Table of Contents

•

a trust (1) the administration of which is subject to the primary supervision of a U.S. court and which has one or more "United States persons" (as defined under the Code) who have the authority to control all substantial decisions of the trust, or (2) that has a valid election in effect under applicable U.S. Treasury Regulations to be treated as a U.S. person; or



•

an estate the income of which is subject to U.S. federal income tax regardless of its source.

        For purposes of this discussion, the term "non-U.S. holder" means a beneficial owner of our common shares or preferred shares, other than an entity or arrangement classified as a partnership for U.S. federal income tax purposes, that is not a U.S. holder.

        This discussion applies only to holders of our common shares or preferred shares who hold such shares as "capital assets" within the meaning of the Code (generally, property held for investment). Further, this discussion is for general informational purposes only and does not address all aspects of U.S. federal income taxation that may be relevant to specific holders in light of their particular facts and circumstances, and it does not apply to holders subject to special treatment under U.S. federal income tax laws (including, for example, insurance companies, dealers or brokers in securities or foreign currencies, traders in securities who elect to apply the mark-to-market method of accounting, holders subject to the alternative minimum tax, persons who are required to recognize income or gain with respect to the merger no later than such income or gain is required to be reported on an applicable financial statement, U.S. holders that have a functional currency other than the U.S. dollar, tax-exempt organizations, retirement plans, individual retirement accounts or other tax-deferred or

Table of Contents

advantaged accounts (or persons holding common shares or preferred shares through such plans or accounts), banks and other financial institutions, certain former citizens or former long-term residents of the United States, "controlled foreign corporations," "passive foreign investment companies," partnerships or other entities or arrangements treated as partnerships for U.S. federal income tax purposes or other flow-through entities (and investors therein), S corporations, real estate investment trusts, regulated investment companies, "qualified foreign pension funds" (within the meaning of Section 897(1)(2) of the Code) or entities all of the interests in which are held by a qualified pension fund, "qualified shareholders" (within the meaning of Section 897(k)(3) of the Code) or investors therein, non-U.S. holders who hold, or have held at any time, directly, indirectly, or constructively, more than 10% of our outstanding common shares or more than 10% of our outstanding preferred shares, holders who hold our common shares or preferred shares as part of a hedge, straddle, constructive sale, conversion or other integrated or risk reduction transaction, and holders who acquired our common shares or preferred shares through the exercise of employee stock options or otherwise as compensation).

        If a partnership (including any entity or arrangement classified as a partnership for U.S. federal income tax purposes) holds our common shares or preferred shares, the tax treatment of a partner in such partnership will generally depend on the status of the partners and the activities of the partnership. If you are, for U.S. federal income tax purposes, a partner in a partnership holding common shares or preferred shares, you should consult your tax advisor regarding the U.S. federal, state, local and non-U.S. tax consequences of the merger to you in light of your particular circumstances.

        All holders should consult their own tax advisors regarding the specific tax consequences of the merger to them in light of their particular facts and circumstances, including with respect to the applicability and effect of any U.S. federal, state, local, foreign or other tax laws.

        For U.S. federal income tax purposes, the parties will treat the merger as if the Company had (1) sold all of its assets to Merger Sub I in exchange for the merger consideration, the aggregate per preferred share redemption amount and the assumption of the Company's liabilities and then (2) made a liquidating distribution of such merger consideration and the aggregate per preferred share redemption amount to holders of the Company's common shares and preferred shares, respectively, in exchange for such shares.

Table of Contents

Consequences of the Merger to U.S. Holders of our Common Shares

        The receipt of cash by U.S. holders in exchange for our common shares pursuant to the merger will be a taxable transaction for U.S. federal income tax purposes. In general, a U.S. holder of our common shares that receives cash in exchange for such common shares in the merger will recognize gain or loss in an amount equal to the difference, if any, between (1) the amount of cash received and (2) the U.S. holder's adjusted tax basis in such shares.

        If a U.S. holder acquired different blocks of common shares at different times and different prices, such U.S. holder must determine its adjusted tax basis, gain or loss and holding period separately with respect to each block of common shares. Any such gain or loss will generally be capital gain or loss and will be long-term capital gain or loss if a U.S. holder's holding period in the common shares surrendered in the merger is greater than one year as of the date of the merger. Long-term capital gains of certain non-corporate holders, including individuals, are generally subject to U.S. federal income tax at preferential rates. The deductibility of capital losses is subject to limitations.

        In addition, the IRS has the authority to prescribe, but has not yet prescribed, regulations that would apply a tax rate of 25% to a portion of capital gain realized by a non-corporate shareholder on the sale of REIT shares that would correspond to the REIT's "unrecaptured Section 1250 gain."

Table of Contents

        A U.S. holder who has held our common shares for less than six months at the time of the merger, taking into account the holding period rules of Sections 246(c)(3) and (4) of the Code, and who recognizes a loss on the exchange of such common shares in the merger will be treated as recognizing a long-term capital loss to the extent of any capital gain dividends received from us, or such holder's share of any designated retained capital gains, with respect to such shares.

Consequences of the Merger to Non-U.S. Holders of our Common Shares

General

        The U.S. federal income tax consequences of the merger to a non-U.S. holder will depend on various factors, including whether the receipt of all or a portion of the aggregate merger consideration is treated as a distribution from us that is attributable to gain from the sale of "United States real property interests" (which we refer to as USRPIs) under the provisions of the Foreign Investment in Real Property Tax Act of 1980 (which we refer to as FIRPTA). The IRS announced in Notice 2007-55 that it intends to take the position that under current law, unless an exception applies, the receipt of a liquidating distribution from a REIT received by a non-U.S. holder (including the receipt of cash in exchange for common shares in the merger, which will be treated as having been received in a deemed liquidation of the Company for U.S. federal income tax purposes) is subject to tax under FIRPTA as a distribution to the extent attributable to gain from the sale of USRPIs. Although legislation that would effectively override Notice 2007-55 has previously been proposed, no such legislation has yet been enacted, and it is not possible to say if or when any such legislation will be enacted.

        Accordingly, we intend to take the position that the receipt of cash in exchange for our common shares pursuant to the merger will be subject to tax in accordance with Notice 2007-55 as described in more detail below. In general, the provisions governing the taxation of distributions by REITs can be less favorable to non-U.S. holders than the taxation of sales or exchanges of REIT shares by non-U.S. holders, and non-U.S. holders should consult their tax advisors regarding the application of these provisions.

Distribution of Gain from the Disposition of USRPIs

        To the extent the tax treatment set forth in Notice 2007-55 applies, and to the extent cash received by a non-U.S. holder in the merger is treated as a distribution attributable to gain from the deemed or actual sale of our USRPIs (which we expect to be a substantial portion of such cash), such amount will

Table of Contents

be treated as income effectively connected with a U.S. trade or business of the non-U.S. holder, and generally will be subject to U.S. federal income tax on a net basis. A corporate non-U.S. holder will also be subject to the 30% branch profits tax (or such lower rate as may be specified by an applicable income tax treaty). In addition, 21% (or 20% to the extent provided in U.S. Treasury Regulations) of any such amounts paid to a non-U.S. holder will be withheld and remitted to the IRS.

        Notwithstanding the foregoing, if our common shares are "regularly traded" (within the meaning of applicable U.S. Treasury Regulations) on an established securities market located in the United States (and the non-U.S. holder did not hold more than 10% of such class of stock during the one year period ending on the date of the merger), the tax treatment and consequences described above would not apply, and non-U.S. holders would instead be subject to the rules described below under "—Taxable Sale of Common Shares." We believe that our common shares are, and will be at the effective time of the merger, regularly traded on an established securities market located in the United States within the meaning of applicable U.S. Treasury Regulations. Non-U.S. holders should consult their tax advisors regarding withholding tax considerations.

Table of Contents

Taxable Sale of Common Shares

        Subject to the discussion above regarding distributions attributable to gain from the sale of USRPIs and the discussion below regarding backup withholding, a non-U.S. holder will generally not be subject to U.S. federal income tax or U.S. federal withholding tax on any gain or loss recognized on the receipt of cash in exchange for our common shares pursuant to the merger unless: (1) the gain is effectively connected with the non-U.S. holder's conduct of a trade or business in the United States, or, if an applicable income tax treaty applies, the gain is attributable to a permanent establishment maintained by the non-U.S. holder in the United States; (2) the non-U.S. holder is an individual present in the United States for 183 days or more in the taxable year of the merger and certain other requirements are met; or (3) such shares constitute USRPIs under FIRPTA.

        A non-U.S. holder whose gain is effectively connected with the conduct of a trade or business in the United States (or, if an applicable income tax treaty applies, is attributable to a permanent establishment maintained by the non-U.S. holder in the United States), generally will be subject to U.S. federal income tax on such gain on a net basis at the regular U.S. graduated rates in the same manner as a U.S. holder. In addition, a corporate non-U.S. holder may also, under certain circumstances, be subject to an additional branch profits tax.

        A non-U.S. holder who is an individual present in the United States for 183 days or more in the taxable year of the merger and who meets certain other requirements will be subject to a flat 30% tax on the gain derived from the merger, which may be offset by U.S. source capital losses of such non-U.S. holder, if any.

        If our common shares constitute a USRPI under FIRPTA, a non-U.S. holder would be subject to U.S. federal income tax on any gain or loss recognized on the receipt of cash in exchange for such common shares in the merger on a net basis at applicable U.S. graduated rates in the same manner as a U.S. holder, and such cash consideration may also be subject to the U.S. federal withholding tax under FIRPTA at a rate of 15%. A non-U.S. holder's common shares generally will not constitute a USRPI, and gain recognized by a non-U.S. holder upon receipt of cash in exchange for our common shares pursuant to the merger generally will not be subject to U.S. federal income or U.S. federal withholding tax under FIRPTA, if: (1) we are a "domestically controlled REIT," defined generally as a REIT in which, at all times during a specified testing period, less than 50% in value of the shares was held directly or indirectly by non-U.S. persons; or (2) our common shares are "regularly traded" (within the meaning of applicable U.S. Treasury Regulations) on an established securities market at the effective time of the merger (and the non-U.S. holder holds 10% or less of the total fair market value of such class of shares at all times during the shorter of (x) the five year period ending with the

Table of Contents

effective date of the merger and (y) the non-U.S. holder's holding period for the shares). We believe we are, and we expect to be at the effective time of the merger, a "domestically controlled REIT," but no assurances can be given that we are or will remain a domestically controlled REIT. In addition, we believe that our common shares are, and will be at the effective time of the merger, regularly traded on an established securities market (within the meaning of the applicable Treasury Regulation).

Consequences of the Merger to Holders of our Preferred Shares

        The redemption of our preferred shares will be treated as a taxable transaction. The U.S. federal income tax consequences of the redemption to holders of our preferred shares generally will be the same as the consequences to holders of our common shares described above with respect to the merger, except that the capital gain or loss recognized by a holder of our preferred shares will be measured by the difference between the amount of cash the holder receives in connection with the redemption of our preferred shares and such holder's adjusted tax basis in our preferred shares. Consistent with IRS Notice 2007-55 (described above), and without limiting any of the above discussion, 21% (or 20% to the extent provided in U.S. Treasury Regulations) of any cash received by a

Table of Contents

non-U.S. holder in the redemption, that is treated as a distribution attributable to gain from the deemed or actual sale of our USRPIs (which we expect to be a substantial portion of such cash), will be withheld and remitted to the IRS unless such holder qualifies for the 10% exception discussed above.

Information Reporting and Backup Withholding

        Information reporting and backup withholding (currently, at a rate of 24%) generally will apply to payments of cash made pursuant to the merger. Backup withholding will not apply, however, to a holder who (1) in the case of a U.S. holder, furnishes a correct taxpayer identification number and certifies that it is not subject to backup withholding on a duly executed IRS Form W-9, (2) in the case of a non-U.S. holder, furnishes a duly executed, applicable IRS Form W-8, or (3) is otherwise exempt from backup withholding and complies with other applicable rules and certification requirements.

        Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules may be claimed as a refund or a credit against such holder's U.S. federal income tax liability (if any) provided the required information is furnished to the IRS on a timely basis.

        This discussion of the material U.S. federal income tax consequences is for general information purposes only and is not tax advice. Holders of our common shares or preferred shares should consult their own tax advisors as to the specific tax consequences to them of the merger, including the effect of any federal, state, local, non-U.S. and other tax laws.

        Non-U.S. holders who hold, or have held during specified periods, directly, indirectly, or constructively, more than 10% of our outstanding common shares or more than 10% of our outstanding preferred shares generally are subject to special rules under FIRPTA. Such non-U.S. holders may be subject to tax on any gain recognized on the receipt of cash in exchange for their common shares or preferred shares pursuant to the merger or redemption, respectively, and withholding agents may withhold at a rate of up to 30% on such cash consideration. Non-U.S. holders should consult their own tax advisors regarding the application of the foregoing rules in light of their particular facts and circumstances, the procedures for claiming treaty benefits or otherwise establishing an exemption from U.S. withholding tax with respect to any portion of the cash consideration payable to them pursuant to the merger or in connection with the redemption, and the possible desirability of selling their shares (and considerations relating to the timing of any such sales).

Delisting and Deregistration of Our Common Shares and Preferred Shares

        If the merger is completed, our common shares and preferred shares will no longer be traded on the NYSE and will be deregistered under the Exchange Act.

Table of Contents

THE MERGER AGREEMENT

        The following summarizes the material provisions of the merger agreement. This summary does not purport to be complete and may not contain all of the information about the merger agreement that is important to you. The summary of the material terms of the merger agreement below and elsewhere in this proxy statement is qualified in its entirety by reference to the merger agreement, a copy of which is attached to this proxy statement as Exhibit A and which we incorporate by reference into this proxy statement. We recommend that you read the merger agreement attached to this proxy statement as Exhibit A carefully and in its entirety, as the rights and obligations of the parties are governed by the express terms of the merger agreement and not by this summary or any other information contained in this proxy statement.

        The merger agreement contains representations and warranties made by, and to, us, the Partnership, Parent, Merger Sub I and Merger Sub II. These representations and warranties, which are set forth in the copy of the merger agreement attached to this proxy statement as Exhibit A, were made for the purposes of negotiating and entering into the merger agreement between the parties, or may have been used for the purpose of allocating risk between the parties instead of establishing such matters as facts. In addition, these representations and warranties may be subject to important qualifications and limitations agreed by the parties in connection with negotiating the terms of the merger agreement, were made as of specified dates, and may be subject to standards of materiality different from what may be viewed as material to our shareholders. Moreover, information concerning the subject matter of the representations and warranties, which do not purport to be accurate as of the date of this proxy statement, may have changed since the date of the merger agreement and subsequent developments or new information qualifying a representation or warranty may have been included in this proxy statement. You should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or conditions of the Company or its affiliates.

        As used in the summary of the material terms of the merger agreement below and elsewhere in this proxy statement, unless the context requires otherwise, references to our "subsidiaries" do not include certain joint venture entities in which we, directly or indirectly through our subsidiaries, own interests.

Structure

The Partnership Merger

        At the partnership merger effective time, Merger Sub II will be merged with and into the Partnership, the separate existence of Merger Sub II will cease, and the Partnership will be the surviving partnership in the partnership merger. At the partnership merger effective time, all the properties, rights, privileges, powers and franchises of the Partnership and Merger Sub II will vest in the Surviving Partnership, and all debts, liabilities, duties and obligations of the Partnership and Merger Sub II will become the debts, liabilities, duties and obligations of the Surviving Partnership.

The Merger

        At the merger effective time, the Company will be merged with and into Merger Sub I, the separate existence of the Company will cease and Merger Sub I will be the surviving entity in the merger, such that immediately following the merger, Parent will be the sole limited partner of the Surviving Company and BRE Glacier LLC, a wholly owned subsidiary of Parent, will be the sole general partner of the Surviving Company. At the merger effective time, all the properties, rights, privileges, powers and franchises of the Company and Merger Sub I will vest in the Surviving Company, and all debts, liabilities, duties and obligations of the Company and Merger Sub I will become the debts, liabilities, duties and obligations of the Surviving Company. Following the completion of the merger, our common shares and preferred shares will no longer be traded on the NYSE and will be deregistered under the Exchange Act.

Table of Contents

Effective Times; Closing Date

        On the closing date, the Partnership and Merger Sub II will file a certificate of merger with the Secretary of State of the State of Delaware. The partnership merger will become effective at such time as the certificate of merger with respect to the partnership merger has been filed with the Secretary of State of the State of Delaware or on such other date and time as may be mutually agreed to by us and Parent and specified in the partnership merger certificate.

        On the closing date, Merger Sub I and the Company will file articles of merger with the State Department of Assessments and Taxation of Maryland and file a certificate of merger with the Secretary of State of the State of Delaware. The merger will become effective upon the later of the acceptance for record of the articles of merger with respect to the merger by the State Department of Assessments and Taxation of Maryland, the filing of the certificate of merger with respect to the merger with the Secretary of State of the State of Delaware, or on such other date and time as may be mutually agreed to by us and Parent and specified in the articles of merger and certificate of merger.

        Unless otherwise agreed in writing by the parties to the merger agreement, the partnership merger effective time and the merger effective time will occur on the closing date, with the merger effective time occurring immediately after the partnership merger effective time.

        In this proxy statement, we refer to the date on which the closing of the mergers occurs as the closing date. The closing of the mergers will take place on the third business day after satisfaction or waiver of the conditions to the mergers described under "—Conditions to the Mergers" (other than those conditions that by their nature are to be satisfied or waived at the closing of the mergers, but subject to the satisfaction or waiver of such conditions) or at such other date as may be mutually agreed to in writing by the parties to the merger agreement. However, Parent may on one or more occasions elect to delay the closing of the mergers to a date that is on or prior to October 10, 2018 by giving written notice to the Company (which we refer to as an extension notice) at least two business days immediately preceding the date that, but for such delivery of such extension notice, would have been the closing date. If Parent has delivered an extension notice, then Parent may, upon at least five business days' prior written notice to the Company, designate the closing date to occur on a business day occurring on or prior to October 10, 2018 (which we refer to as the designated closing date) (and, for the avoidance of doubt, Parent shall be entitled to provide one or more additional extension notices to delay the closing of the mergers to a date following such designated closing date that is on or prior to October 10, 2018, in which event the date specified in such additional extension notice(s) shall be the designated closing date). If, on the designated closing date, the conditions to the mergers described under "—Conditions to the Mergers" are not satisfied or waived (other than those conditions that by their nature are to be satisfied or waived at the closing of the mergers, but subject to the satisfaction or waiver of such conditions), then the closing of the mergers shall occur on the third business day following the satisfaction or waiver of the conditions to the mergers described under "—Conditions to the Mergers" (other than those conditions that by their nature are to be satisfied or waived at the closing of the mergers, but subject to the satisfaction or waiver of such conditions) or on such other date as may be mutually agreed to in writing by the parties to the merger agreement.

Organizational Documents

        At the merger effective time, the certificate of limited partnership and the limited partnership agreement of Merger Sub I, as in effect immediately prior to the merger effective time, will be the certificate of limited partnership and the limited partnership agreement, respectively, of the Surviving Company, until further amended in accordance with their respective terms or applicable law. The certificate of limited partnership of the Partnership, as amended and as in effect immediately prior to the partnership merger effective time, will be the certificate of limited partnership of the Surviving Partnership until amended on the closing date following the merger effective time in accordance with

Table of Contents

its terms and applicable law. The fourth amended and restated agreement of limited partnership of the Partnership, as further amended prior to the closing date as required by the merger agreement and as in effect immediately prior to the partnership merger effective time (which we refer to as the partnership agreement), will be the limited partnership agreement of the Surviving Partnership until further amended in accordance with its terms and applicable law.

Officers; General Partner and Limited Partners

        Following the partnership merger effective time and prior to the merger effective time, we will be the sole general partner and a limited partner of the Surviving Partnership. In the event that any of the holders of Class A partnership units elect to convert all or a portion of such holders' Class A partnership units into Series B preferred units, such holders of newly issued Series B preferred units will be additional limited partners of the Surviving Partnership immediately following the partnership merger effective time. If no holders of Class A partnership units elect to convert any Class A partnership units into Series B preferred units, a direct or indirect wholly owned subsidiary of Merger Sub I (designated by Parent prior to the partnership merger effective time) will be admitted as a limited partner of the Surviving Partnership immediately prior to the partnership merger effective time.

        Following the merger effective time, the Surviving Company will be the sole general partner of the Surviving Partnership, and BRE Glacier LLC will be the sole general partner of the Surviving Company. The officers of the Company immediately prior to the merger effective time will be the initial officers of the Surviving Company from and after the merger effective time.

Treatment of Common Shares, Preferred Shares and Equity Awards

Common Shares

        At the merger effective time, each of our common shares (other than (1) excluded shares, which will automatically be canceled and retired and will cease to exist with no consideration being delivered in exchange therefor, and (2) any of our common shares under a Company restricted share award) issued and outstanding immediately prior to the merger effective time will automatically be converted into the right to receive the merger consideration. If we declare a distribution reasonably necessary to maintain our status as a REIT under the Code or to avoid the payment of income or excise tax under the Code as permitted under the merger agreement, the merger consideration will be decreased by an amount equal to the per share amount of such distribution.

Preferred Shares

        Promptly following Parent's request after the date this proxy statement is mailed to our shareholders, we will deliver to the holders of record of our preferred shares a notice of redemption contemplated by the Series A Articles Supplementary. The redemption notice will be prepared by us, in form and substance reasonably satisfactory to Parent, and will state that each of our preferred shares held by such holder immediately prior to the merger effective time will be redeemed by us effective as of the closing date through the payment of the per preferred share redemption price. Such redemption will be subject to and conditioned upon the occurrence of the closing of the mergers. Prior to the merger effective time, Parent will deposit or cause to be deposited with the paying agent funds sufficient to pay the aggregate per preferred share redemption amount.

Restricted Share Awards

        Immediately prior to the merger effective time, each Company restricted share award that is outstanding immediately prior to the merger effective time will be cancelled in exchange for a cash payment in an amount equal to (1) the number of common shares subject to the Company restricted

Table of Contents

share award immediately prior to the merger effective time multiplied by (2) the merger consideration, less any applicable withholding taxes.

Restricted Share Unit Awards

        Immediately prior to the merger effective time, each Company RSU award that is outstanding immediately prior to the merger effective time will be cancelled in exchange for a cash payment in an amount equal to (1) the number of common shares subject to the Company RSU award immediately prior to the merger effective time multiplied by (2) the merger consideration, less any applicable withholding taxes.

Company Options

        Immediately prior to the merger effective time, each Company option that is outstanding immediately prior to the merger effective time will be cancelled in exchange for a cash payment in an amount equal to (1) the number of common shares subject to the Company option immediately prior to the merger effective time multiplied by (2) the excess (if any) of the merger consideration over the per share exercise price applicable to the Company option, less any applicable withholding taxes.

Company LTIP Units

        Each unvested Company LTIP unit that is outstanding on the business day prior to the partnership merger effective time will vest, without proration, pursuant to its terms on the business day prior to the closing date, and, with respect to the maximum number of vested Company LTIP units then eligible for conversion under the terms of the partnership agreement, we will exercise our right to convert each such vested Company LTIP unit (including those that vest on the business day prior to the closing date) into a Class A partnership unit immediately prior to the time at which the partnership merger becomes effective and be treated as a Class A partnership unit as described below.

Treatment of Interests in the Partnership

Class A Partnership Units

        In connection with the partnership merger, each Class A partnership unit issued and outstanding immediately prior to the partnership merger effective time (other than (1) Class A partnership units owned by the Company or any wholly owned subsidiary of the Company, which Class A partnership units will be unaffected by the partnership merger and will remain outstanding as partnership units of the Surviving Partnership held by the Company, and (2) Class A partnership units owned by Parent, Merger Sub II or any of their respective wholly owned subsidiaries, which will automatically be canceled and will cease to exist with no consideration being delivered in exchange therefor) will automatically be converted into, and canceled in exchange for, the right to receive the merger consideration. As discussed above, if we declare a distribution reasonably necessary to maintain our status as a REIT under the Code, or to avoid the payment of income or excise tax as permitted under the merger agreement, the merger consideration will be decreased by an amount equal to the per share amount of such distribution.

        Each "eligible" minority limited partner may elect to convert all or a portion of such minority limited partner's Class A partnership units (including Company LTIP units that will be converted, prior to the partnership merger effective time, into Class A partnership units as described above) into Series B preferred units on a one-for-one basis, without interest, on the terms to be described in election materials that will be separately sent to the minority limited partners. Minority limited partners will only be eligible to elect to convert their Class A partnership units (including Company LTIP units that will be converted, prior to the partnership merger effective time, into Class A partnership units as described above) into Series B preferred units in the Surviving Partnership if they (1) make a valid and

Table of Contents

timely election to receive Series B preferred units pursuant to the election materials that will be separately sent to such minority limited partners, (2) are "accredited investors" as defined under the U.S. securities laws and not "benefit plan investors" within the meaning of ERISA or other plan, account or arrangement (or entity whose assets constitute the assets of a plan, account or arrangement) that is subject to any laws or regulations that are similar to the fiduciary responsibility or prohibited transactions provisions of ERISA or the Code and (3) agree to be bound by the terms of a new limited partnership agreement of the Surviving Partnership. In addition, the issuance of such Series B preferred units must also be exempt from registration under the Securities Act and applicable state and foreign securities laws in order for minority limited partners to elect to receive such Series B preferred units in the Surviving Partnership. Minority limited partners who do not meet any of the requirements described above will only be entitled to receive the cash merger consideration in respect of their Class A partnership units (including Company LTIP units that will be converted, prior to the partnership merger effective time, into Class A partnership units as described above). As described above under the section captioned "The Mergers—Interests of Our Trustees and Executive Officers in the Mergers," certain of our trustees and executive officers beneficially own Class A partnership units and will be offered the opportunity to participate in this election.This proxy statement does not constitute any solicitation of consents in respect of the partnership merger, and does not constitute an offer to exchange or convert the Class A partnership units (including the Company LTIP units that will be converted, prior to the partnership merger effective time, into Class A partnership units as described above) that you may own for or into Series B preferred units in the Surviving Partnership.

        In general, Series B preferred units in the Surviving Partnership will have the following terms:

•

each Series B preferred unit will have a stated liquidation preference of $27.50 plus, if the mergers are consummated after October 15, 2018, a per diem amount of approximately $0.004 in cash for each day from and after such date until (but not including) the closing date; distributions of available cash when, as and if made by the Surviving Partnership will be payable on a quarterly basis, in preference to all holders of other classes of partnership interests in the Surviving Partnership, until each holder of Series B preferred units has received a cumulative return of 5.75% per annum on the stated liquidation preference, which we refer to as the preferred return;



•

upon liquidation of the Surviving Partnership, holders of Series B preferred units will be entitled to the liquidation preference plus any accrued but unpaid preferred return prior to any distributions being made on any other partnership interests in the Surviving Partnership;



•

each holder of Series B preferred units will be entitled to receive from the Surviving Partnership quarterly distributions of cash in amounts sufficient to enable such holders to pay, on a quarterly basis, U.S. federal, state and local income taxes arising from the allocations made (or estimated to be made) to such holder with respect to the cash distributions to such holder, to the extent that distributions otherwise paid to such holders in such quarter and prior quarters in such fiscal year are not sufficient for such holders to pay such taxes; the amount of such distributions will be set forth in a formula in the new limited partnership agreement of the Surviving Partnership; and any such distributions will reduce the amount of any accrued but unpaid distributions in respect of the preferred return;



•

commencing on the earlier of (1) the date the amount of "Total Capital" as reflected in the Surviving Partnership's unaudited consolidated balance sheet for a calendar quarter is less than $100 million (which we refer to as a total capital shortfall event) and (2) December 31, 2019 (or, if earlier, upon the Surviving Partnership becoming a subsidiary of any public REIT or upon the death of a holder of Series B preferred units), any holder of Series B preferred units may require the Surviving Partnership to redeem all or any portion of such holder's Series B

Table of Contents

preferred units for cash in an amount per Series B preferred unit equal to the liquidation preference plus any accrued and unpaid preferred return, provided that:

o

except in the case of a Total Capital shortfall event or the death of a holder of any Series B preferred units, such redemption right will be exercisable once per quarter during the first month of each fiscal quarter of the Surviving Partnership commencing January 2020; and



o

if the Surviving Company (or its direct or indirect parent) becomes a public REIT, the Surviving Company, as the general partner of the Surviving Partnership, will have the right to amend such redemption provisions to provide the public REIT the option to issue publicly traded stock in such public REIT to any redeeming holder who consents to such substitution with respect to such particular redemption in lieu of cash;



•

commencing on the fifth anniversary of the closing date, the Surviving Partnership will have the right, in its sole discretion, to redeem all or any portion of the Series B preferred units for cash in an amount per Series B preferred unit equal to the liquidation preference plus any accrued and unpaid preferred return (provided, that such right may not be exercised for less than all of the outstanding Series B preferred units if, after the exercise of such right, Series B preferred units with less than $5 million in aggregate liquidation preference would remain outstanding);



•

holders of Series B preferred units will have no voting rights or other consent rights in the Surviving Partnership, except that, so long as there are at least $5 million in aggregate liquidation preference of Series B preferred units outstanding, holders of a majority of the outstanding Series B preferred units must approve amendments to certain provisions of the Surviving Partnership's partnership agreement; and



•

the Surviving Partnership will, upon request, provide holders of Series B preferred units with unaudited quarterly and audited annual financial statements.

Partnership Preferred Units

        Effective as of the closing date, each of the Partnership's 7.125% Series A Cumulative Redeemable Preferred Units (which we refer to as partnership preferred units) held by us will be redeemed, subject to and conditioned upon the occurrence of the closing of the mergers and the redemption of our preferred shares.

General Partnership Interests

        At the partnership merger effective time, each Class A partnership unit outstanding immediately prior to the partnership merger effective time and owned by us will remain outstanding as a general partner interest of the Surviving Partnership. Following the merger effective time, the Surviving Company will be the general partner of the Surviving Partnership and will have such rights, duties and obligations as are more fully set forth in the partnership agreement of the Surviving Partnership, as amended and as further amended in accordance with the terms of the merger agreement.

No Further Ownership Rights

        At the merger effective time and the partnership merger effective time, as applicable, holders of our common shares and the holders of Class A partnership units, respectively, will cease to be, and will have no rights as, our shareholders or limited partners of the Partnership other than the right to receive the merger consideration, without interest or, in the case of holders of Class A partnership units that elect to convert their Class A partnership units into Series B preferred units, such Series B preferred units. The merger consideration paid and, if applicable, Series B preferred units delivered upon the surrender for exchange of certificates representing common shares or Class A partnership

Table of Contents

units will be deemed to have been paid or delivered, as the case may be, in full satisfaction of all rights and privileges pertaining to the common shares or Class A partnership units exchanged therefor.

Exchange and Payment Procedures

        On or before the partnership merger effective time, Parent will deposit, or cause to be deposited, with a paying agent reasonably satisfactory to us, for the benefit of the holders of our common shares and the Class A partnership units, the merger consideration and, if Parent directs the paying agent act as exchange agent with respect to the exchange of Class A partnership units for Series B preferred units, the Series B preferred units, less the merger consideration to be paid in respect of our equity awards as described in "—Treatment of Common Shares, Preferred Shares and Equity Awards" above (but including the merger consideration payable in respect of Class A partnership units upon conversion of Company LTIP units prior to the partnership merger effective time as described above). As soon as possible after the closing date (but in any event within five business days), the paying agent will mail to each holder of record of a certificate or certificates that, immediately prior to the merger effective time, represented outstanding common shares or that, immediately prior to the partnership merger effective time, represented applicable Class A partnership units, a letter of transmittal and instructions for use in effecting the surrender of the certificates or applicable Class A partnership units in exchange for the merger consideration or Series B preferred units, as applicable, to which the holder thereof is entitled. The letter of transmittal and instructions will tell you how to surrender your certificates representing common shares and any applicable Class A partnership units, as applicable, in exchange for the merger consideration or Series B preferred units, as applicable.

        Holders of book-entry common shares or book-entry Class A partnership units will not receive a letter of transmittal for their common shares or Class A partnership units from the paying agent. Instead, holders of such book-entry common shares or book-entry Class A partnership units will automatically be entitled to receive in exchange therefor the merger consideration or Series B preferred units, as applicable, to which the holder thereof is entitled.

        Upon surrender of a certificate that previously represented common shares or applicable Class A partnership units to the paying agent, together with a letter of transmittal, duly executed and completed in accordance with the instructions thereto, and such other documents as may be reasonably be required by the paying agent, the holder of such certificate will be entitled to receive the merger consideration or Series B preferred units, as applicable, payable in respect of the shares of our common shares or applicable Class A partnership units previously represented by such certificate. The merger consideration may be paid and Series B preferred units may be delivered to a person other than the person in whose name the certificate so surrendered is registered in our and the Partnership's transfer records, if any such certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such payment pays any transfer or other taxes or establishes to the reasonable satisfaction of Parent that such tax has been paid or is not applicable.

        No interest will be paid or will accrue on any cash payable upon surrender of any certificate. The Company, the Surviving Company, the Surviving Partnership or the paying agent, as applicable, will be entitled to deduct and withhold from any amounts otherwise payable pursuant to the merger agreement to any person such amounts as it is required to deduct and withhold with respect to the making of such payment (and, with respect to our equity awards, the vesting, cancellation or redemption of such equity awards, as applicable) under the Code, and the rules and regulations promulgated thereunder, or any provision of state, local or foreign tax law, and such amounts deducted or withheld shall be treated as having been paid to the person in respect of which deduction or withholding was made.

        On the closing date, the share transfer books of the Company and the unit transfer books of the Partnership will be closed and thereafter there will be no further registration of transfers of common shares or Class A partnership units.

Table of Contents

        None of Parent, Merger Sub I, the Surviving Company, the Partnership, Merger Sub II, the Surviving Partnership, the Company or the paying agent, or any employee, officer, trustee, director, agent or affiliate thereof, will be liable to any person in respect of any merger consideration or Series B preferred units delivered to a public official pursuant to any applicable abandoned property, escheat or similar law.

        Any portion of the merger consideration and Series B preferred units which remains undistributed to the holders of the certificates or the holders of any common shares or Class A partnership units held in book-entry for twelve months after the closing date will be delivered to the Surviving Company, and any holders of our common shares or Class A partnership units prior to the merger effective time or partnership merger effective time, as applicable, who have not theretofore complied with the exchange and payment procedures contained in the merger agreement must look only to the Surviving Company and only as general creditors thereof for payment of the merger consideration or Series B preferred units, as applicable.

        If any certificate has been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such certificate to be lost, stolen or destroyed to the reasonable satisfaction of Parent and the paying agent and the taking of such other actions as may be reasonably requested by the paying agent, the paying agent will issue, in exchange for such lost, stolen or destroyed certificate, the merger consideration or Series B preferred units, as applicable, pursuant to the merger agreement.

Representations and Warranties

        We and the Partnership, jointly and severally, have made customary representations and warranties in the merger agreement that are subject, in some cases, to specified exceptions and qualifications contained in the merger agreement or in the disclosure schedules delivered in connection therewith. These representations and warranties relate to, among other things:

•

the organization, valid existence, good standing, qualification to do business and power and authority to own, lease and operate its properties and assets and to carry on the businesses of each of us, the Partnership and our subsidiaries;



•

our declaration of trust and bylaws and the similar organizational documents of the Partnership;



•

the capital structure and indebtedness of, and the absence of restrictions or encumbrances with respect to the equity interests of each of us, the Partnership and our subsidiaries;



•

our and the Partnership's power and authority to execute and deliver the merger agreement, and, subject to the approval of our common shareholders, to consummate the transactions contemplated by the merger agreement;



•

the enforceability of the merger agreement against us and the Partnership;



•

the absence of conflicts with, or violations of, laws or organizational documents and the absence of any consents under, conflicts with or defaults under contracts to which we, the Partnership or any of our subsidiaries is a party, in each case as a result of us executing, delivering and performing under or consummating the transactions contemplated by, the merger agreement;



•

approvals of, filings with, or notices to, governmental entities required in connection with entering into, performing under or consummating the transactions contemplated by, the merger agreement;



•

our and the Partnership's SEC filings since January 1, 2016 and the financial statements contained in those filings;



•

our internal controls over financial reporting and the disclosure controls and procedures;

Table of Contents

•

the accuracy of the information supplied by us in this proxy statement;



•

the absence of any material adverse effect (as discussed below) and certain other changes and events since December 31, 2017;



•

the absence of liabilities required to be recorded on a balance sheet under GAAP since December 31, 2017;



•

possession of all permits necessary for us and our subsidiaries to own, lease and operate our and our subsidiaries' properties and assets and to carry on and operate our and our subsidiaries' businesses as currently conducted, the absence of a failure by us or our subsidiaries to comply with such permits, and the conduct by us and our subsidiaries of our and our subsidiaries' businesses in compliance with applicable laws;



•

our and our subsidiaries' compliance with laws, including the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder;



•

the absence of any suit, claim, action, investigation or proceeding against us or our subsidiaries;



•

our and our subsidiaries' employee benefit plans;



•

labor matters affecting us and our subsidiaries;



•

tax matters affecting us and our subsidiaries;



•

real property owned and leased by us and our subsidiaries; our and our subsidiaries' ground leases, leases, space leases, development projects, participation agreements and joint venture agreements;



•

environmental matters affecting us and our subsidiaries;



•

intellectual property used by, owned by or licensed by us and our subsidiaries;



•

our and our subsidiaries' material contracts and the absence of any breach of or default under the terms of any material contract;



•

the receipt by our board of trustees of a fairness opinion from Morgan Stanley, to the effect that, as of the date of such fairness opinion, the merger consideration to be received by the holders of our common shares is fair, from a financial point of view, to such holders;



•

the exemption of the mergers and the merger agreement from the requirements of any moratorium, control share, fair price, affiliate transaction, business combination or other takeover laws and regulations, including in the Maryland REIT Law, the Maryland General Corporation Law or the Delaware Revised Uniform Limited Partnership Act;



•

the vote of our common shareholders required in connection with the approval of the merger and the other transactions contemplated by the merger agreement and the approval of us as the general partner of the Partnership;



•

our and our subsidiaries' insurance policies;



•

our and our subsidiaries' status under the Investment Company Act of 1940, as amended; and



•

the absence of any broker's or finder's fees, other than those payable to our financial advisors, in connection with the transactions contemplated by the merger agreement.

        Many of our representations and warranties are qualified by the concept of a "material adverse effect." Under the terms of the merger agreement, a material adverse effect means any change, event, state of facts or development that has had or would reasonably be expected to have a material adverse effect on (1) the business, financial condition, assets or continuing results of operations of us and our

Table of Contents

subsidiaries, taken as a whole, or (2) the ability of us or the Partnership to consummate the mergers before November 6, 2018; provided, however, that in the case of clause (1), no change, event, state of facts or development resulting from any of the following shall be deemed to be or taken into account in determining whether there has been or will be, a "material adverse effect":

•

the entry into or the announcement, pendency or performance of the merger agreement or the transactions contemplated by the merger agreement, including (i) the identity of Parent and its affiliates, (ii) by reason of any communication by Parent or any of its affiliates regarding the plans or intentions of Parent with respect to the conduct of our and our subsidiaries' business following the merger effective time, (iii) the failure to obtain any third party consent in connection with the transactions contemplated thereby and (iv) the impact of any of the foregoing on any relationships with customers, suppliers, vendors, business partners, employees or any other person;



•

any change, event or development in or affecting financial, economic, social or political conditions generally or the securities, credit or financial markets in general, including interest rates or exchange rates, or any changes therein, in the United States or other countries in which we or our subsidiaries conduct operations or any change, event or development generally affecting the industries in which we and our subsidiaries operate;



•

any change in the market price or trading volume of our equity securities or of our or our subsidiaries' equity or credit ratings or our or our subsidiaries' ratings outlook by any applicable rating agency; provided, however, that the exception in this bullet point shall not prevent the underlying facts giving rise or contributing to such change, if not otherwise excluded from the definition of material adverse effect, from being taken into account in determining whether a material adverse effect has occurred;



•

the suspension of trading in securities generally on the New York Stock Exchange;



•

any adoption, implementation, proposal or change after the date of the merger agreement in any applicable law or GAAP or interpretation of any of the foregoing;



•

any action taken or not taken to which Parent has consented in writing;



•

any action expressly required to be taken by the merger agreement or taken at the request of Parent;



•

the failure of us or our subsidiaries to meet any internal or public projections, budgets, forecasts or estimates of revenues, earnings or other financial results for any period ending on or after the date of the merger agreement; provided, however, that the exception in this bullet point shall not prevent the underlying facts giving rise or contributing to such failure, if not otherwise excluded from the definition of material adverse effect, from being taken into account in determining whether a material adverse effect has occurred; and provided, further, that this bullet point shall not be construed as implying that we are making any representation or warranty with respect to any internal or public projections, budgets, forecasts or estimates of revenues, earnings or other financial results for any period;



•

the commencement, occurrence, continuation or escalation of any war, armed hostilities or acts of terrorism;



•

any actions or claims made or brought by any of our or our subsidiaries' current or former shareholders or equityholders (or on their behalf or on behalf of us or our subsidiaries, but in any event only in their capacities as current or former shareholders or equityholders) arising out of the merger agreement or the mergers; or

Table of Contents

•

the existence, occurrence or continuation of any force majeure events, including any earthquakes, floods, hurricanes, tropical storms, fires or other natural disasters or any national, international or regional calamity;

provided, that (1) with respect to the exceptions set forth in the second, fifth, ninth and eleventh bullet points above, such changes, events, state of facts or developments may be taken into account to the extent they disproportionately adversely affect us and our subsidiaries, taken as a whole, compared to other companies operating in the United States in the industries in which we and our subsidiaries operate and (2) the first and tenth bullet points above do not apply to the references to material adverse effect in certain representations and warranties.

        The merger agreement also contains customary representations and warranties made, jointly and severally, by Parent, Merger Sub I and Merger Sub II that are subject, in some cases, to specified exceptions and qualifications contained in the merger agreement. These representations and warranties relate to, among other things:

•

their organization, valid existence, good standing, qualification to do business and power and authority to own, lease and operate its properties and assets and to carry on their businesses;



•

their power and authority to execute and deliver the merger agreement and to consummate the transactions contemplated by the merger agreement;



•

the enforceability of the merger agreement against them;



•

the absence of conflicts with, or violations of, laws or organizational or governing documents and the absence of any consents under, conflicts with or defaults under contracts to which they are a party, in each case as a result of them executing, delivering and performing under or consummating the transactions contemplated by, the merger agreement;



•

approvals of, filings with, or notices to, governmental entities required in connection with entering into, performing under or consummating the transactions contemplated by, the merger agreement;



•

the absence of any suit, claim, action or proceeding against them which would reasonably be expected to prevent or materially delay the consummation of the transactions contemplated by the merger agreement;



•

no broker, finder or investment banker being entitled to any brokerage, finder's or other fee or commission payable by us or any of our affiliates or us or our affiliates' respective shareholders in connection with the mergers based upon arrangements made by and on behalf of them;



•

the accuracy of the information supplied by them in this proxy statement;



•

the ownership of Merger Sub I and Merger Sub II and absence of prior conduct of activities or business of Merger Sub I and Merger Sub II;



•

the equity commitment letter made available by Parent to us (including the enforceability thereof) and, assuming that the equity funding is provided in accordance with the equity commitment letter, the accuracy of the representations and warranties under the merger agreement and the performance by us and the Partnership in all material respects of our obligations under the merger agreement, that at the closing Parent will have sufficient cash on hand to consummate the transactions contemplated by the merger agreement and satisfy all of its obligations under the merger agreement including the payment of the merger consideration, any fees and expenses, any payments in respect of equity compensation obligations required to be made in connection with the mergers, and any repayment or refinancing of any outstanding indebtedness of Parent, the Company and their respective subsidiaries required in connection therewith;

Table of Contents

•

the guaranty executed by the Sponsor;



•

the solvency of the Surviving Company and each of its subsidiaries, including the Surviving Partnership, immediately following the merger effective time and after giving effect to all of the transactions contemplated by the merger agreement; and



•

the absence of any contract with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis in connection with any transaction involving us or the Partnership (or otherwise on terms that would prohibit such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to us or our subsidiaries).

The representations and warranties of each of the parties to the merger agreement will expire upon the closing of the mergers.

Conduct of Our Business Pending the Mergers

        Under the merger agreement, we have agreed that, subject to certain exceptions in the merger agreement and the disclosure schedules delivered in connection therewith, between the date of the merger agreement and the earlier of the closing date and the termination of the merger agreement in accordance with its terms (which period we refer to as the interim period), we will, and will cause our subsidiaries to, in all material respects, use commercially reasonable efforts:

•

to carry on our and our subsidiaries' respective businesses in the ordinary course of business, consistent with the certain budgets that we have provided to Parent and past practice;



•

to maintain and preserve substantially intact our and our subsidiaries' current business organizations;



•

to retain the services of our and our subsidiaries' respective current officers and key employees;



•

to preserve our and our subsidiaries' goodwill and relationships with tenants and others having business dealings with us and our subsidiaries; and



•

to preserve our and our subsidiaries' assets and properties in good repair and condition (normal wear and tear excepted).

        We have also agreed that during the interim period, subject to certain exceptions set forth in the merger agreement and the disclosure schedules delivered in connection therewith or unless Parent consents in writing (which consent may not be unreasonably withheld, delayed or conditioned), we and our subsidiaries will not, among other things:

•

amend our or the Partnership's organizational documents, or, other than in the ordinary course of business consistent with past practice, our other wholly owned subsidiaries' organizational documents;



•

authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver any shares of any class, partnership interests or any equity equivalents (including any share options or share appreciation rights) or any other securities convertible into or exchangeable for any shares, partnership interests or any equity equivalents (including any share options or share appreciation rights), except for the issuance or sale of our common shares (1) pursuant to the exercise or vesting or redemption of our equity awards outstanding on the date of the merger agreement or issuances pursuant to our 2017 employee stock purchase plan in accordance with the merger agreement or (2) issuable upon exchange or redemption of units of partnership interest in the Partnership in accordance with the terms of the partnership agreement;

Table of Contents

•

split, combine or reclassify any of our or any of our subsidiaries' share capital, partnership interests or other equity interests;



•

authorize, declare, set aside or pay any dividend or other distribution in respect of our or our subsidiaries' share capital, partnership interests or other equity interests or make any actual, constructive or deemed distribution in respect of any shares of our or our subsidiaries' share capital, partnership interests or other equity interests or otherwise make any payments to equityholders in their capacity as such, except (1) for distributions reasonably necessary to maintain our status as a REIT under the Code or to avoid the payment of income or excise tax, which distributions will result in a reduction of the merger consideration as described under "—Treatment of Common Shares, Preferred Shares and Equity Awards—Common Shares," (2) for the payment of dividends or distributions declared prior to the date of the merger agreement, (3) for the declaration and payment in the ordinary course of business of regular quarterly cash dividends or other distributions on the preferred shares and partnership preferred units in an amount not to exceed a quarterly rate of (x) $0.44531 per preferred share and (y) $0.44531 per partnership preferred unit, (4) the payment of dividends earned but not yet paid as of the date of the merger agreement to holders of LTIP Units under certain of our equity plans, (5) in transactions between us and one or more of our wholly owned subsidiaries or solely between our wholly owned subsidiaries, or (6) for distributions by any of our subsidiaries that is not wholly owned, directly or indirectly, by us, in accordance with the requirements of the organizational documents of such subsidiary;



•

redeem, repurchase or otherwise acquire, directly or indirectly, any of our or our subsidiaries' securities or any securities of any of our or our subsidiaries' subsidiaries, except as may be required by our declaration of trust or the partnership agreement, the withholding of our common shares from an equity award or acquisition of our common shares from a holder of an equity award, in each case, in satisfaction of tax withholding obligations or in payment of the applicable exercise price in accordance with the terms of our applicable equity plan, or as may be reasonably necessary for us to maintain our status as a REIT under the Code or avoid the payment of any income or excise tax;



•

enter into any contract with respect to the voting or registration of any capital share or equity interest of us or our subsidiaries;



•

authorize, recommend, propose or announce an intention to adopt or effect, or adopt or effect a plan of complete or partial liquidation, dissolution, merger, consolidation, conversion, restructuring, recapitalization or other reorganization;



•

incur, assume, refinance or guarantee any indebtedness for borrowed money or issue any debt securities, or assume or guarantee any indebtedness for borrowed money of any person, except (1) for borrowings and guarantees under existing loan documents in the ordinary course of business consistent with past practice, (2) in connection with certain allowed acquisitions of any interest in any person or any assets, real property, personal property, equipment, business or other rights (subject to certain requirements, as described below), provided that any indebtedness shall be prepayable at any time without penalty or premium, or (3) indebtedness in an amount not to exceed $10,000,000 in the aggregate and is not secured, directly or indirectly, by any of our real property, provided that any indebtedness shall be prepayable at any time without penalty or premium;



•

prepay, refinance or amend any indebtedness, except for (1) repayments under our existing credit facilities in the ordinary course of business consistent with past practice (specifically excluding the loans secured, directly or indirectly, by any of our real property), and (2) mandatory payments under the terms of any indebtedness in accordance with its terms;

Table of Contents

•

make loans, advances or capital contributions to or investments in any person (other than as required by any joint venture agreement or as otherwise permitted under the merger agreement);



•

create or suffer to exist any material lien (other than certain permitted liens) on shares of stock, partnership interests or other equity interests of any of our subsidiaries;



•

enter into, adopt, amend or terminate any company employee benefit plan;



•

enter into, adopt, amend or terminate any agreement, arrangement, plan or policy between us or any of our subsidiaries and one or more of our or our subsidiaries' (1) employees with an annual base salary of $150,000 or above or (2) trustees;



•

increase in any manner the compensation or fringe benefits of any employee, officer or trustee, except for increases or payments in the ordinary course of business consistent with past practice with respect to any employees with an annual base salary below $150,000;



•

grant to any officer, trustee, director or employee the right to receive any new severance, change of control or termination pay or termination benefits or any increase in the right to receive any severance, change of control or termination pay or termination benefits;



•

enter into any new employment, loan, retention, consulting, indemnification, change-in-control, termination or similar agreement, except in the ordinary course of business consistent with past practice with respect to any employee with an annual base salary below $150,000;



•

grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or company employee benefit plan (including the grant of stock options, stock appreciation rights, stock-based or stock-related awards, performance units or restricted stock, or long-term incentive units);



•

hire any new employee, other than with respect to employees with prospective total compensation of not more than $150,000;



•

take any action to fund, accelerate or in any way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or company employee benefit plan;



•

other than in the ordinary course of business, sell, transfer, assign, dispose of, pledge or encumber (other than certain permitted liens) any of our or our subsidiaries' material personal property, equipment or assets (other than as provided in the merger agreement);



•

sell, transfer, ground lease, dispose of, pledge, or encumber (other than certain permitted liens) any real property (including our real property) other than execution of easements, covenants, rights of way, restrictions and other similar instruments in the ordinary course of business that, individually or in the aggregate, would not reasonably be expected to materially impair the existing use, operation or value of, the property or asset affected by the applicable instrument, except in connection with the incurrence of any indebtedness permitted to be incurred by the Company pursuant to the merger agreement;



•

make any material change to any financial accounting policies or financial accounting procedures that would materially affect the consolidated assets, liabilities or results of operations of us or any of our subsidiaries, except as may be required as a result of a change in law or in GAAP or statutory or regulatory accounting rules or interpretations with respect thereto or any governmental entity or quasi-governmental entity;



•

acquire any interest in any person (or equity interests thereof) or any assets, real property, personal property, equipment, business or other rights, other than (1) acquisitions of personal

Table of Contents

property (and not real property) in the ordinary course of business consistent with past practice for consideration that does not exceed $5,000,000 individually or in the aggregate and (2) acquisitions of assets or real property pursuant to certain specified contracts;

•

file any material tax return that is materially inconsistent with a previously filed tax return of the same type for a prior taxable period (taking into account any amendments), make or change any material tax election, settle or compromise any material tax claim or assessment by any governmental entity, change any accounting method with respect to taxes, enter into any closing agreement with a taxing authority, surrender any right to claim a refund of a material amount of taxes or consent (other than in the ordinary course of business) to any extension or waiver of the limitation period applicable to any material tax claim or assessment (except, in each case, unless we reasonably determine, after prior consultation with Parent, that such action is required by law or necessary to preserve our status as a REIT or to preserve the status of any of our subsidiaries as a REIT, partnership, disregarded entity, taxable REIT subsidiary or qualified REIT subsidiary for U.S. federal income tax purposes);



•

settle or compromise any claim, suit or proceeding against us or any of our subsidiaries (or for which we or any of our subsidiaries would be financially responsible) (other than claims, suits or proceedings with respect to taxes), except for (1) settlements or compromises providing solely for payment of amounts less than $2,000,000 individually, or $5,000,000 in the aggregate, or (2) claims, suits or proceedings arising from the ordinary course of our operations involving collection matters or personal injury which are fully covered by adequate insurance (subject to customary deductibles);



•

enter into any new line of business;



•

(1) amend in any material respect or terminate, or waive compliance with the material terms of or material breaches under, or assign, or renew or extend (except as may be required under the terms thereof), any material space lease or material company lease, (2) amend or terminate, or waive compliance with the terms of or breaches under, or assign, or renew or extend (except as may be required by the terms thereof) any other material contract or (3) enter into any new material contract, agreement or arrangement, provided that Parent shall be deemed to have given its written consent to such actions (subject to certain specified exceptions) if Parent fails to respond to our written request for approval of any such action within 48 hours of receipt of any such request;



•

make, enter into any contract for, or otherwise commit to any capital expenditures or development expenditures on, relating to, or adjacent to any of our real property, except for (1) capital expenditures and development expenditures required by law, (2) emergency capital expenditures and development expenditures in any amount that we determine is necessary in our reasonable judgment to maintain our ability to operate our businesses in the ordinary course, (3) capital expenditures up to certain specified thresholds subject to a budget, (4) development expenditures up to certain specified thresholders subject to a budget and (5) capital expenditures and development expenditures in any amount not exceeding $3,000,000 in the aggregate;



•

initiate or consent to any material zoning reclassification of any of our real property or any material change to any approved site plan (in each case, that is material to our real property or plan, as applicable), special use permit or other land use entitlement affecting any of our material real property in any material respect;



•

amend, modify or terminate, or authorize any person to amend, modify, terminate or allow to lapse, any material company permit;



•

fail to use commercially reasonable efforts to maintain in full force and effect our or our subsidiaries' existing insurance policies or to replace our insurance policies with comparable

Table of Contents

insurance policies covering us and our subsidiaries and our and our subsidiaries' respective properties, assets and businesses (including real property);

•

enter into, amend or modify any tax protection agreement, or take any action or fail to take any action that would violate or be inconsistent with any tax protection agreement or otherwise give rise to a material liability with respect thereto; and



•

authorize or enter into any contract or arrangement to do any of the actions described in the foregoing bullet points.

Shareholders' Meeting

        Under the merger agreement, we are required, as soon as reasonably practicable following the date that this proxy statement is cleared by the SEC for mailing to our common shareholders, to duly call, give notice of, convene and hold a meeting of the holders of our common shares for the purpose of seeking shareholder approval of the merger and the other transactions contemplated by the merger agreement, which we refer to as the special meeting. We are required to (1) through our board of trustees, recommend to holders of our common shares that they vote in favor of the merger so that we may obtain the approval the merger and the other transactions contemplated by the merger agreement and (2) use our reasonable best efforts to solicit approval of the merger and the other transactions contemplated by the merger agreement by our common shareholders (including by soliciting proxies from our shareholders), except in each case to the extent that our board of trustees has effected an adverse recommendation change, as permitted by and determined in accordance with the provisions described below under "—Restriction on Solicitation of Company Acquisition Proposals." Unless the merger agreement is terminated in accordance with its terms, we are prohibited from submitting to the vote of our shareholders any company acquisition proposal.

        For purposes of the merger agreement, "company acquisition proposal" means any inquiry, offer or proposal from any person or "group" (as defined in Section 13(d)(3) of the Exchange Act) regarding any of the following (other than the mergers) involving any of us, the Partnership or our respective subsidiaries:

•

any merger, consolidation, share exchange, recapitalization, dissolution, liquidation, business combination or other similar transaction involving us or the Partnership;



•

any sale, lease, exchange, mortgage, pledge, transfer or other disposition, directly or indirectly, by merger, consolidation, sale of equity interests, share exchange, joint venture, business combination or otherwise, of 15% or more of the consolidated assets of us, the Partnership and our other subsidiaries, taken as a whole (as determined on a book-value basis (including indebtedness secured solely by such assets)), in a single transaction or series of related transactions;



•

any issue, sale or other disposition (including by way of merger, consolidation, sale of equity interests, share exchange, joint venture, business combination or otherwise) of securities (or options, rights or warrants to purchase, or securities convertible into, such securities) representing 15% or more of our voting power or 15% or more of the equity interests or general partner interests in the Partnership;



•

any tender offer or exchange offer for 15% or more of any class of our equity securities or 15% or more of the equity interests or general partner interests in the Partnership or the filing of a registration statement under the Securities Act in connection therewith;



•

any other transaction or series of related transactions pursuant to which any third party proposes to acquire control of our or the Partnership's and our respective subsidiaries' assets having a fair market value equal to or greater than 15% of the fair market value of all of our, the

Table of Contents

Partnership's and our respective subsidiaries' assets, taken as a whole, immediately prior to such transaction; or

•

any public announcement of a proposal, plan or intention to do any of the foregoing or any agreement to engage in any of the foregoing.

        Notwithstanding anything to the contrary contained in the merger agreement, we may adjourn or postpone the special meeting:

•

after consultation with Parent, to the extent necessary to ensure that any required supplement or amendment to this proxy statement is provided to our shareholders within a reasonable amount of time in advance of a vote on the merger and the other transactions contemplated by the merger agreement; or



•

after consultation with Parent, if additional time is reasonably required to solicit proxies in favor of the approval of the merger, provided that, in the case of this second bullet point, without the written consent of Parent, in no event will the special meeting (as so postponed or adjourned) be held on a date that is more than 30 days after the date for which the special meeting was originally scheduled.

Under the merger agreement, we must call, give notice of, convene and hold the special meeting and mail this proxy statement to our shareholders without regard to an adverse recommendation change, unless the merger agreement has been terminated in accordance with its terms.

Agreement to Take Certain Actions

        Subject to the terms and conditions of the merger agreement, each party to the merger agreement has agreed to use its reasonable best efforts to consummate the mergers and to cause to be satisfied all conditions precedent to its obligations under the merger agreement, including, consistent with the foregoing,

•

preparing and filing as promptly as practicable with the objective of being in a position to consummate the mergers as promptly as practicable following the date of the special meeting, all documentation to effect all necessary or advisable applications, notices, petitions, filings, and other documents and to obtain as promptly as practicable all consents, waivers, licenses, orders, registrations, approvals, permits, rulings, authorizations and clearances necessary or advisable to be obtained from any governmental entity or third party in connection with the transactions contemplated by the merger agreement, including any that are required to be obtained under any federal, state or local law or contract to which we or our subsidiaries are a party or by which any of our or our subsidiaries' properties or assets are bound;



•

defending all lawsuits or other legal proceedings against us or our affiliates relating to or challenging the merger agreement or the consummation of the mergers; and



•

effecting all necessary or advisable registrations and other filings required under the Exchange Act or any other federal, state or local law relating to the mergers.

        Neither we nor our subsidiaries will be permitted to pay or commit to pay to any non-governmental third party any cash or other consideration, make any commitment or incur any liability or other obligation in connection with obtaining any required consent in connection with the transactions contemplated by the merger agreement from any such non-governmental third party unless Parent has provided its prior written consent. In addition, none of Parent or any of its affiliates will be required to pay or commit to pay to such non-governmental third party whose approval or consent is being solicited in connection with the transactions contemplated by the merger agreement any cash or other consideration, make any commitment or incur any liability or other obligations in connection with obtaining any approval or consent from any such non-governmental third party.

Table of Contents

        In addition, in the event that any party fails to obtain any non-governmental third-party consent, the parties to the merger agreement will use commercially reasonable efforts to minimize any adverse effect upon us and Parent and our and their respective affiliates and businesses resulting, or which would reasonably be expected to result, after the partnership merger effective time, from the failure to obtain such non-governmental third-party consent.

        Each party to the merger agreement has agreed to keep the other parties reasonably informed regarding any lawsuit or other legal proceeding relating to or challenging the merger agreement or the consummation of the mergers unless doing so would, in the reasonable judgment of such party, jeopardize any of our or our subsidiaries' privilege with respect thereto. We will promptly advise Parent in writing of the initiation of and any material developments regarding, and will reasonably consult with and permit Parent and its representatives to participate in the defense, negotiations or settlement of, any such lawsuit or other such legal proceeding, and we will give consideration to Parent's advice with respect to such lawsuit or other such legal proceeding. We will not, and will not permit any of our subsidiaries nor any of our or our subsidiaries' representatives to, compromise or settle any such lawsuit or other legal proceeding or consent thereto unless Parent otherwise consents in writing (which will not be unreasonably withheld, conditioned or delayed).

Restriction on Solicitation of Company Acquisition Proposals

        We have agreed that, from and after the date of the merger agreement, except as permitted by certain exceptions described below, we will, and will cause each of our subsidiaries and our and our subsidiaries' officers, trustees and directors to, and will direct our and our subsidiaries' partners, managers, officers, employees, consultants, advisors (including counsel, accountants, investment bankers, experts, consultants and financial advisors), agents and other representatives to, immediately cease any solicitations, discussions, negotiations or communications with any person that may ongoing with respect to any company acquisition proposal.

        We have further agreed that, from the date of the merger agreement until the earlier of the partnership merger effective time and the termination of the merger agreement in accordance with its terms and subject to the provisions described below, we will not, and we will cause our subsidiaries and our and our subsidiaries' officers, trustees and directors not to, and will not authorize and will use commercially reasonable efforts to cause our and our subsidiaries' partners, managers, officers, employees, consultants, advisors (including counsel, accountants, investment bankers, experts, consultants and financial advisors), agents and other representatives not to, directly or indirectly through another person:

•

solicit, initiate, knowingly encourage or knowingly facilitate any inquiry, discussion, offer, request or proposal that constitutes, or could reasonably be expected to lead to, a company acquisition proposal (which we refer to as an inquiry);



•

engage in any discussions or negotiations regarding, or furnish to any third party any non-public information in connection with, or knowingly facilitate in any way any effort by, any third party in furtherance of any company acquisition proposal or inquiry;



•

approve or recommend a company acquisition proposal;



•

enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, share purchase agreement, asset purchase agreement, share exchange agreement, option agreement or other similar definitive agreement providing for or relating to a company acquisition proposal or requiring us or the Partnership to abandon, terminate or fail to consummate the transactions contemplated by the merger agreement; or



•

propose or agree to do any of the foregoing.

Table of Contents

        Prior to the approval of the merger and the other transactions contemplated by the merger agreement by our common shareholders and subject to our compliance with the provisions described above under "—Restriction on Solicitation of Company Acquisition Proposals," if we receive an unsolicited written bona fide company acquisition proposal after the date of the merger agreement by a third party that did not result from a breach of the obligations described above under "—Restriction on Solicitation of Company Acquisition Proposals," if our board of trustees determines in good faith, after consultation with its outside legal counsel and financial advisors, that such company acquisition proposal constitutes or could reasonably be expected to lead to a superior proposal, we or our subsidiaries may:

•

furnish non-public information to such third party (and such third party's representatives) if, prior to furnishing such information, we receive from the third party an executed confidentiality agreement (which we refer to as an acceptable confidentiality agreement) on terms no more favorable in any material respect to such persons than our existing confidentiality agreement with Blackstone Real Estate Advisors L.P. (taking into account any consents or waivers provided thereunder to allow the disclosure of information to financing sources and/or teaming arrangements) and any non-public information concerning us or any of our subsidiaries that is provided to such third party (or its representatives) shall, to the extent not previously provided to Parent, be provided to Parent as promptly as practicable after providing it to such third party (and in any event within 48 hours thereafter); and



•

engage in discussions or negotiations with such third party (and such third party's representatives) with respect to the company acquisition proposal.

        We will notify Parent promptly (but in no event later than 48 hours) after receipt of any company acquisition proposal or any request for non-public information regarding us or any of our subsidiaries by any third party that informs us that it is considering making, or has made, a company acquisition proposal, or any other inquiry from any person seeking to have discussions or negotiations with us regarding a possible company acquisition proposal. Such notice will be made in writing and shall identify the person making such company acquisition proposal or inquiry and indicate the material terms and conditions of any company acquisition proposals or inquiries, to the extent known (including, if applicable, providing copies of any written company acquisition proposals or inquiries and any proposed agreements related thereto, which may be redacted to the extent necessary to protect confidential information of the business or operations of the person making such company acquisition proposal or inquiry). We will also promptly, and in any event within 48 hours, notify Parent in writing if we enter into discussions or negotiations concerning any company acquisition proposal or provide nonpublic information to any person, notify Parent of any change to the financial and other material terms and conditions of any company acquisition proposal and otherwise keep Parent reasonably informed of the status and terms of any company acquisition proposal or inquiry on a reasonably current basis, including by providing a copy of all written proposals, offers, drafts of proposed agreements or correspondence relating thereto. Neither we nor any of our subsidiaries may, after the date of the merger agreement, enter into any confidentiality or similar agreement that would prohibit us from providing such information to Parent.

        For purposes of the merger agreement, "superior proposal" means a bona fide written company acquisition proposal (except that each reference to "15%" in the definition of "company acquisition proposal" will be replaced by "50%") made by a third party on terms that our board of trustees determines in good faith, after consultation with our outside legal counsel and financial advisors, (1) would result, if consummated, in a transaction that is more favorable to our shareholders (solely in their capacity as such) from a financial point of view than the merger and (2) is reasonably likely to be consummated, after taking into account the financial, legal, regulatory and any other aspects of such proposal, the likelihood and timing of consummation (as compared to the merger) and any changes to the terms of the merger agreement proposed by Parent and any other information provided by Parent.

Table of Contents

        In addition, the merger agreement provides that we may not, nor may we permit any of our subsidiaries to, terminate, waive, amend or modify any provision of any standstill or confidentiality agreement to which we or any of our subsidiaries is a party, except solely to allow the applicable party to make a non-public company acquisition proposal to our board of trustees or to allow the disclosure of information to financing sources and/or teaming arrangements. The merger agreement also provides that neither we nor our board of trustees will take any actions to exempt any person from the "Common Share Ownership Limit" or the "Preferred Share Ownership Limit" or establish or increase an "Excepted Holder Limit," as such terms are defined in our declaration of trust, unless such actions are taken concurrently with the termination of the merger agreement in accordance with the provisions described in the first bullet point of the section below entitled "—Termination of the Merger Agreement—Termination by the Company."

Obligation of the Board of Trustees with Respect to Its Recommendation

        Except in the circumstances and pursuant to the procedures described below, neither our board of trustees nor any committee thereof will:

•

withhold, withdraw, modify or qualify in any manner adverse to Parent (or publicly propose to withhold, withdraw, modify or qualify in a manner adverse to Parent) our board of trustees' recommendation with respect to the merger;



•

approve, adopt or recommend (or publicly propose to approve, adopt or recommend) any company acquisition proposal;



•

fail to include our board of trustees' recommendation with respect to the merger in this proxy statement; or



•

approve, adopt, declare advisable or recommend (or agree to, resolve or propose to approve, adopt, declare advisable or recommend), or cause or permit us or any of our subsidiaries to enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, share purchase agreement, asset purchase agreement, share exchange agreement, option agreement or other similar definitive agreement providing for or relating to a company acquisition proposal or requiring us or the Partnership to abandon, terminate or fail to consummate the transactions contemplated by the merger agreement (other than an acceptable confidentiality agreement).

We refer to any action described in the first three bullet points above as an "adverse recommendation change."

        Prior to the approval of the merger and the other transactions contemplated by the merger agreement by our common shareholders, our board of trustees may effect an adverse recommendation change and/or terminate the merger agreement to enter into a definitive agreement providing for the implementation of a superior proposal:

•

if an intervening event has occurred and our board of trustees determines in good faith, after consultation with outside legal counsel, that the failure to take such action would reasonably be expected to be inconsistent with our trustees' duties under applicable law, or if our board of trustees has received an unsolicited written bona fide company acquisition proposal (and we are not in breach of provisions described above under "—Restriction on Solicitation of Company Acquisition Proposals") that, in the good faith determination of our board of trustees, after consultation with outside legal counsel and financial advisors, constitutes a superior proposal, after having complied with, and giving effect to all of the adjustments to the merger agreement which may be offered by Parent, and such company acquisition proposal is not withdrawn;

Table of Contents

•

if we provide prior written notice to Parent of our intention to effect an adverse recommendation change and/or terminate the merger agreement, as applicable (which we refer to as a notice of change of recommendation), identifying the person making the superior proposal and describing the material terms and conditions of the superior proposal or intervening event, as applicable, that is the basis for effecting an adverse recommendation change and/or terminating the merger agreement, as applicable, including, if applicable, copies of any written proposals or offers and any proposed written agreements related to a superior proposal (it being agreed that the delivery of such notice will not constitute an adverse recommendation change);



•

if we negotiate with Parent in good faith for a period of three business days following Parent's receipt of the notice of change of recommendation described in the second bullet point above (which we refer to as a notice of change period) to make such adjustments in the terms and conditions of the merger agreement, so that, in the case of a superior proposal, such superior proposal ceases to constitute a superior proposal, or in the case of an intervening event, in order to obviate the need to make such adverse recommendation change; and



•

if our board of trustees, following the end of the notice of change period after Parent's receipt of the notice of change of recommendation, has determined in good faith, after consultation with outside legal counsel and financial advisors, taking into account any changes to the merger agreement proposed in writing by Parent in response to the notice of change of recommendation or otherwise, that (1) the superior proposal giving rise to the notice of change of recommendation continues to constitute a superior proposal or (2) in the case of an intervening event, the failure of the board to effect an adverse recommendation change would reasonably be expected to be inconsistent with our trustees' duties under applicable law.

        For purposes of the merger agreement, "intervening event" means a material event, development or change in circumstances with respect to us and our subsidiaries, taken as a whole, that occurred or arose after the date of the merger agreement, which was unknown to, nor reasonably foreseeable by, our board of trustees as of or prior to the date of the merger agreement, and becomes known to or by our board of trustees prior to the approval of the merger and the other transactions contemplated by the merger agreement by our common shareholders. Notwithstanding the foregoing, none of the following will constitute, or be considered in determining whether there has been, an intervening event:

•

the receipt, existence of or terms of an inquiry or a company acquisition proposal or any matter relating thereto or consequence thereof; and



•

changes in the market price or trading volume of our common shares or the fact that we meet or exceed internal or published projections, budgets, forecasts or estimates of revenues, earnings or other financial results for any period, provided, however, that the underlying causes of such change or fact will not be excluded by the provision described in this bullet point.

        Any amendment to the financial terms or any other material amendment of such a superior proposal will require a new notice of change of recommendation, and we will be required to comply again with the requirements described above, except that the notice of change period will be reduced to two business days following receipt by Parent of any such new notice of change of recommendation.

        Nothing contained in the merger agreement will prohibit us or our board of trustees from taking and disclosing to our shareholders a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act or from making any disclosure to our shareholders that is required by applicable law or if our board of trustees determines in good faith, after consultation with outside legal counsel, that the failure to make such disclosure would reasonably be expected to be inconsistent with our trustees' duties under applicable law, provided, however, that neither we nor our board of trustees will be permitted to recommend that our

Table of Contents

shareholders tender any securities in connection with any tender offer or exchange offer that is a company acquisition proposal or otherwise effect an adverse recommendation change with respect thereto, except as permitted by the provisions described above.

Employee Benefits

        From and after the merger effective time and for a period ending on the first anniversary of the merger effective time (or, if shorter, during any applicable period of employment), each of our and our subsidiaries' employees who is employed immediately prior to the merger effective time, each of which we refer to as a company employee, will be entitled to receive (1) a base salary or wage at a rate, as applicable, that is no less favorable than the base salary or wage rate in effect with respect to such company employee immediately prior to the merger effective time, (2) an annual cash bonus opportunity that is no less favorable than the annual cash bonus opportunity provided to such company employee immediately prior to the merger effective time, and (3) other compensation and benefits (including severance benefits, paid time off and health insurance, but excluding equity-based compensation and long-term incentive compensation) that are substantially comparable, in the aggregate, to the other compensation and benefits provided to such company employee immediately prior to the merger effective time. Parent will, or will cause its designated subsidiary to, assume and honor the terms of the employment agreements with Messrs. DuGan, Harris, Pell and Clark and the severance policy described below, without amendment. The foregoing will not require that any company employee remain employed for any period after the closing of the mergers nor that any compensation or benefits be provided after a company employee ceases to be employed (other than vested rights and benefits in effect at the time of such cessation of employment and certain severance benefits). For the employee benefit plans of Parent and its subsidiaries providing any benefits to any company employee after the merger effective time, each company employee will be credited with his or her years of service with us and our subsidiaries and our and their respective predecessors as if such service were with Parent or an applicable subsidiary, provided that the foregoing will not apply for purposes of benefit accrual under defined benefit plans or to the extent that its application would result in a duplication of benefits or to the extent the we did not provide such service credit under any comparable plan, program or benefit.

        All limitations as to preexisting conditions, exclusions, actively at work requirements, waiting periods or any other restriction that would prevent immediate or full participation of company employees under Parent's or any of its subsidiaries' health and welfare plans will be waived by Parent and its subsidiaries, other than limitations, exclusions, actively at work requirements, waiting periods or other restrictions that are already in effect with respect to such company employees and that have not been satisfied as of the closing date under any company employee benefit plan. Any and all evidence of insurability requirements with respect to such company employees to the extent such evidence of insurability requirements were not applicable to the company employees under the comparable company benefit plan immediately prior to the closing of the mergers will be waived by Parent and its subsidiaries. Additionally, each company employee and his or her dependents will be provided with full credit for any co-payments and deductibles satisfied prior to the closing date for the plan year within which the merger effective time occurs in order to satisfy any applicable deductible or out-of-pocket requirements, and for any lifetime maximums, under any welfare plans that such company employees are eligible to participate in after the closing date.

        The merger agreement provides that we may establish a cash retention program, pursuant to which all of our employees will be eligible to receive a retention bonus (which we refer to as the retention bonuses); provided that certain executives with employment agreements and certain members of senior management will not be eligible for a retention bonus. The amount of the retention bonus payable to each recipient (which we refer to as the retention recipients) will equal 20% of his or her annual base salary in effect as of the date hereof, subject to a $100,000 individual maximum. The retention bonuses

Table of Contents

will be paid in two equal installments on each of the closing date and March 31, 2019, subject to the retention recipient's continued service to us or our affiliate or successor through such date. Retention bonuses will be forfeited upon the retention recipient's termination of employment for any reason prior to payment.

        In addition, the merger agreement provides that we may establish a change in control severance policy (which we refer to as the severance policy). Conditioned on the execution and nonrevocation of a general release of claims in favor of us, upon a termination without "cause" or resignation with "good reason" (as each is defined in the severance policy), the severance policy provides participants with the following severance benefits: (i) a prorated bonus for the current fiscal year based on actual performance, to be paid on the 30th day following the participant's termination date if the participant is terminated in 2018 and at the time bonuses are paid to actively employed employees if the participant is terminated in 2019 and (ii) a lump-sum cash payment payable on the 30th day following the participant's termination date equal to the sum of (a) 12 months' of COBRA premium subsidies and (b) a payment that varies based on years of service, which ranges from six to 18 months of the participant's base salary (or, for certain designated members of senior management, a multiple of the sum of the participant's base and prior year's bonus). Certain participants will also be entitled to three months of outplacement services.

        The merger agreement further provides that we may grant cash transaction incentive awards (which we refer to as the discretionary bonuses) with an aggregate value of up to $2.5 million, with any such discretionary bonuses to be paid in full on the closing date. The discretionary bonuses will be allocated among our employees in the amounts and on the terms determined by our board of trustees (or the compensation committee thereof). If a discretionary bonus is forfeited by an employee, our board of trustees or the compensation committee thereof may reallocate the award to our existing employees or new hires.

Financing Cooperation

        The consummation of the mergers is not conditioned upon Parent's receipt of financing. Pursuant to the merger agreement, Parent may disclose non-public information to potential purchasers (and their financing sources) of certain of our and our subsidiaries' properties or our subsidiaries that directly or indirectly own such properties. Parent must not require any such potential purchasers to, and Parent will require that any such potential purchasers (and their affiliates) not, enter into any exclusivity, lock-up or other agreement, arrangement or understanding, whether written or oral, with any financing source without our prior written consent that may reasonably be expected to limit, restrict, restrain or otherwise impair in any manner, directly or indirectly, the ability of such financing source to provide financing or other assistance to any other person in connection with a company acquisition proposal. In addition, Parent must not restrict any such potential purchasers from engaging in discussions or entering into agreements with us or our subsidiaries.

        Subject to applicable law, prior to the closing of the mergers, we will, and will cause our subsidiaries to, and will use commercially reasonable efforts to cause our and our subsidiaries' representatives to, provide all customary cooperation reasonably requested in writing by Parent in connection with Parent arranging financing with respect to us, our subsidiaries or our or any of our subsidiaries' properties (which we refer to as the debt financing), including by using commercially reasonable efforts to:

•

furnish to Parent and its potential financing sources for the debt financing (whom we refer to as the lenders) as promptly as reasonably practicable following the delivery of a request therefor to us by Parent such financial, statistical and other pertinent information and projections relating to us and our subsidiaries as may be reasonably requested by Parent, and as is customarily delivered in connection with a financing of the applicable type;

Table of Contents

•

make our and our subsidiaries' appropriate officers available at reasonable times for a reasonable number of due diligence meetings and for participation in a reasonable number of meetings, presentations, road shows and sessions with rating agencies and prospective lenders;



•

assist Parent and its lenders with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses and similar documents necessary, proper or advisable in connection with the debt financing;



•

reasonably cooperate with the marketing efforts of Parent and its lenders for any debt financing to be raised by Parent to complete the mergers and the other transactions contemplated by the merger agreement;



•

provide documentation and other information relating to us and any of our subsidiaries requested by Parent in writing and required by bank regulatory authorities under applicable "know-your-customer" and anti-money laundering rules and regulations;



•

facilitate, effective no earlier than the partnership merger effective time, the execution and delivery of definitive financing, pledge security and guarantee documents relating to the debt financing;



•

following the approval of the merger and the other transactions contemplated by the merger agreement by our common shareholders, form new direct and indirect subsidiaries pursuant to documentation reasonably satisfactory to Parent and us;



•

to the extent reasonably requested by Parent, and no earlier than immediately prior to the partnership merger effective time on the closing date of the mergers and provided such actions would not adversely affect the tax status of us or any of our subsidiaries or cause us to be subject to additional taxes that are not indemnified by Parent, transfer or otherwise restructure our ownership of existing subsidiaries, properties or other assets, in each case, pursuant to documentation reasonably acceptable to Parent and us;



•

provide reasonably timely and customary access to diligence materials, appropriate personnel and properties during normal business hours and on reasonable advance notice to allow lenders and their representatives to complete all reasonable and customary due diligence;



•

provide reasonable and customary assistance with respect to the review and granting of mortgages and security interests in collateral for the debt financing, and attempting to obtain any consents associated therewith (effective no earlier than the partnership merger effective time);



•

to the extent reasonably requested by a lender, attempt to obtain estoppels and certificates from tenants, lenders, managers, franchisors, ground lessors and counterparties to reciprocal easement agreements in form and substance reasonably satisfactory to any such lender;



•

cooperate in connection with the repayment or defeasance of any of our and our subsidiaries' existing indebtedness as of the partnership merger effective time and the release of related liens, including delivering such payoff, defeasance or similar notices under any of our and our subsidiaries' existing loans as are reasonably requested by Parent (provided that we and our subsidiaries will not be required to deliver any notices that are not conditioned on the occurrence of the partnership merger effective time);



•

to the extent reasonably requested by Parent, obtain accountants' comfort letters and consents to the use of accountants' audit reports relating to us and our subsidiaries; and



•

to the extent reasonably requested by a lender, permit Parent and its representatives to conduct appraisal and environmental and engineering inspections of each real estate property owned and, subject to obtaining required third-party consents with respect thereto (which we will use

Table of Contents

reasonable efforts to obtain), leased by us or any of our subsidiaries (except that (1) neither Parent, any lender, their respective representatives, nor any other person will have the right to take and analyze any samples of any environmental media (including soil, groundwater, surface water, air or sediment) or any building material or to perform any invasive testing procedure on any such property, (2) Parent will schedule and coordinate all inspections with us upon reasonable advance notice, and (3) we will be entitled to have representatives present at all times during any such inspection).

Nothing in the merger agreement will, however, require us or any of our subsidiaries or any of our or any of our subsidiaries' representatives to take any action to the extent it would:

•

unreasonably interfere with our or our subsidiaries' business or operations;



•

except with respect to delivery of certain notices regarding existing mortgage debt as specified in the merger agreement, or the fifth, seventh and eighth bullet points of the preceding paragraph, require us, our subsidiaries or any of our or our subsidiaries' directors or officers (other than directors or officers who will continue to be directors or officers following the partnership merger effective time and the consummation of the transactions contemplated by the merger agreement, and only in their capacities as such) to pass resolutions or consents to approve or authorize the execution of the debt financing or to execute any documents, agreements, certificates or other instruments in connection with the debt financing;



•

require us to pay any commitment, consent, transfer or other similar fee, incur or reimburse any other expense, liability or obligation prior to the partnership merger effective time (except those fees and expenses that we are reimbursed for by Parent) or except with respect to the seventh and eighth bullet points of the preceding paragraph, have any obligation of the under any agreement, certificate, document or instrument be effective prior to the partnership merger effective time or if the closing of the mergers does not occur;



•

cause any of our or our subsidiaries' trustees, directors, officers, employees or shareholders to incur any personal liability;



•

contravene our or our subsidiaries' organizational documents or any applicable laws;



•

breach any of our material contracts;



•

provide access to or disclose information that we or any of our subsidiaries determines would result in a loss or waiver of or jeopardize any attorney-client privilege, attorney work product or other legal privilege (provided that we will use commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in the events set out in this bullet point); and



•

prepare any financial statements or information that are not reasonably available to us and our subsidiaries and prepared in the ordinary course of our or their financial reporting practice, or prepare any pro forma financial information or post-closing financial information.

Pre-Closing Transactions

        In addition, the merger agreement requires that we use commercially reasonable efforts to provide such cooperation and assistance as Parent may reasonably request to (1) convert any of our wholly owned subsidiaries organized as a corporation or limited partnership into a limited liability company on the basis of organizational documents as reasonably requested by Parent, (2) sell or cause to be sold stock, partnership interests or limited liability interests owned, directly or indirectly, by us in any wholly owned subsidiary on terms designated by Parent, or (3) exercise any of our or our subsidiaries' rights to terminate or cause to be terminated any contract to which we or one of our wholly-owned subsidiaries

Table of Contents

is a party and (4) sell or cause to be sold any of our or our wholly owned subsidiaries' assets on terms designated by Parent.

        These rights of Parent are limited, however, in that (1) Parent may not require us or any of our subsidiaries to take any action that contravenes any of our or any of our subsidiaries' organizational documents, material contracts or applicable law, (2) any such conversions, exercises of any rights of termination or other terminations, sales or transactions must be contingent upon all conditions to the mergers under the merger agreement having been satisfied or waived and our receipt of a written notice from Parent to such effect and that Parent, Merger Sub I and Merger Sub II are prepared to proceed immediately with the closing of the mergers and any other evidence reasonably requested by us that the closing of the mergers will occur, (3) these actions (or the inability to complete them) will not affect or modify the obligations of Parent, Merger Sub I and Merger Sub II under the merger agreement, including the amount of or timing of the payment of the merger consideration, (4) we and our subsidiaries will not be required to take any action that could adversely affect our classification, or the classification of any of our subsidiaries that is classified as a REIT, as a REIT within the meaning of the Code or that could subject us or any such subsidiary to any "prohibited transactions" taxes or certain other material taxes under the Code (or other material entry-level taxes), and (5) we and our subsidiaries will not be required to take any such action that could result in any U.S. federal, state or local income tax being imposed on any holder of Class A partnership units other than us or any of our subsidiaries. Parent will, promptly upon our request, reimburse us for all reasonable out-of-pocket costs incurred by us or our subsidiaries in connection with our or our subsidiaries' performance of these obligations.

Certain Other Covenants

        The merger agreement contains certain other covenants of the parties to the merger agreement relating to, among other things:

•

giving Parent and its authorized representatives reasonable access to our and our subsidiaries' properties, facilities, personnel and books and records;



•

the filing of this proxy statement with the SEC, and cooperation in preparing this proxy statement and in responding to any comments received from the SEC on this proxy statement;



•

actions necessary to exempt the merger agreement and the transactions contemplated by the merger agreement from, or mitigate, the effect of any applicable anti-takeover statutes;



•

the consultation regarding any press releases or other public statements with respect to the merger agreement or the mergers;



•

the indemnification of our and our subsidiaries' trustees, directors and officers;



•

notification of certain matters;



•

certain tax matters;



•

cooperation in connection with the assumption of certain of our and our subsidiaries' existing indebtedness and the modification of the loan documents relating thereto; and



•

the termination of offering periods with respect to our 2017 employee stock purchase plan.

Table of Contents

Conditions to the Mergers

        The obligations of the parties to complete the mergers are subject to the satisfaction or waiver of the following mutual conditions:

•

the merger and the other transactions contemplated by the merger agreement must be approved by the affirmative vote of the holders of our common shares entitled to cast not less than a majority of all the votes entitled to be cast on the matter; and



•

no governmental entity of competent jurisdiction has enacted, issued, promulgated, enforced or entered any law or order (whether temporary, preliminary or permanent) which is then in effect and has the effect of making the mergers illegal or otherwise restricting, preventing or prohibiting the consummation of the mergers.

        The obligations of Parent, Merger Sub I and Merger Sub II to complete the mergers are further subject to the satisfaction or waiver of the following conditions:

•

our and the Partnership's representations and warranties must be true and correct (determined without regard to any materiality or material adverse effect qualifications therein) as of the date of the merger agreement and as of the closing date as though made on and as of the closing date (except to the extent a representation or warranty is made as of a specific date, in which case such representation or warranty must be true and correct at and as of such date, without regard to any such qualifications therein), except where the failure of such representations and warranties to be true and correct has not had, or would not, individually or in the aggregate, reasonably be expected to have a material adverse effect, except for (1) certain of our and the Partnership's representations and warranties regarding our, the Partnership's and our other subsidiaries' capitalization, which must be true and correct in all material respects and (2) our and the Partnership's representations and warranties regarding the absence of a material adverse effect, which must be true and correct in all respects;



•

we and the Partnership must have performed and complied, in all material respects, with all of our and its obligations, agreements and covenants required by the merger agreement to be performed or complied with on or prior to the closing date;



•

Parent must have received a tax opinion of our counsel, Morgan, Lewis & Bockius LLP or such other law firm as may be reasonably approved by Parent, dated as of the closing date, concluding (subject to customary assumptions, qualifications and representations, including representations made by us and our subsidiaries) that we have been organized and operated in conformity with the requirements for qualification and taxation as a REIT under the Code for all taxable periods commencing with our taxable year ended December 31, 2004 through and including the merger effective time; and



•

from the date of the merger agreement through the closing date, there must not have occurred a change, event, state of facts or development which has had or would reasonably be expected to have, individually or in the aggregate, a material adverse effect.

        Our and the Partnership's obligations to complete the mergers are further subject to the satisfaction or waiver of the following conditions:

•

the representations and warranties of Parent, Merger Sub I and Merger Sub II must be true and correct in all material respects as of the date of the merger agreement and as of the closing date as though made on and as of the closing date (except to the extent a representation or warranty is made as of a specific date, in which case such representation or warranty must be true and correct at and as of such date, without regard to any such qualifications therein); and

Table of Contents

•

each of Parent, Merger Sub I and Merger Sub II must have performed and complied, in all material respects, with all of their obligations, agreements and covenants required by the merger agreement to be performed or complied with on or prior to the closing date.

Termination of the Merger Agreement

        We and Parent may mutually agree to terminate and abandon the merger agreement at any time prior to the closing date, even after we have obtained the requisite vote of our common shareholders to approve the merger and the other transactions contemplated by the merger agreement.

Termination by either the Company or Parent

        In addition, we, on the one hand, or Parent, on the other hand, may terminate and abandon the merger agreement by written notice to the other at any time prior to the closing date, even after we have obtained the requisite vote of our common shareholders to approve the merger and the other transactions contemplated by the merger agreement, if:

•

any governmental entity of competent authority has issued an order, decree or ruling or taken any other action in each case permanently restraining, enjoining or otherwise prohibiting the mergers substantially on the terms contemplated by the merger agreement and such order, decree, ruling or other action has become final and non-appealable, provided, that the right to terminate the merger agreement pursuant to this bullet point is not available to a party if the issuance of such final, non-appealable order, decree or ruling or taking of such other action was primarily due to the failure of us or the Partnership, in the case of termination by us, or Parent, Merger Sub I or Merger Sub II, in the case of termination by Parent, to perform any of its obligations under the merger agreement;



•

the mergers have not been consummated by November 6, 2018, provided that the right to terminate the merger agreement under this bullet point is not available to us, if the Company or the Partnership, or to Parent, if Parent, Merger Sub I or Merger Sub II, as applicable, has breached in any material respect its obligations under the merger agreement in any manner that has caused or resulted in the failure to consummate the mergers on or before November 6, 2018; or



•

the requisite vote of our common shareholders to approve the merger and the other transactions contemplated by the merger agreement has not been obtained at the duly held special meeting or any adjournment or postponement thereof at which the merger is voted on.

Termination by the Company

        We may also terminate and abandon the merger agreement by written notice to Parent at any time prior to the closing date, even after we have obtained the requisite vote of our common shareholders to approve the merger and the other transactions contemplated by the merger agreement, if:

•

prior to obtaining the requisite vote of our common shareholders to approve the merger and the other transactions contemplated by the merger agreement, our board of trustees effects an adverse recommendation change in accordance with the requirements described above under "—Obligation of the Board of Trustees with Respect to Its Recommendation" in connection with a superior proposal and our board of trustees has approved, and concurrently with the termination under the provision described in this bullet point, we enter into, a definitive agreement providing for the implementation of a superior proposal, but only if we are not then in breach of our obligations described under "—Restriction on Solicitation of Company Acquisition Proposals," provided that such termination will not be effective until we have paid the company termination fee (as described below);

Table of Contents

•

Parent, Merger Sub I or Merger Sub II has breached or failed to perform any of its representations, warranties, covenants or other agreements contained in the merger agreement such that a closing condition relating to its representations, warranties, covenants or agreements would be incapable of being satisfied by November 6, 2018, provided that neither we nor the Partnership have breached or failed to perform any of our or its representations, warranties, covenants or other agreements contained in the merger agreement in any material respect; or



•

all of the following requirements are satisfied:



o

all of the mutual conditions to the parties' obligations to effect the mergers and the additional conditions to the obligations of Parent, Merger Sub I and Merger Sub II to effect the mergers have been satisfied or waived by Parent (other than those conditions that by their nature are to be satisfied at the closing of the mergers, provided that such conditions to be satisfied at the closing of the mergers would be satisfied as of the date of the notice referenced in the immediately following bullet point if the closing of the mergers were to occur on the date of such notice);



o

on or after the date the closing of the mergers should have occurred pursuant to the merger agreement, we have delivered written notice to Parent to the effect that all of the mutual conditions to the parties' obligations to effect the mergers and the additional conditions to the obligations of Parent, Merger Sub I and Merger Sub II to effect the mergers have been satisfied or waived by Parent (other than those conditions that by their nature are to be satisfied at the closing of the mergers, provided that such conditions to be satisfied at the closing of the mergers would be satisfied as of the date of such notice if the closing of the mergers were to occur on the date of such notice) and we and the Partnership are prepared to consummate the closing of the mergers; and



o

Parent, Merger Sub I and Merger Sub II fail to consummate the closing of the mergers on or before the third business day after delivery of the notice referenced in the immediately preceding bullet point, and we and the Partnership were prepared to consummate the closing of the mergers during such three business day period.

Termination by Parent

        Parent may also terminate and abandon the merger agreement by written notice to us at any time prior to the closing date, even after we have obtained the requisite vote of our common shareholders to approve the merger and the other transactions contemplated by the merger agreement, if:

•

we or the Partnership have breached or failed to perform any of our or the Partnership's representations, warranties, covenants or other agreements contained in the merger agreement such that the closing conditions relating to our and the Partnership's representations, warranties, covenants or agreements would be incapable of being satisfied by November 6, 2018, provided that neither Parent, Merger Sub I nor Merger Sub II has breached or failed to perform any of its representations, warranties, covenants or other agreements contained in the merger agreement in any material respect; or



•

(1) our board of trustees has effected, or resolved to effect, an adverse recommendation change, (2) we have failed to publicly recommend against any tender offer or exchange offer subject to Regulation 14D under the Exchange Act that constitutes a company acquisition proposal (including, for these purposes, by taking no position with respect to the acceptance of such tender offer or exchange offer by the Company's shareholders) within ten business days after the commencement of such tender offer or exchange offer, (3) our board of trustees has failed to publicly reaffirm its recommendation to our common shareholders to approve the merger and the other transactions contemplated by the merger agreement within ten business days after the

Table of Contents

date a company acquisition proposal shall have been publicly announced (or if the special meeting is scheduled to be held within ten business days from the date a company acquisition proposal is publicly announced, promptly and in any event prior to the date on which the special meeting is scheduled to be held) or (4) we enter into a letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, share purchase agreement, asset purchase agreement, share exchange agreement, option agreement or other similar definitive agreement providing for or relating to a company acquisition proposal or requiring us or the Partnership to abandon, terminate or fail to consummate the transactions contemplated by the merger agreement (other than an acceptable confidentiality agreement).

Termination Fees

Termination Fee Payable by the Company

        We have agreed to pay the company termination fee of $138 million as directed by Parent if:

•

Parent terminates the merger agreement pursuant to the provision described in the second bullet point under "—Termination of the Merger Agreement—Termination by Parent";



•

we terminate the merger agreement pursuant to the provision described in the first bullet point under "—Termination of the Merger Agreement—Termination by the Company"; or



•

all of the following requirements are satisfied:



o

we or Parent terminate the merger agreement pursuant to the provisions described in the second bullet point or the third bullet point under "—Termination of the Merger Agreement—Termination by either the Company or Parent" or Parent terminates the merger agreement pursuant to the provision described in the first bullet point under "—Termination of the Merger Agreement—Termination by Parent"; and



o

(1) a company acquisition proposal has been received by us or our representatives or any person has publicly proposed or publicly announced an intention (whether or not conditional) to make a company acquisition proposal (and, in the case of a termination pursuant to the provision described in the third bullet point under "—Termination of the Merger Agreement—Termination by either the Company or Parent," such company acquisition proposal or publicly proposed or announced intention was made prior to the special meeting) and (2) within twelve months after a termination referred to in the immediately preceding sub-bullet point we enter into a definitive agreement relating to, or consummate, any company acquisition proposal (with, for purposes of this clause (2), the references to "15%" in the definition of "company acquisition proposal" being deemed to be references to "50%").

However, the company termination fee will equal $46 million if the merger agreement is terminated by us pursuant to the provisions described in the first bullet point under "—Termination of the Merger Agreement—Termination by the Company" in order to enter into a definitive agreement with an excluded party providing for the implementation of a superior proposal (which we refer to as an excluded party termination).

        An "excluded party" is a person or group of persons that submitted a written bona fide company acquisition proposal to us after the date of the merger agreement and prior to June 20, 2018 that our board of trustees determines prior to June 20, 2018, after consultation with outside legal counsel and financial advisors, constitutes, or could reasonably be expected to lead to, a superior proposal if:

•

we provide written notice to Parent promptly (and in any event within 48 hours) of such determination; and

Table of Contents

•

at or prior to July 5, 2018 we provide a notice of change of recommendation to Parent with respect to our intention to undertake an excluded party termination to enter into a definitive agreement providing for the implementation of such company acquisition proposal. We refer to such company acquisition proposal as a "qualified proposal."

However, any such person or group of persons will cease to be an excluded party upon the earliest to occur of the following:

•

such time as such person's or group of person's company acquisition proposal is withdrawn, terminated or expires;



•

such time as the last "excluded party notice period" with respect to such person or group of persons expires;



•

in the case of a group, if the persons in such group as of the time such group submitted the qualified proposal that most recently rendered such group an excluded party cease to constitute in the aggregate at least 75% of the equity financing (measured by voting power or value) of such group, unless the remainder of such equity financing is to be provided by persons who were themselves in a group of persons that was an excluded party prior to June 20, 2018; or



•

July 5, 2018, however this date will be extended to:



o

the last day of the notice of change period with respect to such qualified proposal if July 5, 2018 is during such notice of change period; or



o

the expiration of the last excluded party notice period with respect to such qualified proposal if July 5, 2018 is during an excluded party notice period.

        An "excluded party notice period" means, with respect to an excluded party, a period of three business days commencing upon the expiration of the first notice of change period with respect to our intention to undertake an excluded party termination with respect to a qualified proposal that was submitted by such excluded party and that our board of trustees has determined constitutes a superior proposal in accordance with the procedures described in the section titled "—Obligation of the Board of Trustees with Respect to its Recommendation". However, if any new notice of change period is commenced before the expiration of the prior excluded party notice period with respect to our intention to undertake an excluded party termination with respect to such superior proposal, as materially revised, then a new excluded party notice period of two business days will commence upon the expiration of such new notice of change period (and another new excluded party notice period of two business days will commence upon the expiration of any further such new notice of change period that commences at or before the expiration of the prior excluded notice period).

        If an excluded party notice period expires without a new notice of change period having commenced at or before such expiration, there will be no further excluded party notice periods with respect to such excluded party.

Termination Fee Payable by Parent

        Parent has agreed to pay to us the parent termination fee of $414 million if we terminate the merger agreement pursuant to the provisions described in the second bullet point or third bullet point under "—Termination of the Merger Agreement—Termination by the Company."

Guaranty and Remedies

        In connection with the merger agreement, the Sponsor entered into a guaranty in our favor to guarantee Parent's payment obligations with respect to the parent termination fee and certain expense

Table of Contents

reimbursement and indemnification obligations of Parent under the merger agreement, subject to the terms and limitations set forth in the guaranty.

        The maximum aggregate liability of the Sponsor under the guaranty will not exceed $414 million, plus all reasonable and documented third party costs and out-of-pocket expenses (including reasonable fees of counsel) actually incurred by us relating to any litigation or other proceeding brought by us to enforce our rights under the guaranty, if we prevail in such litigation or proceeding.

        We and the Partnership cannot seek specific performance to require Parent, Merger Sub I or Merger Sub II to complete the mergers and, subject to limited exceptions, including with respect to enforcing confidentiality provisions and certain expense reimbursement and indemnification obligations of Parent, our sole and exclusive remedy against Parent, Merger Sub I or Merger Sub II relating to any breach of the merger agreement or otherwise will be the right to receive the parent termination fee under the conditions described under "—Termination Fees—Termination Fee Payable by Parent." Parent, Merger Sub I and Merger Sub II may, however, seek specific performance to require us and the Partnership to complete the mergers.

Amendment and Waiver

        The merger agreement may be amended by action taken by the parties at any time before or after our common shareholders have approved the merger and the other transactions contemplated by the merger agreement but, after such approval, no amendment may be made which requires the approval of any such shareholders under applicable law without obtaining such further approvals. The merger agreement also provides that, at any time prior to the closing date, each party may extend the time for the performance of any of the obligations or other acts of the other parties, waive any breaches or inaccuracies in the representations and warranties of the other parties, or waive compliance by the other parties with any of the agreements or conditions contained in the merger agreement.

Table of Contents

MARKET PRICE OF OUR COMMON SHARES

        Our common shares are listed on the NYSE under the trading symbol "GPT." On [                        ],June 26, 2018, there were approximately [            ]1,511 holders of record. Certain of our common shares are held in "street" name and accordingly, the number of beneficial owners of such shares is not known or included in the foregoing number. The table below sets forth the quarterly high and low closing sales prices of our common shares on the NYSE for the periods indicated and the dividends declared by us with respect to the periods indicated. All share and per share data has been adjusted for the 1-for-3 reverse share split that was effective after the close of trading on December 30, 2016.