deem proper, or, at the discretion of Lender, the same may be paid, either in whole or in part, to Borrower for such purposes as Lender shall approve, in its discretion. If Lender shall receive and retain Net Proceeds, the Lien of the Security Instruments shall be reduced only by the amount thereof received and retained by Lender and actually applied by Lender in reduction of the Debt.

(d) Notwithstanding anything to the contrary set forth in this Agreement, with respect to a Casualty or a Condemnation, for so long as the Loan or any portion thereof is included in a Securitization, if the loan to value ratio (such value to be determined by the Lender in its sole discretion based on a commercially reasonable valuation method using only the portion of the Property which constitutes acceptable real estate collateral under the Code for a REMIC Trust) immediately after such Condemnation or Casualty, as the case may be, and prior to any Restoration (but taking into account any planned Restoration of the Property as if such planned Restoration were completed) is more than one hundred and twenty-five percent (125%), the principal balance of the Loan must be paid down by a “qualified amount” as that term is defined in the IRS Revenue Procedure 2010-30, as the same may be amended, modified or supplemented from time to time (and no Yield Maintenance Premium, Liquidated Damages Amount or any other prepayment premium or fee shall be due in connection therewith), in order to meet the foregoing loan to value ratio unless Borrower delivers to Lender an opinion of counsel, acceptable to Lender in its reasonable discretion, that if such amount is not paid, such Securitization will not fail to meet applicable federal income tax qualification requirements or subject such Securitization to tax; provided, however, that if the immediately preceding provisions are no longer applicable under legal requirements relating to a REMIC Trust, Borrower shall comply with all legal requirements relating to a Casualty or Condemnation then in effect.

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(e) Notwithstanding anything to the contrary set forth in this Agreement, in the event Lender does not make any Net Proceeds available for Restoration, as the result of the failure to meet the conditions of subclause (b) above, Borrower may elect to seek the release of the Individual Property or Individual Properties affected by the related Casualty or Condemnation. If Borrower elects such release, Borrower must comply with Sections 2.5(b), (d), (e), (f), j), k), (l), (m) and (o) above, but Borrower shall have no obligation to comply with any other requirement of Section 2.5 above. In the event of such a release, no Yield Maintenance Premium shall be due with respect to the amount of Net Proceeds applied by Lender to the payment of the outstanding principal amount of the Loan to be prepaid and Yield Maintenance Premium shall be due on the amount equal to the difference between the amount of Net Proceeds and the applicable Release Price.

VII. RESERVE FUNDS

Section 7.1. Required Repair Funds.

7.1.1. Deposits to Required Repair Fund.

On the Closing Date, Borrower shall deposit with Lender the amount for each Individual Property set forth on Schedule IV hereto to perform or cause to be performed the Required Repairs for such Individual Property. Amounts so deposited with Lender shall be held by Lender in accordance with Section 7.7 hereof, and shall hereinafter be referred to as the “Required Repair Fund.” Borrower shall perform or cause to be performed the repairs at the Properties, as more particularly set forth on Schedule IV hereto (such repairs hereinafter referred to as “Required Repairs”) on or before the required deadline, if applicable, for each repair as set forth on Schedule IV. It shall be an Event of Default under this Agreement if (a) Borrower does not complete the Required Repairs at each Individual Property by the required deadline for each repair as set forth on Schedule IV, subject to “force majeure” and cooperation of the applicable Tenant, or (b) Borrower does not satisfy each condition contained in Section 7.1.2 hereof. Upon the occurrence of an Event of Default, Lender, at its option, may withdraw all Required Repair Funds from the Required Repair Account and Lender may apply such funds either to completion of the Required Repairs at one or more of the Properties or toward payment of the Debt in such order, proportion and priority as Lender may determine in its sole discretion. Lender’s right to withdraw and apply Required Repair Funds shall be in addition to all other rights and remedies provided to Lender under this Agreement and the other Loan Documents.

7.1.2. Release of Required Repair Funds.

Lender shall disburse to Borrower the Required Repair Funds from the Required Repair Account from time to time upon satisfaction by Borrower of each of the following conditions: (a) Borrower shall submit a written request for payment to Lender at least thirty (30) days prior to the date on which Borrower requests such payment be made and specifies the Required Repairs to be paid, (b) on the date such request is received by Lender and on the date such payment is to be made, no Event of Default shall exist and be continuing, (c) Lender shall have received an Officers’ Certificate (i) stating that all Required Repairs at the applicable Individual Property to be funded by the requested disbursement have been completed in good and workmanlike manner and, to Borrower’s knowledge, in accordance with all Legal Requirements

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and Environmental Laws, such certificate to be accompanied by a copy of any license, permit or other approval by any Governmental Authority required to commence and/or complete the Required Repairs, (ii) identifying each Person that supplied materials or labor in connection with the Required Repairs performed at such Individual Property with respect to the reimbursement to be funded by the requested disbursement, and (iii) stating that each such Person has been paid in full upon such disbursement, such Officers’ Certificate to be accompanied by lien waivers or other evidence of payment satisfactory to Lender, (d) at Lender’s option, a title search for such Individual Property indicating that such Individual Property is free from all Liens, claims and other encumbrances not previously approved by Lender, and (e) Lender shall have received such other evidence as Lender shall reasonably request that the Required Repairs at such Individual Property to be funded by the requested disbursement have been completed and are paid for upon such disbursement to Borrower. Lender shall not be required to make disbursements from the Required Repair Account with respect to any Individual Property unless such requested disbursement is in an amount equal to or greater than the Minimum Disbursement Amount (or a lesser amount if the total amount in the Required Repair Account is less than Minimum Disbursement Amount, in which case only one disbursement of the amount remaining in the account shall be made). Lender shall not be obligated to make disbursements from the Required Repair Account with respect to an Individual Property in excess of the amount allocated for such Individual Property as set forth on Schedule IV hereof. Upon the earlier of (1) Borrower’s completion of all Required Repairs with respect to an Individual Property to the satisfaction of Lender (provided Borrower has supplied Lender with evidence satisfactory to Lender of payment of all Required Repairs applicable to such Individual Property and, if requested by Lender, waivers of liens and/or a title search of the Property or an endorsement to the mortgagee’s title insurance policy), so long as no Event of Default is then continuing, or (2) release of such Individual Property in accordance with the provisions of Section 2.5 hereof, Lender shall disburse to Borrower all remaining Required Repair Funds allocated to such Individual Property as set forth on Schedule IV hereof. Upon the payment in full by Borrower of all sums evidenced by the Note and secured by the Security Instruments and release by Lender of the Liens of the Security Instruments, Lender shall disburse to Borrower all remaining Required Repair Funds, if any.

Section 7.2. Tax and Insurance Escrow Fund.

For each Individual Property where a Tenant pursuant to a Single Tenant Lease is not obligated to (and is not in default of its obligation to) pay Taxes and maintain Insurance for such Individual Property, Borrower shall deposit with Lender on each Payment Date (a) one-twelfth of the Taxes (the “Monthly Tax Deposit”) that Lender estimates will be payable during the next ensuing twelve (12) months, which current estimate is $7,282.03 per month, in order to accumulate with Lender sufficient funds to pay all such Taxes at least thirty (30) days prior to their respective due dates; and (b) at the option of Lender, if the liability or casualty Policy maintained by Borrower covering the Properties shall not constitute an approved blanket or umbrella Policy pursuant to Section 6.1(c) hereof, or Lender shall require Borrower to obtain a separate Policy pursuant to Section 6.1(c) hereof, one-twelfth of the Insurance Premiums (the “Monthly Insurance Premium Deposit”) that Lender estimates will be payable for the renewal of the coverage afforded by the Policies upon the expiration thereof in order to accumulate with Lender sufficient funds to pay all such Insurance Premiums at least thirty (30) days prior to the expiration of the Policies (all such amounts in (a) and (b) above, collectively the “Tax and

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Insurance Escrow Fund”). On the Closing Date, Borrower shall deposit with Lender an amount equal to $60,873.54 for deposit into the Tax and Insurance Escrow Fund for the payment of Taxes. The Tax and Insurance Escrow Fund and the payments of interest or principal or both, payable pursuant to the Note and this Agreement, shall be added together and shall be paid as an aggregate sum by Borrower to Lender. So long as no Event of Default is continuing, Lender will apply the Tax and Insurance Escrow Fund to payments of Taxes and Insurance Premiums required to be made by Borrower pursuant to Sections 5.1.2 and 6.1 hereof, respectively. In making any payment relating to the Tax and Insurance Escrow Fund, Lender may do so according to any bill, statement or estimate procured from the appropriate public office (with respect to Taxes) or insurer or agent (with respect to Insurance Premiums), without inquiry into the accuracy of such bill, statement or estimate or into the validity of any tax, assessment, sale, forfeiture, tax lien or title or claim thereof. If the amount of the Tax and Insurance Escrow Fund shall exceed the amounts due for Taxes and Insurance Premiums pursuant to Sections 5.1.2 and 6.1 hereof, respectively, then Lender shall, in its sole discretion, return any excess to Borrower or credit such excess against future payments to be made to the Tax and Insurance Escrow Fund. In allocating such excess, Lender may interact with the Person shown on the records of Lender to be the owner of the Properties. Any amount remaining in the Tax and Insurance Escrow Fund after the Debt has been paid in full shall be returned to Borrower. If at any time Lender reasonably determines that the Tax and Insurance Escrow Fund is not or will not be sufficient to pay Taxes and Insurance Premiums by the dates set forth in clauses (a) and (b) of the first sentence of this Section 7.2, Lender shall notify Borrower in writing of such determination and Borrower shall increase its monthly payments to Lender by the amount that Lender estimates is sufficient to make up the deficiency at least thirty (30) days prior to delinquency of the Taxes and/or thirty (30) days prior to expiration of the Policies, as the case may be. In the event an Individual Property is released from the Lien of its related Security Instrument in accordance with Section 2.5 hereof, (a) any amount held in the Tax Account and the Insurance Premium Account and allocated for such Individual Property shall be returned to Borrower and (b) the Monthly Tax Deposit shall be reduced by the monthly deposit allocated for such Individual Property.

Section 7.3. Replacements and Replacement Reserve Fund.

7.3.1. Deposits to Replacement Reserve Fund.

For each Individual Property where a Tenant pursuant to a Single Tenant Lease is not obligated to (and is not in default of its obligation to) undertake repairs and maintenance directly, Borrower shall pay to Lender on each Payment Date $11,961.99 (the “Replacement Reserve Monthly Deposit”) to be due for replacements and repairs required to be made to the Properties during the calendar year (collectively, the “Replacements”). Amounts so deposited shall hereinafter be referred to as the “Replacement Reserve Fund”. Lender may reassess its estimate of the amount necessary for the Replacement Reserve Fund from time to time, and, following such reassessment, may increase the monthly amounts required to be deposited into the Replacement Reserve Fund upon thirty (30) days notice to Borrower if Lender determines in its reasonable discretion that an increase is necessary to maintain the proper maintenance and operation of the Properties. In the event an Individual Property is released from the Lien of its related Security Instrument in accordance with Section 2.5 hereof, (a) any amount held in the Replacement Reserve Account and allocated for such Individual Property shall be returned to

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Borrower and (b) the Replacement Reserve Monthly Deposit shall be reduced by the monthly deposit allocated for such Individual Property as set forth on Schedule VII hereof.

7.3.2. Disbursements from Replacement Reserve Account.

(a) Lender shall make disbursements from the Replacement Reserve Account to reimburse Borrower only for the costs of the Replacements. Lender shall not be obligated to make disbursements from the Replacement Reserve Account to reimburse Borrower for the costs of routine maintenance to an Individual Property or for costs which are to be reimbursed from the Required Repair Fund. Lender shall not be obligated to make disbursements from the Replacement Reserve Account with respect to an Individual Property in excess of the amount allocated for such Individual Property as set forth on Schedule VII hereof.

(b) Lender shall, upon written request from Borrower and satisfaction of the requirements set forth in this Section 7.3.2, disburse to Borrower amounts from the Replacement Reserve Account necessary to reimburse Borrower for the actual approved costs and Replacements upon completion of such Replacements (or, upon partial completion in the case of Replacements made pursuant to Section 7.3.2(e)) as determined by Lender. In no event shall Lender be obligated to disburse funds from the Replacement Reserve Account if an Event of Default exists.

(c) Each request for disbursement from the Replacement Reserve Account shall be in a form specified or approved by Lender and shall specify (i) the specific Replacements for which the disbursement is requested, (ii) the quantity and price of each item purchased, if the Replacement includes the purchase or replacement of specific items, (iii) the price of all materials (grouped by type or category) used in any Replacement other than the purchase or replacement of specific items, and (iv) the cost of all contracted labor or other services applicable to each Replacement for which the disbursement is requested. With each request Borrower shall certify that, to Borrower’s knowledge, all Replacements have been made in accordance with all applicable Legal Requirements of any Governmental Authority having jurisdiction over the applicable Individual Property to which the Replacements are being provided. Each request for disbursement shall include copies of invoices for all items or materials purchased and all contracted labor or services provided and, unless Lender has agreed to issue joint checks as described below in connection with a particular Replacement, each request shall include evidence satisfactory to Lender of payment of all such amounts. Except as provided in Section 7.3.2(e), each request for disbursement from the Replacement Reserve Account shall be made only after completion of the Replacement for which disbursement is requested. Borrower shall provide Lender evidence of completion satisfactory to Lender in its reasonable judgment.

(d) Borrower shall pay all invoices in connection with the Replacements with respect to each request for disbursement prior to submitting such request for disbursement from the Replacement Reserve Account or, at the request of Borrower, Lender will issue joint checks, payable to Borrower and the contractor, supplier, materialman, mechanic, subcontractor or other party to whom payment is due in connection with a Replacement. In the case of payments made by joint check, Lender may require a waiver of lien from each Person receiving payment prior to Lender’s disbursement from the Replacement Reserve Account. In

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addition, as a condition to any disbursement, Lender may require Borrower to obtain lien waivers from each contractor, supplier, materialman, mechanic or subcontractor who receives payment in an amount equal to or greater than $25,000 for completion of its work or delivery of its materials. Any lien waiver delivered hereunder shall conform to the requirements of Applicable Law and shall cover all work performed and materials supplied (including equipment and fixtures) for the applicable Individual Property by that contractor, supplier, subcontractor, mechanic or materialman through the date covered by the current reimbursement request (or, in the event that payment to such contractor, supplier, subcontractor, mechanic or materialmen is to be made by a joint check, the release of lien shall be effective through the date covered by the previous release of funds request).

(e) If the contractor performing such Replacement requires periodic payments pursuant to terms of a written contract (and if such contract is for work the cost of which exceeds $25,000.00 and Lender has approved in writing in advance such contract), a request for reimbursement from the Replacement Reserve Account may be made after completion of a portion of the work under such contract, provided (A) such contract requires payment upon completion of such portion of the work, (B) the materials for which the request is made are on site at the applicable Individual Property and are properly secured or have been installed in such Individual Property, (C) all other conditions in this Section 7.3 for disbursement have been satisfied, (D) funds remaining in the Replacement Reserve Account are, in Lender’s judgment, sufficient to complete such Replacement and other Replacements when required, and (E) if required by Lender, each contractor or subcontractor receiving payments under such contract shall provide a waiver of lien with respect to amounts which have been paid to that contractor or subcontractor.

(f) Borrower shall not make a request for disbursement from the Replacement Reserve Account more frequently than once in any calendar month and (except in connection with the final disbursement) the total cost of all Replacements in any request shall not be less than Minimum Disbursement Amount.

7.3.3. Performance of Replacements.

(a) Borrower shall make Replacements when required in order to keep each Individual Property in condition and repair consistent with other similar properties in the same market segment in the metropolitan area in which the respective Individual Property is located, and to keep each Individual Property or any portion thereof from deteriorating. Borrower shall complete all Replacements in a good and workmanlike manner as soon as practicable following the commencement of making each such Replacement.

(b) Lender reserves the right, at its option, to approve all contracts or work orders with materialmen, mechanics, suppliers, subcontractors, contractors or other parties providing labor or materials in connection with the Replacements with respect to each Individual Property. Upon Lender’s request, Borrower shall assign any contract or subcontract to Lender.

(c) In the event Lender determines in its reasonable discretion that any Replacement is not being performed in a workmanlike or timely manner or that any Replacement has not been completed in a workmanlike or timely manner, Lender shall have the option to

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withhold disbursement for such unsatisfactory Replacement and to proceed under existing contracts or to contract with third parties to complete such Replacement and to apply the Replacement Reserve Fund toward the labor and materials necessary to complete such Replacement, without providing any prior notice to Borrower and to exercise any and all other remedies available to Lender upon an Event of Default hereunder.

(d) In order to facilitate Lender’s completion or making of the Replacements pursuant to Section 7.3.3(c) above, Borrower grants Lender the right to enter onto any Individual Property and perform any and all work and labor necessary to complete or make the Replacements and/or employ watchmen to protect such Individual Property from damage. All sums so expended by Lender, to the extent not from the Replacement Reserve Fund, shall be deemed to have been advanced under the Loan to Borrower and secured by the Security Instruments. For this purpose, Borrower constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake the Replacements in the name of Borrower. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked. Borrower empowers said attorney-in-fact as follows: (i) to use any funds in the Replacement Reserve Account for the purpose of making or completing the Replacements; (ii) to make such additions, changes and corrections to the Replacements as shall be necessary or desirable to complete the Replacements; (iii) to employ such contractors, subcontractors, agents, architects and inspectors as shall be required for such purposes; (iv) to pay, settle or compromise all existing bills and claims which are or may become a Lien against any Individual Property, or as may be necessary or desirable for the completion of the Replacements, or for clearance of title; (v) to execute all applications and certificates in the name of Borrower which may be required by any of the contract documents; (vi) to prosecute and defend all actions or proceedings in connection with any Individual Property or the rehabilitation and repair of any Individual Property; and (vii) to do any and every act which Borrower might do in its own behalf to fulfill the terms of this Agreement.

(e) Nothing in this Section 7.3.3 shall: (i) make Lender responsible for making or completing the Replacements; (ii) require Lender to expend funds in addition to the Replacement Reserve Fund to make or complete any Replacement; (iii) obligate Lender to proceed with the Replacements; or (iv) obligate Lender to demand from Borrower additional sums to make or complete any Replacement.

(f) Borrower shall permit Lender and Lender’s agents and representatives (including Lender’s engineer, architect, or inspector) or third parties making Replacements pursuant to this Section 7.3.3 to enter onto each Individual Property during normal business hours (subject to the rights of Tenants under their Leases) to inspect the progress of any Replacements and all materials being used in connection therewith, to examine all plans and shop drawings relating to such Replacements which are or may be kept at each Individual Property, and to complete any Replacements made pursuant to this Section 7.3.3. Borrower shall cause all contractors and subcontractors to cooperate with Lender or Lender’s representatives or such other persons described above in connection with inspections described in this Section 7.3.3(f) or the completion of Replacements pursuant to this Section 7.3.3.

(g) Lender may require an inspection of an Individual Property at Borrower’s expense prior to making a monthly disbursement from the Replacement Reserve

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Account with respect to each Individual Property in order to verify completion of the Replacements for which reimbursement is sought. Lender may require that such inspection be conducted by an appropriate independent qualified professional selected by Lender and/or may require a copy of a certificate of completion by an independent qualified professional acceptable to Lender prior to the disbursement of any amounts from the Replacement Reserve Account. Borrower shall pay the expense of the inspection as required hereunder, whether such inspection is conducted by Lender or by an independent qualified professional.

(h) The Replacements and all materials, equipment, fixtures, or any other item comprising a part of any Replacement shall be constructed, installed or completed, as applicable, free and clear of all mechanic’s, materialmen’s or other Liens.

(i) Before each disbursement from the Replacement Reserve Account with respect to each Individual Property, Lender may require Borrower to provide Lender with a search of title of the applicable Individual Property effective to the date of the disbursement, which search shows that no mechanic’s or materialmen’s Liens or other Liens of any nature have been placed against the applicable Individual Property since the date of recordation of the related Security Instrument and that title to such Individual Property is free and clear of all Liens (other than the Lien of the related Security Instrument and other Permitted Encumbrances).

(j) All Replacements shall comply with all applicable Legal Requirements of all Governmental Authorities having jurisdiction over the applicable Individual Property and applicable insurance requirements including applicable building codes, special use permits, environmental regulations, and requirements of insurance underwriters.

(k) In addition to any insurance required under the Loan Documents, Borrower shall provide or cause to be provided workmen’s compensation insurance, builder’s risk, and public liability insurance and other insurance to the extent required under Applicable Law in connection with a particular Replacement. All such policies shall be in form and amount reasonably satisfactory to Lender. All such policies which can be endorsed with standard mortgagee clauses making loss payable to Lender or its assigns shall be so endorsed. Certified copies of such policies shall be delivered to Lender.

7.3.4. Failure to Make Replacements.

(a) It shall be an Event of Default under this Agreement if Borrower fails to comply with any provision of this Section 7.3 and such failure is not cured within thirty (30) days after written notice from Lender. Upon the occurrence of an Event of Default, Lender may use the Replacement Reserve Fund (or any portion thereof) for any purpose, including but not limited to completion of the Replacements as provided in Sections 7.3.3(c) and 7.3.3(d), or for any other repair or replacement to any Individual Property or toward payment of the Debt in such order, proportion and priority as Lender may determine in its sole discretion. Lender’s right to withdraw and apply the Replacement Reserve Funds shall be in addition to all other rights and remedies provided to Lender under this Agreement and the other Loan Documents.

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(b) Nothing in this Agreement shall obligate Lender to apply all or any portion of the Replacement Reserve Fund on account of an Event of Default to payment of the Debt or in any specific order or priority.

7.3.5. Balance in the Replacement Reserve Account.

The insufficiency of any balance in the Replacement Reserve Account shall not relieve Borrower from its obligation to fulfill all preservation and maintenance covenants in the Loan Documents.

Section 7.4. Rollover Reserve Fund.

7.4.1. Deposits to Rollover Reserve Fund.

Borrower shall pay to Lender on each Payment Date the sum of $55,192.83 (the “Rollover Reserve Deposit”), which amounts, together with all Lease Termination Payments shall be deposited in the Rollover Reserve Account with and held by Lender for tenant improvement and leasing commission obligations incurred following the Closing Date. Amounts so deposited shall hereinafter be referred to as the “Rollover Reserve Fund”.

7.4.2. Letter of Credit.

(a) In lieu of Borrower making deposits into the Rollover Reserve Account pursuant to Section 7.4.1 hereof, Borrower may from time to time deliver to Lender a Letter of Credit in accordance with the provisions of this Section 7.4.2. Any Letter of Credit from time to time delivered in lieu of Borrower making deposits into the Rollover Reserve Account shall be in an amount not less than the amount of deposits required to be made by Borrower to such Account for the twelve (12) calendar month period following the date such Letter of Credit is delivered to Lender. If during the term of any Letter of Credit delivered by Borrower to this Section 7.4.2, the amount of deposits required to be made by Borrower to the applicable Account for such twelve (12) calendar month period shall increase to an amount exceeding the amount of such Letter of Credit, Borrower shall deliver to Lender an amendment to such Letter of Credit or a replacement Letter of Credit which shall be in an amount not less than the aggregate amount of such deposits required to be made during such twelve (12) calendar month period.

(b) Borrower shall give Lender no less than ten (10) days written notice of Borrower’s election to deliver a Letter of Credit together with a draft of the proposed Letter of Credit and Borrower shall pay to Lender all of Lender’s reasonable out-of-pocket costs and expenses in connection therewith. No party other than Lender shall be entitled to draw on any such Letter of Credit. Upon fifteen (15) days notice to Lender, Borrower may replace a Letter of Credit with a cash deposit to the Rollover Reserve Account if such Letter of Credit relates to the Rollover Reserve Account. Prior to the return of a Letter of Credit by Lender to Borrower, Borrower shall deposit an amount equal to the amount that would be on deposit in the Rollover Reserve Account, if such Letter of Credit had not been delivered.

(c) Each Letter of Credit delivered hereunder shall be additional security for the payment of the Debt. Upon the occurrence and during the continuance of an

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Event of Default, Lender shall have the right, at its option, to draw on any Letter of Credit and to apply all or any part thereof to the payment of the items for which such Letter of Credit was established or to apply each such Letter of Credit to payment of the Debt in such order, proportion or priority as Lender may determine. Any such application to the Debt shall be subject to the terms and conditions hereof relating to application of sums to the Debt. Lender shall have the additional rights to draw in full any Letter of Credit: (i) if Lender has received a notice from the issuing bank that the Letter of Credit will not be renewed and a substitute Letter of Credit is not provided at least twenty (20) days prior to the date on which the outstanding Letter of Credit is scheduled to expire; (ii) if Lender has not received a notice from the issuing bank that it has renewed the Letter of Credit at least twenty (20) days prior to the date on which such Letter of Credit is scheduled to expire and a substitute Letter of Credit is not provided at least twenty (20) days prior to the date on which the outstanding Letter of Credit is scheduled to expire; (iii) upon receipt of notice from the issuing bank that the Letter of Credit will be terminated (except if the termination of such Letter of Credit is permitted pursuant to the terms and conditions hereof or a substitute Letter of Credit is provided by no later than twenty (20) days prior to such termination); (iv) if Lender has received notice that the bank issuing the Letter of Credit shall cease to be an Approved Bank and Borrower has not substituted a Letter of Credit from an Approved Bank within fifteen (15) days after notice; and/or (v) if the bank issuing the Letter of Credit shall fail to (A) issue a replacement Letter of Credit in the event the original Letter of Credit has been lost, mutilated, stolen and/or destroyed or (B) consent to the transfer of the Letter of Credit to any Person designated by Lender. If Lender draws upon a Letter of Credit pursuant to the terms and conditions of this Agreement, provided no Event of Default exists, Lender shall apply all or any part thereof for the purposes for which such Letter of Credit was established and, provided, further, that in the event Lender draws on any Letter of Credit upon the happening of an event specified in clauses (i), (ii), (iii) or (iv) above (but specifically excluding any draw related to the occurrence of an Event of Default), Lender shall return to Borrower the funds so drawn in the event Borrower provides Lender with a replacement Letter of Credit issued by an Approved Bank within thirty (30) days following such draw. Notwithstanding anything to the contrary contained in the above, Lender is not obligated to draw any Letter of Credit upon the happening of an event specified in (i), (ii), (iii), (iv) or (v) above and shall not be liable for any losses sustained by Borrower due to the insolvency of the bank issuing the Letter of Credit if Lender has not drawn the Letter of Credit.

7.4.3. Withdrawal of Rollover Reserve Funds.

Lender shall make disbursements from the Rollover Reserve Fund for tenant improvement and leasing commission obligations incurred by Borrower. All such expenses shall be approved by Lender in its sole discretion. Provided no Event of Default is then continuing, Lender shall make disbursements as requested by Borrower on a quarterly basis in increments of no less than the Minimum Disbursement Amount upon delivery by Borrower of Lender’s standard form of draw request accompanied by copies of paid invoices for the amounts requested and, if required by Lender, lien waivers and releases from all parties furnishing materials and/or services in connection with the requested payment. Lender may require an inspection of the applicable Individual Property at Borrower’s expense prior to making a quarterly disbursement in order to verify completion of improvements for which reimbursement is sought.

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Section 7.5. Fed Ex (Walker, MI) Lease Reserve Fund.

On the Closing Date, Borrower shall deposit with Lender an amount equal to $33,075.00. Such amount shall be held by Lender in accordance with Section 7.7 hereof and, provided no Event of Default is continuing, shall be released to Borrower upon delivery of evidence reasonably satisfactory to Lender confirming that the tenant allowance in the amount of $33,075.00 has been paid by Borrower to Tenant under that certain Lease dated May 24, 2001, by and between Cole FE Walker MI, LLC, successor in interest to Scannell Properties #24, L.L.C., as landlord and FedEx Ground Package System, Inc., as tenant, as amended by the First Amendment to Lease dated March 7, 2002, Second Amendment to Lease dated November 14, 2006, Third Amendment to Lease dated July 23, 2007 and Fourth Amendment to Lease dated March 23, 2012, covering the premises known as FedEx in Walker, Michigan.

Section 7.6. Excess Cash Flow Reserve Fund.

7.6.1. Deposits to Excess Cash Reserve Fund.

All amounts deposited pursuant to Section 3.7(b)(ix) hereof shall be hereinafter referred to as the “Excess Cash Reserve Fund”.

7.6.2. Withdrawal of Excess Cash Flow Reserve Funds.

The Excess Cash Reserve Fund may be applied by Lender to any other Reserve Fund, as determined by Lender, or held by Lender in the Excess Cash Reserve Account as additional collateral for the Loan; provided, however, that if no Event of Default exists and is continuing, on the Payment Date occurring immediately after the cessation of a Triggering Event, Lender shall disburse the Excess Cash Reserve Funds then on deposit in the Excess Cash Reserve Account to the Borrower to the account set forth in writing by Borrower, provided that no Triggering Event is then continuing.

Section 7.7. Reserve Funds, Generally.

(a) Borrower hereby grants to Lender a first-priority perfected security interest in each of the Reserve Funds and the Accounts and in any and all monies now or hereafter deposited in each Reserve Fund and Account as additional security for payment of the Debt. Until expended or applied in accordance herewith, the Reserve Funds and the Accounts shall constitute additional security for the Debt.

(b) Notwithstanding anything to the contrary contained herein or in any other Loan Document, upon the occurrence and during the continuance of an Event of Default, Lender may, in addition to any and all other rights and remedies available to Lender, apply any sums then present in any or all of the Reserve Funds to the payment of the Debt which is then currently due and payable under the Loan Documents in any order in its sole discretion.

(c) The Reserve Funds shall not constitute trust funds and may be commingled with other monies held by Lender.

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(d) The Reserve Funds shall be held in interest bearing accounts and all earnings or interest on a Reserve Fund shall be added to and become a part of such Reserve Fund and shall be disbursed in the same manner as other monies deposited in such Reserve Fund, except that earnings or interest on the Tax and Insurance Escrow Fund shall not be added to or become a part thereof and shall be the sole property of and shall be paid to Lender.

(e) Borrower shall not, without obtaining the prior written consent of Lender, further pledge, assign or grant any security interest in any Reserve Fund or Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statements, except those naming Lender as the secured party, to be filed with respect thereto.

(f) Borrower shall indemnify Lender and hold Lender harmless from and against any and all Losses arising from or in any way connected with the Reserve Funds or the Accounts or the performance of the obligations for which the Reserve Funds or the Accounts were established, except to the extent arising from the gross negligence or willful misconduct of Lender, its agents or employees. Borrower shall assign to Lender all rights and claims Borrower may have against all Persons supplying labor, materials or other services which are to be paid from or secured by the Reserve Funds or the Accounts; provided, however, that Lender may not pursue any such right or claim unless an Event of Default has occurred and is then continuing.

VIII. DEFAULTS

Section 8.1. Event of Default.

(a) Each of the following events shall constitute an event of default hereunder (an “Event of Default”):

(i) if (A) any Monthly Debt Service Payment or the payment due on the Maturity Date is not paid when due under the Loan Documents or (B) any other portion of the Debt is not paid when due beyond any applicable grace period and such non-payment continues for five (5) days following written notice to Borrower that the same is due and payable;

(ii) if any of the (X) Taxes or Other Charges (other than those payable by a Tenant under a Single Tenant Lease pursuant to the terms thereof) are not paid on or before the date when the same are due and payable and such Taxes or Other Charges are not being properly contested by Borrower as permitted hereunder or deposited in a sufficient amount with Lender in accordance with the terms of this Agreement; provided, however, no more than three (3) times during the life of the Loan, such event shall not constitute an Event of Default hereunder so long as (A) Borrower pays such Taxes or Other Charges, together with any applicable late fees or charges, within thirty (30) days of the date when due, and (B) no Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost, or (Y)

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Taxes or Other Charges are not paid when due and payable (and such Taxes or Other Charges are not being contested in accordance with the terms of the applicable Single Tenant Lease and in accordance with the terms of this Agreement) if such obligations are the Tenant’s obligations under the applicable Single Tenant Lease, and Borrower shall fail to pay such Taxes or Other Charges, including any penalties due thereon within the earlier of (i) forty-five (45) days after delinquency and (ii) ten (10) Business Days after Borrower becoming aware of such delinquency with respect to Taxes, and within ten (10) Business Days of Borrower becoming aware of such delinquency with respect to Other Charges;

(iii) if the Policies required to be maintained by Borrower hereunder are not kept in full force and effect or if evidence of the Policies are not delivered to Lender on request in accordance with Section 6.1;

(iv) if Borrower transfers or encumbers any portion of any of the Properties (except to the extent such transfer or encumbrance would otherwise constitute a Permitted Encumbrance pursuant to clause (d) of the definition thereof) or any direct or indirect ownership interest in a Restricted Party in violation of the provisions of Section 5.2.10 or Section 5.2.11 hereof or Article 7 of the Security Instruments;

(v) if any representation or warranty made by Borrower, Principal, if any, or Guarantor herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document furnished to Lender by or on behalf of Borrower shall have been false or misleading in any material adverse respect as of the date the representation or warranty was made;

(vi) if Borrower, Principal, if any, Guarantor or any other guarantor or indemnitor under any guaranty or indemnity, respectively, issued in connection with the Loan shall make an assignment for the benefit of creditors;

(vii) if Borrower violates or does not comply with the provisions of Section 5.2.2, or if a receiver, liquidator or trustee shall be appointed for Borrower, Principal, if any, Guarantor or any other guarantor or indemnitor under any guarantee or indemnity, respectively issued in connection with the Loan or if Borrower, Principal, if any, Guarantor or such other guarantor or indemnitor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to the Bankruptcy Code, or any similar federal or State law, shall be filed by or against, consented to, or acquiesced in by, Borrower, Principal, Guarantor or such other guarantor or indemnitor, or if any proceeding for the dissolution or liquidation of Borrower, Principal, if any, Guarantor or such other guarantor or indemnitor shall be instituted;

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provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by Borrower, Principal, if any, Guarantor or such other guarantor or indemnitor, upon the same not being discharged, stayed or dismissed within sixty (60) days;

(viii) if Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;

(ix) if Borrower violates or does not comply with any of the provisions of Sections 5.1.17(b)(vi), 5.1.17(b)(vii), and 5.1.17(f), or if Borrower terminates a Material Lease without the prior written consent of Lender;

(x) if a default by Borrower has occurred and continues beyond any applicable cure period under any Management Agreement (or any Replacement Management Agreement) if such default permits the Manager thereunder to terminate or cancel such Management Agreement (or any Replacement Management Agreement) in accordance with the terms of this Agreement;

(xi) if Borrower or Principal, if any, violates or otherwise does not comply with any of the provisions of Section 4.1.36 hereof; provided, however, that any such breach shall not constitute an Event of Default if such breach is inadvertent, immaterial and non-recurring, and Borrower reasonably promptly delivers to Lender an Insolvency Opinion or a modification of the existing Insolvency Opinion within twenty (20) days of the incurrence of such action, as applicable, to the extent that such breach shall not materially negate or nullify the opinions rendered in the Insolvency Opinion delivered on the date hereof;

(xii) subject to Borrower’s right to contest pursuant to Section 5.1.2, if any Individual Property becomes subject to any mechanic’s, materialman’s or other Lien other than a Lien that is a Permitted Encumbrance and such Lien shall remain undischarged of record (by payment, bonding or otherwise) for a period of thirty (30) days;

(xiii) subject to Borrower’s right to contest pursuant to Section 5.1.2, if any federal tax lien or state or local income tax lien is filed against Borrower, Principal, if any, Guarantor or any Individual Property and same is not discharged of record within thirty (30) days after same is filed;

(xiv) if (A) after ten (10) Business Days written notice from Lender, Borrower has not provided Lender with the written certification and evidence referred to in Section 5.2.8 hereof, (B) Borrower is a Plan or a Governmental Plan or its assets constitute Plan

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Assets; or (C) Borrower consummates a Prohibited Transaction or Prohibited Governmental Transaction;

(xv) if Borrower shall fail to deliver to Lender, within twenty (20) days after written request by Lender, any estoppel certificates required pursuant to the terms of Section 5.1.13(a) and (c) hereof;

(xvi) if any default occurs under any guaranty or indemnity executed in connection herewith (including the Guaranty and the Environmental Indemnity) and such default continues after the expiration of applicable grace periods, if any;

(xvii) if Borrower shall be in default beyond applicable notice and grace periods under any other mortgage, deed of trust, deed to secure debt or other security agreement covering any part of any Individual Property whether it be superior or junior in lien to the related Security Instrument;

(xviii) with respect to any term, covenant or provision set forth herein which specifically contains a written notice requirement or grace period, if Borrower shall be in default under such term, covenant or condition after Borrower’s receipt such required written notice and the expiration of such grace period contained therein;

(xix) if any of the assumptions relating to separateness contained in the Insolvency Opinion, or in any other “non-consolidation” opinion delivered to Lender in connection with the Loan, or in any other “non-consolidation” delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;

(xx) if there shall be a default under the Security Instruments or any of the other Loan Documents beyond any applicable notice and cure periods contained in such documents, whether as to Borrower or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt; or

(xxi) if Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xxi) above, for ten (10) days after written notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money (including any Default relating to an obligation of a Tenant under a Lease which can be cured with the payment of a sum of money), or for thirty (30) days after written notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be

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cured within such thirty (30) day period and provided further that Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed ninety (90) days (subject to further extension by Lender, in Lender’s sole discretion); provided, however, that with respect to any non-monetary Default caused by a Tenant’s failure to perform its obligations under a Single Tenant Lease, such cure period shall be extended for so long as Borrower is using commercially reasonable efforts to enforce its rights and remedies under such Single Tenant Lease, provided such Default does not impair the value, use or operation of the related Individual Property and has no material effect on Borrower’s ability to perform its obligations under this Agreement.

(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any Individual Property, including declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents against Borrower and any or all of the Properties, including all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.

Section 8.2. Remedies.

(a) Upon the occurrence of an Event of Default and during the continuance thereof, all or any one or more of the rights, powers, privileges and other remedies available to Lender against Borrower under this Agreement or any of the other Loan Documents executed and delivered by, or applicable to, Borrower or at law or in equity may be exercised by Lender at any time and from time to time, whether or not all or any of the Debt shall be declared due and payable, and whether or not Lender shall have commenced any foreclosure proceeding or other action for the enforcement of its rights and remedies under any of the Loan Documents with respect to all or any part of any Individual Property or any other Collateral. Any such actions taken by Lender shall be cumulative and concurrent and may be pursued independently, singly, successively, together or otherwise, at such time and in such order as Lender may determine in its sole discretion, to the fullest extent permitted by Applicable Law, without impairing or otherwise affecting the other rights and remedies of Lender permitted by Applicable Law, equity or contract or as set forth herein or in the other Loan Documents. Without limiting the generality of the foregoing, Borrower agrees that if an Event of Default is continuing (i) Lender is not subject to any “one action” or “election of remedies” law or rule, and (ii) all Liens

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and other rights, remedies or privileges provided to Lender shall remain in full force and effect until Lender has exhausted all of its remedies against the Properties and the other Collateral and each Security Instrument has been foreclosed, sold and/or otherwise realized upon in satisfaction of the Debt or the Debt has been paid in full.

(b) With respect to Borrower and the Properties, nothing contained herein or in any other Loan Document shall be construed as requiring Lender to resort to any Individual Property or Collateral for the satisfaction of any of the Debt in preference or priority to any other Individual Property or Collateral, and Lender may seek satisfaction out of all of the Properties or any other Collateral or any part thereof, in its absolute discretion in respect of the Debt. In addition, Lender shall have the right from time to time to partially foreclose the Security Instruments in any manner and for any amounts secured by the Security Instruments then due and payable as determined by Lender in its sole discretion including the following circumstances: (i) in the event Borrower defaults beyond any applicable grace period in the payment of one or more scheduled payments of principal and interest, Lender may foreclose one or more of the Security Instruments to recover such delinquent payments, or (ii) in the event Lender elects to accelerate less than the entire outstanding principal balance of the Loan, Lender may foreclose one or more of the Security Instruments to recover so much of the principal balance of the Loan as Lender may accelerate and such other sums secured by one or more of the Security Instruments as Lender may elect. Notwithstanding one or more partial foreclosures, the Properties shall remain subject to the Security Instruments to secure payment of sums secured by the Security Instruments and not previously recovered.

(c) Lender shall have the right, from time to time, to sever the Note and the other Loan Documents into one or more separate notes, mortgages and other security documents (the “Severed Loan Documents”) in such denominations as Lender shall determine in its sole discretion for purposes of evidencing and enforcing its rights and remedies provided hereunder. Borrower shall execute and deliver to Lender from time to time, promptly after the request of Lender, a severance agreement and such other documents as Lender shall request in order to effect the severance described in the preceding sentence, all in form and substance reasonably satisfactory to Lender. Borrower hereby absolutely and irrevocably appoints Lender as its true and lawful attorney, coupled with an interest, in its name and stead to make and execute all documents necessary or desirable to effect the aforesaid severance, Borrower ratifying all that its said attorney shall do by virtue thereof; provided, however, Lender shall not make or execute any such documents under such power until three (3) days after written notice has been given to Borrower by Lender of Lender’s intent to exercise its rights under such power. The Severed Loan Documents shall not contain any representations, warranties or covenants not contained in the Loan Documents and any such representations and warranties contained in the Severed Loan Documents will be given by Borrower only as of the Closing Date.

Section 8.3. Remedies Cumulative; Waivers.

The rights, powers and remedies of Lender under this Agreement shall be cumulative and not exclusive of any other right, power or remedy which Lender may have against Borrower pursuant to this Agreement or the other Loan Documents, or existing at law or in equity or otherwise. Lender’s rights, powers and remedies may be pursued singularly, concurrently or otherwise, at such time and in such order as Lender may determine in Lender’s sole discretion.

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No delay or omission to exercise any remedy, right or power accruing upon an Event of Default shall impair any such remedy, right or power or shall be construed as a waiver thereof, but any such remedy, right or power may be exercised from time to time and as often as may be deemed expedient. A waiver of one or more Defaults or Events of Default with respect to Borrower shall not be construed to be a waiver of any subsequent Default or Event of Default by Borrower or to impair any remedy, right or power consequent thereon.

IX. SPECIAL PROVISIONS

Section 9.1. Sale of Notes and Securitization.

(a) Lender shall have the right, at any time, (i) to sell or otherwise transfer the Loan (or any portion thereof and/or interest therein) and any or all servicing rights with respect thereto, (ii) to grant participation interests in the Loan (or any portion thereof and/or interest therein) or (iii) to securitize the Loan (or any portion thereof and/or interest therein) in a single asset securitization or pooled asset securitization. Each of the transactions referred to in clauses (i), (ii) and (iii) above shall each hereinafter be referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization.” Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities”.

(b) In each case, if requested by Lender in writing (electronic mail addressed to Asset Manager at portfolioservicing@spiritrealty.com, together with duplicate written notice provided in accordance with Section 10.6 hereof) setting forth reasonable detail of such request, Borrower and Guarantor shall use commercially reasonable efforts to assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies in connection with any Secondary Market Transaction, including to:

(i) provide such financial and other information with respect to the Properties, Borrower, Guarantor and Manager, if any, not previously delivered to Lender and otherwise reasonably requested, (ii) provide budgets relating to the Properties not previously delivered to Lender and otherwise reasonably requested, and (iii) perform or permit or cause to be performed or permitted site inspection, appraisals, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’s), engineering reports and other due diligence investigations of the Properties, as may be reasonably requested by the holder of the Note or the Rating Agencies or as may be necessary or appropriate in connection with the Securitization (in each case of the foregoing (i), (ii) and (iii), to the extent relating to, based upon or including information regarding the Properties, Borrower, Guarantor, Manager, if any, and/or the Loan, the “Provided Information”), together, if customary, with appropriate verification and/or consents of the Provided Information through opinions of counsel of independent attorneys acceptable to Lender and the Rating Agencies;

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(ii) if reasonably requested by Lender, participate in any meetings with Lender or any third parties related to the Secondary Market Transaction (such as banks, investors and Rating Agencies);

(iii) if required by the Rating Agencies, deliver (i) a revised Insolvency Opinion, (ii) revised opinions of counsel as to due execution and enforceability with respect to the Properties, Borrower, Guarantor, Principal, if any, and their respective Affiliates and the Loan Documents, and (iii) revised organizational documents for Borrower and Principal, if any (including such revisions as are necessary to comply with the provisions of Section 4.1.36 hereof), which counsel, opinions and organizational documents shall be reasonably satisfactory to Lender and the Rating Agencies;

(iv) if required by the Rating Agencies, deliver such additional tenant estoppel letters, subordination agreements or other agreements from parties to agreements that affect the Properties, which estoppel letters, subordination agreements or other agreements shall be reasonably satisfactory to Lender and the Rating Agencies, which shall be deemed satisfactory if any such third party complies with its contractual obligations to provide such agreements or estoppel in accordance with the applicable agreement;

(v) execute such amendments to the Loan Documents as may be reasonably requested by the holder of the Note or the Rating Agencies or otherwise to effect the applicable Secondary Market Transaction; provided, however, that Borrower or Guarantor shall not be required to modify or amend any Loan Document if such modification or amendment would, except for modifications and amendments required to be made pursuant to subsection (vi) below, (i) change the interest rate, the stated maturity or the amortization of principal set forth in the Note, or (ii) otherwise modify or amend any material term or obligation set forth in the Loan Documents;

(vi) if Lender elects, in its sole discretion, prior to or upon a Secondary Market Transaction, to split the Loan into two or more parts (up to seven separate Mortgage Loans), or the Note into multiple component notes or tranches which may have different interest rates, amortization payments, principal amounts, payment priorities and maturities (provided, however, that the total of the Loan amount of such component notes or tranches immediately after such split shall equal the Loan amount outstanding immediately prior to such split, and the weighted average interest rate of all such component notes or tranches immediately after such split shall equal the weighted average interest rate immediately prior to such split, provided any principal payment shall not result in “rate creep” except for payments of principal made after the occurrence of an Event of Default, or in connection with the application of

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any Net Proceeds after a Casualty or Condemnation), Borrower and Guarantor agree to cooperate with Lender in connection with the foregoing and to execute any reasonably required modifications and amendments to the Note, this Agreement and the Loan Documents and to provide opinions necessary to effectuate the same. The Note or its components may be assigned different interest rates, so long as the initial weighted average of such interest rates does not exceed the Applicable Interest Rate;

(vii) make such representations and warranties as of the closing date of the Secondary Market Transaction with respect to the Properties, Borrower, Guarantor, and the Loan Documents as are customarily provided in such transactions and as may be reasonably requested by the holder of the Note or the Rating Agencies and consistent with the facts covered by such representations and warranties as they exist on the date thereof, including the representations and warranties made in the Loan Documents; and

(viii) after receipt of written notice from Lender that the foregoing is required to comply with applicable Legal Requirements, supply to Lender such documentation, financial statements and reports in form and substance required for Lender to comply with Regulation AB of the federal securities law, if applicable.

(c) All reasonable third party costs and expenses incurred by Lender or Borrower or Guarantor in connection with Borrower’s or Guarantor’s complying with requests made under this Section 9.1 shall be paid by Borrower and Guarantor.

Section 9.2. Securitization Indemnification.

(a) Borrower and Guarantor understand that certain of the Provided Information may be included in disclosure documents in connection with the Securitization, including a prospectus supplement, private placement memorandum, offering circular or other offering document (each a “Disclosure Document”) and may also be included in filings (an “Exchange Act Filing”) with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to Investors or prospective Investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, upon Lender’s written request (electronic mail addressed to Asset Manager at portfolioservicing@spiritrealty.com, together with duplicate written notice provided in accordance with Section 10.6 hereof), Borrower and Guarantor will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects.

(b) Upon Lender’s written request (electronic mail addressed to Asset Manager at portfolioservicing@spiritrealty.com, together with duplicate written notice provided

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in accordance with Section 10.6 hereof), Borrower and Guarantor agree to provide in connection with each of (i) a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, or (iii) collateral and structured term sheets or similar materials, an indemnification certificate qualified solely to the extent it relates to Borrower, Guarantor, the Properties, Manager and/or the Loan (A) certifying that Borrower has carefully examined such memorandum or prospectus or term sheets, as applicable, including the sections entitled “Special Considerations,” “Description of the Mortgages,” “Description of the Mortgage Loans and Mortgaged Property,” “The Manager,” “The Borrower” and “Certain Legal Aspects of the Mortgage Loan,” and such sections (and any other sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (B) indemnifying Lender (and for purposes of this Section 9.2, Lender hereunder shall include its officers and directors), the Affiliate of GACC that has filed the registration statement relating to the Securitization (the “Registration Statement”), each of its respective directors, each of its respective officers who have signed the Registration Statement and each Person who controls the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Lender Group”), and GACC, its directors and each Person who controls GACC within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, damages or liabilities (collectively, the “Liabilities”) to which Lender, the Lender Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections described in clause (A) above, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated in such sections or necessary in order to make the statements in such sections or in light of the circumstances under which they were made, not misleading and (C) agreeing to reimburse Lender, the Lender Group and the Underwriter Group for any reasonable legal or other expenses reasonably incurred by Lender the Lender Group and the Underwriter Group in connection with investigating or defending the Liabilities; provided, however, that Borrower and Guarantor will be liable in any such case under clauses (B) or (C) above only to the extent that any such Liability arises out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by or on behalf of Borrower and Guarantor in connection with the preparation of the memorandum or prospectus or in connection with the underwriting of the debt, including financial statements of Borrower and Guarantor, operating statements, rent rolls, environmental site assessment reports (only to the extent Borrower provided information with respect to such reports), property condition reports (only to the extent Borrower provided information with respect to such reports), in each case prepared by or on behalf of Borrower, with respect to the Properties and any other Provided Information. This indemnification will be in addition to any liability which Borrower and Guarantor may otherwise have. Moreover, the indemnification provided for in clauses (B) and (C) above shall be effective whether or not an indemnification certificate described in (A) above is provided and shall be applicable based on information previously provided by Borrower and Guarantor or their respective Affiliates if Borrower and Guarantor do not provide the indemnification certificate.

(c) In connection with filings under the Exchange Act, Borrower and Guarantor agree to indemnify (i) Lender, the Lender Group and the Underwriter Group for Liabilities to which Lender, the Lender Group or the Underwriter Group may become subject

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insofar as the Liabilities arise out of or are based upon the omission or alleged omission to state in the Provided Information a material fact required to be stated in the Provided Information in order to make the statements in the Provided Information, in light of the circumstances under which they were made not misleading and (ii) reimburse Lender, the Lender Group or the Underwriter Group for any reasonable third party, out-of-pocket legal or other expenses reasonably incurred by Lender, the Lender Group or the Underwriter Group in connection with defending or investigating such Liabilities.

(d) Promptly after receipt by an indemnified party under this Section 9.2 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 9.2, notify the indemnifying party in writing of the commencement thereof, but the omission to so notify the indemnifying party will not relieve the indemnifying party from any liability which the indemnifying party may have to any indemnified party hereunder except to the extent that failure to notify causes prejudice to the indemnifying party. In the event that any action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it (or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel satisfactory to such indemnified party. After notice from the indemnifying party to such indemnified party under this Section 9.2 the indemnifying party shall not be responsible for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation; provided, however, if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. The indemnifying party shall not be liable for the expenses of more than one such separate counsel unless an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another indemnified party.

(e) In order to provide for just and equitable contribution in circumstances in which the indemnifications provided for in Section 9.2(b) or (c) is or are for any reason held to be unenforceable by an indemnified party in respect of any Liabilities (or action in respect thereof) referred to therein which would otherwise be indemnifiable under Section 9.2(b) or (c), the indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities (or action in respect thereof); provided, however, that no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. In determining the amount of contribution to which the respective parties are entitled, the following factors shall be considered: (i) Lender’s and Borrower’s and Guarantor’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the

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circumstances. Lender, Borrower and Guarantor hereby agree that it would not be equitable if the amount of such contribution were determined solely by pro rata or per capita allocation.

(f) The liabilities and obligations of Borrower and Guarantor and Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.

Section 9.3. Servicer.

(a) At the option of Lender, the Loan may be serviced and administered by a servicer, special servicer, certificate administrator and/or trustee selected by Lender (collectively, the “Servicer”) and Lender may delegate all or any portion of its responsibilities under this Agreement and the other Loan Documents to such Servicer pursuant to a servicing agreement between Lender and such Servicer, provided, however, any engagement of the Servicer shall not release the Lender from any of its obligations or responsibilities hereunder. Upon the appointment of a Servicer, to the extent of the delegation to such Servicer, the term “Lender” shall be deemed to include the Servicer. Borrower shall be responsible for payment of (i) any reasonable out-of-pocket expenses of Servicer (including reasonable attorneys’ fees and disbursements) in connection with any release of the Property, any Substitution, any prepayment, defeasance, assumption, amendment or modification of the Loan, any documents or matters requested by Borrower, and (ii) all actual out-of-pocket costs and expenses and all fees of Lender and Servicer, operating advisor, trust advisor and Trustee, and all other actual expenses of any Securitization, in each case resulting from, or incurred during the existence of, Defaults and reasonably foreseeable Defaults by Borrower, the Loan going into special servicing or requests by Borrower (including enforcement expenses and any liquidation fees, workout fees, special servicing fees following the Loan going into special servicing, operating advisor or trust advisor consulting fees or any other similar fees and interest payable on advances made by the Servicer or the Trustee with respect to delinquent Debt Service payments or expenses of curing Borrower’s Defaults under the Loan Documents, any expenses paid by Servicer or a trustee in respect of the protection and preservation of the Property, such as payment of taxes and insurance premiums, together with interest on any advances in respect thereof), the costs of all opinions, property inspections and/or appraisals (or any updates to any existing inspection or appraisal) that Servicer may be required to obtain due to a request by Borrower or the occurrence of a Default or reasonably foreseeable Default, together with interest on any advances in respect thereof, and, after the occurrence of a Default or to the extent that Borrower is required to pay such amounts pursuant to the terms of this Agreement or pursuant to any Applicable Law, any taxes payable from the assets of the Securitization and tax related expenses.

(b) Notwithstanding Section 9.3.1(a) hereof, Borrower shall not be responsible for the regular master servicing fee or fees or expenses which are customarily borne by a servicer or trustee without reimbursement from a securitization trust.

Section 9.4. Exculpation.

(a) Except as otherwise provided herein, in the Security Instruments or in the other Loan Documents, Lender shall not enforce the liability and obligation of Borrower or Guarantor (with respect to the Loan Documents to which Guarantor is a party) to perform and

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observe the obligations contained in this Agreement, the Note or the Security Instruments by any action or proceeding wherein a money judgment shall be sought against Borrower and/or Guarantor, as applicable, except that Lender may bring a foreclosure action, action for specific performance or other appropriate action or proceeding to enable Lender to enforce and realize upon this Agreement, the Note, the Security Instruments, the other Loan Documents, and the interest in the Properties, the Rents and any other collateral given to Lender created by this Agreement, the Note, the Security Instruments and the other Loan Documents; provided, however, that any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Properties, in the Rents and in any other collateral given to Lender. Lender, by accepting this Agreement, the Note and the Security Instruments, agrees that it shall not, except as otherwise provided herein, sue for, seek or demand any deficiency judgment against Borrower in any such action or proceeding, under or by reason of or under or in connection with this Agreement, the Note, the Security Instruments or the other Loan Documents. The provisions of this Section 9.4 shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by this Agreement, the Note, the Security Instruments or the other Loan Documents; (ii) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under the Security Instruments; (iii) affect the validity or enforceability of any indemnity (including the Environmental Indemnity), guaranty (including the Guaranty), master lease or similar instrument made in connection with this Agreement, the Note, the Security Instruments, or the other Loan Documents; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of the Assignments of Leases; (vi) impair the right of Lender to enforce the provisions of Section 10.2 of the Security Instruments or Sections 4.1.10, 4.1.30, 5.1.9 and 5.2.8 hereof; or (vii) impair the right of Lender to obtain a deficiency judgment or other judgment on the Note against Borrower if necessary to (A) preserve or enforce its rights and remedies against any Individual Property or (B) obtain any Insurance Proceeds or Awards to which Lender would otherwise be entitled under the terms of this Agreement or the Security Instruments; provided however, Lender shall only enforce such judgment to the extent of the Insurance Proceeds and/or Awards.

(b) Notwithstanding the provisions of Section 9.4(a) above to the contrary, Borrower shall be personally liable to Lender for the Losses it incurs arising out of or in connection with the following:

(i) a Loan Party’s fraud, willful misconduct, intentional misrepresentation or failure to disclose a material fact in connection with the execution and the delivery of this Agreement, the Note, the Security Instruments, or the other Loan Documents or otherwise in connection with the Loan;

(ii) a Loan Party’s misapplication or misappropriation of Security Deposits, Rents (including failure to deposit Rents into the Lockbox Account), or any other amounts due to Lender pursuant to the Loan Documents;

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(iii) a Loan Party’s misapplication or the misappropriation of Insurance Proceeds or Awards in violation of the Loan Documents;

(iv) a Loan Party’s failure to pay any Other Charges (including charges for labor or materials) (to the extent such Other Charges are not being contested in accordance with the terms of this Agreement) that can create a Lien on the Property beyond any applicable notice and cure periods specified herein, provided that such failure is not due to insolvency or insufficient funds from the operation of such Property;

(v) failure to maintain insurance as required pursuant to the Loan Documents or pay Insurance Premiums or Taxes that can create Liens on the Property beyond any applicable notice and cure periods specified herein (to the extent not contested by Borrower in accordance with the terms of this Agreement), except to the extent that (A) there is insufficient net cash flow from the Properties, or (B) there is sufficient net cash flow from the Properties and Lender applies such amounts to the Debt or for other uses, or (C) sums sufficient to pay such amounts have been deposited in escrow with Lender pursuant to the terms of Section 7.2 hereof;

(vi) a Loan Party’s removal of and failure to return or to reimburse Lender for all Personal Property taken by such Loan Party from any Individual Property in violation of the Loan Documents by or on behalf of Borrower and not replaced with Personal Property of the same utility and of the same or greater value;

(vii) any act of intentional physical waste or arson of an Individual Property by a Loan Party;

(viii) any fees or commissions paid by Borrower to Principal, if any, Guarantor or any Affiliate of Borrower in violation of the terms of this Agreement, the Note, the Security Instruments or the other Loan Documents;

(ix) Borrower’s failure to comply with the provisions of Sections 5.1.8 (after five (5) Business Days after Borrower’s receipt of written notice of such failure) or 5.1.19 hereof;

(x) criminal acts of a Loan Party resulting in the seizure or forfeiture of any Individual Property;

(xi) the wrongful destruction of or damage to any portion of any Individual Property caused by the willful misconduct or gross negligence of a Loan Party;

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(xii) without the prior written consent of Lender as required pursuant to the Loan Documents, Borrower entering into any amendment, modification or termination of any Lease;

(xiii) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity or in the Loan Documents concerning Environmental Laws and Hazardous Substances and any indemnification of Lender with respect thereto in any Loan Document;

(xiv) Borrower’s failure to pay all transfer and recording taxes due to any Governmental Authority in the event of a foreclosure of any Individual Property, deed in lieu or other transfer of any Individual Property to Lender or Lender’s designee, solely to the extent there is sufficient revenue from the Properties made available to the Borrower to pay the same;

(xv) [intentionally omitted];

(xvi) Borrower’s failure to comply with the provisions of Section 9.2 hereof, after receiving written notice of such failure, which specifically provides reasonable details of such failure, and such failure continues for ten (10) Business Days thereafter;

(xvii) Borrower’s failure to reimburse Lender for any costs and expenses, including reasonable attorneys fees, in each case arising from or related to Lender’s enforcement of its rights and remedies under the Loan Documents after the occurrence of an Event of Default;

(xviii) any Pre-Existing Liability;

(xix) a Loan Party’s gross negligence or willful misconduct; or

(xx) any Losses due to a breach of Section 4.1.36 hereof, to the extent not covered by Section 9.4(c)(i) below.

(c) Notwithstanding the foregoing, the agreement of Lender not to pursue recourse liability as set forth in Subsection (a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower immediately in the event that:

(i) Borrower defaults under any of Sections 4.1.36, 5.2.10 or 5.2.11 hereof or Article 7 of the Security Instruments, or in the event of Principal’s default under Section 4.1.36 hereof, provided that any default by Borrower or Principal, if any, under Section 4.1.36 shall have resulted in a substantive consolidation of Borrower with another Person;

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(ii) a Bankruptcy Event occurs;

(iii) Borrower fails to obtain Lender’s prior written consent to any subordinate financing for borrowed money and such prior written consent is required pursuant to the Loan Documents;

(iv) a Loan Party’s interference with Lender’s exercise of remedies provided under the Loan Documents after Lender has delivered written notice of acceleration of the Loan, unless any such action was in pursuit of a good faith claim upon which such Loan Party ultimately prevailed; or

(v) Borrower or any of its Affiliates contests or opposes any motion made by Lender to obtain relief from the automatic stay or seek to reinstate the automatic stay following the occurrence of a Bankruptcy Event.

(d) Notwithstanding anything herein to the contrary, Borrower acknowledges that, pursuant to the Guaranty, to the extent Borrower fails to pay any wind/named storm and earthquake insurance deductible in an amount equal to the positive difference between (A) 5% of the total insured value of any Property for which such insurance claim is made and (B) $250,000, Guarantor shall have the obligation to pay such amount.

(e) Nothing herein shall be deemed to be a waiver of any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provision of the Bankruptcy Code to file a claim for the full amount of the indebtedness secured by the Security Instruments or to require that all collateral shall continue to secure all of the indebtedness owing to Lender in accordance with this Agreement, the Note, the Security Instruments and the other Loan Documents.

Section 9.5. Mezzanine Financing.

In connection with any Securitization of the Loan, Lender shall have the right at any time to divide the Loan into two or more parts (the “Mezzanine Option”): a mortgage loan (the “Mortgage Loan”) and one or more mezzanine loans (the “Mezzanine Loan(s)”). The principal amount of the Mortgage Loan plus the principal amount of the Mezzanine Loan(s) shall equal the outstanding principal balance of the Loan immediately prior to the creation of the Mortgage Loan and the Mezzanine Loan(s). In effectuating the foregoing, the mezzanine lender will make a loan to the Mezzanine Borrower(s); Mezzanine Borrower(s) will contribute the amount of the Mezzanine Loan(s) to Borrower and Borrower will apply the contribution to pay down the Mortgage Loan. The Mortgage Loan and the Mezzanine Loan(s) will be on the same terms and subject to the same conditions set forth in this Agreement, the Note, the Security Instrument and the other Loan Documents except as follows:

(a) Lender shall have the right to establish different interest rates and debt service payments for the Mortgage Loan(s) and the Mezzanine Loan and to require the payment of the Mortgage Loan and the Mezzanine Loan(s) in such order of priority as may be designated by Lender; provided, that (i) the total loan amounts for the Mortgage Loan and the

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Mezzanine Loan(s) shall equal the amount of the Loan immediately prior to the creation of the Mortgage Loan and the Mezzanine Loan(s), (ii) the initial weighted average interest rate of the Mortgage Loan and the Mezzanine Loan(s) shall initially on the date created equal the interest rate which was applicable to the Loan immediately prior to creation of the Mortgage Loan and the Mezzanine Loan(s), (iii) the initial debt service payments on the Mortgage Loan note and the Mezzanine Loan note(s) shall initially on the date created equal the debt service payment which was due under the Loan immediately prior to creation of the Mortgage Loan and the Mezzanine Loan(s) and (iv) principal payments shall be applied pro rata prior to the occurrence of an Event of Default. The Mezzanine Loan(s) will be made pursuant to Lender’s standard mezzanine loan documents in form and substance substantially similar to the Loan Documents with such necessary modifications to effect a mezzanine loan. The Mezzanine Loan(s) will be subordinate to the Mortgage Loan and will be governed by the terms of an intercreditor agreement between the holders of the Mortgage Loan and the Mezzanine Loan(s).

(b) Mezzanine Borrower(s) shall be a newly-formed special purpose, bankruptcy remote entity pursuant to applicable Rating Agency criteria and otherwise acceptable to Lender that shall own directly or indirectly one hundred percent (100%) of Borrower. The direct equity holder(s) of Mezzanine Borrower(s) (such holder(s) the “Second Level SPE”) shall be a special purpose, bankruptcy remote entity pursuant to applicable Rating Agency criteria and shall own directly or indirectly one hundred percent (100%) of Mezzanine Borrower. The security for the Mezzanine Loan shall be a pledge of one hundred percent (100%) of the direct and indirect ownership interests in Borrower and Mezzanine Borrower.

(c) Mezzanine Borrower, Second Level SPE and Borrower shall cooperate with all reasonable requests of Lender in order to divide the Loan into a Mortgage Loan and one or more Mezzanine Loan(s) and shall execute and deliver such documents as shall reasonably be required by Lender and any Rating Agency in connection therewith, including (i) the delivery of non-consolidation opinions; (ii) the modification of organizational documents and Loan Documents; (iii) authorize Lender to file any UCC-1 Financing Statements reasonably required by Lender to perfect its security interest in the collateral pledged as security for the Mezzanine Loan(s); (iv) execute such other documents reasonably required by Lender in connection with the creation of the Mezzanine Loan(s), including a guaranty substantially similar in form and substance to the Guaranty delivered on the date hereof in connection with the Loan, an environmental indemnity substantially similar in form and substance to the Environmental Indemnity delivered on the date hereof in connection with the Loan; (v) deliver appropriate authorization, execution and enforceability opinions with respect to the Mezzanine Loan(s) and amendments to the Mortgage Loan; and (vi) deliver an “Eagle 9” or equivalent UCC title insurance policy, satisfactory to Lender, insuring the perfection and priority of the lien on the collateral pledged as security for the Mezzanine Loan.

All reasonable third party costs and expenses incurred by Lender, Borrower or Guarantor in connection with Borrower’s or Guarantor’s complying with requests made under this Section 9.5, including reasonable attorneys fees and UCC insurance premiums, shall be paid by Borrower or Guarantor.

It shall be an Event of Default under this Agreement, the Note, the Security Instruments and the other Loan Documents if Borrower, Guarantor, Mezzanine Borrower, or Second Level

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SPE fails to comply with any of the terms, covenants or conditions of this Section 9.5 after expiration of ten (10) Business Days after written notice thereof which sets forth in reasonable detail a subscription of such failure to comply.

Section 9.6. Splitting the Loan.

At the election of Lender in its sole discretion or in connection with a repurchase by Lender of any portion of the Loan under the operative documents for any Securitization, the Loan or any individual Note making up the Loan shall be split and severed into two or more loans which, at Lender’s election, shall not be cross-collateralized or cross-defaulted with each other. Borrower hereby agrees to deliver to Lender to effectuate such severing of the Loan or any individual Note, as the case may be, as requested by Lender, (a) additional executed documents, or amendments and modifications to the applicable Loan Documents, (b) new opinions or updates to the opinions delivered to Lender in connection with the closing of the Loan, (c) endorsements and/or updates to the Title Insurance Policies delivered to Lender in connection with the closing of the Loan, and (d) any other certificates, instruments and documentation determined by Lender as necessary or appropriate to such severance (the items described in subsections (a) through (d) collectively hereinafter shall be referred to as “Splitting Documentation”), which Splitting Documentation shall be acceptable to Lender in form and substance in its sole discretion. Borrower hereby agrees to be responsible for all third-party expenses incurred in connection with the preparation and delivery of the Splitting Documentation and the effectuation of the uncrossing of the Loan from the additional loans. Borrower hereby acknowledges and agrees that upon such severing of the Loan, Lender may effect, in its sole discretion, one or more Securitizations of which the severed loans may be a part.

Section 9.7. Loan Component Repayment.

Notwithstanding anything in this agreement to the contrary, upon the occurrence and during the continuance of an Event of Default, or after a Casualty or a Condemnation not subject to Restoration pursuant to section 6.4 hereof, Lender may apply any payments received by Lender may be applied by Lender among any Mortgage Loan(s) or Mezzanine Loan(s) as Lender may elect in its sole discretion.

X. MISCELLANEOUS

Section 10.1. Survival.

This Agreement and all covenants, agreements, representations and warranties made herein and in the certificates delivered pursuant hereto shall survive the making by Lender of the Loan and the execution and delivery to Lender of the Note, and shall continue in full force and effect so long as all or any of the Debt is outstanding and unpaid unless a longer period is expressly set forth herein or in the other Loan Documents. Whenever in this Agreement any of the parties hereto is referred to, such reference shall be deemed to include the legal representatives, successors and assigns of such party. All covenants, promises and agreements in this Agreement, by or on behalf of Borrower, shall inure to the benefit of the legal representatives, successors and assigns of Lender.

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Section 10.2. Lender’s Discretion.

Whenever pursuant to this Agreement, Lender exercises any right given to it to approve or disapprove, or any arrangement or term is to be satisfactory to Lender, the decision of Lender to approve or disapprove or to decide whether arrangements or terms are satisfactory or not satisfactory shall (except as is otherwise specifically herein provided) be in the sole discretion of Lender and shall be final and conclusive. Whenever pursuant to this Agreement or any other Loan Document (a) the Rating Agencies are given any right to approve or disapprove, (b) the confirmation of the Rating Agencies as to no downgrade is required or (c) any arrangement or term is to be satisfactory to the Rating Agencies, the prior written consent of Lender in its sole discretion shall be substituted therefor prior to a Securitization.

Section 10.3. Governing Law.

(a) THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT ENTERED INTO PURSUANT TO THE LAWS OF THE STATE OF NEW YORK AND SHALL IN ALL RESPECTS BE GOVERNED, CONSTRUED, APPLIED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS), PROVIDED HOWEVER, THAT WITH RESPECT TO THE CREATION, PERFECTION, PRIORITY AND ENFORCEMENT OF THE LIENS AND SECURITY INTERESTS CREATED BY THIS AGREEMENT, THE SECURITY INSTRUMENTS AND THE OTHER LOAN DOCUMENTS, AND THE DETERMINATION OF DEFICIENCY JUDGMENTS, THE LAWS OF THE STATE WHERE EACH INDIVIDUAL PROPERTY IS LOCATED SHALL APPLY.

(b) WITH RESPECT TO ANY CLAIM OR ACTION ARISING HEREUNDER OR UNDER THIS AGREEMENT, THE NOTE, OR THE OTHER LOAN DOCUMENTS, BORROWER (A) IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE UNITED STATES DISTRICT COURT LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK, NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF, AND (B) IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY HAVE AT ANY TIME TO THE LAYING ON VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE NOTE OR THE OTHER LOAN DOCUMENTS BROUGHT IN ANY SUCH COURT, IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING IN THIS AGREEMENT, THE NOTE OR THE OTHER LOAN DOCUMENTS WILL BE DEEMED TO PRECLUDE LENDER FROM BRINGING AN ACTION OR PROCEEDING WITH RESPECT HERETO IN ANY OTHER JURISDICTION.

Section 10.4. Modification, Waiver in Writing.

No modification, amendment, extension, discharge, termination or waiver of any provision of this Agreement, the Note, or of any other Loan Document, nor consent to any departure by Borrower therefrom, shall in any event be effective unless the same shall be in a writing signed by the party against whom enforcement is sought, and then such waiver or

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consent shall be effective only in the specific instance, and for the purpose, for which given. Except as otherwise expressly provided herein, no notice to, or demand on Borrower, shall entitle Borrower to any other or future notice or demand in the same, similar or other circumstances.

Section 10.5. Delay Not a Waiver.

Neither any failure nor any delay on the part of Lender in insisting upon strict performance of any term, condition, covenant or agreement, or exercising any right, power, remedy or privilege hereunder, or under the Note or under any other Loan Document, or any other instrument given as security therefor, shall operate as or constitute a waiver thereof, nor shall a single or partial exercise thereof preclude any other future exercise, or the exercise of any other right, power, remedy or privilege. In particular, and not by way of limitation, by accepting payment after the due date of any amount payable under this Agreement, the Note or any other Loan Document, Lender shall not be deemed to have waived any right either to require prompt payment when due of all other amounts due under this Agreement, the Note or the other Loan Documents, or to declare a default for failure to effect prompt payment of any such other amount.

Section 10.6. Notices.

All notices or other written communications hereunder shall be deemed to have been properly given one (1) Business Day after having been deposited for overnight delivery with any reputable overnight courier service, addressed as follows:

If to Borrower:	SPIRIT SPE LOAN PORTFOLIO 2013-2, LLC 16767 N. Perimeter Drive, Suite 210 Scottsdale, AZ 85260 Attention: Chief Financial Officer Fax: (480) 256-1100
	And to:
	Spirit Realty, L.P.
	16767 N. Perimeter Drive, Suite 210
	Scottsdale, AZ 85260
	Attention: Portfolio Services
	Fax: (480) 256-1100
If to Lender:	German American Capital Corporation 60 Wall Street, 10th Floor New York, NY 10005 Attention: Robert W. Pettinato, Jr. Facsimile No. (800) 973-0850 And to:

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	German American Capital Corporation 60 Wall Street, 10th Floor New York, NY 10005 Attention: General Counsel Facsimile No. (800) 973-0850
With a copy to:	Dechert LLP
	Cira Centre
	2929 Arch Street
	Philadelphia, Pennsylvania 19104
	Attention: David W. Forti, Esq.

or addressed as such party may from time to time designate by written notice to the other parties.

Either party by notice to the other may designate additional or different addresses for subsequent notices or communications.

Section 10.7. Trial by Jury.

BORROWER HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THE LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY BORROWER, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. LENDER IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY BORROWER.

Section 10.8. Headings.

The Article and/or Section headings and the Table of Contents in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose.

Section 10.9. Severability.

Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under Applicable Law, but if any provision of this Agreement shall be prohibited by or invalid under Applicable Law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.

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Section 10.10. Preferences.

Lender shall have the continuing and exclusive right to apply or reverse and reapply any and all payments by Borrower to any portion of the obligations of Borrower hereunder. To the extent Borrower makes a payment or payments to Lender, which payment or proceeds or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside 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 payment or proceeds received, the obligations hereunder or part thereof intended to be satisfied shall be revived and continue in full force and effect, as if such payment or proceeds had not been received by Lender.

Section 10.11. Waiver of Notice.

Borrower shall not be entitled to any notices of any nature whatsoever from Lender except with respect to matters for which Applicable Law, this Agreement or the other Loan Documents specifically and expressly provide for the giving of notice by Lender to Borrower and except with respect to matters for which Borrower is not, pursuant to applicable Legal Requirements, permitted to waive the giving of notice. Borrower hereby expressly waives the right to receive any notice from Lender with respect to any matter for which Applicable Law, this Agreement or the other Loan Documents do not specifically and expressly provide for the giving of notice by Lender to Borrower.

Section 10.12. Remedies of Borrower.

In the event that a claim or adjudication is made that Lender or its agents have acted unreasonably or unreasonably delayed acting in any case where by law or under this Agreement or the other Loan Documents, Lender or such agent, as the case may be, has an obligation to act reasonably or promptly, Borrower agrees that neither Lender nor its agents shall be liable for any monetary damages, and Borrower’s sole remedies shall be limited to commencing an action seeking injunctive relief or declaratory judgment. The parties hereto agree that any action or proceeding to determine whether Lender has acted reasonably shall be determined by an action seeking declaratory judgment.

Section 10.13. Expenses; Indemnity.

(a) Borrower covenants and agrees to pay or, if Borrower fails to pay, to reimburse, Lender within ten (10) days of receipt of written notice from Lender for all reasonable costs and expenses (including reasonable attorneys’ fees and disbursements) incurred by Lender in connection with (i) the preparation, negotiation, execution and delivery of this Agreement and the other Loan Documents and the consummation of the transactions contemplated hereby and thereby and all the costs of furnishing all opinions by counsel for Borrower (including any opinions required hereunder); (ii) Borrower’s ongoing performance of and compliance with Borrower’s respective agreements and covenants contained in this Agreement and the other Loan Documents on its part to be performed or complied with after the Closing Date, including confirming compliance with environmental and insurance requirements; (iii) Lender’s ongoing performance and compliance with all agreements and conditions

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contained in this Agreement and the other Loan Documents on its part to be performed or complied with after the Closing Date; (iv) the negotiation, preparation, execution, delivery and administration of any consents, amendments, waivers or other modifications to this Agreement and the other Loan Documents and any other documents or matters requested by Lender; (v) securing Borrower’s compliance with any requests made pursuant to the provisions of this Agreement; (vi) the filing and recording fees and expenses, title insurance and reasonable fees and expenses of counsel for providing to Lender all required legal opinions, and other similar expenses incurred in creating and perfecting the Lien in favor of Lender pursuant to this Agreement and the other Loan Documents; (vii) enforcing or preserving any rights, in response to third party claims or the prosecuting or defending of any action or proceeding or other litigation, in each case against, under or affecting Borrower, this Agreement, the other Loan Documents, the Properties, or any other security given for the Loan; and (viii) enforcing any obligations of or collecting any payments due from Borrower under this Agreement, the other Loan Documents or with respect to the Properties or in connection with any refinancing or restructuring of the credit arrangements provided under this Agreement in the nature of a “work-out” or of any insolvency or bankruptcy proceedings; provided, however, that Borrower shall not be liable for the payment of any such costs and expenses to the extent the same arise by reason of the gross negligence, illegal acts, fraud or willful misconduct of Lender. Any cost and expenses due and payable to Lender may be paid from any amounts in the Lockbox Account.

(b) Borrower shall indemnify, defend and hold harmless Lender from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including the reasonable fees and disbursements of counsel for Lender in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not Lender shall be designated a party thereto), that may be imposed on, incurred by, or asserted against Lender in any manner relating to or arising out of (i) any breach by Borrower of its obligations under, or any material misrepresentation by Borrower contained in, this Agreement or the other Loan Documents, or (ii) the use or intended use of the proceeds of the Loan (collectively, the “Additional Indemnified Liabilities”); provided, however, that Borrower shall not have any obligation to Lender hereunder to the extent that such Additional Indemnified Liabilities arise from the gross negligence, illegal acts, fraud or willful misconduct of Lender. To the extent that the undertaking to indemnify, defend and hold harmless set forth in the preceding sentence may be unenforceable because it violates any law or public policy, Borrower shall pay the maximum portion that it is permitted to pay and satisfy under Applicable Law to the payment and satisfaction of all Additional Indemnified Liabilities incurred by Lender.

(c) Borrower shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless Lender and the Indemnified Parties from and against any and all losses (including reasonable attorneys’ fees and costs incurred in the investigation, defense, and settlement of losses incurred in correcting any prohibited transaction or in the sale of a prohibited loan, and in obtaining any individual prohibited transaction exemption under ERISA, the Code, any State statute or other similar law that may be required, in Lender’s sole discretion) that Lender may incur, directly or indirectly, as a result of a default under Sections 4.1.10 or 5.2.8 hereof.

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(d) Borrower covenants and agrees to pay for or, if Borrower fails to pay, to reimburse Lender for any fees and expenses incurred by any Rating Agency in connection with any review, consent, approval, waiver or confirmation obtained from such Rating Agency pursuant to the terms and conditions of this Agreement or any other Loan Document (other than the initial review of the Loan by any Rating Agency in connection with a Securitization) and Lender shall be entitled to require payment of such fees and expenses as a condition precedent to the obtaining of any such review, consent, approval, waiver or confirmation.

Section 10.14. Schedules and Exhibits Incorporated.

The Schedules and Exhibits annexed hereto are hereby incorporated herein as a part of this Agreement with the same effect as if set forth in the body hereof.

Section 10.15. Offsets, Counterclaims and Defenses.

Any assignee of Lender’s interest in and to this Agreement, the Note and the other Loan Documents shall take the same free and clear of all offsets, counterclaims or defenses which are unrelated to such documents which Borrower may otherwise have against any assignor of such documents, and no such unrelated counterclaim or defense shall be interposed or asserted by Borrower in any action or proceeding brought by any such assignee upon such documents and any such right to interpose or assert any such unrelated offset, counterclaim or defense in any such action or proceeding is hereby expressly waived by Borrower.

Section 10.16. No Joint Venture or Partnership; No Third Party Beneficiaries.

(a) Borrower and Lender intend that the relationships created hereunder and under the other Loan Documents be solely that of borrower and lender. Nothing herein or therein is intended to create a joint venture, partnership, tenancy-in-common, or joint tenancy relationship between Borrower and Lender nor to grant Lender any interest in the Properties other than that of mortgagee, beneficiary or lender.

(b) This Agreement and the other Loan Documents are solely for the benefit of Lender and Borrower and nothing contained in this Agreement or the other Loan Documents shall be deemed to confer upon anyone other than Lender and Borrower any right to insist upon or to enforce the performance or observance of any of the obligations contained herein or therein. All conditions to the obligations of Lender to make the Loan hereunder are imposed solely and exclusively for the benefit of Lender and no other Person shall have standing to require satisfaction of such conditions in accordance with their terms or be entitled to assume that Lender will refuse to make the Loan in the absence of strict compliance with any or all thereof and no other Person shall under any circumstances be deemed to be a beneficiary of such conditions, any or all of which may be freely waived in whole or in part by Lender if, in Lender’s sole discretion, Lender deems it advisable or desirable to do so.

Section 10.17. Publicity.

All news releases, publicity or advertising by Borrower or its Affiliates through any media intended to reach the general public which refers to (i) the Loan Documents, (ii) the

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financing evidenced by the Loan Documents, (iii) Lender, (iv) any Affiliate of Lender that acts as the issuer with respect to a Securitization, or (v) any of other Lender Affiliates shall be subject to the prior written approval of Lender, not to be unreasonably withheld, conditioned or delayed; provided the foregoing shall not apply to any filings in connection with any Legal Requirements.

Section 10.18. Cross-Default; Cross-Collateralization; Waiver of Marshalling of Assets.

(a) Borrower acknowledges that Lender has made the Loan to Borrower upon the security of its collective interest in the Properties and in reliance upon the aggregate of the Properties taken together being of greater value as collateral security than the sum of each Individual Property taken separately. Borrower agrees that the Security Instruments are and will be cross-collateralized and cross-defaulted with each other so that (i) an Event of Default under any of the Security Instruments shall constitute an Event of Default under each of the other Security Instruments which secure the Note; (ii) an Event of Default under the Note or this Agreement shall constitute an Event of Default under each Security Instrument; (iii) each Security Instrument shall constitute security for the Note as if a single blanket lien were placed on all of the Properties as security for the Note; and (iv) such cross-collateralization shall in no event be deemed to constitute a fraudulent conveyance.

(b) To the fullest extent permitted by Applicable Law, Borrower, for itself and its successors and assigns, waives all rights to a marshalling of the assets of Borrower, Borrower’s partners and others with interests in Borrower, and of the Properties, or to a sale in inverse order of alienation in the event of foreclosure of all or any of the Security Instruments, and agrees not to assert any right under any laws pertaining to the marshalling of assets, the sale in inverse order of alienation, homestead exemption, the administration of estates of decedents, or any other matters whatsoever to defeat, reduce or affect the right of Lender under the Loan Documents to a sale of the Properties for the collection of the Debt without any prior or different resort for collection or of the right of Lender to the payment of the Debt out of the net proceeds of the Properties in preference to every other claimant whatsoever. In addition, Borrower, for itself and its successors and assigns, waives in the event of foreclosure of any or all of the Security Instruments, any equitable right otherwise available to Borrower which would require the separate sale of the Properties or require Lender to exhaust its remedies against any Individual Property or any combination of the Properties before proceeding against any other Individual Property or combination of Properties; and further in the event of such foreclosure Borrower does hereby expressly consents to and authorizes, at the option of Lender, the foreclosure and sale either separately or together of any combination of the Properties.

Section 10.19. Waiver of Counterclaim.

Borrower hereby waives the right to assert a counterclaim, other than a compulsory counterclaim, in any action or proceeding brought against it by Lender or its agents.

Section 10.20. Conflict; Construction of Documents; Reliance.

In the event of any conflict between the provisions of this Agreement and any of the other Loan Documents, the provisions of this Agreement shall control. The parties hereto acknowledge that they were represented by competent counsel in connection with the

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negotiation, drafting and execution of the Loan Documents and that such Loan Documents shall not be subject to the principle of construing their meaning against the party which drafted same. Borrower acknowledges that, with respect to the Loan, Borrower shall rely solely on its own judgment and advisors in entering into the Loan without relying in any manner on any statements, representations or recommendations of Lender or any parent, subsidiary or Affiliate of Lender. Lender shall not be subject to any limitation whatsoever in the exercise of any rights or remedies available to it under any of the Loan Documents or any other agreements or instruments which govern the Loan by virtue of the ownership by it or any parent, subsidiary or Affiliate of Lender of any equity interest any of them may acquire in Borrower, and Borrower hereby irrevocably waives the right to raise any defense or take any action on the basis of the foregoing with respect to Lender’s exercise of any such rights or remedies. Borrower acknowledges that Lender engages in the business of real estate financings and other real estate transactions and investments which may be viewed as adverse to or competitive with the business of Borrower or its Affiliates.

Section 10.21. Brokers and Financial Advisors.

Borrower hereby represents that it has dealt with no financial advisors, brokers, underwriters, placement agents, agents or finders in connection with the transactions contemplated by this Agreement. Borrower hereby agrees to indemnify, defend and hold Lender harmless from and against any and all claims, liabilities, costs and expenses of any kind (including Lender’s attorneys’ fees and expenses) in any way relating to or arising from a claim by any Person that such Person acted on behalf of Borrower or Lender in connection with the transactions contemplated herein. Lender represents and warrants that neither Lender nor its affiliates has engaged any broker or finders in connection with the Loan, this Agreement and the transactions contemplated hereby. The provisions of this Section 10.21 shall survive the expiration and termination of this Agreement and the payment in full of the Debt.

Section 10.22. Prior Agreements.

This Agreement and the other Loan Documents contain the entire agreement of the parties hereto and thereto in respect of the transactions contemplated hereby and thereby, and all prior agreements among or between such parties, whether oral or written, between Borrower and/or its Affiliates and Lender are superseded by the terms of this Agreement and the other Loan Documents.

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their duly authorized representatives, all as of the day and year first above written.

IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT.

BORROWER:
SPIRIT SPE LOAN PORTFOLIO 2013-2, LLC,
a Delaware limited liability company
By:	Spirit SPE Manager, LLC,
	a Delaware limited liability,
	its manager
By:
	Name:
	Title:
LENDER:
GERMAN AMERICAN CAPITAL CORPORATION, a Maryland corporation
By:
	Name:
	Title:
By:
	Name:
	Title:

WITH RESPECT TO SECTIONS 9.1, 9.2, 9.5 ONLY:
SPIRIT REALTY, L.P., a Delaware limited partnership
By:	Spirit General OP Holdings, LLC, as sole general partner
By:
	Name:
	Title:

2

EX-10.6

Exhibit 10.6

New York, New York

As of July 17, 2013

GUARANTY OF RECOURSE OBLIGATIONS OF BORROWER

FOR VALUE RECEIVED, and to induce GERMAN AMERICAN CAPITAL CORPORATION, a Maryland corporation, having its principal place of business at 60 Wall Street, New York, New York 10005, (together with its successors and assigns, “Lender”), to lend to SPIRIT SPE LOAN PORTFOLIO 2013-2, LLC, a Delaware limited liability company, having its principal place of business at 16767 N. Perimeter Drive, Suite 210, Scottsdale, Arizona 85260 (“Borrower”), the principal sum of ONE HUNDRED MILLION EIGHT HUNDRED SIXTY-FIVE THOUSAND NINE HUNDRED NINE AND 35/100 DOLLARS ($100,865,909.35) (the “Loan”), advanced pursuant to that certain Loan Agreement, dated as of the date hereof, between Borrower and Lender (as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time, the “Loan Agreement”) and evidenced by the Note and the other Loan Documents, the undersigned, SPIRIT REALTY, L.P., a Delaware limited partnership, having its principal place of business at 16767 N. Perimeter Drive, Suite 210, Scottsdale, Arizona 85260 (hereinafter referred to as “Guarantor”) hereby absolutely and unconditionally guarantees to Lender the prompt and unconditional payment of the Guaranteed Recourse Obligations of Borrower (hereinafter defined). All capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Loan Agreement.

It is expressly understood and agreed that this is a continuing guaranty and that the obligations of Guarantor hereunder are and shall be absolute under any and all circumstances, without regard to the validity, regularity or enforceability of the Note, the Loan Agreement, or the other Loan Documents, a true copy of each of said documents Guarantor hereby acknowledges having received and reviewed.

The term “Debt” as used in this Guaranty of Recourse Obligations of Borrower (as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time, this “Guaranty”) shall mean the principal sum evidenced by the Note and secured by the Security Instrument, or so much thereof as may be outstanding from time to time, together with interest thereon at the rate of interest specified in the Note and all other sums other than principal or interest which may or shall become due and payable pursuant to the provisions of the Note, the Loan Agreement, or the other Loan Documents.

The term “Guaranteed Recourse Obligations of Borrower” as used in this Guaranty shall mean (a) all payment obligations and liabilities of Borrower for which Borrower shall be personally liable pursuant to Section 9.4 of the Loan Agreement; provided, however, Guarantor shall not have any liability under this Guaranty pursuant to this clause (a) for any acts or omissions (not caused, directly or indirectly, by Guarantor or any Affiliate thereof) (A) specifically and directly taken by (x) a receiver appointed by Lender or any lender under any Mezzanine Loan (as defined in the Loan Agreement), or (y) any lender under any Mezzanine Loan in the exercise of voting or control rights by such lender under such Mezzanine Loan, or (B) occurring on and after (x) with respect to any Individual Property, the date of any transfer of

title to such Individual Property as a result of a foreclosure sale of such Individual Property, deed of trust sale of such Individual Property or any transfer of such Individual Property in lieu of foreclosure by Lender, or (y) the date of the transfer of title of the equity interests pledged pursuant to any Mezzanine Loan pursuant to any UCC public auction and/or private sale or any assignment in lieu of foreclosure undertaken by the holder of a Mezzanine Loan; and (b) Borrower’s obligation to pay any wind/named storm and earthquake insurance deductible in an amount equal to the positive difference between (i) 5% of the total insured value of any Property for which such insurance claim is made and (ii) $250,000.

Any indebtedness of Borrower to Guarantor now or hereafter existing (including, but not limited to, any rights to subrogation Guarantor may have as a result of any payment by Guarantor under this Guaranty), together with any interest thereon, shall be, and such indebtedness is, hereby deferred, postponed and subordinated to the prior payment in full of the Debt. Until payment in full of the Debt (and including interest accruing on the Note after the commencement of a proceeding by or against Borrower under the Bankruptcy Code and the regulations adopted and promulgated pursuant thereto, which interest the parties agree shall remain a claim that is prior and superior to any claim of Guarantor notwithstanding any contrary practice, custom or ruling in cases under the Bankruptcy Code generally), Guarantor agrees not to accept any payment or satisfaction of any kind of indebtedness of Borrower to Guarantor and hereby assigns such indebtedness to Lender, including the right to file proof of claim and to vote thereon in connection with any such proceeding under the Bankruptcy Code, including the right to vote on any plan of reorganization. Further, if Guarantor shall comprise more than one Person, Guarantor agrees that until such payment in full of the Debt, (a) no one of them shall accept payment from the others by way of contribution on account of any payment made hereunder by such party to Lender, (b) no one of them will take any action to exercise or enforce any rights to such contribution, and (c) if any Guarantor should receive any payment, satisfaction or security for any indebtedness of Borrower to any Guarantor or for any contribution by the other Guarantors for payment made hereunder by the recipient to Lender, the same shall be delivered to Lender in the form received, endorsed or assigned as may be appropriate for application on account of, or as security for, the Debt and until so delivered, shall be held in trust for Lender as security for the Debt.

Guarantor agrees that, with or without notice or demand, Guarantor will reimburse Lender, to the extent that such reimbursement is not made by Borrower, for all reasonable expenses (including reasonable counsel fees and disbursements) incurred by Lender in connection with the collection of the Guaranteed Recourse Obligations of Borrower or any portion thereof or with the enforcement of this Guaranty.

All moneys available to Lender for application in payment or reduction of the Debt shall be applied in accordance with the Loan Agreement, or to the extent no restriction with respect thereto applies, by Lender in such manner and in such amounts and at such time or times and in such order and priority as Lender may see fit to the payment or reduction of such portion of the Debt as Lender may elect.

Guarantor hereby waives notice of the acceptance hereof, presentment, demand for payment, protest, notice of protest, or any and all notice of non-payment, non-performance or non-observance, or other proof, or notice or demand, whereby to charge Guarantor therefor.

Guarantor further agrees that the validity of this Guaranty and the obligations of Guarantor hereunder shall in no way be terminated, affected or impaired (a) by reason of the assertion by Lender of any rights or remedies which it may have under or with respect to either the Note, the Loan Agreement, or the other Loan Documents, against any Person obligated thereunder or the Property covered under the Loan Agreement, or (b) by reason of any failure to file or record any of such instruments or to take or perfect any security intended to be provided thereby, or (c) by reason of the release of the Property covered under the Loan Agreement or other collateral for the Loan, or (d) by reason of Lender’s failure to exercise, or delay in exercising, any such right or remedy or any right or remedy Lender may have hereunder or in respect to this Guaranty, or (e) by reason of the commencement of a case under the Bankruptcy Code by or against any person obligated under the Note, the Loan Agreement or the other Loan Documents, or the death of any Guarantor, or (f) by reason of any payment made on the Debt or any other indebtedness arising under the Note, the Loan Agreement, or the other Loan Documents, whether made by Borrower or Guarantor or any other person, which is required to be refunded pursuant to any bankruptcy or insolvency law; it being understood that no payment so refunded shall be considered as a payment of any portion of the Debt, nor shall it have the effect of reducing the liability of Guarantor hereunder. It is further understood, that if Borrower shall have taken advantage of, or be subject to the protection of, any provision in the Bankruptcy Code, the effect of which is to prevent or delay Lender from taking any remedial action against Borrower, including the exercise of any option Lender has to declare the Debt due and payable on the happening of any default or event by which under the terms of the Note, the Loan Agreement, or the other Loan Documents, the Debt shall become due and payable, Lender may, as against Guarantor, nevertheless, declare the Debt due and payable and enforce any or all of its rights and remedies against Guarantor provided for herein.

Guarantor further covenants that this Guaranty shall remain and continue in full force and effect as to any modification, extension or renewal of the Note, the Loan Agreement, or the other Loan Documents, that Lender shall not be under a duty to protect, secure or insure the Property covered under the Loan Agreement, and that other indulgences or forbearance may be granted under any or all of such documents, all of which may be made, done or suffered without notice to, or further consent of, Guarantor.

Guarantor hereby represents and warrants that Guarantor is not a Plan and none of the assets of Guarantor constitute or will constitute “Plan Assets” of one or more Plans. If Guarantor is not a natural person, Guarantor further represents and warrants that (a) Guarantor is not a “governmental plan” within the meaning of Section 3(32) of ERISA and (b) transactions by or with Guarantor are not subject to State statutes regulating investment of, and fiduciary obligations with respect to, governmental plans similar to the provisions of Section 406 of ERISA or Section 4975 of the Code currently in effect, which prohibit or otherwise restrict the transactions contemplated by this Guaranty.

Guarantor hereby covenants and agrees with Lender that:

(a) During the term of the Loan or of any obligation or right hereunder, Guarantor shall not be a Plan and none of the assets of Guarantor shall constitute Plan Assets.

(b) Guarantor further covenants and agrees to deliver to Lender such certifications or other evidence from time to time throughout the term of the Loan, as requested by Lender in its sole discretion and represents and covenants that (A) Guarantor is not and does not maintain an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, or a “governmental plan” within the meaning of Section 3(32) of ERISA; (B) Guarantor is not subject to State statutes regulating investments and fiduciary obligations with respect to governmental plans; and (C) one or more of the following circumstances is true:

(i) Equity interests in Guarantor are publicly offered securities, within the meaning of 29 C.F.R. §2510.3-101(b)(2);

(ii) Less than twenty-five percent (25%) of each outstanding class of equity interests in Guarantor are held by “benefit plan investors” within the meaning of 29 C.F.R. §2510.3-101(f)(2); or

(iii) Guarantor qualifies as an “operating company” or a “real estate operating company” within the meaning of 29 C.F.R. §2510.3-101(c) or (e).

Guarantor further represents and warrants to Lender as follows:

(a) Guarantor is a limited partnership duly organized, validly existing and in good standing under the laws of the State of Delaware, and has all necessary power and authority to own its properties and to conduct its business as presently conducted or proposed to be conducted and to enter and perform this Guaranty and all other agreements and instruments to be executed and delivered by Guarantor. This Guaranty has been duly executed and delivered by Guarantor.

(b) This Guaranty constitutes a legal, valid and binding obligation of Guarantor, enforceable against Guarantor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally.

(c) The execution, delivery and performance by Guarantor of its obligations under this Guaranty has been duly authorized by all necessary action, and do not and will not violate any law, regulation, order, writ, injunction or decree of any court or governmental body, agency or other instrumentality applicable to Guarantor, or result in a breach of any of the terms, conditions or provisions of, or constitute a default under, or result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the assets of Guarantor pursuant to the terms of Guarantor’s articles of organization, or any mortgage, indenture, agreement or instrument to which Guarantor is a party or by which it or any of its properties is bound. Guarantor is not in default under the Environmental Indemnity which it has provided to Lender.

(d) There are no actions, suits or proceedings at law or at equity, pending or, to Guarantor’s knowledge, threatened against or affecting Guarantor or which involve or might involve the validity or enforceability of this Guaranty or which might materially adversely affect the financial condition of Guarantor or the ability of Guarantor to

perform any of its obligations under this Guaranty. Guarantor is not in default beyond any applicable grace or cure period with respect to any order, writ, injunction, decree or demand of any Governmental Authority which might materially adversely affect the financial condition of Guarantor or the ability of Guarantor to perform any of its obligations under this Guaranty.

(e) All consents, approvals, orders or authorizations of, or registrations, declarations or filings with, all Governmental Authorities (collectively, the “Consents”) that are required in connection with the valid execution, delivery and performance by Guarantor of this Guaranty have been obtained and Guarantor agrees that all Consents required in connection with the carrying out or performance of any of Guarantor’s obligations under this Guaranty will be obtained when required.

(f) All financial statements of Guarantor heretofore delivered to Lender are true and correct in all material respects and fairly present the financial condition of Guarantor as of the respective dates thereof, and no materially adverse change has occurred in the financial conditions reflected therein since the respective dates thereof. None of the aforesaid financial statements or any certificate or statement furnished to Lender by or on behalf of Guarantor in connection with the transactions contemplated hereby, and none of the representations and warranties in this Guaranty contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein or herein not misleading. Guarantor is not insolvent within the meaning of the United States Bankruptcy Code or any other applicable law, code or regulation and the execution, delivery and performance of this Guaranty will not render Guarantor insolvent.

(g) Guarantor is the owner, directly or indirectly, of certain legal and beneficial equity interests in Borrower.

As a further inducement to Lender to make the Loan and in consideration thereof, Guarantor further covenants and agrees that Guarantor shall deliver to Lender (a) within ninety (90) days after the end of each Fiscal Year, (i) a complete copy of Guarantor’s annual financial statements (Y) audited by an Approved Accountant or (Z) provided the conditions in the immediately succeeding paragraph are met, unaudited and prepared by Guarantor and certified by the chief financial officer of Guarantor or the chief financial officer of the REIT, and (ii) a certificate of Guarantor setting forth the Net Worth (as defined below) and Liquid Assets (as defined below) of Guarantor in form, content, level of detail and scope satisfactory to Lender, (b) within forty-five (45) days after the end of each calendar quarter, financial statements (including a balance sheet as of the end of such fiscal quarter and a statement of income and expense for such fiscal quarter) certified by the chief financial officer of Guarantor or the chief financial officer of the REIT and in form, content, level of detail and scope reasonably satisfactory to Lender, and (c) ten (10) Business Days after request by Lender, such other financial information with respect to Guarantor as Lender may reasonably request.

Guarantor shall deliver the consolidated annual financial statements of the REIT audited by an Approved Accountant in accordance with GAAP (or such other method of accounting reasonably acceptable to Lender) for so long as (i) the REIT is a public company and

continues to file public financial statements and (ii) the REIT Controls the Guarantor. In the event the Guarantor delivers such audited annual financial statements of the REIT and the conditions in the immediately preceding sentence are met, then not withstanding anything in immediately preceding paragraph to the contrary, Guarantor shall not have to deliver any audited annual financial statements of Guarantor and Guarantor shall not be in breach of the immediately preceding paragraph provided that (i) such audited annual financial statements of the REIT shall contain a note indicating that Guarantor’s separate assets and liabilities are neither available to pay the debts of the consolidated entity nor constitute obligations of the consolidated entity, and (B) such assets shall also be listed on Guarantor’s own separate balance sheet.

As a further inducement to Lender to make the Loan and in consideration thereof, Guarantor further covenants and agrees with Lender as follows:

(a) Until the Debt been paid in full, Guarantor (including its consolidated subsidiaries with respect to Liquid Assets) (i) shall maintain (A) a Net Worth in excess of $150,000,000.00 (the “Net Worth Threshold”) and (B) Liquid Assets having a market value of at least $25,000,000.00 (the “Liquid Assets Threshold”) and (ii) shall not sell, pledge, mortgage or otherwise transfer any of its assets, or any interest therein, which would cause Guarantor’s Net Worth to fall below the Net Worth Threshold or Guarantor’s Liquid Assets to fall below the Liquid Assets Threshold.

(b) Guarantor shall not, at any time while an Event of Default has occurred and is continuing, either (i) enter into or effectuate any transaction with any Affiliate which would reduce the Net Worth of Guarantor below the Net Worth Threshold (including the payment of any dividend or distribution to a shareholder, or the redemption, retirement, purchase or other acquisition for consideration of any stock or interest in Guarantor) or (ii) sell, pledge, mortgage or otherwise transfer to any Person any of Guarantor’s assets, or any interest therein which would reduce the Net Worth Threshold of Guarantor below the Net Worth Threshold.

(c) As used herein, (I) “GAAP” shall mean generally accepted accounting principles, consistently applied, (II) “Liquid Assets” shall mean assets in the form of cash, cash equivalents, obligations of (or fully guaranteed as to principal and interest by) the United States or any agency or instrumentality thereof (provided the full faith and credit of the United States supports such obligation or guarantee), certificates of deposit issued by a commercial bank having net assets of not less than $500 million, securities listed and traded on a recognized stock exchange or traded over the counter and listed in the National Association of Securities Dealers Automatic Quotations, or liquid debt instruments that have a readily ascertainable value and are regularly traded in a recognized financial market, and (III) “Net Worth” shall mean, as of a given date, (x) the total assets (exclusive of any interest in the Property) of Guarantor as of such date less (y) Guarantor’s total liabilities as of such date, determined in accordance with GAAP.

As a further inducement to Lender to make the Loan and in consideration thereof, Guarantor further covenants and agrees (a) that in any action or proceeding brought by Lender against Guarantor on this Guaranty, Guarantor shall and does hereby waive trial by jury, (b) that the Supreme Court of the State of New York for the County of New York, or, in a case involving

diversity of citizenship, the United States District Court for the Southern District of New York, shall have exclusive jurisdiction of any such action or proceeding, and (c) that service of any summons and complaint or other process in any such action or proceeding may be made by registered or certified mail directed to Guarantor at Guarantor’s address set forth above, Guarantor waiving personal service thereof. Nothing in this Guaranty will be deemed to preclude Lender from bringing an action or proceeding with respect hereto in any other jurisdiction.

This is a guaranty of payment and not of collection and upon any default of Borrower under the Note, the Loan Agreement, or the other Loan Documents, Lender may, at its option, proceed directly and at once, without notice, against Guarantor to collect and recover the full amount of the liability hereunder or any portion thereof, without proceeding against Borrower or any other person, or foreclosing upon, selling, or otherwise disposing of or collecting or applying against the Property or other collateral for the Loan. Guarantor hereby waives the pleading of any statute of limitations as a defense to the obligation hereunder.

Each reference herein to Lender shall be deemed to include its successors and assigns, to whose favor the provisions of this Guaranty shall also inure. Each reference herein to Guarantor shall be deemed to include the heirs, executors, administrators, legal representatives, successors and assigns of Guarantor, all of whom shall be bound by the provisions of this Guaranty. If this Guaranty is signed by more than one Person, then all of the obligations of Guarantor arising hereunder shall be jointly and severally binding on each of the undersigned and shall be deemed to include their heirs, executors, administrators, legal representatives, successors and assigns, and the term “Guarantor” shall mean all of such Persons and each of them individually.

If any party hereto shall be a partnership, the agreements and obligations on the part of Guarantor herein contained shall remain in force and application notwithstanding any changes in the individuals composing the partnership and the term “Guarantor” shall include any altered or successive partnerships but the predecessor partnerships and their partners shall not thereby be released from any obligations or liability hereunder.

All notices required or permitted hereunder shall be given and shall become effective as provided in Section 10.6 of the Loan Agreement.

All notices to Guarantor shall be addressed as follows:

Spirit Realty, L.P.

16767 N. Perimeter Drive, Suite 210

Scottsdale, Arizona 85260

Attention: Chief Financial Officer

Facsimile No.: 480-256-1100

With a copy to:

Spirit Realty, L.P.

16767 N. Perimeter Drive, Suite 210

Scottsdale, Arizona 85260

Attention: Portfolio Services

Facsimile No.: 480-256-1100

All understandings, representations and agreements heretofore had with respect to this Guaranty are merged into this Guaranty which alone fully and completely expresses the agreement of Guarantor and Lender.

Lender may sell, transfer and deliver the Note and assign the Loan Agreement, the Security Instrument, this Guaranty and the other Loan Documents to one or more Investors in the secondary mortgage market subject to the terms of the Loan Agreement. In connection with such sale, Lender may retain or assign responsibility for servicing the Loan, including the Note, the Loan Agreement, the Security Instruments, this Guaranty and the other Loan Documents, or may delegate some or all of such responsibility and/or obligations to a servicer including, but not limited to, any subservicer or master servicer, on behalf of the Investors. All references to Lender herein shall refer to and include any such servicer to the extent applicable. To the extent Lender splits the Loan into multiple loans or mezzanine loans in accordance with the terms of the Loan Agreement, Guarantor agrees to execute a guaranty in substantially the form of this Guaranty for the benefit of the holders of any such loans.

This Guaranty may be executed in one or more counterparts by some or all of the parties hereto, each of which counterparts shall be an original and all of which together shall constitute a single agreement of Guaranty. The failure of any party hereto to execute this Guaranty, or any counterpart hereof, shall not relieve the other signatories from their obligations hereunder.

This Guaranty may not be modified, amended, waived, extended, changed, discharged or terminated orally or by any act or failure to act on the part of Lender or Borrower, but only by an agreement in writing signed by the party against whom enforcement of any modification, amendment, waiver, extension, change, discharge or termination is sought.

This Guaranty shall be governed, construed and interpreted as to validity, enforcement and in all other respects, in accordance with the laws of the State of New York.

With respect to the foregoing provisions contained in this Agreement, the following shall apply with respect to the State of Oklahoma: In addition to all other provisions contained herein, Guarantor further agrees that the validity of this Guaranty and the obligations of Guarantor hereunder shall in no way be terminated, affected or impaired by reason of Lender’s election to foreclose any lien created by the Loan Documents, in which case Lender is authorized to purchase for the respective accounts of the Lender all or any part of the collateral covered by such lien at public or private sale and to credit the actual amount recovered first against that portion of the obligations for which the Guarantor is not liable with any balance remaining to be applied in reduction of the liability of the Guarantor hereunder. Guarantor hereby waives any and all claims for set-off of the collateral’s fair market value under 12 O.S. Section 686.

[No further text on this page]

IN WITNESS WHEREOF, Guarantor has duly executed this Guaranty as of the date first above set forth.

SPIRIT REALTY, L.P., a Delaware limited partnership
By:	Spirit General OP Holdings, LLC, as sole general partner
	By:
		Name:
		Title:

EX-10.7

Exhibit 10.7

LOAN AGREEMENT

Dated as of July 17, 2013

between

SPIRIT SPE LOAN PORTFOLIO 2013-3, LLC,

as Borrower

and

BARCLAYS BANK PLC

as Lender

Table of Contents

				Page
I.	DEFINITIONS; PRINCIPLES OF CONSTRUCTION				1
	Section 1.1.	Definitions			1
	Section 1.2.	Principles of Construction			30
II.	GENERAL TERMS				30
	Section 2.1.	Loan Commitment; Disbursement to Borrower			31
		2.1.1.	Agreement to Lend and Borrow		31
		2.1.2.	Single Disbursement to Borrower		31
		2.1.3.	The Note, Security Instruments and Loan Documents		31
		2.1.4.	Use of Proceeds		31
	Section 2.2.	Interest; Loan Payments; Late Payment Charge			31
		2.2.1.	Payments		31
		2.2.2.	Interest Calculation		31
		2.2.3.	Payment on Maturity Date		32
		2.2.4.	Payments after Default		32
		2.2.5.	Late Payment Charge		32
		2.2.6.	Usury Savings		33
		2.2.7.	Indemnified Taxes		33
		2.2.8.	Invalidated Payments		35
	Section 2.3.	Prepayments			35
		2.3.1.	Voluntary Prepayments		35
		2.3.2.	Mandatory Prepayments		37
		2.3.3.	Prepayments After Default		37
		2.3.4.	Making of Payments		37
		2.3.5.	Application of Principal Prepayments		38
	Section 2.4.	[Intentionally deleted.]			38
	Section 2.5.	Release of an Individual Property			38
	Section 2.6.	Substitutions of Property			40
III.	CASH MANAGEMENT				46
	Section 3.1.	Establishment of Accounts			46
	Section 3.2.	Deposits into Lockbox Account			47
	Section 3.3.	Account Name			47
	Section 3.4.	Eligible Accounts			48
	Section 3.5.	Permitted Investments			48
	Section 3.6.	The Initial Deposits			48
	Section 3.7.	Transfer to and Disbursements from the Cash Management Account			48
	Section 3.8.	Withdrawals From the Tax Account and the Insurance Premium Account			50
	Section 3.9.	Withdrawals from the Required Repair Account			50

i

Table of Contents

(continued)

				Page
	Section 3.10.	Withdrawals from the Replacement Reserve Account			50
	Section 3.11.	Withdrawals from the Debt Service Account			50
	Section 3.12.	Withdrawals from the Rollover Reserve Account			50
	Section 3.13.	Withdrawals from the Excess Cash Reserve Account			50
	Section 3.14.	Sole Dominion and Control			50
	Section 3.15.	Security Interest			51
	Section 3.16.	Rights on Default			51
	Section 3.17.	Financing Statement; Further Assurances			51
	Section 3.18.	Borrower’s Obligation Not Affected			51
	Section 3.19.	Payments Received Under this Agreement			52
IV.	REPRESENTATIONS AND WARRANTIES				52
	Section 4.1.	Borrower Representations			52
		4.1.1.	Organization		52
		4.1.2.	Proceedings		52
		4.1.3.	No Conflicts		53
		4.1.4.	Litigation		53
		4.1.5.	Agreements		53
		4.1.6.	Title		54
		4.1.7.	Permitted Encumbrances		54
		4.1.8.	Solvency		54
		4.1.9.	Full and Accurate Disclosure		55
		4.1.10.	No Plan Assets		55
		4.1.11.	Compliance		55
		4.1.12.	Financial Information		55
		4.1.13.	Condemnation		56
		4.1.14.	Federal Reserve Regulations		56
		4.1.15.	Utilities and Public Access		56
		4.1.16.	Not a Foreign Person		56
		4.1.17.	Separate Lots		56
		4.1.18.	Assessments		57
		4.1.19.	Enforceability		57
		4.1.20.	No Prior Assignment		57
		4.1.21.	Insurance		57
		4.1.22.	Use of Property		57
		4.1.23.	Certificate of Occupancy; Licenses		57
		4.1.24.	Flood Zone		57
		4.1.25.	Physical Condition		58
		4.1.26.	Boundaries		58
		4.1.27.	Leases		58
		4.1.28.	Title and Survey		59
		4.1.29.	Loan to Value		59
		4.1.30.	Filing and Recording Taxes		59

ii

Table of Contents

(continued)

				Page
		4.1.31.	Management Agreement		60
		4.1.32.	Illegal Activity		60
		4.1.33.	No Change in Facts or Circumstances; Disclosure		60
		4.1.34.	Investment Company Act		60
		4.1.35.	Principal Place of Business; State of Organization		61
		4.1.36.	Single Purpose Entity		61
		4.1.37.	Business Purposes		66
		4.1.38.	Taxes		66
		4.1.39.	Forfeiture		66
		4.1.40.	Environmental Representations and Warranties		66
		4.1.41.	Taxpayer Identification Number		67
		4.1.42.	OFAC		67
		4.1.43.	Pre-Existing Liability		68
		4.1.44.	Deposit Accounts		68
		4.1.45.	Embargoed Person		69
		4.1.46.	Third Party Representations		69
		4.1.47.	Insolvency Opinion Assumptions		69
	Section 4.2.	Survival of Representations			69
V.	BORROWER COVENANTS				70
	Section 5.1.	Affirmative Covenants			70
		5.1.1.	Existence; Compliance with Legal Requirements		70
		5.1.2.	Taxes and Other Charges		70
		5.1.3.	Litigation		71
		5.1.4.	Access to Property		71
		5.1.5.	Notice of Default		72
		5.1.6.	Cooperate in Legal Proceedings		72
		5.1.7.	Award and Insurance Benefits		72
		5.1.8.	Further Assurances		72
		5.1.9.	Mortgage and Intangible Taxes		73
		5.1.10.	Financial Reporting		73
		5.1.11.	Business and Operations		76
		5.1.12.	Costs of Enforcement		76
		5.1.13.	Estoppel Statement		76
		5.1.14.	Loan Proceeds		77
		5.1.15.	Performance by Borrower		77
		5.1.16.	Confirmation of Representations		77
		5.1.17.	Leasing Matters		77
		5.1.18.	Management Agreement		79
		5.1.19.	Environmental Covenants		80
		5.1.20.	Alterations		81
		5.1.21.	Intentionally Omitted		82

iii

Table of Contents

(continued)

				Page
		5.1.22.	OFAC		82
		5.1.23.	O&M Program		82
		5.1.24.	Single Purpose Entity Compliance		83
	Section 5.2.	Negative Covenants			83
		5.2.1.	Liens		83
		5.2.2.	Dissolution		83
		5.2.3.	Change In Business		84
		5.2.4.	Debt Cancellation		84
		5.2.5.	Zoning		84
		5.2.6.	No Joint Assessment		84
		5.2.7.	Name, Identity, Structure, or Principal Place of Business		84
		5.2.8.	ERISA		84
		5.2.9.	Affiliate Transactions		85
		5.2.10.	Transfers		85
		5.2.11.	Transfer and Assumption		88
VI.	INSURANCE; CASUALTY; CONDEMNATION; REQUIRED REPAIRS				90
	Section 6.1.	Insurance			90
	Section 6.2.	Casualty			96
	Section 6.3.	Condemnation			96
	Section 6.4.	Restoration			97
VII.	RESERVE FUNDS				103
	Section 7.1.	Required Repair Funds			103
		7.1.1.	Deposits to Required Repair Fund		103
		7.1.2.	Release of Required Repair Funds		104
	Section 7.2.	Tax and Insurance Escrow Fund			105
	Section 7.3.	Replacements and Replacement Reserve Fund			106
		7.3.1.	Deposits to Replacement Reserve Fund		106
		7.3.2.	Disbursements from Replacement Reserve Account		106
		7.3.3.	Performance of Replacements		108
		7.3.4.	Failure to Make Replacements		110
		7.3.5.	Balance in the Replacement Reserve Account		110
	Section 7.4.	Rollover Reserve Fund			110
		7.4.1.	Deposits to Rollover Reserve Fund		110
		7.4.2.	Letter of Credit		110
		7.4.3.	Withdrawal of Rollover Reserve Funds		112
	Section 7.5.	Art Van (Bedford Park) Lease Reserve Fund			112
	Section 7.6.	Excess Cash Flow Reserve Fund			112

iv

Table of Contents

(continued)

				Page
		7.6.1.	Deposits to Excess Cash Reserve Fund		112
		7.6.2.	Withdrawal of Excess Cash Flow Reserve Funds		112
	Section 7.7.	Reserve Funds, Generally			113
VIII.	DEFAULTS				113
	Section 8.1.	Event of Default			113
	Section 8.2.	Remedies			118
	Section 8.3.	Remedies Cumulative; Waivers			119
IX.	SPECIAL PROVISIONS				119
	Section 9.1.	Sale of Notes and Securitization			119
	Section 9.2.	Securitization Indemnification			122
	Section 9.3.	Servicer			124
	Section 9.4.	Exculpation			125
	Section 9.5.	Mezzanine Financing			129
	Section 9.6.	Splitting the Loan			130
	Section 9.7.	Loan Component Repayment			131
X.	MISCELLANEOUS				131
	Section 10.1.	Survival			131
	Section 10.2.	Lender’s Discretion			131
	Section 10.3.	Governing Law			131
	Section 10.4.	Modification, Waiver in Writing			132
	Section 10.5.	Delay Not a Waiver			132
	Section 10.6.	Notices			132
	Section 10.7.	Trial by Jury			133
	Section 10.8.	Headings			134
	Section 10.9.	Severability			134
	Section 10.10.	Preferences			134
	Section 10.11.	Waiver of Notice			134
	Section 10.12.	Remedies of Borrower			134
	Section 10.13.	Expenses; Indemnity			135
	Section 10.14.	Schedules and Exhibits Incorporated			136
	Section 10.15.	Offsets, Counterclaims and Defenses			136
	Section 10.16.	No Joint Venture or Partnership; No Third Party Beneficiaries			136
	Section 10.17.	Publicity			137
	Section 10.18.	Cross-Default; Cross-Collateralization; Waiver of Marshalling of Assets			137
	Section 10.19.	Waiver of Counterclaim			138
	Section 10.20.	Conflict; Construction of Documents; Reliance			138
	Section 10.21.	Brokers and Financial Advisors			138
	Section 10.22.	Prior Agreements			138

v

LOAN AGREEMENT

THIS LOAN AGREEMENT, dated as of July 17, 2013 (as amended, restated, replaced, supplemented or otherwise modified from time to time, this “Agreement”), between BARCLAYS BANK PLC, a public company registered in England and Wales having an address at 745 Seventh Avenue, New York, New York 10019 (“Barclays” or “Lender”) and SPIRIT SPE LOAN PORTFOLIO 2013-3, LLC, a Delaware limited liability company, having its principal place of business at 16767 N. Perimeter Drive, Suite 210, Scottsdale, Arizona 85260-1042 (“Borrower”).

W I T N E S S E T H:

WHEREAS, Borrower desires to obtain the Loan (as hereinafter defined) from Lender; and

WHEREAS, Lender is willing to make the Loan to Borrower, subject to and in accordance with the terms of this Agreement and the other Loan Documents (as hereinafter defined).

NOW THEREFORE, in consideration of the making of the Loan by Lender and the covenants, agreements, representations and warranties set forth in this Agreement, the parties hereto hereby covenant, agree, represent and warrant as follows:

I. DEFINITIONS; PRINCIPLES OF CONSTRUCTION

Section 1.1. Definitions.

For all purposes of this Agreement, except as otherwise expressly required or unless the context clearly indicates a contrary intent:

“Account Collateral” shall mean: (i) the Accounts, and all Cash, checks, drafts, certificates and instruments, if any, from time to time deposited or held in the Accounts from time to time; (ii) any and all amounts invested in Permitted Investments; (iii) all interest, dividends, Cash, instruments and other property from time to time received, receivable or otherwise payable in respect of, or in exchange for, any or all of the foregoing; and (iv) to the extent not covered by clauses (i) - (iii) above, all “proceeds” (as defined under the UCC as in effect in the State in which the Accounts are located) of any or all of the foregoing.

“Accounts” shall mean, collectively, the Lockbox Account, the Tax Account, the Insurance Premium Account, the Required Repair Account, the Replacement Reserve Account, the Debt Service Account, the Rollover Reserve Account, the Cash Management Account, the Excess Cash Reserve Account or any other escrow accounts or reserve accounts established by the Loan Documents.

“Additional Collateral” shall have the meaning set forth in the Assignment of Agreements Affecting Real Estate.

“Additional Indemnified Liabilities” shall have the meaning set forth in Section 10.13(b) hereof.

“Affiliate” shall mean, as to any Person, any other Person that, directly or indirectly, is in control of, is controlled by or is under common control with such Person or is a director or officer of such Person or of an Affiliate of such Person. Such term shall include Guarantor unless otherwise specified or if the context may otherwise require.

“Affiliated Manager” shall mean any property manager which is an Affiliate of, or in which Borrower or Guarantor has, directly or indirectly, any legal, beneficial or economic interest.

“Allocated Loan Amount” shall mean, for an Individual Property, the amount set forth on Schedule I attached hereto.

“ALTA” shall mean American Land Title Association or any successor thereto.

“Alteration Threshold” shall mean an amount equal to five percent (5%) of the Allocated Loan Amount for the related Individual Property.

“Annual Budget” shall mean the projected budget for all anticipated operating expenditures required to be made by Borrower as landlord and solely to the extent any Tenant under a Single Tenant Lease is not otherwise obligated to pay the same, including maintenance, operating expenses, capital expenditures and repair obligations (excluding any allocated insurance premium), for the applicable Individual Property, prepared by Borrower for the applicable Fiscal Year or other period.

“Applicable Interest Rate” shall mean 5.5% per annum.

“Applicable Laws” shall mean all existing and future federal, state and local laws, orders, ordinances, governmental rules and regulations and court orders.

“Appraisal” shall mean an appraisal prepared in accordance with the requirements of FIRREA and USPAP, prepared by an independent third party appraiser holding an MAI designation, who is State licensed or State certified if required under the laws of the State where the applicable Individual Property is located, who meets the requirements of FIRREA and USPAP and who is otherwise satisfactory to Lender.

“Approved Accountant” shall mean a “Big Four” accounting firm or other independent certified public accountant acceptable to Lender.

“Approved Annual Budget” shall have the meaning set forth in Section 5.1.10(e) hereof.

“Approved Bank” means either (a) a bank or other financial institution which has the Required Rating, (b) if a Securitization has not occurred, a bank or other financial institution acceptable to Lender or (c) if a Securitization has occurred, a bank or other financial institution reasonably acceptable to Lender with respect to which Lender shall have received confirmation in writing from the applicable Rating Agencies to the effect that the issuance of a Letter of Credit

2

from such bank or such financial institution will not result in a downgrading, withdrawal or qualification of the respective ratings in effect immediately prior to the issuance of such Letter of Credit.

“Art Van Lease” shall mean that certain Lease Agreement, dated March 20, 2013, by and between Borrower, as successor-in-interest to Cole HD Bedford Park IL, LLC, as landlord and Art Van Furniture, Inc., as tenant.

“Art Van (Bedford Park) Lease Reserve Fund” shall have the meaning set forth in Section 7.5 hereof.

“Assignment of Agreements Affecting Real Estate” shall mean, that certain Assignment of Agreements Affecting Real Estate, dated as of the date hereof, from Borrower, as assignor, to Lender, as assignee, assigning to Lender all of Borrower’s interest in and to the Additional Collateral as security for the Loan, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Assignment of Management Agreement” shall mean, if Borrower has hired a Manager, a conditional assignment of management agreement in form and substance acceptable to Lender as and when required to be delivered to Lender in accordance with the terms of this Agreement.

“Award” shall mean any compensation paid by any Governmental Authority in connection with a Condemnation in respect of all or any part of any Individual Property.

“Bankruptcy Code” shall mean Title 11 U.S.C. § 101 et seq., and the regulations adopted and promulgated pursuant thereto (as the same may be amended from time to time).

“Bankruptcy Event” shall mean the occurrence of any one or more the of the following: (i) Borrower files a voluntary petition under the Bankruptcy Code or any other Creditors Rights Laws; (ii) any Borrower Party files, or joins in the filing of, an involuntary petition against Borrower under the Bankruptcy Code or any other Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower from any Person; (iii) Borrower files an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person under the Bankruptcy Code or any other Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition from any Person; (iv) any Borrower Party consents to or acquiesces in or joins in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower or any portion of any Individual Property; (v) Borrower makes an assignment for the benefit of creditors; (vi) Borrower admits, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due unless failure to do so would be a violation of or contrary to any Legal requirement; (vii) the substantive consolidation of any Restricted Party with any other entity in connection with any proceeding under the Bankruptcy Code or any other Creditors Rights Laws involving Guarantor or its subsidiaries due to a breach by Borrower of Section 4.1.36 hereof; (viii) any Loan Party contesting or opposing any motion made by Lender to obtain relief from the automatic stay or seeking to reinstate the automatic stay in the event of any proceeding under the Bankruptcy Code or any other Creditors Rights Laws involving Guarantor its subsidiaries; and (ix) in the event Lender receives less than the full value of its

3

claim in any proceeding under the Bankruptcy Code or any other Creditors Rights Laws, Guarantor or any of its Affiliates receiving an equity interest or other financial benefit of any kind as a result of a “new value” plan or equity contribution, unless consented to by Lender in its sole and absolute discretion.

“Barclays” shall have the meaning set forth in the introductory paragraph hereto, together with its successors and assigns.

“Basic Carrying Costs” shall mean, with respect to each Individual Property, the sum of the following costs associated with such Individual Property for the relevant Fiscal Year or payment period: (i) Taxes and (ii) Insurance Premiums.

“Borrower” shall have the meaning set forth in the introductory paragraph hereto, together with its successors and assigns.

“Borrower Party” shall mean each of Borrower and Guarantor.

“Business Day” shall mean any day other than a Saturday, Sunday or any other day on which national banks in New York, New York are not open for business.

“Capital Expenditures” shall mean, for any period, the amount expended by Borrower for items capitalized under GAAP (including expenditures for building improvements or major repairs, leasing commissions and tenant improvements).

“Cash” shall mean coin or currency of the United States of America or immediately available federal funds, including such fund delivered by wire transfer.

“Cash Management Account” shall have the meaning set forth in Section 3.1(b)(i) hereof.

“Cash Management Bank” shall mean a financial institution selected by Lender, in Lender’s sole and absolute discretion.

“Casualty” shall have the meaning set forth in Section 6.2 hereof.

“Casualty Consultant” shall have the meaning set forth in Section 6.4(b)(iii) hereof.

“Casualty Retainage” shall have the meaning set forth in Section 6.4(b)(iv) hereof.

“Closing Date” shall mean the date of the funding of the Loan.

“Code” shall mean the Internal Revenue Code of 1986, as amended, as it may be further amended from time to time, and any successor statutes thereto, and all applicable U.S. Department of Treasury regulations issued pursuant thereto in temporary or final form.

“Collateral” shall mean the Properties, the Accounts, the Reserve Funds, the Guaranty, the Personal Property, the Rents, the Account Collateral, and all other real or personal property of Borrower or any Guarantor that is at any time pledged, mortgaged or otherwise given as

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security to Lender for the payment of the Debt under the Security Instruments, this Agreement or any other Loan Document.

“Condemnation” shall mean a temporary or permanent taking by any Governmental Authority as the result or in lieu or in anticipation of the exercise of the right of condemnation or eminent domain, of all or any part of any Individual Property, or any interest therein or right accruing thereto, including any right of access thereto or any change of grade affecting such Individual Property or any part thereof.

“Condemnation Proceeds” shall have the meaning set forth in Section 6.4(b) hereof.

“Control” (and the correlative terms “controlled by” and “controlling”) shall mean the possession, directly or indirectly, of the power to direct or cause the direction of management and policies of the business and affairs of the entity in question by reason of the ownership of beneficial interests, by contract or otherwise.

“Creditors Rights Laws” shall mean with respect to any Person, any existing or future law of any jurisdiction, domestic or foreign, applicable to such Person and relating to bankruptcy, insolvency, reorganization, conservatorship, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to its debts or debtors.

“Debt” shall mean the outstanding principal amount set forth in, and evidenced by, this Agreement and the Note together with all interest accrued and unpaid thereon and all other sums (including the Yield Maintenance Premium and any applicable Liquidated Damages Amount) due to Lender in respect of the Loan under the Note, this Agreement, the Security Instruments or any other Loan Document.

“Debt Service” shall mean, with respect to any particular period of time, interest and principal payments due under the Note, for such period.

“Debt Service Account” shall have the meaning set forth in Section 3.1(b)(ii)(C) hereof.

“Debt Service Coverage Ratio” shall mean as of the date of calculation, a ratio, as reasonably determined by Lender for the applicable period in which:

(a) the numerator is the Underwritten Net Cash Flow for such period; and

(b) the denominator is the Debt Service due for such period.

Lender’s calculation of the Debt Service Coverage Ratio shall be conclusive absent manifest error.

“Debt Yield” shall mean as of the date of calculation, a ratio conveyed as a percentage in which: (i) the numerator is the Underwritten Net Cash Flow for such period; and (ii) the denominator is the then outstanding principal balance of the Loan.

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“Default” shall mean the occurrence of any event hereunder or under any other Loan Document which, but for the giving of notice or passage of time, or both, would constitute an Event of Default.

“Default Rate” shall mean, with respect to the Loan, a rate per annum equal to the lesser of (a) the Maximum Legal Rate, or (b) three percent (3%) above the Applicable Interest Rate.

“Disclosure Document” shall have the meaning set forth in Section 9.2(a) hereof.

“Discount Rate” shall mean the rate which, when compounded monthly, is equivalent to the Treasury Rate when compounded semi annually.

“Eligible Account” shall mean a separate and identifiable account from all other funds held by the holding institution that is either (a) an account or accounts maintained with a federal or State-chartered depository institution or trust company which complies with the definition of Eligible Institution or (b) a segregated trust account or accounts maintained with a federal or State chartered depository institution or trust company acting in its fiduciary capacity which, in the case of a State chartered depository institution or trust company, is subject to regulations substantially similar to 12 C.F.R.§9.10(b), having in either case a combined capital and surplus of at least $50,000,000 and subject to supervision or examination by federal and State authority. An Eligible Account will not be evidenced by a certificate of deposit, passbook or other instrument.

“Eligible Institution” shall mean a depository institution or trust company, insured by the Federal Deposit Insurance Corporation, (a) the short term unsecured debt obligations or commercial paper of which are rated at least A-1 by S&P, P-1 by Moody’s and F-1 by Fitch in the case of accounts in which funds are held for thirty (30) days or less, or (b) the long term unsecured debt obligations of which are rated at least “AA” by Fitch and S&P and “Aa2” by Moody’s in the case of accounts in which funds are held for more than thirty (30) days.

“Embargoed Person” shall have the meaning set forth in Section 4.1.45 hereof.

“Environmental Indemnity” shall mean that certain Environmental Indemnity Agreement dated as of the date hereof by Borrower and Guarantor in connection with the Loan for the benefit of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Environmental Law” shall mean any present and future federal, State and local laws, statutes, ordinances, rules, regulations, standards, and other governmental requirements, as well as common law, relating to the protection of the environment, Hazardous Materials and human exposure to Hazardous Materials, liability for, or costs of, other actual or threatened danger to human health or the environment. The term “Environmental Law” includes, but is not limited to, the following statutes, as amended, any successor thereto, and any regulations promulgated pursuant thereto, and any State or local statutes, ordinances, rules, regulations and the like addressing similar issues: the Comprehensive Environmental Response, Compensation and Liability Act; the Emergency Planning and Community Right-to-Know Act; the Hazardous Substances Transportation Act; the Resource Conservation and Recovery Act (including but not limited to Subtitle I relating to underground storage tanks); the Solid Waste Disposal Act; the

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Clean Water Act; the Clean Air Act; the Toxic Substances Control Act; the Safe Drinking Water Act; the Occupational Safety and Health Act; the Federal Water Pollution Control Act; the Federal Insecticide, Fungicide and Rodenticide Act; the Endangered Species Act; the National Environmental Policy Act; and the River and Harbors Appropriation Act. The term “Environmental Law” also includes, but is not limited to, any present and future federal, State and local laws, statutes ordinances, rules, regulations and the like, as well as common law, conditioning transfer of property upon a negative declaration or other approval of a governmental authority of the environmental condition of any Individual Property; requiring notification or disclosure of Releases of Hazardous Materials or other environmental condition of any Individual Property to any Governmental Authority or other Person, whether or not in connection with transfer of title to or interest in property; imposing conditions or requirements in connection with permits or other authorization for lawful activity; relating to Hazardous Materials on or affecting any Individual Property; and relating to wrongful death or personal injury resulting from exposure to Hazardous Materials, or property damage or other damage from the presence or Release of Hazardous Materials from an Individual Property.

“Environmental Liens” shall have the meaning set forth in Section 5.1.19(a) hereof.

“Environmental Report” shall have the meaning set forth in Section 4.1.40 hereof.

“Equity Change of Control” shall occur when: (i) Guarantor is no longer the sole member of Borrower, (ii) Spirit Holdings is no longer the sole general partner of Guarantor, (iii) the REIT’s direct interest in Guarantor and/or its indirect interest in Borrower falls below 51%, (iv) the Guarantor is no longer the guarantor/indemnitor of the Loan, (v) one person or entity or group of affiliated persons or entities (other than the REIT, which owns more than 49% of the OP Interests on the date hereof) acquires more than 49% of the REIT Shares or the OP Interests in one or a series of transactions, (vi) the individuals comprising the board of directors of the REIT, as the same exists for the twelve (12) month period immediately prior to the REIT Share Transfer, fail to represent a majority of the board of directors of the REIT as of the date of completion of the REIT Share Transfer and for a period of six (6) months following the REIT Share Transfer, subject to the terms of the last sentence of this paragraph, or (vii) if the REIT enters into a merger, consolidation or other business combination, or a sale of all or substantially all of the REIT’s assets and/or ownership interests which results in the REIT or Guarantor not being the surviving entity or Borrower otherwise no longer being controlled by the REIT. For purposes of determining the occurrence of (vi) above, the following shall be expressly excluded: any change in directors resulting from (A) the death or incapacity of any director and/or (B) the resignation or removal of or refusing to stand or failure to be re-nominated for reelection of the Board of any director for reasons unrelated to a REIT Share Transfer, provided any replacement director has been approved by a vote of at least a majority (or such higher percentage as may be required by the governing documents of the REIT) of the board of directors of the REIT then in office.

“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as the same may be amended from time to time.

“Event of Default” shall have the meaning set forth in Section 8.1(a) hereof.

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“Excess Cash Reserve Account” shall have the meaning set forth in Section 3.1(b)(ii)(G) hereof.

“Excess Cash Reserve Fund” shall have the meaning set forth in Section 7.6.1 hereof.

“Exchange Act” shall have the meaning set forth in Section 9.2(a) hereof.

“Exchange Act Filing” shall have the meaning set forth in Section 9.2(a) hereof.

“Exchange Property” shall have the meaning set forth in Section 2.6 hereof.

“Executive Order” shall have the meaning set forth in the definition of Prohibited Persons.

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

“FIRREA” shall mean the Financial Institutions Reform, Recovery and Enforcement Act of 1989, as the same may be amended from time to time.

“Fiscal Year” shall mean each twelve (12) month period commencing on January 1 and ending on December 31 during the term of the Loan.

“Fitch” shall mean Fitch, Inc.

“Flood Insurance Acts” shall have the meaning set forth in Section 6.1(a)(vii) hereof.

“Flood Insurance Policy” shall have the meaning set forth in Section 6.1(a)(vii) hereof.

“GAAP” shall mean generally accepted accounting principles in the United States of America as of the date of the applicable financial report.

“Governmental Authority” shall mean any court, board, agency, commission, office, central bank or other authority of any nature whatsoever for any governmental unit (federal, State, county, district, municipal, city, country or otherwise) or quasi-governmental unit whether now or hereafter in existence.

“Governmental Plan” shall mean a “governmental plan” as defined in Section 3(32) of ERISA.

“Gross Income from Operations” shall mean all income, computed in accordance with GAAP derived from the ownership and operation of the Properties from whatever source, including, but not limited to, the Rents, utility charges, escalations, service fees or charges, license fees, parking fees, rent concessions or credits, and other required pass-throughs, but excluding sales, use and occupancy or other taxes on receipts required to be accounted for by

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Borrower to any Governmental Authority, refunds and uncollectible accounts, sales of furniture, fixtures and equipment, Insurance Proceeds (other than business interruption or other loss of income insurance), Awards, interest on credit accounts, security deposits, utility and other similar deposits, interest on the Reserve Funds, and any disbursements to Borrower from the Reserve Funds. Gross income shall not be diminished as a result of the Security Instruments or the creation of any intervening estate or interest in an Individual Property or any part thereof.

“Guarantor” shall mean Spirit Realty, L.P., a Delaware limited partnership, and any other entity guaranteeing any payment or performance obligation of Borrower.

“Guaranty” shall mean that certain Guaranty of Recourse Obligations of Borrower, dated as of the date hereof, from Guarantor to Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Hazardous Materials” shall mean any and all substances (whether solid, liquid or gas) defined, listed, or otherwise classified as pollutants, hazardous wastes, hazardous substances, hazardous materials, extremely hazardous wastes, or words of similar meaning or regulatory effect under any present or future Environmental Laws, including but not limited to Mold, petroleum and petroleum products, asbestos and asbestos-containing materials, polychlorinated biphenyls, lead, radon, radioactive materials, flammables and explosives, but excluding substances of kinds and in amounts ordinarily and customarily used or stored in similar properties for the purposes of cleaning or other maintenance or operations and otherwise in compliance with all Environmental Laws.

“Improvements” shall have the meaning set forth in Article 1 of the related Security Instrument with respect to each Individual Property.

“Indemnified Parties” shall mean Lender, any Affiliate of Lender who is or will have been involved in the origination of the Loan, any Person who is or will have been involved in the servicing of the Loan, any Person in whose name the encumbrance created by the Security Instruments is or will have been recorded, Persons who may hold or acquire or will have held a full or partial interest in the Loan, the holders of any Securities, as well as custodians, trustees and other fiduciaries who hold or have held a full or partial interest in the Loan for the benefit of third parties) as well as the respective directors, officers, shareholders, partners, members, employees, agents, servants, representatives, contractors, subcontractors, Affiliates, subsidiaries, participants, successors and assigns of any and all of the foregoing (including but not limited to any other Person who holds or acquires or will have held a participation or other full or partial interest in the Loan or any Individual Property, whether during the term of the Loan or as a part of or following a foreclosure of the Loan and including, but not limited to, any successors by merger, consolidation or acquisition of all or a substantial portion of Lender’s assets and business).

“Indemnified Taxes” shall mean any present or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

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“Independent Director” shall mean a natural Person who (a) is not at the time of initial appointment and has never been, and will not while serving as Independent Director be: (i) a stockholder, director (with the exception of serving as the Independent Director of Borrower or Principal, if any), officer, employee, partner, member (other than a “Special Member” or “springing member”), manager (other than as an Independent Director), attorney or counsel of Borrower, equity owners of Borrower or any Guarantor or any Affiliate of Borrower or any Guarantor; (ii) a customer, supplier or other person who derives any of its purchases or revenues from its activities with Borrower or any Guarantor, equity owners of Borrower or any Guarantor or any Affiliate of Borrower or any Guarantor; (iii) a Person controlling or under common control with any such stockholder, director, officer, employee, partner, member, manager, attorney, counsel, equity owner, customer, supplier or other Person of Borrower, equity owners of Borrower or any Guarantor or any Affiliate of Borrower or any Guarantor; or (iv) a member of the immediate family of any such stockholder, director, officer, employee, partner, member, manager, attorney, counsel, equity owner, customer, supplier or other Person of Borrower, equity owners of Borrower or any Guarantor or any Affiliate of Borrower or any Guarantor and (b) has (i) prior experience as an independent director or independent manager for a corporation, a trust or limited liability company whose charter documents required the unanimous consent of all independent directors or independent managers thereof before such corporation, trust or limited liability company could consent to the institution of bankruptcy or insolvency proceedings against it or could file a petition seeking relief under any applicable federal or state law relating to bankruptcy and (ii) at least three (3) years of employment experience with CT Corporation, Corporation Service Company or National Registered Agents, Inc. or if none of these companies is then providing professional independent directors, another nationally recognized company acceptable to Lender, that is not an Affiliate of Borrower and that provides, inter alia, professional independent directors or independent managers in the ordinary course of their respective business to issuers of securitization or structured finance instruments, agreements or securities or lenders originating commercial real estate loans for inclusion in securitization or structured finance instruments, agreements or securities (a “Professional Independent Director”) and is an employee of such a company or companies at all times during his or her service as an Independent Director. A natural Person who satisfies the foregoing definition except for being (or having been) the independent director or independent manager of a “special purpose entity” Affiliated with Borrower or Principal, if any (provided such Affiliate does not or did not own a direct or indirect equity interest in Borrower or Principal, if any) shall not be disqualified from serving as an Independent Director, provided that such natural Person satisfies all other criteria set forth above and that the fees such individual earns from serving as independent director or independent manager of Affiliates of Borrower or in any given year constitute in the aggregate less than five percent (5%) of such individual’s annual income for that year. A natural Person who satisfies the foregoing definition other than subparagraph (a)(ii) shall not be disqualified from serving as an Independent Director if such individual is a Professional Independent Director and such individual complies with the requirements of the previous sentence.

“Initial Deposits” shall have the meaning set forth in Section 3.6 hereof.

“Individual Property” shall mean each parcel of real property, the Improvements thereon and all Personal Property owned by Borrower and encumbered by a Security Instrument, together with all rights pertaining to such Property and the Improvements, as more particularly described in Article 1 of each Security Instrument and referred to therein as the “Property.”

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“Insolvency Opinion” shall mean, that certain substantive bankruptcy non-consolidation opinion letter delivered to Lender by Richards, Layton & Finger, P.A. in connection with the closing of the Loan.

“Insurance Premium Account” shall have the meaning set forth in Section 3.1(b)(ii)(B) hereof.

“Insurance Premiums” shall have the meaning set forth in Section 6.1(b) hereof.

“Insurance Proceeds” shall have the meaning set forth in Section 6.4(b) hereof.

“Interest Accrual Period” shall mean shall mean the period beginning on (and including) the eleventh (11th) day of each calendar month during the term of the Loan and terminating on the tenth (10th) day of the next succeeding calendar month; provided, however, that the initial Interest Accrual Period shall begin on the Closing Date and shall end on the immediately following tenth (10th) day of a calendar month.

“Investment Grade Tenant” shall mean shall mean a tenant under a Lease whose short term unsecured debt obligations or commercial paper or long term unsecured debt obligations are rated BBB- (or its equivalent) or better by S&P or Baa3 (or its equivalent) or better by Moody’s, and, if rated by both S&P and Moody’s, then rated BBB- (or its equivalent) or better by S&P and Baa3 (or its equivalent) or better by Moody’s. A tenant shall also be deemed to be an Investment Grade Tenant to the extent the applicable Lease is guaranteed by an entity meeting the foregoing criteria.

“Investor” shall have the meaning set forth in Section 5.1.10(h) hereof.

“Investor Eligibility Requirements” means, with respect to any Person, that such Person (i) has total assets (in name or under management or advisement) in excess of $750,000,000 (exclusive of the Properties) and (except with respect to a pension advisory firm, asset manager or similar fiduciary) capital/statutory surplus or shareholder’s equity or net worth of at least $400,000,000 (exclusive of the Properties) and (ii) has ownership interests in or operates commercial properties similar to the Properties in the United States totaling at least 2,000,000 square feet (exclusive of the Properties).

“La Grange Property” shall mean that certain Individual Property located at 203A Commerce Street, LaGrange, Georgia.

“La Grange REA Agreements” shall mean, individually or collectively, as the context may require (a) that certain Easement and Profit Agreement dated Match 14^th, 1983 by and among Kahn Corporation and Associated Investments Limited Partnership, J.D.N. Enterprises, Inc. and Peter F. Hoffman, an individual, (b) that certain Easement and Restrictive Covenant Agreement dated October 5^th, 1983 by and between Peter F. Hoffman, an individual and J.D.N. Enterprises, Inc., as amended by that certain First Amendment to Easement and Restrictive Covenant Agreement dated September 7, 1984, and (c) that certain Reciprocal Easement Agreement dated January 21, 1998 by and between Commerce L.L.C., Commerce Shops L.L.C. and The Kroger Co., as the same may be amended, modified and/or supplemented from time to time.

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“Lease Termination Payments” shall mean all payments made to Borrower in connection with any termination, cancellation, surrender, sale or other disposition of any Lease.

“Leases” shall have the meaning set forth in Article 1 of the Security Instrument with respect to each Individual Property.

“Legal Requirements” shall mean, with respect to each Individual Property, all federal, State, county, municipal and other governmental statutes, laws, rules, orders, regulations, ordinances, judgments, decrees and injunctions of Governmental Authorities affecting such Individual Property or any part thereof, or the zoning, construction, use, alteration, occupancy or operation thereof, or any part thereof, whether now or hereafter enacted and in force, and all permits, licenses and authorizations and regulations relating thereto, and all covenants, agreements, restrictions and encumbrances contained in any instruments, either of record or known to Borrower, at any time in force affecting such Individual Property or any part thereof, including any which may (a) require repairs, modifications or alterations in or to such Individual Property or any part thereof, or (b) in any way limit the use and enjoyment thereof.

“Lender” shall have the meaning set forth in the introductory paragraph hereto, together with its successors and assigns.

“Lender Group” shall have the meaning set forth in Section 9.2(b) hereof.

“Lender 80% Determination” means a determination by Lender that, based on a current or updated appraisal, a broker’s price opinion or other written determination of value using a commercially reasonable valuation method permitted pursuant to a REMIC Trust, the aggregate fair market value of the Properties securing the Debt at the time of such determination is at least eighty percent (80%) of the amount of the Debt (including any accrued and unpaid interest) at the time of such determination.

“Letter of Credit” shall mean an irrevocable, auto-renewing, unconditional, transferable, clean sight draft standby letter of credit having an initial term of not less than one (1) year and with automatic renewals for one (1) year periods (unless the obligation being secured by, or otherwise requiring the delivery of, such letter of credit is required to be performed at least thirty (30) days prior to the initial expiry date of such letter of credit), for which Borrower shall have no reimbursement obligation and which reimbursement obligation is not secured by the Properties or any other property pledged to secure the Note, in favor of Lender and entitling Lender to draw thereon in New York, New York, based solely on a statement that Lender has the right to draw thereon executed by an officer or authorized signatory of Lender. A Letter of Credit must be issued by an Approved Bank. Borrower’s delivery of any Letter of Credit hereunder shall, at Lender’s option, be conditioned upon Lender’s receipt of a new non-consolidation opinion relating to such Letter of Credit.

“Liabilities” shall have the meaning set forth in Section 9.2(b) hereof.

“Licenses” shall have the meaning set forth in Section 4.1.23 hereof.

“Lien” shall mean, with respect to each Individual Property, any mortgage, deed of trust, lien, pledge, hypothecation, assignment, security interest, or any other encumbrance, charge or

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transfer of, or on any of Borrower, the related Individual Property, any portion thereof or any interest therein, including any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, the filing of any financing statement, and mechanic’s, materialmen’s and other similar liens and encumbrances.

“Liquidated Damages Amount” shall have the meaning set forth in Section 2.3.3(b) hereof.

“LLC Agreement” shall have the meaning set forth in Section 4.1.36(cc) hereof.

“Loan” shall mean the loan made by Lender to Borrower pursuant to this Agreement and the other Loan Documents as the same may be amended or split pursuant to the terms hereof.

“Loan Documents” shall mean, collectively, this Agreement, the Note, the Security Instruments, the Assignment of Agreements Affecting Real Estate, the Environmental Indemnity, the Assignment of Management Agreement (if any), the Guaranty, the Lockbox Agreements and all other documents executed and/or delivered in connection with the Loan.

“Loan Party” shall mean each of Borrower, Guarantor and their respective Affiliates.

“Loan to Value Ratio” shall mean the ratio obtained by dividing (a) the outstanding principal balance of the Loan, by (b) the value of the Properties as set forth in the Appraisals obtained by Lender in connection with its underwriting of the Loan or any new Appraisals or updates thereto (which such appraisals or updates shall be in form and substance, reasonably acceptable to Lender) as applicable.

“Lockbox Account” shall have the meaning set forth in Section 3.1(a) hereof.

“Lockbox Agreement” shall mean that certain Blocked Account Control Agreement dated as of the date hereof, among Lender, Borrower, and Lockbox Bank.

“Lockbox Bank” shall mean JPMorgan Chase Bank, N.A., provided that it remains an Eligible Institution, and any successor Eligible Institution or other Eligible Institution selected by Borrower, subject to Lender’s prior written consent.

“Lockout Date” shall mean the date that is the earlier of (a) three (3) years from the Closing Date, or (b) two (2) years from the “startup day” within the meaning of Section 860G(a)(9) of the Code of the REMIC Trust of the final Securitization of any portion of the Loan.

“Losses” shall mean any and all claims, suits, liabilities (including, without limitation, strict liabilities), actions, proceedings, obligations, debts, damages, losses, costs, expenses, fines, penalties, charges, fees, expenses, judgments, awards, amounts paid in settlement of whatever kind or nature (including but not limited to reasonable attorneys’ fees and other costs of defense).

“Major Lease” shall mean (i) any Lease which together with all other Leases to the same Tenant and to all Affiliates of such Tenant, (A) provides for rental income representing twenty-five percent (25%) or more of the total rental income for any Individual Property, (B) covers

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twenty-five percent (25%) or more of the total space at any Individual Property, in the aggregate, (C) provides for a lease term of more than ten (10) years including options to renew or (D) is with an Affiliate of Borrower and (ii) any instrument guaranteeing or providing credit support for any Major Lease.

“Management Agreement” shall mean at such time, if any, that any Individual Property is managed by a Person other than Borrower, collectively, (a) a management agreement with a Qualified Manager, which management agreement shall be acceptable to Lender in form and substance, provided, with respect to this clause (a), after a Securitization, Lender, at its option, may require that Borrower obtain confirmation from the applicable Rating Agencies that such management agreement will not result in a downgrade, withdrawal or qualification of the initial, or if higher, then current rating of the Securities or any class thereof; (b) an Assignment of Management Agreement in form and substance acceptable to Lender, executed and delivered to Lender by Borrower and such Qualified Manager, in each case at Borrower’s expense; and (c) if such manager is an Affiliated Manager, Borrower shall have delivered, or cause to be delivered, to Lender, an updated Insolvency Opinion reasonably acceptable to Lender with respect to such Affiliated Manager. As of the date hereof, the Properties are self-managed and there is no Management Agreement in place.

“Manager” shall mean an entity selected as the manager of the Properties or any Individual Property in accordance with the terms of this Agreement.

“Maturity Date” shall mean the Payment Date in August 2023, or such other date on which the final payment of the principal of the Note becomes due and payable as therein or herein provided, whether at such stated maturity date, by declaration of acceleration, or otherwise.

“Maximum Legal Rate” shall mean the maximum nonusurious interest rate, if any, that at any time or from time to time may be contracted for, taken, reserved, charged or received on the indebtedness evidenced by the Note and as provided for herein or in the other Loan Documents, under the laws of such State or States whose laws are held by any court of competent jurisdiction to govern the interest rate provisions of the Loan.

“Member” shall have the meaning set forth in Section 4.1.36(cc) hereof.

“Mezzanine Borrower” shall have the meaning set forth in Section 9.5 hereof.

“Mezzanine Loan” shall have the meaning set forth in Section 9.5 hereof.

“Mezzanine Option” shall have the meaning set forth in Section 9.5 hereof.

“Minimum Disbursement Amount” shall mean Twenty-Five Thousand and No/100 ($25,000.00), or such lesser amount remaining in the applicable Reserve Account.

“Mold” shall mean fungi or bacterial matter which reproduces through the release of spores or the splitting of cells, including, but not limited to, mold, mildew, and viruses, whether or not such Mold is living.

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“Monthly Debt Service Payment Amount” shall mean a constant monthly payment amount of $579,906.13.

“Monthly Insurance Premium Deposit” shall have the meaning set forth in Section 7.2 hereof.

“Monthly Tax Deposit” shall have the meaning set forth in Section 7.2 hereof.

“Moody’s” shall mean Moody’s Investors Service, Inc.

“Mortgage Loan” shall have the meaning set forth in Section 9.5 hereof.

“Net Cash Flow” for any period shall mean the amount obtained by subtracting Operating Expenses and Capital Expenditures for such period from Gross Income from Operations for such period.

“Net Cash Flow After Debt Service” for any period shall mean the amount obtained by subtracting Debt Service for such period from Net Cash Flow for such period.

“Net Operating Income” shall mean the amount obtained by subtracting Operating Expenses from Gross Income from Operations.

“Net Proceeds” shall have the meaning set forth in Section 6.4(b) hereof.

“Net Proceeds Deficiency” shall have the meaning set forth in Section 6.4(b)(vi) hereof.

“Net Sales Proceeds” shall mean, with respect to any Individual Property, an amount equal to (a) the gross sales price and all other consideration from whatever source derived from the sale of such Individual Property less (b) the reasonable, demonstrable, out of pocket, third party, customary closing costs (excluding (i) prepaid brokerage commissions funded from the proceeds of the Loan and (ii) costs associated with qualifying hereunder for the applicable release of the Lien of the applicable Loan Documents) actually incurred by Borrower in connection with such sale (provided that the closing costs referenced in the foregoing subsection (b) shall not, in the aggregate, exceed six percent (6%) of the gross sales price for such Individual Property).

“Non-U.S. Entity” shall have the meaning set forth in Section 2.2.7(b) hereof.

“Note” shall mean, individually or collectively, as the context shall require that certain Promissory Note of even date herewith in the original principal amount of One Hundred Two Million, One Hundred Thirty-Four Thousand, Ninety and 65/00 Dollars ($102,134,090.65), made by Borrower in favor of Lender, as the same may be amended, restated, replaced, extended, renewed, supplemented, severed, split, or otherwise modified from time to time.

“O&M Program” shall mean, with respect to each Individual Property listed on Schedule VI hereof, the asbestos operations and maintenance program developed by Borrower and approved by Lender, as the same may be amended, replaced, supplemented or otherwise modified from time to time.

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“OFAC” shall have the meaning set forth in Section 4.1.42 hereof.

“Obligations” shall mean Borrower’s obligation to pay the Debt and perform its obligations under the Note, this Agreement and the other Loan Documents.

“Officer’s Certificate” shall mean a certificate delivered to Lender by Borrower which is signed by a Responsible Officer of Borrower.

“OP Interests” shall have the meaning set forth in Section 5.2.10(c).

“OP Transfer” shall have the meaning set forth in Section 5.2.10(c).

“Open Date” shall have the meaning set forth in Section 2.3.1 hereof.

“Operating Expenses” shall mean, for any period, without duplication, all expenses actually paid or payable by Borrower during such period in connection with the operation, management, maintenance, repair and use of the Property, except to the extent otherwise provided in this definition, determined, in each case, on an accrual basis, in accordance with GAAP. Operating Expenses specifically shall include (i) all expenses incurred by Borrower in the immediately preceding twelve (12) month period based on quarterly financial statements delivered to Lender in accordance with Section 5.1.10(c) hereof, (ii) all payments required to be made pursuant to any reciprocal easement agreement or any other covenants, restrictions, easements, declarations or agreements of record relating to the construction, operation or use of the Property, together with all amendments, modifications or supplements thereto, (iii) property management fees in an amount equal to the greater of two percent (2%) of Operating Income and the management fees actually paid under the Management Agreement, (iv) administrative, payroll, security and general expenses for the Property, (v) the cost of utilities, inventories and fixed asset supplies consumed in the operation of the Property, (vi) a reasonable reserve for uncollectible accounts, (vii) costs and fees of independent professionals (including legal, accounting, consultants and other professional expenses), technical consultants, operational experts (including quality assurance inspectors) or other third parties retained to perform services required or permitted hereunder, (viii) cost of attendance by employees at training and manpower development programs, (ix) association dues, (x) computer processing charges, (xi) operational equipment and other lease payments as reasonably approved by Lender, (xii) Taxes and Other Charges (other than income taxes or Other Charges in the nature of income taxes) and Insurance Premiums and (xiii) all underwritten reserves required by Lender hereunder (without duplication). Notwithstanding the foregoing, Operating Expenses shall not include (1) depreciation or amortization, (2) income taxes or Other Charges in the nature of income taxes, (3) any expenses (including legal, accounting and other professional fees, expenses and disbursements) incurred in connection with the making of the Loan or the sale, exchange, transfer, financing or refinancing of all or any portion of the Property or in connection with the recovery of Insurance Proceeds or Awards which are applied to prepay the Note, (4) Capital Expenditures, (5) Debt Service, and (6) any item of expense which would otherwise be considered within Operating Expenses pursuant to the provisions above but is paid directly by any Tenant. Notwithstanding the foregoing, for the purposes of the remittance of funds to Borrower pursuant to Section 3.7(b)(ix), the amount of such funds shall be calculated in a cash (and not an accrual) basis.

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“Operating Income” shall mean, for any period, all income of Borrower during such period from the use, ownership or operation of the Property, determined on an accrual basis of accounting determined in accordance with GAAP, including:

(a) all amounts payable to Borrower by any Person as Rent and other amounts under Leases or other agreements relating to the Property;

(b) business interruption insurance proceeds allocable to the applicable reporting period; and

(c) all other amounts which in accordance with GAAP are included in Borrower’s annual financial statements as operating income attributable to the Property.

Notwithstanding the foregoing, Operating Income shall not include (a) any Insurance Proceeds (other than business interruption and/or rental loss insurance proceeds and only to the extent allocable to the applicable reporting period), (b) any proceeds resulting from the Transfer of all or any portion of the Property, (c) any Rent attributable to a Lease prior to the date in which Tenant thereunder has taken occupancy or in which the actual payment of rent is required to commence thereunder, (d) any item of income otherwise included in Operating Income but paid directly by any Tenant to a Person other than Borrower as an offset or deduction against Rent payable by such Tenant, provided such item of income is for payment of an item of expense (such as payments for utilities paid directly to a utility company) and such expense is otherwise excluded from the definition of Operating Expenses pursuant to clause “(6)” of the definition thereof, (e) forfeited or applied Security Deposits, and (f) any Rents paid by or on behalf of any Tenant under a Lease which is the subject of any proceeding or action relating to its bankruptcy, reorganization or other arrangement pursuant to federal bankruptcy law or any similar federal or state law or which has been adjudicated a bankrupt or insolvent unless such Lease has been assumed by the trustee in such proceeding or action. Operating Income shall be calculated on the accrual basis of accounting and, except to the extent otherwise provided in this definition, in accordance with GAAP.

“Other Charges” shall mean all maintenance charges, impositions other than Taxes, and any other charges, including vault charges and license fees for the use of vaults, chutes and similar areas adjoining any Individual Property, now or hereafter levied or assessed or imposed against any Individual Property or any part thereof.

“Patriot Act” shall have the meaning set forth in Section 4.1.42 hereof.

“Payment Date” shall mean the sixth (6th) day of each calendar month during the term of the Loan or, if such day is not a Business Day, the immediately preceding Business Day.

“Permitted Encumbrances” shall mean, with respect to an Individual Property, collectively, (a) the Liens and security interests created by the Loan Documents, (b) all Liens, encumbrances, matters of record and other matters disclosed in the Title Insurance Policy relating to such Individual Property or any part thereof, (c) Liens, if any, for Taxes imposed by any Governmental Authority not yet delinquent or being contested pursuant to Section 5.1.2, or, if such Liens for Taxes are the obligation of a Tenant under a Single Tenant Lease, until the expiration of the earlier of (i) forty-five (45) days after delinquency and (ii) ten (10) Business

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Days after Borrower becoming aware of such delinquency, (d) “de minimis” easements, rights of way, restrictions and other encumbrances incurred in accordance with the terms of this Agreement, (e) matters reflected in the Surveys provided to Lender with respect to the Properties in connection with the closing of the Loan, (f) Liens (other than Liens arising from Taxes) being contested by Borrower in accordance with this Agreement and the other Loan Documents or any Liens (other than Liens arising from Taxes) that are solely attributable to a Tenant under a Single Tenant Lease until the expiration of ten (10) Business Days after Borrower becoming aware of such Liens, and (g) such other title and Survey exceptions as Lender has approved or may approve in writing in Lender’s sole discretion; provided that, none of which items (a) through (g), individually or in the aggregate, materially interferes with the value, current use or operation of any Individual Property or the security intended to be provided by the Security Instruments or with the current ability of the Properties to generate net cash flow sufficient to service the Loan or Borrower’s ability to pay and perform the Obligations under the Loan Documents when they become due.

“Permitted Investments” shall mean any one or more of the following obligations or securities acquired at a purchase price of not greater than par, including those issued by Servicer, the trustee under any Securitization or any of their respective Affiliates, payable on demand or having a maturity date not later than the Business Day immediately prior to the first Payment Date following the date of acquiring such investment and meeting one of the appropriate standards set forth below:

(i) obligations of, or obligations fully guaranteed as to payment of principal and interest by, the United States or any agency or instrumentality thereof provided such obligations are backed by the full faith and credit of the United States of America and are obligations of one or more of the following: the U.S. Treasury (all direct or fully guaranteed obligations), the General Services Administration (participation certificates), the Small Business Administration (guaranteed participation certificates and guaranteed pool certificates), and the U.S. Department of Housing and Urban Development (local authority bonds); provided, however, that the investments described in this clause must (A) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if rated by S&P, must not have an “r” highlighter affixed to their rating, (C) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (D) such investments must not be subject to liquidation prior to their maturity;

(ii) Federal Housing Administration debentures;

(iii) obligations of the following United States government sponsored agencies: Federal Home Loan Mortgage Corp. (debt obligations), the Farm Credit System (consolidated systemwide bonds and notes), the Federal Home Loan Banks (consolidated debt obligations), the Federal National Mortgage Association (debt obligations) and the Student Loan Marketing Association (debt obligations); provided, however, that the investments described in this clause must (A) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if rated by S&P, must not have an “r” highlighter affixed to their rating, (C) if such investments have a variable rate of

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interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (D) such investments must not be subject to liquidation prior to their maturity;

(iv) unsecured certificates of deposit or time deposits, in each case with maturities of not more than 365 days of any bank, the short term obligations of which at all times are rated in the highest short term rating category by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency in the highest short term rating category and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities); provided, however, that the investments described in this clause must (A) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if rated by S&P, must not have an “r” highlighter affixed to their rating, (C) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (D) such investments must not be subject to liquidation prior to their maturity;

(v) fully Federal Deposit Insurance Corporation-insured demand and time deposits in, or certificates of deposit with maturities of not more than 365 days of, any bank or trust company, savings and loan association or savings bank, the short term obligations of which at all times are rated in the highest short term rating category by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency in the highest short term rating category and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities); provided, however, that the investments described in this clause must (A) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if rated by S&P, must not have an “r” highlighter affixed to their rating, (C) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (D) such investments must not be subject to liquidation prior to their maturity; and

(vi) units of taxable money market funds, which funds are regulated investment companies, seek to maintain a constant net asset value per share, which funds have the highest rating available from each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities) for money market funds;

provided, however, that no obligation or security shall be a Permitted Investment if (A) such obligation or security evidences a right to receive only interest payments or (B) the right to receive principal and interest payments on such obligation or security are derived from an underlying investment that provides a yield to maturity in excess of 120% of the yield to maturity at par of such underlying investment.

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“Permitted Preferred Stock” shall mean (a) any non-voting preferred stock in the REIT issued and outstanding solely to maintain its status as a real estate investment trust, and (b) other preferred stock in the REIT so long as the terms upon which such preferred stock were issued do not grant the holders thereof any voting rights, other than the right to vote for two (2) members of the board of directors of the REIT (which will not constitute a majority or control of the board of directors or the REIT) in the event of a default in the payment of dividends on the preferred stock for six (6) consecutive quarters or if the REIT fails to timely and fully redeem such preferred stock.

“Permitted Transferee” means one or more of the following: (a) a real estate investment trust, bank, saving and loan association, investment bank, insurance company, trust company, commercial credit corporation, pension plan, pension fund or pension advisory firm, mutual fund, government entity or plan, sovereign wealth fund, private equity fund or real estate operating company, provided that any such Person referred to in this clause (a) satisfies the Investor Eligibility Requirements; (b) an investment company, money management firm or “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act or an institutional “accredited investor” within the meaning of Regulation D under the Securities Act, provided that any such Person referred to in this clause (b) satisfies the Investor Eligibility Requirements; (c) an institution substantially similar to any of the entities described in clause (a), clause (b) or clause (d) that satisfies the Investor Eligibility Requirements; (d) any entity 100% owned by and Controlled by, Controlling or under common Control with any one or more of the entities described in clause (a), clause (b) or clause (c) above; (e) a Qualified Transferee; or (f) any Person approved by Lender in its sole discretion, and, following a Securitization, for which the Rating Agencies have issued a confirmation in writing from the applicable Rating Agencies to the effect that any Transfer to such Person will not result in a downgrading, withdrawal or qualification of the respective ratings in effect immediately prior to such Transfer.

“Person” shall mean any individual, corporation, partnership, joint venture, limited liability company, estate, trust, unincorporated association, any federal, State, county or municipal government or any bureau, department or agency thereof and any fiduciary acting in such capacity on behalf of any of the foregoing.

“Personal Property” shall have the meaning set forth in Article 1 of the Security Instrument with respect to each Individual Property.

“Physical Conditions Report” shall mean, with respect to each Individual Property, a structural engineering report prepared by a company satisfactory to Lender regarding the physical condition of such Individual Property, satisfactory in form and substance to Lender, which report shall, among other things, (a) confirm that such Individual Property and its use complies, in all material respects, with all applicable Legal Requirements (including, without limitation, zoning, subdivision and building laws) and (b) include a copy of a final certificate of occupancy with respect to all Improvements on such Individual Property.

“Plan” shall mean an employee benefit plan (as defined in Section 3(3) of ERISA, subject to Title I of ERISA) whether or not subject to ERISA or a plan or other arrangement within the meaning of Section 4975 of the Code.

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“Plan Assets” shall mean assets of a Plan within the meaning of 29 C.F.R. Section 2510.3-101 or similar law.

“Policy” or Policies” shall have the meaning set forth in Section 6.1(b) hereof.

“Pre-Existing Liability” shall mean any liability, obligation, claim, suit, proceeding, loss, damage, penalty, judgment, cost, expense, fine, disbursement, or demand of or against any predecessor entity that merged into Borrower, other than liabilities and obligations in respect of the Leases and the other Assigned Agreements (as defined in the Assignment of Agreements Affecting Real Estate).

“Preferred Share Transfer” shall have the meaning set forth in Section 5.2.10(c) hereof.

“Preferred Shares” shall have the meaning set forth in Section 5.2.10(c) hereof.

“Prepayment Date” shall mean the date of a prepayment of the Loan pursuant to the provisions of Section 2.3 and 2.5 hereof.

“Prepayment Notice” shall mean a prior written notice to Lender specifying the proposed Business Day on which a prepayment of the Debt is to be made pursuant to Section 2.5 hereof, which date must be a Payment Date and shall be no earlier than thirty (30) days after the date of such Prepayment Notice and no later than sixty (60) days after the date of such Prepayment Notice. In the event a Prepayment Notice is revoked and/or modified by Borrower, Borrower shall reimburse Lender for all out of pocket costs and expenses incurred by Lender in connection therewith, including reasonable attorneys’ fees.

“Principal” shall have the meaning set forth in Section 4.1.36 hereof, together with its successors and assigns.

“Prohibited Governmental Transactions” shall mean transactions by or with Borrower that are subject to state statutes regulating investment of, and fiduciary obligations with respect to, governmental plans similar to the provisions of Section 406 of ERISA or Section 4975 of the Code currently in effect.

“Prohibited Person” shall mean any Person:

(a) listed in the Annex to, or otherwise subject to the provisions of, the Executive Order Nos. 12947, 130199 and 13224 and all modifications thereto or thereof (collectively, the “Executive Order”);

(b) that is owned or controlled by, or acting for or on behalf of, any person or entity that is listed to the Annex to, or is otherwise subject to the provisions of, the Executive Order;

(c) with whom Lender is prohibited from dealing or otherwise engaging in any transaction by any terrorism or money laundering law, including the Executive Order;

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(d) who commits, threatens or conspires to commit or supports “terrorism” as defined in the Executive Order;

(e) that is named as a “specially designated national and blocked person” on the most current list published by the U.S. Treasury Department Office of Foreign Assets Control at its official website, http://www.treas.gov.ofac/downloads/t11sdn.pdf or at any replacement website or other replacement official publication of such list; or

(f) who is an Affiliate of or affiliated with a Person listed above.

“Professional Independent Director” shall have the meaning set forth in the definition of Independent Director.

“Prohibited Transaction” shall mean any transaction which could cause any obligation, or action taken or to be taken, hereunder (or the exercise by Lender of any of its rights under the Note, this Agreement, the Security Instruments or the other Loan Documents) to be a non-exempt (under a statutory or administrative class exemption) prohibited transaction under ERISA.

“Properties” shall mean, collectively, each and every Individual Property which is subject to the terms of this Agreement, to the extent that the same is encumbered by the Security Instrument and has not been released therefrom pursuant to the terms hereof.

“Property” shall mean, as the context may require, the Properties or an Individual Property.

“Provided Information” shall have the meaning set forth in Section 9.1(b)(i) hereof.

“Qualified Insurer” shall have the meaning set forth in Section 6.1(b) hereof.

“Qualified Manager” shall mean a Person approved by Lender in writing (which such consent may be conditioned upon Lender’s receipt of confirmation from the applicable Rating Agencies that the management of the applicable Individual Property or the Properties by such Person will not result in a downgrade, withdrawal or qualification of the initial, or if higher, then current rating of the Securities or any class thereof).

“Qualified Transferee” shall mean a transferee for whom, prior to a proposed transfer, Lender shall have received: (x) evidence that such proposed transferee (1) has never been indicted or convicted of, or pled guilty or no contest to, a felony, (2) has never been indicted or convicted of, or pled guilty or no contest to, a violation of the Patriot Act and is not listed as a Specially Designated Terrorist or as a “blocked” Person on any lists maintained by the OFAC pursuant to the Patriot Act or any other list of terrorists or terrorist organizations maintained pursuant to any of the rules and regulations of the OFAC issued pursuant to the Patriot Act or on any other list of terrorists or terrorist organizations maintained pursuant to the Patriot Act, (3) has never been the subject of a voluntary or involuntary (to the extent the same has not been discharged) bankruptcy proceeding, and (4) has no material outstanding judgments against such proposed transferee; and (y) if the proposed transferee will obtain Control of or obtain a direct or

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indirect interest of ten percent (10%) or more in Borrower as a result of such proposed transfer, a credit check against such proposed transferee that is reasonably acceptable to Lender.

“Rating Agencies” shall mean, including, but not limited to, S&P, Moody’s, and Fitch, and any other nationally-recognized statistical rating organization, as identified by the Securities and Exchange Commission to the extent any of the foregoing have been engaged by Lender or its designee in connection with or in anticipation of any Securitization.

“Registration Statement” shall have the meaning set forth in Section 9.2(b) hereof.

“REIT” shall have the meaning set forth in Section 5.2.10(c).

“REIT Shares” shall have the meaning set forth in Section 5.2.10(c).

“REIT Share Transfer” shall have the meaning set forth in Section 5.2.10(c).

“Release” shall mean, with respect to any Hazardous Materials, any release, deposit, discharge, emission, leaking, leaching, spilling, seeping, migrating, injecting, pumping, pouring, emptying, escaping, dumping, disposing or other movement of Hazardous Materials.

“Release Date” shall have the meaning set forth in Section 2.5(c).

“Release Price” shall mean, with respect to any Individual Property, an amount equal to the greater of (a) (i) with respect to Properties with Allocated Loan Amounts representing the first ten percent (10%) of the Loan amount to be released, 115% of the Allocated Loan Amount with respect to such Individual Property, and (ii) after the date that Properties with Allocated Loan Amounts in excess of ten percent (10%) of the Loan amount have been released, 120% of the Allocated Loan Amount with respect to such Individual Property, and (b) the Net Sales Proceeds applicable to such Individual Property.

“Remediation” shall mean but shall not be limited to any response, remedial, removal, or corrective action; any activity to clean up, detoxify, decontaminate, contain or otherwise remediate any Hazardous Materials; any actions to prevent, cure or mitigate any Release of any Hazardous Materials; any action to comply with any Environmental Laws or with any permits issued pursuant thereto; any inspection, investigation, study, monitoring, assessment, audit, sampling and testing, laboratory or other analysis, or evaluation relating to any Hazardous Materials or to anything referred to herein.

“REMIC Trust” shall mean a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code that holds any interest in all or any portion of the Loan (including the Note).

“Renewal Lease” shall have the meaning set forth in Section 5.1.17(a) hereof.

“Rent Roll” means a statement from Borrower substantially in the form attached hereto as Schedule II detailing the names of all Tenants of each Individual Property, the portion of each Individual Property occupied by each Tenant, the base rent and any other charges payable under each Lease, the term of each Lease, the beginning date and expiration date of each Lease,

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whether any Tenant is in default under its Lease (and detailing the nature of such default), and any other information as is reasonably required by Lender, all certified by a Responsible Officer to be true, correct and complete.

“Rents” shall have the meaning set forth in Article 1 of the Security Instrument with respect to each Individual Property.

“Replacement Management Agreement” shall mean, collectively, (a) either (i) a management agreement with a Qualified Manager substantially in the same form and substance as the Management Agreement, or (ii) a management agreement with a Qualified Manager, which management agreement shall be acceptable to Lender in form and substance, provided, with respect to this subclause (ii), after a Securitization, Lender, at its option, may require that Borrower obtain confirmation from the applicable Rating Agencies that such management agreement will not result in a downgrade, withdrawal or qualification of the initial, or if higher, then current rating of the Securities or any class thereof; (b) an Assignment of Management Agreement in form acceptable to Lender, executed and delivered to Lender by Borrower and such Qualified Manager at Borrower’s expense; and (c) if such replacement manager is an Affiliated Manager, Borrower shall have delivered, or cause to be delivered, to Lender, an updated Insolvency Opinion reasonably acceptable to Lender with respect to such Affiliated Manager.

“Replacement Reserve Account” shall have the meaning set forth in Section 3.1(b)(ii)(D) hereof.

“Replacement Reserve Fund” shall have the meaning set forth in Section 7.3.1 hereof.

“Replacement Reserve Monthly Deposit” shall have the meaning set forth in Section 7.3.1 hereof.

“Replacements” shall have the meaning set forth in Section 7.3.1 hereof.

“Required Rating” means (i) a long-term unsecured debt rating of not less than “AA-” by Fitch & S&P and “Aa3” by Moody’s (or its equivalent) and equivalent rating from each of the other Rating Agencies, if applicable, or (ii) following a Securitization, such other rating with respect to which Lender shall have received a confirmation from the applicable Rating Agencies to the effect that the delivery of such Letter of Credit in lieu of cash deposits into the Rollover Reserve Account pursuant to Section 7.4.1 hereof will not result in a downgrading, withdrawal or qualification of the respective ratings for the Securities.

“Required Repair Account” shall have the meaning set forth in Section 3.1(b)(ii)(E) hereof.

“Required Repair Fund” shall have the meaning set forth in Section 7.1.1 hereof.

“Required Repairs” shall have the meaning set forth in Section 7.1.1 hereof.

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“Reserve Fund Deposits” shall mean the amounts to be deposited into the Reserve Funds for any given month or at any other time as provided in this Agreement or in the other Loan Documents.

“Reserve Funds” shall mean the Tax and Insurance Escrow Fund, the Replacement Reserve Fund, the Required Repair Fund, the Rollover Reserve Fund, the Excess Cash Reserve Fund or any other escrow or reserve fund established by the Loan Documents.

“Responsible Officer” shall mean with respect to a Person, the chairman of the board, president, chief operating officer, chief financial officer, treasurer, vice president-finance or such other authorized representative of such Person.

“Restoration” shall mean the repair and restoration of an Individual Property after a Casualty or Condemnation as nearly as possible to the condition the Individual Property was in immediately prior to such Casualty or Condemnation, with such alterations as may be approved by Lender.

“Restoration Threshold” shall mean an amount equal to five percent (5%) of the Allocated Loan Amount for each Individual Property that is the subject of a Restoration.

“Restricted Party” shall mean Borrower, Principal, if any, Guarantor, or any Affiliated Manager or any shareholder, partner, member or non-member manager, or any direct or indirect legal or beneficial owner of, Borrower, Principal, if any, Guarantor, any Affiliated Manager or any non-member manager.

“Rollover Reserve Account” shall have the meaning set forth in Section 3.1(b)(ii)(F) hereof.

“Rollover Reserve Deposit” shall have the meaning set forth in Section 7.4.1 hereof.

“Rollover Reserve Fund” shall have the meaning set forth in Section 7.4.1 hereof.

“S&P” shall mean Standard & Poor’s Ratings Services.

“Sale or Pledge” shall have the meaning set forth in 5.2.10(c).

“Second Level SPE” shall have the meaning set forth in Section 9.5(b) hereof.

“Secondary Market Transaction” shall have the meaning set forth in Section 9.1(a) hereof.

“Securities” shall have the meaning set forth in Section 9.1(a) hereof.

“Securitization” shall have the meaning set forth in Section 9.1(a) hereof.

“Securities Act” shall have the meaning set forth in Section 9.2(a) hereof.

“Security Deposits” shall have the meaning set forth in Section 5.1.17(e) hereof.

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“Security Instrument” shall mean, with respect to each Individual Property, that certain first priority Mortgage (or Deed of Trust or Deed to Secure Debt, as applicable), Assignment of Leases and Rents, Fixture Filing and Security Agreement, executed and delivered by the applicable Borrower as security for the Loan and encumbering such Individual Property, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Servicer” shall have the meaning set forth in Section 9.3 hereof.

“Servicing Agreement” shall have the meaning set forth in Section 9.3 hereof.

“Servicing Fee” shall have the meaning set forth in Section 9.3 hereof.

“Severed Loan Documents” shall have the meaning set forth in Section 8.2(c) hereof.

“Single Tenant Lease” shall mean, with respect to any Individual Property, any Lease between Borrower and one single tenant (or Affiliated tenants) occupying the entire rentable space at such Individual Property pursuant to a Lease. Notwithstanding the foregoing, the definition of “Single Tenant Lease” shall include (i) the Lease dated January 15, 1992, by and between Borrower, as successor-in-interest to American National Bank and Trust Company of Chicago, as Trustee under Trust Agreement dated June 24, 1991, and known as Trust No. 11337-05, as landlord, and Home Depot U.S.A., Inc., as successor-in-interest to Pace Membership Warehouse, Inc., as tenant, as amended by that certain Amendment to Leases – Waban Lease/Pace Lease, dated December 18, 1997; and as further amended by that certain Second Amendment to Pace Lease and Agreement Regarding Termination of Waban Lease, dated March 27, 2013 and (ii) the Art Van Lease.

“Special Member” shall have the meaning set forth in Section 4.1.36(cc) hereof.

“Spirit Holdings” shall have the meaning set forth in Section 5.2.10(c).

“Splitting Documentation” shall have the meaning set forth in Section 9.6 hereof.

“State” shall mean, with respect to an Individual Property, the State or Commonwealth in which such Individual Property or any part thereof is located.

“Substitute Loan Documents” shall mean an executed and acknowledged (i) at Lender’s election, either an amendment to the Environmental Indemnity or an additional environmental indemnity agreement with respect to the Substitute Property, (ii) a mortgage (or deed of trust or deed to secure debt, as applicable), assignment of leases and rents, fixture filing and security agreement (the “Substitute Security Instrument”), and (iii) UCC-1 financing statements with respect to the applicable Substitute Property, together with a letter from Borrower countersigned by a title insurance company acknowledging receipt of such Substitute Security Instrument and UCC-1 financing statements and agreeing to record or file, as applicable, such Substitute Security Instrument and, with regard to the UCC-1 financing statements, if recordation or a system of filing is accepted or established in the applicable jurisdiction, the UCC-1 financing statements in the real estate records for the county in which the applicable Substitute Property is located so as to effectively create upon such recording or filing valid and enforceable first-priority

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Liens upon the applicable Substitute Property, in favor of Lender, subject only to the Permitted Encumbrances. Any environmental indemnity agreement, the Substitute Security Instrument and the UCC-1 financing statements shall be the same in form and substance as the counterparts of such documents executed and delivered on the Closing Date with respect to the Individual Property (including the related Exchange Property) subject to modifications reflecting the applicable Substitute Property. Each Substitute Loan Document shall constitute one of the Loan Documents and secure all amounts evidenced by the Note, provided that in the event that the jurisdiction in which the Substitute Property is located imposes a mortgage recording, intangibles or similar tax and does not permit the allocation of the total principal amount of the Loan, together with all accrued and unpaid interest on the Loan and all other obligations, liabilities and amounts payable under the Note, for purpose of determining the amount of such tax payable, the principal amount secured by the Substitute Loan Documents will be equal to 125% of the applicable Allocated Loan Amount for the Substitute Property.

“Substitute Security Instrument” shall have the meaning set forth in the definition of “Substitute Loan Documents”.

“Substitution” shall have the meaning set forth in Section 2.6 hereof.

“Substitution Date” shall have the meaning set forth in Section 2.6 hereof.

“Substitution Property” shall have the meaning set forth in Section 2.6 hereof.

“Survey” shall mean, with respect to an Individual Property, a survey prepared by a surveyor licensed in the State where such Individual Property is located and reasonably satisfactory to Lender and the company or companies issuing the Title Insurance Policies, and containing a certification of such surveyor reasonably satisfactory to Lender.

“Tax Account” shall have the meaning set forth in Section 3.1(b)(ii)(A) hereof.

“Tax and Insurance Escrow Fund” shall have the meaning set forth in Section 7.2 hereof.

“Taxes” shall mean all real estate and personal property taxes (or payments in lieu thereof), assessments, water rates or sewer rents, now or hereafter levied or assessed or imposed against any Individual Property or part thereof (including “service” or other similar payment in lieu of Taxes required to be made pursuant to any declaration of covenants, reciprocal easement agreement or similar agreement, and any city improvement district assessments).

“Tenant” shall mean any tenant or lessee pursuant to any Lease.

“TI/LC Cash Sweep Triggering Event” shall mean (A) a period commencing upon the earliest of:

(i) any Tenant or Tenants under Leases at Properties with cumulative Allocated Loan Amounts of more than five percent (5%) of the outstanding principal balance of the Loan substantially cease operations, give notice of intent to substantially cease operations, or otherwise “goes dark” (provided, however, that this clause shall not apply to any Tenant of an Individual Property that has substantially ceased operations or

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“gone dark” as a result of a Restoration provided such Restoration is being diligently pursued in accordance with the terms of the applicable Lease and this Agreement, and that Investment Grade Tenants shall only be considered under this clause (i) (x) during the last two (2) years of the term of the Loan and/or (y) during the last two (2) years of the term of such Tenant’s Lease);

(ii) any Tenant has engaged in any voluntary or involuntary bankruptcy or other insolvency proceedings;

(iii) any Tenant does not renew any Lease by the renewal notice date set forth in such Lease, or any termination of a Lease prior to its related termination date; or

(v) any Tenant has defaulted in any material respect under the terms of the relevant Lease; and

(B) expiring upon:

(1) with regard to any TI/LC Cash Sweep Triggering Event commenced in connection with clause (i) above, the date that new Leases have been executed with respect to all such “dark” space, all free rent periods for the new tenant or Tenants have expired, and all Landlord obligations under the new Lease or Leases are fully satisfied;

(2) with regard to any TI/LC Cash Sweep Triggering Event commenced in connection with clause (ii) above, the date that such Tenant is no longer insolvent or subject to any bankruptcy or insolvency proceedings and Tenant has affirmed the Lease pursuant to a final, non-appealable order of a court of competent jurisdiction, or a new tenant executes a new Lease with respect to such Individual Property, all free rent periods for such new tenant have expired, and all Landlord obligations under the new Lease or Leases are fully satisfied;

(3) with regard to any TI/LC Cash Sweep Triggering Event commenced in connection with clause (iii) above, the date that such Tenant renews the Lease or a new tenant executes a new Lease with respect to such Individual Property, all free rent periods for such new tenant have expired, and all Landlord obligations under the new Lease or Leases are fully satisfied; and

(4) with regard to any TI/LC Cash Sweep Triggering Event commenced in connection with clause (iv) above, the date that the event of default has been cured or a new tenant executes a new Lease with respect to such Individual Property, all free rent periods for such new tenant have expired, and all Landlord obligations under the new Lease or Leases are fully satisfied.

“Title Insurance Policy” shall mean, with respect to each Individual Property, an ALTA mortgagee title insurance policy in a form acceptable to Lender (or, if such Individual Property is

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located in a State which does not permit the issuance of such ALTA policy, such form as shall be permitted in such State and acceptable to Lender) issued by a title insurance company satisfactory to Lender with respect to such Individual Property and insuring the Lien of such related Security Instrument subject only to Permitted Encumbrances, with endorsements thereto as to such matters as Lender may designate.

“Transfer” shall have the meaning set forth in Section 5.2.10(a) hereof.

“Transferee” shall have the meaning set forth in Section 5.2.11(a) hereof.

“Treasury Rate” shall mean the yield calculated by the linear interpolation of the yields, as reported in Federal Reserve Statistical Release H.15 Selected Interest Rates under the heading U.S. Government Securities/Treasury Constant Maturities for the week ending prior to any Prepayment Date, of U.S. Treasury constant maturities with maturity dates (one longer and one shorter) most nearly approximating the Maturity Date. (In the event Release H.15 is no longer published, Lender shall select a comparable publication to determine the Treasury Rate.)

“Triggering Event” shall mean a period (A) commencing upon the earliest of (i) the occurrence of an Event of Default and (ii) the Debt Service Coverage Ratio being less than 1.20 to 1.00; and (B) expiring upon (y) with regard to any Triggering Event commenced in connection with clause (i) above, the cure (if applicable) of such Event of Default and (z) with regard to any Triggering Event commenced in connection with clause (ii) above, the last day of any two (2) consecutive calendar quarters thereafter for which the Debt Service Coverage Ratio is equal to or greater than 1.25 to 1.00, unless, after the Lockout Date, such level is achieved pursuant to a prepayment of the Loan in accordance with Section 2.3.1 hereof, in which case such Triggering Event shall expire on such Prepayment Date. Notwithstanding the foregoing, a Triggering Event shall not be deemed to expire in the event that a Triggering Event then exists for any other reason.

“Trustee” shall mean any trustee of a Securitization.

“UCC” or “Uniform Commercial Code” shall mean the Uniform Commercial Code as in effect in the State in which the related Individual Property is located.

“Underwriter Group” shall have the meaning set forth in Section 9.2(b) hereof.

“Underwritten Net Cash Flow” shall mean, as of the end of any calendar quarter for which Underwritten Net Cash Flow is determined (or such other date for which Underwritten Net Cash Flow is determined) the excess of: (a) the sum of: (i) annualized actual in place base rents and monthly recoveries received by Borrower under bona fide Leases at the Property with Tenants in occupancy, open for business and paying full, unabated rent as of the date of such calculation and actual percentage rents received by Borrower under such Leases for the twelve (12) months preceding such calculation; plus (ii) for the twelve (12) month period preceding the month in which such Underwritten Net Cash Flow is calculated, actual net cash flow receipts received by Borrower from other sources at the Properties to the extent such receipts are recurring in nature and properly included as Operating Income for such twelve month calculation period; over (b) for the twelve (12) month period preceding the month in which such Underwritten Net Cash Flow is calculated, Operating Expenses over such twelve months, in each

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case adjusted to reflect Lender’s determination of: (i) a vacancy factor equal to (A) for Investment Grade Tenants with Lease expirations two (2) years beyond loan maturity, five percent (5%), and (B) for tenants that are not Investment Grade Tenants and for Investment Grade Tenants with lease expirations less than two (2) years beyond loan term, ten (10%); (ii) subtraction of (A) an assumed management fee of two percent (2%) of gross revenues, reimbursed to the extent Leases permit reimbursement, (B) an imputed capital improvement requirement amount equal to $0.12 per rentable square foot at the Property per annum (regardless of whether a reserve therefore is required hereunder or the amount of such reserve), and (C) an imputed tenant improvement and leasing commission requirement amount equal to $0.50 per rentable square foot at the Property per annum (regardless of whether a reserve therefore is required hereunder or the amount of such reserve); (iii) exclusion of (X) amounts representing non-recurring items and (Y) amounts received from Tenants not currently in occupancy and paying full, unabated rent, from Tenants affiliated with Borrower or Guarantor, from Tenants in default or in bankruptcy and from Tenants under month-to-month Leases or Leases where the term is about to expire; and (iv) such other adjustments deemed necessary by Lender based upon Lender’s reasonable underwriting criteria and Lender’s reasonable determination of Rating Agency underwriting and evaluation criteria. Lender’s calculation of Underwritten Net Cash Flow shall be final absent manifest error.

“U.S. Obligations” shall mean securities evidencing an obligation to timely pay principal and/or interest in a full and timely manner that are (i) direct obligations of the United States of America for the payment of which its full faith and credit is pledged, and (ii) not subject to prepayment, call or early redemption.

“USPAP” shall mean the Uniform Standard of Professional Appraisal Practice.

“Yield Maintenance Premium” shall mean an amount equal to the greater of (a) one percent (1%) of the outstanding principal amount of the Loan to be prepaid or satisfied, and (b) the present value, as of the applicable Prepayment Date, of the remaining scheduled payments of principal and interest from such Prepayment Date through the Maturity Date (including any balloon payment) determined by discounting such payments at the Discount Rate, less the amount of principal being prepaid on such Prepayment Date, calculated based upon the outstanding principal amount of the Loan to be prepaid or satisfied. Lender’s calculation of the Yield Maintenance Premium shall be conclusive absent manifest error.

Section 1.2. Principles of Construction.

All references to sections and schedules are to sections and schedules in or to this Agreement unless otherwise specified. All uses of the word “including” shall mean “including, without limitation” unless the context shall indicate otherwise. Unless otherwise specified, the words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. Unless otherwise specified, all meanings attributed to defined terms herein shall be equally applicable to both the singular and plural forms of the terms so defined.

II. GENERAL TERMS

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Section 2.1. Loan Commitment; Disbursement to Borrower.

2.1.1. Agreement to Lend and Borrow.

Subject to and upon the terms and conditions set forth herein, Lender hereby agrees to make and Borrower hereby agrees to accept the Loan on the Closing Date.

2.1.2. Single Disbursement to Borrower.

Borrower may request and receive only one borrowing hereunder in respect of the Loan and any amount borrowed and repaid hereunder in respect of the Loan may not be reborrowed.

2.1.3. The Note, Security Instruments and Loan Documents.

The Loan shall be evidenced by the Note and secured by the Security Instruments, the Assignments of Leases and the other Loan Documents.

2.1.4. Use of Proceeds.

Borrower shall use the proceeds of the Loan to (a) repay and discharge any existing loans relating to the Properties, (b) pay all past-due Basic Carrying Costs, if any, in respect of the Properties, (c) make deposits into the Reserve Funds on the Closing Date in the amounts provided herein or in the other Loan Documents, (d) pay costs and expenses incurred in connection with the closing of the Loan, as approved by Lender, or (e) fund any working capital requirements of the Properties. The balance, if any, shall be distributed to Borrower.

Section 2.2. Interest; Loan Payments; Late Payment Charge.

2.2.1. Payments.

(a) Borrower shall make a payment to Lender of interest and principal in the amount of the Monthly Debt Service Payment Amount on the Payment Date occurring in September, 2013 and on each Payment Date thereafter to and including the Maturity Date. Each payment shall be applied first to accrued and unpaid interest and the balance to principal. The principal portion of Monthly Debt Service Payment Amount required hereunder is based upon a thirty (30) year amortization schedule. Interest on the outstanding principal amount of the Loan for the period through and including August 10, 2013 shall be paid by Borrower to Lender on the Closing Date.

(b) All payments and other amounts due under the Note, this Agreement and the other Loan Documents shall be made without any setoff, defense or irrespective of, and without deduction for, counterclaims.

2.2.2. Interest Calculation.

Interest on the outstanding principal balance of the Loan shall be calculated by multiplying (a) the actual number of days elapsed in the period for which the calculation is being made by (b) the Applicable Interest Rate divided by three hundred sixty (360) by (c) the

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outstanding principal balance. The accrual period for calculating interest due on each Payment Date shall be the Interest Accrual Period in which the related Payment Date occurs.

2.2.3. Payment on Maturity Date.

Borrower shall pay to Lender on the Maturity Date the outstanding principal balance of the Loan, all accrued and unpaid interest thereon, and all other amounts due hereunder and under the Note, the Security Instruments and the other Loan Documents, including all interest that would accrue on the outstanding principal balance of the Loan through and including the end of the Interest Accrual Period in which the Maturity Date occurs (even if such Interest Accrual Period extends beyond the Maturity Date).

2.2.4. Payments after Default.

Upon the occurrence and during the continuance of an Event of Default, (a) interest on the outstanding principal balance of the Loan and, to the extent permitted by Applicable Law, overdue interest and other amounts due in respect of the Loan, shall accrue at the Default Rate, calculated from the date such Default becomes an Event of Default and (b) Lender shall be entitled to receive and Borrower shall pay to Lender on each Payment Date an amount equal to the Net Cash Flow After Debt Service for the prior month, such amount to be applied by Lender to the payment of the Debt in such order as Lender shall determine in its sole discretion, including alternating applications thereof between interest and principal. Interest at the Default Rate and Net Cash Flow After Debt Service shall both be computed from the occurrence of the Event of Default until the actual receipt and collection of the Debt (or that portion thereof that is then due), and, in connection with the foregoing, to the extent permitted by Applicable Law, interest at the Default Rate shall be added to the Debt, shall itself accrue interest at the same rate as the Loan and shall be secured by the Security Instruments. This paragraph shall not be construed as an agreement or privilege to extend the date of the payment of the Debt, nor as a waiver of any other right or remedy accruing to Lender by reason of the occurrence of any Event of Default. The acceptance of any payment of Net Cash Flow After Debt Service shall not be deemed to cure or constitute a waiver of any Event of Default. Lender retains its rights under the Note to accelerate and to continue to demand payment of the Debt upon the happening and during the continuance of any Event of Default, despite any payment of Net Cash Flow After Debt Service.

2.2.5. Late Payment Charge.

If any principal, interest or any other sums due under the Loan Documents is not paid by Borrower on the date on which it is due after any applicable notice and cure period (if any) and not including the Payment Date coinciding with the Maturity Date, Borrower shall pay to Lender upon demand an amount equal to the lesser of five percent (5%) of such unpaid sum or the maximum amount permitted by Applicable Law in order to defray the expense incurred by Lender in handling and processing such delinquent payment and to compensate Lender for the loss of the use of such delinquent payment. Any such amount shall be secured by the Security Instruments and the other Loan Documents to the extent permitted by Applicable Law.

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2.2.6. Usury Savings.

This Agreement and the Note are subject to the express condition that at no time shall Borrower be obligated or required to pay interest on the principal balance of the Loan at a rate which could subject Lender to either civil or criminal liability as a result of being in excess of the Maximum Legal Rate. If, by the terms of this Agreement or the other Loan Documents, Borrower is at any time required or obligated to pay interest on the principal balance due hereunder at a rate in excess of the Maximum Legal Rate, the Applicable Interest Rate or the Default Rate, as the case may be, shall be deemed to be immediately reduced to the Maximum Legal Rate and all previous payments in excess of the Maximum Legal Rate shall be deemed to have been payments in reduction of principal and not on account of the interest due hereunder. All sums paid or agreed to be paid to Lender for the use, forbearance, or detention of the sums due under the Loan, shall, to the extent permitted by Applicable Law, be amortized, prorated, allocated, and spread throughout the full stated term of the Loan until payment in full so that the rate or amount of interest on account of the Loan does not exceed the Maximum Legal Rate of interest from time to time in effect and applicable to the Loan for so long as the Loan is outstanding.

2.2.7. Indemnified Taxes.

(a) All payments made by Borrower hereunder shall be made free and clear of, and without reduction for or on account of, Indemnified Taxes, excluding (i) Indemnified Taxes measured by Lender’s net income, branch profits taxes and franchise taxes imposed on it, by the jurisdiction under the laws of which Lender is resident or organized, or any political subdivision thereof, (ii) Indemnified Taxes measured by Lender’s overall net income, branch profit taxes and franchise taxes imposed on it, by the jurisdiction of Lender’s principal office or lending office or any political subdivision thereof or in which Lender is resident or engaged in business, and (iii) U.S. federal withholding taxes (including backup withholding taxes) (A) as a result of the failure of Lender to comply with the terms of paragraph (b) below, (B) on amounts payable to or for the account of Lender with respect to an interest in the Loan pursuant to a law in effect on the date on which (1) Lender acquires an interest in the Loan or (2) Lender changes its lending office, or (C) under FATCA, except, in the case of the foregoing clauses (B)(1) and (B)(2), to the extent that, pursuant to this Section 2.2.7(a), amounts with respect to such taxes were payable either to Lender’s assignor immediately before Lender became party hereto or to Lender immediately before it changed its lending office. If any Indemnified Taxes are required to be deducted or withheld from any amounts payable to Lender hereunder, Borrower shall be entitled to make such deduction or withholding, and the amounts so payable to Lender shall be increased to the extent necessary to yield to Lender (after deduction or withholding of all non-excluded Indemnified Taxes) interest or any such other amounts payable hereunder at the rate or in the amounts specified hereunder. Whenever any non-excluded Indemnified Tax is payable pursuant to Applicable Law by Borrower, Borrower shall send to Lender an original official receipt showing payment of such non-excluded Indemnified Tax or other evidence of payment reasonably satisfactory to Lender. Borrower hereby indemnifies Lender for any incremental taxes, interest or penalties that may become payable by Lender as a result of any failure by Borrower to pay any such non-excluded Indemnified Tax when due to the appropriate taxing authority or any failure by Borrower to remit to Lender the required receipts or other required documentary evidence. Borrower agrees to indemnify Lender within ten (10)

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days after written demand thereof for the full amount of any non-excluded Indemnified Taxes attributable to or asserted on payments under this Agreement, whether or not correctly imposed or asserted.

(b) In the event that Lender or any successor and/or assign of Lender is incorporated under the laws of the United States of America or a state thereof, such entity shall, prior to the first date on which any payment is due such entity hereunder, deliver to Borrower two (2) duly completed copies of United States Internal Revenue Service Form W-9 or successor form, certifying that such entity is exempt from U.S. federal backup withholding tax. In the event that Lender or any successor and/or assign of Lender is not incorporated under the laws of the United States of America or a state thereof (a “Non-U.S. Entity”), such entity shall, prior to the first date on which any payment is due such entity hereunder, deliver, to the extent legally able to do so, to Borrower two (2) duly completed copies of United States Internal Revenue Service Form W-8BEN, W-8ECI or W-8IMY or successor applicable form, as the case may be (together with any other required documentation), certifying in each case that such entity is entitled to receive payments under the Note, without deduction or withholding of any United States federal income taxes (or, if applicable, subject to a reduced rate of U.S. federal withholding tax); provided, however, that in the event such entity claims the benefits of the exemption for portfolio interest under Section 881(c) of the Code, such entity shall deliver to Borrower two (2) duly completed copies of (i) a certificate, in form and substance reasonably acceptable to Borrower, to the effect that such entity is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of Borrower or Guarantor within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code and (ii) United States Internal Revenue Service Form W-8BEN or successor form. Each entity required to deliver to Borrower a Form W-8BEN, W-8ECI or W-8IMY pursuant to the preceding sentence further undertakes to deliver to Borrower two (2) further copies of such forms, or successor applicable forms, or other manner of certification, as the case may be (together with any other required documentation), after the occurrence of any event requiring a change in the most recent form previously delivered by it to Borrower, and such other extensions or renewals thereof as may reasonably be requested by Borrower, certifying, to the extent legally able to do so, that such entity is entitled to receive payments under the Note without deduction or withholding of any United States federal income taxes (or, if applicable, subject to a reduced rate of U.S. federal withholding). Lender agrees that if any form or certification it previously delivered becomes inaccurate in any respect, it shall update such form or certification or promptly notify Borrower in writing of its legal inability to do so. If a payment made to Lender under any Loan Document would be subject to U.S. federal withholding tax imposed by FATCA if Lender were to fail to comply with the applicable reporting requirements of FATCA, Lender shall deliver to Borrower at the time or times prescribed by Applicable Law and at such time or times reasonably requested by Borrower such documentation prescribed by Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by Borrower as may be necessary for Borrower to comply with its obligations under FATCA and to determine whether Lender has complied with Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. For purposes of this paragraph (b), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

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(c) If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes as to which it has been indemnified or received a gross-up payment pursuant to this Agreement, it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments or gross-up payments made with respect to the Indemnified Taxes giving rise to such refund), net of all out-of-pocket expenses (including Indemnified 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 paragraph (c) (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 paragraph (c), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (c) the payment of which would place the indemnified party in a less favorable net after-tax position than the indemnified party would have been in if the Indemnified Tax subject to indemnification or gross-up 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 Indemnified Tax had never been paid. This paragraph 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.

2.2.8. Invalidated Payments.

If any payment received by Lender is deemed by a court of competent jurisdiction to be a voidable preference or fraudulent conveyance under any Creditors Rights Laws, and is required to be returned by Lender, then the obligation to make such payment shall be reinstated, notwithstanding that the Note may have been marked satisfied and returned to Borrower or otherwise canceled, and such payment shall be immediately due and payable upon demand.

Section 2.3. Prepayments.

2.3.1. Voluntary Prepayments.

(a) Except as otherwise expressly set forth herein (including any payment of principal to avoid or terminate a Triggering Event after the Lockout Date), Borrower shall not have the right to prepay the Loan in whole or in part prior to the Maturity Date. Notwithstanding anything in this Agreement to the contrary, any prepayment of principal to avoid or terminate a Triggering Event shall be subject to the Yield Maintenance Premium.

(b) On the Payment Date in February 2023 (the “Open Date”) or on any Payment Date thereafter, Borrower may, at its option and upon thirty (30) days prior written notice to Lender, prepay the Loan in whole, but not in part, without payment of the Yield Maintenance Premium, provided that Borrower simultaneously pays to Lender an amount equal to the sum of (i) the Debt plus (ii) all interest that would have accrued on the amount of principal being prepaid through and including the last day of the Interest Accrual Period related to the Payment Date next occurring following the date of such prepayment, notwithstanding that such Interest Accrual Period extends beyond the date of prepayment.

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(c) After the Lockout Date, Borrower shall have the right, only on a Business Day, to prepay the outstanding principal balance of the Loan in whole, but not in part, upon satisfaction of the following conditions:

(i) Borrower shall deliver to Lender a Prepayment Notice;

(ii) Borrower shall pay to Lender all unpaid interest on the then outstanding principal balance prepaid plus, if the Prepayment Date is not a Payment Date, all interest accruing for the full Interest Accrual Period in which the Prepayment Date falls;

(iii) On the Prepayment Date, Borrower shall pay to Lender (i) the Yield Maintenance Premium (if such payment is made prior to the Open Date) and (ii) all other sums, then due under the Note, this Agreement, the Mortgage, and the other Loan Documents; and

(iv) Borrower shall pay all reasonable costs and expenses of Lender incurred in connection with the repayment or prepayment (including any costs and expenses associated with a release of the Lien of the Mortgage and reasonable attorneys’ fees and expenses).

(d) In connection with any release of the Security Instruments pursuant to this Section 2.3.1, Borrower shall submit to Lender, not less than thirty (30) days prior to the Prepayment Date, a release of Lien (and related Loan Documents) for each Individual Property for execution by Lender. Such release shall be in a form appropriate in each jurisdiction in which an Individual Property is located and that would be satisfactory to a prudent institutional lender and shall contain standard provisions, if any, protecting the rights of the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release, together with an Officer’s Certificate certifying that such documentation (i) is in compliance with all applicable Legal Requirements, and (ii) will, following execution by Lender and recordation thereof, effect such releases in accordance with the terms of this Agreement.

(e) Lender shall, upon the written request and at the expense of Borrower, upon payment in full of all principal and interest due on the Loan and all other amounts due and payable under the Loan Documents in accordance with the terms and provisions of the Note and this Agreement, release the Lien of the Security Instrument on each Individual Property not theretofore released and remit any remaining Reserve Funds to or at the direction of Borrower. Provided that no Default or Event of Default shall exist and be continuing, upon written request of Borrower, Lender shall reasonably cooperate in assigning any mortgage and/or deed of trust in connection with release of an Individual Property and such assignment shall be without recourse, representation or warranty (except with respect to Lender’s right, title and interest in and to such mortgage and/or deed of trust and Lender’s authority to transfer its interest therein), and Borrower shall pay all costs and expenses incurred by Lender in connection with such assignment and any actions related thereto.

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2.3.2. Mandatory Prepayments.

On each date on which Borrower actually receives any Net Proceeds, if and to the extent Lender is not obligated to make such Net Proceeds available to Borrower for the Restoration of an Individual Property, Borrower shall prepay the outstanding principal balance of the Note together with all interest which would have accrued on the amount of the Loan through and including the last day of the Interest Accrual Period related to the Payment Date next occurring following the date of such prepayment (or, if such prepayment occurs on a Payment Date, through and including the last day of the Interest Accrual Period related to such Payment Date) in an amount equal to one hundred percent (100%) of such Net Proceeds. Additionally, throughout the term of the Loan if an Event of Default is continuing, then Borrower shall pay to Lender, with respect to any payment of the Debt pursuant to this Section 2.3.2, an additional amount equal to the Yield Maintenance Premium calculated based upon any principal amount being prepaid with such Net Proceeds; provided, however, that if an Event of Default is not continuing, then no Yield Maintenance Premium shall be payable.

2.3.3. Prepayments After Default.

(a) If, following an Event of Default, Borrower tenders payment of all or any part of the Debt, or if all or any portion of the Debt is recovered by Lender (including through application of any Reserve Funds) after such Event of Default such tender or recovery shall be deemed a voluntary prepayment by Borrower in violation of the prohibition against prepayment set forth in Section 2.3.1 hereof and Borrower shall pay, in addition to the Debt, (i) an amount equal to the Yield Maintenance Premium, (ii) all interest which would have accrued at the Default Rate on the amount of the Loan through and including the last day of the Interest Accrual Period related to the Payment Date next occurring following the date of such prepayment, notwithstanding that such Interest Accrual Period extends beyond the date of prepayment, (iii) all other sums due and payable under the Loan Documents, and (iv) in the event the payment occurs on or prior to the Lockout Date and the Debt has been accelerated, the Liquidated Damages Amount.

(b) DURING THE CONTINUANCE OF AN EVENT OF DEFAULT, AND PRIOR TO THE LOCKOUT DATE, IF THE LOAN HAS BEEN ACCELERATED AND ALL OR ANY PART OF THE LOAN IS REPAID, THEN BORROWER SHALL PAY TO LENDER, AS LIQUIDATED DAMAGES AND NOT AS A PENALTY, AND IN ADDITION TO ANY AND ALL OTHER SUMS AND FEES PAYABLE UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AN AMOUNT EQUAL TO THREE PERCENT (3%) OF THE PRINCIPAL AMOUNT BEING REPAID (THE “LIQUIDATED DAMAGES AMOUNT”).

2.3.4. Making of Payments.

Each payment by Borrower hereunder or under the Note shall be made in funds settled through the New York Clearing House Interbank Payments System or other funds immediately available to Lender by 12:00 p.m., New York City time (except in the case of a payment of the entire Loan at the Maturity Date or as permitted hereunder, in which case such funds shall be available to Lender by 3:00 p.m. New York City time), on or prior to the date such payment is due, to Lender by deposit to such account as Lender may designate by written notice to

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Borrower. Whenever any payment hereunder or under the Note shall be stated to be due on a day which is not a Business Day, such payment shall be made on the Business Day immediately preceding such scheduled due date.

2.3.5. Application of Principal Prepayments.

All prepayments received pursuant to this Section 2.3 shall be applied to the payments of principal due under the Loan in the inverse order of maturity, except for prepayments received by Lender pursuant to Section 2.3.3 hereof, which prepayments may be applied by Lender in the order and manner determined by Lender in its sole and absolute discretion.

Section 2.4. [Intentionally deleted.]

Section 2.5. Release of an Individual Property.

Except as set forth in Section 2.3, Section 2.6, Section 6.4(e), Section 6.4(f) and this Section 2.5, no repayment or prepayment of all or any portion of the Loan shall cause, give rise to a right to require, or otherwise result in, the release of any Lien of any Security Instrument on any Individual Property. Subject to Section 6.4(e) and Section 6.4(f) below, after the Lockout Date, Borrower may obtain the release of an Individual Property from the Lien of the Security Instrument thereon (and related Loan Documents) upon a bona fide third-party sale of such Individual Property and the release of Borrower’s obligations under the Loan Documents with respect to such Individual Property (other than those expressly stated to survive), upon the satisfaction of each of the following conditions:

(a) No Event of Default shall exist as of the date of Borrower’s notice to Lender pursuant to Section 2.5 (c) and no Event of Default exist immediately after the consummation of such release;

(b) The amount of the outstanding principal balance of the Loan to be prepaid in connection with such release shall equal the Release Price for the applicable Individual Property;

(c) Borrower shall provide Lender with at least thirty (30) days but no more than ninety (90) days prior written notice of its request to obtain a release of the Individual Property, which such notice shall specify the date, which must be a Business Day (the “Release Date”), on which the release is to be consummated;

(d) On the Release Date, Borrower shall pay to Lender all unpaid interest on the portion of the outstanding principal amount of the Loan being prepaid plus, if the Release Date is not a Payment Date, all interest accruing for the full Interest Accrual Period in which the Release Date falls;

(e) On the Release Date, Borrower shall pay to Lender the Yield Maintenance Premium (if such payment is made prior to the Open Date);

(f) In accordance with the release of a Security Instrument in accordance with the terms hereof, Borrower shall submit to Lender, not less than thirty (30) days

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prior to the Release Date, a release of Lien (and related Loan Documents) for each Individual Property for execution by Lender. Such release shall be in a form appropriate in the jurisdiction in which each Individual Property is located and that would be satisfactory to a prudent institutional lender and shall contain standard provisions, if any, protecting the rights of the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release, together with an Officer’s Certificate certifying that such documentation (i) is in compliance with all applicable Legal Requirements, (ii) will, following execution by Lender and recordation thereof, effect such releases in accordance with the terms of this Agreement, and (iii) will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released (or as to the parties to the Loan Documents and Properties subject to the Loan Documents not being released). Borrower and Guarantor shall execute and deliver any documents as Lender may reasonably request to evidence the continued validity of the Liens, security interests and other rights of Lender under the Loan Documents not being released;

(g) As of the date of Borrower’s notice to Lender pursuant to Section 2.5(c) hereof and as of the date of the consummation of such release, Lender shall have determined that the Debt Service Coverage Ratio for the Properties then remaining subject to the Liens of the Security Instruments shall be greater than the greater of (i) the Debt Service Coverage Ratio for all of the Properties existing on the Closing Date, and (ii) the Debt Service Coverage Ratio for all of the then remaining Properties (including each Individual Property to be released) immediately preceding the release of each Individual Property;

(h) As of the date of Borrower’s notice to Lender pursuant to Section 2.5(c) hereof and as of the date of the consummation of such release, Lender shall have determined that the Loan to Value Ratio for the Properties then remaining subject to the Liens of the Security Instruments shall be no greater than the Loan to Value Ratio immediately preceding the Closing Date;

(i) Lender shall have received evidence that the Individual Property to be released shall be conveyed pursuant to an arm’s length agreement to a Person other than Borrower, Guarantor or any Affiliate thereof;

(j) Either (i) a Lender 80% Determination in connection with such release shall have been made at Borrower’s expense or (ii) Borrower shall deliver an opinion of counsel for Borrower that is standard in commercial lending transactions and subject only to customary qualifications, assumptions and exceptions opining that any REMIC Trust formed pursuant to a Securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code as a result of the release and that no federal income tax will be imposed on the REMIC Trust as a result of the proposed release. In connection with such opinion, any determination of the fair market value of the Properties required by the provisions regarding REMIC Trusts shall be made by Lender based on an appraisal or other commercially reasonable valuation method selected by Lender;

(k) Lender shall have received payment of all Lender’s costs and expenses, including due diligence review costs and counsel fees and disbursements incurred in connection with the release of the Individual Property from the lien of the related Security

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Instrument and the review and approval of the documents and information required to be delivered in connection therewith;

(l) On and after the date of the consummation of the release, Borrower shall be in compliance with Section 4.1.36 of this Agreement;

(m) Borrower shall have delivered to Lender an Officer’s Certificate stating that the representations and warranties of Borrower and Guarantor set forth in this Agreement and any other Loan Document shall be true and correct on and as of the date of the consummation of the release;

(n) On or prior to the date of the consummation of the release, Borrower shall have delivered to Lender a true, correct and complete copy of the final executed closing settlement statement for the sale of the Individual Property being released; and

(o) Borrower shall have delivered confirmation in writing from the applicable Rating Agencies to the effect that such release will not result in a downgrading, withdrawal or qualification of the respective ratings in effect immediately prior to such release for the Securities.

Provided that no Default or Event of Default shall exist and be continuing, upon written request of Borrower, Lender shall reasonably cooperate in assigning any mortgage and/or deed of trust in connection with release of an Individual Property and such assignment shall be without recourse, representation or warranty (except with respect to Lender’s right, title and interest in and to such mortgage and/or deed of trust and Lender’s authority to transfer its interest therein), and Borrower shall pay all costs and expenses incurred by Lender in connection with such assignment and any actions related thereto.

In connection with any release of an Individual Property pursuant to this Section 2.5, Lender shall readjust any required reserve payments and any amortization payments to reflect such release, such adjustments to be determined by Lender in its sole discretion absent manifest error.

Section 2.6. Substitutions of Property.

Notwithstanding anything to the contrary herein contained, Borrower, at Borrower’s sole cost and expense, may obtain a release of the Lien of a Security Instrument and the other Loan Documents from one or more Individual Properties (each such Individual Property, an “Exchange Property”) on one or more occasions provided that the conditions set forth in this Section 2.6 are satisfied in connection with each Substitution. For the purposes of this Agreement, each such release of the Lien of a Security Instrument and the other Loan Documents from an Individual Property and the corresponding encumbrance of the Substitute Property and satisfaction of the requirements of this Section are herein referred to as a “Substitution”. A “Substitute Property” shall mean real property that is (1) acceptable to Lender in Lender’s sole discretion, and (2) owned by Borrower in fee simple that is reasonably equivalent in use and condition to the Exchange Property; notwithstanding the foregoing, the designation of such real property as a “Substitute Property” shall be made subject to Lender’s

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prior written approval to be granted or withheld in its sole and absolute discretion. Each Substitution shall be subject to the satisfaction of the following conditions:

(a) Not less than thirty (30) days prior to the date of Substitution, Borrower delivers to Lender a notice setting forth (A) the date of the proposed Substitution (the “Substitution Date”), (B) copies of all leases and tenant information with respect to the Substitute Property, and (C) such other information that Lender shall require to grant or withhold its consent to the designation of the real property as a Substitute Property and the consummation of the Substitution;

(b) No Event of Default shall have occurred and be continuing on the date of Borrower’s notice to Lender pursuant to Section 2.6(a) hereof, the Substitution Date or after giving effect to the Substitution;

(c) The Exchange Property, together with all Exchange Properties previously released pursuant to this Section, shall not have aggregate Allocated Loan Amounts in excess of fifteen percent (15%) of the outstanding principal balance of the Loan as of the Closing Date;

(d) As of the date of Borrower’s notice to Lender pursuant to Section 2.6(a) hereof and as of the date of the consummation of such Substitution, Lender shall have determined that the Debt Service Coverage Ratio for the Properties then remaining subject to the Liens of the Security Instruments shall be greater than the greater of (i) the Debt Service Coverage Ratio for all of the Properties existing on the Closing Date, and (ii) the Debt Service Coverage Ratio for all of the then remaining Properties (including the Exchange Property to be substituted) immediately preceding the Substitution;

(e) As of the date of Borrower’s notice to Lender pursuant to Section 2.6(a) hereof and as of the date of the consummation of such Substitution, Lender shall have determined that the Loan to Value Ratio for the Properties then remaining subject to the Liens of the Security Instruments shall be no greater than the lesser of (i) the Loan to Value Ratio immediately preceding the Closing Date, and (ii) the Loan to Value Ratio for all of the then remaining Properties (including the Exchange Property to be substituted) immediately prior to the consummation of the Substitution;

(f) As of the date of Borrower’s notice to Lender pursuant to Section 2.6(a) hereof and as of the date of the consummation of such Substitution, (1) the Debt Yield for the Properties shall be greater than the greater of (A) the Debt Yield for all of the Properties existing on the Closing Date of the Loan and (B) the Debt Yield for all of the Properties (including the Exchange Property) immediately prior to the consummation of the Substitution, and (2) the Debt Yield for the Substitute Property, based on its Allocated Loan Amount, shall be greater than the greater of (A) the Debt Yield for the Exchange Property, based on its Allocated Loan Amount, as of the Closing Date of the Loan, and (b) the Debt Yield for such Exchange Property, based on its Allocated Loan Amount, immediately prior to the consummation of the Substitution;

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(g) Borrower shall have delivered with respect to the Substitute Property an Appraisal prepared not more than three (3) months prior to the Substitution evidencing that the appraised value of the Substitute Property is equal to or greater than the appraised value of the Exchange Property as of the Closing Date;

(h) Simultaneously with the Substitution, Borrower shall convey all of Borrower’s right, title and interest in, to and under the Exchange Property to a Person other than Borrower, Guarantor or a Person Affiliated with Borrower or Guarantor;

(i) Borrower shall deliver to Lender an Officer’s Certificate stating that the representations and warranties set forth in Article III applicable to the Exchange Property shall be true and correct as to the Substitute Property on the Substitution Date (and after giving effect to the Substitution) in all material respects;

(j) Borrower shall have executed and delivered the Substitute Loan Documents;

(k) Borrower shall have executed and delivered such other modifications and amendments to the Loan Agreement, the other Loan Documents and the Leases as Lender may require in its reasonable discretion in order to reflect and effect the Substitution and to protect and preserve the liens and security interests of Lender in and to the Property and the Substitute Property;

(l) Borrower shall deliver to Lender evidence that Borrower has the organizational authority to undertake and complete the Substitution and that the Substitute Loan Documents have been duly authorized and validly executed by or on behalf of Borrower, including any good standing certificates, qualifications to do business, resolutions, consents or other documentation as Lender may reasonably request;

(m) Lender shall have received such lien, credit, bankruptcy, litigation and judgment searches with respect to the Substitute Property and Borrower as Lender shall require;

(n) Borrower shall deliver or cause to be delivered to Lender an opinion of counsel opining as to the enforceability of the Substitute Loan Documents with respect to the Substitute Property in substantially the same form and substance as the opinion of counsel originally delivered at the Closing Date in connection with the Loan and the Property (including the Exchange Property);

(o) Borrower shall deliver or cause to be delivered to Lender a copy of the deed conveying to Borrower all right, title and fee interest in and to the Substitute Property;

(p) If the Substitute Property is in a flood plain area, Borrower shall deliver on the date of Substitution evidence of flood insurance meeting the requirements of Article VI of this Agreement;

(q) Borrower shall deliver or cause to be delivered to Lender a Phase I environmental report acceptable to Lender in its sole discretion issued by a recognized

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environmental consultant at Borrower’s expense, and, if recommended under the Phase I environmental report, a Phase II environmental report which either (I) concludes that the Substitute Property does not contain any Hazardous Substance except for nominal amounts of such substances commonly incorporated in or used in the operation of properties similar to the Property (in either case in compliance with all Environmental Laws) and is not subject to any risk of contamination from any off-site Hazardous Substance, or (II) in the event the same discloses the presence of any Hazardous Substance or the risk of contamination from any off-site Hazardous Substance, includes an estimate of the cost of any related remediation, and in such event, Borrower shall (x) deposit with Lender an amount equal to one hundred twenty-five percent (125%) of such estimated cost, which deposit shall constitute additional security for the Loan and shall be released to Borrower upon the delivery to Lender of (1) an update to such report indicating that there is no longer any Hazardous Substance on the Property except for nominal amounts of such substances commonly incorporated in or used in the operation of properties similar to the Substitute Property (in either case in compliance with all Environmental Laws) or any danger of contamination from any off-site Hazardous Substance that has not been fully remediated and (2) paid receipts indicating that the costs of all such remediation work have been paid, (y) promptly commence and diligently prosecute to completion (subject to Force Majeure) by no later than such date as Lender shall notify to Borrower on or before the Substitution Date, and (z) deliver to Lender a “no further action” letter from each Governmental Authority having jurisdiction over matters of Environmental Law applicable to such Hazardous Substances;

(r) the Substitute Property will not have suffered a Casualty or Condemnation which has not been fully restored;

(s) Borrower shall deliver or cause to be delivered to Lender a Physical Conditions Report acceptable to Lender in its reasonable discretion with respect to the Substitute Property which (I) indicates that the Substitute Property is in good condition and repair, ordinary wear and tear excepted, and free of damage or waste or (II) in the event the same recommends that any repairs be made with respect to the Substitute Property, includes an estimate acceptable to Lender of the cost of such recommended repairs, and in such event Borrower shall (x) promptly commence and diligently prosecute to completion (subject to Force Majeure) by no later than such date as Lender shall notify to Borrower on or before the Substitution Date, and (y) deposit with Lender an amount equal to one hundred twenty-five percent (125%) of such estimated cost, which deposit shall constitute additional security for the Loan and shall be released to Borrower in accordance with terms and conditions set forth in Section 3.9 hereof;

(t) Lender shall have received either a title insurance policy or an endorsement, which may be a tie-in endorsement, (the “Endorsement”) to the existing Title Insurance Policy (or a marked, signed and redated commitment to issue such policy or Endorsement) insuring the Lien of the Substitute Security Instrument as a first mortgage lien on the Substitute Property dated as of the date of the Substitution, providing coverage in the amount of the Loan, free and clear of all exceptions (including past due and unpaid real estate taxes) from coverage other than Permitted Encumbrances and standard exceptions and exclusions from coverage (as modified by the terms of any endorsements) reasonably acceptable to Lender, and containing such legally available endorsements and affirmative coverages as are legally available

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with respect to the Substitute Property similar to such endorsements and affirmative coverages with respect to the Loan and the Property (including the Exchange Property) and naming Lender and its successors and assigns as the insured. Lender also shall have received copies of paid receipts showing that all costs of or premiums for such endorsements and title insurance policies have been paid or confirmation of same from the applicable title insurance company;

(u) Lender will have received an endorsement to the existing Title Insurance Policy, a new title insurance policy for the Substitute Property, or a letter from the appropriate governmental authority, that, in each case, either insures (in the case of an endorsement or new policy) or states (in the case of a governmental authority) that the Substitute Property constitutes a separate tax lot;

(v) Borrower shall deliver or cause to be delivered to Lender a Survey of the Substitute Property in form and substance satisfactory to Lender;

(w) If a Securitization has occurred, Borrower shall deliver to Lender written confirmation from the Rating Agencies that the Substitution shall not result in a downgrade, withdrawal or qualification of the ratings then assigned to the Securities;

(x) Borrower shall deliver to Lender such other information and further approvals, opinions, documents, instruments and information in connection with the substitution as any Rating Agency may require;

(y) Borrower shall have delivered valid certificates of insurance evidencing insurance coverage with respect to the Substitute Property, which insurance coverage and the insurance companies providing such coverage will be in compliance with the requirements of this Agreement, together with evidence of the payment of all premiums then due for such insurance;

(z) if the Substitute Property is located in the State of California or a seismic area designated as Zone 3 or 4, Borrower shall have delivered a PML study and a seismic report, and Borrower shall obtain such earthquake insurance if necessary;

(aa) Borrower shall have delivered evidence that all taxes relating to the Substitute Property have been paid if then due and payable, unless being contested, subject to and in accordance with the requirements of this Agreement;

(bb) Borrower shall have made such additional deposits to the Reserve Funds in respect of the Substitute Property in connection with the Substitution as are required with respect to the insurance, replacements and taxes that are applicable to such Substitute Property;

(cc) with respect to the Substitute Property, Borrower shall have delivered to Lender (i) annual operating statements for the three (3) years immediately prior to the Substitution Date to the extent available and provided by Tenant of such Substitute Property, (ii) financial statements for the most current completed fiscal year, which financial statements will be required to be accompanied by an Officer’s Certificate in the form required pursuant to this Agreement, (iii) a current operating statement, (iv) an annual budget for the Substitute

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Property; and (v) an Officer’s Certificate certifying that each of the foregoing presents fairly the financial condition and the results of operations of the Borrower and the Substitute Property;

(dd) Borrower shall have paid all costs and expenses incurred by Lender (including due diligence costs, reasonable attorneys’ fees and disbursements) in connection with the Substitution and the review and approval of the documents and information required to be delivered in connection therewith, and Borrower shall have paid all recording charges, filing fees, taxes or other similar expenses (including mortgage and intangibles taxes and documentary stamp taxes) payable in connection with the Substitution. Borrower shall have paid all reasonable out-of-pocket costs and expenses and fees of any Rating Agency incurred in connection with the substitution;

(ee) Borrower shall have delivered to Lender a release of Lien (and related Loan Documents) for the Exchange Property for execution by Lender. Such release shall be in a form appropriate in the jurisdiction in which the Exchange Property is located and that would be satisfactory to a prudent lender and contains standard provisions, if any, protecting the rights of the releasing lender. In addition, Borrower shall provide all other certificates, documents and instruments Lender reasonably requires to be delivered by Borrower in connection with such release, together with an Officer’s Certificate certifying that such documentation (A) is in compliance with all applicable Legal Requirements, (B) will effect such release in accordance with the terms of this Agreement; and (C) will not impair or otherwise adversely affect the Liens of the Lender under the Loan Documents not being released (or as to the parties to the Loan Documents and the Properties subject to the Loan Documents not being released);

(ff) Borrower and Guarantor shall have delivered to Lender a reaffirmation, in form and substance reasonably satisfactory to Lender, of their respective obligations (as applicable) under each Guaranty and the Environmental Indemnity with respect to the Property (after giving effect to such Substitution);

(gg) A Lender 80% Determination in connection with such Substitution shall have been made at Borrower’s expense and Borrower shall deliver an opinion of counsel for Borrower that is standard in commercial lending transactions and subject only to customary qualifications, assumptions and exceptions opining that any REMIC Trust formed pursuant to a Securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code as a result of the Substitution and that no federal income tax will be imposed on the REMIC Trust as a result of the Substitution. In connection with such opinion, any determination of the fair market value of the Properties required by the provisions regarding REMIC Trusts shall be made by Lender based on an appraisal or other commercially reasonable valuation method selected by Lender;

(hh) Borrower shall have complied with any requirements applicable to the Substitution (if any) in the Leases, parking agreements or other similar agreements affecting the Property (including each applicable Substitute Property) and the Substitution does not violate any of the provisions of such documents in any respect that would result in a termination (or give any other party thereto the right to terminate), extinguishment or other loss of material rights of Borrower or in a material increase in Borrower’s obligations under such documents; and

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(ii) Borrower shall have delivered to Lender such other documents, instruments and agreements as Lender may reasonably require relating to such Substitution.

III. CASH MANAGEMENT

Section 3.1. Establishment of Accounts.

(a) Borrower shall, simultaneously herewith establish, and hereby covenants to maintain, an account (the “Lockbox Account”) with Lockbox Bank acceptable to Lender in the name of Borrower for the sole and exclusive benefit of Lender into which Borrower shall deposit, or cause to be deposited, all Gross Income from Operations, all forfeited Security Deposits and all other revenue of any kind from the Properties received by Borrower or Manager.

(b) Lender, on Borrower’s behalf, shall, simultaneously herewith (i) establish an account with the Cash Management Bank (the “Cash Management Account”) in the name of Borrower for the sole and exclusive benefit of Lender (and Borrower shall also to the extent required by Lender, and promptly upon Lender’s request, execute the agreement referred to below in clause (ii) of this Section 3.1(b)), into which Borrower shall deposit or cause to be deposited (x) the Initial Deposits, in accordance with Section 3.6 hereof, and (y) all sums on deposit in the Lockbox Account, subject to and in accordance with Sections 3.2 and 3.7 hereof, and (ii) execute an agreement with the Cash Management Bank providing, among other things, for the control of the Cash Management Bank by Lender and establishing the following Accounts (which may be book entry sub-accounts) into which all amounts in the Lockbox Account, all Gross Income from Operations, all forfeited Security Deposits and all other revenue of any kind from the Property received by Borrower or Manager, as applicable, shall, subject to Sections 3.2 and 3.7 hereof, be deposited or allocated to:

(A) An account with Cash Management Bank into which Borrower shall deposit, or cause to be deposited, the Monthly Tax Deposit (the “Tax Account”);

(B) An account with Cash Management Bank into which Borrower shall deposit, or cause to be deposited, the Monthly Insurance Premium Deposit (the “Insurance Premium Account”);

(C) An account with Cash Management Bank into which Borrower shall deposit, or cause to be deposited, the Monthly Debt Service Payment Amount (the “Debt Service Account”);

(D) An account with Cash Management Bank into which Borrower shall deposit, or cause to be deposited, the Replacement Reserve Monthly Deposit (the “Replacement Reserve Account”);

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(E) An account with Cash Management Bank into which Borrower shall deposit, or cause to be deposited, the Required Repair Fund (the “Required Repair Account”);

(F) An account with Cash Management Bank into which Borrower shall deposit, or cause to be deposited, the Rollover Reserve Fund (the “Rollover Reserve Account”); and

(G) An account with Cash Management Bank which Borrower shall deposit, or cause to be deposited the Excess Cash Reserve Fund (the “Excess Cash Reserve Account”).

Section 3.2. Deposits into Lockbox Account.

Borrower represents, warrants and covenants that (i) Borrower shall, or shall cause Manager to, deposit all Gross Income from Operations, all forfeited Security Deposits and all other revenue of any kind from each Individual Property received by Borrower or Manager into the Lockbox Account no later than one (1) Business Day after receipt; provided, however, that all Lease Termination Payments and forfeited Security Deposits shall be deposited directly in to the Rollover Reserve Account; (ii) Borrower shall send a notice, substantially in the form of Exhibit A, to all Tenants now or hereafter occupying space at each Individual Property directing them to pay all Rents (including all Lease Termination Payments) and all other sums due under the Lease to which they are a party directly into the Lockbox Account; (iii) other than the Accounts and Borrower’s account referred to in Section 3.7(a)(i) hereof, there shall be no other accounts maintained by Borrower or any other Person into which revenues from the ownership and operation of the Properties are deposited; and (iv) neither Borrower nor any other Person shall open any other such account with respect to the deposit of income in connection with the Properties other than Borrower’s account referred to in Section 3.7(a)(i) hereof. Until deposited into the Lockbox Account, any Gross Income from Operations, forfeited Security Deposits and other revenue of any kind from the Properties received by Borrower or Manager shall be deemed to be Collateral and shall be held in trust by Borrower or Manager, as the case may be, for the benefit, and as the property, of Lender. Borrower warrants and covenants that it shall not rescind, withdraw or change any notices or instructions required to be sent by it pursuant to this Section 3.2 without Lender’s prior written consent.

Section 3.3. Account Name.

(a) The Accounts shall each be in the name of Borrower for the benefit of Lender, provided that Borrower shall be the owner of all funds on deposit in the Accounts for federal and applicable state and local tax purposes.

(b) In the event Lender enters into a Secondary Market Transaction, the title of each Account shall, at Lender’s request, be modified to change the name of the applicable Account to reflect the name of the transferee or assignee of the Loan or at the option of Lender, the title of each Account shall, at Lender’s request, be modified to change the name of the applicable Account to substitute the name of the Servicer as agent for Lender in place and

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stead of Lender. Borrower shall cooperate with Lender in changing the name of the applicable Account as set forth in this Section 3.3(b).

Section 3.4. Eligible Accounts.

Each Account shall be an Eligible Account.

Section 3.5. Permitted Investments.

Borrower hereby irrevocably directs Lender to invest sums on deposit in any Account other than the Lockbox Account or Cash Management Account in Permitted Investments provided (i) such investments are then regularly offered by Cash Management Bank for accounts of this size, category and type, (ii) such investments are permitted by Applicable Law, (iii) the maturity date of the Permitted Investment is not later than the date on which sums in the applicable Account are anticipated by Lender to be required for payment of an obligation for which such Account was created, and (iv) no Event of Default shall have occurred and be continuing. All income earned from Permitted Investments shall be the property of Borrower. Borrower hereby irrevocably authorizes and directs Cash Management Bank to hold any income earned from Permitted Investments as part of the Accounts. Borrower shall be responsible for payment of any federal, State or local income or other tax applicable to income earned from Permitted Investments. No other investments of the sums on deposit in the Accounts shall be permitted except as set forth in this Section 3.5. Lender shall not be liable for any loss sustained on the investment of any funds constituting the Reserve Funds or of any funds deposited in the Accounts.

Section 3.6. The Initial Deposits.

Lender shall determine, in its reasonable discretion, the initial deposit amounts (the “Initial Deposits”) required to be deposited in each of Accounts and Borrower shall deposit the respective Initial Deposits (or hereby authorizes Lender to fund the Initial Deposits from the proceeds of the Loan) into each Account on the Closing Date.

Section 3.7. Transfer to and Disbursements from the Cash Management Account.

(a) The Lockbox Agreement shall provide that, among other things, Borrower, or Lender on behalf of Borrower, shall direct the Lockbox Bank to transfer, on each Business Day, all funds on deposit in the Lockbox Account to (i) prior to the occurrence of a Triggering Event or TI/LC Cash Sweep Triggering Event, such account as shall be specified by Borrower in writing to Lender and Lockbox Bank, and (ii) following and during the continuance of a Triggering Event or TI/LC Cash Sweep Triggering Event, provided that in the case of a TI/LC Cash Sweep Triggering Event only to the extent that the amounts on deposit in the Rollover Reserve Account are insufficient to pay the tenant improvement and leasing commission amounts set forth on Schedule V hereto, the Cash Management Account.

(b) Following the occurrence and during the continuance of a Triggering Event (other than an Event of Default) or a TI/LC Cash Sweep Triggering Event (to the extent that the amounts on deposit in the Rollover Reserve Account are insufficient to pay the tenant improvement and leasing commission amounts set forth on Schedule V hereto), provided

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no Event of Default is then continuing, Lender shall direct Cash Management Bank to withdraw all funds on deposit in the Cash Management Account on the date immediately preceding each Payment Date (and if such day is not a Business Day then the immediately preceding Business Day), and shall disburse such funds in the following order of priority:

(i) First, funds sufficient to pay the Monthly Tax Deposit shall be deposited in the Tax Account;

(ii) Second, funds sufficient to pay the Monthly Insurance Premium Deposit shall be deposited in the Insurance Premium Account;

(iii) Third, funds sufficient to pay the Monthly Debt Service Payment Amount shall be deposited into the Debt Service Account;

(iv) Fourth, funds sufficient to pay the Replacement Reserve Monthly Deposit shall be deposited in the Replacement Reserve Account;

(v) Fifth, funds sufficient to pay the Rollover Reserve Monthly Deposit shall be deposited in the Rollover Reserve Account;

(vi) Sixth, funds sufficient to pay any interest accruing at the Default Rate, late payment charges, if any, and any unpaid reimbursable costs and expenses incurred by Lender on Borrower’s behalf or in connection with the enforcement of Lender’s rights and remedies under the Loan Documents, at law or in equity, if any, shall be deposited in the Debt Service Account;

(vii) Seventh, to the payment of Cash Management Bank for fees and expenses incurred in connection with this Agreement and the accounts established hereunder;

(viii) Eighth, to the payment of the Servicing Fee (if such Servicing Fee is due);

(ix) Ninth, to Borrower for the payment of Lender approved Operating Expenses for such period; and

(x) Tenth, all amounts remaining in the Cash Management Account after deposits pursuant to clauses (i) through (viii) above for the current month and all prior months shall be disbursed either (a) during the continuance of a TI/LC Cash Sweep Triggering Event to the extent that the amounts on deposit in the Rollover Reserve are insufficient to pay the tenant improvement and leasing commission amounts set forth on Schedule V hereto, to the Rollover Reserve Account, and (b) during the

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continuance of a Triggering Event (other than an Event of Default), to the Excess Cash Reserve Account.

Section 3.8. Withdrawals From the Tax Account and the Insurance Premium Account.

Lender shall have the right to withdraw funds on deposit in the Tax Account and Lender shall use such funds to pay all Taxes. Lender shall have the right to withdraw funds on deposit in the Insurance Premium Account to pay Insurance Premiums. The Cash Management Bank shall disburse funds on deposit in the Tax Account and the Insurance Premium Account in accordance with Lender’s written request therefor on the Business Day following the Cash Management Bank’s receipt of such written request.

Section 3.9. Withdrawals from the Required Repair Account.

Lender shall disburse funds on deposit in the Required Repair Account in accordance with the provisions of Section 7.1.2 hereof.

Section 3.10. Withdrawals from the Replacement Reserve Account.

Lender shall disburse funds on deposit in the Replacement Reserve Account in accordance with the provisions of Section 7.3.2 hereof.

Section 3.11. Withdrawals from the Debt Service Account.

Lender shall have the right to withdraw funds on deposit in the Debt Service Account to pay the Monthly Debt Service Payment Amount on or after the date when due, together with any late payment charges or interest accruing at the Default Rate and unpaid reimbursable costs and expenses incurred by Lender on Borrower’s behalf or in the enforcement of Lender’s rights or remedies under any of the Loan Documents, at law or in equity.

Section 3.12. Withdrawals from the Rollover Reserve Account.

Lender shall disburse funds on deposit in the Rollover Reserve Account in accordance with the provisions of Section 7.4.3 hereof.

Section 3.13. Withdrawals from the Excess Cash Reserve Account.

Lender shall have the right to withdraw funds from the Excess Cash Reserve Account in accordance with Section 7.6 hereof.

Section 3.14. Sole Dominion and Control.

Borrower acknowledges and agrees that the Accounts are subject to the sole dominion, control and discretion of Lender, its authorized agents or designees, including Lockbox Account Bank and Cash Management Bank, subject to the terms hereof; and Borrower shall have no right of withdrawal with respect to any Account except with the prior written consent of Lender.

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Section 3.15. Security Interest.

Borrower hereby grants to Lender a first priority security interest in each of the Accounts and the Account Collateral as additional security for the Debt.

Section 3.16. Rights on Default.

Notwithstanding anything to the contrary in this Article 3, upon the occurrence and during the continuance of an Event of Default, Lender may notify Lockbox Bank and Cash Management Bank in writing of such Event of Default and, without notice from Lockbox Bank, Cash Management Bank or Lender, (a) Borrower shall have no rights in respect of (including the right to instruct Lockbox Bank or Cash Management Bank to transfer from) the Accounts, (b) Lender may direct Cash Management Bank to liquidate and transfer any amounts then invested in Permitted Investments to the Accounts or reinvest such amounts in other Permitted Investments as Lender may reasonably determine is necessary to perfect or protect any security interest granted or purported to be granted hereby or pursuant to the other Loan Documents or to enable Cash Management Bank, as agent for Lender, or Lender to exercise and enforce Lender’s rights and remedies hereunder or under any other Loan Document with respect to any Account or any Account Collateral, and (c) Lender shall have all rights and remedies with respect to the Accounts and the amounts on deposit therein and the Account Collateral as described in this Agreement and in the Security Instruments, in addition to all of the rights and remedies available to a secured party under the UCC, and, notwithstanding anything to the contrary contained in this Agreement or in the Security Instruments, Lender may apply the amounts of such Accounts as Lender determines in its sole discretion including, but not limited to, payment of the Debt.

Section 3.17. Financing Statement; Further Assurances.

Borrower hereby authorizes Lender to file a financing statement or statements under the UCC in connection with any of the Accounts and the Account Collateral with respect thereto in the form required to properly perfect Lender’s first priority security interest therein. For the avoidance of doubt, Lender is hereby authorized to file a financing statement or financing statements describing the collateral secured by this Agreement as “all assets of debtor whether now owned or hereafter acquired” or any similar description. Borrower agrees that at any time and from time to time, at the expense of Borrower, Borrower will promptly execute and deliver all further instruments and documents, and take all further action, that may be necessary or desirable, or that Lender may request, in order to perfect and protect any security interest granted or purported to be granted hereby (including any security interest in and to any Permitted Investments) or to enable Cash Management Bank or Lender to exercise and enforce its rights and remedies hereunder with respect to any Account or Account Collateral.

Section 3.18. Borrower’s Obligation Not Affected.

The insufficiency of funds on deposit in the Accounts shall not absolve Borrower of the obligation to make any payments, as and when due pursuant to this Agreement and the other Loan Documents, and such obligations shall be separate and independent, and not conditioned on any event or circumstance whatsoever.

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Section 3.19. Payments Received Under this Agreement.

Notwithstanding anything to the contrary contained in this Agreement or the other Loan Documents, and provided no Event of Default has occurred and is continuing, Borrower’s obligations with respect to the monthly payment of Debt Service and amounts due for the Tax and Insurance Escrow Fund, Required Repair Fund, Replacement Escrow Fund, Rollover Reserve Fund, and any other payment reserves established pursuant to this Agreement or any other Loan Document shall (provided Lender is not prohibited from withdrawing or applying any funds in the Accounts by Applicable Law or otherwise) be deemed satisfied to the extent sufficient amounts are deposited in the Cash Management Bank established pursuant to this Agreement to satisfy such obligations on the dates each such payment is required, regardless of whether any of such amounts are so applied by Lender.

IV. REPRESENTATIONS AND WARRANTIES

Section 4.1. Borrower Representations.

Borrower represents and warrants to Lender as of the Closing Date that:

4.1.1. Organization.

Borrower is duly organized and is validly existing and in good standing in the jurisdiction in which it is organized, with requisite power and authority to own the Properties and to transact the businesses in which it is now engaged. Borrower is duly qualified to do business and is in good standing in each jurisdiction where it is required to be so qualified in connection with the Properties, its businesses and operations. Borrower possesses all rights, licenses, permits and authorizations, governmental or otherwise, necessary to entitle it to own the Properties and to transact the businesses in which it is now engaged. Attached hereto as Schedule III is true, correct and complete organizational chart of Borrower which identifies all direct and indirect beneficial owners of Borrower.

4.1.2. Proceedings.

Borrower has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the other Loan Documents. This Agreement and the other Loan Documents have been duly executed and delivered by or on behalf of Borrower and constitute legal, valid and binding obligations of Borrower enforceable against Borrower in accordance with their respective terms, subject only to applicable bankruptcy, insolvency and similar laws affecting rights of creditors generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and except that certain provisions in such Loan Documents may be further limited or rendered unenforceable by Applicable Law, but (subject to the limitations set forth above) such limitations or unenforceability will not render such Loan Documents invalid as a whole or materially interfere with Lender’s realization of the principal benefits and/or security provided thereby.

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4.1.3. No Conflicts.

The execution, delivery and performance of this Agreement and the other Loan Documents by Borrower will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any Lien, charge or encumbrance (other than pursuant to the Loan Documents) upon any of the Properties or assets of Borrower pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, organizational document, management agreement, or other agreement or instrument to which Borrower is a party or by which any of Borrower’s Property or assets is subject, nor will such action result in any violation of the provisions of any statute or any order, rule or regulation of any court or Governmental Authority or other body having jurisdiction over Borrower or any of the Properties or any of Borrower’s other assets, or any license or other approval required to operate the Properties, and any consent, approval, authorization, order, registration or qualification of or with any Governmental Authority required for the execution, delivery and performance by Borrower of this Agreement or any other Loan Documents have been obtained and is in full force and effect.

4.1.4. Litigation.

There are no actions, suits or proceedings at law or in equity, arbitrations or governmental investigations by or before any Governmental Authority or other agency now pending, filed or, to Borrower’s knowledge, threatened against or affecting Borrower, Guarantor, or any Individual Property, which actions, suits or proceedings, arbitrations or governmental investigations, if determined against Borrower, Guarantor, or any Individual Property, would reasonably be expected to materially and adversely affect (a) title to any Individual Property, (b) the validity or enforceability of the Security Instruments, (c) Borrower’s ability to perform under the Loan Documents, (d) Guarantor’s ability to perform under the Loan Documents to which it is a party, (e) the use, operation or value of any Individual Property, (f) the principal benefit of the security intended to be provided by the Loan Documents, or (g) the current ability of the Properties to generate net cash flow sufficient to service the Loan.

4.1.5. Agreements.

Borrower is not a party to any agreement or instrument or subject to any restriction which would reasonably be expected to materially and adversely affect Borrower or any Individual Property, or Borrower’s business, Properties or assets, operations or condition, financial or otherwise. Borrower is not in default in any respect in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any agreement or instrument to which it is a party or by which Borrower or any of the Properties are bound. Borrower has no financial obligation under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which Borrower is a party or by which Borrower or any Individual Property is otherwise bound, other than (a) obligations incurred in the ordinary course of the operation of any Individual Property and (b) obligations under the Loan Documents.

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4.1.6. Title.

Borrower has good, marketable and insurable fee simple title to the real property comprising part of each Individual Property and good title to the balance of each Individual Property, free and clear of all Liens whatsoever except the Permitted Encumbrances. The Security Instruments, when properly recorded in the appropriate records, together with any Uniform Commercial Code financing statements required to be filed in connection therewith, will create (a) a legal, valid and enforceable perfected first priority lien on each Individual Property, subject only to the Permitted Encumbrances and (b) perfected first priority security interests in and to, and perfected collateral assignments of, all personalty (including Leases), all in accordance with the terms thereof, in each case subject only to any Permitted Encumbrances. There are no mechanics’ liens, materialmen’s liens or other encumbrances affecting any Individual Property and, to Borrower’s knowledge, no rights exist which under law could give rise to any such claims for payment of work, labor or materials which are or may become a lien prior to, or of equal priority with, the Liens created by the Loan Documents. The assignments of Leases contained in the Security Instrument are freely assignable without the consent of Borrower and, when properly recorded in the appropriate records, will create a perfected first priority security interest in and to, and perfected collateral assignment of, all Leases and Rents, all in accordance with the terms thereof, in each case subject only to any Permitted Encumbrances.

4.1.7. Permitted Encumbrances.

To the best of Borrower’s knowledge, none of the Permitted Encumbrances, individually or in the aggregate, materially interferes with the benefits of the security intended to be provided by this Agreement, the Security Instruments, the Note and the other Loan Documents, materially and adversely affects the value or marketability of any Individual Property, impairs the use or the operation of any Individual Property or impairs Borrower’s ability to pay the Obligations as and when required under the Loan Documents.

4.1.8. Solvency.

Borrower (a) has not entered into the transaction or executed the Note, this Agreement or any other Loan Documents with the actual intent to hinder, delay or defraud any creditor and (b) has received reasonably equivalent value in exchange for its obligations under the Loan Documents. Giving effect to the Loan, the fair saleable value of Borrower’s assets exceeds and will, immediately following the making of the Loan, exceed Borrower’s total liabilities, including subordinated, unliquidated, disputed and contingent liabilities. Borrower’s assets do not and, immediately following the making of the Loan will not, constitute unreasonably small capital to carry out its business as conducted or as proposed to be conducted. Borrower does not intend to incur debt and liabilities (including contingent liabilities and other commitments) beyond its ability to pay such debt and liabilities as they mature (taking into account the timing and amounts of cash to be received by Borrower and the amounts to be payable on or in respect of obligations of Borrower). No petition under the Bankruptcy Code or similar state bankruptcy or insolvency law has been filed against any Borrower Party in the last seven (7) years, and no Borrower Party in the last seven (7) years has ever made an assignment for the benefit of creditors or taken advantage of any insolvency act for the benefit of debtors. No Borrower Party

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is contemplating either the filing of a petition by it under the Bankruptcy Code or similar state bankruptcy or insolvency law or the liquidation of all or a major portion of Borrower’s assets or property, and Borrower has no knowledge of any Person contemplating the filing of any such petition against it or any other Borrower Party.

4.1.9. Full and Accurate Disclosure.

No statement of fact made by Borrower in this Agreement or in any of the other Loan Documents contains any untrue statement of a material fact or omits to state any material fact necessary to make statements contained herein or therein not misleading. There is no fact presently known to Borrower which has not been disclosed to Lender which materially and adversely affects, or would be reasonably anticipated to materially and adversely affect, any Individual Property or the business, operations or condition (financial or otherwise) of Borrower.

4.1.10. No Plan Assets.

(a) (i) Borrower is not a Plan, (ii) none of the assets of Borrower constitutes or will constitute Plan Assets and (iii) Borrower is not engaging in any Prohibited Transaction.

(b) (i) Borrower is not a Governmental Plan and (ii) no transactions by or with Borrower are Prohibited Governmental Transactions.

4.1.11. Compliance.

To the best of Borrower’s knowledge, Borrower and the Properties and the occupancy, use and operation thereof materially comply with all applicable Legal Requirements, including all Environmental Laws, building and zoning ordinances and codes and all covenants and restrictions. Borrower is not in default or violation of any order, writ, injunction, decree or demand of any Governmental Authority. There has not been committed by Borrower or, to the best of Borrower’s knowledge, any other Person in occupancy of or involved with the operation or use of the Properties any act or omission affording the federal government or any other Governmental Authority the right of forfeiture as against any Individual Property or any part thereof or any monies paid in performance of Borrower’s obligations under any of the Loan Documents.

4.1.12. Financial Information.

All financial data, including the statements of cash flow and income and operating expense, that have been delivered to Lender by or on behalf of Borrower in respect of Borrower, Guarantor, and the Properties (i) are true, complete and correct in all material respects, (ii) accurately represent the financial condition in all material respects of Borrower, Guarantor, and the Properties, as applicable, as of the date of such reports, and (iii) have been prepared in accordance with GAAP (or such other method of accounting reasonably acceptable to Lender) throughout the periods covered, except as disclosed therein. Except for Permitted Encumbrances, Borrower does not have any contingent liabilities, liabilities for taxes, unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments that are known to Borrower and reasonably likely to have a materially adverse effect on any Individual Property or the operation thereof for the use set forth in Section 4.1.22

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hereof, except as referred to or reflected in said financial statements. Since the date of such financial statements, there has been no materially adverse change in the financial condition, operations or business of Borrower or Guarantor from that set forth in said financial statements.

4.1.13. Condemnation.

Borrower has received no notice of, and is not otherwise aware of, the commencement of a Condemnation or other similar proceeding nor, to the best of Borrower’s knowledge, is there any threatened or contemplated with respect to all or any portion of any Individual Property or for the relocation of roadways providing access to any Individual Property.

4.1.14. Federal Reserve Regulations.

No part of the proceeds of the Loan will be used for the purpose of purchasing or acquiring any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System or for any other purpose which would be inconsistent with such Regulation U or any other Regulations of such Board of Governors, or for any purposes prohibited by Legal Requirements or by the terms and conditions of this Agreement or the other Loan Documents.

4.1.15. Utilities and Public Access.

Each Individual Property (a) is located on or adjacent to a public road and has direct legal access to such road, or has access via an irrevocable easement or irrevocable right of way permitting ingress and egress to/from a public road, and (b) is served by or has uninhibited access rights to public or private water and sewer (or well and septic) and all required utilities, all of which are appropriate for the current use of each Individual Property. To the best of Borrower’s knowledge, all public utilities necessary or convenient to the full use and enjoyment of each Individual Property are located either in the public right-of-way abutting each Individual Property (which are connected so as to serve such Individual Property without passing over other property) or in recorded easements serving each Individual Property and such easements are set forth in and insured by the Title Insurance Policies. To the best of Borrower’s knowledge, all roads necessary for the use of each Individual Property for its respective current purposes have been completed, are physically open and are dedicated to public use and have been accepted by all Governmental Authorities.

4.1.16. Not a Foreign Person.

Borrower is not a “foreign person” within the meaning of Section 1445(f)(3) of the Code.

4.1.17. Separate Lots.

Each Individual Property is comprised of one (1) or more parcels which constitute a separate tax lot or lots and does not constitute a portion of any other tax lot not a part of such Individual Property.

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4.1.18. Assessments.

To the best of Borrower’s knowledge, there are no taxes, pending or proposed special or other government assessments for public improvements or other outstanding governmental charges (including water and sewage charges) otherwise affecting any Individual Property, nor are there any contemplated improvements to any Individual Property that may result in such special or other assessments.

4.1.19. Enforceability.

The Loan Documents are not subject to any right of rescission, set-off, counterclaim or defense by Borrower, including the defense of usury, and Borrower has not asserted any right of rescission, set-off, counterclaim or defense with respect thereto including any offset, defense, counterclaim or right based on fraud by Lender in connection with the origination of the Loan.

4.1.20. No Prior Assignment.

There are no prior assignments of the Leases or any portion of the Rents due and payable or to become due and payable which are presently outstanding.

4.1.21. Insurance.

Borrower has obtained and has delivered to Lender certified copies of all Policies or binders, pro formas or certificates of insurance, or, with respect to insurance maintained by a Tenant pursuant to the terms of a Single Tenant Lease, evidence reasonably acceptable to Lender, reflecting the insurance coverages, amounts and other requirements set forth in this Agreement. To Borrower’s knowledge, no Person, including Borrower, has done, by act or omission, anything which would impair the coverage of any such Policy.

4.1.22. Use of Property.

Each Individual Property is used for a lawful purpose (in accordance with the applicable Lease).

4.1.23. Certificate of Occupancy; Licenses.

All certifications, permits, licenses and approvals, including certificates of completion and occupancy permits required for the legal use, occupancy and operation of each Individual Property by Borrower (collectively, the “Licenses”), have been obtained and are in full force and effect and are not subject to revocation, suspension or forfeiture. Borrower shall keep and maintain (or cause to be kept and maintained) all Licenses necessary for the operation of the each Individual Property. The use being made of each Individual Property is in conformity with the certificate of occupancy issued for such Individual Property.

4.1.24. Flood Zone.

None of the Improvements on any Individual Property are located in an area as identified by the Federal Emergency Management Agency as an area having special flood hazards and, if

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so located, the flood insurance required pursuant to Section 6.1(a)(vii) is in full force and effect with respect to each such Individual Property.

4.1.25. Physical Condition.

To the best of Borrower’s knowledge, and except as otherwise disclosed in the property conditions reports obtained by Lender, each Individual 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, are in good repair and condition, reasonable wear and tear excepted, there exists no structural or other material defects or damages in any Individual Property, whether latent or otherwise, and Borrower has not received notice from any insurance company or bonding company of any defects or inadequacies in any Individual 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 of any termination or threatened termination of any policy of insurance or bond. Each Individual Property is free from material damage covered by fire or other casualty. To the best of Borrower’s knowledge, and except as otherwise disclosed in the property condition reports obtained by Lender, all liquid and solid waste disposal, septic and sewer systems located on each Individual Property are in a good and safe condition and repair and in compliance with all Legal Requirements.

4.1.26. Boundaries.

Except for encroachments reflected on Surveys delivered to Lender or which are insured pursuant to a Title Insurance Policy, and which do not otherwise have a material adverse affect on the Tenant’s operation of an Individual Property, all of the Improvements which were included in determining the appraised value of the each Individual Property lie wholly within the boundaries and building restriction lines of the such Individual Property, and no improvements on adjoining Properties encroach upon such Individual Property, and no easements or other encumbrances upon the applicable Individual Property encroach upon any of the Improvements.

4.1.27. Leases.

(a) The Properties are not subject to any Leases other than the Leases described on the Rent Roll attached as Schedule II hereto. Borrower is the owner and lessor of landlord’s interest in the Leases. To Borrower’s knowledge, no Person has any possessory interest in any Individual Property or right to occupy the same except under and pursuant to the provisions of the Leases. The current Leases are in full force and effect and there are no defaults by Borrower or, to Borrower’s knowledge, any Tenant under any Lease, and there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults under any Lease. To Borrower’s knowledge, all Tenants under the Leases are currently in occupancy and have not ceased or substantially ceased operations, or otherwise “gone dark”. No Tenant has given notice of intent to cease operations, substantially cease operations or otherwise “go dark.” No Rent has been paid more than one (1) month in advance of its due date. To Borrower’s knowledge, there are no offsets or defenses to the payment of any portion of the Rents. All work to be performed by Borrower under each Lease has been, or is being, performed

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as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any Tenant has already been received by such Tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein which is still in effect. Except as described on Schedule II, no Tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. To Borrower’s knowledge, no Hazardous Materials have been disposed, stored or treated by any Tenant under any Lease on or about the leased premises nor does Borrower have any knowledge of any Tenant’s intention to use its leased premises for any activity which, directly or indirectly, involves the use, generation, treatment, storage, disposal or transportation of any Hazardous Materials, except those that are both (i) in compliance with current Environmental Laws and with permits issued pursuant thereto (if such permits are required), and (ii) either (A) in amounts not in excess of that necessary to operate, clean, repair and maintain the applicable Individual Property or each Tenant’s respective business at such Individual Property as set forth in their respective Leases, (B) held by a Tenant for sale to the public in its ordinary course of business, or (C) fully disclosed to Lender in writing pursuant to the Environmental Reports.

(b) Lender shall have all of the rights against lessees of each Individual Property located in the State of New York set forth in Section 291-1 of the Real Property Law of New York.

4.1.28. Title and Survey.

(a) Neither Borrower, nor to Borrower’s knowledge, any Person, has done, by act or omission, anything that would materially impair the coverage under the Title Insurance Policies.

(b) To Borrower’s knowledge, the Survey for each Individual Property delivered to Lender in connection with this Agreement does not fail to reflect any material matter affecting such Individual Property or title thereto that would ordinarily be reflected on a Survey.

4.1.29. Loan to Value.

The maximum principal amount of the Loan does not exceed one hundred twenty-five percent (125%) of the aggregate fair market value of the Properties.

4.1.30. Filing and Recording Taxes.

All transfer taxes, deed stamps, intangible taxes or other amounts in the nature of transfer taxes required to be paid by any Person under applicable Legal Requirements currently in effect in connection with the transfer of the Properties to Borrower have been paid or will be paid at or prior to the filing or recordation of the Security Instruments or any other Loan Document. All mortgage, mortgage recording, stamp, intangible or other similar tax required to be paid by any Person under applicable Legal Requirements currently in effect in connection with the execution, delivery, recordation, filing, registration, perfection or enforcement of any of the Loan Documents, including the Security Instruments, have been paid or will be paid at or prior to the filing or recordation of the Security Instruments or any other Loan Document.

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4.1.31. Management Agreement.

As of the Closing Date, the Properties are not managed by any Person other than Borrower and no separate management agreement exists with respect to any Individual Property.

4.1.32. Illegal Activity.

No portion of any Individual Property has been or will be purchased with proceeds of any illegal activity and to the best of Borrower’s knowledge, there are no illegal activities or activities relating to any controlled substances at any Individual Property.

4.1.33. No Change in Facts or Circumstances; Disclosure.

(a) All information submitted by Borrower to Lender and in all financial statements, rent rolls, reports, certificates and other documents submitted in connection with the Loan by or on behalf of Borrower or in satisfaction of the terms thereof and all statements of fact made by Borrower in this Agreement or in any other Loan Document, are accurate, complete and correct in all material respects. There has been no material adverse change in any condition, fact, circumstance or event that would make any such information inaccurate, incomplete or otherwise misleading in any material respect or that otherwise materially and adversely affects or might materially and adversely affect the use, operation or value of the Properties or the business operations or the financial condition of Borrower which would result in the impairment of Borrower’s ability to comply with Borrower’s obligations under this Agreement and the other Loan Documents. Borrower has disclosed to Lender all material facts and has not failed to disclose any material fact that could cause any Provided Information or information described in this Section 4.1.33(a) or any representation or warranty made herein to be materially misleading.

(b) To Borrower’s knowledge, all information prepared by any Tenant and submitted by Borrower to Lender and in all financial statements, rent rolls, reports, certificates and other documents prepared by any Tenant and submitted in connection with the Loan or in satisfaction of the terms thereof are accurate, complete and correct in all material respects. To the best of Borrower’s knowledge, there has been no material adverse change in any condition, fact, circumstance or event that would make any such information inaccurate, incomplete or otherwise misleading in any material respect or that otherwise materially and adversely affects or might materially and adversely affect the use, operation or value of any Property or the business operations or the financial condition of Borrower which would result in the impairment of Borrower’s ability to comply with Borrower’s obligations under this Agreement and the other Loan Documents. To Borrower’s knowledge, Borrower has disclosed to Lender all material facts and has not failed to disclose any material fact that could cause any information described in this Section 4.1.33(b) to be materially misleading.

4.1.34. Investment Company Act.

Borrower is not (a) an “investment company” or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as amended; (b) a “holding company” or a “subsidiary company” of a “holding company” or an “affiliate” of either a “holding company” or a “subsidiary company” within the meaning of the

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Public Utility Holding Company Act of 1935, as amended; or (c) subject to any other federal or State law or regulation which purports to restrict or regulate its ability to borrow money.

4.1.35. Principal Place of Business; State of Organization.

Borrower’s principal place of business as of the date hereof is the address set forth in the introductory paragraph of this Agreement. Borrower is organized under the laws of the State of Delaware and its organizational identification number is set forth on Schedule I attached hereto.

4.1.36. Single Purpose Entity.

Borrower covenants and agrees that its organizational documents shall provide that Borrower has not since the date of its formation, and shall not, and that the organizational documents of its general partner(s), if Borrower is a partnership, or its managing member(s), if Borrower is a limited liability company with multiple members (in each case, such general partner(s) or managing member(s), “Principal”, it being agreed and acknowledged that as of the Closing Date there is no Principal) shall provide that it has not since the date of its formation and shall not:

(a) with respect to Borrower, engage in any business or activity other than the acquisition, development, ownership, operation, leasing, managing and maintenance of the Properties, and entering into the Loan, and activities incidental thereto and with respect to Principal, if any, engage in any business or activity other than the ownership of its equity interest in Borrower, and activities incidental thereto;

(b) with respect to Borrower, acquire or own any material assets other than (i) the Properties, and (ii) such incidental Personal Property as may be necessary for the operation of the Properties, as the case may be and with respect to Principal, if any, acquire or own any material asset other than its equity interest in Borrower;

(c) merge into or consolidate with any Person or, to the fullest extent permitted by law, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, other than as set forth on Schedule VIII;

(d) (i) fail to observe in all material respects its organizational formalities or preserve its existence as an entity duly organized, validly existing and in good standing (if applicable) under the laws of the jurisdiction of its organization or formation, and qualification to do business in the State where the Properties are located (if the failure to so qualify would result in a material adverse affect on the Borrower or the Individual Property), if applicable, or (ii) without the prior written consent of Lender, amend, modify, terminate or fail to comply in all material respects with the provisions of Borrower’s organizational documents, as the case may be, or of Principal’s organizational documents, as the case may be, whichever is applicable;

(e) other than Principal’s equity ownership interest in Borrower, own any subsidiary or make any investment in, any Person without the prior written consent of Lender;

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(f) commingle its assets with the assets of any of its members, general partners, Affiliates, principals or of any other Person, participate in a cash management system with any other Person or fail to use, to the extent applicable, its own separate stationery, invoices and checks bearing its own name;

(g) with respect to Borrower, incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than the Debt, except for trade payables in the ordinary course of its business of owning and operating the Properties, as applicable, provided that such debt (i) is not evidenced by a note, (ii) is paid within ninety (90) days of the date incurred, unless Borrower is disputing such amounts owed in good faith, (iii) does not exceed, in the aggregate, two percent (2%) of the outstanding principal balance of the Note and (iv) is payable to trade creditors and in amounts as are normal and reasonable under the circumstances and with respect to Principal, if any, incur any debt secured or unsecured, direct or contingent (including guaranteeing any obligations);

(h) to the extent the Properties produces sufficient revenue and such revenue is made available to Borrower, become insolvent and fail to pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due, except that the foregoing shall not require any direct or indirect member of Borrower (including any Principal, if any) to make any loan or capital contribution to Borrower or arrange for any loan or capital contribution from any third party, and the failure of Borrower to be or remain solvent shall not (by itself) result in recourse under Section 9.4 hereof;

(i) (i) fail to maintain its records (including financial statements), books of account and bank accounts separate and apart from those of the members, general partners, principals and Affiliates of Borrower or of Principal, if any, as the case may be, the Affiliates of a member, general partner or principal of Borrower or of Principal, if any, as the case may be, and any other Person, (ii) permit its assets or liabilities to be listed as assets or liabilities on the financial statement of any other Person or (iii) include the assets or liabilities of any other Person on its financial statements; provided, however, that its assets may be included in a consolidated financial statement of its Affiliates, provided that (A) any such consolidated financial statement shall contain a note indicating that its separate assets and liabilities are neither available to pay the debts of the consolidated entity nor constitute obligations of the consolidated entity, and (B) such assets shall also be listed on its own separate balance sheet;

(j) enter into any contract or agreement with any member, general partner, principal or Affiliate of Borrower or of Principal, if any, as the case may be, Guarantor or any member, general partner, principal or Affiliate thereof (other than a business management services agreement with an Affiliate of Borrower, provided that (i) such agreement is acceptable to Lender, (ii) the manager, or equivalent thereof, under such agreement holds itself out as an agent of Borrower and (iii) the agreement meets the standards set forth in this subsection (j) following this parenthetical), except upon terms and conditions that are commercially reasonable, intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than any member, general partner, principal or Affiliate of Borrower or of Principal, if any, as the case may be, Guarantor or any member, general partner, principal or Affiliate thereof;

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(k) to the fullest extent permitted by law, seek the dissolution or winding up in whole, or in part, of Borrower or of Principal, if any, as the case may be;

(l) fail to correct any known misunderstandings regarding the separate identity of Borrower, or of Principal, if any, as the case may be, or any member, general partner, principal or Affiliate thereof or any other Person;

(m) guarantee or become obligated for the debts of any other Person or hold itself out to be responsible for the debts of another Person other than with respect to the Loan;

(n) make any loans or advances to any third party, including any member, general partner, principal or Affiliate of Borrower or of Principal, if any, as the case may be, or any member, general partner, principal or Affiliate thereof (which, for the avoidance of doubt, shall not be deemed to include distributions to the direct or indirect members of Borrower), and shall not acquire obligations or securities of any member, general partner, principal or Affiliate of Borrower or Principal, if any, as the case may be, or any member, general partner, or Affiliate thereof;

(o) fail to file its own tax returns separate from those of any other person except to the extent it is treated as a “disregarded entity” for tax purposes, and is not required to file tax returns under Applicable Law;

(p) fail either to hold itself out to the public as a legal entity separate and distinct from any other Person or to conduct its business solely in its own name or a name franchised or licensed to it by an entity other than an Affiliate of Borrower or of Principal, if any, as the case may be, and not as a division or part of any other entity in order not (i) to mislead others as to the identity with which such other party is transacting business, or (ii) to suggest that Borrower or Principal, if any, as the case may be, is responsible for the debts of any third party (including any member, general partner, principal or Affiliate of Borrower, or of Principal, if any, as the case may be, or any member, general partner, principal or Affiliate thereof);

(q) to the extent the Property produces sufficient revenue and such revenue is made available to Borrower, fail to 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, except that the foregoing shall not require any direct or indirect member of Borrower (including any Principal) to make any loan or capital contribution to Borrower or arrange for any loan or capital contribution from any third party, and the failure of Borrower to be or remain solvent shall not (by itself) result in recourse under Section 9.4 hereof;

(r) hold itself out as or be considered as a department or division of (i) any general partner, principal, member or Affiliate of Borrower or of Principal, if any, as the case may be, (ii) any Affiliate of a general partner, principal or member of Borrower or of Principal, as the case may be, or (iii) any other Person;

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(s) fail to allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate;

(t) pledge its assets for the benefit of any other Person, and with respect to Borrower, other than with respect to the Loan;

(u) fail to maintain a sufficient number of employees, if any, in light of its contemplated business operation and pay the salaries of its own employees, if any, only from its own funds and only to the extent of such funds (provided, however, this provision shall not require any additional capital from any Affiliate of the Borrower);

(v) fail to provide in its organizational documents that for so long as the Loan is outstanding pursuant to the Note, this Agreement and the other Loan Documents, it shall not file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, or make an assignment for the benefit of creditors without the affirmative vote of each Independent Director and of all other general partners/managing members/directors;

(w) fail to hold its assets in its own name and it shall not fail to maintain its assets in such a manner that it will be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person;

(x) fail to consider the interests of Borrower or the Principal, if any, as the case may be, including the creditors of Borrower or Principal, if any, as the case may be, in connection with all limited liability company or corporate actions to the extent permitted by Applicable Law;

(y) have any of its obligations guaranteed by an Affiliate except Guarantor in connection with the Loan;

(z) violate or cause to be violated the assumptions regarding separateness made with respect to Borrower, Guarantor, and Principal, if any, in the Insolvency Opinion;

(aa) with respect to Principal, if any, or Borrower, if Borrower is a corporation or a single member limited liability company that complies with the requirements of Section 4.1.36(cc) below, fail at any time to have at least two (2) Independent Directors;

(bb) with respect to a Principal, if any, or Borrower, if Borrower is a corporation or a single member limited liability company that complies with the requirements of Section 4.1.36(cc) below, permit its board of directors or other governing body to take any action which, under the terms of any certificate of incorporation, by-laws, voting trust agreement with respect to any common stock or other applicable organizational documents, requires the unanimous vote of one hundred percent (100%) of the members of the board or other governing body without the vote of each Independent Director; or

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(cc) in the event Borrower is a Delaware limited liability company that does not have a managing member which complies with the requirements for a Principal under this Section 4.1.36, fail to have a limited liability company agreement of Borrower (the “LLC Agreement”) which provides that (A) upon the occurrence of any event that causes the last remaining member of Borrower (“Member”) to cease to be the Member of Borrower (other than (1) upon an assignment by Member of all of its limited liability company interest in Borrower and the admission of the transferee in accordance with the Loan Documents and the LLC Agreement, or (2) the resignation of Member and the admission of an additional member of Borrower in accordance with the terms of the Loan Documents and the LLC Agreement), any person acting as Independent Director of Borrower shall, without any action of any other Person and simultaneously with the Member ceasing to be the member of Borrower, automatically be admitted to Borrower (“Special Member”) and shall continue Borrower without dissolution and (B) Special Member may not resign from Borrower or transfer its rights as Special Member unless (1) a successor Special Member has been admitted to Borrower as Special Member in accordance with requirements of Delaware law and (2) such successor Special Member has also accepted its appointment as an Independent Director. The LLC Agreement shall further provide that (v) Special Member shall automatically cease to be a member of Borrower upon the admission to Borrower of a substitute Member, (w) Special Member shall be a member of Borrower that has no interest in the profits, losses and capital of Borrower and has no right to receive any distributions of Borrower assets, (x) pursuant to Section 18-301 of the Delaware Limited Liability Company Act (the “Act”), Special Member shall not be required to make any capital contributions to Borrower and shall not receive a limited liability company interest in Borrower, (y) Special Member, in its capacity as Special Member, may not bind Borrower and (z) except as required by any mandatory provision of the Act, Special Member, in its capacity as Special Member, shall have no right to vote on, approve or otherwise consent to any action by, or matter relating to, Borrower, including the merger, consolidation or conversion of Borrower; provided, however, such prohibition shall not limit the obligations of Special Member, in its capacity as Independent Director, to vote on such matters required by the LLC Agreement. In order to implement the admission to Borrower of Special Member, Special Member shall execute a counterpart to the LLC Agreement. Prior to its admission to Borrower as Special Member, Special Member shall not be a member of Borrower. The LLC Agreement shall further provide that upon the occurrence of any event that causes the Member to cease to be a member of Borrower, to the fullest extent permitted by law, the personal representative of Member shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of Member in Borrower, agree in writing (A) to continue Borrower and (B) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of Member of Borrower in Borrower. Any action initiated by or brought against Member or Special Member under any Creditors Rights Laws shall not cause Member or Special Member to cease to be a member of Borrower and upon the occurrence of such an event, the business of Borrower shall continue without dissolution. The LLC Agreement shall provide that each of Member and Special Member waives any right it might have to agree in writing to dissolve the Borrower upon the occurrence of any action initiated by or brought against Member or Special Member under any Creditors Rights Laws, or the occurrence of an event that causes Member or Special Member to cease to be a member of Borrower.

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Without limiting the foregoing in Section 4.1.36, (i) each of Borrower and Principal, if any, shall have been since the date of its formation and will continue to be duly formed, validly existing and in good standing in the state of its incorporation or formation and in all other jurisdictions where it is qualified to do business (except with respect to any filings for qualification that have been submitted but not yet qualified, provided that there is no material adverse effect on the Properties or Borrower pending such completed qualification), and (ii) each of Borrower (including any entity previously merged into Borrower) and Principal, if any, (A) shall have paid all taxes which are due and payable, or be contesting such taxes in good faith and in accordance with this Agreement, (B) shall not now, nor have ever been, party to any lawsuit, arbitration, summons or legal proceeding that resulted in a judgment against it that has not been paid in full, (C) shall have no judgments or liens of any nature against it except for Permitted Encumbrances, (D) shall have no material contingent or actual obligations not related to the Property, and (E) shall have not owned any real property except for the Properties.

4.1.37. Business Purposes.

The Loan is solely for the business purpose of Borrower, and is not for personal, family, household, or agricultural purposes.

4.1.38. Taxes.

Borrower has filed all federal, State, county, municipal, and city income and other tax returns required to have been filed by it and has paid all taxes and related liabilities which have become due pursuant to such returns or pursuant to any assessments received by it. Borrower knows of no basis for any additional assessment in respect of any such taxes and related liabilities for prior years.

4.1.39. Forfeiture.

Neither Borrower nor any other Person in occupancy of or involved with the operation or use of any of the Properties has committed any act or omission affording the federal government or any State or local government the right of forfeiture as against any of the Properties or any part thereof or any monies paid in performance of Borrower’s obligations under the Note, this Agreement or the other Loan Documents. Borrower hereby covenants and agrees not to commit, permit or suffer to exist any act or omission affording such right of forfeiture.

4.1.40. Environmental Representations and Warranties.

Borrower represents and warrants, except as disclosed in the written reports resulting from the environmental site assessments of the Properties delivered to Lender prior to the Closing Date (the “Environmental Report”) that (a) to Borrower’s knowledge, there are no Hazardous Materials or underground storage tanks in, on, or under any of the Properties, except those that are both (i) in compliance with current Environmental Laws and with permits issued pursuant thereto (if such permits are required), and (ii) (A) in amounts not in excess of that necessary to operate, clean, repair and maintain the applicable Individual Property or each Tenant’s respective business at such Individual Property as set forth in their respective Leases, (B) held by a Tenant for sale to the public in its ordinary course of business, or (C) in a manner that does not result in the contamination of the applicable Individual Property or in a material

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adverse effect on the value, use or operations of the applicable Individual Property, (b) to Borrower’s knowledge, there are no past, present or threatened Releases of Hazardous Materials in violation of any Environmental Law and which would require Remediation by a Governmental Authority in, on, under or from any of the Properties; (c) to Borrower’s knowledge, there is no threat of any Release of Hazardous Materials migrating to any of the Properties; (d) to Borrower’s knowledge, there is no past or present non-compliance with current Environmental Laws, or with permits issued pursuant thereto, in connection with any of the Properties except as described in the Environmental Reports; (e) Borrower does not know of, and has not received, any written notice or other communication from any Person (including, but not limited to, a Governmental Authority) relating to Hazardous Materials in, on, under or from any of the Properties; and (f) Borrower has provided to Lender, in writing, any and all material information relating to environmental conditions of the Properties known to Borrower or contained in Borrower’s files and records and known to Borrower, including but not limited to any reports relating to Hazardous Materials in, on, under or migrating to or from any of the Properties and/or to the environmental condition of the Properties.

4.1.41. Taxpayer Identification Number.

Borrower’s United States taxpayer identification number is as set forth on Schedule I attached hereto.

4.1.42. OFAC.

Borrower represents and warrants that each Borrower Party and their respective Affiliates and any Person that to Borrower’s knowledge has an economic interest in any Borrower Party is (i) not a Prohibited Person; (ii) in full compliance with the requirements of the Patriot Act and all other applicable orders, rules, regulations and recommendations of The Office of Foreign Assets Control of the U.S. Department of the Treasury (as used in this Section only, “OFAC”); (iii) operated under policies, procedures and practices, if any, that are in compliance with the Patriot Act and available to Lender for Lender’s review and inspection during normal business hours and upon reasonable prior notice; (iv) not in receipt of any notice from the Secretary of State or the Attorney General of the United States or any other department, agency or office of the United States claiming a violation or possible violation of the Patriot Act; (v) not listed as a Specially Designated Terrorist or as a “blocked” Person on any lists maintained by the OFAC pursuant to the Patriot Act or any other list of terrorists or terrorist organizations maintained pursuant to any of the rules and regulations of the OFAC issued pursuant to the Patriot Act or on any other list of terrorists or terrorist organizations maintained pursuant to the Patriot Act; and (vi) not a Person who has been determined by competent authority to be subject to any of the prohibitions contained in the Patriot Act. Borrower covenants and agrees that in the event Borrower receives any notice that any Borrower Party (or any of their respective beneficial owners or Affiliates) become listed on the Annex or any other list promulgated under the Patriot Act or is indicted, arraigned, or custodially detained on charges involving money laundering or predicate crimes to money laundering, Borrower shall immediately notify Lender. It shall be an Event of Default hereunder if any Borrower Party or any other party to any Loan Document becomes listed on any list promulgated under the Patriot Act or is indicted, arraigned or custodially detained on charges involving money laundering or predicate crimes to money laundering. All capitalized words and phrases and all defined terms used in the USA Patriot Act of 2001, 107 Public Law 56 (October 26,

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2001) and in other statutes and all orders, rules and regulations of the United States government and its various executive departments, agencies and offices related to the subject matter of the Patriot Act, including Executive Order 13224 effective September 24, 2001 (collectively referred to in this Section only as the “Patriot Act”) and are incorporated into this Section.

4.1.43. Pre-Existing Liability.

There are no Pre-Existing Liabilities.

4.1.44. Deposit Accounts.

(a) This Agreement and the Lockbox Agreement create valid and continuing security interests (as defined in the UCC) in the Lockbox Account and the Cash Management Account in favor of Lender, which security interests are prior to all other Liens and are enforceable as such against creditors of and purchasers from Borrower.

(b) The Lockbox Account is and shall be maintained (i) as a “deposit account” (as such term is defined in Section 9-102(a)(29) of the UCC), (ii) in such a manner that Lender shall have control (within the meaning of Section 9-104(a)(2) of the UCC) over the Lockbox Account and (iii) such that neither Borrower nor Manager shall have any right of withdrawal from the Lockbox Account and during the continuance of any Triggering Event, no Account Collateral shall be released to Borrower or Manager from the Lockbox Account.

(c) Each Account other than the Lockbox Account is and shall be maintained (i) as a “securities account” (as such term is defined in Section 8-501(a) of the UCC), (ii) in such a manner that Lender shall have control (within the meaning of Section 8-106(d)(2) of the UCC) over each such Account other than the Lockbox Account, (iii) such that neither Borrower nor Manager shall have any right of withdrawal from such Accounts and, except as expressly provided in this Agreement, no Account Collateral shall be released to Borrower from such Account, (iv) in such a manner that the Cash Management Bank shall agree to treat all property credited to each Account other than the Lockbox Account as “financial assets” and (v) such that all securities or other property underlying any financial assets credited to such Accounts shall be registered in the name of Cash Management Bank, indorsed to Cash Management Bank or in blank or credited to another securities account maintained in the name of Cash Management Bank and in no case will any financial asset credited to any Account be registered in the name of Borrower, payable to the order of Borrower or specially indorsed to Borrower except to the extent the foregoing have been specially indorsed to Cash Management Bank or in blank);

(d) Borrower owns and has good and marketable title to the Lockbox Account and the Cash Management Account free and clear of any Lien or claim of any Person (other than that of Lender);

(e) Borrower has delivered to Lender fully executed agreements pursuant to which Lockbox Bank and Cash Management Bank (if having been requested to do so by Lender pursuant to Section 3.1(b) hereof) have agreed to comply with all instructions

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originated by Lender directing disposition of the funds in such accounts without further consent by Borrower;

(f) Other than the security interest granted to Lender pursuant to this Agreement and the Lockbox Agreement, Borrower has not pledged, assigned, or sold, granted a security interest in, or otherwise conveyed the Lockbox Account or the Cash Management Account; and

(g) The Lockbox Account and the Cash Management Account are not in the name of any Person other than Borrower for the benefit of Lender. Borrower has not consented to Lockbox Bank or Cash Management Bank complying with instructions of any Person other than Lender.

4.1.45. Embargoed Person.

As of the date hereof and at all times throughout the term of the Loan, including after giving effect to any Transfers permitted pursuant to the Loan Documents, (a) none of the funds or other assets of any Borrower Party constitute Property of, or are beneficially owned, directly or indirectly, by any person, entity or government subject to trade restrictions under U.S. law, including but not limited to, the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701 et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., and any Executive Orders or regulations promulgated thereunder with the result that the investment in any such Borrower Party (whether directly or indirectly) is prohibited by Applicable Law or the Loan made by the Lender is in violation of Applicable Law (“Embargoed Person”); (b) no Embargoed Person has any interest of any nature whatsoever in any Borrower Party, with the result that the investment in any such Borrower Party (whether directly or indirectly), is prohibited by Applicable Law or the Loan is in violation of Applicable Law; and (c) none of the funds of any Borrower Party have been (or will be) derived from any unlawful activity with the result that the investment in any such Borrower Party (whether directly or indirectly), is prohibited by Applicable Law or the Loan is in violation of Applicable Law. Any violation of the foregoing shall, at Lender’s option, constitute an Event of Default hereunder.

4.1.46. Third Party Representations.

Each of the representations and the warranties made by Guarantor in the other Loan Documents (if any) are true, complete and correct.

4.1.47. Insolvency Opinion Assumptions.

All of the assumptions regarding separateness made in the Insolvency Opinion, including, but not limited to, any exhibits attached thereto and/or certificates delivered in connection therewith, are true, complete and correct.

Section 4.2. Survival of Representations.

Borrower agrees that all of the representations and warranties of Borrower set forth in Section 4.1 and elsewhere in this Agreement and in the other Loan Documents shall survive for so long as any amount remains owing to Lender under this Agreement or any of the other Loan

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Documents by Borrower. All representations, warranties, covenants and agreements made in this Agreement or in the other Loan Documents by Borrower shall be deemed to have been relied upon by Lender notwithstanding any investigation heretofore or hereafter made by Lender or on its behalf.

V. BORROWER COVENANTS

Section 5.1. Affirmative Covenants.

From the date hereof and until payment and performance in full of the Obligations or the earlier release of the Liens of the Security Instruments encumbering the Properties (and all related obligations) in accordance with the terms of this Agreement and the other Loan Documents, Borrower hereby covenants and agrees with Lender that:

5.1.1. Existence; Compliance with Legal Requirements.

(a) Borrower shall do or cause to be done all things necessary to preserve, renew and keep in full force and effect its existence, rights, licenses, permits, franchises, certificates of occupancy, consents, and other approvals necessary for the operation by Borrower of the Properties, and comply with all Legal Requirements applicable to it and the Properties. There shall never be committed by Borrower, nor shall Borrower permit, allow or cause any other Person in occupancy of or involved with the operation or use of the Properties to commit any act or omission affording the federal government or any State or local government the right of forfeiture against any Individual Property or any part thereof or any monies paid in performance of Borrower’s obligations under any of the Loan Documents. Borrower hereby covenants and agrees not to commit, permit or suffer to exist any act or omission affording such right of forfeiture. Borrower shall at all times maintain, preserve and protect all franchises and trade names and preserve all the remainder of its Properties used or useful in the conduct of its business and shall keep the Properties in good working order and repair, reasonable wear and tear and Casualty excepted, and from time to time make, or cause to be made, all reasonably necessary repairs, renewals, replacements, betterments and improvements thereto, all as more fully provided in the Security Instruments. Borrower shall keep the Properties insured as required by Section 6.1 hereof at all times by financially sound and reputable insurers, to such extent and against such risks, and maintain liability and such other insurance, as is more fully provided in this Agreement. Borrower shall or shall cause each applicable Tenant to the extent permitted under the applicable Lease to operate each Individual Property that is the subject of any O&M Program in accordance with the terms and provisions of the O&M Program.

5.1.2. Taxes and Other Charges.

Subject to Section 7.2 hereof and any then-applicable obligations of Lender thereunder, Borrower shall pay (or cause Tenant to pay) all Taxes and Other Charges now or hereafter levied or assessed or imposed against the Properties or any part thereof as the same become due and payable. Borrower shall furnish to Lender receipts, or other evidence for the payment of the Taxes and the Other Charges prior to the date the same shall become delinquent; provided, however, that Borrower shall not be required to furnish such receipt or other evidence for payment of Taxes and Other Charges in the event that such Taxes and Other Charges have been

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paid by Lender pursuant to Section 7.2 hereof. Except for Liens that are being contested in accordance with the provisions of this Section 5.1.2, Borrower shall not suffer and shall promptly pay and discharge (or cause Tenant to pay and discharge) any Lien or charge whatsoever which may be or become a Lien or charge against the Properties, and shall promptly pay (or cause Tenant to pay) for all utility services provided to the Properties. After prior written notice to Lender, Borrower or Tenant, in each case at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges (which shall not constitute an Event of Default), provided that (i) no Event of Default has occurred and is continuing or such Taxes or Other Charges have been paid prior to being so contested; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all Applicable Laws; (iii) no Individual Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower or Tenant shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the applicable Individual Property or such Taxes or Other Charges have been paid prior to being so contested; and (vi) Borrower shall furnish such security as may be required in the proceeding, or as may be requested by Lender, to ensure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may apply such security or part thereof held by Lender at any time when, in the judgment of Lender, the entitlement of such claimants is established or any Individual Property (or part thereof or interest therein) shall be in danger of being sold, forfeited, terminated, cancelled or lost or there shall be any danger of the Lien of any Security Instrument being primed by any related Lien.

5.1.3. Litigation.

Borrower shall give prompt written notice to Lender of any litigation or governmental proceedings pending or threatened against Borrower, Guarantor, or any Individual Property upon Borrower obtaining actual knowledge thereof which would reasonably be expected to materially adversely affect Borrower’s or Guarantor’s condition (financial or otherwise) or business or the use, value or operation of any Individual Property.

5.1.4. Access to Property.

Subject to the rights of Tenants under the Leases, Borrower shall permit agents, representatives and employees of Lender to inspect the Properties or any part thereof at reasonable hours upon reasonable advance notice; provided, however, that other than during the continuance of a Default or in connection with a Securitization, Lender shall not exercise its access rights pursuant to this Section 5.1.4 more than one (1) time per calendar year for each Individual Property.

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5.1.5. Notice of Default.

Borrower shall promptly advise Lender of any material adverse change in Borrower’s condition, financial or otherwise, which would impair Borrower’s ability to perform its obligations under this Agreement and the other Loan Documents, or of the occurrence of any Default or Event of Default of which Borrower has knowledge.

5.1.6. Cooperate in Legal Proceedings.

Borrower shall cooperate fully with Lender with respect to any proceedings before any court, board or other Governmental Authority which may in any way adversely affect the rights of Lender hereunder or any rights obtained by Lender under any of the other Loan Documents and, in connection therewith, permit Lender, at its election, to participate in any such proceedings.

5.1.7. Award and Insurance Benefits.

Borrower shall cooperate with Lender in obtaining for Lender the benefits of any Awards or Insurance Proceeds lawfully or equitably payable in connection with any Individual Property, and Lender shall be reimbursed for any expenses incurred in connection therewith (including reasonable attorneys’ fees and disbursements, and the payment by Borrower of the expense of an appraisal on behalf of Lender in case of Casualty or Condemnation affecting any Individual Property or any part thereof) out of such Award or Insurance Proceeds.

5.1.8. Further Assurances.

Borrower shall, at Borrower’s sole cost and expense within a reasonable time period after receiving written notice from Lender:

(a) furnish to Lender all instruments, documents, boundary surveys, footing or foundation surveys, certificates, plans and specifications, appraisals, title and other insurance reports and agreements, and each and every other document, certificate, agreement and instrument required to be furnished by Borrower pursuant to the terms of the Loan Documents or requested by Lender in connection therewith;

(b) execute and deliver to Lender such documents, instruments, certificates, assignments and other writings, as required under the Loan Documents, and do such other acts necessary, to evidence, preserve and/or protect the collateral at any time securing or intended to secure the obligations of Borrower under the Loan Documents, in each case as Lender may reasonably require including the authorization of Lender to execute and/or the execution by Borrower of UCC financing statements; and

(c) do and execute all and such further lawful acts, conveyances and assurances for the better and more effective carrying out of the intents and purposes of this Agreement and the other Loan Documents, as Lender may reasonably require from time to time.

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5.1.9. Mortgage and Intangible Taxes.

Borrower shall pay all State, county and municipal recording, mortgage, intangible, and all other taxes imposed upon the execution and recordation of the Security Instruments and/or upon the execution and delivery of the Note.

5.1.10. Financial Reporting.

(a) Borrower will keep and maintain or will cause to be kept and maintained on a Fiscal Year basis, in accordance with GAAP (or such other method of accounting reasonably acceptable to Lender), proper and accurate books, records and accounts reflecting all of the financial affairs of Borrower and all items of income and expense in connection with the operation on an individual basis of the Properties. Lender shall have the right from time to time during normal business hours upon reasonable notice to examine such books, records and accounts at the office of Borrower or any other Person maintaining such books, records and accounts and to make such copies or extracts thereof. After the occurrence and during the continuance of an Event of Default, Borrower shall pay any costs and expenses incurred by Lender to examine Borrower’s accounting records with respect to the Properties, as Lender shall determine to be necessary for the protection of Lender’s interest.

(b) Borrower will furnish to Lender annually, within ninety (90) days following the end of each Fiscal Year, a complete copy of Borrower’s annual financial statements audited by an Approved Accountant in accordance with GAAP (or such other method of accounting reasonably acceptable to Lender), or unaudited and prepared by Borrower, provided the conditions in Section 5.1.10(j) below are met, covering the Properties for such Fiscal Year and containing statements of profit and loss and balance sheet for Borrower. Such statements shall set forth the financial condition and the results of operations for the Borrower for such Fiscal Year, and shall include, but not be limited to, amounts representing annual Net Operating Income, Gross Income from Operations, Operating Expenses and Capital Expenditures. Borrower’s annual financial statements shall be accompanied by (i) [intentionally deleted]; (ii) a certificate executed by a Responsible Officer or other appropriate officer of Borrower or Principal, if any, as applicable, stating that each such annual financial statement presents fairly the financial condition and the results of operations of Borrower being reported upon and has been prepared in accordance with GAAP (or such other method of accounting reasonably acceptable to Lender); (iii) an unqualified opinion of an Approved Accountant at any time that the condition in Section 5.1.10(j) below is not met; (iv) a list of Tenants, if any, occupying more than twenty (20%) percent of the total floor area of the Properties on an aggregate basis; (v) a breakdown showing the year in which each Lease then in effect expires and the percentage of total floor area of the Improvements and the percentage of base rent with respect to which Leases shall expire in each such year, each such percentage to be expressed on both a per year and cumulative basis; (vi) [intentionally deleted]; and (vii) an unaudited Rent Roll. Together with Borrower’s annual financial statements, Borrower shall furnish to Lender an Officer’s Certificate certifying as of the date thereof whether there exists an event or circumstance which constitutes a Default or Event of Default under the Loan Documents executed and delivered by, or applicable to, Borrower, and if such Default or Event of Default exists, the nature thereof, the period of time it has existed and the action then being taken to remedy the same.

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(c) Borrower will furnish, or cause to be furnished, to Lender on or before forty-five (45) days after the end of each calendar quarter the following items, accompanied by a certificate of a Responsible Officer or other appropriate officer of Borrower or Principal, if any, as applicable, stating that such items are true, correct, accurate, and complete and fairly present the financial condition, results of operations, and cash flows of Borrower (subject to normal year-end adjustments): (i) a Rent Roll for the subject quarter accompanied by an Officer’s Certificate with respect thereto; (ii) quarterly and year-to-date operating statements (including Capital Expenditures) prepared for each calendar quarter, noting Net Operating Income, Gross Income from Operations, and Operating Expenses, and other information necessary and sufficient to fairly represent the financial position, operations and cash flows of Borrower during such calendar quarter, and, during the continuance of a Triggering Event, containing a comparison of budgeted income and expenses and the actual income and expenses together with a detailed explanation of any variances of five percent (5%) or more between budgeted and actual amounts for such periods, all in form satisfactory to Lender; and (iii) a calculation reflecting the annual Debt Service Coverage Ratio for the immediately preceding twelve (12) month period as of the last day of such quarter accompanied by an Officer’s Certificate with respect thereto. In addition, such Officer’s Certificate shall also be accompanied by a certificate of a Responsible Officer or other appropriate officer of Borrower stating that the representations and warranties of Borrower set forth in Section 4.1.36 are true and correct in all material respects as of the date of such Officer’s Certificate and that there are no trade payables outstanding for more than sixty (60) days.

(d) Prior to any Secondary Market Transaction, Borrower shall furnish to Lender, within forty-five (45) days after the close of each calendar month, (i) a current Rent Roll (on a trailing twelve (12) month basis) together with an Officer’s Certificate certifying that such Rent Roll is true, correct and complete and (ii) operating statements (including Capital Expenditures) prepared for such calendar month, noting Net Operating Income, Gross Income from Operations, and Operating Expenses, and other information necessary and sufficient to fairly represent the financial position and results of operation of the Property during such calendar month.

(e) For the partial year period commencing on the date hereof, and for each Fiscal Year thereafter, Borrower shall submit to Lender an Annual Budget for each applicable Individual Property not later than sixty (60) days prior to the commencement of such period or Fiscal Year in form and substance satisfactory to Lender, and, provided a Triggering Event exists, such Annual Budget shall be subject to Lender’s written consent not to be unreasonably withheld, conditioned or delayed (each such Annual Budget after it has been approved in writing by Lender shall be hereinafter referred to as an “Approved Annual Budget”). In the event that Lender objects to a proposed Annual Budget submitted by Borrower, Lender shall advise Borrower of such objections within fifteen (15) days after receipt thereof (and deliver to Borrower in writing a reasonably detailed description of such objections) and Borrower shall promptly revise such Annual Budget and resubmit the same to Lender. Lender shall advise Borrower of any objections to such revised Annual Budget within ten (10) days after receipt thereof (and deliver to Borrower in writing a reasonably detailed description of such objections) and Borrower shall promptly revise the same in accordance with the process described in this subsection until Lender approves the Annual Budget. Until such time that Lender approves a proposed Annual Budget, the most recently Approved Annual Budget shall

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apply; provided that, such Approved Annual Budget shall be adjusted to reflect actual increases in Taxes, Insurance Premiums and utilities expenses.

(f) Borrower shall furnish to Lender, within thirty (30) days after request such further detailed information with respect to the operation of the Properties and the financial affairs of Borrower as may be reasonably requested by Lender.

(g) Any reports, statements or other information required to be delivered under this Agreement shall be delivered (i) in paper form, (ii) if requested by Lender, on a CD-Rom, and (iii) in electronic form and prepared using a Microsoft Word or Excel (which files may be prepared using a spreadsheet program and saved as word processing files).

(h) Borrower agrees that Lender may forward to each purchaser, transferee, assignee, servicer, participant or investor in all or any portion of the Loan or any Securities (collectively, the “Investor”) or any Rating Agency rating such participations and/or Securities and each prospective Investor, and any organization maintaining databases on the underwriting and performance of commercial mortgage loans, all documents and information which Lender now has or may hereafter acquire relating to the Debt and to Borrower, Guarantor, and the Properties, whether furnished by Borrower, Guarantor or otherwise, as Lender determines necessary or desirable. Borrower irrevocably waives any and all rights it may have under any Applicable Laws to prohibit such disclosure, including, but not limited, to any right of privacy.

(i) Upon request, Borrower shall furnish to Lender from time to time such financial data and financial statements as Lender determines to be necessary, advisable or appropriate for complying with any applicable Legal Requirements (including those applicable to Lender or any Servicer (including and to the extent applicable, Regulation AB)) within the timeframes necessary, advisable or appropriate in order to comply with such Legal Requirements.

(j) Borrower shall deliver the consolidated annual financial statements of the REIT audited by an Approved Accountant in accordance with GAAP (or such other method of accounting reasonably acceptable to Lender) for so long as (i) the REIT is a public company and continues to file public financial statements, (ii) the REIT Controls the Borrower and (iii) substantially all of the Properties are leased pursuant to Single Tenant Leases. In the event the Borrower delivers such audited annual financial statements of the REIT and the conditions in the immediately preceding sentence are met, then not withstanding anything in Section 5.1.10(b) to the contrary, Borrower shall not have to deliver any audited annual financial statements of Borrower and Borrower shall not be in breach under Section 5.1.10(b) provided that (i) such audited annual financial statements of the REIT shall contain a note indicating that Borrower’s separate assets and liabilities are neither available to pay the debts of the consolidated entity nor constitute obligations of the consolidated entity, and (B) such assets shall also be listed on Borrower’s own separate balance sheet.

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5.1.11. Business and Operations.

Borrower will continue to engage in the businesses presently conducted by it as and to the extent the same are necessary for the ownership, maintenance, management and operation of the Properties. Borrower will remain in good standing under the laws of each jurisdiction as and to the extent required for the ownership, maintenance, management and operation of the Properties. To the extent that a Single Tenant Lease does not exist with respect to any Individual Property (or any portion thereof), Borrower will engage in the businesses needed to be conducted by it to the extent that the same are necessary for the maintenance, management and operation of the Properties.

5.1.12. Costs of Enforcement.

In the event (a) that any Security Instrument encumbering any Individual Property is foreclosed in whole or in part or that any such Security Instrument is put into the hands of an attorney for collection, suit, action or foreclosure, (b) of the foreclosure of any mortgage prior to or subsequent to any Security Instrument encumbering any Individual Property in which proceeding Lender is made a party, or (c) of the bankruptcy, insolvency, rehabilitation or other similar proceeding in respect of Borrower or any Borrower Party or an assignment by Borrower or Borrower Party for the benefit of its creditors, Borrower, its successors or assigns, shall be chargeable with and agrees to pay all costs of collection and defense, including attorneys’ fees and costs, incurred by Lender or Borrower in connection therewith and in connection with any appellate proceeding or post-judgment action involved therein, together with all required service or use taxes.

5.1.13. Estoppel Statement.

(a) After written request by Lender, Borrower shall within fifteen (15) Business Days furnish Lender with a statement, duly acknowledged and certified, setting forth (i) the amount of the original principal amount of the Note, (ii) the unpaid principal amount of the Note, (iii) the Applicable Interest Rate of the Note, (iv) the date installments of interest and/or principal were last paid, (v) any offsets or defenses to the payment of the Debt, and (vi) that the Note, this Agreement, the Security Instruments and the other Loan Documents are valid, legal and binding obligations and have not been modified or if modified, giving particulars of such modification.

(b) Borrower shall use commercially reasonable efforts to obtain, upon the written request of Lender, no more than once in any twelve (12) month period provided no Event of Default then exists and is continuing (in which case no limitation shall apply), tenant estoppel certificates from each commercial tenant leasing space at the Properties in form and substance reasonably satisfactory to Lender or otherwise required to be in the form provided in the applicable Lease.

(c) In connection with any Secondary Market Transaction, Borrower shall within fifteen (15) Business Days, upon the written request of Lender, furnish an estoppel certificate signed by Borrower to any Investor or any prospective Investor in such form, substance and detail as Lender, such Investor or prospective Investor may reasonably request.

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5.1.14. Loan Proceeds.

Borrower shall use the proceeds of the Loan received by it on the Closing Date only for the purposes set forth in Section 2.1.4 hereof.

5.1.15. Performance by Borrower.

Borrower shall in a timely manner observe, perform and fulfill each and every covenant, term and provision of each Loan Document executed and delivered by, or applicable to, Borrower, and shall not enter into or otherwise suffer or permit any amendment, waiver, supplement, termination or other modification of any Loan Document executed and delivered by, or applicable to, Borrower without the prior written consent of Lender.

5.1.16. Confirmation of Representations.

Borrower shall deliver, in connection with any Secondary Market Transaction, (a) one or more Officer’s Certificates certifying as to the accuracy of all representations made by Borrower in the Loan Documents as of the date of the closing of such Secondary Market Transaction, and (b) certificates of the relevant Governmental Authorities in all relevant jurisdictions indicating the good standing and qualification of Borrower and Principal, if any, as of the date of the closing of such Securitization.

5.1.17. Leasing Matters.

(a) With respect to each Individual Property, Borrower may enter into a proposed Lease (including the renewal or extension of an existing Lease (a “Renewal Lease”)) without the prior written consent of Lender, provided such proposed Lease or Renewal Lease (i) provides for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arms-length transaction with a bona fide, independent third party tenant, (iii) does not have a material adverse effect on the use, value or operation of the applicable Individual Property, (iv) is subject and subordinate to the related Security Instrument and the lessee thereunder agrees to attorn to Lender, (v) is written on one of the standard forms of lease used by Borrower or Tenant, if Tenant is a nationally-recognized tenant, and (vi) is not a Major Lease. All proposed Leases which do not satisfy the requirements set forth in this Section 5.1.17(a) shall be subject to the prior written consent of Lender. At Lender’s request, Borrower shall promptly deliver to Lender copies of all Leases which are entered into pursuant to this subsection together with Borrower’s certification that it has satisfied all of the conditions of this Section.

(b) Borrower (i) shall observe and perform all the obligations imposed upon the lessor under the Leases and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (ii) shall promptly send copies to Lender of all notices of default or other material matters which Borrower shall send or receive with respect to the Leases; (iii) shall enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the Tenant thereunder to be observed or performed (except for termination of a Major Lease by Borrower which shall require Lender’s prior written consent);

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(iv) shall not collect any of the Rents more than one (1) month in advance (except Security Deposits shall not be deemed Rents collected in advance); (v) shall, immediately upon receipt, deposit all Lease Termination Payments into the Rollover Reserve Account; (vi) shall not execute any other assignment of the lessor’s interest in any of the Leases or the Rents; and (vii) shall not consent to any assignment of or subletting by Tenant under any Leases not in accordance with their terms, without the prior written consent of Lender, which shall not be unreasonably withheld, conditioned or delayed.

(c) Borrower may, without the consent of Lender, amend, modify or waive the provisions of any Lease or terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that such Lease is not a Major Lease and that such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) does not have a material adverse effect on the use, value or operation of the applicable Individual Property taken as a whole, and provided that such Lease, as amended, modified or waived, is otherwise in compliance with the requirements of this Agreement and any lease subordination agreement binding upon Lender with respect to such Lease. Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this subsection shall be subject to the prior written consent of Lender, which shall not be unreasonably withheld, conditioned or delayed, at Borrower’s expense. At Lender’s request, Borrower shall promptly deliver to Lender copies of all Leases, amendments, modifications and waivers which are entered into pursuant to this Section 5.1.17(c) together with Borrower’s certification that it has satisfied all of the conditions of this Section.

(d) Except as provided in the next sentence, notwithstanding anything contained herein to the contrary, with respect to any Major Lease, Borrower shall not, without the prior written consent of Lender, which shall not be unreasonably withheld, conditioned or delayed, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce rents under, accept a surrender of space under, or shorten the term of, any Major Lease or any instrument guaranteeing or providing credit support for any Major Lease. Notwithstanding the preceding sentence, or anything contained herein to the contrary or in any other Loan Document, Lender’s consent shall not be required in connection with (i) the exercise by a Tenant of a renewal option, purchase option, or right of first offer, in each case, exercised in accordance with the terms of the applicable Lease unless such Lease permits Lender’s prior approval, or (ii) modifications or amendments to Leases that are de minimis or ministerial in nature.

(e) Borrower shall hold any and all monies representing security deposits under the Leases (the “Security Deposits”) received by Borrower, in accordance with the terms of the respective Lease and Applicable Law, and shall only release the Security Deposits in order to return a Tenant’s Security Deposit to such Tenant if such Tenant is entitled to the return of the Security Deposit under the terms of the Lease.

(f) Borrower shall not provide its consent to any substitution pursuant to Section 16 of that certain Lease relating to property located in Richardson, Texas and dated February 27, 1996, by and between Borrower, as successor-in-interest to CNL Retail Joint Venture, as landlord, and CVS Pharmacy, Inc., as successor-in-interest to Eckerd Corporation, as

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amended and assigned, without first obtaining Lender’s prior written consent which may be withheld in Lender’s sole discretion.

5.1.18. Management Agreement.

(a) On the Closing Date, no Property is managed by any Person other than Borrower and no separate management agreement exists with respect to any Individual Property. Borrower shall not enter into a management agreement with respect to any Property that is not a Management Agreement as defined herein (which, for the avoidance of doubt, shall include the delivery by Borrower to Lender of an Assignment of Management Agreement). If Borrower shall enter into a Management Agreement, then the terms and conditions of this Section 5.1.18 shall apply to such Management Agreement.

(b) In no event shall the management fees under the Management Agreement exceed two percent (2%) of the Gross Income from Operations with respect to the Property or Properties to which such Management Agreement relates. Borrower shall (i) diligently perform and observe all of the terms, covenants and conditions of the Management Agreement, on the part of Borrower to be performed and observed to the end that all things shall be done which are necessary to keep unimpaired the rights of Borrower under the Management Agreement and (ii) promptly notify Lender of the giving of any notice by Manager to Borrower of any default by Borrower in the performance or observance of any of the terms, covenants or conditions of the Management Agreement on the part of Borrower to be performed and observed and deliver to Lender a true copy of each such notice. Borrower shall not surrender the Management Agreement, consent to the assignment by the Manager of its interest under the Management Agreement, or terminate or cancel the Management Agreement, or modify, change, supplement, alter or amend the Management Agreement, in any respect, either orally or in writing. Borrower hereby assigns to Lender as further security for the payment of the Debt and for the performance and observance of the terms, covenants and conditions of this Agreement, all the rights, privileges and prerogatives of Borrower to surrender the Management Agreement, or to terminate, cancel, modify, change, supplement, alter or amend the Management Agreement, in any respect, and any such surrender of the Management Agreement, or termination, cancellation, modification, change, supplement, alteration or amendment of the Management Agreement, without the prior written consent of Lender shall be void and of no force and effect. If Borrower shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Borrower to be performed or observed, then, without limiting the generality of the other provisions of this Agreement, and without waiving or releasing Borrower from any of its obligations hereunder, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all the terms, covenants and conditions of the Management Agreement on the part of Borrower to be performed or observed to be promptly performed or observed on behalf of Borrower, to the end that the rights of Borrower in, to and under the Management Agreement shall be kept unimpaired and free from default. Lender and any Person designated by Lender shall have, and are hereby granted, the right to enter upon the applicable Individual Property at any time and from time to time for the purpose of taking any such action. If the Manager shall deliver to Lender a copy of any notice sent to Borrower of default under the Management Agreement, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender in good faith, in reliance thereon. Borrower shall not,

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and shall not permit the Manager to, sub-contract any or all of its management responsibilities under the Management Agreement to a third-party without the prior written consent of Lender. Borrower shall, from time to time, obtain from the Manager such certificates of estoppel with respect to compliance by Borrower with the terms of the Management Agreement as may be requested by Lender. Borrower shall exercise each individual option, if any, to extend or renew the term of the Management Agreement upon demand by Lender made at any time within one (1) year of the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. Any sums expended by Lender pursuant to this paragraph (i) shall bear interest at the Default Rate from the date such cost is incurred to the date of payment to Lender, (ii) shall be deemed to constitute a portion of the Debt, (iii) shall be secured by the lien of the Security Instruments and the other Loan Documents and (iv) shall be immediately due and payable upon demand by Lender therefor.

(c) Without limitation of the foregoing, Borrower, upon the request of Lender, shall terminate any Management Agreement and replace Manager, without penalty or fee, if at any time during the Loan: (a) Manager shall become insolvent or a debtor in any bankruptcy or insolvency proceeding, (b) there exists an Event of Default, or (c) there exists a default by Manager under such Management Agreement. At such time as the Manager may be removed, a Qualified Manager shall assume management of the applicable Individual Property pursuant to a Replacement Management Agreement. Following the occurrence and during the continuance of an Event of Default and the Debt has been declared due and payable, if the Properties or any Individual Property is self-managed by Borrower, Lender shall have the right to cause Borrower to appoint a Qualified Manager to assume management of the applicable Individual Property pursuant to a Management Agreement.

5.1.19. Environmental Covenants.

(a) Borrower covenants and agrees that so long as the Loan is outstanding (i) all uses and operations on or of the Properties, whether by Borrower or any other Person, shall be in compliance with all Environmental Laws and permits issued pursuant thereto; (ii) Borrower shall not cause and shall use commercially reasonable efforts to ensure that there shall be no Releases of Hazardous Materials in, on, under or from the Properties; (iii) there shall be no Hazardous Materials in, on, or under any of the Properties, except those that are both (A) in compliance with all Environmental Laws and with permits issued pursuant thereto, if and to the extent required, and (B) (1) in amounts not in excess of that necessary to operate the applicable Individual Property or (2) fully disclosed to and approved by Lender in writing; (iv) Borrower shall keep the Properties free and clear of all liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of Borrower or any other Person (the “Environmental Liens”); (v) Borrower shall, at its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to paragraph (b) below, including but not limited to providing all relevant information and making knowledgeable persons available for interviews; (vi) Borrower shall, at its sole cost and expense, perform any environmental site assessment or other investigation of environmental conditions in connection with any of the Properties, pursuant to any reasonable written request of Lender, upon Lender’s reasonable belief that an Individual Property is not in material compliance with all Environmental Laws, and share

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with Lender the reports and other results thereof, and Lender and other Indemnified Parties shall be entitled to rely on such reports and other results thereof; (vii) Borrower shall, at its sole cost and expense, comply with all reasonable written requests of Lender to (A) reasonably effectuate Remediation of any Hazardous Materials (which are in violation of Environmental Laws) in, on, under or from any Individual Property; and (B) comply with any Environmental Law; (viii) Borrower shall not allow any Tenant or other user of any of the Properties to violate any Environmental Law; and (ix) Borrower shall promptly notify Lender in writing after it has become aware of (A) any presence or Release or threatened Releases of Hazardous Materials in, on, under, from or migrating towards any of the Properties; (B) any non-compliance with any Environmental Laws related in any way to any of the Properties; (C) any actual or pending Environmental Lien; (D) any required or proposed Remediation of environmental conditions relating to any of the Properties; and (E) any material written notice or other written communication of which Borrower becomes aware from any source whatsoever (including but not limited to a Governmental Authority) relating in any way to Hazardous Materials.

(b) No more frequently than once per year unless Lender has a reasonable basis to believe there is a violation of Environmental Law or presence of a Hazardous Material or on, under or from any Individual Property or at any time upon an Event of Default, Lender and any other Person designated by Lender, including but not limited to any representative of a Governmental Authority, and any environmental consultant, and any receiver appointed by any court of competent jurisdiction, shall have the right (provided written notice of such determination, together with the basis for such determination, has been provided to Borrower), but not the obligation, to enter upon any Individual Property at all reasonable times and upon reasonable notice to assess any and all aspects of the environmental condition of any Individual Property and its use, including but not limited to conducting any environmental assessment or audit (the scope of which shall be determined in Lender’s sole and absolute discretion) and taking samples of soil, groundwater or other water, air, or building materials, and conducting other invasive testing. Borrower shall reasonably cooperate with and provide access to Lender and any such Person or entity designated by Lender, subject to any restrictions with respect thereto set forth in the applicable Lease.

5.1.20. Alterations.

Borrower shall obtain Lender’s prior written consent to any alterations to any Improvements, which consent shall not be unreasonably withheld, conditioned or delayed except with respect to alterations that may have a material adverse effect on Borrower’s financial condition, the use, value or operation of the related Individual Property or the Net Operating Income. Notwithstanding the foregoing, Lender’s consent shall not be required in connection with any alterations that will not have a material adverse effect on Borrower’s financial condition, the use, value or operation of the related Individual Property or the Net Operating Income, provided that such alterations are made in connection with (a) tenant improvement work performed pursuant to or permitted under the terms of any existing Lease or any Lease executed in accordance with the terms hereof, (b) tenant improvement work performed pursuant to the terms and provisions of a Lease and not adversely affecting any structural component of any Improvements, any utility or HVAC system contained in any Improvements or the exterior of any building constituting a part of any Improvements, (c) alterations performed in connection with the Restoration of the related Individual Property in accordance with the terms and

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provisions of this Agreement, or (d) any work required to be performed by Borrower pursuant to the terms and conditions of the Leases, provided such work is completed in accordance with the terms of this Agreement and the Lease. If the total unpaid amounts with respect to any alterations to the Improvements (other than such amounts to be paid or reimbursed by Tenants under the Leases) at the related Individual Property shall at any time exceed the Alteration Threshold, Borrower shall promptly deliver to Lender as security for the payment of such amounts and as additional security for Borrower’s obligations under the Loan Documents any of the following: (A) Cash, (B) U.S. Obligations, or (C) a completion bond or letter of credit issued by a financial institution having a rating by S&P of not less than A-1+ if the term of such bond or letter of credit is no longer than three (3) months or, if such term is in excess of three (3) months, issued by a financial institution having a rating that is acceptable to Lender and that the applicable Rating Agencies have confirmed in writing will not, in and of itself, result in a downgrade, withdrawal or qualification of the initial, or, if higher, then current ratings assigned in connection with any Securitization. Such security shall be in an amount equal to the excess of the total unpaid amounts with respect to such alterations to the Improvements on the related Individual Property other than such amounts to be paid or reimbursed by Tenants under the Leases) over the Alteration Threshold and applied from time to time at the option of Lender to pay for such alterations or to terminate any of the alterations and restore the related Individual Property to the extent necessary to prevent any material adverse effect on the value of the related Individual Property; provided, however, that the amount of any Letter of Credit given as security under this Section 5.1.20 shall not exceed ten percent (10%) of the allocated loan amount (and if the amount to be deposited with Lender hereunder is in excess of such cap and Borrower obtains a Letter of Credit in an amount equal to such cap, then Borrower shall deposit a sufficient amount of either Cash or U.S. Obligations with Lender to cover the difference between the capped amount and the amount required to be deposited hereunder). Notwithstanding the foregoing in this Section 5.1.20, for so long as a Single Tenant Lease remains in full force and effect with respect to an Individual Property, the rights of the Tenant thereunder to conduct alterations shall control and shall not otherwise be subject to Lender’s approval.

5.1.21. Intentionally Omitted.

5.1.22. OFAC.

At all times throughout the term of the Loan, Borrower, Guarantor and each of their respective Affiliates shall be in full compliance with all applicable orders, rules, regulations and recommendations of The Office of Foreign Assets Control of the U.S. Department of the Treasury.

5.1.23. O&M Program.

Borrower covenants and agrees to implement and follow the terms and conditions of the O&M Program (or cause Tenant to do the same) for each Individual Property set forth on Schedule VI hereof during the term of the Loan, including any extension or renewal thereof. Lender’s requirement that Borrower comply with the O&M Program shall not be deemed to constitute a waiver or modification of any of Borrower’s covenants and agreements with respect to Hazardous Materials or Environmental Laws.

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5.1.24. Single Purpose Entity Compliance.

(a) Borrower covenants and agrees to provide concurrently with the delivery of the annual Financial Reporting Requirements set forth in Section 5.1.10(b) hereof, an Officer’s Certificate stating that the representations and warranties of Borrower and Principal, if any, as applicable, set forth in Section 4.1.36 of this Agreement are true and correct as of the date of the Officer’s Certificate.

(b) Borrower covenants and agrees that prior, and as a condition precedent, to the removal of an Independent Director of Borrower or Principal, if any, as applicable, Borrower shall provide Lender with written notice of such proposed removal no later than thirty (30) days’ prior to such removal, which notice shall include the identity and address of such replacement Independent Director and an Officer’s Certificate certifying that such replacement Independent Director complies with the definition of Independent Director contained herein.

(c) Borrower covenants and agrees that within ten (10) Business Days of each anniversary of the Closing Date, Borrower shall cause the Independent Directors of Borrower and Principal, if any, as applicable, to certify in writing to Lender (i) the name and address of each Independent Director and (ii) that each Independent Director has complied with, and shall continue to comply with the requirements set forth in Section 4.1.36 of this Agreement.

Section 5.2. Negative Covenants.

From the date hereof until payment and performance in full of all of the Obligations or the earlier release of the Liens of the Security Instruments encumbering the Properties in accordance with the terms of this Agreement and the other Loan Documents, Borrower covenants and agrees with Lender that it will not do, directly or indirectly, any of the following:

5.2.1. Liens.

Borrower shall not create, incur, assume or suffer to exist any Lien on any portion of any Individual Property or permit any such action to be taken, except for the Permitted Encumbrances.

5.2.2. Dissolution.

Borrower shall not (a) engage in any dissolution, liquidation or consolidation or merger with or into any other business entity, (b) transfer, lease or sell, in one transaction or any combination of transactions, the assets or all or substantially all of the Properties or assets of Borrower except to the extent expressly permitted by the Loan Documents, (c) except as expressly permitted under the Loan Documents, modify, amend, waive or terminate its organizational documents or its qualification and good standing in any jurisdiction or (d) cause the Principal, if any, to (i) dissolve, wind up or liquidate or take any action, or omit to take an action, as a result of which the Principal would be dissolved, wound up or liquidated in whole or in part, or (ii) except as expressly permitted under the Loan Documents, amend, modify, waive or terminate the certificate of incorporation, bylaws or similar organizational documents of the Principal, in each case, without obtaining the prior written consent of Lender.

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5.2.3. Change In Business.

Borrower shall not enter into any line of business other than the ownership, acquisition, development, operation, leasing and management of the Properties (including providing services in connection therewith), or make any material change in the scope or nature of its business objectives, purposes or operations or undertake or participate in activities other than the continuance of its present business.

5.2.4. Debt Cancellation.

Borrower shall not cancel or otherwise forgive or release any material claim or debt (other than termination of Leases in accordance herewith) owed to Borrower by any Person, except for adequate consideration and in the ordinary course of Borrower’s business.

5.2.5. Zoning.

Borrower shall not initiate or consent to any zoning reclassification of any portion of any Individual Property or seek any variance under any existing zoning ordinance or use or permit the use of any portion of any Individual Property in any manner that could reasonably be expected to result in such use becoming a non-conforming use under any zoning ordinance or any other Applicable Law, without the prior written consent of Lender. In the event Lender consents to any such nonconforming use, Borrower will not cause or permit such nonconforming use to be discontinued or any nonconforming Improvement to be abandoned without the prior written consent of Lender.

5.2.6. No Joint Assessment.

Borrower shall not suffer, permit or initiate the joint assessment of any Individual Property with (a) any other real Property constituting a tax lot separate from such Individual Property, or (b) any portion of such Individual Property which may be deemed to constitute personal property, or any other procedure whereby the Lien of any taxes which may be levied against such personal Property shall be assessed or levied or charged to such Individual Property.

5.2.7. Name, Identity, Structure, or Principal Place of Business.

Borrower shall not change its name, identity (including its trade name or names), or principal place of business set forth in the introductory paragraph of this Agreement, without, in each case, first giving Lender thirty (30) days prior written notice. Borrower shall not change its the place of its organization as set forth in Section 4.1.35, without, in each case, the consent of Lender. Upon Lender’s request, Borrower shall execute and deliver additional financing statements, security agreements and other instruments which may be necessary to effectively evidence or perfect Lender’s security interest in the Properties as a result of such change of principal place of business or place of organization.

5.2.8. ERISA.

(a) During the term of the Loan or of any obligation or right hereunder, Borrower shall not engage in any Prohibited Transaction or Prohibited Governmental

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Transaction subjecting Lender to liability for a violation of ERISA, the Code, a state statute or other similar law.

(b) Borrower further covenants and agrees to deliver to Lender, within ten (10) Business Days after receipt of written request from Lender therefor, such certifications or other evidence from time to time throughout the term of the Loan, as reasonably requested by Lender, that (A) Borrower is not and does not maintain a Plan or Governmental Plan, (B) Borrower is not engaging in a Prohibited Transaction or any Prohibited Governmental Transactions; and (C) one or more of the following circumstances is true:

(i) Equity interests in Borrower are publicly offered securities, within the meaning of 29 C.F.R. §2510.3-101(b)(2);

(ii) Less than twenty-five percent (25%) of each outstanding class of equity interests in Borrower are held by “benefit plan investors” within the meaning of 29 C.F.R. §2510.3-101(f)(2); or

(iii) Borrower qualifies as an “operating company” or a “real estate operating company” within the meaning of 29 C.F.R. §2510.3-101(c) or (e) or an investment company registered under The Investment Company Act of 1940, as amended.

5.2.9. Affiliate Transactions.

Borrower shall not enter into, or be a party to, any transaction with an Affiliate of Borrower, Principal, if any, or any of the partners or members of Borrower or Principal, if any, except in the ordinary course of business and on terms which are fully disclosed to Lender in advance in writing and are not materially less favorable to Borrower or such Affiliate than would be obtained in a comparable arm’s-length transaction with an unrelated third party.

5.2.10. Transfers.

(a) Borrower shall not sell, convey, mortgage, grant, bargain, encumber, pledge, assign, grant options with respect to, or otherwise transfer or dispose of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) any Individual Property or any part thereof or any legal or beneficial interest therein or permit a Sale or Pledge of an interest in any Restricted Party (collectively, a “Transfer”; provided, however, that the term “Transfer” shall not be deemed to include a transfer of direct or indirect equity interests in the Borrower as the result of a foreclosure or assignment in lieu relating to any Mezzanine Loan), other than pursuant to Leases of space in the Improvements to Tenants in accordance with the provisions of Section 5.1.17 hereof or a release of an Individual Property in accordance with the provisions of Section 2.5, Section 2.6 or Transfers consummated pursuant to Section 5.2.11 hereof, or matters set forth in clause (d) of the definition of Permitted Encumbrances (provided that such Permitted Encumbrances are placed on the Property in Borrower’s ordinary course of business and so not, individually or in the aggregate, materially interfere with the value, current use or operation of any Individual Property) without (i) the prior written consent of Lender and (ii) if a Securitization has occurred, delivery to Lender of written confirmation from the Rating Agencies

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that the Transfer will not result in the downgrade, withdrawal or qualification of the then current ratings assigned to any Securities or the proposed rating of any Securities. The consent of Lender or the Rating Agencies, as applicable, pursuant to this Section 5.2.10, may be conditioned on, among other things: (i) the identity, experience, financial condition, creditworthiness, single purpose nature and bankruptcy remoteness of the Borrower, the proposed transferee, and any replacement guarantors and indemnitors being satisfactory to Lender and the Rating Agencies, as applicable, and (ii) counsel to the proposed transferee and replacement guarantors and indemnitors delivering to Lender and the Rating Agencies (A) opinion letters relating to such transfer (including tax and bankruptcy opinions) in form and substance satisfactory to Lender and the Rating Agencies, (B) copies of all documents evidencing or relating to such Transfer, and (C) organizational documents of the proposed transferee and any replacement or additional guarantors or indemnitors.

(b) A Transfer shall include, but not be limited to: (i) an installment sales agreement wherein Borrower agrees to sell one or more Individual Properties or any part thereof for a price to be paid in installments; (ii) an agreement by Borrower leasing all or a substantial part of any Individual Property for other than actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interests or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing membership interests or the creation or issuance of new non-managing membership interests; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; (vii) the removal or the resignation of the managing agent (including an Affiliated Manager) other than in accordance with Section 5.1.18 hereof; or (viii) the issuance or creation of any preferred equity interests directly or indirectly in Borrower.

(c) Notwithstanding the provisions of Sections 5.2.10(a) and (b), the following transfers, so long as no Event of Default is then continuing (other than with respect to subclauses (ii) and (iv) below), shall be permitted and shall not be deemed to be a Transfer:

(i) a Transfer of up to forty-nine percent (49%) of the non-controlling direct and indirect interests in Borrower to any Person that satisfies the Investor Eligibility Requirements, provided that (A) Lender shall receive not less than ten (10) Business Days prior written notice of

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such Transfer, and (B) no such Transfer shall result in a change of Control of Guarantor and any Affiliated Manage;

(ii) the issuance, conveyance, assignment, sale, mortgage, encumbrance, pledge, disposition hypothecation, grant of a security interest, or grant of option (directly or indirectly or by operation of law) (any of the foregoing, a “Sale or Pledge”) of any shares of common stock (the “REIT Shares”) in Spirit Realty Capital, Inc., a Maryland corporation (the “REIT”) (other than a Sale or Pledge to secure corporate or other debt of the REIT, Guarantor, Spirit General OP Holdings, LLC, a Delaware limited liability company (“Spirit Holdings”) or Borrower) (each a “REIT Share Transfer”) so long as (a) at the time of the REIT Share Transfer, the REIT Shares are listed on the New York Stock Exchange or any other nationally recognized stock exchange (any such stock exchange, a “Recognized Stock Exchange”), or, after written notice to Lender, such REIT Shares are traded over the counter and listed in the National Association of Securities Dealers Automatic Quotations and registered with the Securities and Exchange Commission, and (b) the REIT Share Transfer does not result in or cause an Equity Change of Control;

(iii) the issuance, Sale or Pledge (each an “OP Transfer”) of any limited partnership interests (the “OP Interests”) in Guarantor (other than a Sale or Pledge to secure corporate or other debt of the REIT, Guarantor, Spirit Holdings or Borrower), so long as (a) at the time of the OP Transfer, the REIT Shares are listed on a Recognized Stock Exchange, or, after written notice to Lender, such REIT Shares are traded over the counter and listed in the National Association of Securities Dealers Automatic Quotations and registered with the Securities and Exchange Commission, and (b) the OP Transfer does not result in or cause an Equity Change of Control; and

(iv) the issuance, Sale or Pledge (each a “Preferred Share Transfer”) of any shares (the “Preferred Shares”) of Permitted Preferred Stock in the REIT (other than a Sale or Pledge to secure corporate or other debt of the REIT, Guarantor, Spirit Holdings or Borrower) so long as (a) at the time of the Preferred Share Transfer, the REIT Shares are listed on a Recognized Stock Exchange, or, after written notice to Lender, such REIT Shares are traded over the counter and listed in the National Association of Securities Dealers Automatic Quotations and registered with the Securities and Exchange Commission, and (b) the Preferred Share Transfer does not result in or cause an Equity Change of Control.

(d) Notwithstanding anything to the contrary contained in this Section 5.2.10, at all times Guarantor must continue to control Borrower and own, directly or indirectly, at least a fifty-one percent (51%) interest in Borrower. At all times following a transfer of the

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Properties in accordance with the terms and provisions of Section 5.2.11 hereof, sponsor(s) and/or principal(s) approved by Lender pursuant to such Section 5.2.11 must continue to control the Transferee and the applicable replacement guarantor approved by Lender as required by such Section 5.2.11 and own, directly or indirectly, at least a 51% interest in such Transferee and such replacement guarantor.

(e) Lender shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon a Transfer in violation of this Section 5.2.10. This provision shall apply to every Transfer regardless of whether voluntary or not, or whether or not Lender has consented to any previous Transfer. Notwithstanding anything to the contrary contained in this Section 5.2.10, (a) no transfer (whether or not such transfer shall constitute a Transfer) shall be made to any Prohibited Person, (b) in the event any transfer (whether or not such transfer shall constitute a Transfer) results in any Person and its Affiliates owning in excess of ten percent (10%) of the ownership interest in a Restricted Party, Borrower shall provide to Lender, not less than thirty (30) days prior to such transfer, the name and identity of each proposed transferee, together with the names of its controlling principals, the social security number or employee identification number of such transferee and controlling principals, and such transferee’s and controlling principal’s home address or principal place of business, and home or business telephone number and (c) in the event any transfer (whether or not such transfer shall constitute a Transfer) results in any Person and its Affiliates owning in excess of forty-nine percent (49%) of the ownership interest in a Restricted Party and a Secondary Market Transaction has occurred, Borrower shall, prior to such transfer, deliver an updated Insolvency Opinion to Lender, which opinion shall be in form and substance acceptable to Lender and the Rating Agencies.

5.2.11. Transfer and Assumption.

Notwithstanding anything to the contrary contained in Section 5.2.10 hereof, Lender shall not unreasonably withhold its consent to a sale, assignment, or other transfer of all of the Properties (i) provided that (A) Lender receives at least sixty (60) days prior written notice of such transfer, (B) no Event of Default has occurred and is continuing both at the time such notice is given and as of the closing date of such transaction, (C) a Securitization has occurred, and (ii) upon the satisfaction of the following conditions precedent:

(a) The transferee shall be a single purpose and bankruptcy remote entity (“Transferee”) and controlled and majority owned (directly or indirectly) by a Permitted Transferee;

(b) The identity, experience (including demonstrated expertise in owning and operating properties similar in location, size, class and operation to the Properties), financial condition and creditworthiness (including no history of any bankruptcy or similar proceeding within the preceding ten (10) years) of the sponsor(s) or principals(s) of Transferee and of any party proposed to become a substitute guarantor, as evidenced by financial statements and other information requested by Lender, shall be satisfactory to Lender;

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(c) The organizational documents of Transferee and its sponsor(s) or principal(s) shall be in form and substance satisfactory to Lender, including lien searches and other internal “know your client” due diligence acceptable to Lender;

(d) Certified copies of all documents evidencing such transfer and assumption, which shall be in form and substance satisfactory to Lender;

(e) Borrower or Transferee shall pay any and all costs incurred in connection with the transfer (including Lender’s attorneys’ fees and disbursements and all recording fees, transfer taxes, title insurance premiums and mortgage and intangible taxes and any fees of any Rating Agencies), it being acknowledged and agreed that Borrower shall have this obligation if the transaction is not consummated;

(f) Transferee shall comply with all of the requirements of Section 4.1.36 hereof;

(g) Transferee shall not be an Affiliate of either Borrower or Guarantor;

(h) Transferee shall assume all of the obligations of Borrower under the Note, the Security Instruments, this Agreement and the other Loan Documents in a manner satisfactory to Lender in all respects, including by entering into an assumption agreement in form and substance satisfactory to Lender and delivering such legal opinions as Lender may reasonably require;

(i) A replacement guarantor satisfactory to Lender in its sole discretion shall assume all of the obligations of Guarantor under the Guaranty and the Environmental Indemnity in a manner satisfactory to Lender in all respects, including by entering into an assumption agreement and/or a new guaranty or environmental indemnity agreement, each in form and substance satisfactory to Lender, and delivering such legal opinions as Lender may reasonably require;

(j) The Properties shall be managed by a Qualified Manager following such transfer;

(k) If a Securitization has occurred, Transferee shall deliver to Lender written confirmation from the Rating Agency that the transfer and the assumption by Transferee shall not result in a downgrade, withdrawal or qualification of the ratings then assigned to the Securities;

(l) Transferee shall deliver an endorsement to the existing Title Insurance Policies in form and substance acceptable to Lender insuring the Security Instruments as modified by the assumption agreement, as a valid first lien on the Properties and naming Transferee as owner of the Properties, naming the then current holder of the Loan as the insured, bringing forward the date and time of the Title Insurance Policies to the date and time of recording of the assumption agreement or a memorandum thereof, and addressing such other matters as Lender shall require, and which endorsement shall insure that as of the recording of

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the assumption agreement, the Properties shall not be subject to any additional exceptions or liens other than those contained in the Title Insurance Policies;

(m) Borrower shall pay to Lender an assumption fee equal to (i) with respect to the first such assumption, one quarter of one percent (0.25%) of the outstanding principal balance of the Loan, and (ii) with respect to each assumption thereafter, one percent (1.0%) of the outstanding principal balance of the Loan; and

(n) Transferee shall deliver to Lender an opinion of counsel from an independent law firm with respect to the substantive non-consolidation of Transferee and its constituent entities (partners, members or shareholders), which law firm and which opinion shall be satisfactory to (i) Lender, if a Securitization has not occurred, or (ii) Lender and the Rating Agencies, if a Securitization has occurred.

VI. INSURANCE; CASUALTY; CONDEMNATION; REQUIRED REPAIRS

Section 6.1. Insurance.

(a) Borrower shall obtain and maintain, or cause to be obtained and maintained on behalf of the Borrower, Policies for Borrower and the Properties providing at least the following coverages:

(i) comprehensive all risk insurance, including the peril of wind (including named storms) on the Improvements and the Personal Property, in each case (A) in an amount equal to 100% of the “Full Replacement Cost,” which for purposes of this Agreement shall mean actual replacement value (exclusive of costs of excavations, foundations, underground utilities and footings) with a waiver of depreciation, (B) containing an agreed amount endorsement with respect to the Improvements and Personal Property waiving all co-insurance provisions; (C) providing for no deductible in excess of $50,000, except for wind/named storms and earthquake, which may provide for no deductible in excess of 5% of the total insurable value of the Property, subject to a $250,000 minimum; and (D) providing coverage for contingent liability from Operation of Building Laws, Demolition Costs and Increased Cost of Construction Endorsements together with an “Ordinance or Law Coverage” or “Enforcement” endorsement if any of the Improvements or the use of any Individual Property shall at any time constitute legal non-conforming structures or uses. The Full Replacement Cost shall be redetermined from time to time (but not more frequently than once in any twenty-four (24) calendar months) at the request of Lender by an appraiser or contractor designated and paid by Borrower and approved by Lender, or by an engineer or appraiser in the regular employ of the insurer. After the first appraisal, additional appraisals may be based on construction cost indices customarily employed in the trade. No omission on the part of Lender to request any such ascertainment shall relieve Borrower of any of its obligations under this subsection;

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(ii) commercial general liability insurance against claims for personal injury, bodily injury, death or property damage occurring upon, in or about any Individual Property, such insurance (A) to be on the so-called “occurrence” form with a combined single limit of not less than $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate; (B) to continue at not less than the aforesaid limit until required to be changed by Lender in writing by reason of changed economic conditions making such protection inadequate; and (C) to cover at least the following hazards: (1) premises and operations; (2) products and completed operations on an “if any” basis; (3) independent contractors; (4) contractual liability for all insured contracts; and (5) contractual liability covering the indemnities contained in Article 10 of the Security Instruments to the extent the same is available;

(iii) loss of rents and/or business interruption insurance (A) with loss payable to Lender; (B) covering all risks required to be covered by the insurance provided for in Sections 6.1(a)(i), (iv) and (vi) through (viii); (C) in an amount equal to 100% of the projected gross income from each Individual Property (on an actual loss sustained basis) for a period continuing until the Restoration of the Individual Property is completed; the amount of such business interruption/loss of rents insurance shall be determined prior to the Closing Date and at least once each year thereafter based on the greatest of: (x) Borrower’s reasonable estimate of the gross income from each Individual Property and (y) the highest gross income received during the term of the Note for any full calendar year prior to the date the amount of such insurance is being determined, in each case for the succeeding eighteen (18) month period and (D) containing an extended period of indemnity endorsement which provides that after the physical loss to the Improvements and the Personal Property has been repaired, the continued loss of income will be insured until such income either returns to the same level it was at prior to the loss, or the expiration of six (6) months from the date that the applicable Individual Property is repaired or replaced and operations are resumed, whichever first occurs, and notwithstanding that the policy may expire prior to the end of such period; All insurance proceeds payable to Lender pursuant to this Section 6.1(a)(iii) shall be held by Lender and shall be applied to the Obligations secured hereunder from time to time due and payable hereunder and under the Note and this Agreement; provided, however, that (I) nothing herein contained shall be deemed to relieve Borrower of its obligations to pay the obligations secured hereunder on the respective dates of payment provided for in the Note and this Agreement except to the extent such amounts are actually paid out of the proceeds of such business interruption/loss of rents insurance;

(iv) at all times during which structural construction, repairs or alterations are being made with respect to the Improvements (A) owner’s contingent or protective liability insurance covering claims not

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covered by or under the terms or provisions of the insurance provided for in Section 6.1(a)(ii); and (B) the insurance provided for in Section 6.1(a)(i) shall be written in a so-called builder’s risk completed value form (1) on a non-reporting basis, (2) against all risks insured against pursuant to Section 6.1(a)(i), (3) shall include permission to occupy each Individual Property, and (4) shall contain an agreed amount endorsement waiving co-insurance provisions;

(v) workers’ compensation, subject to the statutory limits of the State in which each Individual Property is located, and employer’s liability insurance with a limit of at least $2,000,000.00 per accident and per disease per employee, and $2,000,000.00 for disease aggregate in respect of any work or operations on or about each Individual Property, or in connection with such Individual Property or its operation (if applicable);

(vi) comprehensive boiler and machinery insurance, if applicable, in amounts as shall be reasonably required by Lender on terms consistent with the commercial Property insurance policy required under Section 6.1(a)(i);

(vii) if any portion of the Improvements is at any time located in an area identified by the Secretary of Housing and Urban Development or any successor thereto as an area having special flood hazards pursuant to the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973 or the National Flood Insurance Reform Act of 1994, as each may be amended, or any successor law (the “Flood Insurance Acts”), flood hazard insurance of the following types and in the following amounts (A) coverage under Policies issued pursuant to the Flood Insurance Acts (the “Flood Insurance Policies”) in an amount equal to the maximum limit of coverage available for the applicable Individual Property under the Flood Insurance Acts, subject only to customary deductibles under such Policies (or such higher amount as Lender may require in its sole discretion) and (B) coverage under a supplemental private Policies in an amount, which when added to the coverage provided under the Flood Act Policies with respect to an Individual Property, is not less than the Allocated Loan Amount for such Individual Property;

(viii) if required by Lender, sinkhole and mine subsidence and, if an Individual Property is located in Seismic Zone 3 or 4 and has a PML or SEL in excess of 20%, earthquake insurance in amounts equal to two times (2x) the probable maximum loss of each Individual Property as determined by Lender in its sole discretion and in form and substance satisfactory to Lender, provided that the insurance pursuant to this Section 6.1(a)(viii) hereof shall be on terms consistent with the all risk insurance policy required under Section 6.1(a)(i) hereof;

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(ix) umbrella liability insurance in an amount not less than Fifty Million and No/100 Dollars ($50,000,000.00) per occurrence on terms consistent with the commercial general liability insurance policy required under Section 6.1(a)(ii) hereof;

(x) motor vehicle liability coverage for all owned and non-owned vehicles, including rented and leased vehicles containing minimum limits per occurrence, including umbrella coverage, of One Million and No/100 Dollars ($1,000,000);

(xi) an Environmental Secured Creditor Insurance Policy issued by Steadfast Insurance Company, a Zurich member company, covering the Individual Properties located in Pineville, NC (Carmax), LaGrange, GA (Kroger), and Bedford Park, IL (Art Van/Home Depot), for a period of not less than ten (10) years with a three (3) year extended reporting period and with a limit of $2,000,000 each incident and $10,000,000 in the aggregate; and

(xii) such other insurance and in such amounts or as Lender from time to time may reasonably request against such other insurable hazards which at the time are commonly insured against for property similar to each Individual Property located in or around the region in which each Individual Property is located.

(b) All insurance provided for in Section 6.1(a) hereof shall be obtained under valid and enforceable policies (the “Policies” or in the singular, the “Policy”), in such forms and, from time to time after the date hereof, in such amounts as may be satisfactory to Lender, issued by financially sound and responsible insurance companies authorized to do business in the State in which each Individual Property is located and approved by Lender. The insurance companies must be (A) one or more financially sound and responsible insurance companies authorized to do business in the State in which the Property is located and having a rating by each of the Rating Agencies (one of which will be S&P if they are rating the Securities and one of which shall be Moody’s if they are rating the Securities) not lower than “A-” or (B) a syndicate of insurers through which at least seventy-five percent (75%) of the coverage (if there are four (4) or fewer members of the syndicate) or at least sixty percent (60%) of the coverage (if there are five (5) or more members of the syndicate) and one hundred percent (100%) of the primary layer is with carriers having a minimum claims-paying-ability rating not lower than “A-” by S&P and “A:X” by A.M. Best (or, with respect to Factory Mutual Insurance Company, a rating by Fitch not lower than “A” and a rating by S&P not lower than “Api”) and the balance of the coverage is, in each case, with insurers having a minimum claims-paying-ability rating not lower than “BBB+” by S&P and “A-:VIII” by A.M. Best (each such insurer shall be referred to below as a “Qualified Insurer”). Borrower will be required to maintain insurance against terrorism, terrorist acts or similar acts of sabotage with amounts, terms and coverage consistent with those required under Sections 6.1(a)(i), (ii), (iii) and (ix) hereof. Not less than thirty (30) days prior to the expiration dates of the Policies theretofore furnished to Lender pursuant to Section 6.1(a), Borrower shall deliver insurance renewal documentation satisfactory to Lender

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and, upon renewal, Borrower will provide proof of full payment of the premiums due in connection with such renewal (the “Insurance Premiums”).

(c) Borrower shall not obtain (i) any umbrella or blanket liability or casualty Policy unless, in each case, such Policy is approved in advance in writing by Lender and Lender’s interest is included therein as provided in this Agreement and such Policy is issued by a Qualified Insurer, or (ii) separate insurance concurrent in form or contributing in the event of loss with that required in Section 6.1(a) to be furnished by, or which may be reasonably required to be furnished by, Borrower. In the event Borrower obtains separate insurance or an umbrella or a blanket policy, Borrower shall notify Lender of the same and shall cause complete copies of each Policy to be delivered as required in Section 6.1(a). Without limitation of any provision hereof, (1) Lender’s consent required hereunder with respect to any umbrella or blanket Policy shall include the schedule of locations and values with respect to the same and (2) any umbrella or blanket Policy shall otherwise provide the same protection as would a separate Policy insuring only such Individual Property in compliance with the provisions of Section 6.1(a). Notwithstanding Lender’s approval of any umbrella or blanket liability or casualty Policy hereunder, Lender reserves the right, in its sole discretion, to require Borrower to obtain a separate Policy in compliance with this Section 6.1.

(d) All Policies provided for or contemplated by Section 6.1(a) hereof shall name Borrower as a named insured and in the case of commercial liability policies, except for the Policy referenced in Section 6.1(a)(v) and (x), shall name the Lender, its successors and/or assigns, as additional insureds, as their respective interests may appear, and in the case of property damage policies, including but not limited to terrorism, boiler and machinery, and flood insurance, shall contain a standard non-contributing mortgagee clause in favor of Lender providing that the loss thereunder shall be payable to Lender. Borrower shall promptly forward to Lender a copy of each written notice received by Borrower of any modification, reduction or cancellation of any of the Policies or of any of the coverages afforded under any of the Policies.

(e) All Policies (other than commercial liability policies) provided for in Section 6.1(a) hereof shall contain clauses or endorsements to the effect that:

(i) no act or negligence of Borrower, or anyone acting for Borrower, or failure to comply with the provisions of any Policy which might otherwise result in a forfeiture of the insurance or any part thereof, or foreclosure or similar action, shall in any way affect the validity or enforceability of the insurance insofar as Lender is concerned;

(ii) the Policy shall not be cancelled without at least thirty (30) days’ written notice to Lender and any other party named therein as an insured (other than in the case of non-payment in which case only ten (10) days’ written prior notice shall be provided);

(iii) each Policy shall provide that the issuers thereof shall give written notice to Lender if the issuer elect not to renew the Policy prior to its expiration; and

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(iv) Lender shall not be liable for any Insurance Premiums thereon or subject to any assessments thereunder.

(f) Borrower shall furnish to Lender, on or before thirty (30) days after the close of each of Borrower’s fiscal years, a statement certified by Borrower or a duly authorized officer of Borrower of the amounts of insurance maintained in compliance herewith, of the risks covered by such insurance and of the insurance company or companies which carry such insurance and, if requested by Lender, verification of the adequacy of such insurance by an independent insurance broker or appraiser acceptable to Lender.

(g) If at any time Lender is not in receipt of written evidence that all insurance required hereunder is in full force and effect, Lender shall have the right, without notice to Borrower to take such action as Lender deems necessary to protect its interest in the Properties, including the obtaining of such insurance coverage as Lender in its sole discretion deems appropriate, and all expenses including reasonable attorneys’ fees, incurred by Lender in connection with such action or in obtaining such insurance and keeping it in effect shall be paid by Borrower to Lender upon demand and until paid shall be secured by the Security Instruments and shall bear interest at the Default Rate.

(h) In the event of a foreclosure of any of the Security Instruments, or other transfer of title to any Individual Property in extinguishment in whole or in part of the Debt all right, title and interest of Borrower in and to the Policies then in force and all proceeds payable thereunder shall thereupon vest in the purchaser at such foreclosure or Lender or other transferee in the event of such other transfer of title.

(i) Notwithstanding the foregoing, for so long as any Tenant pursuant to a Single Tenant Lease maintains the insurance policies meeting the requirements set forth in this Section 6.1, including terrorism on the property (including loss of rents and/or business interruption), general and umbrella liability policies, such insurance policies may satisfy Borrower’s insurance requirements described herein so long as (a) Tenant remains in compliance with all insurance requirements under this Section 6.1, (b) any insurance coverage provided by Tenant satisfies the requirements set forth in the Single Tenant Lease and any other material agreements applicable to the Individual Property and such Tenant delivers evidence reasonably acceptable to Lender of such coverage no less frequently than annually, and (c) all such policies shall name Lender, its successors and/or assigns, as an additional insureds, as their respective interests may appear, and in the case of property damage policies, including but not limited to terrorism, boiler and machinery, and flood insurance, shall contain standard non-contributing mortgagee clause in favor of Lender providing that the loss thereunder shall be payable to Lender. To the extent any of the foregoing conditions are not satisfied or to the extent Lender has been informed that relying solely on the insurance required pursuant in such Single Tenant Lease will result in an adverse impact to, a downgrade of or withdrawal of any rating then or to be assigned to any outstanding certificates issued or to be issued in conjunction with a Securitization of which this Loan is a part or otherwise adversely impacts the Securitization of the Loan, Borrower shall promptly, at its sole cost and expense, procure and maintain until Tenant’s compliance either (x) “primary” insurance coverage in the event that Tenant does not provide the applicable insurance coverage required in this subsection 6.1(i) or (y) “excess and contingent” insurance coverage in the event that Tenant does not have the sufficient insurance

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coverage required under this subsection 6.1(i) over and above any other valid and collectible coverage then in existence or that there are gaps between the insurance coverages provided for in the applicable Single Tenant Lease and the requirements under this Section 6.1, as shall be necessary to bring the insurance coverage for the Property into full compliance with all of the terms and conditions of this Section 6.1. With respect to insurance for acts of terror, in the event that the individual Single Tenant Lease excludes or does not otherwise provide terrorism coverage, Borrower shall be required to provide a policy for such coverage in an amount acceptable to Lender which satisfies the requirements of this Section 6.1.

(j) Within ten (10) days after receipt of written request from Lender, Borrower shall (i) provide certified copies of any and all Policies or binders, pro formas or certificates of insurance reflecting insurance coverages, amounts and other requirements required to be maintained by Borrower under this Agreement, and (ii) request each Tenant required to maintain insurance pursuant to the terms of a Single Tenant Lease and where Borrower is not obtaining insurance with respect to such Single Tenant Lease pursuant to Section 6.1(i) above, to provide evidence reasonably acceptable to Lender of such Tenant’s compliance with its obligations thereunder and to use commercially reasonable efforts to obtain such evidence. In the event Borrower is unable to obtain such evidence with respect to any Tenant’s insurance within such ten (10) day period, Borrower shall promptly obtain, but in no event less than ten (10) days after Tenant’s failure to provide any such evidence, any Policies for Borrower and the relevant Property as may be necessary to comply with this Section 6.1(a) and Borrower shall provide evidence reasonably acceptable to Lender of such Policies to Lender.

Section 6.2. Casualty.

If an Individual Property shall be damaged or destroyed, in whole or in part, by fire or other casualty (a “Casualty”), Borrower shall give prompt notice of such damage to Lender and shall promptly commence and diligently prosecute or cause Tenant of such Property to promptly commence and diligently prosecute the completion of the Restoration of the Individual Property as nearly as possible to the condition the Individual Property was in immediately prior to such Casualty, with such alterations as may be reasonably approved by Lender and otherwise in accordance with Section 6.4 hereof. Borrower shall pay all costs of such Restoration whether or not such costs are covered by insurance. Lender may, but shall not be obligated to make proof of loss if not made promptly by Borrower.

Section 6.3. Condemnation.

Borrower shall promptly give Lender notice of the actual or threatened commencement of any proceeding for the Condemnation of all or any part of any Individual Property and shall deliver to Lender copies of any and all papers served in connection with such proceedings. Lender may participate in any such proceedings, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through Condemnation or otherwise (including, but not limited to, any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Debt at the time and in the manner

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provided for its payment in the Note and in this Agreement and the Debt shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the Debt. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If any Individual Property or any portion thereof is taken by a condemning authority, Borrower shall, promptly commence and diligently prosecute the Restoration of the applicable Individual Property and otherwise comply with the provisions of Section 6.4 hereof. If any Individual Property is sold, through foreclosure or otherwise, prior to the receipt by Lender of the Award, Lender shall have the right, whether or not a deficiency judgment on the Note shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to pay the Debt.

Section 6.4. Restoration.

The following provisions shall apply in connection with the Restoration of any Individual Property:

(a) If the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence, or cause to be expeditiously commenced and satisfactory completed with due diligence, the Restoration in accordance with the terms of this Agreement.

(b) If the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration is equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.4. The term “Net Proceeds” shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1(a)(i), (iv), (vi), (vii), (viii) and (ix) as a result of such damage or destruction, after deduction of its reasonable costs and expenses (including, but not limited to, reasonable counsel fees), if any, in collecting same (“Insurance Proceeds”), or (ii) the net amount of the Award, after deduction of its reasonable costs and expenses (including, but not limited to, reasonable counsel fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may be.

(i) The Net Proceeds shall be made available to Borrower for Restoration provided that each of the following conditions is met:

(A) no Default or Event of Default shall have occurred and be continuing;

(B) (1) in the event the Net Proceeds are Insurance Proceeds, less than thirty percent (30%) of the total floor area of the Improvements on the Individual Property has been damaged, destroyed or rendered unusable as a result of such Casualty or (2)

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in the event the Net Proceeds are Condemnation Proceeds, the loss portion of the land affected thereby does not (I) materially adversely affect (a) the value of such Individual Property, (b) the use of the Individual Property by the Tenant, or (c) the payments due Borrower thereunder, in each case after taking into account the Condemnation Proceeds, or (II) result in the termination of a Lease or an abatement of rent under any Lease;

(C) Leases demising in the aggregate a percentage amount equal to or greater than ninety percent (90%) of the total rentable space in the Individual Property which has been demised under executed and delivered Leases in effect as of the date of the occurrence of such Casualty or Condemnation, whichever the case may be, shall remain in full force and effect during and after the completion of the Restoration, notwithstanding the occurrence of any such Casualty or Condemnation, whichever the case may be, and Borrower furnishes to Lender evidence reasonably satisfactory to Lender that all Tenants under Leases shall continue to operate their respective space at such Individual Property after the completion of the Restoration;

(D) Borrower shall commence the Restoration as soon as reasonably practicable (but in no event later than thirty (30) days after such Casualty or Condemnation, whichever the case may be, occurs) and shall diligently pursue the same to satisfactory completion in compliance with all Applicable Laws, including all applicable Environmental Laws;

(E) Lender shall be satisfied that any operating deficits, including all scheduled payments of principal and interest under the Note, which will be incurred with respect to the Individual Property as a result of the occurrence of any such Casualty or Condemnation, whichever the case may be, will be covered out of (1) the Net Proceeds, (2) the insurance coverage referred to in Section 6.1(a)(iii) hereof, if applicable, or (3) by other funds of Borrower;

(F) Lender shall be satisfied that the Restoration will be completed on or before the earliest to occur of (1) six (6) months prior to the Maturity Date, or (2) twelve (12) months after the occurrence of such Casualty or Condemnation, or (3) the earliest date required for such completion under the terms of any Leases which are required in accordance with the provisions of this Section 6.4(b) to remain in effect subsequent to the occurrence of such Casualty or Condemnation and the completion of the Restoration, or (4) such time as may be required under Applicable Law, in order to repair and restore the applicable Individual

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Property to the condition it was in immediately prior to such Casualty or Condemnation or (5) the expiration of the insurance coverage referred to in Section 6.1(a)(iii) hereof;

(G) the Individual Property and the use thereof after the Restoration will be in compliance with and permitted under all Applicable Laws;

(H) Lender shall be satisfied that the Debt Service Coverage Ratio for all the Properties after the completion of the Restoration shall be equal to or greater than 1.50 to 1.00;

(I) such Casualty or Condemnation, as applicable, does not result in the total loss of access to the Individual Property or the related Improvements;

(J) Borrower shall deliver, or cause to be delivered, to Lender a signed detailed budget approved in writing by Borrower’s architect or engineer stating the entire cost of completing the Restoration, which budget shall be reasonably acceptable to Lender;

(K) the Net Proceeds together with any Cash or Cash equivalent deposited by Borrower with Lender are sufficient in Lender’s discretion to cover the cost of the Restoration; and

(L) any Management Agreement in effect as of the date of the occurrence of such Casualty or Condemnation, whichever the case may be, shall (1) remain in full force and effect during the Restoration and shall not otherwise terminate as a result of the Casualty or Condemnation or the Restoration or (2) if terminated, shall have been replaced with a Replacement Management Agreement with a Qualified Manager, prior to the opening or reopening of the applicable Individual Property or any portion thereof for business with the public.

(ii) The Net Proceeds shall be held by Lender in an interest-bearing account and, until disbursed in accordance with the provisions of this Section 6.4(b), shall constitute additional security for the Debt and other obligations under the Loan Documents. The Net Proceeds shall be disbursed by Lender to, or as directed by, Borrower from time to time during the course of the Restoration, upon receipt of evidence reasonably satisfactory to Lender that (A) all materials installed and work and labor performed (except to the extent that they are to be paid for out of the requested disbursement) in connection with the Restoration have been paid for in full, and (B) there exist no notices of pendency, stop orders, mechanic’s or materialman’s liens or notices of intention to file same, or

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any other Liens or encumbrances of any nature whatsoever on the Individual Property which have not either been fully bonded to the satisfaction of Lender and discharged of record or in the alternative fully insured to the satisfaction of Lender by the title company issuing the Title Insurance Policy for the related Individual Property.

(iii) All plans and specifications required in connection with the Restoration shall be subject to prior review and acceptance in all respects by Lender and by an independent consulting engineer selected by Lender (the “Casualty Consultant”). With respect to all such plans and specifications submitted to Lender and/or the Casualty Consultant for approval, Lender shall have ten (10) days to respond after a written request from Borrower for such approval, which request shall be marked “PRIORITY” on its envelope and shall contain a bold-faced, conspicuous (in a font size that is not less than fourteen(14)) legend at the top of the first page thereof stating that “FIRST NOTICE: THIS IS A REQUEST FOR CONSENT UNDER THE LOAN BY BARCLAYS BANK PLC TO                     . FAILURE TO RESPOND TO THIS REQUEST WITHIN TEN (10) BUSINESS DAYS MAY RESULT IN THE REQUEST BEING DEEMED GRANTED”. In the event Lender fails to respond within such ten (10) day period, then Borrower shall give Lender written notice of such failure to respond which such notice shall be marked “PRIORITY” on its envelope and shall contain a bold-faced, conspicuous (in a font size that is not less than fourteen(14)) legend at the top of the first page thereof stating that “SECOND AND FINAL NOTICE: THIS IS A REQUEST FOR CONSENT UNDER THE LOAN BY BARCLAYS BANK PLC TO                     . IF YOU FAIL TO PROVIDE A SUBSTANTIVE RESPONSE (E.G., APPROVAL, DENIAL OR REQUEST FOR CLARIFICATION OR MORE INFORMATION) TO THIS REQUEST FOR APPROVAL IN WRITING WITHIN FIVE (5) BUSINESS DAYS, YOUR APPROVAL SHALL BE DEEMED GIVEN”. In the event Lender or the Casualty Consultant disapproves such plans and specifications, Lender shall provide Borrower with written notice setting forth in reasonable detail the reasons for which approval is not given. Lender shall have the use of the plans and specifications and all permits, licenses and approvals required or obtained in connection with the Restoration. The identity of the contractors, subcontractors and materialmen engaged in the Restoration as well as the contracts under which they have been engaged, shall be subject to prior review and acceptance by Lender and the Casualty Consultant. All costs and expenses incurred by Lender in connection with making the Net Proceeds available for the Restoration including reasonable counsel fees and disbursements and the Casualty Consultant’s fees, shall be paid by Borrower.

(iv) In no event shall Lender be obligated to make disbursements of the Net Proceeds in excess of an amount equal to the

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costs actually incurred from time to time for work in place as part of the Restoration, as certified by the Casualty Consultant, minus the Casualty Retainage. The term “Casualty Retainage” shall mean an amount equal to ten percent (10%), of the costs actually incurred for work in place as part of the Restoration, as certified by the Casualty Consultant, until the Restoration has been completed. The Casualty Retainage shall in no event, and notwithstanding anything to the contrary set forth above in this Section 6.4(b), be less than the amount actually held back by Borrower from contractors, subcontractors and materialmen engaged in the Restoration. The Casualty Retainage shall not be released until the Casualty Consultant certifies to Lender that the Restoration has been completed in accordance with the provisions of this Section 6.4(b) and that all approvals necessary for the re-occupancy and use of the Individual Property have been obtained from all appropriate Governmental Authorities, and Lender receives evidence satisfactory to Lender that the costs of the Restoration have been paid in full or will be paid in full out of the Casualty Retainage; provided, however, that Lender will release the portion of the Casualty Retainage being held with respect to any contractor, subcontractor or materialman engaged in the Restoration as of the date upon which the Casualty Consultant certifies to Lender that the contractor, subcontractor or materialman has satisfactorily completed all work and has supplied all materials in accordance with the provisions of the contractor’s, subcontractor’s or materialman’s contract, the contractor, subcontractor or materialman delivers the lien waivers and evidence of payment in full of all sums due to the contractor, subcontractor or materialman as may be reasonably requested by Lender or by the title company issuing the Title Insurance Policy for the related Individual Property, and Lender receives an endorsement to such Title Insurance Policy insuring the continued priority of the Lien of the related Security Instrument and evidence of payment of any premium payable for such endorsement. If required by Lender, the release of any such portion of the Casualty Retainage shall be approved by the surety company, if any, which has issued a payment or performance bond with respect to the contractor, subcontractor or materialman.

(v) Lender shall not be obligated to make disbursements of the Net Proceeds more frequently than once every calendar month.

(vi) If at any time the Net Proceeds or the undisbursed balance thereof shall not, in the reasonable opinion of Lender in consultation with the Casualty Consultant, if any, be sufficient to pay in full the balance of the costs which are estimated by the Casualty Consultant to be incurred in connection with the completion of the Restoration, Borrower shall deposit the deficiency (the “Net Proceeds Deficiency”) with Lender before any further disbursement of the Net Proceeds shall be made. The Net Proceeds Deficiency deposited with

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Lender shall be held by Lender and shall be disbursed for costs actually incurred in connection with the Restoration on the same conditions applicable to the disbursement of the Net Proceeds, and until so disbursed pursuant to this Section 6.4(b) shall constitute additional security for the Debt and other obligations under the Loan Documents.

(vii) The excess, if any, of the Net Proceeds and the remaining balance, if any, of the Net Proceeds Deficiency deposited with Lender after the Casualty Consultant certifies to Lender that the Restoration has been completed in accordance with the provisions of this Section 6.4(b), and the receipt by Lender of evidence satisfactory to Lender that all costs incurred in connection with the Restoration have been paid in full, shall be remitted by Lender to Borrower, provided no Event of Default shall have occurred and shall be continuing under the Note, this Agreement or any of the other Loan Documents.

(c) All Net Proceeds not required (i) to be made available for the Restoration or (ii) to be returned to Borrower as excess Net Proceeds pursuant to Section 6.4(b)(vii) may be retained and applied by Lender toward the payment of the Debt whether or not then due and payable in such order, priority and proportions as Lender in its sole discretion shall deem proper, or, at the discretion of Lender, the same may be paid, either in whole or in part, to Borrower for such purposes as Lender shall approve, in its discretion. If Lender shall receive and retain Net Proceeds, the Lien of the Security Instruments shall be reduced only by the amount thereof received and retained by Lender and actually applied by Lender in reduction of the Debt.

(d) Notwithstanding anything to the contrary set forth in this Agreement, with respect to a Casualty or a Condemnation, for so long as the Loan or any portion thereof is included in a Securitization, if the loan to value ratio (such value to be determined by the Lender in its sole discretion based on a commercially reasonable valuation method using only the portion of the Property which constitutes acceptable real estate collateral under the Code for a REMIC Trust) immediately after such Condemnation or Casualty, as the case may be, and prior to any Restoration (but taking into account any planned Restoration of the Property as if such planned Restoration were completed) is more than one hundred and twenty-five percent (125%), the principal balance of the Loan must be paid down by a “qualified amount” as that term is defined in the IRS Revenue Procedure 2010-30, as the same may be amended, modified or supplemented from time to time (and no Yield Maintenance Premium, Liquidated Damages Amount or any other prepayment premium or fee shall be due in connection therewith), in order to meet the foregoing loan to value ratio unless Borrower delivers to Lender an opinion of counsel, acceptable to Lender in its reasonable discretion, that if such amount is not paid, such Securitization will not fail to meet applicable federal income tax qualification requirements or subject such Securitization to tax; provided, however, that if the immediately preceding provisions are no longer applicable under legal requirements relating to a REMIC Trust, Borrower shall comply with all legal requirements relating to a Casualty or Condemnation then in effect.

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(e) Notwithstanding anything to the contrary set forth in this Agreement, in the event Lender does not make any Net Proceeds available for Restoration, as the result of the failure to meet the conditions of subclause (b) above, Borrower may elect to seek the release of the Individual Property or Individual Properties affected by the related Casualty or Condemnation. If Borrower elects such release, Borrower must comply with Sections 2.5(b), (d), (e), (f), j), k), (l), (m) and (o) above, but Borrower shall have no obligation to comply with any other requirement of Section 2.5 above. In the event of such a release, no Yield Maintenance Premium shall be due with respect to the amount of Net Proceeds applied by Lender to the payment of the outstanding principal amount of the Loan to be prepaid and Yield Maintenance Premium shall be due on the amount equal to the difference between the amount of Net Proceeds and the applicable Release Price.

(f) Notwithstanding anything to the contrary in this Agreement, in the event the La Grange Property suffers a Casualty and cannot be rebuilt in a manner sufficient to satisfy all then-current local zoning ordinances and codes without regard to its, as of the Closing Date, legal non-conforming status, then if Lender elects to apply all Net Proceeds relating to such Casualty to the outstanding principal balance of the Loan, Borrower shall seek the release of the La Grange Property. To effect the release of the La Grange Property, Borrower must comply with Sections 2.5(b), (d), (e), (f), (j), (k), (l), (m), and (o) above and shall have no obligation to comply with any other obligation of Section 2.5 above. In the event of a release of the La Grange Property pursuant to this Section 6.4(f), no Yield Maintenance Premium shall be due with respect to the amount of Net Proceeds applied by Lender to the payment of the outstanding principal amount of the Loan to be prepaid and Yield Maintenance Premium shall be due on the amount equal to the difference between the amount of Net Proceeds and the applicable Release Price.

VII. RESERVE FUNDS

Section 7.1. Required Repair Funds.

7.1.1. Deposits to Required Repair Fund.

On the Closing Date, Borrower shall deposit with Lender an aggregate amount equal to 125% of the amounts shown for each Individual Property set forth on Schedule IV hereto to perform or cause to be performed the Required Repairs for such Individual Property. Amounts so deposited with Lender shall be held by Lender in accordance with Section 7.7 hereof, and shall hereinafter be referred to as the “Required Repair Fund.” Borrower shall perform or cause to be performed the repairs at the Properties, as more particularly set forth on Schedule IV hereto (such repairs hereinafter referred to as “Required Repairs”) on or before the required deadline, if applicable, for each repair as set forth on Schedule IV. It shall be an Event of Default under this Agreement if (a) Borrower does not complete the Required Repairs at each Individual Property by the required deadline for each repair as set forth on Schedule IV, subject to “force majeure” and cooperation of the applicable Tenant, or (b) Borrower does not satisfy each condition contained in Section 7.1.2 hereof. Upon the occurrence of an Event of Default, Lender, at its option, may withdraw all Required Repair Funds from the Required Repair Account and Lender may apply such funds either to completion of the Required Repairs at one or more of the Properties or toward payment of the Debt in such order, proportion and priority as Lender may

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determine in its sole discretion. Lender’s right to withdraw and apply Required Repair Funds shall be in addition to all other rights and remedies provided to Lender under this Agreement and the other Loan Documents.

7.1.2. Release of Required Repair Funds.

Lender shall disburse to Borrower the Required Repair Funds from the Required Repair Account from time to time upon satisfaction by Borrower of each of the following conditions: (a) Borrower shall submit a written request for payment to Lender at least thirty (30) days prior to the date on which Borrower requests such payment be made and specifies the Required Repairs to be paid, (b) on the date such request is received by Lender and on the date such payment is to be made, no Event of Default shall exist and be continuing, (c) Lender shall have received an Officers’ Certificate (i) stating that all Required Repairs at the applicable Individual Property to be funded by the requested disbursement have been completed in good and workmanlike manner and, to Borrower’s knowledge, in accordance with all Legal Requirements and Environmental Laws, such certificate to be accompanied by a copy of any license, permit or other approval by any Governmental Authority required to commence and/or complete the Required Repairs, (ii) identifying each Person that supplied materials or labor in connection with the Required Repairs performed at such Individual Property with respect to the reimbursement to be funded by the requested disbursement, and (iii) stating that each such Person has been paid in full upon such disbursement, such Officers’ Certificate to be accompanied by lien waivers or other evidence of payment satisfactory to Lender, (d) at Lender’s option, a title search for such Individual Property indicating that such Individual Property is free from all Liens, claims and other encumbrances not previously approved by Lender, and (e) Lender shall have received such other evidence as Lender shall reasonably request that the Required Repairs at such Individual Property to be funded by the requested disbursement have been completed and are paid for upon such disbursement to Borrower. Lender shall not be required to make disbursements from the Required Repair Account with respect to any Individual Property unless such requested disbursement is in an amount equal to or greater than the Minimum Disbursement Amount (or a lesser amount if the total amount in the Required Repair Account is less than Minimum Disbursement Amount, in which case only one disbursement of the amount remaining in the account shall be made). Lender shall not be obligated to make disbursements from the Required Repair Account with respect to an Individual Property in excess of the amount allocated for such Individual Property as set forth on Schedule IV hereof. Upon the earlier of (1) Borrower’s completion of all Required Repairs with respect to an Individual Property to the satisfaction of Lender (provided Borrower has supplied Lender with evidence satisfactory to Lender of payment of all Required Repairs applicable to such Individual Property and, if requested by Lender, waivers of liens and/or a title search of the Property or an endorsement to the mortgagee’s title insurance policy), so long as no Event of Default is then continuing, or (2) release of such Individual Property in accordance with the provisions of Section 2.5 hereof, Lender shall disburse to Borrower all remaining Required Repair Funds allocated to such Individual Property as set forth on Schedule IV hereof. Upon the payment in full by Borrower of all sums evidenced by the Note and secured by the Security Instruments and release by Lender of the Liens of the Security Instruments, Lender shall disburse to Borrower all remaining Required Repair Funds, if any.

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Section 7.2. Tax and Insurance Escrow Fund.

For each Individual Property where a Tenant pursuant to a Single Tenant Lease is not obligated to (and is not in default of its obligation to) pay Taxes and maintain Insurance for such Individual Property, Borrower shall deposit with Lender on each Payment Date (a) one-twelfth of the Taxes (the “Monthly Tax Deposit”) that Lender estimates will be payable during the next ensuing twelve (12) months, which current estimate is $39,725.61per month, in order to accumulate with Lender sufficient funds to pay all such Taxes at least thirty (30) days prior to their respective due dates; and (b) at the option of Lender, if the liability or casualty Policy maintained by Borrower covering the Properties shall not constitute an approved blanket or umbrella Policy pursuant to Section 6.1(c) hereof, or Lender shall require Borrower to obtain a separate Policy pursuant to Section 6.1(c) hereof, one-twelfth of the Insurance Premiums (the “Monthly Insurance Premium Deposit”) that Lender estimates will be payable for the renewal of the coverage afforded by the Policies upon the expiration thereof in order to accumulate with Lender sufficient funds to pay all such Insurance Premiums at least thirty (30) days prior to the expiration of the Policies (all such amounts in (a) and (b) above, collectively the “Tax and Insurance Escrow Fund”). On the Closing Date, Borrower shall deposit with Lender an amount equal to $115,467.33 for deposit into the Tax and Insurance Escrow Fund for the payment of Taxes. The Tax and Insurance Escrow Fund and the payments of interest or principal or both, payable pursuant to the Note and this Agreement, shall be added together and shall be paid as an aggregate sum by Borrower to Lender. So long as no Event of Default is continuing, Lender will apply the Tax and Insurance Escrow Fund to payments of Taxes and Insurance Premiums required to be made by Borrower pursuant to Sections 5.1.2 and 6.1 hereof, respectively. In making any payment relating to the Tax and Insurance Escrow Fund, Lender may do so according to any bill, statement or estimate procured from the appropriate public office (with respect to Taxes) or insurer or agent (with respect to Insurance Premiums), without inquiry into the accuracy of such bill, statement or estimate or into the validity of any tax, assessment, sale, forfeiture, tax lien or title or claim thereof. If the amount of the Tax and Insurance Escrow Fund shall exceed the amounts due for Taxes and Insurance Premiums pursuant to Sections 5.1.2 and 6.1 hereof, respectively, then Lender shall, in its sole discretion, return any excess to Borrower or credit such excess against future payments to be made to the Tax and Insurance Escrow Fund. In allocating such excess, Lender may interact with the Person shown on the records of Lender to be the owner of the Properties. Any amount remaining in the Tax and Insurance Escrow Fund after the Debt has been paid in full shall be returned to Borrower. If at any time Lender reasonably determines that the Tax and Insurance Escrow Fund is not or will not be sufficient to pay Taxes and Insurance Premiums by the dates set forth in clauses (a) and (b) of the first sentence of this Section 7.2, Lender shall notify Borrower in writing of such determination and Borrower shall increase its monthly payments to Lender by the amount that Lender estimates is sufficient to make up the deficiency at least thirty (30) days prior to delinquency of the Taxes and/or thirty (30) days prior to expiration of the Policies, as the case may be. In the event an Individual Property is released from the Lien of its related Security Instrument in accordance with Section 2.5 hereof, (a) any amount held in the Tax Account and the Insurance Premium Account and allocated for such Individual Property shall be returned to Borrower and (b) the Monthly Tax Deposit shall be reduced by the monthly deposit allocated for such Individual Property.

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Section 7.3. Replacements and Replacement Reserve Fund.

7.3.1. Deposits to Replacement Reserve Fund.

For each Individual Property where a Tenant pursuant to a Single Tenant Lease is not obligated to (and is not in default of its obligation to) undertake repairs and maintenance directly, Borrower shall pay to Lender on each Payment Date $16,086.10 (the “Replacement Reserve Monthly Deposit”) to be due for replacements and repairs required to be made to the Properties during the calendar year (collectively, the “Replacements”). Amounts so deposited shall hereinafter be referred to as the “Replacement Reserve Fund”. Lender may reassess its estimate of the amount necessary for the Replacement Reserve Fund from time to time, and, following such reassessment, may increase the monthly amounts required to be deposited into the Replacement Reserve Fund upon thirty (30) days notice to Borrower if Lender determines in its reasonable discretion that an increase is necessary to maintain the proper maintenance and operation of the Properties. In the event an Individual Property is released from the Lien of its related Security Instrument in accordance with Section 2.5 hereof, (a) any amount held in the Replacement Reserve Account and allocated for such Individual Property shall be returned to Borrower and (b) the Replacement Reserve Monthly Deposit shall be reduced by the monthly deposit allocated for such Individual Property as set forth on Schedule VII hereof.

7.3.2. Disbursements from Replacement Reserve Account.

(a) Lender shall make disbursements from the Replacement Reserve Account to reimburse Borrower only for the costs of the Replacements. Lender shall not be obligated to make disbursements from the Replacement Reserve Account to reimburse Borrower for the costs of routine maintenance to an Individual Property or for costs which are to be reimbursed from the Required Repair Fund. Lender shall not be obligated to make disbursements from the Replacement Reserve Account with respect to an Individual Property in excess of the amount allocated for such Individual Property as set forth on Schedule VII hereof.

(b) Lender shall, upon written request from Borrower and satisfaction of the requirements set forth in this Section 7.3.2, disburse to Borrower amounts from the Replacement Reserve Account necessary to reimburse Borrower for the actual approved costs and Replacements upon completion of such Replacements (or, upon partial completion in the case of Replacements made pursuant to Section 7.3.2(e)) as determined by Lender. In no event shall Lender be obligated to disburse funds from the Replacement Reserve Account if an Event of Default exists.

(c) Each request for disbursement from the Replacement Reserve Account shall be in a form specified or approved by Lender and shall specify (i) the specific Replacements for which the disbursement is requested, (ii) the quantity and price of each item purchased, if the Replacement includes the purchase or replacement of specific items, (iii) the price of all materials (grouped by type or category) used in any Replacement other than the purchase or replacement of specific items, and (iv) the cost of all contracted labor or other services applicable to each Replacement for which the disbursement is requested. With each request Borrower shall certify that, to Borrower’s knowledge, all Replacements have been made in accordance with all applicable Legal Requirements of any Governmental Authority having

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jurisdiction over the applicable Individual Property to which the Replacements are being provided. Each request for disbursement shall include copies of invoices for all items or materials purchased and all contracted labor or services provided and, unless Lender has agreed to issue joint checks as described below in connection with a particular Replacement, each request shall include evidence satisfactory to Lender of payment of all such amounts. Except as provided in Section 7.3.2(e), each request for disbursement from the Replacement Reserve Account shall be made only after completion of the Replacement for which disbursement is requested. Borrower shall provide Lender evidence of completion satisfactory to Lender in its reasonable judgment.

(d) Borrower shall pay all invoices in connection with the Replacements with respect to each request for disbursement prior to submitting such request for disbursement from the Replacement Reserve Account or, at the request of Borrower, Lender will issue joint checks, payable to Borrower and the contractor, supplier, materialman, mechanic, subcontractor or other party to whom payment is due in connection with a Replacement. In the case of payments made by joint check, Lender may require a waiver of lien from each Person receiving payment prior to Lender’s disbursement from the Replacement Reserve Account. In addition, as a condition to any disbursement, Lender may require Borrower to obtain lien waivers from each contractor, supplier, materialman, mechanic or subcontractor who receives payment in an amount equal to or greater than $25,000 for completion of its work or delivery of its materials. Any lien waiver delivered hereunder shall conform to the requirements of Applicable Law and shall cover all work performed and materials supplied (including equipment and fixtures) for the applicable Individual Property by that contractor, supplier, subcontractor, mechanic or materialman through the date covered by the current reimbursement request (or, in the event that payment to such contractor, supplier, subcontractor, mechanic or materialmen is to be made by a joint check, the release of lien shall be effective through the date covered by the previous release of funds request).

(e) If the contractor performing such Replacement requires periodic payments pursuant to terms of a written contract (and if such contract is for work the cost of which exceeds $25,000.00 and Lender has approved in writing in advance such contract), a request for reimbursement from the Replacement Reserve Account may be made after completion of a portion of the work under such contract, provided (A) such contract requires payment upon completion of such portion of the work, (B) the materials for which the request is made are on site at the applicable Individual Property and are properly secured or have been installed in such Individual Property, (C) all other conditions in this Section 7.3 for disbursement have been satisfied, (D) funds remaining in the Replacement Reserve Account are, in Lender’s judgment, sufficient to complete such Replacement and other Replacements when required, and (E) if required by Lender, each contractor or subcontractor receiving payments under such contract shall provide a waiver of lien with respect to amounts which have been paid to that contractor or subcontractor.

(f) Borrower shall not make a request for disbursement from the Replacement Reserve Account more frequently than once in any calendar month and (except in connection with the final disbursement) the total cost of all Replacements in any request shall not be less than Minimum Disbursement Amount.

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7.3.3. Performance of Replacements.

(a) Borrower shall make Replacements when required in order to keep each Individual Property in condition and repair consistent with other similar properties in the same market segment in the metropolitan area in which the respective Individual Property is located, and to keep each Individual Property or any portion thereof from deteriorating. Borrower shall complete all Replacements in a good and workmanlike manner as soon as practicable following the commencement of making each such Replacement.

(b) Lender reserves the right, at its option, to approve all contracts or work orders with materialmen, mechanics, suppliers, subcontractors, contractors or other parties providing labor or materials in connection with the Replacements with respect to each Individual Property. Upon Lender’s request, Borrower shall assign any contract or subcontract to Lender.

(c) In the event Lender determines in its reasonable discretion that any Replacement is not being performed in a workmanlike or timely manner or that any Replacement has not been completed in a workmanlike or timely manner, Lender shall have the option to withhold disbursement for such unsatisfactory Replacement and to proceed under existing contracts or to contract with third parties to complete such Replacement and to apply the Replacement Reserve Fund toward the labor and materials necessary to complete such Replacement, without providing any prior notice to Borrower and to exercise any and all other remedies available to Lender upon an Event of Default hereunder.

(d) In order to facilitate Lender’s completion or making of the Replacements pursuant to Section 7.3.3(c) above, Borrower grants Lender the right to enter onto any Individual Property and perform any and all work and labor necessary to complete or make the Replacements and/or employ watchmen to protect such Individual Property from damage. All sums so expended by Lender, to the extent not from the Replacement Reserve Fund, shall be deemed to have been advanced under the Loan to Borrower and secured by the Security Instruments. For this purpose, Borrower constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake the Replacements in the name of Borrower. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked. Borrower empowers said attorney-in-fact as follows: (i) to use any funds in the Replacement Reserve Account for the purpose of making or completing the Replacements; (ii) to make such additions, changes and corrections to the Replacements as shall be necessary or desirable to complete the Replacements; (iii) to employ such contractors, subcontractors, agents, architects and inspectors as shall be required for such purposes; (iv) to pay, settle or compromise all existing bills and claims which are or may become a Lien against any Individual Property, or as may be necessary or desirable for the completion of the Replacements, or for clearance of title; (v) to execute all applications and certificates in the name of Borrower which may be required by any of the contract documents; (vi) to prosecute and defend all actions or proceedings in connection with any Individual Property or the rehabilitation and repair of any Individual Property; and (vii) to do any and every act which Borrower might do in its own behalf to fulfill the terms of this Agreement.

(e) Nothing in this Section 7.3.3 shall: (i) make Lender responsible for making or completing the Replacements; (ii) require Lender to expend funds in addition to

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the Replacement Reserve Fund to make or complete any Replacement; (iii) obligate Lender to proceed with the Replacements; or (iv) obligate Lender to demand from Borrower additional sums to make or complete any Replacement.

(f) Borrower shall permit Lender and Lender’s agents and representatives (including Lender’s engineer, architect, or inspector) or third parties making Replacements pursuant to this Section 7.3.3 to enter onto each Individual Property during normal business hours (subject to the rights of Tenants under their Leases) to inspect the progress of any Replacements and all materials being used in connection therewith, to examine all plans and shop drawings relating to such Replacements which are or may be kept at each Individual Property, and to complete any Replacements made pursuant to this Section 7.3.3. Borrower shall cause all contractors and subcontractors to cooperate with Lender or Lender’s representatives or such other persons described above in connection with inspections described in this Section 7.3.3(f) or the completion of Replacements pursuant to this Section 7.3.3.

(g) Lender may require an inspection of an Individual Property at Borrower’s expense prior to making a monthly disbursement from the Replacement Reserve Account with respect to each Individual Property in order to verify completion of the Replacements for which reimbursement is sought. Lender may require that such inspection be conducted by an appropriate independent qualified professional selected by Lender and/or may require a copy of a certificate of completion by an independent qualified professional acceptable to Lender prior to the disbursement of any amounts from the Replacement Reserve Account. Borrower shall pay the expense of the inspection as required hereunder, whether such inspection is conducted by Lender or by an independent qualified professional.

(h) The Replacements and all materials, equipment, fixtures, or any other item comprising a part of any Replacement shall be constructed, installed or completed, as applicable, free and clear of all mechanic’s, materialmen’s or other Liens.

(i) Before each disbursement from the Replacement Reserve Account with respect to each Individual Property, Lender may require Borrower to provide Lender with a search of title of the applicable Individual Property effective to the date of the disbursement, which search shows that no mechanic’s or materialmen’s Liens or other Liens of any nature have been placed against the applicable Individual Property since the date of recordation of the related Security Instrument and that title to such Individual Property is free and clear of all Liens (other than the Lien of the related Security Instrument and other Permitted Encumbrances).

(j) All Replacements shall comply with all applicable Legal Requirements of all Governmental Authorities having jurisdiction over the applicable Individual Property and applicable insurance requirements including applicable building codes, special use permits, environmental regulations, and requirements of insurance underwriters.

(k) In addition to any insurance required under the Loan Documents, Borrower shall provide or cause to be provided workmen’s compensation insurance, builder’s risk, and public liability insurance and other insurance to the extent required under Applicable Law in connection with a particular Replacement. All such policies shall be in form and amount reasonably satisfactory to Lender. All such policies which can be endorsed with standard

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mortgagee clauses making loss payable to Lender or its assigns shall be so endorsed. Certified copies of such policies shall be delivered to Lender.

7.3.4. Failure to Make Replacements.

(a) It shall be an Event of Default under this Agreement if Borrower fails to comply with any provision of this Section 7.3 and such failure is not cured within thirty (30) days after written notice from Lender. Upon the occurrence of an Event of Default, Lender may use the Replacement Reserve Fund (or any portion thereof) for any purpose, including but not limited to completion of the Replacements as provided in Sections 7.3.3(c) and 7.3.3(d), or for any other repair or replacement to any Individual Property or toward payment of the Debt in such order, proportion and priority as Lender may determine in its sole discretion. Lender’s right to withdraw and apply the Replacement Reserve Funds shall be in addition to all other rights and remedies provided to Lender under this Agreement and the other Loan Documents.

(b) Nothing in this Agreement shall obligate Lender to apply all or any portion of the Replacement Reserve Fund on account of an Event of Default to payment of the Debt or in any specific order or priority.

7.3.5. Balance in the Replacement Reserve Account.

The insufficiency of any balance in the Replacement Reserve Account shall not relieve Borrower from its obligation to fulfill all preservation and maintenance covenants in the Loan Documents.

Section 7.4. Rollover Reserve Fund.

7.4.1. Deposits to Rollover Reserve Fund.

Borrower shall pay to Lender on each Payment Date the sum of $64,919.21 (the “Rollover Reserve Deposit”), which amounts, together with all Lease Termination Payments shall be deposited in the Rollover Reserve Account with and held by Lender for tenant improvement and leasing commission obligations incurred following the Closing Date. Amounts so deposited shall hereinafter be referred to as the “Rollover Reserve Fund”.

7.4.2. Letter of Credit.

(a) In lieu of Borrower making deposits into the Rollover Reserve Account pursuant to Section 7.4.1 hereof, Borrower may from time to time deliver to Lender a Letter of Credit in accordance with the provisions of this Section 7.4.2. Any Letter of Credit from time to time delivered in lieu of Borrower making deposits into the Rollover Reserve Account shall be in an amount not less than the amount of deposits required to be made by Borrower to such Account for the twelve (12) calendar month period following the date such Letter of Credit is delivered to Lender. If during the term of any Letter of Credit delivered by Borrower to this Section 7.4.2, the amount of deposits required to be made by Borrower to the applicable Account for such twelve (12) calendar month period shall increase to an amount exceeding the amount of such Letter of Credit, Borrower shall deliver to Lender an amendment to such Letter of Credit or a replacement Letter of Credit which shall be in an amount not less

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than the aggregate amount of such deposits required to be made during such twelve (12) calendar month period.

(b) Borrower shall give Lender no less than ten (10) days written notice of Borrower’s election to deliver a Letter of Credit together with a draft of the proposed Letter of Credit and Borrower shall pay to Lender all of Lender’s reasonable out-of-pocket costs and expenses in connection therewith. No party other than Lender shall be entitled to draw on any such Letter of Credit. Upon fifteen (15) days notice to Lender, Borrower may replace a Letter of Credit with a cash deposit to the Rollover Reserve Account if such Letter of Credit relates to the Rollover Reserve Account. Prior to the return of a Letter of Credit by Lender to Borrower, Borrower shall deposit an amount equal to the amount that would be on deposit in the Rollover Reserve Account, if such Letter of Credit had not been delivered.

(c) Each Letter of Credit delivered hereunder shall be additional security for the payment of the Debt. Upon the occurrence and during the continuance of an Event of Default, Lender shall have the right, at its option, to draw on any Letter of Credit and to apply all or any part thereof to the payment of the items for which such Letter of Credit was established or to apply each such Letter of Credit to payment of the Debt in such order, proportion or priority as Lender may determine. Any such application to the Debt shall be subject to the terms and conditions hereof relating to application of sums to the Debt. Lender shall have the additional rights to draw in full any Letter of Credit: (i) if Lender has received a notice from the issuing bank that the Letter of Credit will not be renewed and a substitute Letter of Credit is not provided at least twenty (20) days prior to the date on which the outstanding Letter of Credit is scheduled to expire; (ii) if Lender has not received a notice from the issuing bank that it has renewed the Letter of Credit at least twenty (20) days prior to the date on which such Letter of Credit is scheduled to expire and a substitute Letter of Credit is not provided at least twenty (20) days prior to the date on which the outstanding Letter of Credit is scheduled to expire; (iii) upon receipt of notice from the issuing bank that the Letter of Credit will be terminated (except if the termination of such Letter of Credit is permitted pursuant to the terms and conditions hereof or a substitute Letter of Credit is provided by no later than twenty (20) days prior to such termination); (iv) if Lender has received notice that the bank issuing the Letter of Credit shall cease to be an Approved Bank and Borrower has not substituted a Letter of Credit from an Approved Bank within fifteen (15) days after notice; and/or (v) if the bank issuing the Letter of Credit shall fail to (A) issue a replacement Letter of Credit in the event the original Letter of Credit has been lost, mutilated, stolen and/or destroyed or (B) consent to the transfer of the Letter of Credit to any Person designated by Lender. If Lender draws upon a Letter of Credit pursuant to the terms and conditions of this Agreement, provided no Event of Default exists, Lender shall apply all or any part thereof for the purposes for which such Letter of Credit was established and, provided, further, that in the event Lender draws on any Letter of Credit upon the happening of an event specified in clauses (i), (ii), (iii) or (iv) above (but specifically excluding any draw related to the occurrence of an Event of Default), Lender shall return to Borrower the funds so drawn in the event Borrower provides Lender with a replacement Letter of Credit issued by an Approved Bank within thirty (30) days following such draw. Notwithstanding anything to the contrary contained in the above, Lender is not obligated to draw any Letter of Credit upon the happening of an event specified in (i), (ii), (iii), (iv) or (v) above and shall not be liable for any losses sustained by Borrower due to the insolvency of the bank issuing the Letter of Credit if Lender has not drawn the Letter of Credit.

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7.4.3. Withdrawal of Rollover Reserve Funds.

Lender shall make disbursements from the Rollover Reserve Fund for tenant improvement and leasing commission obligations incurred by Borrower. All such expenses shall be approved by Lender in its sole discretion. Provided no Event of Default is then continuing, Lender shall make disbursements as requested by Borrower on a quarterly basis in increments of no less than the Minimum Disbursement Amount upon delivery by Borrower of Lender’s standard form of draw request accompanied by copies of paid invoices for the amounts requested and, if required by Lender, lien waivers and releases from all parties furnishing materials and/or services in connection with the requested payment. Lender may require an inspection of the applicable Individual Property at Borrower’s expense prior to making a quarterly disbursement in order to verify completion of improvements for which reimbursement is sought.

Section 7.5. Art Van (Bedford Park) Lease Reserve Fund.

(a) On the Closing Date, Borrower shall deposit with Lender an amount equal to $252,515.00. Such amount shall be held by Lender in accordance with Section 7.7 hereof, and shall hereinafter be referred to as the “Art Van (Bedford Park) Lease Reserve Fund.” So long as no Event of Default is continuing, on each Payment Date after the Closing Date, Lender will disburse an amount equal to $42,252.50 from the Art Van (Bedford Park) Lease Reserve Fund to the Lockbox Account for application in accordance with Section 3.7(a) hereof until the amount remaining in the Art Van (Bedford Park) Lease Reserve Fund is reduced to zero. Upon the occurrence of an Event of Default, Lender, at its option, may withdraw all amounts from the Art Van (Bedford Park) Lease Reserve Fund and apply such funds toward the payment of the Debt in such order, proportion and priority as Lender may determine in its sole discretion.

(b) On the Closing Date, Borrower shall deposit with Lender an amount equal to $105,631.35. Such amount shall be held by Lender in accordance with Section 7.7 hereof and, provided no Event of Default is continuing, shall be released to Borrower upon delivery of evidence reasonably satisfactory to Lender confirming that leasing commission in the amount of $105,631.35 is due and payable by Borrower to Tenant under the Art Van Lease.

Section 7.6. Excess Cash Flow Reserve Fund.

7.6.1. Deposits to Excess Cash Reserve Fund.

All amounts deposited pursuant to Section 3.7(b)(ix) hereof shall be hereinafter referred to as the “Excess Cash Reserve Fund”.

7.6.2. Withdrawal of Excess Cash Flow Reserve Funds.

The Excess Cash Reserve Fund may be applied by Lender to any other Reserve Fund, as determined by Lender, or held by Lender in the Excess Cash Reserve Account as additional collateral for the Loan; provided, however, that if no Event of Default exists and is continuing, on the Payment Date occurring immediately after the cessation of a Triggering Event, Lender shall disburse the Excess Cash Reserve Funds then on deposit in the Excess Cash Reserve Account to the Borrower to the account set forth in writing by Borrower, provided that no Triggering Event is then continuing.

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Section 7.7. Reserve Funds, Generally.

(a) Borrower hereby grants to Lender a first-priority perfected security interest in each of the Reserve Funds and the Accounts and in any and all monies now or hereafter deposited in each Reserve Fund and Account as additional security for payment of the Debt. Until expended or applied in accordance herewith, the Reserve Funds and the Accounts shall constitute additional security for the Debt.

(b) Notwithstanding anything to the contrary contained herein or in any other Loan Document, upon the occurrence and during the continuance of an Event of Default, Lender may, in addition to any and all other rights and remedies available to Lender, apply any sums then present in any or all of the Reserve Funds to the payment of the Debt which is then currently due and payable under the Loan Documents in any order in its sole discretion.

(c) The Reserve Funds shall not constitute trust funds and may be commingled with other monies held by Lender.

(d) The Reserve Funds shall be held in interest bearing accounts and all earnings or interest on a Reserve Fund shall be added to and become a part of such Reserve Fund and shall be disbursed in the same manner as other monies deposited in such Reserve Fund, except that earnings or interest on the Tax and Insurance Escrow Fund shall not be added to or become a part thereof and shall be the sole property of and shall be paid to Lender.

(e) Borrower shall not, without obtaining the prior written consent of Lender, further pledge, assign or grant any security interest in any Reserve Fund or Account or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statements, except those naming Lender as the secured party, to be filed with respect thereto.

(f) Borrower shall indemnify Lender and hold Lender harmless from and against any and all Losses arising from or in any way connected with the Reserve Funds or the Accounts or the performance of the obligations for which the Reserve Funds or the Accounts were established, except to the extent arising from the gross negligence or willful misconduct of Lender, its agents or employees. Borrower shall assign to Lender all rights and claims Borrower may have against all Persons supplying labor, materials or other services which are to be paid from or secured by the Reserve Funds or the Accounts; provided, however, that Lender may not pursue any such right or claim unless an Event of Default has occurred and is then continuing.

VIII. DEFAULTS

Section 8.1. Event of Default.

(a) Each of the following events shall constitute an event of default hereunder (an “Event of Default”):

(i) if (A) any Monthly Debt Service Payment or the payment due on the Maturity Date is not paid when due under the Loan Documents or (B) any other portion of the Debt is not paid when due

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beyond any applicable grace period and such non-payment continues for five (5) days following written notice to Borrower that the same is due and payable;

(ii) if any of the (X) Taxes or Other Charges (other than those payable by a Tenant under a Single Tenant Lease pursuant to the terms thereof) are not paid on or before the date when the same are due and payable and such Taxes or Other Charges are not being properly contested by Borrower as permitted hereunder or deposited in a sufficient amount with Lender in accordance with the terms of this Agreement; provided, however, no more than three (3) times during the life of the Loan, such event shall not constitute an Event of Default hereunder so long as (A) Borrower pays such Taxes or Other Charges, together with any applicable late fees or charges, within thirty (30) days of the date when due, and (B) no Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost, or (Y) Taxes or Other Charges are not paid when due and payable (and such Taxes or Other Charges are not being contested in accordance with the terms of the applicable Single Tenant Lease and in accordance with the terms of this Agreement) if such obligations are the Tenant’s obligations under the applicable Single Tenant Lease, and Borrower shall fail to pay such Taxes or Other Charges, including any penalties due thereon within the earlier of (i) forty-five (45) days after delinquency and (ii) ten (10) Business Days after Borrower becoming aware of such delinquency with respect to Taxes, and within ten (10) Business Days of Borrower becoming aware of such delinquency with respect to Other Charges;

(iii) if the Policies required to be maintained by Borrower hereunder are not kept in full force and effect or if evidence of the Policies are not delivered to Lender on request in accordance with Section 6.1;

(iv) if Borrower transfers or encumbers any portion of any of the Properties (except to the extent such transfer or encumbrance would otherwise constitute a Permitted Encumbrance pursuant to clause (d) of the definition thereof) or any direct or indirect ownership interest in a Restricted Party in violation of the provisions of Section 5.2.10 or Section 5.2.11 hereof or Article 7 of the Security Instruments;

(v) if any representation or warranty made by Borrower, Principal, if any, or Guarantor herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document furnished to Lender by or on behalf of Borrower shall have been false or misleading in any material adverse respect as of the date the representation or warranty was made;

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(vi) if Borrower, Principal, if any, Guarantor or any other guarantor or indemnitor under any guaranty or indemnity, respectively, issued in connection with the Loan shall make an assignment for the benefit of creditors;

(vii) if Borrower violates or does not comply with the provisions of Section 5.2.2, or if a receiver, liquidator or trustee shall be appointed for Borrower, Principal, if any, Guarantor or any other guarantor or indemnitor under any guarantee or indemnity, respectively issued in connection with the Loan or if Borrower, Principal, if any, Guarantor or such other guarantor or indemnitor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to the Bankruptcy Code, or any similar federal or State law, shall be filed by or against, consented to, or acquiesced in by, Borrower, Principal, Guarantor or such other guarantor or indemnitor, or if any proceeding for the dissolution or liquidation of Borrower, Principal, if any, Guarantor or such other guarantor or indemnitor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by Borrower, Principal, if any, Guarantor or such other guarantor or indemnitor, upon the same not being discharged, stayed or dismissed within sixty (60) days;

(viii) if Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;

(ix) if Borrower violates or does not comply with any of the provisions of Sections 5.1.17(b)(vi), 5.1.17(b)(vii), and 5.1.17(f), or if Borrower terminates a Material Lease without the prior written consent of Lender;

(x) if a default by Borrower has occurred and continues beyond any applicable cure period under any Management Agreement (or any Replacement Management Agreement) if such default permits the Manager thereunder to terminate or cancel such Management Agreement (or any Replacement Management Agreement) in accordance with the terms of this Agreement;

(xi) if Borrower or Principal, if any, violates or otherwise does not comply with any of the provisions of Section 4.1.36 hereof; provided, however, that any such breach shall not constitute an Event of Default if such breach is inadvertent, immaterial and non-recurring, and Borrower reasonably promptly delivers to Lender an Insolvency Opinion or a modification of the existing Insolvency Opinion within twenty (20) days of the incurrence of such action, as applicable, to the extent that such breach shall not materially negate or nullify the opinions rendered in the Insolvency Opinion delivered on the date hereof;

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(xii) subject to Borrower’s right to contest pursuant to Section 5.1.2, if any Individual Property becomes subject to any mechanic’s, materialman’s or other Lien other than a Lien that is a Permitted Encumbrance and such Lien shall remain undischarged of record (by payment, bonding or otherwise) for a period of thirty (30) days;

(xiii) subject to Borrower’s right to contest pursuant to Section 5.1.2, if any federal tax lien or state or local income tax lien is filed against Borrower, Principal, if any, Guarantor or any Individual Property and same is not discharged of record within thirty (30) days after same is filed;

(xiv) if (A) after ten (10) Business Days written notice from Lender, Borrower has not provided Lender with the written certification and evidence referred to in Section 5.2.8 hereof, (B) Borrower is a Plan or a Governmental Plan or its assets constitute Plan Assets; or (C) Borrower consummates a Prohibited Transaction or Prohibited Governmental Transaction;

(xv) if Borrower shall fail to deliver to Lender, within twenty (20) days after written request by Lender, any estoppel certificates required pursuant to the terms of Section 5.1.13(a) and (c) hereof;

(xvi) if any default occurs under any guaranty or indemnity executed in connection herewith (including the Guaranty and the Environmental Indemnity) and such default continues after the expiration of applicable grace periods, if any;

(xvii) if Borrower shall be in default beyond applicable notice and grace periods under any other mortgage, deed of trust, deed to secure debt or other security agreement covering any part of any Individual Property whether it be superior or junior in lien to the related Security Instrument;

(xviii) with respect to any term, covenant or provision set forth herein which specifically contains a written notice requirement or grace period, if Borrower shall be in default under such term, covenant or condition after Borrower’s receipt such required written notice and the expiration of such grace period contained therein;

(xix) if any of the assumptions relating to separateness contained in the Insolvency Opinion, or in any other “non-consolidation” opinion delivered to Lender in connection with the Loan, or in any other “non-consolidation” delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;

(xx) if there shall be a default under the Security Instruments or any of the other Loan Documents beyond any applicable

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notice and cure periods contained in such documents, whether as to Borrower or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;

(xxi) if Borrower shall be in default beyond applicable notice and grace periods under the La Grange REA Agreements; or

(xxii) if Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xxii) above, for ten (10) days after written notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money (including any Default relating to an obligation of a Tenant under a Lease which can be cured with the payment of a sum of money), or for thirty (30) days after written notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed ninety (90) days (subject to further extension by Lender, in Lender’s sole discretion); provided, however, that with respect to any non-monetary Default caused by a Tenant’s failure to perform its obligations under a Single Tenant Lease, such cure period shall be extended for so long as Borrower is using commercially reasonable efforts to enforce its rights and remedies under such Single Tenant Lease, provided such Default does not impair the value, use or operation of the related Individual Property and has no material effect on Borrower’s ability to perform its obligations under this Agreement.

(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any Individual Property, including declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents against Borrower and any or all of the Properties, including all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.

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Section 8.2. Remedies.

(a) Upon the occurrence of an Event of Default and during the continuance thereof, all or any one or more of the rights, powers, privileges and other remedies available to Lender against Borrower under this Agreement or any of the other Loan Documents executed and delivered by, or applicable to, Borrower or at law or in equity may be exercised by Lender at any time and from time to time, whether or not all or any of the Debt shall be declared due and payable, and whether or not Lender shall have commenced any foreclosure proceeding or other action for the enforcement of its rights and remedies under any of the Loan Documents with respect to all or any part of any Individual Property or any other Collateral. Any such actions taken by Lender shall be cumulative and concurrent and may be pursued independently, singly, successively, together or otherwise, at such time and in such order as Lender may determine in its sole discretion, to the fullest extent permitted by Applicable Law, without impairing or otherwise affecting the other rights and remedies of Lender permitted by Applicable Law, equity or contract or as set forth herein or in the other Loan Documents. Without limiting the generality of the foregoing, Borrower agrees that if an Event of Default is continuing (i) Lender is not subject to any “one action” or “election of remedies” law or rule, and (ii) all Liens and other rights, remedies or privileges provided to Lender shall remain in full force and effect until Lender has exhausted all of its remedies against the Properties and the other Collateral and each Security Instrument has been foreclosed, sold and/or otherwise realized upon in satisfaction of the Debt or the Debt has been paid in full.

(b) With respect to Borrower and the Properties, nothing contained herein or in any other Loan Document shall be construed as requiring Lender to resort to any Individual Property or Collateral for the satisfaction of any of the Debt in preference or priority to any other Individual Property or Collateral, and Lender may seek satisfaction out of all of the Properties or any other Collateral or any part thereof, in its absolute discretion in respect of the Debt. In addition, Lender shall have the right from time to time to partially foreclose the Security Instruments in any manner and for any amounts secured by the Security Instruments then due and payable as determined by Lender in its sole discretion including the following circumstances: (i) in the event Borrower defaults beyond any applicable grace period in the payment of one or more scheduled payments of principal and interest, Lender may foreclose one or more of the Security Instruments to recover such delinquent payments, or (ii) in the event Lender elects to accelerate less than the entire outstanding principal balance of the Loan, Lender may foreclose one or more of the Security Instruments to recover so much of the principal balance of the Loan as Lender may accelerate and such other sums secured by one or more of the Security Instruments as Lender may elect. Notwithstanding one or more partial foreclosures, the Properties shall remain subject to the Security Instruments to secure payment of sums secured by the Security Instruments and not previously recovered.

(c) Lender shall have the right, from time to time, to sever the Note and the other Loan Documents into one or more separate notes, mortgages and other security documents (the “Severed Loan Documents”) in such denominations as Lender shall determine in its sole discretion for purposes of evidencing and enforcing its rights and remedies provided hereunder. Borrower shall execute and deliver to Lender from time to time, promptly after the request of Lender, a severance agreement and such other documents as Lender shall request in order to effect the severance described in the preceding sentence, all in form and substance

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reasonably satisfactory to Lender. Borrower hereby absolutely and irrevocably appoints Lender as its true and lawful attorney, coupled with an interest, in its name and stead to make and execute all documents necessary or desirable to effect the aforesaid severance, Borrower ratifying all that its said attorney shall do by virtue thereof; provided, however, Lender shall not make or execute any such documents under such power until three (3) days after written notice has been given to Borrower by Lender of Lender’s intent to exercise its rights under such power. The Severed Loan Documents shall not contain any representations, warranties or covenants not contained in the Loan Documents and any such representations and warranties contained in the Severed Loan Documents will be given by Borrower only as of the Closing Date.

Section 8.3. Remedies Cumulative; Waivers.

The rights, powers and remedies of Lender under this Agreement shall be cumulative and not exclusive of any other right, power or remedy which Lender may have against Borrower pursuant to this Agreement or the other Loan Documents, or existing at law or in equity or otherwise. Lender’s rights, powers and remedies may be pursued singularly, concurrently or otherwise, at such time and in such order as Lender may determine in Lender’s sole discretion. No delay or omission to exercise any remedy, right or power accruing upon an Event of Default shall impair any such remedy, right or power or shall be construed as a waiver thereof, but any such remedy, right or power may be exercised from time to time and as often as may be deemed expedient. A waiver of one or more Defaults or Events of Default with respect to Borrower shall not be construed to be a waiver of any subsequent Default or Event of Default by Borrower or to impair any remedy, right or power consequent thereon.

IX. SPECIAL PROVISIONS

Section 9.1. Sale of Notes and Securitization.

(a) Lender shall have the right, at any time, (i) to sell or otherwise transfer the Loan (or any portion thereof and/or interest therein) and any or all servicing rights with respect thereto, (ii) to grant participation interests in the Loan (or any portion thereof and/or interest therein) or (iii) to securitize the Loan (or any portion thereof and/or interest therein) in a single asset securitization or pooled asset securitization. Each of the transactions referred to in clauses (i), (ii) and (iii) above shall each hereinafter be referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization.” Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities”.

(b) In each case, if requested by Lender in writing (electronic mail addressed to Asset Manager at portfolioservicing@spiritrealty.com, together with duplicate written notice provided in accordance with Section 10.6 hereof) setting forth reasonable detail of such request, Borrower and Guarantor shall use commercially reasonable efforts to assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies in connection with any Secondary Market Transaction, including to:

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(i) provide such financial and other information with respect to the Properties, Borrower, Guarantor and Manager, if any, not previously delivered to Lender and otherwise reasonably requested, (ii) provide budgets relating to the Properties not previously delivered to Lender and otherwise reasonably requested, and (iii) perform or permit or cause to be performed or permitted site inspection, appraisals, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’s), engineering reports and other due diligence investigations of the Properties, as may be reasonably requested by the holder of the Note or the Rating Agencies or as may be necessary or appropriate in connection with the Securitization (in each case of the foregoing (i), (ii) and (iii), to the extent relating to, based upon or including information regarding the Properties, Borrower, Guarantor, Manager, if any, and/or the Loan, the “Provided Information”), together, if customary, with appropriate verification and/or consents of the Provided Information through opinions of counsel of independent attorneys acceptable to Lender and the Rating Agencies;

(ii) if reasonably requested by Lender, participate in any meetings with Lender or any third parties related to the Secondary Market Transaction (such as banks, investors and Rating Agencies);

(iii) if required by the Rating Agencies, deliver (i) a revised Insolvency Opinion, (ii) revised opinions of counsel as to due execution and enforceability with respect to the Properties, Borrower, Guarantor, Principal, if any, and their respective Affiliates and the Loan Documents, and (iii) revised organizational documents for Borrower and Principal, if any (including such revisions as are necessary to comply with the provisions of Section 4.1.36 hereof), which counsel, opinions and organizational documents shall be reasonably satisfactory to Lender and the Rating Agencies;

(iv) if required by the Rating Agencies, deliver such additional tenant estoppel letters, subordination agreements or other agreements from parties to agreements that affect the Properties, which estoppel letters, subordination agreements or other agreements shall be reasonably satisfactory to Lender and the Rating Agencies, which shall be deemed satisfactory if any such third party complies with its contractual obligations to provide such agreements or estoppel in accordance with the applicable agreement;

(v) execute such amendments to the Loan Documents as may be reasonably requested by the holder of the Note or the Rating Agencies or otherwise to effect the applicable Secondary Market Transaction; provided, however, that Borrower or Guarantor shall not be required to modify or amend any Loan Document if such modification or amendment would, except for modifications and amendments required to

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be made pursuant to subsection (vi) below, (i) change the interest rate, the stated maturity or the amortization of principal set forth in the Note, or (ii) otherwise modify or amend any material term or obligation set forth in the Loan Documents;

(vi) if Lender elects, in its sole discretion, prior to or upon a Secondary Market Transaction, to split the Loan into two or more parts (up to seven separate Mortgage Loans), or the Note into multiple component notes or tranches which may have different interest rates, amortization payments, principal amounts, payment priorities and maturities (provided, however, that the total of the Loan amount of such component notes or tranches immediately after such split shall equal the Loan amount outstanding immediately prior to such split, and the weighted average interest rate of all such component notes or tranches immediately after such split shall equal the weighted average interest rate immediately prior to such split, provided any principal payment shall not result in “rate creep” except for payments of principal made after the occurrence of an Event of Default, or in connection with the application of any Net Proceeds after a Casualty or Condemnation), Borrower and Guarantor agree to cooperate with Lender in connection with the foregoing and to execute any reasonably required modifications and amendments to the Note, this Agreement and the Loan Documents and to provide opinions necessary to effectuate the same. The Note or its components may be assigned different interest rates, so long as the initial weighted average of such interest rates does not exceed the Applicable Interest Rate;

(vii) make such representations and warranties as of the closing date of the Secondary Market Transaction with respect to the Properties, Borrower, Guarantor, and the Loan Documents as are customarily provided in such transactions and as may be reasonably requested by the holder of the Note or the Rating Agencies and consistent with the facts covered by such representations and warranties as they exist on the date thereof, including the representations and warranties made in the Loan Documents; and

(viii) after receipt of written notice from Lender that the foregoing is required to comply with applicable Legal Requirements, supply to Lender such documentation, financial statements and reports in form and substance required for Lender to comply with Regulation AB of the federal securities law, if applicable.

(c) All reasonable third party costs and expenses incurred by Lender or Borrower or Guarantor in connection with Borrower’s or Guarantor’s complying with requests made under this Section 9.1 shall be paid by Borrower and Guarantor.

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Section 9.2. Securitization Indemnification.

(a) Borrower and Guarantor understand that certain of the Provided Information may be included in disclosure documents in connection with the Securitization, including a prospectus supplement, private placement memorandum, offering circular or other offering document (each a “Disclosure Document”) and may also be included in filings (an “Exchange Act Filing”) with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to Investors or prospective Investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, upon Lender’s written request (electronic mail addressed to Asset Manager at portfolioservicing@spiritrealty.com, together with duplicate written notice provided in accordance with Section 10.6 hereof), Borrower and Guarantor will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects.

(b) Upon Lender’s written request (electronic mail addressed to Asset Manager at portfolioservicing@spiritrealty.com, together with duplicate written notice provided in accordance with Section 10.6 hereof), Borrower and Guarantor agree to provide in connection with each of (i) a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, or (iii) collateral and structured term sheets or similar materials, an indemnification certificate qualified solely to the extent it relates to Borrower, Guarantor, the Properties, Manager and/or the Loan (A) certifying that Borrower has carefully examined such memorandum or prospectus or term sheets, as applicable, including the sections entitled “Special Considerations,” “Description of the Mortgages,” “Description of the Mortgage Loans and Mortgaged Property,” “The Manager,” “The Borrower” and “Certain Legal Aspects of the Mortgage Loan,” and such sections (and any other sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (B) indemnifying Lender (and for purposes of this Section 9.2, Lender hereunder shall include its officers and directors), the Affiliate of Barclays that has filed the registration statement relating to the Securitization (the “Registration Statement”), each of its respective directors, each of its respective officers who have signed the Registration Statement and each Person who controls the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Lender Group”), and Barclays, its directors and each Person who controls Barclays within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, damages or liabilities (collectively, the “Liabilities”) to which Lender, the Lender Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections described in clause (A) above, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated in such sections or necessary in order to make the statements in such sections or in light of the circumstances under which they were made, not misleading and (C) agreeing to reimburse Lender, the Lender Group and the Underwriter Group for any reasonable legal or other expenses reasonably incurred by Lender the Lender Group and the Underwriter Group in connection with

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investigating or defending the Liabilities; provided, however, that Borrower and Guarantor will be liable in any such case under clauses (B) or (C) above only to the extent that any such Liability arises out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by or on behalf of Borrower and Guarantor in connection with the preparation of the memorandum or prospectus or in connection with the underwriting of the debt, including financial statements of Borrower and Guarantor, operating statements, rent rolls, environmental site assessment reports (only to the extent Borrower provided information with respect to such reports), property condition reports (only to the extent Borrower provided information with respect to such reports), in each case prepared by or on behalf of Borrower, with respect to the Properties and any other Provided Information. This indemnification will be in addition to any liability which Borrower and Guarantor may otherwise have. Moreover, the indemnification provided for in clauses (B) and (C) above shall be effective whether or not an indemnification certificate described in (A) above is provided and shall be applicable based on information previously provided by Borrower and Guarantor or their respective Affiliates if Borrower and Guarantor do not provide the indemnification certificate.

(c) In connection with filings under the Exchange Act, Borrower and Guarantor agree to indemnify (i) Lender, the Lender Group and the Underwriter Group for Liabilities to which Lender, the Lender Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon the omission or alleged omission to state in the Provided Information a material fact required to be stated in the Provided Information in order to make the statements in the Provided Information, in light of the circumstances under which they were made not misleading and (ii) reimburse Lender, the Lender Group or the Underwriter Group for any reasonable third party, out-of-pocket legal or other expenses reasonably incurred by Lender, the Lender Group or the Underwriter Group in connection with defending or investigating such Liabilities.

(d) Promptly after receipt by an indemnified party under this Section 9.2 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 9.2, notify the indemnifying party in writing of the commencement thereof, but the omission to so notify the indemnifying party will not relieve the indemnifying party from any liability which the indemnifying party may have to any indemnified party hereunder except to the extent that failure to notify causes prejudice to the indemnifying party. In the event that any action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it (or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel satisfactory to such indemnified party. After notice from the indemnifying party to such indemnified party under this Section 9.2 the indemnifying party shall not be responsible for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation; provided, however, if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party, the indemnified

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party or parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. The indemnifying party shall not be liable for the expenses of more than one such separate counsel unless an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another indemnified party.

(e) In order to provide for just and equitable contribution in circumstances in which the indemnifications provided for in Section 9.2(b) or (c) is or are for any reason held to be unenforceable by an indemnified party in respect of any Liabilities (or action in respect thereof) referred to therein which would otherwise be indemnifiable under Section 9.2(b) or (c), the indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities (or action in respect thereof); provided, however, that no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. In determining the amount of contribution to which the respective parties are entitled, the following factors shall be considered: (i) Lender’s and Borrower’s and Guarantor’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender, Borrower and Guarantor hereby agree that it would not be equitable if the amount of such contribution were determined solely by pro rata or per capita allocation.

(f) The liabilities and obligations of Borrower and Guarantor and Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.

Section 9.3. Servicer.

(a) At the option of Lender, the Loan may be serviced and administered by a servicer, special servicer, certificate administrator and/or trustee selected by Lender (collectively, the “Servicer”) and Lender may delegate all or any portion of its responsibilities under this Agreement and the other Loan Documents to such Servicer pursuant to a servicing agreement between Lender and such Servicer, provided, however, any engagement of the Servicer shall not release the Lender from any of its obligations or responsibilities hereunder. Upon the appointment of a Servicer, to the extent of the delegation to such Servicer, the term “Lender” shall be deemed to include the Servicer. Borrower shall be responsible for payment of (i) any reasonable out-of-pocket expenses of Servicer (including reasonable attorneys’ fees and disbursements) in connection with any release of the Property, any Substitution, any prepayment, defeasance, assumption, amendment or modification of the Loan, any documents or matters requested by Borrower, and (ii) all actual out-of-pocket costs and expenses and all fees of Lender and Servicer, operating advisor, trust advisor and Trustee, and all other actual expenses of any Securitization, in each case resulting from, or incurred during the existence of, Defaults and reasonably foreseeable Defaults by Borrower, the Loan going into special servicing or requests by Borrower (including enforcement expenses and any liquidation fees, workout fees, special servicing fees following the Loan going into special servicing, operating advisor or trust advisor consulting fees or any other similar fees and interest payable on advances made by the Servicer

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or the Trustee with respect to delinquent Debt Service payments or expenses of curing Borrower’s Defaults under the Loan Documents, any expenses paid by Servicer or a trustee in respect of the protection and preservation of the Property, such as payment of taxes and insurance premiums, together with interest on any advances in respect thereof), the costs of all opinions, property inspections and/or appraisals (or any updates to any existing inspection or appraisal) that Servicer may be required to obtain due to a request by Borrower or the occurrence of a Default or reasonably foreseeable Default, together with interest on any advances in respect thereof, and, after the occurrence of a Default or to the extent that Borrower is required to pay such amounts pursuant to the terms of this Agreement or pursuant to any Applicable Law, any taxes payable from the assets of the Securitization and tax related expenses.

(b) Notwithstanding Section 9.3.1(a) hereof, Borrower shall not be responsible for the regular master servicing fee or fees or expenses which are customarily borne by a servicer or trustee without reimbursement from a securitization trust.

Section 9.4. Exculpation.

(a) Except as otherwise provided herein, in the Security Instruments or in the other Loan Documents, Lender shall not enforce the liability and obligation of Borrower or Guarantor (with respect to the Loan Documents to which Guarantor is a party) to perform and observe the obligations contained in this Agreement, the Note or the Security Instruments by any action or proceeding wherein a money judgment shall be sought against Borrower and/or Guarantor, as applicable, except that Lender may bring a foreclosure action, action for specific performance or other appropriate action or proceeding to enable Lender to enforce and realize upon this Agreement, the Note, the Security Instruments, the other Loan Documents, and the interest in the Properties, the Rents and any other collateral given to Lender created by this Agreement, the Note, the Security Instruments and the other Loan Documents; provided, however, that any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Properties, in the Rents and in any other collateral given to Lender. Lender, by accepting this Agreement, the Note and the Security Instruments, agrees that it shall not, except as otherwise provided herein, sue for, seek or demand any deficiency judgment against Borrower in any such action or proceeding, under or by reason of or under or in connection with this Agreement, the Note, the Security Instruments or the other Loan Documents. The provisions of this Section 9.4 shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by this Agreement, the Note, the Security Instruments or the other Loan Documents; (ii) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under the Security Instruments; (iii) affect the validity or enforceability of any indemnity (including the Environmental Indemnity), guaranty (including the Guaranty), master lease or similar instrument made in connection with this Agreement, the Note, the Security Instruments, or the other Loan Documents; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of the Assignments of Leases; (vi) impair the right of Lender to enforce the provisions of Section 10.2 of the Security Instruments or Sections 4.1.10, 4.1.30, 5.1.9 and 5.2.8 hereof; or (vii) impair the right of Lender to obtain a deficiency judgment or other judgment on the Note against Borrower if necessary to (A) preserve or enforce its rights and remedies against any Individual Property or (B) obtain any Insurance Proceeds or Awards to which Lender would otherwise be entitled under the terms of this Agreement or the Security Instruments; provided

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however, Lender shall only enforce such judgment to the extent of the Insurance Proceeds and/or Awards.

(b) Notwithstanding the provisions of Section 9.4(a) above to the contrary, Borrower shall be personally liable to Lender for the Losses it incurs arising out of or in connection with the following:

(i) a Loan Party’s fraud, willful misconduct, intentional misrepresentation or failure to disclose a material fact in connection with the execution and the delivery of this Agreement, the Note, the Security Instruments, or the other Loan Documents or otherwise in connection with the Loan;

(ii) a Loan Party’s misapplication or misappropriation of Security Deposits, Rents (including failure to deposit Rents into the Lockbox Account), or any other amounts due to Lender pursuant to the Loan Documents;

(iii) a Loan Party’s misapplication or the misappropriation of Insurance Proceeds or Awards in violation of the Loan Documents;

(iv) a Loan Party’s failure to pay any Other Charges (including charges for labor or materials) (to the extent such Other Charges are not being contested in accordance with the terms of this Agreement) that can create a Lien on the Property beyond any applicable notice and cure periods specified herein, provided that such failure is not due to insolvency or insufficient funds from the operation of such Property;

(v) failure to maintain insurance as required pursuant to the Loan Documents or pay Insurance Premiums or Taxes that can create Liens on the Property beyond any applicable notice and cure periods specified herein (to the extent not contested by Borrower in accordance with the terms of this Agreement), except to the extent that (A) there is insufficient net cash flow from the Properties, or (B) there is sufficient net cash flow from the Properties and Lender applies such amounts to the Debt or for other uses, or (C) sums sufficient to pay such amounts have been deposited in escrow with Lender pursuant to the terms of Section 7.2 hereof;

(vi) a Loan Party’s removal of and failure to return or to reimburse Lender for all Personal Property taken by such Loan Party from any Individual Property in violation of the Loan Documents by or on behalf of Borrower and not replaced with Personal Property of the same utility and of the same or greater value;

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(vii) any act of intentional physical waste or arson of an Individual Property by a Loan Party;

(viii) any fees or commissions paid by Borrower to Principal, if any, Guarantor or any Affiliate of Borrower in violation of the terms of this Agreement, the Note, the Security Instruments or the other Loan Documents;

(ix) Borrower’s failure to comply with the provisions of Sections 5.1.8 (after five (5) Business Days after Borrower’s receipt of written notice of such failure) or 5.1.19 hereof;

(x) criminal acts of a Loan Party resulting in the seizure or forfeiture of any Individual Property;

(xi) the wrongful destruction of or damage to any portion of any Individual Property caused by the willful misconduct or gross negligence of a Loan Party;

(xii) without the prior written consent of Lender as required pursuant to the Loan Documents, Borrower entering into any amendment, modification or termination of any Lease;

(xiii) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity or in the Loan Documents concerning Environmental Laws and Hazardous Substances and any indemnification of Lender with respect thereto in any Loan Document;

(xiv) Borrower’s failure to pay all transfer and recording taxes due to any Governmental Authority in the event of a foreclosure of any Individual Property, deed in lieu or other transfer of any Individual Property to Lender or Lender’s designee, solely to the extent there is sufficient revenue from the Properties made available to the Borrower to pay the same;

(xv) [intentionally omitted];

(xvi) Borrower’s failure to comply with the provisions of Section 9.2 hereof, after receiving written notice of such failure, which specifically provides reasonable details of such failure, and such failure continues for ten (10) Business Days thereafter;

(xvii) Borrower’s failure to reimburse Lender for any costs and expenses, including reasonable attorneys fees, in each case arising from or related to Lender’s enforcement of its rights and remedies under the Loan Documents after the occurrence of an Event of Default;

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(xviii) any Pre-Existing Liability;

(xix) a Loan Party’s gross negligence or willful misconduct; or

(xx) any Losses due to a breach of Section 4.1.36 hereof, to the extent not covered by Section 9.4(c)(i) below.

(c) Notwithstanding the foregoing, the agreement of Lender not to pursue recourse liability as set forth in Subsection (a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower immediately in the event that:

(i) Borrower defaults under any of Sections 4.1.36, 5.2.10 or 5.2.11 hereof or Article 7 of the Security Instruments, or in the event of Principal’s default under Section 4.1.36 hereof, provided that any default by Borrower or Principal, if any, under Section 4.1.36 shall have resulted in a substantive consolidation of Borrower with another Person;

(ii) a Bankruptcy Event occurs;

(iii) Borrower fails to obtain Lender’s prior written consent to any subordinate financing for borrowed money and such prior written consent is required pursuant to the Loan Documents;

(iv) a Loan Party’s interference with Lender’s exercise of remedies provided under the Loan Documents after Lender has delivered written notice of acceleration of the Loan, unless any such action was in pursuit of a good faith claim upon which such Loan Party ultimately prevailed; or

(v) Borrower or any of its Affiliates contests or opposes any motion made by Lender to obtain relief from the automatic stay or seek to reinstate the automatic stay following the occurrence of a Bankruptcy Event.

(d) Notwithstanding anything herein to the contrary, Borrower acknowledges that, pursuant to the Guaranty, to the extent Borrower fails to pay any wind/named storm and earthquake insurance deductible in an amount equal to the positive difference between (A) 5% of the total insured value of any Property for which such insurance claim is made and (B) $250,000, Guarantor shall have the obligation to pay such amount.

(e) Nothing herein shall be deemed to be a waiver of any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provision of the Bankruptcy Code to file a claim for the full amount of the indebtedness secured by the Security Instruments or to require that all collateral shall continue to secure all of the indebtedness owing to Lender in accordance with this Agreement, the Note, the Security Instruments and the other Loan Documents.

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Section 9.5. Mezzanine Financing.

In connection with any Securitization of the Loan, Lender shall have the right at any time to divide the Loan into two or more parts (the “Mezzanine Option”): a mortgage loan (the “Mortgage Loan”) and one or more mezzanine loans (the “Mezzanine Loan(s)”). The principal amount of the Mortgage Loan plus the principal amount of the Mezzanine Loan(s) shall equal the outstanding principal balance of the Loan immediately prior to the creation of the Mortgage Loan and the Mezzanine Loan(s). In effectuating the foregoing, the mezzanine lender will make a loan to the Mezzanine Borrower(s); Mezzanine Borrower(s) will contribute the amount of the Mezzanine Loan(s) to Borrower and Borrower will apply the contribution to pay down the Mortgage Loan. The Mortgage Loan and the Mezzanine Loan(s) will be on the same terms and subject to the same conditions set forth in this Agreement, the Note, the Security Instrument and the other Loan Documents except as follows:

(a) Lender shall have the right to establish different interest rates and debt service payments for the Mortgage Loan(s) and the Mezzanine Loan and to require the payment of the Mortgage Loan and the Mezzanine Loan(s) in such order of priority as may be designated by Lender; provided, that (i) the total loan amounts for the Mortgage Loan and the Mezzanine Loan(s) shall equal the amount of the Loan immediately prior to the creation of the Mortgage Loan and the Mezzanine Loan(s), (ii) the initial weighted average interest rate of the Mortgage Loan and the Mezzanine Loan(s) shall initially on the date created equal the interest rate which was applicable to the Loan immediately prior to creation of the Mortgage Loan and the Mezzanine Loan(s), (iii) the initial debt service payments on the Mortgage Loan note and the Mezzanine Loan note(s) shall initially on the date created equal the debt service payment which was due under the Loan immediately prior to creation of the Mortgage Loan and the Mezzanine Loan(s) and (iv) principal payments shall be applied pro rata prior to the occurrence of an Event of Default. The Mezzanine Loan(s) will be made pursuant to Lender’s standard mezzanine loan documents in form and substance substantially similar to the Loan Documents with such necessary modifications to effect a mezzanine loan. The Mezzanine Loan(s) will be subordinate to the Mortgage Loan and will be governed by the terms of an intercreditor agreement between the holders of the Mortgage Loan and the Mezzanine Loan(s).

(b) Mezzanine Borrower(s) shall be a newly-formed special purpose, bankruptcy remote entity pursuant to applicable Rating Agency criteria and otherwise acceptable to Lender that shall own directly or indirectly one hundred percent (100%) of Borrower. The direct equity holder(s) of Mezzanine Borrower(s) (such holder(s) the “Second Level SPE”) shall be a special purpose, bankruptcy remote entity pursuant to applicable Rating Agency criteria and shall own directly or indirectly one hundred percent (100%) of Mezzanine Borrower. The security for the Mezzanine Loan shall be a pledge of one hundred percent (100%) of the direct and indirect ownership interests in Borrower and Mezzanine Borrower.

(c) Mezzanine Borrower, Second Level SPE and Borrower shall cooperate with all reasonable requests of Lender in order to divide the Loan into a Mortgage Loan and one or more Mezzanine Loan(s) and shall execute and deliver such documents as shall reasonably be required by Lender and any Rating Agency in connection therewith, including (i) the delivery of non-consolidation opinions; (ii) the modification of organizational documents and Loan Documents; (iii) authorize Lender to file any UCC-1 Financing Statements reasonably

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required by Lender to perfect its security interest in the collateral pledged as security for the Mezzanine Loan(s); (iv) execute such other documents reasonably required by Lender in connection with the creation of the Mezzanine Loan(s), including a guaranty substantially similar in form and substance to the Guaranty delivered on the date hereof in connection with the Loan, an environmental indemnity substantially similar in form and substance to the Environmental Indemnity delivered on the date hereof in connection with the Loan; (v) deliver appropriate authorization, execution and enforceability opinions with respect to the Mezzanine Loan(s) and amendments to the Mortgage Loan; and (vi) deliver an “Eagle 9” or equivalent UCC title insurance policy, satisfactory to Lender, insuring the perfection and priority of the lien on the collateral pledged as security for the Mezzanine Loan.

All reasonable third party costs and expenses incurred by Lender, Borrower or Guarantor in connection with Borrower’s or Guarantor’s complying with requests made under this Section 9.5, including reasonable attorneys fees and UCC insurance premiums, shall be paid by Borrower or Guarantor.

It shall be an Event of Default under this Agreement, the Note, the Security Instruments and the other Loan Documents if Borrower, Guarantor, Mezzanine Borrower, or Second Level SPE fails to comply with any of the terms, covenants or conditions of this Section 9.5 after expiration of ten (10) Business Days after written notice thereof which sets forth in reasonable detail a subscription of such failure to comply.

Section 9.6. Splitting the Loan.

At the election of Lender in its sole discretion or in connection with a repurchase by Lender of any portion of the Loan under the operative documents for any Securitization, the Loan or any individual Note making up the Loan shall be split and severed into two or more loans which, at Lender’s election, shall not be cross-collateralized or cross-defaulted with each other. Borrower hereby agrees to deliver to Lender to effectuate such severing of the Loan or any individual Note, as the case may be, as requested by Lender, (a) additional executed documents, or amendments and modifications to the applicable Loan Documents, (b) new opinions or updates to the opinions delivered to Lender in connection with the closing of the Loan, (c) endorsements and/or updates to the Title Insurance Policies delivered to Lender in connection with the closing of the Loan, and (d) any other certificates, instruments and documentation determined by Lender as necessary or appropriate to such severance (the items described in subsections (a) through (d) collectively hereinafter shall be referred to as “Splitting Documentation”), which Splitting Documentation shall be acceptable to Lender in form and substance in its sole discretion. Borrower hereby agrees to be responsible for all third-party expenses incurred in connection with the preparation and delivery of the Splitting Documentation and the effectuation of the uncrossing of the Loan from the additional loans. Borrower hereby acknowledges and agrees that upon such severing of the Loan, Lender may effect, in its sole discretion, one or more Securitizations of which the severed loans may be a part.

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Section 9.7. Loan Component Repayment.

Notwithstanding anything in this agreement to the contrary, upon the occurrence and during the continuance of an Event of Default, or after a Casualty or a Condemnation not subject to Restoration pursuant to section 6.4 hereof, Lender may apply any payments received by Lender may be applied by Lender among any Mortgage Loan(s) or Mezzanine Loan(s) as Lender may elect in its sole discretion.

X. MISCELLANEOUS

Section 10.1. Survival.

This Agreement and all covenants, agreements, representations and warranties made herein and in the certificates delivered pursuant hereto shall survive the making by Lender of the Loan and the execution and delivery to Lender of the Note, and shall continue in full force and effect so long as all or any of the Debt is outstanding and unpaid unless a longer period is expressly set forth herein or in the other Loan Documents. Whenever in this Agreement any of the parties hereto is referred to, such reference shall be deemed to include the legal representatives, successors and assigns of such party. All covenants, promises and agreements in this Agreement, by or on behalf of Borrower, shall inure to the benefit of the legal representatives, successors and assigns of Lender.

Section 10.2. Lender’s Discretion.

Whenever pursuant to this Agreement, Lender exercises any right given to it to approve or disapprove, or any arrangement or term is to be satisfactory to Lender, the decision of Lender to approve or disapprove or to decide whether arrangements or terms are satisfactory or not satisfactory shall (except as is otherwise specifically herein provided) be in the sole discretion of Lender and shall be final and conclusive. Whenever pursuant to this Agreement or any other Loan Document (a) the Rating Agencies are given any right to approve or disapprove, (b) the confirmation of the Rating Agencies as to no downgrade is required or (c) any arrangement or term is to be satisfactory to the Rating Agencies, the prior written consent of Lender in its sole discretion shall be substituted therefor prior to a Securitization.

Section 10.3. Governing Law.

(a) THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT ENTERED INTO PURSUANT TO THE LAWS OF THE STATE OF NEW YORK AND SHALL IN ALL RESPECTS BE GOVERNED, CONSTRUED, APPLIED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS), PROVIDED HOWEVER, THAT WITH RESPECT TO THE CREATION, PERFECTION, PRIORITY AND ENFORCEMENT OF THE LIENS AND SECURITY INTERESTS CREATED BY THIS AGREEMENT, THE SECURITY INSTRUMENTS AND THE OTHER LOAN DOCUMENTS, AND THE DETERMINATION OF DEFICIENCY JUDGMENTS, THE LAWS OF THE STATE WHERE EACH INDIVIDUAL PROPERTY IS LOCATED SHALL APPLY.

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(b) WITH RESPECT TO ANY CLAIM OR ACTION ARISING HEREUNDER OR UNDER THIS AGREEMENT, THE NOTE, OR THE OTHER LOAN DOCUMENTS, BORROWER (A) IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE UNITED STATES DISTRICT COURT LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK, NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF, AND (B) IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY HAVE AT ANY TIME TO THE LAYING ON VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE NOTE OR THE OTHER LOAN DOCUMENTS BROUGHT IN ANY SUCH COURT, IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING IN THIS AGREEMENT, THE NOTE OR THE OTHER LOAN DOCUMENTS WILL BE DEEMED TO PRECLUDE LENDER FROM BRINGING AN ACTION OR PROCEEDING WITH RESPECT HERETO IN ANY OTHER JURISDICTION.

Section 10.4. Modification, Waiver in Writing.

No modification, amendment, extension, discharge, termination or waiver of any provision of this Agreement, the Note, or of any other Loan Document, nor consent to any departure by Borrower therefrom, shall in any event be effective unless the same shall be in a writing signed by the party against whom enforcement is sought, and then such waiver or consent shall be effective only in the specific instance, and for the purpose, for which given. Except as otherwise expressly provided herein, no notice to, or demand on Borrower, shall entitle Borrower to any other or future notice or demand in the same, similar or other circumstances.

Section 10.5. Delay Not a Waiver.

Neither any failure nor any delay on the part of Lender in insisting upon strict performance of any term, condition, covenant or agreement, or exercising any right, power, remedy or privilege hereunder, or under the Note or under any other Loan Document, or any other instrument given as security therefor, shall operate as or constitute a waiver thereof, nor shall a single or partial exercise thereof preclude any other future exercise, or the exercise of any other right, power, remedy or privilege. In particular, and not by way of limitation, by accepting payment after the due date of any amount payable under this Agreement, the Note or any other Loan Document, Lender shall not be deemed to have waived any right either to require prompt payment when due of all other amounts due under this Agreement, the Note or the other Loan Documents, or to declare a default for failure to effect prompt payment of any such other amount.

Section 10.6. Notices.

All notices or other written communications hereunder shall be deemed to have been properly given one (1) Business Day after having been deposited for overnight delivery with any reputable overnight courier service, addressed as follows:

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If to Borrower:	SPIRIT SPE LOAN PORTFOLIO 2013-3, LLC 16767 N. Perimeter Drive, Suite 210 Scottsdale, AZ 85260 Attention: Chief Financial Officer Fax: (480) 256-1100
	And to:
	Spirit Realty, L.P.
	16767 N. Perimeter Drive, Suite 210
	Scottsdale, AZ 85260
	Attention: Portfolio Services
	Fax: (480) 256-1100
If to Lender:	Barclays Bank PLC
	745 Seventh Avenue
	New York, New York 10019
	Attention: Michael S. Birajiclian
With a copy to:	Dechert LLP
	Cira Centre
	2929 Arch Street
	Philadelphia, Pennsylvania 19104
	Attention: David W. Forti, Esq.

or addressed as such party may from time to time designate by written notice to the other parties.

Either party by notice to the other may designate additional or different addresses for subsequent notices or communications.

Section 10.7. Trial by Jury.

BORROWER HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THE LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY BORROWER, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. LENDER IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY BORROWER.

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Section 10.8. Headings.

The Article and/or Section headings and the Table of Contents in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose.

Section 10.9. Severability.

Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under Applicable Law, but if any provision of this Agreement shall be prohibited by or invalid under Applicable Law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.

Section 10.10. Preferences.

Lender shall have the continuing and exclusive right to apply or reverse and reapply any and all payments by Borrower to any portion of the obligations of Borrower hereunder. To the extent Borrower makes a payment or payments to Lender, which payment or proceeds or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside 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 payment or proceeds received, the obligations hereunder or part thereof intended to be satisfied shall be revived and continue in full force and effect, as if such payment or proceeds had not been received by Lender.

Section 10.11. Waiver of Notice.

Borrower shall not be entitled to any notices of any nature whatsoever from Lender except with respect to matters for which Applicable Law, this Agreement or the other Loan Documents specifically and expressly provide for the giving of notice by Lender to Borrower and except with respect to matters for which Borrower is not, pursuant to applicable Legal Requirements, permitted to waive the giving of notice. Borrower hereby expressly waives the right to receive any notice from Lender with respect to any matter for which Applicable Law, this Agreement or the other Loan Documents do not specifically and expressly provide for the giving of notice by Lender to Borrower.

Section 10.12. Remedies of Borrower.

In the event that a claim or adjudication is made that Lender or its agents have acted unreasonably or unreasonably delayed acting in any case where by law or under this Agreement or the other Loan Documents, Lender or such agent, as the case may be, has an obligation to act reasonably or promptly, Borrower agrees that neither Lender nor its agents shall be liable for any monetary damages, and Borrower’s sole remedies shall be limited to commencing an action seeking injunctive relief or declaratory judgment. The parties hereto agree that any action or proceeding to determine whether Lender has acted reasonably shall be determined by an action seeking declaratory judgment.

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Section 10.13. Expenses; Indemnity.

(a) Borrower covenants and agrees to pay or, if Borrower fails to pay, to reimburse, Lender within ten (10) days of receipt of written notice from Lender for all reasonable costs and expenses (including reasonable attorneys’ fees and disbursements) incurred by Lender in connection with (i) the preparation, negotiation, execution and delivery of this Agreement and the other Loan Documents and the consummation of the transactions contemplated hereby and thereby and all the costs of furnishing all opinions by counsel for Borrower (including any opinions required hereunder); (ii) Borrower’s ongoing performance of and compliance with Borrower’s respective agreements and covenants contained in this Agreement and the other Loan Documents on its part to be performed or complied with after the Closing Date, including confirming compliance with environmental and insurance requirements; (iii) Lender’s ongoing performance and compliance with all agreements and conditions contained in this Agreement and the other Loan Documents on its part to be performed or complied with after the Closing Date; (iv) the negotiation, preparation, execution, delivery and administration of any consents, amendments, waivers or other modifications to this Agreement and the other Loan Documents and any other documents or matters requested by Lender; (v) securing Borrower’s compliance with any requests made pursuant to the provisions of this Agreement; (vi) the filing and recording fees and expenses, title insurance and reasonable fees and expenses of counsel for providing to Lender all required legal opinions, and other similar expenses incurred in creating and perfecting the Lien in favor of Lender pursuant to this Agreement and the other Loan Documents; (vii) enforcing or preserving any rights, in response to third party claims or the prosecuting or defending of any action or proceeding or other litigation, in each case against, under or affecting Borrower, this Agreement, the other Loan Documents, the Properties, or any other security given for the Loan; and (viii) enforcing any obligations of or collecting any payments due from Borrower under this Agreement, the other Loan Documents or with respect to the Properties or in connection with any refinancing or restructuring of the credit arrangements provided under this Agreement in the nature of a “work-out” or of any insolvency or bankruptcy proceedings; provided, however, that Borrower shall not be liable for the payment of any such costs and expenses to the extent the same arise by reason of the gross negligence, illegal acts, fraud or willful misconduct of Lender. Any cost and expenses due and payable to Lender may be paid from any amounts in the Lockbox Account.

(b) Borrower shall indemnify, defend and hold harmless Lender from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including the reasonable fees and disbursements of counsel for Lender in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not Lender shall be designated a party thereto), that may be imposed on, incurred by, or asserted against Lender in any manner relating to or arising out of (i) any breach by Borrower of its obligations under, or any material misrepresentation by Borrower contained in, this Agreement or the other Loan Documents, or (ii) the use or intended use of the proceeds of the Loan (collectively, the “Additional Indemnified Liabilities”); provided, however, that Borrower shall not have any obligation to Lender hereunder to the extent that such Additional Indemnified Liabilities arise from the gross negligence, illegal acts, fraud or willful misconduct of Lender. To the extent that the undertaking to indemnify, defend and hold harmless set forth in the preceding sentence may be unenforceable because it violates any law or public policy, Borrower

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shall pay the maximum portion that it is permitted to pay and satisfy under Applicable Law to the payment and satisfaction of all Additional Indemnified Liabilities incurred by Lender.

(c) Borrower shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless Lender and the Indemnified Parties from and against any and all losses (including reasonable attorneys’ fees and costs incurred in the investigation, defense, and settlement of losses incurred in correcting any prohibited transaction or in the sale of a prohibited loan, and in obtaining any individual prohibited transaction exemption under ERISA, the Code, any State statute or other similar law that may be required, in Lender’s sole discretion) that Lender may incur, directly or indirectly, as a result of a default under Sections 4.1.10 or 5.2.8 hereof.

(d) Borrower covenants and agrees to pay for or, if Borrower fails to pay, to reimburse Lender for any fees and expenses incurred by any Rating Agency in connection with any review, consent, approval, waiver or confirmation obtained from such Rating Agency pursuant to the terms and conditions of this Agreement or any other Loan Document (other than the initial review of the Loan by any Rating Agency in connection with a Securitization) and Lender shall be entitled to require payment of such fees and expenses as a condition precedent to the obtaining of any such review, consent, approval, waiver or confirmation.

Section 10.14. Schedules and Exhibits Incorporated.

The Schedules and Exhibits annexed hereto are hereby incorporated herein as a part of this Agreement with the same effect as if set forth in the body hereof.

Section 10.15. Offsets, Counterclaims and Defenses.

Any assignee of Lender’s interest in and to this Agreement, the Note and the other Loan Documents shall take the same free and clear of all offsets, counterclaims or defenses which are unrelated to such documents which Borrower may otherwise have against any assignor of such documents, and no such unrelated counterclaim or defense shall be interposed or asserted by Borrower in any action or proceeding brought by any such assignee upon such documents and any such right to interpose or assert any such unrelated offset, counterclaim or defense in any such action or proceeding is hereby expressly waived by Borrower.

Section 10.16. No Joint Venture or Partnership; No Third Party Beneficiaries.

(a) Borrower and Lender intend that the relationships created hereunder and under the other Loan Documents be solely that of borrower and lender. Nothing herein or therein is intended to create a joint venture, partnership, tenancy-in-common, or joint tenancy relationship between Borrower and Lender nor to grant Lender any interest in the Properties other than that of mortgagee, beneficiary or lender.

(b) This Agreement and the other Loan Documents are solely for the benefit of Lender and Borrower and nothing contained in this Agreement or the other Loan Documents shall be deemed to confer upon anyone other than Lender and Borrower any right to insist upon or to enforce the performance or observance of any of the obligations contained

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herein or therein. All conditions to the obligations of Lender to make the Loan hereunder are imposed solely and exclusively for the benefit of Lender and no other Person shall have standing to require satisfaction of such conditions in accordance with their terms or be entitled to assume that Lender will refuse to make the Loan in the absence of strict compliance with any or all thereof and no other Person shall under any circumstances be deemed to be a beneficiary of such conditions, any or all of which may be freely waived in whole or in part by Lender if, in Lender’s sole discretion, Lender deems it advisable or desirable to do so.

Section 10.17. Publicity.

All news releases, publicity or advertising by Borrower or its Affiliates through any media intended to reach the general public which refers to (i) the Loan Documents, (ii) the financing evidenced by the Loan Documents, (iii) Lender, (iv) any Affiliate of Lender that acts as the issuer with respect to a Securitization, or (v) any of other Lender Affiliates shall be subject to the prior written approval of Lender, not to be unreasonably withheld, conditioned or delayed; provided the foregoing shall not apply to any filings in connection with any Legal Requirements.

Section 10.18. Cross-Default; Cross-Collateralization; Waiver of Marshalling of Assets.

(a) Borrower acknowledges that Lender has made the Loan to Borrower upon the security of its collective interest in the Properties and in reliance upon the aggregate of the Properties taken together being of greater value as collateral security than the sum of each Individual Property taken separately. Borrower agrees that the Security Instruments are and will be cross-collateralized and cross-defaulted with each other so that (i) an Event of Default under any of the Security Instruments shall constitute an Event of Default under each of the other Security Instruments which secure the Note; (ii) an Event of Default under the Note or this Agreement shall constitute an Event of Default under each Security Instrument; (iii) each Security Instrument shall constitute security for the Note as if a single blanket lien were placed on all of the Properties as security for the Note; and (iv) such cross-collateralization shall in no event be deemed to constitute a fraudulent conveyance.

(b) To the fullest extent permitted by Applicable Law, Borrower, for itself and its successors and assigns, waives all rights to a marshalling of the assets of Borrower, Borrower’s partners and others with interests in Borrower, and of the Properties, or to a sale in inverse order of alienation in the event of foreclosure of all or any of the Security Instruments, and agrees not to assert any right under any laws pertaining to the marshalling of assets, the sale in inverse order of alienation, homestead exemption, the administration of estates of decedents, or any other matters whatsoever to defeat, reduce or affect the right of Lender under the Loan Documents to a sale of the Properties for the collection of the Debt without any prior or different resort for collection or of the right of Lender to the payment of the Debt out of the net proceeds of the Properties in preference to every other claimant whatsoever. In addition, Borrower, for itself and its successors and assigns, waives in the event of foreclosure of any or all of the Security Instruments, any equitable right otherwise available to Borrower which would require the separate sale of the Properties or require Lender to exhaust its remedies against any Individual Property or any combination of the Properties before proceeding against any other Individual Property or combination of Properties; and further in the event of such foreclosure

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Borrower does hereby expressly consents to and authorizes, at the option of Lender, the foreclosure and sale either separately or together of any combination of the Properties.

Section 10.19. Waiver of Counterclaim.

Borrower hereby waives the right to assert a counterclaim, other than a compulsory counterclaim, in any action or proceeding brought against it by Lender or its agents.

Section 10.20. Conflict; Construction of Documents; Reliance.

In the event of any conflict between the provisions of this Agreement and any of the other Loan Documents, the provisions of this Agreement shall control. The parties hereto acknowledge that they were represented by competent counsel in connection with the negotiation, drafting and execution of the Loan Documents and that such Loan Documents shall not be subject to the principle of construing their meaning against the party which drafted same. Borrower acknowledges that, with respect to the Loan, Borrower shall rely solely on its own judgment and advisors in entering into the Loan without relying in any manner on any statements, representations or recommendations of Lender or any parent, subsidiary or Affiliate of Lender. Lender shall not be subject to any limitation whatsoever in the exercise of any rights or remedies available to it under any of the Loan Documents or any other agreements or instruments which govern the Loan by virtue of the ownership by it or any parent, subsidiary or Affiliate of Lender of any equity interest any of them may acquire in Borrower, and Borrower hereby irrevocably waives the right to raise any defense or take any action on the basis of the foregoing with respect to Lender’s exercise of any such rights or remedies. Borrower acknowledges that Lender engages in the business of real estate financings and other real estate transactions and investments which may be viewed as adverse to or competitive with the business of Borrower or its Affiliates.

Section 10.21. Brokers and Financial Advisors.

Borrower hereby represents that it has dealt with no financial advisors, brokers, underwriters, placement agents, agents or finders in connection with the transactions contemplated by this Agreement. Borrower hereby agrees to indemnify, defend and hold Lender harmless from and against any and all claims, liabilities, costs and expenses of any kind (including Lender’s attorneys’ fees and expenses) in any way relating to or arising from a claim by any Person that such Person acted on behalf of Borrower or Lender in connection with the transactions contemplated herein. Lender represents and warrants that neither Lender nor its affiliates has engaged any broker or finders in connection with the Loan, this Agreement and the transactions contemplated hereby. The provisions of this Section 10.21 shall survive the expiration and termination of this Agreement and the payment in full of the Debt.

Section 10.22. Prior Agreements.

This Agreement and the other Loan Documents contain the entire agreement of the parties hereto and thereto in respect of the transactions contemplated hereby and thereby, and all prior agreements among or between such parties, whether oral or written, between Borrower and/or its Affiliates and Lender are superseded by the terms of this Agreement and the other Loan Documents.

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their duly authorized representatives, all as of the day and year first above written.

IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT.

BORROWER:
SPIRIT SPE LOAN PORTFOLIO 2013-3, LLC,
a Delaware limited liability company
By:	Spirit SPE Manager, LLC, a Delaware limited liability, its manager
By:
	Name:
	Title:
LENDER:
BARCLAYS BANK PLC, a public company registered in England and Wales
By:
	Name:
	Title:

WITH RESPECT TO SECTIONS 9.1, 9.2, 9.5 ONLY:
SPIRIT REALTY, L.P., a Delaware limited partnership
By:	Spirit General OP Holdings, LLC, as sole general partner
By:
	Name:
	Title:

2

EX-10.8

Exhibit 10.8

New York, New York

As of July 17, 2013

GUARANTY OF RECOURSE OBLIGATIONS OF BORROWER

FOR VALUE RECEIVED, and to induce BARCLAYS BANK PLC, a public company registered in England and Wales, having its principal place of business at 745 Seventh Avenue, New York, New York 10019 (together with its successors and assigns, “Lender”), to lend to SPIRIT SPE LOAN PORTFOLIO 2013-3, LLC, a Delaware limited liability company, having its principal place of business at 16767 N. Perimeter Drive, Suite 210, Scottsdale, Arizona 85260 (“Borrower”), the principal sum of ONE HUNDRED TWO MILLION ONE HUNDRED THIRTY-FOUR THOUSAND NINETY AND 65/100 DOLLARS ($102,134,090.65) (the “Loan”), advanced pursuant to that certain Loan Agreement, dated as of the date hereof, between Borrower and Lender (as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time, the “Loan Agreement”) and evidenced by the Note and the other Loan Documents, the undersigned, SPIRIT REALTY, L.P., a Delaware limited partnership, having its principal place of business at 16767 N. Perimeter Drive, Suite 210, Scottsdale, Arizona 85260 (hereinafter referred to as “Guarantor”) hereby absolutely and unconditionally guarantees to Lender the prompt and unconditional payment of the Guaranteed Recourse Obligations of Borrower (hereinafter defined). All capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Loan Agreement.

It is expressly understood and agreed that this is a continuing guaranty and that the obligations of Guarantor hereunder are and shall be absolute under any and all circumstances, without regard to the validity, regularity or enforceability of the Note, the Loan Agreement, or the other Loan Documents, a true copy of each of said documents Guarantor hereby acknowledges having received and reviewed.

The term “Debt” as used in this Guaranty of Recourse Obligations of Borrower (as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time, this “Guaranty”) shall mean the principal sum evidenced by the Note and secured by the Security Instrument, or so much thereof as may be outstanding from time to time, together with interest thereon at the rate of interest specified in the Note and all other sums other than principal or interest which may or shall become due and payable pursuant to the provisions of the Note, the Loan Agreement, or the other Loan Documents.

The term “Guaranteed Recourse Obligations of Borrower” as used in this Guaranty shall mean (a) all payment obligations and liabilities of Borrower for which Borrower shall be personally liable pursuant to Section 9.4 of the Loan Agreement; provided, however, Guarantor shall not have any liability under this Guaranty pursuant to this clause (a) for any acts or omissions (not caused, directly or indirectly, by Guarantor or any Affiliate thereof) (A) specifically and directly taken by (x) a receiver appointed by Lender or any lender under any Mezzanine Loan (as defined in the Loan Agreement), or (y) any lender under any Mezzanine Loan in the exercise of voting or control rights by such lender under such Mezzanine Loan, or (B) occurring on and after (x) with respect to any Individual Property, the date of any transfer of title to such Individual Property as a result of a foreclosure sale of such Individual Property, deed

of trust sale of such Individual Property or any transfer of such Individual Property in lieu of foreclosure by Lender, or (y) the date of the transfer of title of the equity interests pledged pursuant to any Mezzanine Loan pursuant to any UCC public auction and/or private sale or any assignment in lieu of foreclosure undertaken by the holder of a Mezzanine Loan; and (b) Borrower’s obligation to pay any wind/named storm and earthquake insurance deductible in an amount equal to the positive difference between (i) 5% of the total insured value of any Property for which such insurance claim is made and (ii) $250,000.

Any indebtedness of Borrower to Guarantor now or hereafter existing (including, but not limited to, any rights to subrogation Guarantor may have as a result of any payment by Guarantor under this Guaranty), together with any interest thereon, shall be, and such indebtedness is, hereby deferred, postponed and subordinated to the prior payment in full of the Debt. Until payment in full of the Debt (and including interest accruing on the Note after the commencement of a proceeding by or against Borrower under the Bankruptcy Code and the regulations adopted and promulgated pursuant thereto, which interest the parties agree shall remain a claim that is prior and superior to any claim of Guarantor notwithstanding any contrary practice, custom or ruling in cases under the Bankruptcy Code generally), Guarantor agrees not to accept any payment or satisfaction of any kind of indebtedness of Borrower to Guarantor and hereby assigns such indebtedness to Lender, including the right to file proof of claim and to vote thereon in connection with any such proceeding under the Bankruptcy Code, including the right to vote on any plan of reorganization. Further, if Guarantor shall comprise more than one Person, Guarantor agrees that until such payment in full of the Debt, (a) no one of them shall accept payment from the others by way of contribution on account of any payment made hereunder by such party to Lender, (b) no one of them will take any action to exercise or enforce any rights to such contribution, and (c) if any Guarantor should receive any payment, satisfaction or security for any indebtedness of Borrower to any Guarantor or for any contribution by the other Guarantors for payment made hereunder by the recipient to Lender, the same shall be delivered to Lender in the form received, endorsed or assigned as may be appropriate for application on account of, or as security for, the Debt and until so delivered, shall be held in trust for Lender as security for the Debt.

Guarantor agrees that, with or without notice or demand, Guarantor will reimburse Lender, to the extent that such reimbursement is not made by Borrower, for all reasonable expenses (including reasonable counsel fees and disbursements) incurred by Lender in connection with the collection of the Guaranteed Recourse Obligations of Borrower or any portion thereof or with the enforcement of this Guaranty.

All moneys available to Lender for application in payment or reduction of the Debt shall be applied in accordance with the Loan Agreement, or to the extent no restriction with respect thereto applies, by Lender in such manner and in such amounts and at such time or times and in such order and priority as Lender may see fit to the payment or reduction of such portion of the Debt as Lender may elect.

Guarantor hereby waives notice of the acceptance hereof, presentment, demand for payment, protest, notice of protest, or any and all notice of non-payment, non-performance or non-observance, or other proof, or notice or demand, whereby to charge Guarantor therefor.

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Guarantor further agrees that the validity of this Guaranty and the obligations of Guarantor hereunder shall in no way be terminated, affected or impaired (a) by reason of the assertion by Lender of any rights or remedies which it may have under or with respect to either the Note, the Loan Agreement, or the other Loan Documents, against any Person obligated thereunder or the Property covered under the Loan Agreement, or (b) by reason of any failure to file or record any of such instruments or to take or perfect any security intended to be provided thereby, or (c) by reason of the release of the Property covered under the Loan Agreement or other collateral for the Loan, or (d) by reason of Lender’s failure to exercise, or delay in exercising, any such right or remedy or any right or remedy Lender may have hereunder or in respect to this Guaranty, or (e) by reason of the commencement of a case under the Bankruptcy Code by or against any person obligated under the Note, the Loan Agreement or the other Loan Documents, or the death of any Guarantor, or (f) by reason of any payment made on the Debt or any other indebtedness arising under the Note, the Loan Agreement, or the other Loan Documents, whether made by Borrower or Guarantor or any other person, which is required to be refunded pursuant to any bankruptcy or insolvency law; it being understood that no payment so refunded shall be considered as a payment of any portion of the Debt, nor shall it have the effect of reducing the liability of Guarantor hereunder. It is further understood, that if Borrower shall have taken advantage of, or be subject to the protection of, any provision in the Bankruptcy Code, the effect of which is to prevent or delay Lender from taking any remedial action against Borrower, including the exercise of any option Lender has to declare the Debt due and payable on the happening of any default or event by which under the terms of the Note, the Loan Agreement, or the other Loan Documents, the Debt shall become due and payable, Lender may, as against Guarantor, nevertheless, declare the Debt due and payable and enforce any or all of its rights and remedies against Guarantor provided for herein.

Guarantor further covenants that this Guaranty shall remain and continue in full force and effect as to any modification, extension or renewal of the Note, the Loan Agreement, or the other Loan Documents, that Lender shall not be under a duty to protect, secure or insure the Property covered under the Loan Agreement, and that other indulgences or forbearance may be granted under any or all of such documents, all of which may be made, done or suffered without notice to, or further consent of, Guarantor.

Guarantor hereby represents and warrants that Guarantor is not a Plan and none of the assets of Guarantor constitute or will constitute “Plan Assets” of one or more Plans. If Guarantor is not a natural person, Guarantor further represents and warrants that (a) Guarantor is not a “governmental plan” within the meaning of Section 3(32) of ERISA and (b) transactions by or with Guarantor are not subject to State statutes regulating investment of, and fiduciary obligations with respect to, governmental plans similar to the provisions of Section 406 of ERISA or Section 4975 of the Code currently in effect, which prohibit or otherwise restrict the transactions contemplated by this Guaranty.

Guarantor hereby covenants and agrees with Lender that:

(a) During the term of the Loan or of any obligation or right hereunder, Guarantor shall not be a Plan and none of the assets of Guarantor shall constitute Plan Assets.

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(b) Guarantor further covenants and agrees to deliver to Lender such certifications or other evidence from time to time throughout the term of the Loan, as requested by Lender in its sole discretion and represents and covenants that (A) Guarantor is not and does not maintain an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, or a “governmental plan” within the meaning of Section 3(32) of ERISA; (B) Guarantor is not subject to State statutes regulating investments and fiduciary obligations with respect to governmental plans; and (C) one or more of the following circumstances is true:

(i) Equity interests in Guarantor are publicly offered securities, within the meaning of 29 C.F.R. §2510.3-101(b)(2);

(ii) Less than twenty-five percent (25%) of each outstanding class of equity interests in Guarantor are held by “benefit plan investors” within the meaning of 29 C.F.R. §2510.3-101(f)(2); or

(iii) Guarantor qualifies as an “operating company” or a “real estate operating company” within the meaning of 29 C.F.R. §2510.3-101(c) or (e).

Guarantor further represents and warrants to Lender as follows:

(a) Guarantor is a limited partnership duly organized, validly existing and in good standing under the laws of the State of Delaware, and has all necessary power and authority to own its properties and to conduct its business as presently conducted or proposed to be conducted and to enter and perform this Guaranty and all other agreements and instruments to be executed and delivered by Guarantor. This Guaranty has been duly executed and delivered by Guarantor.

(b) This Guaranty constitutes a legal, valid and binding obligation of Guarantor, enforceable against Guarantor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally.

(c) The execution, delivery and performance by Guarantor of its obligations under this Guaranty has been duly authorized by all necessary action, and do not and will not violate any law, regulation, order, writ, injunction or decree of any court or governmental body, agency or other instrumentality applicable to Guarantor, or result in a breach of any of the terms, conditions or provisions of, or constitute a default under, or result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the assets of Guarantor pursuant to the terms of Guarantor’s articles of organization, or any mortgage, indenture, agreement or instrument to which Guarantor is a party or by which it or any of its properties is bound. Guarantor is not in default under the Environmental Indemnity which it has provided to Lender.

(d) There are no actions, suits or proceedings at law or at equity, pending or, to Guarantor’s knowledge, threatened against or affecting Guarantor or which involve or might involve the validity or enforceability of this Guaranty or which might materially adversely affect the financial condition of Guarantor or the ability of Guarantor to

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perform any of its obligations under this Guaranty. Guarantor is not in default beyond any applicable grace or cure period with respect to any order, writ, injunction, decree or demand of any Governmental Authority which might materially adversely affect the financial condition of Guarantor or the ability of Guarantor to perform any of its obligations under this Guaranty.

(e) All consents, approvals, orders or authorizations of, or registrations, declarations or filings with, all Governmental Authorities (collectively, the “Consents”) that are required in connection with the valid execution, delivery and performance by Guarantor of this Guaranty have been obtained and Guarantor agrees that all Consents required in connection with the carrying out or performance of any of Guarantor’s obligations under this Guaranty will be obtained when required.

(f) All financial statements of Guarantor heretofore delivered to Lender are true and correct in all material respects and fairly present the financial condition of Guarantor as of the respective dates thereof, and no materially adverse change has occurred in the financial conditions reflected therein since the respective dates thereof. None of the aforesaid financial statements or any certificate or statement furnished to Lender by or on behalf of Guarantor in connection with the transactions contemplated hereby, and none of the representations and warranties in this Guaranty contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein or herein not misleading. Guarantor is not insolvent within the meaning of the United States Bankruptcy Code or any other applicable law, code or regulation and the execution, delivery and performance of this Guaranty will not render Guarantor insolvent.

(g) Guarantor is the owner, directly or indirectly, of certain legal and beneficial equity interests in Borrower.

As a further inducement to Lender to make the Loan and in consideration thereof, Guarantor further covenants and agrees that Guarantor shall deliver to Lender (a) within ninety (90) days after the end of each Fiscal Year, (i) a complete copy of Guarantor’s annual financial statements (Y) audited by an Approved Accountant or (Z) provided the conditions in the immediately succeeding paragraph are met, unaudited and prepared by Guarantor and certified by the chief financial officer of Guarantor or the chief financial officer of the REIT, and (ii) a certificate of Guarantor setting forth the Net Worth (as defined below) and Liquid Assets (as defined below) of Guarantor in form, content, level of detail and scope satisfactory to Lender, (b) within forty-five (45) days after the end of each calendar quarter, financial statements (including a balance sheet as of the end of such fiscal quarter and a statement of income and expense for such fiscal quarter) certified by the chief financial officer of Guarantor or the chief financial officer of the REIT and in form, content, level of detail and scope reasonably satisfactory to Lender, and (c) ten (10) Business Days after request by Lender, such other financial information with respect to Guarantor as Lender may reasonably request.

Guarantor shall deliver the consolidated annual financial statements of the REIT audited by an Approved Accountant in accordance with GAAP (or such other method of accounting reasonably acceptable to Lender) for so long as (i) the REIT is a public company and

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continues to file public financial statements and (ii) the REIT Controls the Guarantor. In the event the Guarantor delivers such audited annual financial statements of the REIT and the conditions in the immediately preceding sentence are met, then not withstanding anything in immediately preceding paragraph to the contrary, Guarantor shall not have to deliver any audited annual financial statements of Guarantor and Guarantor shall not be in breach of the immediately preceding paragraph provided that (i) such audited annual financial statements of the REIT shall contain a note indicating that Guarantor’s separate assets and liabilities are neither available to pay the debts of the consolidated entity nor constitute obligations of the consolidated entity, and (B) such assets shall also be listed on Guarantor’s own separate balance sheet.

As a further inducement to Lender to make the Loan and in consideration thereof, Guarantor further covenants and agrees with Lender as follows:

(a) Until the Debt been paid in full, Guarantor (including its consolidated subsidiaries with respect to Liquid Assets) (i) shall maintain (A) a Net Worth in excess of $150,000,000.00 (the “Net Worth Threshold”) and (B) Liquid Assets having a market value of at least $25,000,000.00 (the “Liquid Assets Threshold”) and (ii) shall not sell, pledge, mortgage or otherwise transfer any of its assets, or any interest therein, which would cause Guarantor’s Net Worth to fall below the Net Worth Threshold or Guarantor’s Liquid Assets to fall below the Liquid Assets Threshold.

(b) Guarantor shall not, at any time while an Event of Default has occurred and is continuing, either (i) enter into or effectuate any transaction with any Affiliate which would reduce the Net Worth of Guarantor below the Net Worth Threshold (including the payment of any dividend or distribution to a shareholder, or the redemption, retirement, purchase or other acquisition for consideration of any stock or interest in Guarantor) or (ii) sell, pledge, mortgage or otherwise transfer to any Person any of Guarantor’s assets, or any interest therein which would reduce the Net Worth Threshold of Guarantor below the Net Worth Threshold.

(c) As used herein, (I) “GAAP” shall mean generally accepted accounting principles, consistently applied, (II) “Liquid Assets” shall mean assets in the form of cash, cash equivalents, obligations of (or fully guaranteed as to principal and interest by) the United States or any agency or instrumentality thereof (provided the full faith and credit of the United States supports such obligation or guarantee), certificates of deposit issued by a commercial bank having net assets of not less than $500 million, securities listed and traded on a recognized stock exchange or traded over the counter and listed in the National Association of Securities Dealers Automatic Quotations, or liquid debt instruments that have a readily ascertainable value and are regularly traded in a recognized financial market, and (III) “Net Worth” shall mean, as of a given date, (x) the total assets (exclusive of any interest in the Property) of Guarantor as of such date less (y) Guarantor’s total liabilities as of such date, determined in accordance with GAAP.

As a further inducement to Lender to make the Loan and in consideration thereof, Guarantor further covenants and agrees (a) that in any action or proceeding brought by Lender against Guarantor on this Guaranty, Guarantor shall and does hereby waive trial by jury, (b) that the Supreme Court of the State of New York for the County of New York, or, in a case involving

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diversity of citizenship, the United States District Court for the Southern District of New York, shall have exclusive jurisdiction of any such action or proceeding, and (c) that service of any summons and complaint or other process in any such action or proceeding may be made by registered or certified mail directed to Guarantor at Guarantor’s address set forth above, Guarantor waiving personal service thereof. Nothing in this Guaranty will be deemed to preclude Lender from bringing an action or proceeding with respect hereto in any other jurisdiction.

This is a guaranty of payment and not of collection and upon any default of Borrower under the Note, the Loan Agreement, or the other Loan Documents, Lender may, at its option, proceed directly and at once, without notice, against Guarantor to collect and recover the full amount of the liability hereunder or any portion thereof, without proceeding against Borrower or any other person, or foreclosing upon, selling, or otherwise disposing of or collecting or applying against the Property or other collateral for the Loan. Guarantor hereby waives the pleading of any statute of limitations as a defense to the obligation hereunder.

Each reference herein to Lender shall be deemed to include its successors and assigns, to whose favor the provisions of this Guaranty shall also inure. Each reference herein to Guarantor shall be deemed to include the heirs, executors, administrators, legal representatives, successors and assigns of Guarantor, all of whom shall be bound by the provisions of this Guaranty. If this Guaranty is signed by more than one Person, then all of the obligations of Guarantor arising hereunder shall be jointly and severally binding on each of the undersigned and shall be deemed to include their heirs, executors, administrators, legal representatives, successors and assigns, and the term “Guarantor” shall mean all of such Persons and each of them individually.

If any party hereto shall be a partnership, the agreements and obligations on the part of Guarantor herein contained shall remain in force and application notwithstanding any changes in the individuals composing the partnership and the term “Guarantor” shall include any altered or successive partnerships but the predecessor partnerships and their partners shall not thereby be released from any obligations or liability hereunder.

All notices required or permitted hereunder shall be given and shall become effective as provided in Section 10.6 of the Loan Agreement.

All notices to Guarantor shall be addressed as follows:

Spirit Realty, L.P.

16767 N. Perimeter Drive, Suite 210

Scottsdale, Arizona 85260

Attention: Chief Financial Officer

Facsimile No.: 480-256-1100

With a copy to:

Spirit Realty, L.P.

16767 N. Perimeter Drive, Suite 210

Scottsdale, Arizona 85260

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Attention: Portfolio Services

Facsimile No.: 480-256-1100

All understandings, representations and agreements heretofore had with respect to this Guaranty are merged into this Guaranty which alone fully and completely expresses the agreement of Guarantor and Lender.

Lender may sell, transfer and deliver the Note and assign the Loan Agreement, the Security Instrument, this Guaranty and the other Loan Documents to one or more Investors in the secondary mortgage market subject to the terms of the Loan Agreement. In connection with such sale, Lender may retain or assign responsibility for servicing the Loan, including the Note, the Loan Agreement, the Security Instruments, this Guaranty and the other Loan Documents, or may delegate some or all of such responsibility and/or obligations to a servicer including, but not limited to, any subservicer or master servicer, on behalf of the Investors. All references to Lender herein shall refer to and include any such servicer to the extent applicable. To the extent Lender splits the Loan into multiple loans or mezzanine loans in accordance with the terms of the Loan Agreement, Guarantor agrees to execute a guaranty in substantially the form of this Guaranty for the benefit of the holders of any such loans.

This Guaranty may be executed in one or more counterparts by some or all of the parties hereto, each of which counterparts shall be an original and all of which together shall constitute a single agreement of Guaranty. The failure of any party hereto to execute this Guaranty, or any counterpart hereof, shall not relieve the other signatories from their obligations hereunder.

This Guaranty may not be modified, amended, waived, extended, changed, discharged or terminated orally or by any act or failure to act on the part of Lender or Borrower, but only by an agreement in writing signed by the party against whom enforcement of any modification, amendment, waiver, extension, change, discharge or termination is sought.

This Guaranty shall be governed, construed and interpreted as to validity, enforcement and in all other respects, in accordance with the laws of the State of New York.

With respect to the foregoing provisions contained in this Agreement, the following shall apply with respect to the State of Oklahoma: In addition to all other provisions contained herein, Guarantor further agrees that the validity of this Guaranty and the obligations of Guarantor hereunder shall in no way be terminated, affected or impaired by reason of Lender’s election to foreclose any lien created by the Loan Documents, in which case Lender is authorized to purchase for the respective accounts of the Lender all or any part of the collateral covered by such lien at public or private sale and to credit the actual amount recovered first against that portion of the obligations for which the Guarantor is not liable with any balance remaining to be applied in reduction of the liability of the Guarantor hereunder. Guarantor hereby waives any and all claims for set-off of the collateral’s fair market value under 12 O.S. Section 686.

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IN WITNESS WHEREOF, Guarantor has duly executed this Guaranty as of the date first above set forth.

SPIRIT REALTY, L.P., a Delaware limited partnership
By:	Spirit General OP Holdings, LLC, as sole general partner
	By:
		Name:
		Title: