EX-10.1






CREDIT AGREEMENT

Dated as of June 5, 2012

among

GRIFFIN-AMERICAN HEALTHCARE REIT II HOLDINGS, LP,

as Borrower

GRIFFIN-AMERICAN HEALTHCARE REIT II, INC.

and

CERTAIN SUBSIDIARIES THEREOF

REFERRED TO HEREIN AS GUARANTORS,

THE LENDERS PARTY HERETO,

BANK OF AMERICA, N.A.,

as Administrative Agent, Swing Line Lender and L/C Issuer,

KEYBANK NATIONAL ASSOCIATION,

as Syndication Agent,

and

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED

and

KEYBANC CAPITAL MARKETS

as Joint Lead Arrangers and Joint Book Managers

TABLE OF CONTENTS




	 	 	 	 	 
	Article and Section
	 	
 
	 	Page
	 	 	 
	ARTICLE I DEFINITIONS AND ACCOUNTING TERMS	 	 
	1.01

1.02

1.03

1.04

1.05

1.06

1.07
	 	Defined Terms.

Interpretive Provisions.

Accounting Terms.

Rounding.

References to Agreements and Laws.

Times of Day.

Letter of Credit Amounts.

	 	



















	 	 	 
	ARTICLE II COMMITMENTS AND EXTENSION OF CREDIT
	2.01

2.02

2.03

2.04

2.05

2.06

2.07

2.08

2.09

2.10

2.11

2.12

2.13

2.14

2.15

2.16
	 	Commitments.

Borrowings, Conversions and Continuations.

Additional Provisions with respect to Letters of Credit.

Additional Provisions with respect to Swing Line Loans.

Repayment of Loans.

Prepayments.

Termination or Reduction of Commitments.

Interest.

Fees.

Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate.

Payments Generally.

Sharing of Payments.

Evidence of Debt.

Cash Collateral.

Defaulting Lenders.

Extension of Termination Date.







	 	 	 
	ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY
	3.01

3.02

3.03

3.04

3.05

3.06

3.07
	 	Taxes.

Illegality.

Inability to Determine Rates.

Increased Costs; Reserves on Eurodollar Rate Loans.

Compensation for Losses.

Mitigation Obligations; Replacement of Lenders.

Survival.







	 	 	 
	ARTICLE IV CONDITIONS PRECEDENT TO EXTENSION OF CREDIT
	4.01

4.02
	 	Conditions to Initial Extensions of Credit.

Conditions to Extensions of Credit.







	 	 	 
	ARTICLE V REPRESENTATIONS AND WARRANTIES
	5.01

5.02

5.03

5.04

5.05

5.06

5.07

5.08

5.09

5.10

5.11

5.12

5.13

5.14

5.15

5.16

5.17

5.18

5.19

5.20

5.21
	 	Financial Statements; No Material Adverse Effect.

Corporate Existence and Power.

Corporate and Governmental Authorization; No Contravention.

Binding Effect.

Litigation.

Compliance with ERISA.

Environmental Matters.

Margin Regulations; Investment Company Act.

Compliance with Laws.

Ownership of Property; Liens.

Corporate Structure; Capital Stock, Etc.

Labor Matters.

No Default.

Solvency.

Taxes.

REIT Status.

Insurance.

Intellectual Property; Licenses, Etc.

Governmental Approvals; Other Consents.

Disclosure.

OFAC.







	 	 	 
	ARTICLE VI AFFIRMATIVE COVENANTS
	6.01

6.02

6.03

6.04

6.05

6.06

6.07

6.08

6.09

6.10

6.11

6.12

6.13

6.14

6.15

6.16

6.17

6.18

6.19
	 	Financial Statements.

Certificates; Other Information.

Preservation of Existence and Franchises.

Books and Records.

Compliance with Law.

Payment of Taxes and Other Indebtedness.

Insurance.

Maintenance of Property.

Performance of Obligations.

Visits and Inspections.

Use of Proceeds/Purpose of Loans and Letters of Credit.

Financial Covenants.

Environmental Matters; Preparation of Environmental Reports.

REIT Status.

Additional Guarantors; Release of Guarantors.

Addition or Withdrawal of Borrowing Base Properties.

Compliance With Material Contracts.

Minimum Aggregate Capitalized Value; Minimum Adjusted Borrowing Base Amount.

Further Assurances.







	 	 	 
	ARTICLE VII NEGATIVE COVENANTS
	7.01

7.02

7.03

7.04

7.05

7.06

7.07
	 	Liens.

Indebtedness.

Investments.

Fundamental Changes.

Dispositions.

Change in Nature of Business.

Transactions with Affiliates and Insiders.








	 	7.08	 	Organization Documents; Fiscal Year; Legal Name, State of Formation
and Form of Entity.	 





	 	 	 
	7.09

7.10

7.11

7.12

7.13
	 	Negative Pledges.

Use of Proceeds.

Prepayments of Indebtedness.

Restricted Payments.

Sanctions.







	 	 	 
	ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES
	8.01

8.02

8.03
	 	Events of Default.

Remedies Upon Event of Default.

Application of Funds.







	 	 	 
	ARTICLE IX ADMINISTRATIVE AGENT
	9.01

9.02

9.03

9.04

9.05

9.06

9.07

9.08

9.09

9.10

9.11

9.12
	 	Appointment and Authorization of Administrative Agent.

Delegation of Duties.

Liability of Administrative Agent.

Reliance by Administrative Agent.

Notice of Default.

Credit Decision; Disclosure of Confidential Information by Administrative Agent.

[Reserved].

Administrative Agent in its Individual Capacity.

Successor Administrative Agent.

Administrative Agent May File Proofs of Claim.

Guaranty Matters.

Other Agents; Arrangers and Managers.







	 	 	 
	ARTICLE X MISCELLANEOUS
	10.01

10.02

10.03

10.04

10.05

10.06

10.07

10.08

10.09

10.10

10.11

10.12

10.13

10.14

10.15

10.16

10.17

10.18

10.19

10.20

10.21

10.22

10.23
	 	Amendments, Etc.

Notices and Other Communications; Facsimile Copies.

No Waiver; Cumulative Remedies.

Expenses; Indemnity; Damage Waiver.

[Reserved].

Payments Set Aside.

Successors and Assigns.

Confidentiality.

Set-off.

Interest Rate Limitation.

Counterparts.

Integration.

Survival of Representations and Warranties.

Severability.

[Reserved].

Replacement of Lenders.

No Advisory or Fiduciary Responsibility.

Source of Funds.

GOVERNING LAW.

WAIVER OF RIGHT TO TRIAL BY JURY.

No Conflict.

USA Patriot Act Notice.

Entire Agreement.







	 	 	 
	ARTICLE XI GUARANTY
	 	 	11.01The Guaranty.

11.02Obligations Unconditional.

11.03Reinstatement.

11.04Certain Waivers.

11.05Rights of Contribution.

11.06Guaranty of Payment; Continuing Guaranty.

	SCHEDULES
	 	


	 
	2.01

5.10

5.11

7.01

7.02

7.03

7.09

10.02

EXHIBITS
	 	Lenders and Commitments

Borrowing Base Properties

Corporate Structure; Capital Stock

Liens

Indebtedness

Investments

Negative Pledges

Notice Addresses




	 
	A

B

C

D

E

F

G

H
	 	Form of Loan Notice

Form of Revolving Note

Form of Borrowing Base Certificate

Form of Compliance Certificate

Form of Assignment and Assumption

Form of Subsidiary Guarantor Joinder Agreement

Form of Lender Joinder Agreement

Forms of U.S. Tax Compliance Certificates







CREDIT AGREEMENT




This CREDIT AGREEMENT (as amended, modified, restated or supplemented from time to time, this
“Credit Agreement” or this “Agreement”) is entered into as of June 5, 2012 by and
among GRIFFIN-AMERICAN HEALTHCARE REIT II HOLDINGS, LP, a Delaware limited partnership (the
“Borrower”), GRIFFIN-AMERICAN HEALTHCARE REIT II, INC., a Maryland corporation (the
“Parent”) and certain subsidiaries of the Parent identified herein, as Guarantors, the
Lenders (as defined herein), and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender
and L/C Issuer (each, as defined herein).



WHEREAS, the Borrower has requested that the Lenders hereunder provide a credit facility in an
amount of Two Hundred Million Dollars ($200,000,000), which amount may be increased to the amount
of Three Hundred Fifty Million Dollars ($350,000,000) (the “Credit Facility”);



WHEREAS, to provide assurance for the repayment of the Loans hereunder and the other
Obligations of the Credit Parties, the Borrower will, among other things, provide or cause to be
provided to the Administrative Agent, for the benefit of the holders of the Obligations so
guaranteed, a guaranty of the Obligations by each of the Guarantors pursuant to Article XI
hereof;



WHEREAS, subject to the terms and conditions set forth herein, the Administrative Agent is
willing to act as administrative agent for the Lenders, the L/C Issuer is willing to issue Letters
of Credit as provided herein, the Swing Line Lender is willing to make Swing Line Loans as provided
herein, and each of the Lenders is willing to make Revolving Loans and to participate in Letters of
Credit as provided herein in an aggregate amount at any one time outstanding not in excess of such
Lender’s Revolving Commitment hereunder.



NOW, THEREFORE, in consideration of these premises and the mutual covenants and agreements
contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
covenant and agree as follows:



ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS




1.01 Defined Terms.



As used in this Credit Agreement, the following terms have the meanings set forth below (such
meanings to be equally applicable to both the singular and plural forms of the terms defined):



“Acquisition” with respect to any Person, means the purchase or acquisition by such
Person of any Capital Stock in or any asset of another Person, whether or not involving a merger or
consolidation with such other Person.



“Adjusted Borrowing Base Amount” means the Borrowing Base Amount as adjusted to
reflect the following diversification parameters:




(a) no single Borrowing Base Property shall account for greater than twenty-five
percent (25%) of the Adjusted Borrowing Base Amount, with any excess being subtracted from
the Borrowing Base Amount;




(b) Borrowing Base Properties that are located in any single metropolitan statistical
area shall not account for greater than twenty-five percent (25%) of the Adjusted Borrowing
Base Amount, with any excess being subtracted from the Borrowing Base Amount;




(c) no more than twenty-five percent (25%) of the Adjusted Borrowing Base Amount shall
be attributable to one or more Borrowing Base Properties with the same Tenant, with any
excess being subtracted from the Borrowing Base Amount; and




(d) no more than fifteen percent (15%) of the Adjusted Borrowing Base Amount shall be
attributable to Borrowing Base Properties that are not wholly owned by the Parent, the
Borrower or any Wholly Owned Subsidiary of the Borrower, with any excess being subtracted
from the Borrowing Base Amount.



“Administrative Agent” means Bank of America in its capacity as administrative agent
for the Lenders under any of the Credit Documents, or any successor administrative agent.



“Administrative Agent’s Office” means the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 10.02, or such other address or account as
the Administrative Agent may from time to time notify the Borrower and the Lenders.



“Administrative Questionnaire” means an Administrative Questionnaire in a form
supplied by the Administrative Agent.



“Affiliate” means, with respect to any Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.



“Agent-Related Persons” means the Administrative Agent, together with its Affiliates
(including, in the case of Bank of America in its capacity as the Administrative Agent, MLPFS), and
the officers, directors, employees, agents and attorneys-in-fact of such Persons and Affiliates.



“Aggregate Capitalized Value Amount” means the sum of the Capitalized Value Amount for
each Borrowing Base Property.



“Aggregate Mortgageability Amount” means the sum of the Mortgageability Amount for
each Borrowing Base Property.



“Aggregate Commitments” means the Commitments of all the Lenders.



“Aggregate Occupancy” means, with respect to any reporting period, an amount equal to
(a) the total number of rented and occupied square footage with respect to each Borrowing Base
Property that is a medical office building or other office space for such reporting period
plus (b) with respect to each other Borrowing Base Property (other than with respect to a
Borrowing Base Property that is a hospital or a skilled nursing facility), an amount equal to (x)
the total rentable square footage relating to such Borrowing Base Property for such reporting
period multiplied by (y) by the applicable Occupancy Rate for such Borrowing Base
Property for such reporting period (determined in accordance with clause (a) of the definition of
“Occupancy Rate” in this Section 1.01). For the purposes of the definition of “Aggregate
Occupancy”, “Aggregate Occupancy Rate” and “Occupancy Rate”, a Tenant shall be deemed to occupy a
Property notwithstanding a temporary cessation (not to exceed three months in any single instance)
of operations for renovation, repairs or other similar temporary reason (not to exceed three months
in any single instance) or for the purpose of completing tenant build-out, provided that the tenant
pays rent during such cessation.



“Aggregate Occupancy Rate” means, with respect to any reporting period, a percentage
equaling (x) Aggregate Occupancy for the such reporting period divided by (y) the
aggregate total rentable square footage relating to Borrowing Base Property Pool for such reporting
period.



“Aggregate Revolving Commitments” means the Revolving Commitments of all the Lenders.



“Aggregate Revolving Committed Amount” has the meaning provided in
Section 2.01(a), as increased from time to time pursuant to Section 2.01(d).



“Agreement” has the meaning provided in the introductory paragraph hereof.



“Annual Capital Expenditure Adjustment” means an amount equal to (a) the aggregate
square footage of all Borrowing Base Properties multiplied by (b) $0.50.



“Applicable Percentage” means, for any applicable period, a per annum rate based on
the Consolidated Leverage Ratio as set forth in the most recent Compliance Certificate received by
the Administrative Agent pursuant to Section 6.02(a) as follows:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Applicable Percentage
	Pricing Level	 	Consolidated	 	Eurodollar Loans	 	Base Rate Loans	 	Letter of Credit
	 	 	 	 	Leverage Ratio	 	and Swing Line	 	 	 	 	 	Fees
	 	 	 	 	 	 	Loans	 	 	 	 	 	 	 	 
	 	1	 	 	< 35%

	 	 	2.00	%	 	 	1.00	%	 	 	2.00	%
	 	 	 	 	 

	 	 	 	 	 	 	 	 	 	 	 	 
	 	2	 	 	> 35% but < 45%

	 	 	2.25	%	 	 	1.25	%	 	 	2.25	%
	 	 	 	 	 

	 	 	 	 	 	 	 	 	 	 	 	 
	 	3	 	 	> 45% but < 50%

	 	 	2.50	%	 	 	1.50	%	 	 	2.50	%
	 	 	 	 	 

	 	 	 	 	 	 	 	 	 	 	 	 
	 	4	 	 	> 50%

	 	 	3.00	%	 	 	2.00	%	 	 	3.00	%
	 	 	 	 	 

	 	 	 	 	 	 	 	 	 	 	 	 






Any increase or decrease in the Applicable Percentage resulting from a change in the Consolidated
Leverage Ratio shall become effective as of the fifth Business Day immediately following the date a
Compliance Certificate is delivered pursuant to Section 6.02(a); provided,
however, that if a Compliance Certificate is not delivered within five (5) Business Days
following the date when due in accordance with such Section, then Pricing Level 4 shall apply from
the first Business Day following the date such Compliance Certificate was due until the date on
which such Compliance Certificate is delivered. The Applicable Percentages in effect from the
Closing Date through the date that the Borrower delivers the Compliance Certificate for the fiscal
quarter ending March 31, 2012, shall be determined based upon the Consolidated Leverage Ratio
specified in the Compliance Certificate delivered pursuant to Section 4.01(f).
Notwithstanding anything to the contrary contained in this definition, the determination of the
Applicable Percentage for any period shall be subject to the provisions of Section 2.10(b).



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



“Arrangers” means each of (i) MLPFS and (ii) KeyBanc Capital Markets, each in its
capacity as joint lead arranger and joint book manager.



“Asset Value” means for any Real Property Asset, an amount equal to (a) the Net
Operating Income for such Real Property Asset for the most recently completed fiscal quarter
multiplied by (b) four and divided by (c) the applicable
Capitalization Rate for such Real Property Asset.



“Assignee Group” means two or more Eligible Assignees that are Affiliates of one
another or two or more Approved Funds managed by the same investment advisor.



“Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an Eligible Assignee (with the consent of any party whose consent is required by
Section 10.07(b)), and accepted by the Administrative Agent, in substantially the form of
Exhibit E or any other form approved by the Administrative Agent and, if such assignment
and assumption requires its consent, the Borrower.



“Attorney Costs” means and includes all reasonable and documented fees, expenses and
disbursements of any law firm or other external counsel.



“Attributable Principal Amount” means (a) in the case of capital leases, the amount of
capital lease obligations determined in accordance with GAAP, (b) in the case of Synthetic Leases,
an amount determined by capitalization of the remaining lease payments thereunder as if it were a
capital lease determined in accordance with GAAP, (c) in the case of Securitization Transactions,
the outstanding principal amount of such financing, after taking into account reserve amounts and
making appropriate adjustments, determined by the Administrative Agent in its reasonable judgment
and (d) in the case of sale and leaseback transactions, the present value (discounted in accordance
with GAAP at the debt rate implied in the applicable lease) of the obligations of the lessee for
rental payments during the term of such lease).



“Audited Financial Statements” means the audited consolidated balance sheet of the
Consolidated Parties for the fiscal year ended December 31, 2011, and the related consolidated
statements of earnings, stockholders’ equity and cash flows for such fiscal year of the
Consolidated Parties, including the notes thereto; provided, that the Administrative Agent
hereby agrees that the Form 10-K of the Borrower delivered to it by Consolidated Parties and
containing information for the fiscal year ended December 31, 2011, shall constitute all
information required to be delivered as part of the “Audited Financial Statements” for the purposes
of this Agreement.



“Available Commitments” means, at any time, an amount equal to the excess, if any, of
(a) the Aggregate Revolving Commitments, then in effect minus (b) the Outstanding Amount of
Revolving Obligations (excluding the amount of any then-outstanding Swing Line Loans).



“Bank of America” means Bank of America, N.A., together with its successors.



“Bankruptcy Code” means Title 11 of the United States Code, as the same may be amended
from time to time.



“Bankruptcy Event” means, with respect to any Person, the occurrence of any of the
following: (a) the entry of a decree or order for relief by a court or governmental agency in an
involuntary case under any applicable Debtor Relief Law or any other bankruptcy, insolvency or
other similar law now or hereafter in effect, or the appointment by a court or governmental agency
of a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of such
Person or for any substantial part of its Property or the ordering of the winding up or liquidation
of its affairs by a court or governmental agency and such decree, order or appointment is not
vacated or discharged within ninety (90) days of its filing; or (b) the commencement against such
Person of an involuntary case under any applicable Debtor Relief Law or any other bankruptcy,
insolvency or other similar law now or hereafter in effect, or of any case, proceeding or other
action for the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator
(or similar official) of such Person or for any substantial part of its Property or for the winding
up or liquidation of its affairs, and such involuntary case or other case, proceeding or other
action shall remain undismissed for a period of ninety (90) consecutive days, or the repossession
or seizure by a creditor of such Person of a substantial part of its Property; or (c) such Person
shall commence a voluntary case under any applicable Debtor Relief Law or any other bankruptcy,
insolvency or other similar law now or hereafter in effect, or consent to the entry of an order for
relief in an involuntary case under any such law, or consent to the appointment of or the taking
possession by a receiver, liquidator, assignee, creditor in possession, custodian, trustee,
sequestrator (or similar official) of such Person or for any substantial part of its Property or
make any general assignment for the benefit of creditors; or (d) the filing of a petition by such
Person seeking to take advantage of any Debtor Relief Law or any other applicable Law, domestic or
foreign, relating to bankruptcy, insolvency, reorganization, winding-up, or composition or
adjustment of debts, or (e) such Person shall fail to contest in a timely and appropriate manner
(and if not dismissed within ninety (90) days or shall consent to any petition filed against it in
an involuntary case under such bankruptcy laws or other applicable Law or consent to any proceeding
or action relating to any bankruptcy, insolvency, reorganization, winding-up, or composition or
adjustment of debts with respect to its assets or existence, or (f) such Person shall admit in
writing, or such Person’s financial statements shall reflect, an inability to pay its debts
generally as they become due.



“Base Rate” means for any day a fluctuating rate per annum equal to the highest of
(a) the Federal Funds Rate plus 0.50%, (b) the rate of interest in effect for such day as publicly
announced from time to time by Bank of America as its “prime rate,” and (c) the one-month
Eurodollar Rate plus one percent (1.00%). The “prime rate” is a rate set by Bank of America based
upon various factors including Bank of America’s costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing some loans, which may be
priced at, above, or below such announced rate. Any change in the prime rate announced by Bank of
America shall take effect at the opening of business on the day specified in the public
announcement of such change.



“Base Rate Loan” means a Loan that bears interest based on the Base Rate.



“Borrower” has the meaning given to such term in the introductory paragraph hereof.



“Borrower Materials” has the meaning provided in Section 6.02.



“Borrowing” means (a) a borrowing consisting of simultaneous Loans of the same Type
and, in the case of Eurodollar Loans, having the same Interest Period, or (b) a borrowing of Swing
Line Loans, as appropriate.



“Borrowing Base Amount” means, at any time, an amount equal to the lesser of
(a) fifty-five percent (55%) of the Aggregate Capitalized Value Amount minus Consolidated
Unsecured Indebtedness (excluding the Outstanding Amount of the Revolving Obligations) or (b) the
Aggregate Mortgageability Amount minus Consolidated Unsecured Indebtedness (excluding the
Outstanding Amount of the Revolving Obligations).



“Borrowing Base Certificate” means a certificate substantially in the form of
Exhibit C hereto delivered to the Administrative Agent pursuant to Section 6.02(b)
or more frequently at the option of the Borrower (a) setting forth a summary of the Aggregate
Capitalized Value Amount and Aggregate Mortgageability Amount relating thereto and stating the
Borrowing Base NOI and Mortgageability Amount attributable to each Borrowing Base Property, in
form, substance and detail reasonably satisfactory to the Administrative Agent, (b) certifying
(based upon its own information and the information then made available to the Borrower by the
applicable Tenants that the Borrower believes in good faith to be true and correct in all material
respects) (i) the calculation of the Adjusted Borrowing Base Amount as of the date of such
certificate and (ii) that each Real Property Asset used in the calculation of the Adjusted
Borrowing Base Amount meets each of the criteria for qualification as a Borrowing Base Property and
(c) providing such other information with respect to the Borrowing Base Properties as the
Administrative Agent may reasonably require.



“Borrowing Base NOI” means, at any time with respect to any Borrowing Base Property,
the Net Operating Income from such Borrowing Base Property for the then most recently ended fiscal
quarter multiplied by four, minus (a) an amount equal to (x) the
aggregate square footage of such Borrowing Base Property multiplied by (y) $0.50
and minus (b) an amount equal to the positive difference, if any, of (x) an amount equal to
three percent (3%) of annual rents attributable to such Borrowing Base Property minus (y)
the actual annual management fees incurred with respect to such Borrowing Base Property. For the
avoidance of doubt, the Net Operating Income of Borrowing Base Properties that are owned by the
Consolidated Parties for less than one fiscal quarter will be included in calculating Borrowing
Base NOI as if such Borrowing Base Properties were owned by such Consolidated Party as of the
beginning of the then most recently ended fiscal quarter.



“Borrowing Base Property” means, as of any date of determination, each Eligible
Borrowing Base Property, and each Real Property Asset that is approved by the Required Lenders to
be a Borrowing Base Property in accordance with Section 6.16, included in the calculations
set forth in the most recent Borrowing Base Certificate delivered to the Administrative Agent.
“Borrowing Base Property Pool” is a collective reference to the pool of Borrowing Base Properties
at such time.



“Businesses” has the meaning provided in Section 5.07(a).



“Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact closed in New York, New
York, Charlotte, North Carolina, Los Angeles, California or the state where the Administrative
Agent’s Office is located and, if such day relates to any Eurodollar Loan, means any such day that
is also a London Banking Day.



“Capital Lease” means a lease that would be capitalized on a balance sheet of the
lessee prepared in accordance with GAAP.



“Capital Stock” means (a) in the case of a corporation, capital stock, (b) in the case
of an association or business entity, any and all shares, interests, participations, rights or
other equivalents (however designated) of capital stock, (c) in the case of a partnership,
partnership interests (whether general or limited), (d) in the case of a limited liability company,
membership interests and (e) any other interest or participation that confers on a Person the right
to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.



“Capitalization Rate” means (a) 10.25% for all government reimbursed assets (i.e.
skilled nursing facilities, etc.) including, hospitals and (b) eight percent (8.0%) for all
non-government reimbursed assets (i.e. assisted living facilities, independent living facilities,
medical office buildings, office buildings, etc.).



“Capitalized Value Amount” means for any Borrowing Base Property, an amount equal to
(1) Borrowing Base NOI for such Borrowing Base Property divided by (2) the
applicable Capitalization Rate.



“Cash Collateral” means cash or deposit account balances pursuant to documentation in
form and substance reasonably satisfactory to the Administrative Agent and the L/C Issuer pledged
and deposited with or delivered to the Administrative Agent, for the benefit of the L/C Issuer and
the Lenders, as collateral for the L/C Obligations.



“Cash Equivalents” means (a) securities issued or directly and fully guaranteed or
insured by (i) the United States or any agency or instrumentality thereof (provided that the full
faith and credit of the United States is pledged in support thereof) having maturities of not more
than twelve months from the date of acquisition, (b) time deposits and certificates of deposit of
(i) any Lender, (ii) any domestic commercial bank of recognized standing having capital and surplus
in excess of Five Hundred Million Dollars ($500,000,000) or (iii) any bank whose short-term
commercial paper rating from S&P is at least A-1 or the equivalent thereof or from Moody’s is at
least P-1 or the equivalent thereof (each an “Approved Bank”), in each case with maturities
of not more than two hundred seventy (270) days from the date of acquisition, (c) commercial paper
and variable or fixed rate notes issued by any Approved Bank (or by the parent company thereof) or
any variable rate notes issued by, or guaranteed by, any domestic corporation rated A-1 (or the
equivalent thereof) or better by S&P or P-1 (or the equivalent thereof) or better by Moody’s and
maturing within six months of the date of acquisition, (d) repurchase agreements entered into by
any Person with a bank or trust company (including any of the Lenders) or recognized securities
dealer having capital and surplus in excess of Five Hundred Million Dollars ($500,000,000) for
direct obligations issued by or fully guaranteed by the United States in which such Person shall
have a perfected first priority security interest (subject to no other Liens) and having, on the
date of purchase thereof, a fair market value of at least one hundred percent (100%) of the amount
of the repurchase obligations and (e) Investments (classified in accordance with GAAP as current
assets) in money market investment programs registered under the Investment Company Act of 1940, as
amended, that are administered by reputable financial institutions having capital of at least Five
Hundred Million Dollars ($500,000,000) and the portfolios of which are limited to Investments of
the character described in the foregoing subclauses hereof.



“Change in Law” means the occurrence, after the Closing Date, of any of the following:
(a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any
law, rule, regulation or treaty or in the administration, interpretation, implementation or
application thereof by any Governmental Authority or (c) the making or issuance of any request,
rule, guideline or directive (whether or not having the force of law) by any Governmental
Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall
Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives
thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives
promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision
(or any successor or similar authority) or the United States or foreign regulatory authorities, in
each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless
of the date enacted, adopted or issued.



“Change of Control” means the occurrence of any of the following events: (a) any
Person or two or more Persons acting in concert shall have acquired beneficial ownership, directly
or indirectly, of, or shall have acquired by contract or otherwise, or shall have entered into a
contract or arrangement that, upon consummation, will result in its or their acquisition of or
control over, voting stock of the Parent (or other securities convertible into such voting stock)
representing thirty-five percent (35%) or more of the combined voting power of all voting stock of
the Parent, (b) during any period of up to twenty-four (24) consecutive months, commencing after
the Closing Date, individuals who at the beginning of such twenty-four (24) month period were
directors of the Parent (together with any new director whose election by the Parent’s Board of
Directors or whose nomination for election by the Parent’s stockholders was approved by a vote of
at least two-thirds of the directors then still in office who either were directors at the
beginning of such period or whose election or nomination for election was previously so approved)
cease for any reason to constitute a majority of the directors of the Parent then in office, or (c)
the Parent shall cease to be the general partner of the Borrower. As used herein, “beneficial
ownership” shall have the meaning provided in Rule 13d-3 of the SEC under the Securities Exchange
Act of 1934.



“Closing Date” means the date hereof.



“Commitment” means the Revolving Commitment, the L/C Commitment and the Swing Line
Commitment.



“Commitment Period” means the period from and including the Closing Date to the
earlier of (a) in the case of Revolving Loans and Swing Line Loans, the Termination Date, and, in
the case of the Letters of Credit, the Letter of Credit Expiration Date, or (b) the date on which
the Revolving Commitments shall have been terminated as provided herein.



“Commitment Utilization Percentage” means, on any date, the percentage equal to a
fraction, the numerator of which is the Outstanding Amount of Revolving Obligations (excluding the
amount of any then-outstanding Swing Line Loans) and the denominator of which is the Aggregate
Revolving Commitments.



“Compliance Certificate” means a certificate substantially in the form of
Exhibit D.



“Confidential Information” has the meaning provided in Section 10.08.



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



“Consolidated Adjusted EBITDA” means, for the most recently completed fiscal quarter,
for the Consolidated Parties on a consolidated basis, an amount equal to (a) Consolidated EBITDA
for such quarter multiplied by (b) four (4), minus (c) an amount equal to
the Annual Capital Expenditure Adjustment.



“Consolidated EBITDA” means, for any period, for the Consolidated Parties on a
consolidated basis, the sum of (a) Consolidated Net Income, in each case, excluding (i) any
non-recurring or extraordinary gains and losses for such period, (ii) any income or gain and any
loss in each case resulting from the early extinguishment of indebtedness and (iii) any net income
or gain or any loss resulting from a Swap Contract or other derivative contact (including by virtue
of a termination thereof), plus (b) an amount which, in the determination of net income for
such period pursuant to clause (a) above, has been deducted for or in connection with (i)
Consolidated Interest Expense (plus, amortization of deferred financing costs, to the extent
included in the determination of Consolidated Interest Expense per GAAP), (ii) income taxes, and
(iii) depreciation and amortization, all determined in accordance with GAAP, plus (c) the
Consolidated Parties’ pro rata share of the above attributable to interests in the Unconsolidated
Affiliates.



“Consolidated Fixed Charge Coverage Ratio” means, as of any date of determination, the
ratio of (a) Consolidated Adjusted EBITDA as of such date to (b) Consolidated Fixed Charges as of
such date.



“Consolidated Fixed Charges” means, for the most recently completed fiscal quarter,
for the Consolidated Parties on a consolidated basis, the product of (i) the sum of (a)
Consolidated Interest Expense for such period, plus (b) current scheduled principal
payments of Indebtedness for such period (excluding any “balloon” payment or final payment at
maturity that is significantly larger than the scheduled payments that preceded it), plus
(c) dividends and distributions on preferred stock, if any, for such period, plus (d) the
Consolidated Parties’ pro rata share of any such amounts attributable to their interest in the
Unconsolidated Affiliates, in each case, as determined in accordance with GAAP, multiplied
by (ii) four (4).



“Consolidated Interest Expense” means, for any period, for the Consolidated Parties on
a consolidated basis, without duplication, an amount equal to all interest expense and letter of
credit fee expense, as determined in accordance with GAAP during such period (including for the
avoidance of doubt capitalized interest and interest expense attributable to the Consolidated
Parties’ ownership interests in the Unconsolidated Affiliates and excluding amortization
of loan fees, debt discount, debt premium and amortization of like items included in interest
expense under GAAP).



“Consolidated Leverage Ratio” means, as of any date of determination, the ratio of (a)
Consolidated Total Indebtedness as of such date to (b) Consolidated Total Asset Value as of such
date.



“Consolidated Net Income” means, as of any date of determination, for the Consolidated
Parties on a consolidated basis, the net income (or loss) of the Consolidated Parties for the
subject period; provided, that Consolidated Net Income shall exclude (a) extraordinary
gains and extraordinary losses for such period, (b) the net income of any Subsidiary during such
period to the extent that the declaration or payment of dividends or similar distributions by such
subsidiary of such income is not permitted by operation of the terms of its Organization Documents
or any agreement, instrument or Law applicable to such Subsidiary during such period, except that
the Parent’s equity in any net loss of any such Subsidiary for such period shall be included in
determining Consolidated Net Income, and (c) any income (or loss) for such period of any Person if
such Person is not a Subsidiary of the Parent, except that the Parent’s equity in the net income of
any such Person for such period shall be included in Consolidated Net Income up to the aggregate
amount of cash actually distributed by such Person during such period to the Parent or a Subsidiary
thereof as a dividend or other distribution (and in the case of a dividend or other distribution to
a subsidiary of the Parent, such Subsidiary is not precluded from further distributing such amount
to the Parent as described in clause (b) of this proviso).



“Consolidated Parties” means the Parent and its Consolidated Subsidiaries, as
determined in accordance with GAAP.



“Consolidated Secured Leverage Ratio” means, as of any date of determination, the
ratio of (a) Consolidated Total Secured Indebtedness as of such date to (b) Consolidated Total
Asset Value as of such date.



“Consolidated Subsidiary” means at any date any Subsidiary or other entity the
accounts of which would be consolidated with those of the Parent in its consolidated financial
statements if such statements were prepared as of such date.



“Consolidated Tangible Net Worth” means, for the Consolidated Parties as of any date
of determination, (a) stockholders’ equity on a consolidated basis determined in accordance with
GAAP, minus (b) all non-real estate related Intangible Assets on a consolidated basis,
plus (c) all depreciation and amortization, all determined in accordance with GAAP.



“Consolidated Total Asset Value” means the sum of all the following of the
Consolidated Parties, without duplication, an amount equal to: (a) the Asset Value of all Real
Property Assets owned by the Consolidated Parties on the last day of the then most recently ended
fiscal quarter (other than Real Property Assets acquired during the then most recently ended fiscal
quarter), plus (b) the aggregate acquisition cost of all Real Property Assets acquired by
the Consolidated Parties during the then most recently ended fiscal quarter, plus (c) the
aggregate book value of all unimproved land holdings, mortgage or mezzanine loans, notes receivable
and/or construction in progress owned by the Consolidated Parties, plus (d) the
Consolidated Parties’ pro rata share of the foregoing items and components attributable to interest
in Unconsolidated Affiliates, plus (e) all unrestricted cash.



“Consolidated Total Indebtedness” means, as of any date of determination, all
Indebtedness of the Consolidated Parties determined on a consolidated basis.



“Consolidated Total Secured Indebtedness” means, as of any date of determination, the
aggregate principal amount of Indebtedness of the Consolidated Parties, on a consolidated basis,
that is secured by a Lien.



“Consolidated Unencumbered Interest Coverage Ratio” means, as of any date of
determination, the ratio of (a) Consolidated Unencumbered NOI as of such date to (b) the
Consolidated Unsecured Debt Service as of such date.



“Consolidated Unencumbered Leverage Ratio” means, as of any date of determination, the
ratio of (a) Consolidated Unsecured Indebtedness as of such date to (b) Consolidated Unencumbered
Total Asset Value as of such date.



“Consolidated Unencumbered NOI” means, for the Consolidated Parties as of any date of
determination, the sum of the Net Operating Income of all Consolidated Unencumbered Properties
calculated as follows: (a) in the case of Consolidated Unencumbered Properties that are owned for
at least one fiscal quarter, the Net Operating Income from such Consolidated Unencumbered
Properties for the then most recently ended fiscal quarter minus (b) Net Operating Income
attributable to Consolidated Unencumbered Properties that were sold or otherwise disposed of during
the then most recently ended fiscal quarter (c) multiplied by four. For
the avoidance of doubt, the Net Operating Income of Consolidated Unencumbered Properties that are
owned by the Consolidated Parties for less than one fiscal quarter will be included in calculating
Consolidated Unencumbered NOI as if such properties were owned by the Consolidated Parties as of
the beginning of the then most recently fiscal quarter.



“Consolidated Unencumbered Properties” shall mean, for the Consolidated Group, all
Real Property Assets that are not secured by a Lien (other than Permitted Liens (excluding Liens
described in Section 7.01(i) and (j)).



“Consolidated Unencumbered Total Asset Value” means an amount equal to (a) the
aggregate Unencumbered Asset Value for all Consolidated Unencumbered Properties owned by the
Consolidated Parties on the last day of the then most recently ended fiscal quarter (other than
Consolidated Unencumbered Properties acquired during the then most recently ended fiscal quarter),
plus (b) the aggregate acquisition cost of all Consolidated Unencumbered Properties
acquired by the Consolidated Parties during the then most recently ended fiscal quarter.



“Consolidated Unsecured Debt Service” means, for any period, for the Consolidated
Parties on a consolidated basis, the (a) sum of (i) Consolidated Interest Expense from all
Consolidated Unsecured Indebtedness, plus (ii) scheduled principal payments from all
Consolidated Unsecured Indebtedness (excluding any “balloon” payment or final payment at maturity
that is significantly larger than the scheduled payments that preceded it), plus (iii) the
Consolidated Parties’ pro rata share of the above attributable to interests in Unconsolidated
Affiliates, all for the then most recently ended fiscal quarter, multiplied by (b) four
(4).



“Consolidated Unsecured Indebtedness” means the aggregate principal amount of
Indebtedness of the Consolidated Parties, on a consolidated basis, that is not Indebtedness that
would constitute Consolidated Total Secured Indebtedness.



“Contractual Obligation” means, as to any Person, any provision of any security issued
by such Person or of any agreement, instrument or other undertaking to which such Person is a party
or by which it or any of its property is bound.



“Control” means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings
correlative thereto. Without limiting the generality of the foregoing, a Person shall be deemed to
be Controlled by another Person if such other Person possesses, directly or indirectly, power to
vote twenty-five percent (25%) or more of the securities having ordinary voting power for the
election of directors, managing general partners or the equivalent.



“Credit Agreement” has the meaning given to such term in the introductory paragraph
hereof.



“Credit Documents” means this Credit Agreement, the Notes, the Fee Letter, each Issuer
Document, the Subsidiary Guarantor Joinder Agreements, the Borrowing Base Certificates, the
Compliance Certificates and any agreement creating or perfecting rights in Cash Collateral pursuant
to the provisions of Section 2.14.



“Credit Party” means, as of any date, the Borrower, the Parent or any other Guarantor
which is a party to the Credit Agreement as of such date; and “Credit Parties” means a
collective reference to each of them.



“Daily Floating Eurodollar Rate Loan” means a Loan that bears interest at a rate based
on the Daily Floating Eurodollar Rate.



“Daily Floating Eurodollar Rate” means, for each day, a fluctuating rate of interest
equal to Eurodollar Rate applicable on such day for an Interest Period of one month beginning two
(2) Business Days thereafter. The Daily Floating Eurodollar Rate shall be determined and adjusted
on each Business Day and shall remain in effect until the next Business Day. If the Daily Floating
Eurodollar Rate is not available at such time for any reason, or if the Administrative Agent
determines that no adequate basis exists for determining the Daily Floating Eurodollar Rate, or
that the Daily Floating Eurodollar Rate will not adequately and fairly reflect the cost to Swing
Line Lender of funding the Swing Line Loan, or that any applicable Law or regulation or compliance
therewith by Swing Line Lender prohibits or restricts or makes impossible the charging of interest
based on the Daily Floating Eurodollar Rate, then “Daily Floating Eurodollar Rate” shall be an
interest rate equal to the Base Rate then in effect.



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



“Default” means any event, act or condition that, with notice, the passage of time, or
both, would constitute an Event of Default.



“Default Rate” means an interest rate equal to (a) the Base Rate plus (b) the
interest rate applicable to Base Rate Loans set forth in Pricing Level 4 of the definition of
“Applicable Percentage” plus (c) two percent (2%) per annum; provided,
however, that with respect to a Eurodollar Loan, the Default Rate shall be an interest rate
equal to (x) the interest rate (assuming Pricing Level 4 of the definition Applicable Percentage)
otherwise applicable to such Loan plus (y) two percent (2%) per annum, in each case to the
fullest extent permitted by applicable Law.



“Defaulting Lender” means, subject to Section 2.15(b), any Lender that (a) has
failed to (i) fund all or any portion of its Loans within two Business Days of the date such Loans
were required to be funded hereunder unless such Lender notifies the Administrative Agent and the
Borrower in writing that such failure is the result of such Lender’s reasonable determination that
one or more conditions precedent to funding (each of which conditions precedent, together with any
applicable default, shall be specifically identified in such writing) has not been satisfied, or
(ii) pay to the Administrative Agent, the L/C Issuer, the Swing Line Lender or any other Lender any
other amount required to be paid by it hereunder (including in respect of its participation in
Letters of Credit or Swing Line Loans) within two Business Days of the date when due, (b) has
notified the Borrower, the Administrative Agent, the L/C Issuer or the Swing Line Lender in writing
that it does not intend to comply with its funding obligations hereunder, or has made a public
statement to that effect (unless such writing or public statement relates to such Lender’s
obligation to fund a Loan hereunder and states that such position is based on such Lender’s
reasonable determination that a condition precedent to funding (which condition precedent, together
with any applicable default, shall be specifically identified in such writing or public statement)
cannot be satisfied), (c) has failed, within three Business Days after written request by the
Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the
Borrower that it will comply with its prospective funding obligations hereunder (provided
that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon
receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or
has a direct or indirect parent company that has, (i) become the subject of a proceeding under any
Debtor Relief Law, or (ii) had appointed for it a receiver, custodian, conservator, trustee,
administrator, assignee for the benefit of creditors or similar Person charged with reorganization
or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or
any other state or federal regulatory authority acting in such a capacity; provided that a
Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any
equity interest in that Lender or any direct or indirect parent company thereof by a Governmental
Authority so long as such ownership interest does not result in or provide such Lender with
immunity from the jurisdiction of courts within the United States or from the enforcement of
judgments or writs of attachment on its assets or permit such Lender (or such Governmental
Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such
Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under
any one or more of clauses (a) through (d) above, and of the effective date of such
status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to
be a Defaulting Lender (subject to Section 2.15(b)) as of the date established therefor by
the Administrative Agent in a written notice of such determination, which shall be delivered by the
Administrative Agent to the Borrower, the L/C Issuer, the Swing Line Lender and each other Lender
promptly following such determination.



“Designated Jurisdiction” means any country or territory to the extent that such
country or territory itself is the subject of any Sanction.



“Disposition” or “Dispose” means the sale, transfer, license, lease or other
disposition (including any sale and leaseback transaction) of any property by any Person, including
any sale, assignment, transfer or other disposal, with or without recourse, of any notes or
accounts receivable or any rights and claims associated therewith.



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



“EBITDAR” means, with respect to any Real Property Asset, for the most recently
completed fiscal quarter, the combined unaudited financial results as reported periodically by any
Person’s (or consolidated group of Persons’) tenants calculated as net income for such period
plus, (a) to the extent deducted in determining such net income, interest expense, rent
expense paid to any such Person (or consolidated group of Persons), income tax expense, management
fees and/or corporate overhead, depreciation and amortization for such period, excluding any other
non-recurring or extraordinary gains or losses as reported by such Person’s (or consolidated group
of Persons’) tenants, minus (b) management fees in an amount equal to two percent (2%) of
total revenues for hospitals for such period and five percent (5%) of total revenues for skilled
nursing facilities for such period, multiplied by four (4)..



“Eligible Assignee” means any Person that meets the requirements to be an assignee
under Sections 10.07(b)(iii) and (v) (subject to such consents, if any, as may be
required under Section 10.07(b)(iii)).



“Eligible Borrowing Base Property” means any Real Property Asset that:




(a) is a Healthcare Facility;




(b) is one hundred percent (100%) owned in fee simple absolute by a Credit Party or
that a Credit Party holds a leasehold interest or similar arrangement providing the right to
occupy Real Property Asset pursuant to an Eligible Ground Lease; provided:




(i) such Credit Party is controlled exclusively by the Borrower or one or more
Wholly Owned Subsidiaries of the Borrower (including the ability to control
operating activities of such Credit Party and the ability of such Credit Party to
dispose of, pledge or otherwise encumber assets, incur, repay and prepay debt,
provide guarantees and pay dividends and distributions, in each case, without any
requirement for the consent of any other party or entity);




(ii) that the Borrower owns at least eighty percent (80%) of the Capital Stock
with ordinary voting rights issued by such Credit Party;




(iii) such Credit Party is domiciled and incorporated in the United States; and




(iv) such Credit Party is not liable for any Indebtedness (other Indebtedness
permitted under Sections 7.02(a) and 7.02(b);




(c) does not have any title, survey, environmental, condemnation, or other defects that
would give rise to a materially adverse effect as to the value, use (other than as a
Healthcare Facility) of or ability to sell or finance such property;




(d) is not subject to a Lien (other than Permitted Liens), a Negative Pledge or any
other encumbrance or any restriction on the ability of the relevant Credit Party to transfer
or encumber such Real Property Asset or income therefrom or proceeds thereof (other than the
reasonable restrictions on transfers to competitors of a ground lessor of the property or
affiliates of such ground lessor or of an owner of a hospital campus on or about which the
property is located or affiliates of such owner);




(e) is located in the United States;




(f) if such Real Property Asset is a hospital, as of the end of the most recently
completed fiscal quarter, has a ratio of EBITDAR to the sum of annual rent of such hospital
(measured on a consolidated basis including all buildings on such Real Property Assets’
campus and/or master lease) not less than 2.0 to 1.0;




(g) if such Real Property Asset is a skilled nursing facility, as of the end of the
most recently completed fiscal quarter, has a ratio of EBITDAR to the sum of annual rent of
such skilled nursing facility (measured on a consolidated basis including all buildings on
such Real Property Assets’ campus and/or master lease) not less than 1.30 to 1.0; and




(h) unless such Real Property Asset is a hospital or skilled nursing facility, has an
Occupancy Rate equal to or greater than seventy percent 70%; provided,
however, the Aggregate Occupancy Rate of that portion of the Borrowing Base Pool
that is other than a hospital or skilled nursing facility shall, as of any date of
determination, be equal to or greater than eighty percent (80%).



“Eligible Ground Lease” means, at any time, either (a) a ground lease reviewed deemed
by the Administrative Agent, in its sole discretion, to be an “Eligible Ground Lease” or (b) a
ground lease (i) under which a Credit Party is the lessee or holds equivalent rights and is the fee
owner of the improvements located thereon, (ii) that has a remaining term (including renewal
options exercisable at lessee’s sole option) of not less than thirty (30) years, (iii) under which
any required rental payment, principal or interest payment or other payment due under such lease
from the applicable Credit Party to the ground lessor is not more than sixty (60) days past due and
any required rental payment, principal or interest payment or other payment due to such Credit
Party under any sublease of the applicable real property lessor is not more than sixty (60) days
past due, (iv) where no party to such lease is subject to a then-continuing Bankruptcy Event, (v)
such ground lease (or a related document executed by the applicable ground lessor) contains
customary provisions protective of any lender to the lessee and (vi) where the applicable Credit
Party’s interest in the underlying Real Property Asset or the lease is not subject to (A) any Lien
other than Permitted Liens and other encumbrances acceptable to the Administrative Agent and the
Required Lenders, in their reasonable discretion, or (B) any Negative Pledge.



“Environmental Laws” means any and all federal, state, local, and foreign statutes,
laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or governmental restrictions relating to pollution and the
protection of the environment or the release of any materials into the environment, including those
related to hazardous substances or wastes, air emissions and discharges to waste or public systems.



“Equity Transaction” means, with respect to any member of the Consolidated Parties,
any issuance or sale of shares of its Capital Stock, other than an issuance (a) to a Consolidated
Party, (b) in connection with a conversion of debt securities to equity, (c) in connection with the
exercise by a present or former employee, officer or director under a stock incentive plan, stock
option plan or other equity-based compensation plan or arrangement, or (d) in connection with any
acquisition permitted hereunder.



“ERISA” means the Employee Retirement Income Security Act of 1974.



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



“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by any Consolidated Party or any ERISA Affiliate from a Pension Plan subject to
Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in
Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal
under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by any Consolidated Party or
any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Plan
amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of
proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or
condition that could reasonably be expected to constitute grounds under Section 4042 of ERISA for
the termination of, or the appointment of a trustee to administer, any Pension Plan or
Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA, other than for
PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Consolidated Party or
any ERISA Affiliate.



“Eurodollar Loan” means a Loan that bears interest at a rate based on the Eurodollar
Rate.



“Eurodollar Rate” means, for any Interest Period with respect to a Eurodollar Loan,
the rate per annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”), as
published by Reuters (or other commercially available source providing quotations of BBA LIBOR as
designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time,
two London Banking Business Days prior to the commencement of such Interest Period, for Dollar
deposits (for delivery on the first day of such Interest Period) with a term equivalent to such
Interest Period. If such rate is not available at such time for any reason, then the “Eurodollar
Rate” for such Interest Period shall be the rate per annum determined by the Administrative Agent
to be the rate at which deposits in Dollars for delivery on the first day of such Interest Period
in same day funds in the approximate amount of the Eurodollar Loan being made, continued or
converted by Bank of America and with a term equivalent to such Interest Period would be offered by
Bank of America’s London Branch to major banks in the London interbank eurodollar market at their
request at approximately 11:00 a.m. (London time) two London Banking Days prior to the commencement
of such Interest Period.



“Event of Default” has the meaning provided in Section 8.01.



“Excluded Subsidiary” means any Subsidiary that (i) has Secured Indebtedness that (x)
is owed to a Person other than an Affiliate of such Subsidiary and (y) by its terms does not permit
such Subsidiary to become a Guarantor or (ii) is not at least eighty percent (80%), directly or
indirectly, owned by the Parent or the Borrower and controlled exclusively by the Parent or the
Borrower and/or one or more wholly-owned subsidiaries of the Parent or the Borrower, including
control over operating activities of such Subsidiary and the ability of such Subsidiary to dispose
of, pledge or otherwise encumber assets, incur, repay and prepay debt, provide guarantees and pay
dividends and distributions in each case without any requirement for the consent of any other party
or entity and is restricted from being a Guarantor under its Organization Documents. For the
avoidance of doubt, an Excluded Subsidiary shall not own, directly or indirectly, all or any
portion of an Eligible Borrowing Base Property.



“Excluded Taxes” means any of the following Taxes imposed on or with respect to any
Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed
on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in
each case, (i) imposed as a result of such Recipient being organized under the laws of, or having
its principal office or, in the case of any Lender, its Lending Office located in, the jurisdiction
imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes,
(b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for
the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant
to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or
Commitment (other than pursuant to an assignment request by the Borrower under Section
10.16) or (ii) such Lender changes its Lending Office, except in each case to the extent that,
pursuant to Section 3.01(a)(ii) or (c), amounts with respect to such Taxes were
payable either to such Lender’s assignor immediately before such Lender became a party hereto or to
such Lender immediately before it changed its Lending Office, (c) Taxes attributable to such
Recipient’s failure to comply with Section 3.01(e) and (d) any U.S. federal
withholding Taxes imposed pursuant to FATCA.



“Extension of Credit” means (a) any Borrowing and (b) any L/C Credit Extension.



“Facilities” has the meaning provided in Section 5.07(a).



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



“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement
(or any amended or successor version that is substantively comparable and not materially more
onerous to comply with) and any current or future regulations or official interpretations thereof.



“Federal Funds Rate” means, for any day, the rate per annum equal to the weighted
average of the rates on overnight federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers on such day, as published by the Federal Reserve Bank of
New York on the Business Day immediately succeeding such day; provided, that (a) if such
day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the immediately preceding Business Day as so published on the immediately
succeeding Business Day, and (b) if no such rate is so published on such immediately succeeding
Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if
necessary, to the next 1/100th of one percent (1.00%)) charged to Bank of America on
such day on such transactions as determined by the Administrative Agent.



“Fee Letter” means that certain letter agreement dated as of March 14, 2012, among the
Administrative Agent, MLPFS and the Borrower.



“Foreign Lender” means (a) if the Borrower is a U.S. Person, a Lender that is not a
U.S. Person, and (b) if the Borrower is not a U.S. Person, a Lender that is resident or organized
under the laws of a jurisdiction other than that in which the Borrower is resident for tax
purposes. For purposes of this definition, the United States, each State thereof and the District
of Columbia shall be deemed to constitute a single jurisdiction.



“FRB” means the Board of Governors of the Federal Reserve System of the United States.



“Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect
to the L/C Issuer, such Defaulting Lender’s Revolving Commitment Percentage of the outstanding L/C
Obligations other than L/C Obligations as to which such Defaulting Lender’s participation
obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the
terms hereof, and (b) with respect to the Swing Line Lender, such Defaulting Lender’s Revolving
Commitment Percentage of Swing Line Loans other than Swing Line Loans as to which such Defaulting
Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in
accordance with the terms hereof.



“Fund” means any Person (other than a natural person) engaged in making, purchasing,
holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary
course of its business.



“Funds from Operations” has the meaning accepted in accordance with the resolutions
adopted by the Board of Governors of the National Association of Real Estate Investment Trusts as
in effect from time to time. Notwithstanding contrary treatment under GAAP, for purposes hereof,
(a) “Funds From Operations” shall include, and be adjusted to take into account, the Borrower’s
interests in unconsolidated partnerships and joint ventures, on the same basis as consolidated
partnerships and subsidiaries, as provided in the “white paper” issued in April 2002 by the
National Association of Real Estate Investment Trusts, a copy of which has been provided to the
Administrative Agent and the Lenders and (b) net income (or loss) shall not include gains (or, if
applicable, losses) resulting from or in connection with (i) restructuring of indebtedness, (ii)
sales of property, or (iii) sales or redemptions of preferred stock, (iv) revenue or expenses
related to owned and operated assets, (v) revenue or expense related to FIN 46 consolidation
requirements and (vi) any other special charges.



“GAAP” means generally accepted accounting principles in effect in the United States
as set forth in the opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board from time to time applied on a consistent basis, subject to the
provisions of Section 1.03.



“Governmental Authority” means any nation or government, any state or other political
subdivision thereof, and any agency, authority, instrumentality, regulatory body, court,
administrative tribunal, central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to government.




“Guaranteed Obligations” has the meaning given to such term in Section
11.01.



“Guarantors” means the Parent and any Subsidiary of the Parent that guarantees the
loans and obligations hereunder pursuant to the Guaranty, in each case with their successors and
permitted assigns.



“Guaranty” means the guaranty of the Obligations by each of the Guarantors pursuant to
Article XI hereof.



“Hazardous Material” means any toxic or hazardous substance, including petroleum and
its derivatives regulated under the Environmental Laws.



“Healthcare Facilities” means any skilled nursing facilities, facilities for the
mentally challenged and developmentally disabled, rehabilitation facilities, hospitals, continuing
care retirement communities, life science facilities, long term acute care facilities, intermediate
care facilities for the mentally disabled, medical office buildings, office buildings, domestic
assisted living facilities, independent living facilities or Alzheimer’s care facilities and any
ancillary businesses that are incidental to the foregoing.



“Indebtedness” means, as to any Person at a particular time, without duplication, all
of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:




(a) all obligations of such Person for borrowed money and all obligations of such
Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;




(b) all direct or contingent obligations under letters of credit (including standby and
commercial), bankers’ acceptances and similar instruments (including bank guaranties, surety
bonds, comfort letters, keep well agreements and capital maintenance agreements) to the
extent such instruments or agreements support financial, rather than performance,
obligations;




(c) net obligations of such Person under any Swap Contract;




(d) all obligations of such Person to pay the deferred purchase price of property or
services (other than a contingent earn-out obligation until such amount is actually due);




(e) the Attributable Principal Amount of capital leases, Synthetic Leases and
Securitization Transactions;




(f) all obligations to purchase, redeem, retire, defease or otherwise make any payment
in respect of any equity interest, valued, in the case of a redeemable preferred interest,
at the greater of its voluntary or involuntary liquidation preference, plus accrued and
unpaid dividends;




(g) indebtedness (excluding prepaid interest thereon) secured by a Lien on property
owned or being purchased by such Person (including indebtedness arising under conditional
sales or other title retention agreements), whether or not such indebtedness shall have been
assumed by such Person or is limited in recourse; and




(h) all Guarantees in respect of any of the foregoing (except for guarantees of
customary exceptions for fraud, misapplication of funds, environmental indemnities,
violation of “special purpose entity” covenants, and other similar exceptions to recourse
liability until a claim is made with respect thereto, and then shall be included only to the
extent of the amount of such claim).



For all purposes hereof, (i) Indebtedness shall include the Consolidated Parties’ pro rata
share of the foregoing items and components attributable to Indebtedness of Unconsolidated
Affiliates. The amount of any net obligation under any Swap Contract on any date shall be deemed
to be the Swap Termination Value thereof as of such date. The Attributable Principal Amount of any
capital lease, Synthetic Lease or Securitization Transaction as of any date shall be deemed to be
the Attributable Principal Amount in respect thereof as of such date.



“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with
respect to any payment made by or on account of any obligation of any Credit Party under any Credit
Document and (b) to the extent not otherwise described in (a), Other Taxes.




“Indemnitees” has the meaning provided in Section 10.04.



“Intangible Assets” means all assets consisting of goodwill, patents, trade names,
trademarks, copyrights, franchises, experimental expense, organization expense, unamortized
investment debt discount and premium, deferred assets (other than prepaid insurance and prepaid
taxes), the excess of cost of shares acquired over book value of related assets and such other
assets as are properly classified as “intangible assets” in accordance with GAAP.



“Interest Period” means, as to each Eurodollar Loan, the period commencing on the date
such Eurodollar Loan is disbursed or converted to or continued as a Eurodollar Loan and ending on
the date one, two, three or six months thereafter, as selected by the applicable Borrower in its
Loan Notice; provided, that:




(a) any Interest Period that would otherwise end on a day that is not a Business Day
shall be extended to the immediately succeeding Business Day unless such Business Day falls
in another calendar month, in which case such Interest Period shall end on the immediately
preceding Business Day;




(b) any Interest Period that begins on the last Business Day of a calendar month (or on
a day for which there is no numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last Business Day of the calendar month at the end
of such Interest Period; and




(c) no Interest Period shall extend beyond the Termination Date.



“Internal Revenue Code” means the Internal Revenue Code of 1986 as amended.



“Investment” means, as to any Person, any direct or indirect acquisition or investment
by such Person, whether by means of (a) the purchase or other acquisition of Capital Stock of
another Person, (b) a loan, advance or capital contribution to, guaranty or assumption of debt of,
or purchase or other acquisition of any other debt or equity participation or interest in, another
Person, including any partnership or joint venture interest in such other Person, or (c) the
purchase or other acquisition (in one transaction or a series of transactions) of assets of another
Person that constitute a business unit. For purposes of covenant compliance, the amount of any
Investment shall be the amount actually invested, without adjustment for subsequent increases or
decreases in the value of such Investment.



“IRS” means the United States Internal Revenue Service.



“ISP” means, with respect to any Letter of Credit, the “International Standby
Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such
later version thereof as may be in effect at the time of issuance).



“Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit
Application, and any other document, agreement and instrument entered into by the L/C Issuer and
the Borrower (or the Parent or any Subsidiary) or in favor of the L/C Issuer and relating to such
Letter of Credit.



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



“L/C Advance” means, with respect to each Lender, such Lender’s funding of its
participation in any L/C Borrowing.



“L/C Borrowing” means any extension of credit resulting from a drawing under any
Letter of Credit that has not been reimbursed or refinanced as a Borrowing of Revolving Loans.



“L/C Cash Collateralization Date” means the day that is 30 days prior to the
Termination Date then in effect.



“L/C Commitment” means, with respect to the L/C Issuer, the commitment of the L/C
Issuer to issue and to honor payment obligations under Letters of Credit, and, with respect to each
Lender, the commitment of such Lender to purchase participation interests in L/C Obligations up to
such Lender’s Revolving Commitment Percentage thereof.



“L/C Committed Amount” has the meaning provided in Section 2.01(b).



“L/C Credit Extension” means, with respect to any Letter of Credit, the issuance
thereof or extension of the expiry date thereof, or the renewal or increase of the amount thereof.



“L/C Issuer” means Bank of America in its capacity as issuer of Letters of Credit
hereunder, in each case together with its successors in such capacity.



“L/C Issuer Fees” has the meaning given such term in Section 2.09(c)(ii).



“L/C Obligations” means, at any time, the sum of (a) the maximum amount available to
be drawn under Letters of Credit then outstanding, assuming compliance with all requirements for
drawings referenced therein, plus (b) the aggregate amount of all Unreimbursed Amounts,
including L/C Borrowings. For purposes of computing the amount available to be drawn under any
Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with
Section 1.07. For all purposes of this Agreement, if on any date of determination a Letter
of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the
operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the
amount so remaining available to be drawn.



“Lender” means each of the Persons identified as a “Lender” on the signature pages
hereto (and, as appropriate, includes the L/C Issuer and the Swing Line Lender) and each Person who
joins as a Lender pursuant to the terms hereof, together with their respective successors and
assigns.



“Lender Joinder Agreement” means a joinder agreement in the form of Exhibit G,
executed and delivered in accordance with the provisions of Section 2.01(d).



“Lending Office” means, as to any Lender, the office or offices of such Lender set
forth in such Lender’s Administrative Questionnaire or such other office or offices as a Lender may
from time to time notify the Borrower and the Administrative Agent.



“Letter of Credit” means each standby (non-commercial) letter of credit issued
hereunder.



“Letter of Credit Application” means an application and agreement for the issuance or
amendment of a Letter of Credit in the form from time to time in use by the L/C Issuer.



“Letter of Credit Expiration Date” means the day that is the first anniversary of the
Termination Date then in effect (or, if such day is not a Business Day, the immediately preceding
Business Day).



“Letter of Credit Fee” has the meaning given such term in Section 2.09(c)(i).



“Lien” means any mortgage, deed of trust, deed to secured debt, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement of any kind or nature whatsoever
(including any conditional sale or other title retention agreement, any easement, right of way or
other encumbrance on title to real property, and any financing lease having substantially the same
economic effect as any of the foregoing).



“Loan” means any Revolving Loan or Swing Line Loan and the Base Rate Loans, Eurodollar
Loans and Daily Floating Eurodollar Rate Loans comprising such Loans.



“Loan Notice” means a notice of (a) a Borrowing of Loans (including Swing Line Loans),
(b) a conversion of Loans from one Type to the other, or (c) a continuation of Eurodollar Loans,
which, if in writing, shall be substantially in the form of Exhibit A.



“London Banking Day” means any day on which dealings in Dollar deposits are conducted
by and between banks in the London interbank eurodollar market.



“Material Adverse Effect” means a material adverse effect on (i) the condition
(financial or otherwise), operations, business, assets, properties, liabilities (actual or
contingent) or prospects of the Parent and its Consolidated Subsidiaries taken as a whole, (ii) the
ability of the Borrower or the other Credit Parties, taken as a whole, to perform any material
obligation under the Credit Documents, (iii) the rights and remedies of the Administrative Agent
and the Lenders under the Credit Documents or (iv) the legality, validity, binding effect or
enforceability against any Credit Party of any Credit Documents to which it is a party.



“Material Contract” means, any agreement the breach, nonperformance or cancellation of
which could reasonably be expected to have a Material Adverse Effect.



“Material Subsidiary” means any Subsidiary of the Parent, other than Borrower and the
Excluded Subsidiaries, which has assets which constitute more than $50,000,000.



“MLPFS” means Merrill Lynch, Pierce, Fenner & Smith Incorporated, together with its
successors.



“Modified Funds From Operations” means, with respect to any period, the sum of (a)
Borrower’s Funds from Operations and (b) acquisition costs and expenses related to all
acquisitions.



“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.



“Mortgage Loan” means any loan owned or held by any of the Consolidated Parties
secured by a first mortgage or first deed of trust on Real Property Assets.



“Mortgageability Amount” means, with respect to any Borrowing Base Property and as of
any date of determination, the maximum principal amount of a hypothetical mortgage loan that would
be available to be borrowed against such Borrowing Base Property assuming (a) an annual interest
rate equal to the greater of (i) seven percent (7.00%) and (ii) the then applicable Treasury Rate
plus 2.50%, (b) a 30-year amortization schedule and (c) a debt service coverage ratio on such loan
of 1.60 to 1.00 (based on the most recently calculated Borrowing Base NOI of such Borrowing Base
Property).



“Multiemployer Plan” means any employee benefit plan of the type described in
Section 4001(a)(3) of ERISA, to which the any Consolidated Party or any ERISA Affiliate makes or is
obligated to make contributions, or during the preceding five plan years, has made or been
obligated to make contributions.



“Negative Pledge” means any agreement (other than this Credit Agreement or any other
Credit Document) that in whole or in part prohibits the creation of any Lien on any assets of a
Person; provided, however, that an agreement that establishes a maximum ratio of
unsecured debt to unencumbered assets, or of secured debt to total assets, or that otherwise
conditions a Person’s ability to encumber its assets upon the maintenance of one or more specified
ratios that limit such Person’s ability to encumber its assets but that do not generally prohibit
the encumbrance of its assets, or the encumbrance of specific assets, shall not constitute a
“Negative Pledge” for purposes of this Credit Agreement.



“Net Operating Income” means, for any Real Property Asset for the then most recently
ended fiscal quarter, an amount equal to (a) the aggregate gross revenues from the operations of
such Real Property Asset during such period from Tenants in occupancy and paying rent, plus
(b) any other income of such Real Property Asset, plus (c) business interruption insurance
proceeds for a period of no more than twelve months, minus (d) the sum of (i) all expenses
and other proper charges incurred in connection with the operation of such Real Property Asset
during such period (including management fees and accruals for real estate taxes and insurance, but
excluding debt service charges, income taxes, depreciation, amortization and other non-cash
expenses), which expenses and accruals shall be calculated in accordance with GAAP.



“Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting
Lender at such time.



“Non-Recourse Indebtedness” means any Indebtedness that is not Recourse Indebtedness.



“Notes” means the Revolving Notes; and “Note” means any one of them.



“Obligations” means, without duplication, (a) all advances to, and debts, liabilities,
obligations, covenants and duties of, any Credit Party arising under any Credit Document or
otherwise with respect to any Loan or Letter of Credit, whether direct or indirect (including those
acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter
arising and including interest and fees that accrue after the commencement by or against any Credit
Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as
the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in
such proceeding and (b) all obligations under any Swap Contract of any Credit Party to which a
Lender or any Affiliate of a Lender is a party.



“Occupancy Rate” means, (a) with respect to any Real Property Asset that is not a
medical office building or other office spaces, a percentage equaling (x) total patient days
relating to such Real Property Asset for any reporting period divided by (y) the product of
(I) total number of in-service beds at such Real Property Asset (or, in the case of assisted living
facilities, the total number of units at such Real Property Asset) and (II) the total days in such
reporting period, and (b) with respect to all other Real Property Assets, a percentage equaling (x)
the total number of rented and occupied square footage at such Real Property Asset for any
reporting period divided by (y) the total rentable square footage relating to such
Real Property Asset for any reporting period.



“OFAC” means the Office of Foreign Assets Control of the United States Department of
the Treasury.



“Organization Documents” means, (a) with respect to any corporation, the certificate
or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents
with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the
certificate or articles of formation or organization and operating agreement; and (c) with respect
to any partnership, joint venture, trust or other form of business entity, the partnership, joint
venture or other applicable agreement of formation or organization and any agreement, instrument,
filing or notice with respect thereto filed in connection with its formation or organization with
the applicable Governmental Authority in the jurisdiction of its formation or organization and, if
applicable, any certificate or articles of formation or organization of such entity.



“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a
result of a present or former connection between such Recipient and the jurisdiction imposing such
Tax (other than connections arising from such Recipient having executed, delivered, become a party
to, performed its obligations under, received payments under, received or perfected a security
interest under, engaged in any other transaction pursuant to or enforced any Credit Document, or
sold or assigned an interest in any Loan or Credit Document).



“Outstanding Amount” means (a) with respect to Revolving Loans and Swing Line Loans on
any date, the aggregate outstanding principal amount thereof after giving effect to any Borrowings
and prepayments or repayments of Revolving Loans and Swing Line Loans, as the case may be,
occurring on such date and (b) with respect to any L/C Obligations on any date, the amount of such
L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date
and any other changes in the aggregate amount of the L/C Obligations as of such date, including as
a result of any reimbursements of outstanding unpaid drawings under any Letters of Credit or any
reductions in the maximum amount available for drawing under Letters of Credit taking effect on
such date.



“Parent” has the meaning given to such term in the introductory paragraph hereof.



“Participant” has the meaning provided in Section 10.07(d).



“Participant Register” has the meaning specified in Section 10.07(d).



“Patriot Act” means the USA Patriot Act, Pub. L. No. 107-56 et seq.



“PBGC” means the Pension Benefit Guaranty Corporation.



“Pension Plan” means any “employee pension benefit plan” (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and
is sponsored or maintained by any Consolidated Party or any ERISA Affiliate or to which any
Consolidated Party or any ERISA Affiliate contributes or has an obligation to contribute, or in the
case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made
contributions at any time during the immediately preceding five plan years.



“Permitted Liens” means, at any time, Liens in respect of the Parent or any of its
Subsidiaries permitted to exist at such time pursuant to the terms of Section 7.01.



“Person” means any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental Authority or other entity.



“Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of
ERISA) established by any Credit Party, with respect to any such plan that is subject to
Section 412 of the Internal Revenue Code or Title IV of ERISA, any ERISA Affiliate.



“Platform” has the meaning provided in Section 6.02.



“Pro Forma Basis” shall mean, for purposes of determining the calculation of and
compliance with the financial covenants set forth in Section 6.12, that the subject
transaction shall be deemed to have occurred as of the first day of the period of four (4)
consecutive fiscal quarters ending as of the end of the most recent fiscal quarter for which annual
or quarterly financial statements shall have been delivered in accordance with the provisions of
this Credit Agreement. Further, for purposes of making calculations on a “Pro Forma Basis”
hereunder, (a) in the case of a Disposition, (i) income statement items (whether positive or
negative) attributable to the property, entities or business units that are the subject of such
Disposition shall be excluded to the extent relating to any period prior to the date of the subject
transaction, and (ii) Indebtedness paid or retired in connection with the subject transaction shall
be deemed to have been paid and retired as of the first day of the applicable period; (b) in the
case of an Acquisition, (i) income statement items (whether positive or negative) attributable to
the property, entities or business units that are the subject of such Acquisition shall be included
as of the first day of the applicable period to the extent relating to any period prior to the date
of the subject transaction, and (ii) Indebtedness incurred in connection with the subject
transaction shall be deemed to have been incurred as of the first day of the applicable period (and
interest expense shall be imputed for the applicable period utilizing the actual interest rates
thereunder or, if actual rates are not ascertainable, assuming prevailing interest rates hereunder)
and (c) in the case of an Equity Transaction, Indebtedness paid or retired in connection therewith
shall be deemed to have been paid and retired as of the first day of the applicable period.



“Property” means all property owned or leased by a Credit Party or any of its
Subsidiaries, both real and personal.



“Real Property Asset” means, a parcel of real property, together with all improvements
(if any) thereon, owned in fee simple or leased pursuant to an Eligible Ground Lease by any Person;
“Real Property Assets” means a collective reference to each Real Property Asset.



“Recipient” means the Administrative Agent, any Lender, the L/C Issuer or any other
recipient of any payment to be made by or on account of any obligation of any Credit Party
hereunder.



“Recourse Indebtedness” means, with respect to any Credit Party or Subsidiary, any
Indebtedness, in respect of which recourse for payment (except for limited or full recourse
liability on account of customary exceptions for fraud, misapplication of funds, environmental
indemnities, bankruptcy, transfer and due on sale violations, and other similar exceptions to
recourse liability) is to such Person. If any Indebtedness is partially Non-Recourse Indebtedness
and partially Recourse Indebtedness, only that portion that is Recourse Indebtedness shall be
included as Recourse Indebtedness for purposes hereof, including Section 7.02(f)(ii).



“Register” has the meaning provided in Section 10.07(d).



“Registered Public Accounting Firm” has the meaning provided in the Securities Laws
and shall be independent of the Consolidated Parties as prescribed by the Securities Laws.



“Regulation T” means Regulation T of the FRB, as in effect from time to time.



“Regulation U” means Regulation U of the FRB, as in effect from time to time.



“Regulation X” means Regulation X of the FRB, as in effect from time to time.



“REIT” means a real estate investment trust as defined in Sections 856-860 of the
Internal Revenue Code.



“Related Parties” means, with respect to any Person, such Person’s Affiliates and the
partners, directors, officers, employees, agents and advisors of such Person and of such Person’s
Affiliates.



“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA,
other than events for which the thirty-day notice period has been waived.



“Request for Extension of Credit” means (a) with respect to a Borrowing of Loans
(including Swing Line Loans) or the conversion or continuation of Loans, a Loan Notice and (b) with
respect to an L/C Credit Extension, a Letter of Credit Application.



“Required Lenders” means, as of any date of determination, Lenders having at least
fifty-one percent (51%) of the Aggregate Commitments or, if the commitment of each Lender to make
Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated
pursuant to Article VIII, Lenders holding in the aggregate at least fifty-one percent (51%)
of the Revolving Obligations (including, in each case, the aggregate amount of each Lender’s risk
participation and funded participation in L/C Obligations and Swing Line Loans); provided,
that the unfunded Commitments of, and the portion of the Revolving Obligations held or deemed held
by, any Defaulting Lender shall be excluded for purposes of making a determination of Required
Lenders.



“Responsible Officer” means the chief executive officer, president, chief operating
officer and chief financial officer of any Credit Party. Any document delivered hereunder that is
signed by a Responsible Officer of a Credit Party shall be conclusively presumed to have been
authorized by all necessary corporate, partnership and/or other action on the part of such Credit
Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such
Credit Party.



“Restricted Payment” means any payment (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancellation or termination of the Equity Interests of the Parent, or on
account of any return of capital to the Parent’s stockholders, partners or members (or equivalent
Person thereof); provided, that dividends to the extent in the form of Equity Interests
shall not constitute Restricted Payments.



“Revolving Credit Exposure” means, as to any Lender at any time, the aggregate
principal amount at such time of its outstanding Revolving Loans and such Lender’s participation in
L/C Obligations and Swing Line Loans at such time.



“Revolving Commitment” means, with respect to each Lender, the commitment of such
Lender to make Revolving Loans and to share in the Revolving Obligations hereunder up to such
Lender’s Revolving Commitment Percentage thereof.



“Revolving Commitment Percentage” means, at any time for each Lender, a fraction
(expressed as a percentage carried to the ninth decimal place), the numerator of which is such
Lender’s Revolving Committed Amount and the denominator of which is the Aggregate Revolving
Committed Amount. The initial Revolving Commitment Percentages are set forth on
Schedule 2.01 (as such schedule reads as of the Closing Date).



“Revolving Committed Amount” means, with respect to each Lender, the amount of such
Lender’s Revolving Commitment. The initial Revolving Committed Amounts are set forth on
Schedule 2.01 (as such schedule reads as of the Closing Date).



“Revolving Loans” has the meaning provided in Section 2.01.



“Revolving Note” means the promissory notes in the form of Exhibit B, if any,
given to each Lender to evidence the Revolving Loans and Swing Line Loans of such Lender, as
amended, restated, modified, supplemented, extended, renewed or replaced.



“Revolving Obligations” means the Revolving Loans, the L/C Obligations and the Swing
Line Loans.



“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill
Companies, Inc. and any successor thereto.



“Sanction(s)” means any international economic sanction administered or enforced by
OFAC, the United Nations Security Council, the European Union, Her Majesty’s Treasury or other
relevant sanctions authority.



“Sarbanes-Oxley” means the Sarbanes-Oxley Act of 2002.



“SEC” means the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.



“Secured Indebtedness” means any Indebtedness for borrowed money (other than pursuant
to this Credit Agreement), that is secured by a Lien.



“Secured Recourse Indebtedness” means any Secured Indebtedness, in respect of which
recourse for payment (except for customary exceptions for fraud, misapplication of funds,
environmental indemnities, and other similar exceptions to recourse liability) is to a Credit
Party.



“Securities Laws” means the Securities Act of 1933, the Securities Exchange Act
of 1934, Sarbanes-Oxley and the applicable accounting and auditing principles, rules, standards and
practices promulgated, approved or incorporated by the SEC or the Public Company Accounting
Oversight Board, as each of the foregoing may be amended and in effect on any applicable date
hereunder.



“Securitization Transaction” means any financing or factoring or similar transaction
(or series of such transactions) entered by any member of the Consolidated Parties pursuant to
which such member of the Consolidated Parties may sell, convey or otherwise transfer, or grant a
security interest in, accounts, payments, receivables, rights to future lease payments or residuals
or similar rights to payment to a special purpose subsidiary or affiliate or any other Person.



“Solvent” means, with respect to any person on a particular date, that on such date
(a) the fair value of the property of such Person is greater than the total amount of liabilities,
including, without limitation, contingent liabilities, of such Person, (b) the present fair
saleable value of the assets of such Person is not less than the amount that will be required to
pay the probable liability of such Person on its debts as they become absolute and matured, (c)
such Person is able to realize upon its assets and pay its debts and other liabilities, contingent
obligations and other commitments as they mature given the likelihood of refinancing, (d) such
Person does not intend to, and does not believe that it will, incur debts or liabilities beyond
such Person’s ability to pay as such debts and liabilities mature, and (e) such Person is not
engaged in a business or a transaction, and is not about to engage in a business or a transaction,
for which such Person’s property would constitute unreasonably small capital after giving due
consideration to the prevailing practice in the industry in which such Person is engaged. In
computing the amount of contingent liabilities at any time, it is intended that such liabilities
will be computed at the amount which, in light of all the facts and circumstances existing at such
time, represents the amount that can reasonably be expected to become an actual or matured
liability.



“Subsidiary” of a Person means a corporation, partnership, joint venture, limited
liability company or other business entity of which a majority of the shares of securities or other
interests having ordinary voting power for the election of directors or other governing body (other
than securities or interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise controlled, directly,
or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise
provided, “Subsidiary” shall refer to a Subsidiary of the Parent.



“Subsidiary Guarantor” means (a) each Material Subsidiary of the Parent other than the
Borrower and the Excluded Subsidiaries and (b) each Subsidiary (other than the Borrower) that is
the owner of a Borrowing Base Property; provided that, in the event that the value of the
assets of all Subsidiary Guarantors is less than eighty-five percent (85%) of the Consolidated
Total Asset Value attributable to the Subsidiaries of the Parent (other than the Borrower and the
Excluded Subsidiaries), the Borrower (or the Administrative Agent, in the event the Borrower has
failed to do so within ten (10) days of request therefor by the Administrative Agent) shall, to the
extent necessary, designate sufficient Subsidiaries to be deemed to be “Material Subsidiaries” to
eliminate such shortfall, and such designated Subsidiaries shall thereafter constitute Material
Subsidiaries.



“Subsidiary Guarantor Joinder Agreement” means a joinder agreement in the form of
Exhibit F to be executed by each new Subsidiary of the Parent that is required to become a
Subsidiary Guarantor in accordance with Section 6.15 hereof.



“Support Obligations” means, as to any Person, (a) any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any
Indebtedness or other obligation payable or performable by another Person (the “primary obligor”)
in any manner, whether directly or indirectly, and including any obligation of such Person, direct
or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services
for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the
payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital,
equity capital or any other financial statement condition or liquidity or level of income or cash
flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other
obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in
respect of such Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any
assets of such Person securing any Indebtedness or other obligation of any other Person, whether or
not such Indebtedness or other obligation is assumed by such Person. The amount of any Support
Obligations shall be deemed to be an amount equal to the stated or determinable amount of the
related primary obligation, or portion thereof, in respect of which such Support Obligation is made
or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof
as determined by the guaranteeing Person in good faith.



“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions of any kind, and
the related confirmations, that are subject to the terms and conditions of, or governed by, any
form of master agreement published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a “Master Agreement”), including any such
obligations or liabilities under any Master Agreement.



“Swap Termination Value” means, in respect of any one or more Swap Contracts, after
taking into account the effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and
termination values determined in accordance therewith, such termination values, and (b) for any
date prior to the date referenced in clause (a), the amounts determined as the mark-to-market
values for such Swap Contracts, as determined based upon one or more mid-market or other readily
available quotations provided by any recognized dealer in such Swap Contracts (which may include a
Lender or any Affiliate of a Lender).



“Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to
Section 2.01(c).



“Swing Line Commitment” means, with respect to the Swing Line Lender, the commitment
of the Swing Line Lender to make Swing Line Loans, and with respect to each Lender, the commitment
of such Lender to purchase participation interests in Swing Line Loans.



“Swing Line Committed Amount” has the meaning provided in Section 2.01(c).



“Swing Line Lender” means Bank of America in its capacity as such, together with any
successor in such capacity.



“Swing Line Loans” has the meaning provided in Section 2.01(c).



“Synthetic Lease” means any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing arrangement that is considered
borrowed money indebtedness for tax purposes but is classified as an operating lease under GAAP.



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



“Tenant” means any Person who is a lessee with respect to any lease held by a
Consolidated Party as lessor or as an assignee of the lessor thereunder.



“Termination Date” means June 5, 2015, as from time to time extended pursuant to
Section 2.16.



“Threshold Amount” means (a) for any Recourse Indebtedness, Fifteen Million Dollars
($15,000,000), and (b) for any Non-Recourse Indebtedness, Twenty-Five Million Dollars
($25,000,000).



“Total Credit Exposure” means, as to any Lender at any time, the unused Commitments
and Revolving Credit Exposure of such Lender at such time.



“Treasury Rate” means, as of any date of determination, the yield reported, as of
10:00 a.m. (New York City time) on such date (or to the extent such date is not a Business Day,
the Business Day immediately preceding such date) on the display designated as page “PX-1” of the
Bloomberg Financial Markets Services Screen (or such other display as may replace page “PX-1” of
the Bloomberg Financial Markets Services Screen) for actively traded U.S. Treasury securities
having a ten (10) year maturity as of such date, or (b) if such yields are not reported as of such
time or the yields reported as of such time are not ascertainable, the Treasury Constant Maturity
Series Yields reported, for the latest day for which such yields have been so reported as of such
day in Federal Reserve Statistical Release H.15(519) (or any comparable successor publication) for
actively traded U.S. Treasury securities having a constant maturity equal to ten (10) years.



“Type” means, with respect to any Revolving Loan, its character as a Base Rate Loan or
a Eurodollar Loan.



“Unconsolidated Affiliates” means an affiliate of the Parent whose financial
statements are not required to be consolidated with the financial statements of the Parent in
accordance with GAAP.



“Unencumbered Asset Value” means for any Consolidated Unencumbered Property, an amount
equal to: (1) an amount equal to the Net Operating Income for such Consolidated Unencumbered
Property for the most recently completed fiscal quarter multiplied by four
and (2) divided by the applicable Capitalization Rate for such Consolidated
Unencumbered Property.



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



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



“Unreimbursed Amount” has the meaning provided in Section 2.03(c)(i).



“Unused Fee” has the meaning given such term in Section 2.09(a).



“Unused Fee Rate” means for any calendar quarter (a) thirty-five hundredths of one
percent (0.35%) per annum if the average daily Commitment Utilization Percentage for such quarter
is less than fifty percent (50%) and (b) one quarter of one percent (0.25%) per annum if the
average daily Commitment Utilization Percentage for such quarter is greater than or equal to fifty
percent (50%).



“Wholly Owned” means, with respect to any direct or indirect Subsidiary of any Person,
that one hundred percent (100%) of the Capital Stock with ordinary voting power issued by such
Subsidiary (other than directors’ qualifying shares and investments by foreign nationals mandated
by applicable Law) is beneficially owned, directly or indirectly, by such Person.



1.02 Interpretive Provisions.



With reference to this Credit Agreement and each other Credit Document, unless otherwise
provided herein or in such other Credit Document:




(a) The meanings of defined terms are equally applicable to the singular and plural
forms of the defined terms.




(b) (i) The words “herein,” “hereto,” “hereof” and “hereunder” and words of similar
import when used in any Credit Document shall refer to such Credit Document as a whole and
not to any particular provision thereof.




(ii) Unless otherwise provided or required by context, Article, Section,
Exhibit and Schedule references are to the Credit Document in which such reference
appears.




(iii) The term “including” is by way of example and not limitation.




(iv) The term “documents” includes any and all instruments, documents,
agreements, certificates, notices, reports, financial statements and other writings,
however evidenced, whether in physical or electronic form.




(c) In the computation of periods of time from a specified date to a later specified
date, the word “from” means “from and including”; the words “to” and “until” each mean “to
but excluding”; and the word “through” means “to and including.”




(d) Section headings herein and in the other Credit Documents are included for
convenience of reference only and shall not affect the interpretation of this Credit
Agreement or any other Credit Document.



1.03 Accounting Terms.




(a) All accounting terms not specifically or completely defined herein shall be
construed in conformity with, and all financial data (including financial ratios and other
financial calculations) required to be submitted pursuant to this Credit Agreement shall be
prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to
time, applied in a manner consistent with that used in preparing the Audited Financial
Statements except as otherwise specifically prescribed herein.




(b) The Borrower will provide a written summary of material changes in GAAP or in the
consistent application thereof with each annual and quarterly Compliance Certificate
delivered in accordance with Section 6.02(a). If at any time any change in GAAP or
in the consistent application thereof would affect the computation of any financial ratio or
requirement set forth in any Credit Document, and either the Borrower or the Required
Lenders shall object in writing to determining compliance based on such change, then such
computations shall continue to be made on a basis consistent with the most recent financial
statements delivered pursuant to Section 6.01(a) or (b) as to which no such
objection has been made.



1.04 Rounding.



Any financial ratios required to be maintained by the Consolidated Parties pursuant to this
Credit Agreement shall be calculated by dividing the appropriate component by the other component,
carrying the result to one place more than the number of places by which such ratio is expressed
herein and rounding the result up or down to the nearest number (with a rounding-up if there is no
nearest number).



1.05 References to Agreements and Laws.



Unless otherwise expressly provided herein, (a) references to Organization Documents,
agreements (including the Credit Documents) and other contractual instruments shall be deemed to
include all subsequent amendments, restatements, extensions, supplements and other modifications
thereto, but only to the extent that such amendments, restatements, extensions, supplements and
other modifications are not prohibited by any Credit Document; and (b) references to any Law shall
include all statutory and regulatory provisions consolidating, amending, replacing, supplementing
or interpreting such Law.



1.06 Times of Day.



Unless otherwise provided, all references herein to times of day shall be references to
Central time (daylight or standard, as applicable).



1.07 Letter of Credit Amounts.



Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be
deemed to be the stated amount of such Letter of Credit in effect at such time; provided,
however, that with respect to any Letter of Credit that, by its terms or the terms of any
Issuer Document related thereto, provides for one or more automatic increases in the stated amount
thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of
such Letter of Credit after giving effect to all such increases, whether or not such maximum stated
amount is in effect at such time.



ARTICLE II

COMMITMENTS AND EXTENSION OF CREDIT




2.01 Commitments.



Subject to the terms and conditions set forth herein:




(a) Revolving Loans. During the Commitment Period, each Lender severally
agrees to make revolving credit loans (the “Revolving Loans”) to the Borrower on any
Business Day; provided that after giving effect to any such Revolving Loan, (i) with
regard to the Lenders collectively, the aggregate outstanding principal amount of Revolving
Obligations shall not exceed the lesser of (x) TWO HUNDRED MILLION DOLLARS ($200,000,000),
(as increased or decreased from time to time pursuant to this Credit Agreement, the
“Aggregate Revolving Committed Amount”) and (y) the Adjusted Borrowing Base Amount
for such date and (ii) with regard to each Lender individually, such Lender’s Revolving
Commitment Percentage of Revolving Obligations shall not exceed its respective Revolving
Committed Amount. Revolving Loans may consist of Base Rate Loans, Eurodollar Loans, or a
combination thereof, as provided herein, and may be repaid and reborrowed in accordance with
the provisions hereof.




(b) Letters of Credit. During the Commitment Period, (i) the L/C Issuer, in
reliance upon the commitments of the Lenders set forth herein, agrees (A) to issue Letters
of Credit for the account of Borrower on any Business Day, (B) to amend or renew Letters of
Credit previously issued hereunder, and (C) to honor drafts under Letters of Credit; and
(ii) the Lenders severally agree to purchase from the L/C Issuer a participation interest in
the Letters of Credit issued hereunder in an amount equal to such Lender’s Revolving
Commitment Percentage thereof; provided that (A) the aggregate principal amount of
L/C Obligations shall not exceed an amount equal to ten percent (10%) of the Aggregate
Revolving Commitments (as such amount may be adjusted in accordance with the provisions
hereof, the “L/C Committed Amount”), (B) with regard to the Lenders collectively,
the aggregate principal amount of Revolving Obligations shall not exceed the lesser of (x)
the Aggregate Revolving Committed Amount and (y) the Adjusted Borrowing Base Amount for such
date, and (C) with regard to each Lender individually, such Lender’s Revolving Commitment
Percentage of Revolving Obligations shall not exceed its respective Revolving Committed
Amount. Subject to the terms and conditions hereof, the Borrower’s ability to obtain
Letters of Credit shall be fully revolving, and accordingly the Borrower may obtain Letters
of Credit to replace Letters of Credit that have expired or that have been drawn upon and
reimbursed.




(c) Swing Line Loans. During the Commitment Period, the Swing Line Lender
shall make revolving credit loans (the “Swing Line Loans”) to the Borrower on any
Business Day; provided that (i) the aggregate principal amount of Swing Line Loans shall not
exceed an amount equal to fifteen percent (15%) of the Aggregate Revolving Commitments (as
such amount may be adjusted in accordance with the provisions hereof, the “Swing Line
Committed Amount”), (ii) with respect to the Lenders collectively, the aggregate principal
amount of Revolving Obligations shall not exceed the lesser of (x) the Aggregate Revolving
Committed Amount and (y) the Adjusted Borrowing Base Amount on such date, (iii) the Borrower
shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line
Loan and (iv) the Swing Line Lender shall not be under any obligation to make any Swing Line
Loan if it shall determine (which determination shall be conclusive and binding absent
manifest error) that it has, or by such Borrowing may have, Fronting Exposure. Swing Line
Loans shall be Daily Floating Eurodollar Rate Loans, and may be repaid and reborrowed in
accordance with the provisions hereof. Immediately upon the making of a Swing Line Loan,
each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the Swing Line Lender a participation interest in such Swing Line Loan in an
amount equal to the product of such Lender’s Revolving Commitment Percentage thereof. No
Swing Line Loan shall remain outstanding for longer than five (5) Business Days.




(d) Increase in Revolving Commitments. Subject to the terms and conditions set
forth herein, the Borrower may, at any time during the period commencing as of the Closing
Date and ending as of the Termination Date, upon written notice to the Administrative Agent,
cause an increase in the Aggregate Revolving Committed Amount by up to ONE HUNDRED FIFTY
MILLION DOLLARS ($150,000,000) (to an aggregate amount not more than THREE HUNDRED FIFTY
MILLION DOLLARS ($350,000,000)); provided, that such increase shall be conditioned
and effective upon the satisfaction of the following conditions:




(i) the Borrower shall obtain (whether through the Arranger or otherwise)
commitments for the amount of the increase from existing Lenders or other commercial
banks or financial institutions reasonably acceptable to the Administrative Agent,
which other commercial banks and financial institutions shall join in this Credit
Agreement as Lenders by a Lender Joinder Agreement substantially in the form of
Exhibit G attached hereto or other arrangement reasonably acceptable to the
Administrative Agent (it being understood that in no case shall any Lender be
required to increase its Revolving Commitment without its written consent);




(ii) unless otherwise agreed to by the Administrative Agent and the Borrower,
any such increase shall be in a minimum aggregate principal amount of Twenty-Five
Million Dollars ($25,000,000) and integral multiples of Five Million Dollars
($5,000,000) in excess thereof (or the remaining amount, if less);




(iii) if any Revolving Loans are outstanding at the time of any such increase,
the Borrower shall make such payments and adjustments on the Revolving Loans
(including payment of any break-funding amounts owing under Section 3.05) as
may be necessary to give effect to the revised commitment percentages and commitment
amounts;




(iv) the Borrower shall have executed any new or amended and restated Notes (to
the extent requested by the Lenders) to reflect the revised commitment amounts;




(v) the Administrative Agent shall have received all fees and expenses which
are then-due and payable on the such date, including, without limitation, payment to
the Administrative Agent and the Arranger of the fees set forth in the Fee Letter;
and




(vi) the conditions to the making of a Revolving Loan set forth in
Section 4.02 shall be satisfied.



In connection with any such increase in the Revolving Commitments, Schedule 2.01 shall be
revised to reflect the modified commitments and commitment percentages of the Lenders, and the
Credit Parties shall provide supporting corporate resolutions, legal opinions, promissory notes and
other items as may be reasonably requested by the Administrative Agent and the Lenders in
connection therewith. The Borrower shall not be permitted to cause more than three (3) increases
in the Aggregate Revolving Committed Amount following the Closing Date.



2.02 Borrowings, Conversions and Continuations.




(a) Each Borrowing, each conversion of Loans from one Type to the other, and each
continuation of Eurodollar Loans shall be made upon the Borrower’s irrevocable notice to the
Administrative Agent, which may be given by telephone. Each such notice must be received by
the Administrative Agent not later than 11:00 a.m. (i) with respect to Eurodollar Loans,
three (3) Business Days prior to, or (ii) with respect to Base Rate Loans, on the requested
date of, the requested date of any Borrowing, conversion or continuation. Each telephonic
notice pursuant to this Section 2.02(a) must be confirmed promptly by delivery to
the Administrative Agent of a written Loan Notice, appropriately completed and signed by a
Responsible Officer of the Borrower. Except as provided in Sections 2.03(c) and
2.04(c), each Borrowing, conversion or continuation shall be in a principal amount
of (i) with respect to Eurodollar Loans, Five Hundred Thousand Dollars ($500,000) or a whole
multiple of One Hundred Thousand Dollars ($100,000) in excess thereof or (ii) with respect
to Base Rate Loans, Five Hundred Thousand Dollars ($500,000) or a whole multiple of One
Hundred Thousand Dollars ($100,000) in excess thereof. Each Loan Notice (whether telephonic
or written) shall specify (i) whether the applicable request is with respect to Revolving
Loans, (ii) whether such request is for a Borrowing, conversion, or continuation, (ii) the
requested date of such Borrowing, conversion or continuation (which shall be a Business
Day), (iii) the principal amount of Loans to be borrowed, converted or continued, (iv) the
Type of Loans to be borrowed, converted or continued, and (v) if applicable, the duration of
the Interest Period with respect thereto. If the Borrower fails to specify a Type of Loan
in a Loan Notice, the Loan shall be made as a Base Rate Loan, or if the Borrower fails to
give a timely notice requesting a conversion or continuation, then the applicable Loans
shall be made as, or converted to one-month Eurodollar Loans. If the Borrower requests a
Borrowing of, conversion to, or continuation of Eurodollar Loans in any Loan Notice, but
fails to specify an Interest Period, the Interest Period will be deemed to be one month.




(b) Following receipt of a Loan Notice, the Administrative Agent shall promptly notify
each Lender of the amount of its Revolving Commitment Percentage of the applicable Loans,
and if no timely notice of a conversion or continuation is provided by the Borrower, the
Administrative Agent shall notify each Lender of the details of any automatic conversion to
Base Rate Loans described in the preceding subsection. In the case of a Borrowing, each
Lender shall make the amount of its Loan available to the Administrative Agent in
immediately available funds at the Administrative Agent’s Office not later than 2:00 p.m. on
the Business Day specified in the applicable Loan Notice. Upon satisfaction of the
applicable conditions set forth in Section 4.02 (and, if such Borrowing is the
initial Extension of Credit, Section 4.01), the Administrative Agent shall make all
funds so received available to the party referenced in the applicable Loan Notice in like
funds as received by the Administrative Agent either by (i) crediting the account of the
applicable party on the books of the Administrative Agent with the amount of such funds or
(ii) wire transfer of such funds, in each case in accordance with instructions provided to
(and reasonably acceptable to) the Administrative Agent by the Borrower; provided,
however, that if, on the date the Loan Notice with respect to such Borrowing is
given by the Borrower, there are Swing Line Loans or L/C Borrowings outstanding, then the
proceeds of such Borrowing shall be applied, first, to the payment in full of any such L/C
Borrowings, second, to the payment in full of any such Swing Line Loans, and third, to the
party identified in the applicable Loan Notice as provided above.




(c) Except as otherwise provided herein, without the consent of the Required Lenders,
(i) a Eurodollar Loan may be continued or converted only on the last day of an Interest
Period for such Eurodollar Loan and (ii) any conversion into, or continuation as, a
Eurodollar Loan may be made only if the conditions to Extension of Credit in
Section 4.02 have been satisfied. During the existence of a Default or Event of
Default, (i) no Loan may be requested as, converted to or continued as a Eurodollar Loan and
(ii) at the request of the Required Lenders, any outstanding Eurodollar Loan shall be
converted immediately to a Base Rate Loan.




(d) The Administrative Agent shall promptly notify the Borrower and the Lenders of the
interest rate applicable to any Interest Period for Eurodollar Loans upon determination of
such interest rate. The determination of the Eurodollar Rate by the Administrative Agent
shall be conclusive in the absence of manifest error. At any time that Base Rate Loans are
outstanding, the Administrative Agent shall notify the Borrower and the Lenders of any
change in Bank of America’s prime rate used in determining the Base Rate promptly following
the public announcement of such change.




(e) After giving effect to all Borrowings, all conversions of Loans from one Type to
the other, and all continuations of Loans as the same Type, there shall not be more than
five (5) Interest Periods in effect with respect to Loans.



2.03 Additional Provisions with respect to Letters of Credit.




(a) Obligation to Issue or Amend.




(i) The L/C Issuer shall not issue any Letter of Credit if:




(A) the issuance of such Letter of Credit would violate one or more
policies of the L/C Issuer; or




(B) such Letter of Credit is in an initial amount less than Fifty
Thousand Dollars ($50,000), is to be denominated in a currency other than
Dollars or is not a standby letter of credit.




(ii) The L/C Issuer shall be under no obligation to issue any Letter of Credit
if:




(A) any order, judgment or decree of any Governmental Authority or
arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer
from issuing such Letter of Credit, or any Law applicable to the L/C Issuer
or any request or directive (whether or not having the force of law) from
any Governmental Authority with jurisdiction over the L/C Issuer shall
prohibit, or request that the L/C Issuer refrain from, the issuance of
letters of credit generally or such Letter of Credit in particular or shall
impose upon the L/C Issuer with respect to such Letter of Credit any
restriction, reserve or capital requirement (for which the L/C Issuer is
not otherwise compensated hereunder) not in effect on the Closing Date, or
shall impose upon the L/C Issuer any unreimbursed loss, cost or expense
that was not applicable on the Closing Date and that the L/C Issuer in good
faith deems material to it;




(B) the expiry date of such requested Letter of Credit would occur
more than twelve (12) months after the date of issuance or last renewal,
unless the Required Lenders have approved such expiry date;




(C) the expiry date of such requested Letter of Credit would occur
after the Letter of Credit Expiration Date, unless all the L/C Issuer has
approved such expiry date;




(D) one or more applicable conditions contained in
Section 4.02 shall not then be satisfied and the L/C Issuer shall
have received written notice thereof from any Lender or any Credit Party at
least one Business Day prior to the requested date of issuance of such
Letter of Credit;




(E) the Revolving Commitments have been terminated pursuant to
Article VIII.




(F) any Lender is at that time a Defaulting Lender, unless the L/C
Issuer has entered into arrangements, including the delivery of Cash
Collateral, satisfactory to the L/C Issuer (in its sole discretion) with
the Borrower or such Lender to eliminate the L/C Issuer’s actual or
potential Fronting Exposure (after giving effect to Section
2.15(a)(iv)) with respect to the Defaulting Lender arising from either
the Letter of Credit then proposed to be issued or that Letter of Credit
and all other L/C Obligations as to which the L/C Issuer has actual or
potential Fronting Exposure, as it may elect in its sole discretion; or




(iii) The L/C Issuer shall be under no obligation to amend any Letter of Credit
if:




(A) the L/C Issuer would have no obligation at such time to issue such
Letter of Credit in its amended form under the terms hereof; or




(B) the beneficiary of such Letter of Credit does not accept the
proposed amendment to such Letter of Credit.




(iv) The L/C Issuer shall not amend any Letter of Credit if:




(A) one or more applicable conditions contained in
Section 4.02 shall not then be satisfied and the L/C Issuer shall
have received written notice thereof from any Lender or any Credit Party at
least one Business Day prior to the requested date of amendment of such
Letter of Credit; or




(B) the Revolving Commitments have been terminated pursuant to
Article VIII.




(b) Procedures for Issuance and Amendment.




(i) Each Letter of Credit shall be issued or amended, as the case may be, upon
the request of the Borrower delivered to the L/C Issuer (with a copy to the
Administrative Agent) in the form of a Letter of Credit Application, appropriately
completed and signed by a Responsible Officer of the Borrower. Such Letter of
Credit Application must be received by the L/C Issuer and the Administrative Agent
not later than 11:00 a.m. at least two (2) Business Days (or such later date and
time as the L/C Issuer may agree in a particular instance in its sole discretion)
prior to the proposed issuance date or date of amendment, as the case may be. In
the case of a request for an initial issuance of a Letter of Credit, such Letter of
Credit Application shall specify in form and detail satisfactory to the L/C Issuer:
(A) the proposed issuance date of the requested Letter of Credit (which shall be a
Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and
address of the beneficiary thereof; (E) the documents to be presented by such
beneficiary in case of any drawing thereunder; (F) the full text of any certificate
to be presented by such beneficiary in case of any drawing thereunder; and (G) such
other matters as the L/C Issuer may require. In the case of a request for an
amendment of any outstanding Letter of Credit, such Letter of Credit Application
shall specify in form and detail satisfactory to the L/C Issuer (A) the Letter of
Credit to be amended; (B) the proposed date of amendment thereof (which shall be a
Business Day); (C) the nature of the proposed amendment; and (D) such other matters
as the L/C Issuer may require.




(ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer
will confirm with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such Letter of Credit Application from
the Borrower and, if not, the L/C Issuer will provide the Administrative Agent with
a copy thereof. Upon receipt by the L/C Issuer of confirmation from the
Administrative Agent that the requested issuance or amendment is permitted in
accordance with the terms hereof, then, subject to the terms and conditions hereof,
the L/C Issuer shall, on the requested date, issue a Letter of Credit for the
account of the applicable Person or enter into the applicable amendment, as the case
may be, in each case in accordance with the L/C Issuer’s usual and customary
business practices. Immediately upon the issuance of each Letter of Credit, each
Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the L/C Issuer a risk participation in such Letter of Credit in an
amount equal to the product of such Lender’s Revolving Commitment Percentage of such
Letter of Credit.




(iii) Promptly after its delivery of any Letter of Credit or any amendment to a
Letter of Credit to an advising bank with respect thereto or to the beneficiary
thereof, the L/C Issuer will also deliver to the Borrower and the Administrative
Agent a true and complete copy of such Letter of Credit or amendment.




(c) Drawings and Reimbursements; Funding of Participations.




(i) Upon any drawing under any Letter of Credit, the L/C Issuer shall notify
the Borrower and the Administrative Agent thereof. Not later than 11:00 a.m. on the
date of any payment by the L/C Issuer under a Letter of Credit (each such date, an
“Honor Date”), the Borrower shall reimburse the L/C Issuer through the
Administrative Agent in an amount equal to the amount of such drawing. If the
Borrower fails to so reimburse the L/C Issuer by such time, the Administrative Agent
shall promptly notify each Lender of the Honor Date, the amount of the unreimbursed
drawing (the “Unreimbursed Amount”), and the amount of such Lender’s
Revolving Commitment Percentage thereof. In such event, the Borrower shall be
deemed to have requested a Borrowing of Base Rate Loans to be disbursed on the Honor
Date in an amount equal to the Unreimbursed Amount, without regard to the minimum
and multiples specified in Section 2.02 for the principal amount of Base
Rate Loans, the amount of the unutilized portion of the Aggregate Revolving
Commitments or the conditions set forth in Section 4.02. Any notice given
by the L/C Issuer or the Administrative Agent pursuant to this
Section 2.03(c)(i) may be given by telephone if immediately confirmed in
writing; provided, that the lack of such an immediate confirmation shall not
affect the conclusiveness or binding effect of such notice.




(ii) Each Lender (including the Lender acting as L/C Issuer) shall upon any
notice pursuant to Section 2.03(c)(i) make funds available to the
Administrative Agent for the account of the L/C Issuer at the Administrative Agent’s
Office in an amount equal to its Revolving Commitment Percentage of the Unreimbursed
Amount not later than 1:00 p.m. on the Business Day specified in such notice by the
Administrative Agent, whereupon, subject to the provisions of
Section 2.03(c)(iii), each Lender that so makes funds available shall be
deemed to have made a Revolving Loan that is a Base Rate Loan to the Borrower in
such amount. The Administrative Agent shall remit the funds so received to the L/C
Issuer.




(iii) With respect to any Unreimbursed Amount that is not fully refinanced by a
Borrowing of Base Rate Loans for any reason, the Borrower shall be deemed to have
incurred from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed
Amount that is not so refinanced, which L/C Borrowing shall be due and payable on
demand (together with interest) and shall bear interest at the Default Rate. In
such event, each Lender’s payment to the Administrative Agent for the account of the
L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed payment in
respect of its participation in such L/C Borrowing and shall constitute an L/C
Advance from such Lender in satisfaction of its participation obligation under this
Section 2.03.




(iv) Until each Lender funds its Revolving Loan or L/C Advance pursuant to this
Section 2.03(c) to reimburse the L/C Issuer for any amount drawn under any
Letter of Credit, interest in respect of such Lender’s Revolving Commitment
Percentage of such amount shall be solely for the account of the L/C Issuer.




(v) Each Lender’s obligation to make Revolving Loans or L/C Advances to
reimburse the L/C Issuer for amounts drawn under Letters of Credit, as contemplated
by this Section 2.03(c), shall be absolute and unconditional and shall not
be affected by any circumstance, including (A) any set-off, counterclaim,
recoupment, defense or other right that such Lender may have against the L/C Issuer,
the Borrower or any other Person for any reason whatsoever; (B) the occurrence or
continuance of a Default or Event of Default, (C) non-compliance with the conditions
set forth in Section 4.02, or (D) any other occurrence, event or condition,
whether or not similar to any of the foregoing. No such making of an L/C Advance
shall relieve or otherwise impair the obligation of the Borrower to reimburse the
L/C Issuer for the amount of any payment made by the L/C Issuer under any Letter of
Credit, together with interest as provided herein.




(vi) If any Lender fails to make available to the Administrative Agent for the
account of the L/C Issuer any amount required to be paid by such Lender pursuant to
the foregoing provisions of this Section 2.03(c) by the time specified in
Section 2.03(c)(ii), the L/C Issuer shall be entitled to recover from such
Lender (acting through the Administrative Agent), on demand, such amount with
interest thereon for the period from the date such payment is required to the date
on which such payment is immediately available to the L/C Issuer at a rate per annum
equal to the Federal Funds Rate from time to time in effect. A certificate of the
L/C Issuer submitted to any Lender (through the Administrative Agent) with respect
to any amounts owing under this clause (vi) shall be conclusive absent manifest
error.




(d) Repayment of Participations.




(i) At any time after the L/C Issuer has made a payment under any Letter of
Credit and has received from any Lender such Lender’s L/C Advance in respect of such
payment in accordance with Section 2.03(c), if the Administrative Agent
receives for the account of the L/C Issuer any payment in respect of the related
Unreimbursed Amount or interest thereon (whether directly from a Credit Party or
otherwise, including proceeds of Cash Collateral applied thereto by the
Administrative Agent), the Administrative Agent will distribute to such Lender its
Revolving Commitment Percentage thereof (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such Lender’s L/C
Advance was outstanding) in the same funds as those received by the Administrative
Agent.




(ii) If any payment received by the Administrative Agent for the account of the
L/C Issuer pursuant to Section 2.03(c)(i) is required to be returned under
any of the circumstances described in Section 10.06 (including pursuant to
any settlement entered into by the L/C Issuer in its discretion), each Lender shall
pay to the Administrative Agent for the account of the L/C Issuer its Revolving
Commitment Percentage thereof on demand of the Administrative Agent, plus interest
thereon from the date of such demand to the date such amount is returned by such
Lender, at a rate per annum equal to the Federal Funds Rate from time to time in
effect.




(e) Obligations Absolute. The obligations of the Borrower to reimburse the L/C
Issuer for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be
absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the
terms of this Credit Agreement under all circumstances, including the following:




(i) any lack of validity or enforceability of such Letter of Credit, this
Credit Agreement, any other Credit Document or any other agreement or instrument
relating thereto;




(ii) the existence of any claim, counterclaim, set-off, defense or other right
that the Borrower may have at any time against any beneficiary or any transferee of
such Letter of Credit (or any Person for whom any such beneficiary or any such
transferee may be acting), the L/C Issuer or any other Person, whether in connection
with this Credit Agreement, the transactions contemplated hereby or by such Letter
of Credit or any agreement or instrument relating thereto, or any unrelated
transaction;




(iii) any draft, demand, certificate or other document presented under such
Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any respect; or any
loss or delay in the transmission or otherwise of any document required in order to
make a drawing under such Letter of Credit;




(iv) any payment by the L/C Issuer under such Letter of Credit against
presentation of a draft or certificate that does not strictly comply with the terms
of such Letter of Credit; or any payment made by the L/C Issuer under such Letter of
Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession,
assignee for the benefit of creditors, liquidator, receiver or other representative
of or successor to any beneficiary or any transferee of such Letter of Credit,
including any arising in connection with any proceeding under any Debtor Relief Law;
or




(v) any other circumstance or happening whatsoever, whether or not similar to
any of the foregoing, including any other circumstance that might otherwise
constitute a defense available to, or a discharge of, the Borrower.



The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that
is delivered to it and, in the event of any claim of noncompliance with the Borrower’s instructions
or other irregularity, the Borrower will immediately notify the L/C Issuer. The Borrower shall be
conclusively deemed to have waived any such claim against the L/C Issuer and its correspondents
unless such notice is given as aforesaid.




(f) Role of L/C Issuer. Each Lender and the Borrower agree that, in paying any
drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain
any document (other than any sight draft, certificates and documents expressly required by
the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such
document or the authority of the Person executing or delivering any such document. None of
the L/C Issuer, any Agent-Related Person nor any of the correspondents, participants or
assignees of the L/C Issuer shall be liable to any Lender for (i) any action taken or
omitted in connection herewith at the request or with the approval of the Lenders or the
Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross
negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or Letter of
Credit Application. The Borrower hereby assumes all risks of the acts or omissions of any
beneficiary or transferee with respect to its use of any Letter of Credit; provided,
however, that this assumption is not intended to, and shall not, preclude the
Borrower from pursuing such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. None of the L/C Issuer, any Agent-Related
Person, nor any of the respective correspondents, participants or assignees of the L/C
Issuer, shall be liable or responsible for any of the matters described in clauses (i)
through (v) of Section 2.03(e); provided, however, that anything in
such clauses to the contrary notwithstanding, the Borrower may have a claim against the L/C
Issuer, and the L/C Issuer may be liable to the Borrower, to the extent, but only to the
extent, of any direct, as opposed to consequential or exemplary, damages suffered by the
Borrower which the Borrower proves were caused by the L/C Issuer’s willful misconduct or
gross negligence or the L/C Issuer’s willful failure to pay under any Letter of Credit after
the presentation to it by the beneficiary of a sight draft and certificate(s) strictly
complying with the terms and conditions of a Letter of Credit. In furtherance and not in
limitation of the foregoing, the L/C Issuer may accept documents that appear on their face
to be in order, without responsibility for further investigation, regardless of any notice
or information to the contrary, and the L/C Issuer shall not be responsible for the validity
or sufficiency of any instrument transferring or assigning or purporting to transfer or
assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole
or in part, which may prove to be invalid or ineffective for any reason.




(g) Cash Collateral. Upon the request of the Administrative Agent or the
Required Lenders, (i) if the L/C Issuer has honored any full or partial drawing request
under any Letter of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if, as
of the L/C Cash Collateralization Date, any Letter of Credit may for any reason remain
outstanding and partially or wholly undrawn, the Borrower shall be deemed to have requested
a Borrowing of Base Rate Loans in the amount of the then Outstanding Amount of all L/C
Obligations (determined as of the date of such L/C Borrowing or the L/C Cash
Collateralization Date, as the case may be) and to the extent of unavailability of Base Rate
Loans, the Borrower shall immediately Cash Collateralize the then Outstanding Amount of all
L/C Obligations. In the event that the Borrower is deemed to have requested a Borrowing of
Base Rate Loans on the L/C Cash Collateralization Date, the Borrower hereby authorizes the
L/C Issuer and the Administrative Agent to deposit the proceeds of such borrowing directly
into a deposit account with the Administrative Agent in order the Cash Collateralize the L/C
Obligations. For purposes hereof, “Cash Collateralize” means to pledge and deposit
with or deliver to the Administrative Agent, for the benefit of the L/C Issuer and the
Lenders, as collateral for the L/C Obligations, cash or deposit account balances pursuant to
documentation in form and substance satisfactory to the Administrative Agent and the L/C
Issuer (which documents are hereby consented to by the Lenders). Derivatives of such term
have corresponding meanings. The Borrower hereby grants to the Administrative Agent, for
the benefit of the L/C Issuer and the Lenders, a security interest in all such cash, deposit
accounts and all balances therein and all proceeds of the foregoing. Cash Collateral shall
be maintained in blocked, non interest bearing deposit accounts with the Administrative
Agent.




(h) Applicability of ISP98. Unless otherwise expressly agreed by the L/C
Issuer and the Borrower when a Letter of Credit is issued, the rules of the ISP shall apply
to each Letter of Credit.




(i) Letter of Credit Fees. The Borrower shall pay Letter of Credit fees as set
forth in Section 2.09.




(j) Conflict with Letter of Credit Application. In the event of any conflict
between the terms hereof and the terms of any Issuer Document, the terms hereof shall
control.



2.04 Additional Provisions with respect to Swing Line Loans.




(a) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the
Borrower’s irrevocable notice to the Swing Line Lender and the Administrative Agent, which
may be given by telephone. Each such notice must be received by the Swing Line Lender and
the Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall
specify (i) the amount to be borrowed, which shall be a minimum of One Hundred Thousand
Dollars ($100,000), and (ii) the requested borrowing date, which shall be a Business Day.
Each such telephonic notice must be confirmed promptly by delivery to the Swing Line Lender
and the Administrative Agent of a written Loan Notice, appropriately completed and signed by
a Responsible Officer of the Borrower. Promptly after receipt by the Swing Line Lender of
any telephonic Loan Notice, the Swing Line Lender will confirm with the Administrative Agent
(by telephone or in writing) that the Administrative Agent has also received such Loan
Notice and, if not, the Swing Line Lender will notify the Administrative Agent (by telephone
or in writing) of the contents thereof. Unless the Swing Line Lender has received notice
(by telephone or in writing) from the Administrative Agent (including at the request of any
Lender) prior to 2:00 p.m. on the date of the proposed Swing Line Borrowing (A) directing
the Swing Line Lender not to make such Swing Line Loan as a result of the limitations set
forth in this Article II, or (B) that one or more of the applicable conditions specified in
Section 4.02 is not then satisfied, then, subject to the terms and conditions
hereof, the Swing Line Lender will, not later than 3:00 p.m. on the borrowing date specified
in such Loan Notice, make the amount of its Swing Line Loan available to the Borrower by
crediting the account of the Borrower on the books of the Swing Line Lender in immediately
available funds.




(b) Refinancing.




(i) The Swing Line Lender at any time in its sole and absolute discretion may
request, on behalf of the Borrower (which hereby irrevocably authorizes the Swing
Line Lender to so request on its behalf), that each Lender make a Revolving Loan
that is a Base Rate Loan in an amount equal to such Lender’s Revolving Commitment
Percentage of Swing Line Loans then outstanding. Such request shall be made in
writing (which written request shall be deemed to be a Loan Notice for purposes
hereof) and in accordance with the requirements of Section 2.02, without
regard to the minimum and multiples specified therein for the principal amount of
Base Rate Loans, the unutilized portion of the Aggregate Commitments or the
conditions set forth in Section 4.02. The Swing Line Lender shall furnish
the Borrower with a copy of the applicable Loan Notice promptly after delivering
such notice to the Administrative Agent. Each Lender shall make an amount equal to
its Revolving Commitment Percentage of the amount specified in such Loan Notice
available to the Administrative Agent in immediately available funds for the account
of the Swing Line Lender at the Administrative Agent’s Office not later than
2:00 p.m. on the day specified in such Loan Notice, whereupon, subject to
Section 2.04(b)(ii), each Lender that so makes funds available shall be
deemed to have made a Revolving Loan that is a Base Rate Loan to the Borrower in
such amount. The Administrative Agent shall remit the funds so received to the
Swing Line Lender.




(ii) If for any reason any Swing Line Loan cannot be refinanced by such a
Borrowing of Revolving Loans in accordance with Section 2.04(b)(i), the
request for Revolving Loans submitted by the Swing Line Lender as set forth herein
shall be deemed to be a request by the Swing Line Lender that each of the Lenders
fund its risk participation in the relevant Swing Line Loan and each Lender’s
payment to the Administrative Agent for the account of the Swing Line Lender
pursuant to Section 2.04(b)(i) shall be deemed payment in respect of such
participation.




(iii) If any Lender fails to make available to the Administrative Agent for the
account of the Swing Line Lender any amount required to be paid by such Lender
pursuant to the foregoing provisions of this Section 2.04(b) by the time
specified in Section 2.04(b)(i), the Swing Line Lender shall be entitled to
recover from such Lender (acting through the Administrative Agent), on demand, such
amount with interest thereon for the period from the date such payment is required
to the date on which such payment is immediately available to the Swing Line Lender
at a rate per annum equal to the Federal Funds Rate from time to time in effect. A
certificate of the Swing Line Lender submitted to any Lender (through the
Administrative Agent) with respect to any amounts owing under this clause (iii)
shall be conclusive absent manifest error.




(iv) Each Lender’s obligation to make Revolving Loans or to purchase and fund
risk participations in Swing Line Loans pursuant to this Section 2.04(b)
shall be absolute and unconditional and shall not be affected by any circumstance,
including (A) any set-off, counterclaim, recoupment, defense or other right that
such Lender may have against the Swing Line Lender, the Borrower or any other Person
for any reason whatsoever, (B) the occurrence or continuance of a Default or Event
of Default, (C) non-compliance with the conditions set forth in
Section 4.02, or (D) any other occurrence, event or condition, whether or
not similar to any of the foregoing. No such purchase or funding of risk
participations shall relieve or otherwise impair the obligation of the Borrower to
repay Swing Line Loans, together with interest as provided herein.




(c) Repayment of Participations.




(i) At any time after any Lender has purchased and funded a risk participation
in a Swing Line Loan, if the Swing Line Lender receives any payment on account of
such Swing Line Loan, the Swing Line Lender will distribute to such Lender its
Revolving Commitment Percentage of such payment (appropriately adjusted, in the case
of interest payments, to reflect the period of time during which such Lender’s risk
participation was funded) in the same funds as those received by the Swing Line
Lender.




(ii) If any payment received by the Swing Line Lender in respect of principal
or interest on any Swing Line Loan is required to be returned by the Swing Line
Lender under any of the circumstances described in Section 10.06 (including
pursuant to any settlement entered into by the Swing Line Lender in its discretion),
each Lender shall pay to the Swing Line Lender its Revolving Commitment Percentage
thereof on demand of the Administrative Agent, plus interest thereon from the date
of such demand to the date such amount is returned, at a rate per annum equal to the
Federal Funds Rate. The Administrative Agent will make such demand upon the request
of the Swing Line Lender.




(d) Interest for Account of Swing Line Lender. The Swing Line Lender shall be
responsible for invoicing the Borrower (by delivery of an invoice or other notice to the
Borrower) for interest on the Swing Line Loans. Until each Lender funds its Revolving Loan
or risk participation pursuant to this Section 2.04 to refinance such Lender’s
Revolving Commitment Percentage of any Swing Line Loan, interest in respect thereof shall be
solely for the account of the Swing Line Lender.




(e) Payments Directly to Swing Line Lender. The Borrower shall make all
payments of principal and interest in respect of the Swing Line Loans directly to the Swing
Line Lender.



2.05 Repayment of Loans.




(a) Revolving Loans. The Borrower shall repay to the Lenders on the
Termination Date the aggregate principal amount of Revolving Loans outstanding on such date.




(b) Swing Line Loans. The Borrower shall repay each Swing Line Loan on the
earliest to occur of (i) the date five (5) Business Days after such Loan is made and (ii)
the Termination Date.



2.06 Prepayments.




(a) Voluntary Prepayments. The Loans may be repaid in whole or in part without
premium or penalty (except, in the case of Loans other than Base Rate Loans, amounts payable
pursuant to Section 3.05); provided, that (i) notice thereof must be
received by 11:00 a.m. by the Administrative Agent (A) at least three (3) Business Days
prior to the date of prepayment of Eurodollar Loans, and (B) on the Business Day prior to
the date of prepayment of Base Rate Loans, and (ii) any such prepayment shall be in a
minimum principal amount of $1,000,000 and integral multiples of $500,000 in excess thereof,
in the case of Eurodollar Loans, and a minimum principal amount of $1,000,000 and integral
multiples of $500,000 in excess thereof, in the case of Base Rate Loans, or, in each case,
the entire principal amount thereof, if less. Each such notice of voluntary repayment
hereunder shall be irrevocable and shall specify the date and amount of prepayment and the
Loans and Types of Loans which are to be prepaid. The Administrative Agent will give prompt
notice to the applicable Lenders of any prepayment on the Loans and the Lender’s interest
therein. Prepayments of Eurodollar Loans hereunder shall be accompanied by accrued interest
thereon and breakage amounts, if any, under Section 3.05.




(b) Mandatory Prepayments. If at any time (A) the Outstanding Amount of
Revolving Obligations shall exceed the lesser of (x) the Aggregate Revolving Committed
Amount and (y) the Adjusted Borrowing Base Amount for such date, (B) the Outstanding Amount
of L/C Obligations shall exceed the L/C Committed Amount, (C) the Outstanding Amount of
Swing Line Loans shall exceed the Swing Line Committed Amount, immediate prepayment will be
made on the Revolving Loans and/or to provide Cash Collateral on account of the L/C
Obligations in an amount equal to such excess; provided, however, that Cash
Collateral will not be on account of the L/C Obligations hereunder until the Revolving Loans
and Swing Line Loans have been paid in full.




(c) Application. Within each Loan, prepayments will be applied first to Base
Rate Loans, then to Eurodollar Loans in direct order of Interest Period maturities. In
addition:




(i) Voluntary Prepayments. Voluntary prepayments shall be applied as
specified by the Borrower. Voluntary prepayments on the Revolving Obligations will
be paid by the Administrative Agent to the Lenders ratably in accordance with their
respective interests therein.




(ii) Mandatory Prepayments. Mandatory prepayments on the Revolving
Obligations will be paid by the Administrative Agent to the Lenders ratably in
accordance with their respective interests therein; provided, that mandatory
prepayments in respect of the Revolving Commitments under Subsection (b) above shall
be applied to the respective Revolving Obligations as appropriate.



2.07 Termination or Reduction of Commitments.



The Commitments hereunder may be permanently reduced in whole or in part by notice from the
Borrower to the Administrative Agent; provided, that (i) any such notice thereof must be
received by 11:00 a.m. at least five (5) Business Days prior to the date of reduction or
termination and any such reduction shall be in a minimum principal amount of Fifteen Million
Dollars ($15,000,000) and integral multiples of One Million Dollars ($1,000,000) in excess thereof;
and (ii) the Commitments may not be reduced to an amount less than the Revolving Obligations then
outstanding. The Administrative Agent shall give prompt notice to the Lenders of any such
reduction in Commitments. Any reduction of the Aggregate Commitments shall be applied to the
Commitment of each Lender according to its Revolving Commitment Percentage thereof. All commitment
or other fees accrued until the effective date of any termination of the Aggregate Commitments
shall be paid on the effective date of such termination.



2.08 Interest.




(a) Subject to the provisions of Subsection (b) and Subsection (c) below, (i) each
Eurodollar Loan (other than Swing Line Loans) shall bear interest on the outstanding
principal amount thereof for each Interest Period at a rate per annum equal to the
Eurodollar Rate for such Interest Period plus the Applicable Percentage, (ii) each
Loan that is a Base Rate Loan (other than Swing Line Loan) shall bear interest on the
outstanding principal amount thereof from the applicable borrowing date at a rate per annum
equal to the Base Rate plus the Applicable Percentage, and (iii) each Swing Line
Loan shall bear interest on the outstanding principal amount thereof from the applicable
borrowing date at a rate per annum equal to the Daily Floating Eurodollar Rate plus the
Applicable Percentage.




(b) If any amount of principal of any Loan is not paid when due (without regard to any
applicable grace periods), whether at stated maturity, by acceleration or otherwise, such
amount shall thereafter bear interest at a fluctuating interest rate per annum at all times
equal to the Default Rate to the fullest extent permitted by applicable Laws.




(c) If any amount (other than principal of any Loan) payable by the Borrower under any
Credit Document is not paid when due (without regard to any applicable grace periods),
whether at stated maturity, by acceleration or otherwise, then upon the request of the
Required Lenders, such amount shall thereafter bear interest at a fluctuating interest rate
per annum at all times equal to the Default Rate to the fullest extent permitted by
applicable Laws.




(d) Accrued and unpaid interest on past due amounts (including interest on past due
interest) shall be due and payable upon demand.




(e) Interest on each Loan shall be due and payable in arrears for the prior calendar
month on the fifth (5th) day of each calendar month. Interest hereunder shall be
due and payable in accordance with the terms hereof before and after judgment, and before
and after the commencement of any proceeding under any Debtor Relief Law.



2.09 Fees.




(a) Unused Fee. From and after the Closing Date, the Borrower agrees to pay
the Administrative Agent for the ratable benefit of the Lenders an unused fee (the
“Unused Fee”) computed at the Unused Fee Rate on the average daily amount of the
Available Commitments during the period for which payment is made. To the extent
applicable, the Unused Fee shall accrue at all times during the Commitment Period (and
thereafter so long as Revolving Obligations shall remain outstanding), including periods
during which the conditions to Extensions of Credit in Section 4.02 may not be met, and
shall be payable quarterly in arrears on the fifth (5th) day following the last
day of each March, June, September and December, commencing with the first such date to
occur after the Closing Date, and on the Termination Date (and, if applicable, thereafter on
demand); provided that pursuant to Section 2.15(a)(iii), (i) no Unused Fee shall accrue on
the Commitment of a Defaulting Lender so long as such Lender shall be a Defaulting Lender
and (ii) any Unused Fee accrued with respect to the Commitment of a Defaulting Lender during
the period prior to the time such Lender became a Defaulting Lender and unpaid at such time
shall not be payable by the Borrower so long as such Lender shall be a Defaulting Lender.
The Administrative Agent shall distribute the Unused Fee to the Lenders pro rata in
accordance with the respective Revolving Commitments of the Lenders.




(b) Upfront and Other Fees. The Borrower agrees to pay to the Administrative
Agent for the benefit of the Lenders the upfront and other fees provided in the Fee Letter.




(c) Letter of Credit Fees.




(i) Letter of Credit Fee. In consideration of the L/C Commitment
hereunder, the Borrower agrees to pay to the Administrative Agent for the ratable
benefit of the Lenders an annual fee (the “Letter of Credit Fee”) with
respect to each Letter of Credit issued hereunder equal to (A) the Applicable
Percentage per annum multiplied by (B) the average daily maximum amount available to
be drawn under such Letter of Credit (whether or not such maximum amount is then in
effect under such Letters of Credit) from the date of issuance to the date of
expiration. The Letter of Credit Fee shall be computed on a quarterly basis in
arrears and shall be payable quarterly in arrears on the fifth (5th) day
after the end of each March, June, September and December, commencing on the first
such date to occur after the Closing Date, and on the Termination Date (and, if
applicable, thereafter on demand); provided, however, any Letter of
Credit Fees otherwise payable for the account of a Defaulting Lender with respect to
any Letter of Credit as to which such Defaulting Lender has not provided Cash
Collateral satisfactory to the L/C Issuer pursuant to Section 2.03 shall be
payable, to the maximum extent permitted by applicable Law, to the other Lenders in
accordance with the upward adjustments in their respective Revolving Commitment
Percentage allocable to such Letter of Credit pursuant to Section
2.15(a)(iv), with the balance of such fee, if any, payable to the L/C Issuer for
its own account.




(ii) L/C Issuer Fees. In addition to the Letter of Credit Fee, the
Borrower agrees to pay to the L/C Issuer for its own account without sharing by the
other Lenders (A) with the issuance of each such Letter of Credit, a fronting fee of
one eighth of one percent (0.125%) per annum on the maximum amount available to be
drawn under Letters of Credit issued by it from the date of issuance to the date of
expiration, and (B) upon the issuance, amendment, negotiation, transfer and/or
conversion of any Letters of Credit or any other action or circumstance requiring
administrative action on the part of the L/C Issuer with respect thereto, customary
charges of the L/C Issuer with respect thereto (collectively, the “L/C Issuer
Fees”).




(d) Administrative Agent’s Fees. The Borrower agrees to pay the Administrative
Agent such fees as provided in the Fee Letter or as may be otherwise agreed by the
Administrative Agent and the Borrower from time to time.




(e) Other Fees.




(i) The Borrower shall pay to the Arranger and the Administrative Agent for
their own respective accounts fees in the amounts and at the times specified in the
Fee Letter. Such fees shall be fully earned when paid and shall not be refundable
for any reason whatsoever.




(ii) The Borrower shall pay to the Lenders such fees as shall have been
separately agreed upon in writing in the amounts and at the times so specified.
Such fees shall be fully earned when paid and shall not be refundable for any reason
whatsoever.



2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate.




(a) All computations of interest for Base Rate Loans (including Base Rate Loans
determined by reference to the Eurodollar Base Rate) shall be made on the basis of a year of
365 or 366 days, as the case may be, and actual days elapsed. All other computations of
fees and interest shall be made on the basis of a 360-day year and actual days elapsed
(which results in more fees or interest, as applicable, being paid than if computed on the
basis of a 365-day year). Interest shall accrue on each Loan for the day on which the Loan
is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the
Loan or such portion is paid; provided, that any Loan that is repaid on the same day
on which it is made shall, subject to Section 2.11(a), bear interest for one day.




(b) If, as a result of any restatement of or other adjustment to the financial
statements of the Credit Parties or for any other reason related to the finances of the
Credit Parties, any Credit Party or the Lenders determine that (i) the Consolidated Leverage
Ratio as calculated by the Credit Parties as of any applicable date was inaccurate and (ii)
a proper calculation of the Consolidated Leverage Ratio would have resulted in higher
pricing for such period, the Credit Parties shall immediately and retroactively be obligated
to pay to the Administrative Agent for the account of the applicable Lenders or the L/C
Issuer, as the case may be, promptly on demand by the Administrative Agent (or, after the
occurrence of an actual or deemed entry of an order for relief with respect to the Borrower
under the Bankruptcy Code of the United States, automatically and without further action by
the Administrative Agent, any Lender or the L/C Issuer), an amount equal to the excess of
the amount of interest and fees that should have been paid for such period over the amount
of interest and fees actually paid for such period. This paragraph shall not limit the
rights of the Administrative Agent, any Lender or the L/C Issuer, as the case may be, under
Section 2.03(c)(iii), 2.03(i) or 2.08(b) or under Article
VIII. The Credit Parties obligations under this paragraph shall survive the termination
of the Aggregate Revolving Committed Amount and the repayment of all other Obligations
hereunder.



2.11 Payments Generally.




(a) All payments to be made by the Borrower shall be made without condition or
deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise
expressly provided herein, all payments by the Borrower hereunder shall be made to the
Administrative Agent, for the account of the Lenders to which such payment is owed, at the
Administrative Agent’s Office in Dollars and in immediately available funds not later than
2:00 p.m. on the date specified herein. The Administrative Agent will promptly distribute
to each Lender its Revolving Commitment Percentage (or other applicable share as provided
herein) of such payment in like funds as received by wire transfer to such Lender’s Lending
Office. All payments received by the Administrative Agent after 2:00 p.m. shall be deemed
received on the immediately succeeding Business Day and any applicable interest or fee shall
continue to accrue.




(b) Subject to the definition of “Interest Period” in Section 1.01, if any
payment to be made by the Borrower shall come due on a day other than a Business Day,
payment shall be made on the next following Business Day, and such extension of time shall
be reflected in computing interest or fees, as the case may be.




(c) Unless the Borrower or any Lender has notified the Administrative Agent, prior to
the date (or in the case of any Base Rate Loan, prior to 12:00 (Noon) on the date of such
Borrowing) any payment is required to be made by it to the Administrative Agent hereunder,
that the Borrower or such Lender, as the case may be, will not make such payment, the
Administrative Agent may assume that the Borrower or such Lender, as the case may be, has
timely made such payment and may (but shall not be so required to), in reliance thereon,
make available a corresponding amount to the Person entitled thereto. If and to the extent
that such payment was not in fact made to the Administrative Agent in immediately available
funds, then:




(i) if the Borrower fails to make such payment, each Lender shall forthwith on
demand repay to the Administrative Agent the portion of such assumed payment that
was made available to such Lender in immediately available funds, together with
interest thereon in respect of each day from and including the date such amount was
made available by the Administrative Agent to such Lender to the date such amount is
repaid to the Administrative Agent in immediately available funds at the Federal
Funds Rate from time to time in effect; and




(ii) if any Lender failed to make such payment, such Lender shall forthwith on
demand pay to the Administrative Agent the amount thereof in immediately available
funds, together with interest thereon for the period from the date such amount was
made available by the Administrative Agent to the Borrower to the date such amount
is recovered by the Administrative Agent (the “Compensation Period”) at a
rate per annum equal to the Federal Funds Rate from time to time in effect. If such
Lender pays such amount to the Administrative Agent, then such amount shall
constitute such Lender’s Loan included in the applicable Borrowing. If such Lender
does not pay such amount forthwith upon the Administrative Agent’s demand therefor,
the Administrative Agent may make a demand therefor upon the Borrower, and the
Borrower shall pay such amount to the Administrative Agent, together with interest
thereon for the Compensation Period at a rate per annum equal to the rate of
interest applicable to the applicable Borrowing. Nothing herein shall be deemed to
relieve any Lender from its obligation to fulfill its Commitment or to prejudice any
rights that the Administrative Agent or the Borrower may have against any Lender as
a result of any default by such Lender hereunder.



A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing
under this Subsection (c) shall be conclusive, absent manifest error.




(d) If any Lender makes available to the Administrative Agent funds for any Loan to be
made by such Lender as provided in the foregoing provisions of this Article II, and such
funds are not made available to the Borrower by the Administrative Agent because the
conditions to the applicable Extension of Credit set forth in Section 4.02 are not
satisfied or waived in accordance with the terms hereof or for any other reason, the
Administrative Agent shall promptly return such funds (in like funds as received from such
Lender) to such Lender, without interest.




(e) The obligations of the Lenders hereunder to make Loans and to fund participations
in Letters of Credit and Swing Line Loans are several and not joint. The failure of any
Lender to make any Loan or to fund any such participation on any date required hereunder
shall not relieve any other Lender of its corresponding obligation to do so on such date,
nor relieve Borrower from any obligations hereunder to the Lenders which fulfill such
obligations and no Lender shall be responsible for the failure of any other Lender to so
make its Loan or purchase its participation.




(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any
Loan in any particular place or manner or to constitute a representation by any Lender that
it has obtained or will obtain the funds for any Loan in any particular place or manner.




(g) If at any time insufficient funds are received by or are available to the
Administrative Agent to pay fully all amounts of principal, L/C Borrowings, interest and
fees then due hereunder, such funds shall be applied (i) first, toward costs and expenses
(including Attorney Costs and amounts payable under Article III) incurred by the
Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees
then due hereunder, ratably among the parties entitled thereto in accordance with the
amounts of interest and fees then due to such parties, and (iii) third, toward repayment of
principal and L/C Borrowings then due hereunder, ratably among the parties entitled thereto
in accordance with the amounts of principal and L/C Borrowings then due to such parties.



2.12 Sharing of Payments.



If any Lender shall obtain on account of the Loans made by it, or the participations in L/C
Obligations or in Swing Line Loans held by it (excluding any amounts applied by the Swing Line
Lender to outstanding Swing Line Loans), any payment (whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise, but excluding any payments made to a Lender in
error by the Administrative Agent (which such payments shall be returned by the Lender to the
Administrative Agent immediately upon such Lender’s obtaining knowledge that such payment was made
in error)) in excess of its ratable share (or other share contemplated hereunder) thereof, such
Lender shall immediately (a) notify the Administrative Agent of such fact, and (b) purchase from
the other Lenders such participations in the Loans made by them and/or such subparticipations in
the participations in L/C Obligations or Swing Line Loans held by them, as the case may be, as
shall be necessary to cause such purchasing Lender to share the excess payment in respect of such
Loans or such participations, as the case may be, pro rata with each of them; provided,
however, that (i) if all or any portion of such excess payment is thereafter recovered from
the purchasing Lender under any of the circumstances described in Section 10.06 (including
pursuant to any settlement entered into by the purchasing Lender in its discretion), such purchase
shall to that extent be rescinded and each other Lender shall repay to the purchasing Lender the
purchase price paid therefor, together with an amount equal to such paying Lender’s ratable share
(according to the proportion of (A) the amount of such paying Lender’s required repayment to (B)
the total amount so recovered from the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered, without further
interest thereon and (ii) the provisions of this Section shall not be construed to apply to (A) any
payment made by or on behalf of the Borrower pursuant to and in accordance with the express terms
of this Agreement (including the application of funds arising from the existence of a Defaulting
Lender), (B) the application of Cash Collateral provided for in Section 2.14, or (C) any
payment obtained by a Lender as consideration for the assignment of or sale of a participation in
any of its Loans or subparticipations in L/C Obligations or Swing Line Loans to any assignee or
participant, other than an assignment to any Credit Party or any Subsidiary thereof (as to which
the provisions of this Section shall apply). The Borrower agrees that any Lender so purchasing a
participation from another Lender may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off, but subject to Section 10.09) with
respect to such participation as fully as if such Lender were the direct creditor of the Borrower
in the amount of such participation. The Administrative Agent will keep records (which shall be
conclusive and binding in the absence of manifest error) of participations purchased under this
Section and will in each case notify the Lenders following any such purchases or repayments. Each
Lender that purchases a participation pursuant to this Section shall from and after such purchase
have the right to give all notices, requests, demands, directions and other communications under
this Credit Agreement with respect to the portion of the Obligations purchased to the same extent
as though the purchasing Lender were the original owner of the Obligations purchased.



2.13 Evidence of Debt.




(a) The Extension of Credit made by each Lender shall be evidenced by one or more
accounts or records maintained by such Lender and by the Administrative Agent in the
ordinary course of business. The accounts or records maintained by the Administrative Agent
and each Lender shall be conclusive absent manifest error of the amount of the Extension of
Credit made by the Lenders to the Borrower and the interest and payments thereon. Any
failure to so record or any error in doing so shall not, however, limit or otherwise affect
the obligation of the Borrower hereunder to pay any amount owing with respect to the
Obligations. In the event of any conflict between the accounts and records maintained by
any Lender and the accounts and records of the Administrative Agent in respect of such
matters, the accounts and records of the Administrative Agent shall control in the absence
of manifest error. The Borrower shall execute and deliver to the Administrative Agent a
Note for each Lender, requesting a Note, which Note shall evidence such Lender’s Loans in
addition to such accounts or records. Each Lender may attach schedules to its Note and
endorse thereon the date, Type (if applicable), amount and maturity of its Loans and
payments with respect thereto.




(b) In addition to the accounts and records referred to in Section 2.13(a),
each Lender and the Administrative Agent shall maintain in accordance with its usual
practice accounts or records evidencing the purchases and sales by such Lender of
participations in Letters of Credit and Swing Line Loans. In the event of any conflict
between the accounts and records maintained by the Administrative Agent and the accounts and
records of any Lender in respect of such matters, the accounts and records of the
Administrative Agent shall control in the absence of manifest error.



2.14 Cash Collateral.




(a) Certain Credit Support Events. Upon the request of the Administrative
Agent or the L/C Issuer (i) if the L/C Issuer has honored any full or partial drawing
request under any Letter of Credit and such drawing has resulted in an L/C Borrowing, or
(ii) if, as of the L/C Cash Collateralization Date, any L/C Obligation remains outstanding,
the Borrower shall be deemed to have requested a Borrowing of Base Rate Loans in the amount
of the then Outstanding Amount of all L/C Obligations (determined as of the date of such L/C
Borrowing or the L/C Cash Collateralization Date, as the case may be) and to the extent of
unavailability of Base Rate Loans, the Borrower shall immediately Cash Collateralize the
then Outstanding Amount of all L/C Obligations. In the event that the Borrower is deemed to
have requested a Borrowing of Base Rate Loans on the L/C Cash Collateralization Date, the
Borrower hereby authorizes the L/C Issuer and the Administrative Agent to deposit the
proceeds of such borrowing directly into a deposit account with the Administrative Agent in
order the Cash Collateralize the L/C Obligations. At any time that there shall exist a
Defaulting Lender, immediately upon the request of the Administrative Agent, the L/C Issuer
or the Swing Line Lender, the Borrower shall deliver to the Administrative Agent Cash
Collateral in an amount sufficient to cover all Fronting Exposure (after giving effect to
Section 2.15(a)(iv) and any Cash Collateral provided by the Defaulting Lender).




(b) Grant of Security Interest. All Cash Collateral (other than credit support
not constituting funds subject to deposit) shall be maintained in blocked, non-interest
bearing deposit accounts at Bank of America. The Borrower, and to the extent provided by
any Lender, such Lender, hereby grants to (and subjects to the control of) the
Administrative Agent, for the benefit of the Administrative Agent, the L/C Issuer and the
Lenders (including the Swing Line Lender), and agrees to maintain, a first priority security
interest in all such cash, deposit accounts and all balances therein, and all other property
so provided as collateral pursuant hereto, and in all proceeds of the foregoing, all as
security for the obligations to which such Cash Collateral may be applied pursuant to
Section 2.14(c). If at any time the Administrative Agent determines that Cash
Collateral is subject to any right or claim of any Person other than the Administrative
Agent as herein provided, or that the total amount of such Cash Collateral is less than the
applicable Fronting Exposure and other obligations secured thereby, the Borrower or the
relevant Defaulting Lender will, promptly upon demand by the Administrative Agent, pay or
provide to the Administrative Agent additional Cash Collateral in an amount sufficient to
eliminate such deficiency.




(c) Application. Notwithstanding anything to the contrary contained in this
Agreement, Cash Collateral provided under any of this Section 2.14 or Sections
2.03, 2.04, 2.06, 2.15 or 8.02 in respect of Letters of
Credit or Swing Line Loans shall be held and applied to the satisfaction of the specific L/C
Obligations, Swing Line Loans, obligations to fund participations therein (including, as to
Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation)
and other obligations for which the Cash Collateral was so provided, prior to any other
application of such property as may be provided for herein.




(d) Release. Cash Collateral (or the appropriate portion thereof) provided to
reduce Fronting Exposure or other obligations shall be released promptly following (i) the
elimination of the applicable Fronting Exposure or other obligations giving rise thereto
(including by the termination of Defaulting Lender status of the applicable Lender (or, as
appropriate, its assignee following compliance with Section 10.07(b))) or (ii) the
Administrative Agent’s good faith determination that there exists excess Cash Collateral;
provided, however, (x) that Cash Collateral furnished by or on behalf of a
Credit Party shall not be released during the continuance of a Default or Event of Default
(and following application as provided in this Section 2.14 may be otherwise applied
in accordance with Section 8.03), and (y) the Person providing Cash Collateral and
the L/C Issuer or Swing Line Lender, as applicable, may agree that Cash Collateral shall not
be released but instead held to support future anticipated Fronting Exposure or other
obligations.



2.15 Defaulting Lenders.




(a) Adjustments. Notwithstanding anything to the contrary contained in this
Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender
is no longer a Defaulting Lender, to the extent permitted by applicable Law:




(i) Waivers and Amendments. Such Defaulting Lender’s right to approve
or disapprove any amendment, waiver or consent with respect to this Agreement shall
be restricted as set forth in the definition of “Required Lenders” and Section
10.01.




(ii) Defaulting Lender Waterfall. Any payment of principal, interest,
fees or other amounts received by the Administrative Agent for the account of such
Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to
Article VIII or otherwise) or received by the Administrative Agent from a
Defaulting Lender pursuant to Section 10.09 shall be applied at such time or
times as may be determined by the Administrative Agent as follows: first, to the
payment of any amounts owing by such Defaulting Lender to the Administrative Agent
hereunder; second, to the payment on a pro rata basis of any amounts owing by such
Defaulting Lender to the L/C Issuer or Swing Line Lender hereunder; third, to Cash
Collateralize the L/C Issuer’s Fronting Exposure with respect to such Defaulting
Lender in accordance with Section 2.16; fourth, as the Borrower may request
(so long as no Default or Event of Default exists), to the funding of any Loan in
respect of which such Defaulting Lender has failed to fund its portion thereof as
required by this Agreement, as determined by the Administrative Agent; fifth, if so
determined by the Administrative Agent and the Borrower, to be held in a deposit
account and released pro rata in order to (x) satisfy such Defaulting Lender’s
potential future funding obligations with respect to Loans under this Agreement and
(y) Cash Collateralize the L/C Issuer’s future Fronting Exposure with respect to
such Defaulting Lender with respect to future Letters of Credit issued under this
Agreement, in accordance with Section 2.16; sixth, to the payment of any
amounts owing to the Lenders, the L/C Issuer or Swing Line Lender as a result of any
judgment of a court of competent jurisdiction obtained by any Lender, the L/C Issuer
or the Swing Line Lender against such Defaulting Lender as a result of such
Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long
as no Default or Event of Default exists, to the payment of any amounts owing to the
Borrower as a result of any judgment of a court of competent jurisdiction obtained
by the Borrower against such Defaulting Lender as a result of such Defaulting
Lender’s breach of its obligations under this Agreement; and eighth, to such
Defaulting Lender or as otherwise directed by a court of competent jurisdiction;
provided that if (x) such payment is a payment of the principal amount of
any Loans or L/C Borrowings in respect of which such Defaulting Lender has not fully
funded its appropriate share, and (y) such Loans were made or the related Letters of
Credit were issued at a time when the conditions set forth in Section 4.02
were satisfied or waived, such payment shall be applied solely to pay the Loans of,
and L/C Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to
being applied to the payment of any Loans of, or L/C Obligations owed to, such
Defaulting Lender until such time as all Loans and funded and unfunded
participations in L/C Obligations and Swing Line Loans are held by the Lenders pro
rata in accordance with the Commitments hereunder without giving effect to
Section 2.15(a)(iv). Any payments, prepayments or other amounts paid or
payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a
Defaulting Lender or to post Cash Collateral pursuant to this Section
2.15(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender,
and each Lender irrevocably consents hereto.




(iii) Certain Fees.




(A) Each Defaulting Lender shall be entitled to receive fees payable
under Section 2.09 for any period during which that Lender is a
Defaulting Lender only to extent allocable to the sum of (1) the outstanding
principal amount of the Loans funded by it, and (2) its Applicable
Percentage of the stated amount of Letters of Credit for which it has
provided Cash Collateral pursuant to Section 2.14.




(B) Each Defaulting Lender shall be entitled to receive Letter of
Credit Fees for any period during which that Lender is a Defaulting Lender
only to the extent allocable to its Applicable Percentage of the stated
amount of Letters of Credit for which it has provided Cash Collateral
pursuant to Section 2.14.




(C) With respect to any fee payable under Section 2.09 or any
Letter of Credit Fee not required to be paid to any Defaulting Lender
pursuant to clause (A) or (B) above, the Borrower shall (x)
pay to each Non-Defaulting Lender that portion of any such fee otherwise
payable to such Defaulting Lender with respect to such Defaulting Lender’s
participation in L/C Obligations or Swing Line Loans that has been
reallocated to such Non-Defaulting Lender pursuant to clause (iv)
below, (y) pay to the L/C Issuer and Swing Line Lender, as applicable, the
amount of any such fee otherwise payable to such Defaulting Lender to the
extent allocable to such L/C Issuer’s or Swing Line Lender’s Fronting
Exposure to such Defaulting Lender, and (z) not be required to pay the
remaining amount of any such fee.




(iv) Reallocation of Applicable Percentages to Reduce Fronting
Exposure. All or any part of such Defaulting Lender’s participation in L/C
Obligations and Swing Line Loans shall be reallocated among the Non-Defaulting
Lenders in accordance with their respective Applicable Percentages (calculated
without regard to such Defaulting Lender’s Commitment) but only to the extent that
(x) the conditions set forth in Section 4.02 are satisfied at the time of
such reallocation (and, unless the Borrower shall have otherwise notified the
Administrative Agent at such time, the Borrower shall be deemed to have represented
and warranted that such conditions are satisfied at such time), and (y) such
reallocation does not cause the aggregate Revolving Credit Exposure of any
Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Commitment. No
reallocation hereunder shall constitute a waiver or release of any claim of any
party hereunder against a Defaulting Lender arising from that Lender having become a
Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of
such Non-Defaulting Lender’s increased exposure following such reallocation.




(v) Cash Collateral, Repayment of Swing Line Loans. If the
reallocation described in clause (a)(iv) above cannot, or can only
partially, be effected, the Borrower shall, without prejudice to any right or remedy
available to it hereunder or under applicable Law, (x) first, prepay Swing Line
Loans in an amount equal to the Swing Line Lenders’ Fronting Exposure and (y)
second, Cash Collateralize the L/C Issuers’ Fronting Exposure in accordance with the
procedures set forth in Section 2.14.




(b) Defaulting Lender Cure. If the Borrower, the Administrative Agent, the
Swing Line Lender and the L/C Issuer agree in writing that a Lender is no longer a
Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as
of the effective date specified in such notice and subject to any conditions set forth
therein (which may include arrangements with respect to any Cash Collateral), that Lender
will, to the extent applicable, purchase at par that portion of outstanding Loans of the
other Lenders or take such other actions as the Administrative Agent may determine to be
necessary to cause the Loans and funded and unfunded participations in Letters of Credit and
Swing Line Loans to be held on a pro rata basis by the Lenders in accordance with their
Applicable Percentages (without giving effect to Section 2.15(a)(iv)), whereupon
such Lender will cease to be a Defaulting Lender provided that no adjustments will
be made retroactively with respect to fees accrued or payments made by or on behalf of the
Borrower while that Lender was a Defaulting Lender; and provided, further,
that except to the extent otherwise expressly agreed by the affected parties, no change
hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim
of any party hereunder arising from that Lender’s having been a Defaulting Lender.



2.16 Extension of Termination Date.




(a) Requests for Extension. The Borrower may, at its option, on a one-time
basis, by notice to the Administrative Agent (who shall promptly notify the Lenders) not
earlier than 90 days and not later than 30 days prior to the first anniversary of the
Closing Date (the date of such notice, the “Extension Request Date”), elect to
extend the Termination Date for an additional year from the Termination Date then in effect
hereunder.




(b) Conditions to Effectiveness of Extensions. Notwithstanding the foregoing,
the extension of the Termination Date pursuant to this Section shall not be effective
unless:




(i) no Default exists on the date of the request, date of such extension and
after giving effect thereto;




(ii) the representations and warranties of the Credit Parties contained in this
Credit Agreement and the other Credit Documents are true and correct in all material
respects on and as of the date of such extension of the Termination Date (except to
the extent that any such representation and warranty is qualified by materiality or
reference to a Material Adverse Effect, in which case such representation and
warranty shall be true and correct in all respects), other than those
representations and warranties which specifically refer to an earlier date, in which
case they are true and correct in all material respects as of such earlier date
(except to the extent that any such representation and warranty is qualified by
materiality or reference to a Material Adverse Effect, in which case such
representation and warranty shall be true and correct in all respects as of such
earlier date); provided, for purposes of this Section 2.16, the
representations and warranties contained in Subsections (a) and (b)
of Section 5.01 shall be deemed to refer to the most recent statements
furnished pursuant to clauses (a) and (b), respectively, of Section 6.01;




(iii) the Administrative Agent shall have received a Compliance Certificate
signed by a Responsible Officer of the Borrower (which shall include, without
limitation, calculation of the financial covenants) certifying that the Credit
Parties are in compliance on a Pro Forma Basis (as of the date of such extension of
the Termination Date) with each financial covenant contained in Section
6.12;




(iv) the Administrative Agent shall have received, for the benefit of the
Extending Lenders (to be allocated on a pro rata basis after giving effect to the
Commitments of each such Extending Lender after giving effect to such extension)
from the Borrower an extension fee in aggregate amount equal to 0.20% of the
Aggregate Commitments immediately after giving effect to such extension.




(c) Conflicting Provisions. This Section shall supersede any provisions in
Section 2.14 and Section 10.01 to the contrary.



ARTICLE III

TAXES, YIELD PROTECTION AND ILLEGALITY




3.01 Taxes.




(a) Payments Free of Taxes; Obligation to Withhold; Payments on Account of
Taxes.




(i) Any and all payments by or on account of any obligation of any Credit Party
Credit Party under any Credit Document shall be made without deduction or
withholding for any Taxes, except as required by applicable Laws. If any applicable
Laws (as determined in the good faith discretion of the Administrative Agent)
require the deduction or withholding of any Tax from any such payment by the
Administrative Agent or a Credit Party, then the Administrative Agent or such Credit
Party shall be entitled to make such deduction or withholding, upon the basis of the
information and documentation to be delivered pursuant to Subsection (e)
below.




(ii) If any Credit Party or the Administrative Agent shall be required by the
Internal Revenue Code to withhold or deduct any Taxes, including both United States
Federal backup withholding and withholding taxes, from any payment, then (A) the
Administrative Agent shall withhold or make such deductions as are determined by the
Administrative Agent to be required based upon the information and documentation it
has received pursuant to Subsection (e) below, (B) the Administrative Agent
shall timely pay the full amount withheld or deducted to the relevant Governmental
Authority in accordance with the Internal Revenue Code, and (C) to the extent that
the withholding or deduction is made on account of Indemnified Taxes, the sum
payable by the applicable Credit Party shall be increased as necessary so that after
any required withholding or the making of all required deductions (including
deductions applicable to additional sums payable under this Section 3.01)
the applicable Recipient receives an amount equal to the sum it would have received
had no such withholding or deduction been made.




(iii) If any Credit Party or the Administrative Agent shall be required by any
applicable Laws other than the Internal Revenue Code to withhold or deduct any Taxes
from any payment, then (A) such Credit Party or the Administrative Agent, as
required by such Laws, shall withhold or make such deductions as are determined by
it to be required based upon the information and documentation it has received
pursuant to Subsection (e) below, (B) such Credit Party or the
Administrative Agent, to the extent required by such Laws, shall timely pay the full
amount withheld or deducted to the relevant Governmental Authority in accordance
with such Laws, and (C) to the extent that the withholding or deduction is made on
account of Indemnified Taxes, the sum payable by the applicable Credit Party shall
be increased as necessary so that after any required withholding or the making of
all required deductions (including deductions applicable to additional sums payable
under this Section 3.01) the applicable Recipient receives an amount equal
to the sum it would have received had no such withholding or deduction been made.




(b) Payment of Other Taxes by the Borrower. Without limiting the provisions of
Subsection (a) above, Credit Parties shall timely pay to the relevant Governmental
Authority in accordance with applicable law, or at the option of the Administrative Agent
timely reimburse it for the payment of, any Other Taxes.




(c) Tax Indemnifications.




(i) Each of the Credit Parties shall, and does hereby, jointly and severally
indemnify each Recipient, and shall make payment in respect thereof within 10 days
after demand therefor, for the full amount of any Indemnified Taxes (including
Indemnified Taxes imposed or asserted on or attributable to amounts payable under
this Section 3.01) payable or paid by such Recipient or required to be
withheld or deducted from a payment to such Recipient, and any penalties, interest
and reasonable expenses arising therefrom or with respect thereto, whether or not
such Indemnified Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or liability
delivered to the Borrower by a Lender or the L/C Issuer (with a copy to the
Administrative Agent), or by the Administrative Agent on its own behalf or on behalf
of a Lender or the L/C Issuer, shall be conclusive absent manifest error. Each of
the Credit Parties shall, and does hereby, jointly and severally indemnify the
Administrative Agent, and shall make payment in respect thereof within 10 days after
demand therefor, for any amount which a Lender or the L/C Issuer for any reason
fails to pay indefeasibly to the Administrative Agent as required pursuant to
Section 3.01(c)(ii) below.




(ii) Each Lender and the L/C Issuer shall, and does hereby, severally
indemnify, and shall make payment in respect thereof within 10 days after demand
therefor, (x) the Administrative Agent against any Indemnified Taxes attributable to
such Lender or the L/C Issuer (but only to the extent that any Credit Party has not
already indemnified the Administrative Agent for such Indemnified Taxes and without
limiting the obligation of the Credit Parties to do so), (y) the Administrative
Agent and the Credit Parties, as applicable, against any Taxes attributable to such
Lender’s failure to comply with the provisions of Section 10.07(d) relating
to the maintenance of a Participant Register and (z) the Administrative Agent and
the Credit Parties, as applicable, against any Excluded Taxes attributable to such
Lender or the L/C Issuer, in each case, that are payable or paid by the
Administrative Agent or a Credit Party in connection with any Credit Document, and
any reasonable expenses arising therefrom or with respect thereto, whether or not
such Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or liability
delivered to any Lender by the Administrative Agent shall be conclusive absent
manifest error. Each Lender and the L/C Issuer hereby authorizes the Administrative
Agent to set off and apply any and all amounts at any time owing to such Lender or
the L/C Issuer, as the case may be, under this Agreement or any other Credit
Document against any amount due to the Administrative Agent under this
clause (ii).




(d) Evidence of Payments. Upon request by the Borrower or the Administrative
Agent, as the case may be, after any payment of Taxes by the Borrower or by the
Administrative Agent to a Governmental Authority as provided in this Section 3.01,
the Borrower shall deliver to the Administrative Agent or the Administrative Agent shall
deliver to the Borrower, as the case may be, the original or a certified copy of a receipt
issued by such Governmental Authority evidencing such payment, a copy of any return required
by Laws to report such payment or other evidence of such payment reasonably satisfactory to
the Borrower or the Administrative Agent, as the case may be.




(e) Status of Lenders; Tax Documentation.




(i) Any Lender that is entitled to an exemption from or reduction of
withholding Tax with respect to payments made under any Credit Document shall
deliver to the Borrower and the Administrative Agent, at the time or times
reasonably requested by the Borrower or the Administrative Agent, such properly
completed and executed documentation reasonably requested by the Borrower or the
Administrative Agent as will permit such payments to be made without withholding or
at a reduced rate of withholding. In addition, any Lender, if reasonably requested
by the Borrower or the Administrative Agent, shall deliver such other documentation
prescribed by applicable law or reasonably requested by the Borrower or the
Administrative Agent as will enable the Borrower or the Administrative Agent to
determine whether or not such Lender is subject to backup withholding or information
reporting requirements. Notwithstanding anything to the contrary in the preceding
two sentences, the completion, execution and submission of such documentation (other
than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B)
and (ii)(D) below) shall not be required if in the Lender’s reasonable
judgment such completion, execution or submission would subject such Lender to any
material unreimbursed cost or expense or would materially prejudice the legal or
commercial position of such Lender.




(ii) Without limiting the generality of the foregoing, in the event that the
Borrower is a U.S. Person,




(A) any Lender that is a U.S. Person shall deliver to the Borrower and
the Administrative Agent on or prior to the date on which such Lender
becomes a Lender under this Agreement (and from time to time thereafter upon
the reasonable request of the Borrower or the Administrative Agent),
executed originals of IRS Form W-9 certifying that such Lender is exempt
from U.S. federal backup withholding tax;




(B) any Foreign Lender shall, to the extent it is legally entitled to
do so, deliver to the Borrower and the Administrative Agent (in such number
of copies as shall be requested by the recipient) on or prior to the date on
which such Foreign Lender becomes a Lender under this Agreement (and from
time to time thereafter upon the reasonable request of the Borrower or the
Administrative Agent), whichever of the following is applicable:




(I) in the case of a Foreign Lender claiming the benefits of an
income tax treaty to which the United States is a party (x) with
respect to payments of interest under any Credit Document, executed
originals of IRS Form W-8BEN establishing an exemption from, or
reduction of, U.S. federal withholding Tax pursuant to the “interest”
article of such tax treaty and (y) with respect to any other
applicable payments under any Credit Document, IRS Form W-8BEN
establishing an exemption from, or reduction of, U.S. federal
withholding Tax pursuant to the “business profits” or “other income”
article of such tax treaty;




(II) executed originals of IRS Form W-8ECI;




(III) in the case of a Foreign Lender claiming the benefits of
the exemption for portfolio interest under Section 881(c) of the
Internal Revenue Code, (x) a certificate substantially in the form of
Exhibit H-1 to the effect that such Foreign Lender is not a
“bank” within the meaning of Section 881(c)(3)(A) of the Internal
Revenue Code, a “10 percent shareholder” of the Borrower within the
meaning of Section 881(c)(3)(B) of the Internal Revenue Code, or a
“controlled foreign corporation” described in Section 881(c)(3)(C) of
the Internal Revenue Code (a “U.S. Tax Compliance
Certificate”) and (y) executed originals of IRS Form W-8BEN; or




(IV) to the extent a Foreign Lender is not the beneficial owner,
executed originals of IRS Form W-8IMY, accompanied by IRS Form
W-8ECI, IRS Form W-8BEN, a U.S. Tax Compliance Certificate
substantially in the form of Exhibit H-2 or Exhibit
H-3, IRS Form W-9, and/or other certification documents from each
beneficial owner, as applicable; provided that if the Foreign
Lender is a partnership and one or more direct or indirect partners
of such Foreign Lender are claiming the portfolio interest exemption,
such Foreign Lender may provide a U.S. Tax Compliance Certificate
substantially in the form of Exhibit H-4 on behalf of each
such direct and indirect partner;




(C) any Foreign Lender shall, to the extent it is legally entitled to
do so, deliver to the Borrower and the Administrative Agent (in such number
of copies as shall be requested by the recipient) on or prior to the date on
which such Foreign Lender becomes a Lender under this Agreement (and from
time to time thereafter upon the reasonable request of the Borrower or the
Administrative Agent), executed originals of any other form prescribed by
applicable law as a basis for claiming exemption from or a reduction in U.S.
federal withholding Tax, duly completed, together with such supplementary
documentation as may be prescribed by applicable law to permit the Borrower
or the Administrative Agent to determine the withholding or deduction
required to be made; and




(D) if a payment made to a Lender under any Credit Document would be
subject to U.S. federal withholding Tax imposed by FATCA if such Lender were
to fail to comply with the applicable reporting requirements of FATCA
(including those contained in Section 1471(b) or 1472(b) of the Internal
Revenue Code, as applicable), such Lender shall deliver to the Borrower and
the Administrative Agent at the time or times prescribed by law and at such
time or times reasonably requested by the Borrower or the Administrative
Agent such documentation prescribed by applicable law (including as
prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and
such additional documentation reasonably requested by the Borrower or the
Administrative Agent as may be necessary for the Borrower and the
Administrative Agent to comply with their obligations under FATCA and to
determine that such Lender has complied with such Lender’s obligations under
FATCA or to determine the amount to deduct and withhold from such payment.
Solely for purposes of this clause (D), “FATCA” shall include any amendments
made to FATCA after the date of this Agreement.




(vi) Each Lender agrees that if any form or certification it previously
delivered pursuant to this Section 3.01 expires or becomes obsolete or
inaccurate in any respect, it shall update such form or certification or promptly
notify the Borrower and the Administrative Agent in writing of its legal inability
to do so.




(f) Treatment of Certain Refunds. Unless required by applicable Laws, at no
time shall the Administrative Agent have any obligation to file for or otherwise pursue on
behalf of a Lender or the L/C Issuer, or have any obligation to pay to any Lender or the L/C
Issuer, any refund of Taxes withheld or deducted from funds paid for the account of such
Lender or the L/C Issuer, as the case may be. If any Recipient determines, in its sole
discretion exercised in good faith, that it has received a refund of any Taxes as to which
it has been indemnified by any Credit Party or with respect to which any Credit Party has
paid additional amounts pursuant to this Section 3.01, it shall pay to the Credit
Party an amount equal to such refund (but only to the extent of indemnity payments made, or
additional amounts paid, by a Credit Party under this Section 3.01 with respect to
the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes)
incurred by such Recipient, and without interest (other than any interest paid by the
relevant Governmental Authority with respect to such refund), provided that the
Credit Party, upon the request of the Recipient, agrees to repay the amount paid over to the
Credit Party (plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) to the Recipient in the event the Recipient is required to repay
such refund to such Governmental Authority. Notwithstanding anything to the contrary in
this subsection, in no event will the applicable Recipient be required to pay any amount to
the Credit Party pursuant to this subsection the payment of which would place the Recipient
in a less favorable net after-Tax position than such Recipient would have been in if the
indemnification payments or additional amounts giving rise to such refund had never been
paid. This Subsection shall not be construed to require any Recipient to make available its
tax returns (or any other information relating to its taxes that it deems confidential) to
any Credit Party or any other Person.




(g) Survival. Each party’s obligations under this Section 3.01 shall
survive the resignation or replacement of the Administrative Agent or any assignment of
rights by, or the replacement of, a Lender or the L/C Issuer, the termination of the
Commitments and the repayment, satisfaction or discharge of all other Obligations.



3.02 Illegality.



If any Lender determines that any Law has made it unlawful, or that any Governmental Authority
has asserted that it is unlawful, for any Lender or its Lending Office to make, maintain or fund
Loans whose interest is determined by reference to the Eurodollar Rate, or to determine or charge
interest rates based upon the Eurodollar Rate, or any Governmental Authority has imposed material
restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars
in the London interbank market, then, on notice thereof by such Lender to the Borrower through the
Administrative Agent, (i) any obligation of such Lender to make or continue Eurodollar Loans or to
convert Base Rate Loans to Eurodollar Loans shall be suspended, and (ii) if such notice asserts the
illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is
determined by reference to the Eurodollar Rate component of the Base Rate, the interest rate on
which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by
the Administrative Agent without reference to the Eurodollar Rate component of the Base Rate, in
each case until such Lender notifies the Administrative Agent and the Borrower that the
circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (x)
the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay
or, if applicable, convert all Eurodollar Loans of such Lender to Base Rate Loans (the interest
rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be
determined by the Administrative Agent without reference to the Eurodollar Rate component of the
Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully
continue to maintain such Eurodollar Loans to such day, or immediately, if such Lender may not
lawfully continue to maintain such Eurodollar Rate Loans and (y) if such notice asserts the
illegality of such Lender determining or charging interest rates based upon the Eurodollar Rate,
the Administrative Agent shall during the period of such suspension compute the Base Rate
applicable to such Lender without reference to the Eurodollar Rate component thereof until the
Administrative Agent is advised in writing by such Lender that it is no longer illegal for such
Lender to determine or charge interest rates based upon the Eurodollar Rate. Upon any such
prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or
converted.



3.03 Inability to Determine Rates.



If the Required Lenders determine that for any reason in connection with any request for a
Eurodollar Rate Loan or a conversion to or continuation thereof that (a) Dollar deposits are not
being offered to banks in the London interbank eurodollar market for the applicable amount and
Interest Period of such Eurodollar Rate Loan, (b) adequate and reasonable means do not exist for
determining the Eurodollar Rate for any requested Interest Period with respect to a proposed
Eurodollar Loan or in connection with an existing or proposed Base Rate Loan, or (c) the Eurodollar
Base Rate for any requested Interest Period with respect to a proposed Eurodollar Loan does not
adequately and fairly reflect the cost to such Lenders of funding such Loan, the Administrative
Agent will promptly so notify the Borrower and each Lender. Thereafter, (x) the obligation of the
Lenders to make or maintain Eurodollar Loans shall be suspended, and (y) in the event of a
determination described in the preceding sentence with respect to the Eurodollar Rate component of
the Base Rate, the utilization of the Eurodollar Rate component in determining the Base Rate shall
be suspended, in each case until the Administrative Agent (upon the instruction of the Required
Lenders) revokes such notice. Upon receipt of such notice, the Borrower may revoke any pending
request for a Borrowing of, conversion to or continuation of Eurodollar Loans or, failing that,
will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans in
the amount specified therein.



3.04 Increased Costs; Reserves on Eurodollar Rate Loans. 




(a) Increased Costs Generally. If any Change in Law shall:




(i) impose, modify or deem applicable any reserve, special deposit, compulsory
loan, insurance charge or similar requirement against assets of, deposits with or
for the account of, or credit extended or participated in by, any Lender (except any
reserve requirement reflected in the Eurodollar Rate) or the L/C Issuer;




(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B)
Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and
(C) Connection Income Taxes) on its loans, loan principal, letters of credit,
commitments, or other obligations, or its deposits, reserves, other liabilities or
capital attributable thereto; or




(iii) impose on any Lender or the L/C Issuer or the London interbank market any
other condition, cost or expense affecting this Agreement or Eurodollar Loans made
by such Lender or any Letter of Credit or participation therein;



and the result of any of the foregoing shall be to increase the cost to such Lender of making,
converting to, continuing or maintaining any Loan the interest on which is determined by reference
to the Eurodollar Rate (or of maintaining its obligation to make any such Loan), or to increase the
cost to such Lender or the L/C Issuer of participating in, issuing or maintaining any Letter of
Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to
reduce the amount of any sum received or receivable by such Lender or the L/C Issuer hereunder
(whether of principal, interest or any other amount) then, upon request of such Lender or the L/C
Issuer, the Borrower will pay to such Lender or the L/C Issuer, as the case may be, such additional
amount or amounts as will compensate such Lender or the L/C Issuer, as the case may be, for such
additional costs incurred or reduction suffered.




(b) Capital Requirements. If any Lender or the L/C Issuer determines
that any Change in Law affecting such Lender or the L/C Issuer or any Lending Office of such
Lender or such Lender’s or the L/C Issuer’s holding company, if any, regarding capital or
liquidity requirements has or would have the effect of reducing the rate of return on such
Lender’s or the L/C Issuer’s capital or on the capital of such Lender’s or the L/C Issuer’s
holding company, if any, as a consequence of this Agreement, the Commitments of such Lender
or the Loans made by, or participations in Letters of Credit or Swing Line Loans held by,
such Lender, or the Letters of Credit issued by the L/C Issuer, to a level below that which
such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company could
have achieved but for such Change in Law (taking into consideration such Lender’s or the L/C
Issuer’s policies and the policies of such Lender’s or the L/C Issuer’s holding company with
respect to capital adequacy), then from time to time the Borrower shall pay to such Lender
or the L/C Issuer, as the case may be, such additional amount or amounts as will compensate
such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company for any
such reduction suffered.




(c) Certificates for Reimbursement. A certificate of a Lender or the
L/C Issuer setting forth the amount or amounts necessary to compensate such Lender or the
L/C Issuer or its holding company, as the case may be, as specified in Subsection
(a) or (b) of this Section and delivered to the Borrower shall be conclusive
absent manifest error. The Borrower shall pay such Lender or the L/C Issuer, as the case
may be, the amount shown as due on any such certificate within 10 days after receipt
thereof.




(d) Delay in Requests. Failure or delay on the part of any Lender or
the L/C Issuer to demand compensation pursuant to the foregoing provisions of this
Section 3.04 shall not constitute a waiver of such Lender’s or the L/C Issuer’s
right to demand such compensation, provided that the Borrower shall not be required
to compensate a Lender or the L/C Issuer pursuant to the foregoing provisions of this
Section for any increased costs incurred or reductions suffered more than nine months prior
to the date that such Lender or the L/C Issuer, as the case may be, notifies the Borrower of
the Change in Law giving rise to such increased costs or reductions and of such Lender’s or
the L/C Issuer’s intention to claim compensation therefor (except that, if the Change in Law
giving rise to such increased costs or reductions is retroactive, then the nine-month period
referred to above shall be extended to include the period of retroactive effect thereof).



3.05 Compensation for Losses. 



Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the
Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss,
cost or expense incurred by it as a result of:




(a) any continuation, conversion, payment or prepayment of any Loan other than a Base
Rate Loan on a day other than the last day of the Interest Period for such Loan (whether
voluntary, mandatory, automatic, by reason of acceleration, or otherwise);




(b) any failure by the Borrower (for a reason other than the failure of such Lender to
make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on
the date or in the amount notified by the Borrower; or




(c) any assignment of a Eurodollar Loan on a day other than the last day of the
Interest Period therefor as a result of a request by the Borrower pursuant to
Section 10.16;



including any loss of anticipated profits and any loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the
deposits from which such funds were obtained. The Borrower shall also pay any customary
administrative fees charged by such Lender in connection with the foregoing.



For purposes of calculating amounts payable by the Borrower to the Lenders under this Section
3.05, each Lender shall be deemed to have funded each Eurodollar Loan made by it at the
Eurodollar Base Rate used in determining the Eurodollar Rate for such Loan by a matching deposit or
other borrowing in the London interbank eurodollar market for a comparable amount and for a
comparable period, whether or not such Eurodollar Loan was in fact so funded.



3.06 Mitigation Obligations; Replacement of Lenders. 




(a) Designation of a Different Lending Office. If any Lender requests
compensation under Section 3.04, or requires the Borrower to pay any Indemnified
Taxes or additional amounts to any Lender, the L/C Issuer, or any Governmental Authority for
the account of any Lender or the L/C Issuer pursuant to Section 3.01, or if any
Lender gives a notice pursuant to Section 3.02, then at the request of the Borrower
such Lender or the L/C Issuer shall, as applicable, use reasonable efforts to designate a
different Lending Office for funding or booking its Loans hereunder or to assign its rights
and obligations hereunder to another of its offices, branches or affiliates, if, in the
judgment of such Lender or the L/C Issuer, such designation or assignment (i) would
eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04, as the
case may be, in the future, or eliminate the need for the notice pursuant to Section
3.02, as applicable, and (ii) in each case, would not subject such Lender or the L/C
Issuer, as the case may be, to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender or the L/C Issuer, as the case may be. The Borrower hereby
agrees to pay all reasonable costs and expenses incurred by any Lender or the L/C Issuer in
connection with any such designation or assignment.




(b) Replacement of Lenders. If any Lender requests compensation under
Section 3.04, or if the Borrower is required to pay any Indemnified Taxes or
additional amounts to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 3.01 and, in each case, such Lender has declined or is unable to
designate a different Lending Office in accordance with Section 3.06(a), the
Borrower may replace such Lender in accordance with Section 10.16.



3.07 Survival. 



All of the Borrower’s obligations under this Article III shall survive termination of the
Aggregate Commitments, repayment of all other Obligations hereunder, and resignation of the
Administrative Agent.



ARTICLE IV

CONDITIONS PRECEDENT TO EXTENSION OF CREDIT




4.01 Conditions to Initial Extensions of Credit.



The obligation of the Lenders to make the initial Extension of Credit hereunder is subject to
the satisfaction of such of the following conditions in all material respects on or prior to the
Closing Date as shall not have been expressly waived in writing by the Administrative Agent and
Lenders.




(a) Credit Documents, Organization Documents, Etc. The Administrative Agent’s
receipt of the following, each of which shall be originals or facsimiles (followed promptly
by originals) unless otherwise specified, each properly executed by a Responsible Officer of
the signing Credit Party, each dated the Closing Date (or, in the case of certificates of
governmental officials, a recent date before the Closing Date) and each in form and
substance satisfactory to the Administrative Agent:




(i) executed counterparts of this Credit Agreement and the other Credit
Documents;




(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;




(iii) copies of the Organization Documents of each Credit Party certified to be
true and complete as of a recent date by the appropriate Governmental Authority of
the state or other jurisdiction of its incorporation or organization, where
applicable, and certified by a secretary or assistant secretary of such Credit Party
to be true and correct as of the Closing Date;




(iv) such certificates of resolutions or other action, incumbency certificates
and/or other certificates of Responsible Officers of each Credit Party as the
Administrative Agent may require evidencing the identity, authority and capacity of
each Responsible Officer thereof authorized to act as a Responsible Officer in
connection with this Credit Agreement and the other Credit Documents to which such
Credit Party is a party; and




(v) such documents and certifications as the Administrative Agent may
reasonably require to evidence that each Credit Party is duly organized or formed,
and is validly existing, in good standing and qualified to engage in business in the
jurisdiction of their incorporation or organization.




(b) Opinions of Counsel. The Administrative Agent shall have received, in each
case dated as of the Closing Date and in form and substance reasonably satisfactory to the
Administrative Agent a legal opinion of (i) Cox, Castle & Nicholson LLP, special New York
and Delaware counsel for the Credit Parties and (ii) special local counsel for the Credit
Parties for the state of Maryland, in each case addressed to the Administrative Agent and
the Lenders.




(c) Officer’s Certificates. The Administrative Agent shall have received a
certificate or certificates executed by a Responsible Officer of the Borrower as of the
Closing Date, in a form reasonably satisfactory to the Administrative Agent, stating that
(i) each Credit Party is in compliance in all material respects with all existing financial
obligations (whether pursuant to the terms and conditions of this Credit Agreement or
otherwise), (ii) all governmental, stockholder and third party consents and approvals, if
any, with respect to the Credit Documents and the transactions contemplated thereby have
been obtained, (iii) no action, suit, investigation or proceeding is pending, or to the
knowledge of the Credit Parties threatened, in any court or before any arbitrator or
governmental instrumentality that purports to affect any Consolidated Party or any
transaction contemplated by the Credit Documents, if such action, suit, investigation or
proceeding could have a Material Adverse Effect, (iv) immediately prior to and following the
transactions contemplated herein, each of the Credit Parties shall be Solvent, and (v)
immediately after the execution of this Credit Agreement and the other Credit Documents, (A)
no Default or Event of Default exists and (B) all representations and warranties contained
herein and in the other Credit Documents are true and correct in all material respects
(except to the extent that any representation and warranty is qualified by materiality, in
which case such representation and warranty shall be true and correct in all respects),
other than those representations and warranties which expressly relate to an earlier date,
in which case, they were true and correct in all material respects (except to the extent
that any such representation and warranty is qualified by materiality, in which case such
representation and warranty was true and correct in all respects) as of such earlier date.




(d) Opening Borrowing Base Certificate. Receipt by the Administrative Agent of
a Borrowing Base Certificate as of the Closing Date, substantially in the form of
Exhibit C, duly completed and executed by a Responsible Officer of the Borrower.




(e) Financial Statements. Receipt by the Administrative Agent and the Lenders
of (i) pro forma projections of financial statements (balance sheet, income and cash flows)
for each of the fiscal years of the Consolidated Parties through December 31, 2013 and (ii)
such other information relating to the Consolidated Parties as the Administrative Agent may
reasonably require in connection with the structuring and syndication of credit facilities
of the type described herein.




(f) Opening Compliance Certificate. Receipt by the Administrative Agent of a
Compliance Certificate, substantially in the form of Exhibit D, as of the Closing
Date signed by a Responsible Officer of the Borrower and including (i) pro forma
calculations for the current fiscal quarter based on the amounts set forth in the Audited
Financial Statements and taking into account any Extension of Credit made or requested
hereunder as of such date and (ii) pro forma calculations of all financial covenants
contained herein for each of the following four (4) fiscal quarters (based on the
projections set forth in the materials delivered pursuant to clause (e) of this
Section 4.01).




(g) Consents/Approvals. The Credit Parties shall have received all approvals,
consents and waivers, and shall have made or given all necessary filings and notices as
shall be required to consummate the transactions contemplated hereby without the occurrence
of any default under, conflict with or violation of (i) any applicable Law or (ii) any
agreement, document or instrument to which any Credit Party is a party or by which any of
them or their respective properties is bound, except for such approvals, consents, waivers,
filings and notices the receipt, making or giving of which would not reasonably be likely to
(A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome
conditions on, or otherwise materially and adversely affect the ability of the Borrower or
any other Credit Party to fulfill its respective obligations under the Credit Documents to
which it is a party.




(h) Material Adverse Effect. No event or condition or series of events or
conditions in the aggregate has occurred since December 31, 2011, that has had or could
reasonably be expected to have, a Material Adverse Effect.




(i) Fees and Expenses. Payment by the Credit Parties to the Administrative
Agent of all fees and expenses relating to the preparation, execution and delivery of this
Credit Agreement and the other Credit Documents which are due and payable on the Closing
Date, including, without limitation, payment to the Administrative Agent of the fees set
forth in the Fee Letter.



Without limiting the generality of the provisions of Section 9.03, for purposes of
determining compliance with the conditions specified in this Section 4.01, each Lender that
has signed this Agreement shall be deemed to have consented to, approved or accepted or to be
satisfied with, each document or other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its objection thereto.



4.02 Conditions to Extensions of Credit.



The obligation of any Lender to make any Extension of Credit hereunder is subject to the
satisfaction of such of the following conditions on or prior to the proposed date of the making of
such Extension of Credit:




(a) The Administrative Agent shall receive the applicable Request for Extension of
Credit and the conditions set forth in Section 4.01 for the initial Extension of
Credit shall have been met as of the Closing Date;




(b) No Default shall have occurred and be continuing immediately before the making of
such Extension of Credit and no Default would exist immediately thereafter;




(c) The representations and warranties of the Credit Parties made in or pursuant to
this Agreement and the other Credit Documents shall be true in all material respects (except
to the extent that any representation and warranty is qualified by materiality, in which
case such representation and warranty shall be true and correct in all respects) as of the
date of such Extension of Credit, other than those representations and warranties which
expressly relate to an earlier date, in which case, they were true and correct in all
material respects (except to the extent that any representation and warranty is qualified by
materiality, in which case such representation and warranty shall be true and correct in all
respects) as of such earlier date.




(d) Immediately following the making of such Extension of Credit the sum of the
outstanding principal balance of the Revolving Obligations shall not exceed the lesser of
(i) the Aggregate Revolving Committed Amount and (ii) the Adjusted Borrowing Base Amount for
such date.



The making of such Extension of Credit hereunder shall be deemed to be a representation and
warranty by the Credit Parties on the date thereof as to the facts specified in clauses (b), (c),
and (d) of this Section.



ARTICLE V

REPRESENTATIONS AND WARRANTIES




The Credit Parties represent and warrant, as applicable, to the Administrative Agent and the
Lenders that:



5.01 Financial Statements; No Material Adverse Effect.




(a) The Audited Financial Statements (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise expressly
noted therein; (ii) fairly present in all material respects the financial condition of the
Consolidated Parties as of the date thereof and their results of operations for the period
covered thereby in accordance with GAAP consistently applied throughout the period covered
thereby, except as otherwise expressly noted therein; and (iii) show all material
indebtedness and other liabilities, direct or contingent, of the Consolidated Parties as of
the date thereof, including liabilities for taxes, material commitments and Indebtedness.




(b) During the period from December 31, 2011, to and including the Closing Date, there
has been no sale, transfer or other disposition by any Consolidated Party of any material
part of the business or Property of the Consolidated Parties, taken as a whole, and no
purchase or other acquisition by any of them of any business or property (including any
Capital Stock of any other Person) material in relation to the consolidated financial
condition of the Consolidated Parties, taken as a whole, in each case, which is not
reflected in the foregoing financial statements or in the notes thereto and has not
otherwise been disclosed in writing to the Lenders on or prior to the Closing Date.




(c) The financial statements delivered pursuant to Section 6.01 have been
prepared in accordance with GAAP (except as may otherwise be permitted under
Section 6.01) and present fairly (on the basis disclosed in the footnotes to such
financial statements) in all material respects the consolidated financial condition, results
of operations and cash flows of the Consolidated Parties as of such date and for such
periods.




(d) Since the date of the Audited Financial Statements, there has been no event or
circumstance, either individually or in the aggregate, that has had or could reasonably be
expected to have a Material Adverse Effect.



5.02 Corporate Existence and Power.



Each of the Credit Parties is a corporation, partnership or limited liability company duly
organized or formed, validly existing and in good standing under the laws of its jurisdiction of
incorporation or organization, has all organizational powers and all material governmental
licenses, authorizations, consents and approvals required to carry on its business as now conducted
and is duly qualified as a foreign entity and in good standing under the laws of each jurisdiction
where its ownership, lease or operation of property or the conduct of its business requires such
qualification.



5.03 Corporate and Governmental Authorization; No Contravention.



The execution, delivery and performance by each Credit Party of each Credit Document to which
such Person is party, have been duly authorized by all necessary corporate or other organizational
action, and do not and will not (a) contravene the terms of any of such Person’s Organization
Documents; (b) conflict with or result in any breach or contravention of, or the creation of any
Lien under, (i) any Contractual Obligation to which such Person is a party or (ii) any order,
injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person
or its property is subject; or (c) violate any Law (including Regulation U or Regulation X).



5.04 Binding Effect.



This Credit Agreement has been, and each other Credit Document, when delivered hereunder, will
have been, duly executed and delivered by each Credit Party that is a party thereto. This Credit
Agreement constitutes, and each other Credit Document when so delivered will constitute, a legal,
valid and binding obligation of such Credit Party, enforceable against each Credit Party that is a
party thereto in accordance with its terms except as enforceability may be limited by applicable
Debtor Relief Laws and by general equitable principles (whether enforcement is sought by
proceedings in equity or at law).



5.05 Litigation.



There are no judgments, orders, writs or decrees outstanding against any Credit Party or
against any of its properties or revenues nor, to the best of such Credit Party’s knowledge, is
there now pending or, threatened at law, in equity, in arbitration or before any Governmental
Authority, any actions, suits, proceedings, claims or disputes by or against any Credit Party or
any of its properties or revenues that (a) purport to affect or pertain to this Credit Agreement or
any other Credit Document, or any of the transactions contemplated hereby or (b) either
individually or in the aggregate, can reasonably be expected to be determined adversely, and if so
determined to have a Material Adverse Effect.



5.06 Compliance with ERISA.




(a) Each Plan is in compliance in all material respects with the applicable provisions
of ERISA, the Internal Revenue Code and other Federal or state Laws. Each Plan that is
intended to qualify under Section 401(a) of the Internal Revenue Code has received a
favorable determination letter from the IRS or an application for such a letter is currently
being processed by the IRS with respect thereto and, to the knowledge of the Responsible
Officers of the Credit Parties, nothing has occurred which would prevent, or cause the loss
of, such qualification. The Consolidated Parties and each ERISA Affiliate have made all
required contributions to each Plan subject to Section 412 of the Internal Revenue Code, and
no application for a funding waiver or an extension of any amortization period pursuant to
Section 412 of the Internal Revenue Code has been made with respect to any Plan.




(b) There are no pending or threatened claims (other than routine claims for benefits),
actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that
could reasonably be expected to have a Material Adverse Effect. No Consolidated Party nor
any ERISA Affiliate or any other Person has engaged in any prohibited transaction or
violation of the fiduciary responsibility rules under ERISA or the Internal Revenue Code
with respect to any Plan that has resulted or could reasonably be expected to result in a
Material Adverse Effect.




(c) (i) No ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension
Plan has any Unfunded Pension Liability; (iii) no Consolidated Party nor any ERISA Affiliate
has incurred, or reasonably expects to incur, any liability under Title IV of ERISA with
respect to any Pension Plan (other than premiums due and not delinquent under Section 4007
of ERISA); (iv) no Consolidated Party nor any ERISA Affiliate has incurred, or reasonably
expects to incur, any liability (and no event has occurred which, with the giving of notice
under Section 4219 of ERISA, would result in such liability) under Sections 4201 or 4243 of
ERISA with respect to a Multiemployer Plan; and (v) no Consolidated Party nor any ERISA
Affiliate has engaged in a transaction that could be subject to Sections 4069 or 4212(c) of
ERISA.



5.07 Environmental Matters.



Except as could not reasonably be expected to have a Material Adverse Effect:




(a) Each of the facilities and real properties owned, leased or operated by any Credit
Party or any Subsidiary (the “Facilities”) and all operations at the Facilities are
in compliance with all applicable Environmental Laws in all material respects and there is
no violation, in any material respect, of any Environmental Law with respect to the
Facilities or the businesses operated by any Credit Party or any Subsidiary at such time
(the “Businesses”), and there are no conditions relating to the Facilities or the
Businesses that are likely to give rise to liability under any applicable Environmental
Laws.




(b) None of the Facilities contains, or has previously contained, any Hazardous
Materials at, on or under the Facilities in amounts or concentrations that constitute or
constituted a violation of, or could give rise to liability under, applicable Environmental
Laws.




(c) No Credit Party nor any Subsidiary has received any written or verbal notice of, or
inquiry from any Governmental Authority regarding, any violation, alleged violation,
non-compliance, liability or potential liability regarding environmental matters or
compliance with Environmental Laws with regard to any of the Facilities or the Businesses,
nor does any Responsible Officer of the Borrower have knowledge or reason to believe that
any such notice will be received or is being threatened.




(d) Hazardous Materials have not been transported or disposed of from the Facilities,
or generated, treated, stored or disposed of at, on or under any of the Facilities, in each
case by or on behalf of any Credit Party or any Subsidiary in violation of, or in a manner
that is likely to give rise to liability under, any applicable Environmental Law.




(e) No judicial proceeding or governmental or administrative action is pending or
threatened, under any Environmental Law to which any Credit Party or any Subsidiary is or
will be named as a party, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other administrative or judicial
requirements outstanding under any Environmental Law with respect to any Credit Party, any
Subsidiary, the Facilities or the Businesses.




(f) There has been no release or threat of release of Hazardous Materials at or from
the Facilities, or arising from or related to the operations (including, without limitation,
disposal) of any Credit Party or any Subsidiary in connection with the Facilities or
otherwise in connection with the Businesses, in violation of or in amounts or in a manner
that is likely to give rise to liability under any applicable Environmental Laws.



5.08 Margin Regulations; Investment Company Act.




(a) No Credit Party is engaged or will engage, principally or as one of its important
activities, in the business of purchasing or carrying margin stock (within the meaning of
Regulation U), or extending credit for the purpose of purchasing or carrying margin stock
and no part of the Letters of Credit or proceeds of the Loans will be used, directly or
indirectly, for the purpose of purchasing or carrying any margin stock.




(b) None of the Credit Parties are (i) required to be registered as an “investment
company” under the Investment Company Act of 1940 or (ii) subject to regulation under any
other Law which limits its ability to incur the Obligations.



5.09 Compliance with Laws.



Each of the Borrower, the Parent and its Subsidiaries is in compliance in all material
respects with the requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its properties, except in such instances in which (a) such requirement of
Law or order, writ, injunction or decree is being contested in good faith by appropriate
proceedings diligently conducted or (b) the failure to comply therewith, either individually or in
the aggregate, could not reasonably be expected to have a Material Adverse Effect.



5.10 Ownership of Property; Liens.



Each of the Borrower, the Parent and its Subsidiaries have good record and marketable title in
fee simple to, or valid leasehold interests in, all applicable Real Property Assets, except for
Permitted Liens and such defects in title as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. Set forth on Schedule 5.10 is a
list of all Borrowing Base Properties used in the calculation of the Adjusted Borrowing Base
Amount, as such schedule may be updated from time to time pursuant to Section 6.02. The
Property of the Parent and its Subsidiaries is subject to no Liens, other than Permitted Liens.



5.11 Corporate Structure; Capital Stock, Etc.



Set forth on Schedule 5.11 is a complete and accurate list of each Credit Party and
each Subsidiary of any Credit Party as of the Closing Date, together with (a) jurisdiction of
organization, (b) number of shares of each class of Capital Stock outstanding, (c) number and
percentage of outstanding shares of each class owned (directly or indirectly) by any Credit Party
or any Subsidiary and (d) U.S. taxpayer identification number. Subject to Section 7.03,
the Parent has no equity Investments in any other Person other than those specifically disclosed on
Schedule 5.11, as such schedule may be updated from time to time pursuant to
Section 6.02. The outstanding Capital Stock owned by any Credit Party are validly issued,
fully paid and non-assessable and free of any Liens, warrants, options and rights of others of any
kind whatsoever.



5.12 Labor Matters.



There are no collective bargaining agreements or Multiemployer Plans covering the employees of
the any Consolidated Party as of the Closing Date and no Consolidated Party (a) has suffered any
strikes, walkouts, work stoppages or other material labor difficulty within the five (5) years
prior to the Closing Date or (b) to the knowledge of the Responsible Officers of the Borrower, as
of the Closing Date there is not any potential or pending strike, walkout or work stoppage.



5.13 No Default.



Neither the Parent nor any of its Subsidiaries (including the Borrower) is in default under or
with respect to any Contractual Obligation that could, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.



5.14 Solvency.



Immediately before and after giving pro forma effect to this Agreement, (a) the Borrower is
Solvent and (b) the other Credit Parties are Solvent on a consolidated basis.



5.15 Taxes.



The Parent, the Borrower and Subsidiary have filed all Federal, state and other material tax
returns and reports required to be filed, and have paid all Federal, state and other material
taxes, assessments, fees and other governmental charges levied or imposed upon them or their
properties, income or assets otherwise due and payable, except those which are being contested in
good faith by appropriate proceedings diligently conducted and for which adequate reserves have
been established in accordance with GAAP. To the knowledge of the Responsible Officers of the
Borrower, there is no proposed tax assessment against any Credit Party that would, if made, have a
Material Adverse Effect.



5.16 REIT Status.



The Parent is taxed as a “real estate investment trust” within the meaning of Section 856(a)
of the Internal Revenue Code.



5.17 Insurance.



The Real Property Assets of the Parent and its Subsidiaries are insured, to Borrower’s
knowledge, with financially sound and reputable insurance companies not Affiliates of any
Consolidated Party, in such amounts, with such deductibles and covering such risks as are
customarily carried by companies engaged in similar businesses and owning similar properties in
localities where the Parent or the applicable Subsidiary operates.



5.18 Intellectual Property; Licenses, Etc.



The Parent, Borrower and its Subsidiaries own, or possess the right to use, all of the
trademarks, service marks, trade names, copyrights, patents, patent rights, franchises, licenses
and other intellectual property rights that are reasonably necessary for the operation of their
respective businesses, without conflict with the rights of any other Person, except, in each case,
where the failure to do so could not reasonably be expected to have a Material Adverse Effect. To
the knowledge of the Credit Parties, no slogan or other advertising device, product, process,
method, substance, part or other material now employed, or now contemplated to be employed, by the
Parent, Borrower or any Subsidiary infringes upon any rights held by any other Person except where
such infringement could not reasonably be expected to have a Material Adverse Effect. No claim or
litigation regarding any of the foregoing is pending or, to the knowledge of any Credit Party,
threatened, which, either individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.



5.19 Governmental Approvals; Other Consents.



No material approval, consent, exemption, authorization, or other action by, or notice to, or
filing with, any Governmental Authority or any other Person is necessary or required in connection
with the execution, delivery or performance by, or enforcement against, the Credit Parties of this
Credit Agreement or any other Credit Document (except for those that have already been obtained or
made).



5.20 Disclosure.



Each Credit Party has disclosed to the Administrative Agent and the Lenders all agreements,
instruments and corporate or other restrictions to which it or any of its Subsidiaries is subject,
and all other matters known to it, that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect. To each Credit Party’s knowledge, no report,
financial statement, certificate or other information furnished (whether in writing or orally) by
or on behalf of any Credit Party to the Administrative Agent or any Lender in connection with the
transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or
under any other Credit Document (in each case, as modified or supplemented by other information so
furnished) contains any material misstatement of fact or omits to state any material fact necessary
to make the statements therein, in the light of the circumstances under which they were made, not
materially misleading; provided that, with respect to projected financial information, each
Credit Party represents only that, to each Credit Party’s knowledge, such information was prepared
in good faith based upon assumptions believed to be reasonable at the time, with the understanding
that certain of such information is prepared or provided by each Credit Party based upon
information and assumptions provided to such Credit Parties by Tenants of such Credit Parties.



5.21 OFAC.



No Credit Party nor, to the knowledge of any Credit Party, any Related Party, (a) is currently
the subject of any Sanctions, (b) is located, organized or residing in any Designated Jurisdiction
or (c) is or has been (within the previous five (5) years) engaged in any transaction with any
Person who is now or was then the subject of Sanctions or who is located, organized or residing in
any Designated Jurisdiction. No Loan, nor the proceeds from any Loan, has been used, directly or
indirectly, to lend, contribute, provide or has otherwise made available to fund any activity or
business in any Designated Jurisdiction or to fund any activity or business of any Person located,
organized or residing in any Designated Jurisdiction or who is the subject of any Sanctions, or in
any other manner that will result in any violation by any Person (including any Lender, the
Arranger, the Administrative Agent, the L/C Issuer or the Swing Line Lender) of Sanctions.



ARTICLE VI

AFFIRMATIVE COVENANTS




Each Credit Party hereby covenants and agrees that until the Obligations, together with
interest, fees and other obligations hereunder, have been paid in full and the Revolving
Commitments hereunder shall have terminated:



6.01 Financial Statements.



The Credit Parties shall deliver to the Administrative Agent (and the Administrative Agent
shall disseminate such information pursuant to the terms of Section 6.02 hereof), in form
and detail reasonably satisfactory to the Administrative Agent and the Required Lenders:




(a) as soon as available, but in any event within ninety (90) days after the end of
each fiscal year of the Parent, a consolidated balance sheet of the Consolidated Parties as
of the end of such fiscal year, and the related consolidated statements of income or
operations, changes in stockholders’ equity and cash flows for such fiscal year, setting
forth in each case in comparative form the figures for the previous fiscal year, all in
reasonable detail and prepared in accordance with GAAP, audited and accompanied by a report
and opinion of Ernst & Young or any independent certified public accountant of nationally
recognized standing reasonably acceptable to the Required Lenders, which report and opinion
shall be prepared in accordance with generally accepted auditing standards and shall not be
subject to any “going concern” or like qualification or exception or any qualification or
exception as to the scope of such audit; and




(b) as soon as available, but in any event within forty-five (45) days after the end of
each of the first three (3) fiscal quarters of each fiscal year of the Parent, a
consolidated balance sheet of the Consolidated Parties as of the end of such fiscal quarter,
the related consolidated statements of income or operations for such fiscal quarter and for
the portion of the Borrower’s fiscal year then ended, and the related consolidated
statements of changes in stockholders’ equity, and cash flows for the portion of the
Borrower’s fiscal year then ended, in each case setting forth in comparative form, as
applicable, the figures for the corresponding fiscal quarter of the previous fiscal year and
the corresponding portion of the previous fiscal year, all in reasonable detail and
certified by a Responsible Officer of the Borrower as fairly presenting the financial
condition, results of operations, stockholders’ equity and cash flows of the Consolidated
Parties in accordance with GAAP, subject only to normal year-end audit adjustments and the
absence of footnotes.



6.02 Certificates; Other Information.



The Credit Parties shall deliver to the Administrative Agent (and the Administrative Agent
shall disseminate such information pursuant to the terms of this Section 6.02), in form and
detail reasonably satisfactory to the Administrative Agent and the Required Lenders:




(a) concurrently with the delivery of the financial statements referred to in
Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by
a Responsible Officer of the Borrower; which shall include, without limitation, calculation
of the financial covenants set forth in Section 6.12 and an update of
Schedules 5.10 and 5.11, if applicable;




(b) within forty five (45) days after the end of each fiscal quarter, a Borrowing Base
Certificate calculated as of the end of the immediately prior fiscal quarter, duly completed
and executed by a Responsible Officer of the Borrower; provided, however,
the Borrower may, at its option, provide an updated Borrowing Base Certificate more
frequently than quarterly;




(c) within (i) forty-five (45) days after the end of each fiscal year of the Parent,
beginning with the fiscal year ending December 31, 2012, an annual operating forecast of the
Consolidated Parties and (ii) within one hundred five (105) days after the end of each
fiscal year of the Parent, beginning with the fiscal year ending December 31, 2012 pro forma
financial statements for the then current fiscal year and updated versions of the pro forma
financial projections delivered in connection with Section 4.01(e) hereof;




(d) promptly after any request by the Administrative Agent, copies of any detailed
audit reports submitted to the board of directors by the independent accountants of the
Consolidated Parties (or the audit committee of the board of directors of the Parent) in
respect of the Borrower (and, to the extent any such reports are prepared separately for any
one or more of the Credit Parties) by independent accountants in connection with the
accounts or books of the Borrower (or such Credit Party) or any audit of the Borrower (or
such Credit Party));




(e) promptly after the same are available, (i) copies of each annual report, proxy or
financial statement or other material report or communication sent to the stockholders of
the Parent, and copies of all annual, regular, periodic and special reports and registration
statements which the Parent may file or be required to file with the SEC under Section 13 or
15(d) of the Securities Exchange Act of 1934 or to a holder of any Indebtedness owed by the
Parent in its capacity as such holder and not otherwise required to be delivered to the
Administrative Agent pursuant hereto and (ii) upon the request of the Administrative Agent,
all reports and written information to and from the United States Environmental Protection
Agency, or any state or local agency responsible for environmental matters, the United
States Occupational Health and Safety Administration, or any state or local agency
responsible for health and safety matters, or any successor agencies or authorities
concerning environmental, health or safety matters;




(f) promptly upon receipt thereof, a copy of any other material report or “management
letter” or recommendations submitted by independent accountants to the Parent in connection
with any annual, interim or special audit of the books of the Parent;




(g) promptly upon any Responsible Officer of the Borrower becoming aware thereof,
notice of any matter that has resulted or could reasonably be expected to result in a
Material Adverse Effect and (iii) any other Default or Event of Default;




(h) within ten (10) days upon any Responsible Officer of the Borrower becoming aware
thereof, material reports detailing income or expenses of any assets directly owned or
operated, or which will be included on the balance sheet for purposes of FIN 46, other than
as previously disclosed in the Parent’s Form 10-K, 10-Q or any other publicly available
information; and




(i) promptly, such additional information regarding the business, financial or
corporate affairs of the Credit Parties, or compliance with the terms of the Credit
Documents, as the Administrative Agent or any Lender (through the Administrative Agent) may
from time to time reasonably request.



Documents required to be delivered pursuant to Section 6.01 or Section 6.02 or
(i) may be delivered electronically and if so delivered, shall be deemed to have been
delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on
the Borrower’s website on the Internet at the website address listed on Schedule 10.02; or
(ii) on which such documents are posted by the Administrative Agent (on the Borrower’s behalf) on
IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the
Administrative Agent have access (whether a commercial, third-party website or whether sponsored by
the Administrative Agent); provided, that: the Borrower shall deliver paper copies of such
documents to the Administrative Agent or any Lender (through the Administrative Agent) that
requests the Borrower to deliver such paper copies until a written request to cease delivering
paper copies is given by the Administrative Agent or such Lender (through the Administrative
Agent). The Administrative Agent shall have no obligation to request the delivery or to maintain
copies of the documents referred to above, and in any event shall have no responsibility to monitor
compliance by the Borrower or the other Credit Parties with any such request for delivery, and each
Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such
documents.



The Borrower hereby acknowledges that (x) the Administrative Agent will make available to the
Lenders materials and/or information provided by or on behalf of the Borrower hereunder
(collectively, the “Borrower Materials”) by posting the Borrower Materials on IntraLinks or
another similar electronic system (the “Platform”) and (y) certain of the Lenders may be
“public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information
with respect to the Borrower or its securities) (each, a “Public Lender”). The Borrower
hereby further agrees that (ww) all Borrower Materials that are to be made available to Public
Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the
word “PUBLIC” shall appear prominently on the first page thereof (xx) by marking Borrower Materials
“PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent and the Lenders
to treat such Borrower Materials as either publicly available information or not material
information (although it may be sensitive and proprietary) with respect to the Borrower or its
securities for purposes of United States federal and state securities laws (provided,
however, that to the extent such Borrower Materials constitute Confidential Information,
they shall be treated as set forth in Section 10.08); (yy) all Borrower Materials marked
“PUBLIC” are permitted to be made available through a portion of the Platform designated as
“Public;” and (zz) the Administrative Agent shall be entitled to treat any Borrower Materials that
are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not marked
as “Public.”



6.03 Preservation of Existence and Franchises.



Each Credit Party shall, and shall cause each of its Subsidiaries to, do all things necessary
to preserve and keep in full force and effect its legal existence, rights, franchises and
authority. Each Credit Party shall remain qualified and in good standing in each jurisdiction in
which the failure to so qualify and be in good standing could have a Material Adverse Effect.



6.04 Books and Records.



Each Credit Party shall, and shall cause each of its Subsidiaries to, keep complete and
accurate books and records of its transactions in accordance with good accounting practices on the
basis of GAAP.



6.05 Compliance with Law.



Each Credit Party shall, and shall cause each of its Subsidiaries, to comply with all Laws,
rules, regulations and orders, and all applicable restrictions imposed by all Governmental
Authorities, applicable to it and all of its real and personal property, except in such instances
in which (a) such requirement of Law or order, writ, injunction or decree is being contested in
good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith
could not reasonably be expected to have a Material Adverse Effect.



6.06 Payment of Taxes and Other Indebtedness.



Each Credit Party shall, and shall cause each of its Subsidiaries to, pay and discharge (or
cause to be paid or discharged) (a) all taxes (including, without limitation, any corporate or
franchise taxes), assessments and governmental charges or levies imposed upon it, or upon its
income or profits, or upon any of its properties, before they shall become delinquent, unless the
same are being contested in good faith by appropriate proceedings diligently conducted and adequate
reserves in accordance with GAAP are being maintained by such Credit Party or such Subsidiary or a
bond against same has been posted by such Credit Party or such Subsidiary in accordance with
applicable law, (b) all lawful claims (including claims for labor, materials and supplies) which,
if unpaid, might give rise to a Lien (other than a Permitted Lien) upon any of its properties, and
(c) except as prohibited hereunder, all of its other Indebtedness as it shall become due.



6.07 Insurance.



Each Credit Party shall, and shall cause each of its Subsidiaries to, maintain (or caused to
be maintained) with financially sound and reputable insurance companies not Affiliates of the
Parent, insurance with respect to its properties and business against loss or damage of the kinds
customarily insured against by Persons engaged in the same or similar business, of such types and
in such amounts as are customarily carried under similar circumstances by such other Persons. Each
Credit Party shall, and shall cause each of its Subsidiaries to, provide prompt notice to the
Administrative Agent following such Credit Party’s receipt from the relevant insurer of any notice
of termination, lapse or cancellation of such insurance unless such Credit Party obtains insurance
from another carrier that would satisfy the requirements hereof prior to the effective date of such
termination, lapse or cancellation.



6.08 Maintenance of Property.



Each Credit Party shall, and shall cause each of its Subsidiaries to, maintain, preserve and
protect (or caused to be maintained, preserved and protected) all of its Borrowing Base Properties
and all other material property and equipment necessary in the operation of its business in good
working order and condition, in each case, in a manner consistent with how such Person maintained
its Borrowing Base Properties and other material property on the Closing Date, ordinary wear and
tear excepted.



6.09 Performance of Obligations.



The Credit Parties will pay and discharge at or before maturity, or prior to expiration of
applicable notice, grace and curative periods, all their respective material obligations and
liabilities, including, without limitation, tax liabilities, except (a) where the same may be
contested in good faith by appropriate proceedings, and will maintain, in accordance with GAAP,
appropriate reserves for the accrual of any of the same or bond against same in accordance with
applicable law or (b) the failure to pay or discharge such obligations and liabilities could not
reasonably be expected to have a Material Adverse Effect.



6.10 Visits and Inspections.



Subject to the rights of Tenants, each Credit Party shall, and shall cause each of its
Subsidiaries to, permit representatives or agents of any Lender or the Administrative Agent, from
time to time, and, if no Event of Default shall have occurred and be continuing, after reasonable
prior notice, but not more than twice annually and only during normal business hours to: (a) visit
and inspect any of its Real Property Assets to the extent any such right to visit or inspect is
within the control of such Person; (b) inspect and make extracts from their respective books and
records, including but not limited to management letters prepared by independent accountants; and
(c) discuss with its principal officers, and its independent accountants, its business, properties,
condition (financial or otherwise), results of operations and performance. If requested by the
Administrative Agent, the Borrower or the Credit Parties, as applicable, shall execute an
authorization letter addressed to its accountants authorizing the Administrative Agent or any
Lender to discuss the financial affairs of the Borrower or any other Credit Party with its
accountants.



6.11 Use of Proceeds/Purpose of Loans and Letters of Credit.



The Borrower shall use the proceeds of all Loans and use Letters of Credit only for the
purpose of to finance general corporate working capital (including asset acquisitions, and
acquiring or improving, directly or indirectly, income producing Healthcare Facilities and
Investments in accordance with Section 7.03), capital expenditures or other corporate
purposes of the Borrower and the other Credit Parties (to the extent not inconsistent with the
Credit Parties’ covenants and obligations under this Credit Agreement and the other Credit
Documents).



6.12 Financial Covenants.




(a) Consolidated Leverage Ratio. The Credit Parties shall cause the
Consolidated Leverage Ratio, as of the end of any fiscal quarter, to be equal to or less
than fifty-five percent (55%).




(b) Consolidated Secured Leverage Ratio. The Credit Parties shall cause the
Consolidated Secured Leverage Ratio, as of the end of any fiscal quarter, to be equal to or
less than thirty-five percent (35%).




(c) Consolidated Tangible Net Worth. The Credit Parties shall cause the
Consolidated Tangible Net Worth to all at all times to be equal to or greater than the sum
of (i) Three Hundred Million Dollars ($300,000,000) plus (ii) an amount equal to
eighty percent (80%) of the net cash proceeds received by the Consolidated Parties from
Equity Transactions subsequent to the Closing Date.




(d) Consolidated Fixed Charge Coverage Ratio. The Credit Parties shall cause
the Consolidated Fixed Charge Coverage Ratio, as of the end of any fiscal quarter, to be
equal to or greater than 1.75 to 1.00.




(e) Maximum Dividend Payout Ratio. The Credit Parties shall cause the cash
distributions to the Parent’s stockholders paid by the Parent during the immediately prior
four (4) fiscal quarter period ending on such date to be equal to or less than ninety-five
percent (95%) (or such greater amount as is required for the Parent to (A) maintain REIT
status and (B) avoid the payment of federal or state income or excise tax) of the Modified
Funds From Operations during such immediately prior four (4) fiscal quarter period;
provided, however with respect to (i) the fiscal quarter ending March 31,
2012, such calculation shall be for the trailing three months ending on such date, (ii) the
fiscal quarter ending June 30, 2012, such calculation shall be for the trailing six months
ending on such date and (iii) the fiscal quarter ending September 30, 2012, such calculation
shall be for the trailing nine months ending on such date.




(f) Consolidated Unencumbered Leverage Ratio. The Credit Parties shall cause
the Consolidated Unencumbered Leverage Ratio, as of the end of any fiscal quarter, to be
equal to or less than fifty-five percent (55%).




(g) Consolidated Unencumbered Interest Coverage Ratio. The Credit Parties
shall cause the Consolidated Unencumbered Interest Coverage Ratio, as of the end of any
fiscal quarter, to be equal to or greater than 2.00 to 1.00.



6.13 Environmental Matters; Preparation of Environmental Reports.



The Credit Parties will, and will cause each Subsidiary to, comply in all material respects
with all Environmental Laws in respect of its Real Property Assets.



6.14 REIT Status.



The Credit Parties will, and will cause each Subsidiary to, operate its business at all times
so as to satisfy all requirements necessary to qualify and maintain the Parent’s qualification as a
real estate investment trust under Sections 856 through 860 of the Internal Revenue Code. The
Parent will maintain adequate records so as to comply in all material respects with all
record-keeping requirements relating to its qualification as a real estate investment trust as
required by the Internal Revenue Code and applicable regulations of the Department of the Treasury
promulgated thereunder and will properly prepare and timely file with the IRS all returns and
reports required thereby.



6.15 Additional Guarantors; Release of Guarantors.




(a) Additional Guarantors. Upon the acquisition, incorporation or other
creation of any direct or indirect Subsidiary of the Parent which owns a Borrowing Base
Property or would otherwise qualify as a Subsidiary Guarantor (including, but not limited
to, being deemed a Subsidiary Guarantor pursuant to the definition of “Subsidiary Guarantor”
hereunder), the Credit Parties shall (i) cause such Subsidiary to become a Subsidiary
Guarantor hereunder through the execution and delivery to the Administrative Agent of a
Subsidiary Guarantor Joinder Agreement on or before the earlier of (A) the date on which an
Eligible Borrowing Base Property owned by such Subsidiary is included in any calculation
(pro forma or otherwise) of the Adjusted Borrowing Base Amount and (B) the deadline for the
delivery of the next Compliance Certificate pursuant to Section 6.02(a)), and (ii)
cause such Subsidiary to deliver such other documentation as the Administrative Agent may
reasonably request in connection with the foregoing, including, without limitation,
certified resolutions and other organizational and authorizing documents of such Subsidiary,
favorable opinions of counsel to such Subsidiary (which shall cover, among other things, the
legality, validity, binding effect and enforceability of the documentation referred to
above), all in form, content and scope reasonably satisfactory to the Administrative Agent.




(b) Release of Guarantors. Notwithstanding the requirements set forth in
Section 6.15(a), to the extent the Borrower provides a written request to the
Administrative Agent that a Guarantor be released from its Guaranties pursuant to the Credit
Documents in conjunction with the simultaneous or substantially simultaneous qualification
of such Guarantor as an Excluded Subsidiary or pursuant to a disposition permitted by
Section 7.05, then, following the Administrative Agent’s receipt of such notice (and
so long as no Default or Event of Default shall have occurred and be continuing on the date
of the Administrative Agent’s receipt of such notice), the Subsidiary Guarantors shall be
automatically released from their respective Guaranties pursuant to the Credit Documents (it
being understood and agreed that no Guarantor that owns a Borrowing Base Property shall be
released unless such Borrowing Base Property is first withdrawn from the Borrowing Base Pool
in accordance with Section 6.16).



Notwithstanding the foregoing the Obligations shall remain a senior unsecured obligation, pari
passu with all other senior unsecured Indebtedness of the Consolidated Parties.



6.16 Addition or Withdrawal of Borrowing Base Properties.




(a) Addition of Borrowing Base Properties. The Borrower may add Real Property
Assets to the Borrowing Base Property Pool without the consent of the Administrative Agent
so long as the Borrower shall have delivered to Administrative Agent a Borrowing Base
Certificate reflecting the addition of the subject Real Property Asset as a Borrowing Base
Property.




(b) Withdrawal of Borrowing Base Properties. The Borrower may withdraw Real
Property Assets from the Borrowing Base Property Pool without the consent of the
Administrative Agent so long as: (i) no Default or Event of Default has occurred and is
continuing or would occur from such withdrawal, (ii) no mandatory prepayment would be
required pursuant to Section 2.06(b) from such withdrawal, (iii) the Borrower shall
have given notice thereof to the Administrative Agent, together with a written request to
release the owner of the subject Borrowing Base Property, where appropriate, in accordance
with the provisions hereof (it being agreed that the owner of the subject Borrowing Base
Property will be released unless it is a Material Subsidiary after giving effect to such
release), (iv) the Administrative Agent shall have received a certificate signed by a
Responsible Officer of the Borrower certifying and demonstrating that (A) on a Pro Forma
Basis, after giving effect to such withdrawal, the Credit Parties would be in compliance
with all financial covenants contained in Section 6.12, (B) immediately prior to the
withdrawal and immediately thereafter, all representations and warranties made by the Credit
Parties in the Article V and each other Credit Document are true and correct in all
material respects (except to the extent any such representation and warranty is qualified by
materiality or reference to Material Adverse Effect, in which case, such representation and
warranty shall be true, correct and complete in all respects) on of such date (except for
any such representation and warranty that by its terms is made only as of an earlier date,
which representation and warranty shall have been true and correct as of such earlier date),
and (v) the Borrower shall have delivered to Administrative Agent a Borrowing Base
Certificate reflecting the withdrawal of the subject Real Property Asset as a Borrowing Base
Property.



6.17 Compliance With Material Contracts.



Each Credit Party shall, and shall cause each of its Subsidiaries to, perform and observe all
the material terms and provisions of each Material Contract to be performed or observed by it,
maintain each such Material Contract in full force and effect, enforce each such Material Contract
in accordance with its terms, take all such action to such end as may be from time to time
reasonably requested by the Administrative Agent and, upon the reasonable request of the
Administrative Agent, make to each other party to each such Material Contract such demands and
requests for information and reports or for action as any Credit Party is entitled to make under
such Material Contract.



6.18 Minimum Aggregate Capitalized Value; Minimum Adjusted Borrowing Base Amount.



Each Credit Party shall, and shall cause each of its Subsidiaries to, ensure that (i) the
Aggregate Capitalized Value Amount shall be at all times before the six (6) month anniversary of
the Closing Date, equal to or greater than Two Hundred Fifty Million Dollars ($250,000,000) and
(ii) at all times thereafter, the Adjusted Borrowing Base Amount shall be equal to or greater than
$200,000,000.



6.19 Further Assurances.



Each Credit Party shall, promptly upon request by the Administrative Agent, or any Lender
through the Administrative Agent, (a) correct any material defect or error that may be discovered
in any Credit Document or in the execution, acknowledgment, filing or recordation thereof, and (b)
do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any
and all such further acts, deeds, certificates, assurances and other instruments as the
Administrative Agent, or any Lender through the Administrative Agent, may reasonably require from
time to time in order to carry out more effectively the purposes of the Credit Documents.



6.20 Post-Closing Covenant.



Within sixty (60) days after the Closing Date (or such extended period of time as agreed to by
the Administrative Agent), the Borrower shall deliver to the Administrative Agent copies of filed
stamped Lien releases evidencing the release of any Liens held on any Borrowing Base Property
immediately prior to the effectiveness of this Credit Agreement.



ARTICLE VII

NEGATIVE COVENANTS




Each Credit Party hereby covenants and agrees that until the Obligations, together with
interest, fees and other obligations hereunder, have been paid in full and the Revolving
Commitments hereunder shall have terminated:



7.01 Liens.



No Credit Party shall, nor shall they permit any Subsidiary to, at any time, create, incur,
assume or suffer to exist any Lien upon any of its assets or revenues, whether now owned or
hereafter acquired, other than the following:




(a) Liens pursuant to any Credit Document;




(b) Liens (other than Liens imposed under ERISA) for taxes, assessments or governmental
charges or levies (including pledges or deposits in the ordinary course of business in
connection with workers’ compensation, unemployment insurance and other social security
legislation) not yet due and payable or which are being contested in good faith and by
appropriate proceedings diligently conducted, if adequate reserves with respect thereto are
maintained on the books of the applicable Person in accordance with GAAP or bonds are posted
in accordance with applicable law;




(c) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics,
materialmen and suppliers and other Liens imposed by law or pursuant to customary
reservations or retentions of title arising in the ordinary course of business; provided,
that such Liens secure only amounts not overdue for more than thirty (30) days or are being
contested in good faith by appropriate proceedings for which adequate reserves determined in
accordance with GAAP have been established;




(d) deposits to secure the performance of bids, trade contracts and leases (other than
Indebtedness not otherwise permitted pursuant to Section 7.02), statutory
obligations, surety and appeal bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business;




(e) zoning restrictions, easements, rights-of-way, restrictions, restrictive covenants,
use restrictions, radius restrictions, options to purchase at fair market value, rights of
first refusal or first offer, encroachments, protrusions, sets of facts that an accurate and
up to date survey would show and other similar encumbrances affecting real property which do
not in any case materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the applicable Person;
provided, however, any zoning or other restrictions (including, without limitation,
restrictive covenants) that limit the use of the applicable real property to a Health Care
Facility shall by definition not be a violation of this Section 7.01(e);




(f) Liens securing judgments for the payment of money (or appeal or other surety bonds
relating to such judgments) not constituting an Event of Default under
Section 8.01(h);




(g) leases or subleases (and the rights of the tenants thereunder) granted to others
not interfering in any material respect with the business of any Credit Party or any
Subsidiary;




(h) any interest of title of a lessor under, and Liens arising from UCC financing
statements (or equivalent filings, registrations or agreements in foreign jurisdictions)
relating to, leases permitted by this Agreement;




(i) Liens in existence as of the Closing Date as set forth on Schedule 7.01 and
any renewals or extensions thereof; provided, that the property covered thereby is
not materially changed; and




(j) other Liens incurred in connection with Indebtedness as long as, after giving
effect thereto, the Credit Parties are in compliance with the financial covenants in
Section 6.12, on a Pro Forma Basis as if such Lien had been incurred as of the last
day of the most recent fiscal quarter for which financial statements have been delivered
pursuant to Section 6.01 (or if such Lien exists as of the Closing Date, as of
December 31, 2011); provided, that the Credit Parties may not grant a mortgage, deed
of trust, lien, pledge, encumbrance or other security interest, in each case, to secure
Indebtedness with respect to any Borrowing Base Property or the Capital Stock in any Credit
Party except in favor of the Lenders.



7.02 Indebtedness.



No Credit Party shall, nor shall they permit any Subsidiary to, directly or indirectly,
create, incur, assume or suffer to exist any Indebtedness, except:




(a) Indebtedness under the Credit Documents;




(b) Indebtedness in connection with intercompany Investments permitted under
Section 7.03;




(c) obligations (contingent or otherwise) existing or arising under any Swap Contract;
provided that (i) such obligations are (or were) entered into by such Person in the ordinary
course of business for the purpose of directly mitigating risks associated with liabilities,
commitments, investments, assets, or property held or reasonably anticipated by such Person,
or changes in the value of securities issued by such Person, and not for purposes of
speculation or taking a “market view”; and (ii) such Swap Contract does not contain any
provision exonerating the non-defaulting party from its obligation to make payments on
outstanding transactions to the defaulting party;




(d) without duplication, Guaranties by a Credit Party or any Subsidiary in respect of
any Indebtedness otherwise permitted hereunder;




(e) Indebtedness set forth in Schedule 7.02 (and renewals, refinancing and
extensions thereof); provided, that the amount of such Indebtedness is not increased
at the time of such refinancing, renewal or extension except by an amount equal to a
reasonable premium or other reasonable amount paid, and fees and expenses reasonably
incurred, in connection with such refinancing and by an amount equal to any existing
commitments utilized thereunder (for purposes of clarity, it is understood that Indebtedness
on Schedule 7.02 is included in calculating the financial covenants in
Section 6.12); and




(f) other Indebtedness (including any portion of any renewal, financing, or extension
of Indebtedness set forth in Schedule 7.02 to the extent such portion does not meet
the criteria set for the in the proviso of clause (e) above) provided, (i) after giving
effect thereto, the Credit Parties are in compliance with the financial covenants in
Section 6.12, on a Pro Forma Basis as if such Indebtedness had been incurred as of
the last day of the most recent fiscal quarter for which financial statements have been
delivered pursuant to Section 6.01 (or if such Indebtedness exists as of the Closing
Date, as of March 31, 2012) and (ii) the aggregate outstanding amount of Secured Recourse
Indebtedness shall not at any time exceed an amount equal to (A) fifteen percent (15%) of
Consolidated Total Asset Value until the last day of the fiscal quarter in which the first
anniversary of the Closing Date occurs and (b) ten percent (10%) of Consolidated Total Asset
Value thereafter.



7.03 Investments.



No Credit Party shall, nor shall they permit any Subsidiary to, directly or indirectly, make
any Investments, except:




(a) Investments held in the form of cash or Cash Equivalents;




(b) Investments in any Person that is a Credit Party prior to giving effect to such
Investment;




(c) Investments by any Subsidiary that is not a Credit Party in any other Subsidiary
that is not a Credit Party;




(d) Investments consisting of (i) extensions of credit in the nature of the performance
of bids, (ii) accounts receivable or notes receivable arising from the grant of trade
contracts and leases (other than credit) in the ordinary course of business, and
(iii) Investments received in satisfaction or partial satisfaction thereof from financially
troubled account debtors to the extent reasonably necessary in order to prevent or limit
loss;




(e) Guaranties permitted by Section 7.02;




(f) Investments existing as of the Closing Date and set forth in Schedule 7.03;
and




(g) Investments in or related to Healthcare Facilities and Investments as described in
Section 6.11 (including, without limitation, the purchase of Capital Stock and other
Investments of the type set forth in subclauses (i)-(iv) of this clause (g));
provided, however, that after giving effect to any such Investments, (i) the
aggregate amount of Investments consisting of unimproved land holdings shall not, at any
time, exceed 5% of Consolidated Total Asset Value, (ii) the aggregate amount of Investments
consisting of Mortgage Loans, notes receivables and mezzanine loans shall not, at any time,
exceed 15% of Consolidated Total Asset Value, (iii) the aggregate amount of Investments
consisting of construction in progress shall not, at any time, exceed 10% of Consolidated
Total Asset Value (iv) the aggregate amount of Investments in Unconsolidated Affiliates
shall not, at any time, exceed 10% of Consolidated Total Asset Value and (v) the aggregate
amount of Investments in Real Property Assets that are not Healthcare Facilities shall not,
at any time, exceed 15% of Consolidated Total Asset Value; provided, further, that
the aggregate amount of all Investments made pursuant to clauses (i), (ii), (iii), (iv) and
(v) above shall not, at any time, exceed 25% of Consolidated Total Asset Value.



7.04 Fundamental Changes.



No Credit Party shall, nor shall they permit any Subsidiary to, directly or indirectly, merge,
dissolve, liquidate, consolidate with or into another Person; provided, that,
notwithstanding the foregoing provisions of this Section 7.04:




(a) the Parent may merge or consolidate with any of its Subsidiaries (other than the
Borrower) provided that the Parent is the continuing or surviving Person;




(b) any Consolidated Subsidiary may merge or consolidate with any other Consolidated
Subsidiary; provided, that if (i) the Borrower is a party to such transaction, the
Borrower shall be the continuing or surviving person, (ii) if a Subsidiary Guarantor is
party to such transaction (but not the Borrower), such Subsidiary Guarantor shall be the
continuing or surviving Person and (iii) if the Borrower and a Subsidiary Guarantor are each
a party to such transaction, the Borrower shall be the continuing or surviving person;




(c) any Subsidiary Guarantor may be merged or consolidated with or into any other
Subsidiary Guarantor; and




(d) any Subsidiary that is not a Subsidiary Guarantor may dissolve, liquidate or wind
up its affairs at any time; provided, that such dissolution, liquidation or winding
up, as applicable, could not reasonably be expected to have a Material Adverse Effect.



7.05 Dispositions.



No Credit Party shall, nor shall they permit any Subsidiary to, directly or indirectly, make
any Disposition or enter into any agreement to make any Disposition, except:




(a) Dispositions of obsolete or worn out Property, whether now owned or hereafter
acquired, in the ordinary course of business;




(b) Dispositions of inventory in the ordinary course of business;




(c) Dispositions of equipment or Property not covered under clause (a) above to the
extent that (i) such Property is exchanged for credit against the purchase price of similar
replacement property or (ii) the proceeds of such Disposition are reasonably promptly
applied to the purchase price of such replacement Property.




(d) Dispositions of Property by any Subsidiary to a Credit Party or to a Wholly Owned
Subsidiary; provided, that if the transferor of such property is a Credit Party, the
transferee thereof must be a Credit Party;




(e) Dispositions permitted by Section 7.04;




(f) Dispositions by the Credit Parties and the Subsidiaries not otherwise permitted
under this Section 7.05; provided, that (i) at the time of such Disposition,
no Default or Event of Default exists and is continuing (that would not be cured by such
Disposition) or would result from such Disposition and (ii) after giving effect thereto, the
Credit Parties are in compliance with the financial covenants in Section 6.12, on a
Pro Forma Basis as if such Disposition had been incurred as of the last day of the most
recent fiscal quarter for which financial statements have been delivered pursuant to
Section 6.01;




(g) real estate leases entered into in the ordinary course of business; and




(h) Dispositions of a Borrowing Base Property so long as Borrower complies with the
provisions of Section 6.16.



Notwithstanding anything above, any Disposition pursuant to clauses (a) through (f) shall be
for fair market value.



7.06 Change in Nature of Business.



No Credit Party shall, nor shall they permit any Subsidiary to, engage in any material line of
business substantially different from those lines of business conducted by the Parent and its
Subsidiaries on the date hereof or any business substantially related or incidental thereto.



7.07 Transactions with Affiliates and Insiders.



No Credit Party shall, nor shall they permit any Subsidiary to, directly or indirectly, enter
into any transaction of any kind with any officer, director or Affiliate of the Parent, whether or
not in the ordinary course of business, other than on fair and reasonable terms substantially as
favorable to such Credit Party or Subsidiary as would be obtainable by such Credit Party or
Subsidiary at the time in a comparable arm’s length transaction with a Person other than a
director, officer or Affiliate; provided, that the foregoing restriction shall not apply to
transactions between or among the Credit Parties.



7.08 Organization Documents; Fiscal Year; Legal Name, State of Formation and Form of
Entity.



No Credit Party shall directly or indirectly:




(a) Amend, modify or change its Organization Documents in a manner materially adverse
to the Lenders;




(b) Make any material change in (i) accounting policies or reporting practices, except
as required by GAAP, FASB, the SEC or any other regulatory body, or (ii) its fiscal year;
and




(c) Without providing ten (10) days prior written notice to the Administrative Agent,
change its name, state of formation or form of organization.



7.09 Negative Pledges.



No Credit Party shall, nor shall they permit any Subsidiary to, directly or indirectly, enter
into, assume or otherwise be bound, by any Negative Pledge other than (i) any Negative Pledge
contained in an agreement entered into in connection with any Indebtedness that is permitted
pursuant to Section 7.02 or any Lien that is permitted pursuant to Section 7.01(e);
(ii) any Negative Pledge required by law; (iii) Negative Pledges contained in (x) the agreements
set forth on Schedule 7.09; (y) any agreement relating to the sale of any Subsidiary or any
assets pending such sale; provided, that in any such case, the Negative Pledge applies only
to the Subsidiary or the assets that are the subject of such sale; or (z) any agreement in effect
at the time any Person becomes a Subsidiary so long as such agreement was not entered into in
contemplation of such Person becoming a Subsidiary and such restriction only applies to such Person
and/or its assets, and (iv) customary provisions in leases, licenses and other contracts
restricting the assignment thereof, in each case as such agreements, leases or other contracts may
be amended from time to time and including any renewal, extension, refinancing or replacement
thereof; provided, that, with respect to any amendment, renewal, extension, refinancing or
replacement of an agreement described in clause (iii), such amendment, renewal, extension,
refinancing or replacement does not contain restrictions of the type prohibited by this Section
7.09 that are, in the aggregate, more onerous in any material respect on the Parent or any
Subsidiary than the restrictions, in the aggregate, in the original agreement.



7.10 Use of Proceeds.



No Credit Party shall, nor shall they permit any Subsidiary to, directly or indirectly, use
the proceeds of any Extension of Credit, whether directly or indirectly, and whether immediately,
incidentally or ultimately, to purchase or carry margin stock (within the meaning of Regulation U
of the FRB) or to extend credit to others for the purpose of purchasing or carrying margin stock or
to refund indebtedness originally incurred for such purpose.



7.11 Prepayments of Indebtedness.



If a Default or Event of Default exists and is continuing or would be caused thereby, no
Credit Party shall, nor shall they permit any Subsidiary to, directly or indirectly, prepay,
redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof in any
manner, or make any payment in violation of any subordination terms of, any Indebtedness, except
the prepayment of Extensions of Credit in accordance with the terms of this Agreement.



7.12 Restricted Payments.



Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation
(contingent or otherwise) to do so; provided, that, (i) the Parent and each Subsidiary may
declare or make, directly or indirectly, any Restricted Payment required to qualify and maintain
the Parent’s qualification as a REIT, (ii) so long as no Default under Section 8.01(a),
(f) or (g) shall have occurred and be continuing or would result therefrom, the
Parent and each Subsidiary may declare or make, directly or indirectly, any Restricted Payment
required to avoid the payment of federal or state income or excise tax, (iii) so long as no Default
shall have occurred and be continuing or would result therefrom, the Parent and each Subsidiary may
purchase, redeem, retire, acquire, cancel or terminate the Parent’s Capital Stock so long as after
giving effect thereto the Credit Parties are in compliance on a Pro Forma Basis with the
requirements of Section 6.12(e) and (iv) so long as no Default shall have occurred and be
continuing or would result therefrom, the Parent and each Subsidiary may make any payment on
account of any return of capital to the Parent’s stockholders, partners or members (or the
equivalent Person thereof).



7.13 Sanctions.



Permit any Loan or the proceeds of any Loan, directly or indirectly, (a) to be lent,
contributed or otherwise made available to fund any activity or business in any Designated
Jurisdiction; (b) to fund any activity or business of any Person located, organized or residing in
any Designated Jurisdiction or who is the subject of any Sanctions; or (c) in any other manner that
will result in any violation by any Person (including any Lender, Arranger, Administrative Agent,
L/C Issuer or Swing Line Lender) of any Sanctions.



ARTICLE VIII

EVENTS OF DEFAULT AND REMEDIES




8.01 Events of Default.



The occurrence and continuation of any of the following shall constitute an Event of Default:




(a) Non-Payment. Any Credit Party fails to pay when and as required to be paid
herein, (i) any amount of principal of any Loan or any L/C Obligation, or (ii) within three
(3) days after the same becomes due, any interest on any Loan or on any L/C Obligation, any
Unused Fee or any other amount payable hereunder or under any other Credit Document; or




(b) Specific Covenants. Any Credit Party fails to perform or observe any term,
covenant or agreement contained in (i) any of Sections 6.01 6.02 or
6.10 within five (5) days after the same becomes due or required or (ii) any of
Sections 6.03, 6.06, 6.11, 6.12, 6.14 or
6.15 or Article VII; or




(c) Other Defaults. Any Credit Party fails to perform or observe any other
covenant or agreement (not specified in Subsection (a) or (b) above)
contained in any Credit Document on its part to be performed or observed and such failure
continues for thirty (30) days; provided that with respect to any default (not specified in
Subsection (a) or (b) above), if (A) such default cannot be cured within
such 30-day period, (B) such default is susceptible of cure, and (C) the Credit Party is
proceeding with diligence and in good faith to cure such default, then such 30-day cure
period shall be extended to such date, not to exceed a total of sixty (60) days, as shall be
necessary for the Credit Party diligently to cure such default; or




(d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of any Credit Party
and contained in this Credit Agreement, in any other Credit Document, or in any document
delivered in connection herewith or therewith shall be incorrect or misleading in any
material respect when made or deemed made; or




(e) Cross-Default. (i) Any Credit Party or any Subsidiary (A) fails to perform
or observe (beyond the applicable grace or cure period with respect thereto, if any) any
Contractual Obligation if such failure could reasonably be expected to have a Material
Adverse Effect, (B) fails to make any payment when due (whether by scheduled maturity,
required prepayment, acceleration, demand, or otherwise and beyond the applicable grace or
cure period with respect thereto, if any) in respect of any Indebtedness (other than
Indebtedness hereunder and Indebtedness under Swap Contracts) or otherwise fails to observe
or perform any other agreement or condition relating to any such Indebtedness or contained
in any instrument or agreement evidencing, securing or relating thereto, or any other event
occurs, the effect of which event of default is to cause, or to permit the holder or holders
of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause,
with the giving of notice if required, such Indebtedness to be demanded or to become due or
to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer
to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated
maturity, or cash collateral in respect thereof to be demanded, in each case to the extent
such Indebtedness or other obligation is in an amount (including undrawn committed or
available amounts and including amounts owing to all creditors under any combined or
syndicated credit arrangement) of more than the Threshold Amount; or (ii) there occurs under
any Swap Contract an Early Termination Date (as defined in such Swap Contract) resulting
from (A) any event of default under such Swap Contract as to which any Credit Party is the
Defaulting Party (as defined in such Swap Contract) or (B) any Termination Event (as so
defined) under such Swap Contract as to which a Credit Party is an Affected Party (as so
defined) and, in either event, the Swap Termination Value owed by such Credit Party as a
result thereof is greater than the Threshold Amount; or




(f) Insolvency Proceedings, Etc. Any Credit Party institutes or consents to
the institution of any proceeding under any Debtor Relief Law, or makes an assignment for
the benefit of creditors; or applies for or consents to the appointment of any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for
all or any material part of its properties; or any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer is appointed and the appointment
continues undischarged or unstayed for ninety (90) calendar days; or any proceeding under
any Debtor Relief Law relating to such Person or to all or any material part of its property
is instituted without the consent of such Person and continues undismissed or unstayed for
ninety (90) calendar days, or an order for relief is entered in any such proceeding; or




(g) Inability to Pay Debts; Attachment. (i) Any Credit Party becomes unable or
admits in writing its inability or fails generally to pay its debts as they become due, or
(ii) any writ or warrant of attachment or execution or similar process in an amount in
excess of $15,000,000 is issued or levied against all or any material part of the properties
of any such Person and is not released, vacated or fully bonded within thirty (30) days
after its issue or levy; or




(h) Judgments. There is entered against a Credit Party or any Subsidiary
(i) any one or more final judgments or orders for the payment of money in an aggregate
amount exceeding $15,000,000 (to the extent not covered by independent third-party insurance
as to which the insurer does not dispute coverage), or (ii) any one or more non-monetary
final judgments that have, or could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are
commenced by any creditor upon such judgment or order, or (B) there is a period of ten (10)
consecutive days during which a stay of enforcement of such judgment, by reason of a pending
appeal or otherwise, is not in effect; or




(i) ERISA. (i) An ERISA Event occurs with respect to a Plan which has resulted
in liability of any Credit Party or any Subsidiary under Title IV of ERISA to the Plan or
the PBGC in an aggregate amount in excess of $15,000,000, or (ii) any Credit Party or any
ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period,
any installment payment with respect to its withdrawal liability under Section 4201 of ERISA
under a Multiemployer Plan in an aggregate amount in excess of $15,000,000; or




(j) Invalidity of Credit Documents; Guaranty. (i) Any Credit Document, at any
time after its execution and delivery and for any reason other than as expressly permitted
hereunder or as a result of satisfaction in full of all the Obligations, ceases to be in
full force and effect; or any Credit Party contests in any manner the validity or
enforceability of any Credit Document; or any Credit Party denies that it has any or further
liability or obligation under any Credit Document, or purports to revoke, terminate or
rescind any Credit Document; or (ii) except as the result of or in connection with a
dissolution, merger or disposition of a Subsidiary Guarantor not prohibited by the terms of
this Credit Agreement, the Guaranty shall cease to be in full force and effect, or any
Guarantor hereunder shall deny or disaffirm such Guarantor’s obligations under such
Guaranty, or any Guarantor shall default in the due performance or observance of any term,
covenant or agreement on its part to be performed or observed pursuant to the Guaranty; or




(k) Change of Control. There occurs any Change of Control.



8.02 Remedies Upon Event of Default.



If any Event of Default occurs and is continuing, the Administrative Agent shall, at the
request of, or may, with the consent of, the Required Lenders, upon written notice to the Borrower
in any instance, take any or all of the following actions:




(a) declare the commitment of each Lender to make Loans and any obligation of the L/C
Issuer to make L/C Credit Extensions to be terminated, whereupon such commitments and
obligation shall be terminated;




(b) declare the unpaid principal amount of all outstanding Loans, all interest accrued
and unpaid thereon, and all other amounts owing or payable hereunder or under any other
Credit Document to be immediately due and payable, without presentment, demand, protest or
additional notice of any kind, all of which are hereby expressly waived by the Borrower;




(c) require that the Borrower Cash Collateralize the L/C Obligations (in an amount
equal to the then Outstanding Amount thereof); and




(d) exercise on behalf of itself and the Lenders all rights and remedies available to
it and the Lenders under the Credit Documents or applicable law;



provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Borrower under the Bankruptcy Code of the United States, the
obligation of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit
Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and
all interest and other amounts as aforesaid shall automatically become due and payable, and the
obligation of the Borrower to Cash Collateralize the L/C Obligations as aforesaid shall
automatically become effective, in each case without further act of the Administrative Agent or any
Lender.



8.03 Application of Funds.



After the exercise of remedies in accordance with the provisions of Section 8.02 (or
after the Loans have automatically become immediately due and payable and the L/C Obligations have
automatically been required to provide Cash Collateral as set forth in the proviso to
Section 8.02), any amounts received on account of the Obligations shall be applied by the
Administrative Agent in the following order:



First, to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (including Attorney Costs and amounts payable under Article III)
payable to the Administrative Agent in its capacity as such;



Second, to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal and interest) payable to the Lenders (including Attorney
Costs and amounts payable under Article III), ratably among the Lenders in proportion to
the amounts described in this clause Second payable to them;



Third, to payment of that portion of the Obligations constituting accrued and unpaid
interest on the Loans and L/C Borrowings, ratably among the Lenders in proportion to the respective
amounts described in this clause Third payable to them;



Fourth, to (a) payment of that portion of the Obligations constituting unpaid
principal of the Loans and L/C Borrowings and (b) the Administrative Agent for the account of the
L/C Issuer, to provide Cash Collateral for that portion of the L/C Obligations comprised of the
aggregate undrawn amount of Letters of Credit, ratably among such parties in proportion to the
respective amounts described in this clause Fourth held by them;



Fifth, to payment of that portion of the Obligations constituting obligations under
Swap Contracts between any Credit Party and any Lender or Affiliate of any Lender (including,
without limitation, payment of breakage, termination or other amounts owing in respect of any Swap
Contract between any Credit Party and any Lender, or any Affiliate of a Lender, to the extent such
Swap Contract is permitted hereunder); and



Last, the balance, if any, after all of the Obligations have been indefeasibly paid in
full, to the Borrower or as otherwise required by Law.



Subject to Section 2.03(d), amounts used to provide Cash Collateral for the aggregate
undrawn amount of Letters of Credit pursuant to clause Fourth above shall be applied to satisfy
drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash
Collateral after all Letters of Credit have either been fully drawn or expired, such remaining
amount shall be applied to the other Obligations, if any, in the order set forth above.



ARTICLE IX

ADMINISTRATIVE AGENT




9.01 Appointment and Authorization of Administrative Agent.




(a) Each Lender hereby irrevocably appoints, designates and authorizes the
Administrative Agent to take such action on its behalf under the provisions of this Credit
Agreement and each other Credit Document and to exercise such powers and perform such duties
as are expressly delegated to it by the terms of this Credit Agreement or any other Credit
Document, together with such powers as are reasonably incidental thereto. Notwithstanding
any provision to the contrary contained elsewhere herein or in any other Credit Document,
the Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, nor shall the Administrative Agent have or be deemed to have any
fiduciary relationship with any Lender or participant, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this Credit
Agreement or any other Credit Document or otherwise exist against the Administrative Agent.
Without limiting the generality of the foregoing sentence, the use of the term “agent”
herein and in the other Credit Documents with reference to the Administrative Agent is not
intended to connote any fiduciary or other implied (or express) obligations arising under
agency doctrine of any applicable Law. Instead, such term is used merely as a matter of
market custom, and is intended to create or reflect only an administrative relationship
between independent contracting parties.




(b) The L/C Issuer shall act on behalf of the Lenders with respect to any Letters of
Credit issued by it and the documents associated therewith, and the L/C Issuer shall have
all of the benefits and immunities (i) provided to the Administrative Agent in this
Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in
connection with Letters of Credit issued by it or proposed to be issued by it and the
applications and agreements for letters of credit pertaining to such Letters of Credit as
fully as if the term “Administrative Agent” as used in this Article IX and
in the definition of “Agent-Related Person” included the L/C Issuer with respect to
such acts or omissions, and (ii) as additionally provided herein with respect to the L/C
Issuer.



9.02 Delegation of Duties.



The Administrative Agent may perform any and all of its duties and exercise its rights and
powers hereunder or under any other Loan Document by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform
any and all of its duties and exercise its rights and powers by or through their respective Related
Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the
Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their
respective activities in connection with the syndication of the credit facilities provided for
herein as well as activities as Administrative Agent. The Administrative Agent shall not be
responsible for the negligence or misconduct of any sub-agents except to the extent that a court of
competent jurisdiction determines in a final and non appealable judgment that the Administrative
Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.



9.03 Liability of Administrative Agent.



No Agent-Related Person shall (a) be liable for any action taken or omitted to be taken by any
of them under or in connection with this Credit Agreement or any other Credit Document or the
transactions contemplated hereby (except for its own gross negligence or willful misconduct in
connection with its duties expressly set forth herein), or (b) be responsible in any manner to any
Lender or participant for any recital, statement, representation or warranty made by any Credit
Party or any officer thereof, contained herein or in any other Credit Document, or in any
certificate, report, statement or other document referred to or provided for in, or received by the
Administrative Agent under or in connection with, this Credit Agreement or any other Credit
Document, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Credit
Agreement or any other Credit Document, or for any failure of any Credit Party or any other party
to any Credit Document to perform its obligations hereunder or thereunder. No Agent-Related Person
shall be under any obligation to any Lender or participant to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions of, this Credit
Agreement or any other Credit Document, or to inspect the properties, books or records of any
Credit Party or any Affiliate thereof.



9.04 Reliance by Administrative Agent.




(a) The Administrative Agent shall be entitled to rely, and shall be fully protected in
relying, upon any writing, communication, signature, resolution, representation, notice,
consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone message,
electronic mail message, statement or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person or Persons,
and upon advice and statements of legal counsel (including counsel to any Credit Party),
independent accountants and other experts selected by the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to take any action
under any Credit Document unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate and, if it so requests, it shall first be
indemnified to its satisfaction by the Lenders against any and all liability and expense
that may be incurred by it by reason of taking or continuing to take any such action. The
Administrative Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Credit Agreement or any other Credit Document in accordance with a
request or consent of the Required Lenders (or such greater number of Lenders as may be
expressly required hereby in any instance) and such request and any action taken or failure
to act pursuant thereto shall be binding upon all the Lenders.




(b) For purposes of determining compliance with the conditions specified in
Section 4.01, each Lender that has signed this Credit Agreement shall be deemed to
have consented to, approved or accepted or to be satisfied with, each document or other
matter required thereunder to be consented to or approved by or acceptable or satisfactory
to a Lender unless the Administrative Agent shall have received notice from such Lender
prior to the proposed Closing Date specifying its objection thereto.



9.05 Notice of Default.



The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of
any Default or Event of Default, except with respect to defaults in the payment of principal,
interest and fees required to be paid to the Administrative Agent for the account of the Lenders,
unless the Administrative Agent shall have received written notice from a Lender or the Borrower
referring to this Credit Agreement, describing such Default or Event of Default and stating that
such notice is a “notice of default.” The Administrative Agent will notify the Lenders of its
receipt of any such notice. The Administrative Agent shall take such action with respect to such
Default or Event of Default as may be directed by the requisite Lenders in accordance herewith;
provided, however, that unless and until the Administrative Agent has received any
such direction, the Administrative Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of Default as it shall deem
advisable or in the best interest of the Lenders.



9.06 Credit Decision; Disclosure of Confidential Information by Administrative Agent.



Each Lender acknowledges that no Agent-Related Person has made any representation or warranty
to it, and that no act by the Administrative Agent hereafter taken, including any consent to and
acceptance of any assignment or review of the affairs of any Credit Party or any Affiliate thereof,
shall be deemed to constitute any representation or warranty by any Agent-Related Person to any
Lender as to any matter, including whether Agent-Related Persons have disclosed material
information in their possession (in each case, except to the extent the Administrative Agent has
confirmed to any Lender in writing the satisfaction of conditions to funding as of the Closing
Date). Each Lender represents to the Administrative Agent that it has, independently and without
reliance upon any Agent-Related Person and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of the Credit Parties and their
respective Subsidiaries, and all applicable bank or other regulatory Laws relating to the
transactions contemplated hereby, and made its own decision to enter into this Credit Agreement and
to extend credit to the Borrower and the other Credit Parties hereunder. Each Lender also
represents that it will, independently and without reliance upon any Agent-Related Person and based
on such documents and information as it shall deem appropriate at the time, continue to make its
own credit analysis, appraisals and decisions in taking or not taking action under this Credit
Agreement and the other Credit Documents, and to make such investigations as it deems necessary to
inform itself as to the business, prospects, operations, property, financial and other condition
and creditworthiness of the Borrower and the other Credit Parties. Except for notices, reports and
other documents expressly required to be furnished to the Lenders by the Administrative Agent
herein, the Administrative Agent shall not have any duty or responsibility to provide any Lender
with any credit or other information concerning the business, prospects, operations, property,
financial and other condition or creditworthiness of any of the Credit Parties or any of their
respective Affiliates that may come into the possession of any Agent-Related Person.



9.07 [Reserved].



9.08 Administrative Agent in its Individual Capacity.



Bank of America and its Affiliates may make loans to, issue letters of credit for the account
of, accept deposits from, acquire equity interests in and generally engage in any kind of banking,
trust, financial advisory, underwriting or other business with each of the Credit Parties and their
respective Affiliates as though Bank of America were not the Administrative Agent or the L/C Issuer
hereunder and without notice to or consent of the Lenders. The Lenders acknowledge that, pursuant
to such activities, Bank of America or its Affiliates may receive information regarding any Credit
Party or its Affiliates (including information that may be subject to confidentiality obligations
in favor of such Credit Party or such Affiliate) and acknowledge that the Administrative Agent
shall be under no obligation to provide such information to them. With respect to its Loans, Bank
of America shall have the same rights and powers under this Credit Agreement as any other Lender
and may exercise such rights and powers as though it were not the Administrative Agent or the L/C
Issuer, and the terms “Lender” and “Lenders” include Bank of America in its
individual capacity.



9.09 Successor Administrative Agent.



The Administrative Agent may resign as Administrative Agent upon thirty (30) days’ notice to
the Lenders; provided, that any such resignation by Bank of America shall also constitute
its resignation as L/C Issuer and Swing Line Lender. If the Administrative Agent resigns under
this Credit Agreement, the Required Lenders shall appoint from among the Lenders a successor
administrative agent for the Lenders, which successor administrative agent shall be consented to by
the Borrower at all times other than during the existence of an Event of Default (which consent of
the Borrower shall not be unreasonably withheld or delayed). If no successor administrative agent
is appointed prior to the effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Lenders and the Borrower, a successor
administrative agent from among the Lenders. Upon the acceptance of its appointment as successor
administrative agent hereunder, the Person acting as such successor administrative agent shall
succeed to all the rights, powers and duties of the retiring Administrative Agent, L/C Issuer and
Swing Line Lender and the respective terms “Administrative Agent,” “L/C Issuer” and “Swing Line
Lender” thereafter shall mean such successor administrative agent, Letter of Credit issuer and
swing line lender, and the retiring Administrative Agent’s appointment, powers and duties as
Administrative Agent shall be terminated and the retiring L/C Issuer’s and Swing Line Lender’s
rights, powers and duties as such shall be terminated, without any other or further act or deed on
the part of such retiring L/C Issuer or Swing Line Lender or any other Lender, other than the
obligation of the successor L/C Issuer to issue letters of credit in substitution for the Letters
of Credit, if any, outstanding at the time of such succession or to make other arrangements
satisfactory to the retiring L/C Issuer to effectively assume the obligations of the retiring L/C
Issuer with respect to such Letters of Credit. After any retiring Administrative Agent’s
resignation hereunder as Administrative Agent, the provisions of this Article IX and
Section 10.04 shall inure to its benefit as to any actions taken or omitted to be taken by
it while it was Administrative Agent under this Credit Agreement. If no successor administrative
agent has accepted appointment as Administrative Agent by the date thirty (30) days following a
retiring Administrative Agent’s notice of resignation, the retiring Administrative Agent’s
resignation shall nevertheless thereupon become effective and the Lenders shall perform all of the
duties of the Administrative Agent hereunder until such time, if any, as the Required Lenders
appoint a successor agent as provided for above.



9.10 Administrative Agent May File Proofs of Claim.



In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any
Credit Party, the Administrative Agent (irrespective of whether the principal of any Loan or L/C
Obligation shall then be due and payable as herein expressed or by declaration or otherwise and
irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall
be entitled and empowered, by intervention in such proceeding or otherwise:




(a) to file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans, L/C Obligations and all other Obligations (other than
obligations under Swap Contracts to which the Administrative Agent is not a party) that are
owing and unpaid and to file such other documents as may be necessary or advisable in order
to have the claims of the Lenders and the Administrative Agent (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Lenders and the
Administrative Agent and their respective agents and counsel and all other amounts due the
Lenders and the Administrative Agent under Sections 2.03(i), 2.09 and
10.04) allowed in such judicial proceeding; and




(b) to collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same;



and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender to make such payments to the
Administrative Agent and, in the event that the Administrative Agent shall consent to the making of
such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its
agents and counsel, and any other amounts due the Administrative Agent under Sections 2.09
and 10.04.



Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or
consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement,
adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the
Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.



9.11 Guaranty Matters.



The Lenders irrevocably authorize the Administrative Agent, at its option and in its
discretion to release any Guarantor from its obligations under the Guaranty if such Person
(a) ceases to be a Subsidiary as a result of a transaction permitted hereunder, (b) no longer is
required to be a Guarantor pursuant to Section 6.15, or (c) has been designated as an
Excluded Subsidiary (in each case, a “Release”). Notwithstanding the foregoing, to the
extent that following any such Release, any Real Property Asset owned by an otherwise to be
released Guarantor that is obligated in respect of outstanding recourse debt for Indebtedness shall
not be deemed a Borrowing Base Property hereunder. Upon request by the Administrative Agent at any
time, the Required Lenders will confirm in writing the authority of the Administrative Agent to
release any Guarantor from its obligations hereunder pursuant to this Section 9.11. Upon
the release of any Guarantor pursuant to this Section 9.11, the Administrative Agent shall
(to the extent applicable) deliver to the Credit Parties, upon the Credit Parties’ request and at
the Credit Parties’ expense, such documentation as is reasonably necessary to evidence the release
of such Guarantor from its obligations under the Credit Documents.



9.12 Other Agents; Arrangers and Managers.



None of the Lenders or other Persons identified on the facing page or signature pages of this
Credit Agreement as a “syndication agent,” “documentation agent,” “co-agent,” “book manager,” “lead
manager,” “arranger,” “lead arranger” or “co-arranger” shall have any right, power, obligation,
liability, responsibility or duty under this Credit Agreement other than, in the case of such
Lenders, those applicable to all Lenders as such. Without limiting the foregoing, none of the
Lenders or other Persons so identified shall have or be deemed to have any fiduciary relationship
with any Lender. Each Lender acknowledges that it has not relied, and will not rely, on any of the
Lenders or other Persons so identified in deciding to enter into this Credit Agreement or in taking
or not taking action hereunder.



ARTICLE X

MISCELLANEOUS




10.01 Amendments, Etc.



No amendment or waiver of, or any consent to deviation from, any provision of this Credit
Agreement or any other Credit Document shall be effective unless in writing and signed by the
Borrower, the Guarantors (if applicable) and the Required Lenders and acknowledged by the
Administrative Agent, and each such amendment, waiver or consent shall be effective only in the
specific instance and for the specific purpose for which it is given; provided,
however, that:




(a) unless also signed by each Lender directly affected thereby, no such amendment,
waiver or consent shall:




(i) extend or increase the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to Section 8.02), it being understood that
the amendment or waiver of an Event of Default or a mandatory reduction or a
mandatory prepayment in Commitments shall not be considered an increase in
Commitments,




(ii) waive non-payment or postpone any date fixed by this Credit Agreement or
any other Credit Document for any payment of principal, interest, fees or other
amounts due to any Lender hereunder or under any other Credit Document, or




(iii) reduce the principal of, or the rate of interest specified herein on, any
Loan or L/C Borrowing, or any fees or other amounts payable hereunder or under any
other Credit Document; provided, however, that only the consent of
the Required Lenders shall be necessary (A) to amend the definition of “Default
Rate” or to waive any obligation of the Borrower to pay interest at the Default Rate
or (B) to amend any financial covenant hereunder (or any defined term used therein)
even if the effect of such amendment would be to reduce the rate of interest on any
Loan or L/C Borrowing or to reduce any fee payable hereunder,




(b) unless also signed by each Lender, no such amendment, waiver or consent shall:




(i) change any provision of this Credit Agreement regarding pro rata sharing or
pro rata funding with respect to (A) the making of advances (including
participations), (B) the manner of application of payments or prepayments of
principal, interest, or fees, (C) the manner of application of reimbursement
obligations from drawings under Letters of Credit, or (D) the manner of reduction of
commitments and committed amounts,




(ii) change any provision of this Section 10.01 or the definition of
“Required Lenders” or any other provision hereof specifying the number or percentage
of Lenders required to amend, waive or otherwise modify any rights hereunder or make
any determination or grant any consent hereunder,




(iii) release the Parent, Borrower or all or substantially all of the
Subsidiary Guarantors from their obligations hereunder (other than as provided
herein or as appropriate in connection with transactions permitted hereunder); or




(iv) amend, modify or waive Section 4.01 if the effect of such
amendment, modification or waiver is to require the Lenders to make Loans when such
Lenders would not otherwise be required to do so;




(c) unless also signed by the L/C Issuer, no such amendment, waiver or consent shall
affect the rights or duties of the L/C Issuer under this Credit Agreement or any Letter of
Credit Application relating to any Letter of Credit issued or to be issued by it;




(d) unless also signed by the Swing Line Lender, no such amendment, waiver or consent
shall affect the rights or duties of the Swing Line Lender under this Credit Agreement; and




(e) unless also signed by the Administrative Agent, no such amendment, waiver or
consent shall affect the rights or duties of the Administrative Agent under this Credit
Agreement or any other Credit Document;



provided, however, that notwithstanding anything to the contrary contained herein,
(i) no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or
consent hereunder, except that, without the prior written consent of such Lender, (A) no Commitment
of such Lender may be increased or extended, (B) the terms and conditions of this proviso may not
be amended or otherwise modified and (C) no other amendment or other modification to this Agreement
or any Note that would disproportionately affect a “Defaulting Lender” may be effective, (ii) each
Lender is entitled to vote as such Lender sees fit on any bankruptcy or insolvency reorganization
plan that affects the Loans, (iii) each Lender acknowledged that the provisions of Section 1126(c)
of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth
herein and (iv) the Required Lenders may consent to allow a Credit Party to use cash collateral in
the context of a bankruptcy or insolvency proceeding.



10.02 Notices and Other Communications; Facsimile Copies.




(a) General. Unless otherwise expressly provided herein, all notices and other
communications provided for hereunder shall be in writing (including by facsimile
transmission). All such written notices shall be mailed certified or registered mail, faxed
or delivered to the applicable address, facsimile number or (subject to
Subsection (c) below) electronic mail address, and all notices and other
communications expressly permitted hereunder to be given by telephone shall be made to the
applicable telephone number, as follows:




(i) if to any Credit Party, the Administrative Agent, the L/C Issuer or the
Swing Line Lender, to the address, facsimile number, electronic mail address or
telephone number specified for such Person on Schedule 10.02 or to such
other address, facsimile number, electronic mail address or telephone number as
shall be designated by such party in a notice to the other parties; and




(ii) if to any other Lender, to the address, facsimile number, electronic mail
address or telephone number specified in its Administrative Questionnaire or to such
other address, facsimile number, electronic mail address or telephone number as
shall be designated by such party in a notice to any Credit Party, the
Administrative Agent, the L/C Issuer and the Swing Line Lender.



Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall
be deemed to have been given when received; notices sent by facsimile shall be deemed to have been
given when sent (except that, if not given during normal business hours for the recipient, shall be
deemed to have been given at the opening of business on the next business day for the recipient).
Notices delivered through electronic communications to the extent provided in
Subsection (b) below, shall be effective as provided in such Subsection (b).




(b) Electronic Communications. Notices and other communications to the Lenders
hereunder may be delivered or furnished by electronic communication (including e-mail and
Internet or intranet websites) pursuant to procedures approved by the Administrative Agent;
provided, that the foregoing shall not apply to notices to any Lender pursuant to
Article II if such Lender has notified the Administrative Agent that it is incapable of
receiving notices under such Article by electronic communication. The Administrative Agent
or the Borrower may, in its respective discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to procedures approved
by it; provided, that approval of such procedures may be limited to particular
notices or communications.




(c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE
AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER
MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR
OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS
MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no
event shall the Administrative Agent or any of its Related Parties (collectively, the
“Agent Parties”) have any liability to any Credit Party, any Lender, the L/C Issuer
or any other Person for losses, claims, damages, liabilities or expenses of any kind
(whether in tort, contract or otherwise) arising out of the Borrower’s or the Administrative
Agent’s transmission of Borrower Materials through the Internet, except to the extent that
such losses, claims, damages, liabilities or expenses are determined by a court of competent
jurisdiction by a final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Agent Party; provided, however,
that in no event shall any Agent Party have any liability to any Credit Party, any Lender,
the L/C Issuer or any other Person for indirect, special, incidental, consequential or
punitive damages (as opposed to direct or actual damages).




(d) Effectiveness of Facsimile Documents and Signatures. Credit Documents may
be transmitted and/or signed by facsimile. The effectiveness of any such documents and
signatures shall, subject to applicable Law, have the same force and effect as
manually-signed originals and shall be binding on all Credit Parties, the Administrative
Agent and the Lenders. The Administrative Agent may also require that any such documents
and signatures be confirmed by a manually-signed original thereof; provided,
however, that the failure to request or deliver the same shall not limit the
effectiveness of any facsimile document or signature.




(e) Reliance by Administrative Agent and Lenders. The Administrative Agent and
the Lenders shall be entitled to rely and act upon any notices (including telephonic notices
permitted under Section 2.02(a)) purportedly given by or on behalf of the Borrower
even if (i) such notices were not made in a manner specified herein, were incomplete or were
not preceded or followed by any other form of notice specified herein, or (ii) the terms
thereof, as understood by the recipient, varied from any confirmation thereof. The Borrower
shall indemnify each Agent-Related Person and each Lender from all losses, costs, expenses
and liabilities resulting from the reliance by such Person on each notice purportedly given
by or on behalf of the Borrower. All telephonic notices to and other communications with
the Administrative Agent may be recorded by the Administrative Agent, and each of the
parties hereto hereby consents to such recording.




(f) Change of Address, Etc. Each of the Borrower, the Administrative Agent,
the L/C Issuer and the Swing Line Lender may change its address, telecopier or telephone
number for notices and other communications hereunder by notice to the other parties hereto.
Each other Lender may change its address, telecopier or telephone number for notices and
other communications hereunder by notice to the Borrower, the Administrative Agent, the L/C
Issuer and the Swing Line Lender. In addition, each Lender agrees to notify the
Administrative Agent from time to time to ensure that the Administrative Agent has on record
(i) an effective address, contact name, telephone number, telecopier number and electronic
mail address to which notices and other communications may be sent and (ii) accurate wire
instructions for such Lender.



10.03 No Waiver; Cumulative Remedies.



No failure by any Lender or the Administrative Agent to exercise, and no delay by any such
Person in exercising, any right, remedy, power or privilege hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.



Notwithstanding anything to the contrary contained herein or in any other Credit Document, the
authority to enforce rights and remedies hereunder and under the other Credit Documents against the
Credit Parties or any of them shall be vested exclusively in, and all actions and proceedings at
law in connection with such enforcement shall be instituted and maintained exclusively by, the
Administrative Agent in accordance with Section 8.02 for the benefit of all the Lenders;
provided, however, that the foregoing shall not prohibit (a) the Administrative
Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely
in its capacity as Administrative Agent) hereunder and under the other Credit Documents, (b) the
L/C Issuer or the Swing Line Lender from exercising the rights and remedies that inure to its
benefit (solely in its capacity as L/C Issuer or Swing Line Lender, as the case may be) hereunder
and under the other Credit Documents, (c) any Lender from exercising setoff rights in accordance
with Section 10.09 (subject to the terms of Section 2.12), or (d) any Lender from
filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a
proceeding relative to any Credit Party under any Debtor Relief Law; and provided,
further, that if at any time there is no Person acting as Administrative Agent hereunder
and under the other Credit Documents, then (i) the Required Lenders shall have the rights otherwise
ascribed to the Administrative Agent pursuant to Section 8.02 and (ii) in addition to the
matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject to
Section 2.12, any Lender may, with the consent of the Required Lenders, enforce any rights
and remedies available to it and as authorized by the Required Lenders.



10.04 Expenses; Indemnity; Damage Waiver.



(a) Costs and Expenses. The Credit Parties shall pay (i) all reasonable out-of-pocket
expenses incurred by the Administrative Agent and its Affiliates (including the reasonable fees,
charges and disbursements of counsel for the Administrative Agent) in connection with the
syndication of the credit facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Credit Agreement and the other Credit Documents or any
amendments, modifications or waivers of the provisions hereof or thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by the L/C Issuer in connection with the issuance, amendment,
renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all
reasonably incurred out-of-pocket expenses incurred by the Administrative Agent, any Lender or the
L/C Issuer (including the fees, charges and disbursements of any counsel for the Administrative
Agent, any Lender or the L/C Issuer), and shall pay all fees and time charges for attorneys who may
be employees of the Administrative Agent, any Lender or the L/C Issuer, in connection with the
enforcement or protection of its rights (A) in connection with this Agreement and the other Credit
Documents, including its rights under this Section, or (B) in connection with the Loans made or
Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans or Letters of Credit.



(b) Indemnification by the Credit Parties. The Credit Parties shall indemnify the
Administrative Agent (and any sub-agent thereof), each Lender and the L/C Issuer, and each Related
Party of any of the foregoing Persons (each such Person being called an “Indemnitee”)
against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities
and related expenses (including the fees, charges and disbursements of any counsel for any
Indemnitee), and shall indemnify and hold harmless each Indemnitee from all fees and time charges
and disbursements for attorneys who may be employees of any Indemnitee, incurred by any Indemnitee
or asserted against any Indemnitee by any Person (including any Credit Party) other than such
Indemnitee and its Related Parties arising out of, in connection with, or as a result of (i) the
execution or delivery of this Agreement, any other Credit Document or any agreement or instrument
contemplated hereby or thereby, the performance by the parties hereto of their respective
obligations hereunder or thereunder, the consummation of the transactions contemplated hereby or
thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and its Related
Parties only, the administration of this Agreement and the other Credit Documents (including in
respect of any matters addressed in Section 3.01), (ii) any Loan or Letter of Credit or the
use or proposed use of the proceeds therefrom (including any refusal by the L/C Issuer to honor a
demand for payment under a Letter of Credit if the documents presented in connection with such
demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged
presence or release of Hazardous Materials on or from any property owned or operated by the
Borrower or any Subsidiary, or any Environmental Liability related in any way to the Borrower or
any Subsidiary, or (iv) any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other theory, whether
brought by a third party or by any Credit Party, and regardless of whether any Indemnitee is a
party thereto, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE
COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNITEE; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by
final and nonappealable judgment to have resulted from the gross negligence or willful misconduct
of such Indemnitee or (y) result from a claim brought by any Credit Party against an Indemnitee for
breach in bad faith of such Indemnitee’s obligations hereunder or under any other Credit Document,
if such Credit Party has obtained a final and nonappealable judgment in its favor on such claim as
determined by a court of competent jurisdiction. Without limiting the provisions of Section
3.01(c), this Section 11.04(b) shall not apply with respect to Taxes other than any
Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.



(c) Reimbursement by Lenders. To the extent that the Borrower for any reason fails to
indefeasibly pay any amount required under Subsection (a) or (b) of this Section to
be paid by it to the Administrative Agent (or any sub-agent thereof), the L/C Issuer, the Swing
Line Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to
the Administrative Agent (or any such sub-agent), the L/C Issuer, the Swing Line Lender or such
Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought based on each Lender’s share of the
Total Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in
respect of a claim asserted by such Lender), such payment to be made severally among them based on
such Lenders’ Applicable Percentage (determined as of the time that the applicable unreimbursed
expense or indemnity payment is sought), and provided, further, that the unreimbursed
expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was
incurred by or asserted against the Administrative Agent (or any such sub-agent), the L/C Issuer or
the Swing Line Lender in its capacity as such, or against any Related Party of any of the foregoing
acting for the Administrative Agent (or any such sub-agent), the L/C Issuer or the Swing Line
Lender in connection with such capacity. The obligations of the Lenders under this
Subsection (c) are subject to the provisions of Section 2.11(3).



(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, no Credit Party shall assert, and each Credit Party hereby waives, and acknowledges
that no other Person shall have, any claim against any Indemnitee, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Credit Agreement, any other Credit
Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby
or thereby, any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee shall
be liable for any damages arising from the use by unintended recipients of any information or other
materials distributed to such unintended recipients by such Indemnitee through telecommunications,
electronic or other information transmission systems in connection with this Credit Agreement or
the other Credit Documents or the transactions contemplated hereby or thereby other than for direct
or actual damages resulting from the gross negligence or willful misconduct of such Indemnitee as
determined by a final and nonappealable judgment of a court of competent jurisdiction.



(e) Payments. All amounts due under this Section shall be payable not later than ten
Business Days after demand therefor.



(f) Survival. The agreements in this Section and the indemnity provisions of
Section 10.02(e) shall survive the resignation of the Administrative Agent, the L/C Issuer
and the Swing Line Lender, the replacement of any Lender, the termination of the Aggregate
Revolving Commitments and the repayment, satisfaction or discharge of all the other Obligations.



10.05 [Reserved].



10.06 Payments Set Aside.



To the extent that any payment by or on behalf of the Borrower is made to the Administrative
Agent or any Lender, or the Administrative Agent or any Lender exercises its right of set-off, and
such payment or the proceeds of such set-off or any part thereof is subsequently invalidated,
declared to be fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent or such Lender in its discretion) to be repaid
to a trustee, receiver or any other party, in connection with any proceeding under any Debtor
Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof
originally intended to be satisfied shall be revived and continued in full force and effect as if
such payment had not been made or such set-off had not occurred, and (b) each Lender severally
agrees to pay to the Administrative Agent upon demand its applicable share of any amount so
recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such
demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from
time to time in effect.



10.07 Successors and Assigns.




(a) Successors and Assigns Generally. The provisions of this Credit Agreement
and the other Credit Documents shall be binding upon and inure to the benefit of the parties
hereto and thereto and their respective successors and assigns permitted hereby, except that
neither the Borrower nor any other Credit Party may assign or otherwise transfer any of its
rights or obligations hereunder or thereunder without the prior written consent of the
Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of
its rights or obligations hereunder except (i) to an Eligible Assignee in accordance with
the provisions of Subsection (b) of this Section, (ii) by way of participation in accordance
with the provisions of Subsection (d) of this Section or (iii) by way of pledge or
assignment of a security interest subject to the restrictions of Subsection (f) of this
Section (and any other attempted assignment or transfer by any party hereto shall be null
and void). Nothing in this Credit Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby, Participants to the extent provided in Subsection (d) of this
Section and, to the extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent, the L/C Issuer and the Lenders) any legal or equitable right, remedy
or claim under or by reason of this Agreement.




(b) Assignments by Lenders. Any Lender may at any time assign to one or more
Eligible Assignees all or a portion of its rights and obligations under this Credit
Agreement and the other Credit Documents (including all or a portion of its Commitment and
the Loans (including for purposes of this Subsection (b), participations in L/C Obligations
and in Swing Line Loans) at the time owing to it); provided that (in each case with
respect to any credit facility) any such assignment shall be subject to the following
conditions:




(i) Minimum Amounts.




(A) in the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitment under any credit facility provided hereunder
and/or the Loans at the time owing to it (in each case with respect to any
credit facility provided hereunder) or contemporaneous assignments to
related Approved Funds that equal at least the amount specified in
paragraph (b)(i)(B) of this Section in the aggregate or in the case of an
assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no
minimum amount need be assigned; and




(B) in any case not described in Subsection (b)(i)(A) of this Section,
the aggregate amount of the Commitment (which for this purpose includes
Loans outstanding thereunder) or, if the applicable Commitment is not then
in effect, the principal outstanding balance of the Loans of the assigning
Lender subject to each such assignment, determined as of the date the
Assignment and Assumption with respect to such assignment is delivered to
the Administrative Agent or, if “Trade Date” is specified in the Assignment
and Assumption, as of the Trade Date, shall not be less than $10,000,000,
in the case of any assignment in respect of the revolving credit facility
provided hereunder, unless each of the Administrative Agent and, so long as
no Event of Default has occurred and is continuing, the Borrower otherwise
consents (each such consent not to be unreasonably withheld or delayed).




(ii) Proportionate Amounts. Each partial assignment shall be made as
an assignment of a proportionate part of all the assigning Lender’s rights and
obligations under this Agreement with respect to the Loans or the Commitment
assigned, except that this clause (ii) shall not apply to the Swing Line Lender’s
rights and obligations in respect of Swing Line Loans;




(iii) Required Consents. No consent shall be required for any
assignment except to the extent required by Subsection (b)(i)(B) of this Section
and, in addition:




(A) the consent of the Borrower (such consent not to be unreasonably
withheld or delayed) shall be required unless (1) an Event of Default has
occurred and is continuing at the time of such assignment or (2) such
assignment is to a Lender, an Affiliate of a Lender or an Approved Fund;
provided that the Borrower shall be deemed to have consented to any such
assignment unless it shall object thereto by written notice to the
Administrative Agent within five (5) Business Days after having received
notice thereof;




(B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for assignments in
respect of any Revolving Commitment if such assignment is to a Person that
is not a Lender with a Revolving Commitment, an Affiliate of such Lender or
an Approved Fund with respect to such Lender; and




(C) the consent of the L/C Issuer and the Swing Line Lender shall be
required for any assignment, unless such assignment is to an existing
Lender.




(iv) Assignment and Assumption. The parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Assumption,
together with a processing and recordation fee in the amount of Three Thousand Five
Hundred Dollars ($3,500); provided, however, that the Administrative Agent may, in
its sole discretion, elect to waive such processing and recordation fee in the case
of any assignment. The assignee, if it is not a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire.




(v) No Assignment to Certain Persons. No such assignment shall be made
(A) to the Parent or any of the Parent’s Affiliates or Subsidiaries, (B) to any
Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a
Lender hereunder, would constitute any of the foregoing Persons described in this
clause (B), (C) to a natural Person, or (D) to a publicly reporting or privately
held REIT with an investment concentration in healthcare assets.




(vi) Certain Additional Payments. In connection with any assignment of
rights and obligations of any Defaulting Lender hereunder, no such assignment shall
be effective unless and until, in addition to the other conditions thereto set forth
herein, the parties to the assignment shall make such additional payments to the
Administrative Agent in an aggregate amount sufficient, upon distribution thereof as
appropriate (which may be outright payment, purchases by the assignee of
participations or subparticipations, or other compensating actions, including
funding, with the consent of the Borrower and the Administrative Agent, the
applicable pro rata share of Loans previously requested but not funded by the
Defaulting Lender, to each of which the applicable assignee and assignor hereby
irrevocably consent), to (x) pay and satisfy in full all payment liabilities then
owed by such Defaulting Lender to the Administrative Agent, the L/C Issuer or any
Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as
appropriate) its full pro rata share of all Loans and participations in Letters of
Credit and Swing Line Loans in accordance with its Applicable Percentage.
Notwithstanding the foregoing, in the event that any assignment of rights and
obligations of any Defaulting Lender hereunder shall become effective under
applicable Law without compliance with the provisions of this paragraph, then the
assignee of such interest shall be deemed to be a Defaulting Lender for all purposes
of this Agreement until such compliance occurs.




Subject to acceptance and recording thereof by the Administrative Agent pursuant to
Subsection (c) of this Section, from and after the effective date specified in each
Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and,
to the extent of the interest assigned by such Assignment and Assumption, have the rights
and obligations of a Lender under this Credit Agreement, and the assigning Lender thereunder
shall, to the extent of the interest assigned by such Assignment and Assumption, be released
from its obligations under this Credit Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under this
Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to
the benefits of Sections 3.01, Section 3.04, Section 3.05 and Section
10.04 with respect to facts and circumstances occurring prior to the effective date of
such assignment); provided, that except to the extent otherwise expressly agreed by
the affected parties, no assignment by a Defaulting Lender will constitute a waiver or
release of any claim of any party hereunder arising from that Lender’s having been a
Defaulting Lender. Upon request, the Borrower (at its expense) shall execute and deliver a
Note to the assignee Lender. Any assignment or transfer by a Lender of rights or
obligations under this Credit Agreement that does not comply with this Subsection shall be
treated for purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with Subsection (d) of this Section.




(c) Register. The Administrative Agent, acting solely for this purpose as an
agent of the Borrower (and such agency being solely for tax purposes), shall maintain at the
Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it (or
the equivalent thereof in electronic form) and a register for the recordation of the names
and addresses of the Lenders, and the Commitments of, and principal amounts (and stated
interest) of the Loans and L/C Obligations owing to, each Lender pursuant to the terms
hereof from time to time (the “Register”). The entries in the Register shall be
conclusive absent manifest error, and the Borrower, the Administrative Agent and the Lenders
shall treat each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement. The Register shall be available
for inspection by the Borrower and any Lender, at any reasonable time and from time to time
upon reasonable prior notice.




(d) Participations. Any Lender may at any time, without the consent of, or
notice to, the Borrower or the Administrative Agent, sell participations to any Person
(other than a natural Person, a Defaulting Lender or the Parent or any of the Parent’s
Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such
Lender’s rights and/or obligations under this Credit Agreement (including all or a portion
of its Commitment and/or the Loans (including such Lender’s participations in L/C
Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s
obligations under this Credit Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of such
obligations, (iii) the Borrower, the Administrative Agent, the Lenders and the L/C Issuer
shall continue to deal solely and directly with such Lender in connection with such Lender’s
rights and obligations under this Credit Agreement and (iv) Borrower shall not be
responsible for any cost or expense of the Lenders or the Administrative Agent related to
any participation of the Loans or any increased cost or expense incurred by any Lender as a
result of such participation thereafter, except as expressly provided herein. For the
avoidance of doubt, each Lender shall be responsible for the indemnity under Section
10.04(c) without regard to the existence of any participation.




Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Credit Agreement and to
approve any amendment, modification or waiver of any provision of this Credit Agreement;
provided that such agreement or instrument may provide that such Lender will not,
without the consent of the Participant, agree to any amendment, waiver or other modification
described in the first proviso to Section 10.01 that affects such Participant. The
Borrower agrees that each Participant shall be entitled to the benefits of Section
3.01, Section 3.04 and Section 3.05 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to Subsection (b) of this
Section (it being understood that the documentation required under Section 3.01(e)
shall be delivered to the Lender who sells the participation) to the same extent as if it
were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this
Section; provided that such Participant (A) agrees to be subject to the provisions
of Section 3.06 and Section 10.16 as if it were an assignee under paragraph
(b) of this Section, (B) shall not be entitled to receive any greater payment under
Section 3.01 or Section 3.04, with respect to any participation, than the
Lender from whom it acquired the applicable participation would have been entitled to
receive, except to the extent such entitlement to receive a greater payment results from a
Change in Law that occurs after the Participant acquired the applicable participation, and
(C) shall not be entitled to any greater amounts under Section 3.01 or Section
3.04 than the applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to such
Participant is made with the Borrower’s prior written consent. Each Lender that sells a
participation agrees, at the Borrower’s request and expense, to use reasonable efforts to
cooperate with the Borrower to effectuate the provisions of Section 3.06 with
respect to any Participant. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 10.09 as though it were a Lender;
provided that such Participant agrees to be subject to Section 2.12 as
though it were a Lender. Each Lender that sells a participation shall, acting solely for
this purpose as an agent of the Borrower, maintain a register on which it enters the name
and address of each Participant and the principal amounts (and stated interest) of each
Participant’s interest in the Loans or other obligations under the Credit Documents (the
“Participant Register”); provided that no Lender shall have any obligation to
disclose all or any portion of the Participant Register (including the identity of any
Participant or any information relating to a Participant’s interest in any commitments,
loans, letters of credit or its other obligations under any Credit Document) to any Person
except to the extent that such disclosure is necessary to establish that such commitment,
loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c)
of the United States Treasury Regulations. The entries in the Participant Register shall be
conclusive absent manifest error, and such Lender shall treat each Person whose name is
recorded in the Participant Register as the owner of such participation for all purposes of
this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the
Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility
for maintaining a Participant Register.




(e) Certain Pledges. Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Credit Agreement (including under
its Note, if any) to secure obligations of such Lender, including any pledge or assignment
to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment
shall release such Lender from any of its obligations hereunder or substitute any such
pledgee or assignee for such Lender as a party hereto.




(f) Resignation as L/C Issuer or Swing Line Lender after Assignment.
Notwithstanding anything to the contrary contained herein, if at any time Bank of America
assigns all of its Revolving Commitment and Revolving Loans pursuant to Subsection (b)
above, Bank of America may, (i) upon thirty days’ notice to the Borrower and the Lenders,
resign as L/C Issuer and/or (ii) upon thirty days’ notice to the Borrower, resign as Swing
Line Lender. In the event of any such resignation as L/C Issuer or Swing Line Lender, the
Borrower shall be entitled to appoint from among the Lenders a successor L/C Issuer or Swing
Line Lender hereunder; provided, however, that no failure by the Borrower to appoint
any such successor shall affect the resignation of Bank of America as L/C Issuer or Swing
Line Lender, as the case may be. If Bank of America resigns as L/C Issuer, it shall retain
all the rights, powers, privileges and duties of the L/C Issuer hereunder with respect to
all Letters of Credit outstanding as of the effective date of its resignation as L/C Issuer
and all L/C Obligations with respect thereto (including the right to require the Lenders to
make Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to
Section 2.03(c)). If Bank of America resigns as Swing Line Lender, it shall retain
all the rights of the Swing Line Lender provided for hereunder with respect to Swing Line
Loans made by it and outstanding as of the effective date of such resignation, including the
right to require the Lenders to make Base Rate Loans or fund risk participations in
outstanding Swing Line Loans pursuant to Section 2.04(c). Upon the appointment of a
successor L/C Issuer and/or Swing Line Lender, (1) such successor shall succeed to and
become vested with all of the rights, powers, privileges and duties of the retiring L/C
Issuer or Swing Line Lender, as the case may be, and (2) the successor L/C Issuer shall
issue letters of credit in substitution for the Letters of Credit, if any, outstanding at
the time of such succession or make other arrangements satisfactory to Bank of America to
effectively assume the obligations of Bank of America with respect to such Letters of
Credit.



10.08 Confidentiality.



Each of the Administrative Agent and the Lenders agrees to maintain the confidentiality of
Confidential Information, except that Confidential Information may be disclosed (a) to its and its
Affiliates’ directors, officers, employees and agents, including accountants, legal counsel and
other advisors (it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Confidential Information and instructed to keep such
Confidential Information confidential); (b) to the extent requested by any regulatory authority or
self regulatory body; (c) to the extent required by applicable Law or regulations or by any
subpoena or similar legal process; (d) to any other party to this Credit Agreement; (e) in
connection with the exercise of any remedies hereunder or any suit, action or proceeding relating
to this Credit Agreement or the enforcement of rights hereunder (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential nature of such
Confidential Information and instructed to keep such Confidential Information confidential); (f)
subject to an agreement containing provisions substantially the same as those of this Section, to
(i) any Eligible Assignee of or Participant in, or any prospective Eligible Assignee of or
Participant in, any of its rights or obligations under this Credit Agreement or (ii) any direct or
indirect contractual counterparty or prospective counterparty (or such contractual counterparty’s
or prospective counterparty’s professional advisor) to any credit derivative transaction relating
to obligations of the Credit Parties; (g) with the consent of the Borrower; (h) to the extent such
Confidential Information (i) becomes publicly available other than as a result of a breach of this
Section or (ii) becomes available to the Administrative Agent or any Lender on a nonconfidential
basis from a source other than a Credit Party; (i) to the National Association of Insurance
Commissioners or any other similar organization (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such Confidential Information and
instructed to keep such Confidential Information confidential); or (j) to any nationally recognized
rating agency that requires access to a Lender’s or an Affiliate’s investment portfolio in
connection with ratings issued with respect to such Lender or Affiliate. In addition, the
Administrative Agent and the Lenders may disclose the existence of this Credit Agreement and
information about this Credit Agreement to market data collectors, similar service providers to the
lending industry, and service providers to the Administrative Agent and the Lenders in connection
with the administration and management of this Credit Agreement, the other Credit Documents, the
Commitments, and the Extension of Credit. Any Person required to maintain the confidentiality of
Confidential Information as provided in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to maintain the
confidentiality of such Confidential Information as such Person would accord to its own
confidential information. For the purposes of this Section, “Confidential Information”
means all information received from any Credit Party relating to any Credit Party, any of the other
Consolidated Parties, or its or their business, other than any such information that is available
to the Administrative Agent or any Lender on a nonconfidential basis prior to disclosure by any
Credit Party; provided, that, in the case of information received from a Credit Party after
the date hereof, such information is clearly identified in writing at the time of delivery as
confidential.



Each of the Administrative Agent, the Lenders and the L/C Issuer acknowledges that (a) the
Confidential Information may include material non-public information concerning the Credit Parties
or a Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use
of material non-public information and (c) it will handle such material non-public information in
accordance with applicable Law, including Federal and state securities Laws.



10.09 Set-off.



In addition to any rights and remedies of the Lenders provided by law, upon the occurrence and
during the continuance of any Event of Default, each Lender and each of its Affiliates are
authorized at any time and from time to time, without prior notice to the Borrower or any other
Credit Party, any such notice being waived by the Borrower (on their own behalf and on behalf of
each Credit Party) to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time held by, and other
indebtedness at any time owing by, such Lender or Affiliate to or for the credit or the account of
the respective Credit Parties against any and all Obligations owing to such Lender hereunder or
under any other Credit Document, now or hereafter existing, irrespective of whether or not the
Administrative Agent or such Lender shall have made demand under this Credit Agreement or any other
Credit Document and although such Obligations may be contingent or unmatured or denominated in a
currency different from that of the applicable deposit or indebtedness; provided, that in
the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so
set off shall be paid over immediately to the Administrative Agent for further application in
accordance with the provisions of Section 2.15 and, pending such payment, shall be
segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit
of the Administrative Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly
to the Administrative Agent a statement describing in reasonable detail the Obligations owing to
such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender,
the L/C Issuer and their respective Affiliates under this Section are in addition to other rights
and remedies (including other rights of setoff) that such Lender, the L/C Issuer or their
respective Affiliates may have. Each Lender and the L/C Issuer agrees to notify the Borrower and
the Administrative Agent promptly after any such setoff and application; provided, that the
failure to give such notice shall not affect the validity of such setoff and application.



10.10 Interest Rate Limitation.



Notwithstanding anything to the contrary contained in any Credit Document, the interest paid
or agreed to be paid under the Credit Documents shall not exceed the maximum rate of non-usurious
interest permitted by applicable Law (the “Maximum Rate”). If the Administrative Agent or
any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest
shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to
the Borrower. In determining whether the interest contracted for, charged, or received by the
Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted
by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or
premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c)
amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest
throughout the contemplated term of the Obligations hereunder.



10.11 Counterparts.



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



10.12 Integration.



This Credit Agreement, together with the other Credit Documents, comprises the complete and
integrated agreement of the parties on the subject matter hereof and thereof and supersedes all
prior agreements, written or oral, on such subject matter. In the event of any conflict between
the provisions of this Credit Agreement and those of any other Credit Document, the provisions of
this Credit Agreement shall control; provided, that the inclusion of specific supplemental
rights or remedies in favor of the Administrative Agent or the Lenders in any other Credit Document
shall not be deemed a conflict with this Credit Agreement. Each Credit Document was drafted with
the joint participation of the respective parties thereto and shall be construed neither against
nor in favor of any party, but rather in accordance with the fair meaning thereof.



10.13 Survival of Representations and Warranties.



All representations and warranties made hereunder and in any other Credit Document or other
document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive
the execution and delivery hereof and thereof. Such representations and warranties have been or
will be relied upon by the Administrative Agent and each Lender, regardless of any investigation
made by the Administrative Agent or any Lender or on their behalf and notwithstanding that the
Administrative Agent or any Lender may have had notice or knowledge of any Default or Event of
Default at the time of any Extension of Credit, and shall continue in full force and effect as long
as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of
Credit shall remain outstanding.



10.14 Severability.



If any provision of this Credit Agreement or the other Credit Documents is held to be illegal,
invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions
of this Credit Agreement and the other Credit Documents shall not be affected or impaired thereby
and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or
unenforceable provisions with valid provisions the economic effect of which comes as close as
possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a
provision in a particular jurisdiction shall not invalidate or render unenforceable such provision
in any other jurisdiction.



10.15 [Reserved].



10.16 Replacement of Lenders.



To the extent that Section 3.06(b) provides that the Borrower shall have the right to
replace a Lender as a party to this Credit Agreement, or if any Lender is a Defaulting Lender, the
Borrower may, upon notice to such Lender and the Administrative Agent, replace such Lender by
causing such Lender to assign its Commitment (with the related assignment fee to be paid by the
Borrower) pursuant to Section 10.07(b) to one or more Eligible Assignees procured by the
Borrower; provided, however, that if the Borrower elects to exercise such right
with respect to any Lender pursuant to such Section 3.06(b), they shall be obligated to
replace all Lenders that have made similar requests for compensation pursuant to
Section 3.01 or 3.04. The Borrower shall pay in full all principal, interest, fees
and other amounts owing to such Lender through the date of replacement (including any amounts
payable pursuant to Section 3.05). Any Lender being replaced shall execute and deliver an
Assignment and Assumption with respect to such Lender’s Commitment and outstanding Loans and
participations in L/C Obligations and Swing Line Loans.



10.17 No Advisory or Fiduciary Responsibility.



In connection with all aspects of each transaction contemplated hereby, the Borrower
acknowledges and agrees, and acknowledges its respective Affiliates’ understanding, that: (a) the
credit facility provided for hereunder and any related arranging or other services in connection
therewith (including in connection with any amendment, waiver or other modification hereof or of
any other Credit Document) are an arm’s-length commercial transaction between the Borrower and its
respective Affiliates, on the one hand, and the Administrative Agent and the Arranger, on the other
hand, and each Credit Party is capable of evaluating and understanding and understands and accepts
the terms, risks and conditions of the transactions contemplated hereby and by the other Credit
Documents (including any amendment, waiver or other modification hereof or thereof); (b) in
connection with the process leading to such transaction, the Administrative Agent and the Arranger
each is and has been acting solely as a principal and is not the financial advisor, agent or
fiduciary, for the Borrower or any of its respective Affiliates, stockholders, creditors or
employees or any other Person; (c) neither the Administrative Agent nor the Arranger has assumed or
will assume an advisory, agency or fiduciary responsibility in favor of the Borrower with respect
to any of the transactions contemplated hereby or the process leading thereto, including with
respect to any amendment, waiver or other modification hereof or of any other Credit Document
(irrespective of whether the Administrative Agent or the Arranger has advised or is currently
advising the Borrower or any of its respective Affiliates on other matters) and neither the
Administrative Agent nor the Arranger has any obligation to the Borrower or any of its respective
Affiliates with respect to the transactions contemplated hereby except those obligations expressly
set forth herein and in the other Credit Documents; (d) the Administrative Agent and the Arranger
and their respective Affiliates may be engaged in a broad range of transactions that involve
interests that differ from those of the Borrower and its respective Affiliates, and neither the
Administrative Agent nor the Arranger has any obligation to disclose any of such interests by
virtue of any advisory, agency or fiduciary relationship; and (e) the Administrative Agent and the
Arranger have not provided and will not provide any legal, accounting, regulatory or tax advice
with respect to any of the transactions contemplated hereby (including any amendment, waiver or
other modification hereof or of any other Credit Document) and each Credit Party has consulted its
own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate. Each
Credit Party hereby waives and releases, to the fullest extent permitted by law, any claims that it
may have against the Administrative Agent and the Arranger with respect to any breach or alleged
breach of agency or fiduciary duty.



10.18 Source of Funds.



Each of the Lenders hereby represents and warrants to the Borrower that at least one of the
following statements is an accurate representation as to the source of funds to be used by such
Lender in connection with the financing hereunder:




(a) no part of such funds constitutes assets allocated to any separate account
maintained by such Lender in which any employee benefit plan (or its related trust) has any
interest;




(b) to the extent that any part of such funds constitutes assets allocated to any
separate account maintained by such Lender, such Lender has disclosed to the Borrower the
name of each employee benefit plan whose assets in such account exceed ten percent (10%) of
the total assets of such account as of the date of such purchase (and, for purposes of this
Subsection (b), all employee benefit plans maintained by the same employer or employee
organization are deemed to be a single plan);




(c) to the extent that any part of such funds constitutes assets of an insurance
company’s general account, such insurance company has complied with all of the requirements
of the regulations issued under Section 401(c)(1)(A) of ERISA; or




(d) such funds constitute assets of one or more specific benefit plans that such Lender
has identified in writing to the Borrower.



As used in this Section, the terms “employee benefit plan” and “separate account” shall have the
respective meanings provided in Section 3 of ERISA.



10.19 GOVERNING LAW.




(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH
STATE, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES; PROVIDED, THAT THE
ADMINISTRATIVE AGENT AND EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.




(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT
DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK CITY OR
OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY
OF THIS AGREEMENT, THE BORROWER, THE CREDIT PARTIES, THE ADMINISTRATIVE AGENT AND EACH
LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE
JURISDICTION OF THOSE COURTS. THE BORROWER, THE CREDIT PARTIES, THE ADMINISTRATIVE AGENT
AND EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF
VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO
THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY CREDIT
DOCUMENT OR OTHER DOCUMENT RELATED THERETO. THE BORROWER, THE CREDIT PARTIES, THE
ADMINISTRATIVE AGENT AND EACH LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR
OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH STATE.



10.20 WAIVER OF RIGHT TO TRIAL BY JURY.



EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY CREDIT DOCUMENT OR IN ANY WAY CONNECTED WITH OR
RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY
CREDIT DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY
AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY
COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART
OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES
HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.



10.21 No Conflict.



To the extent there is any conflict or inconsistency between the provisions hereof and the
provisions of any other Credit Document, this Credit Agreement shall control.



10.22 USA Patriot Act Notice.



Each Lender and the Administrative Agent (for itself and not on behalf of any Lender) hereby
notifies the Borrower that pursuant to the requirements of the USA Patriot Act (Title III of Pub.
L. 107-56 (signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify
and record information that identifies the Borrower (and to the extent applicable, the other Credit
Parties), which information includes the name and address of the Borrower (and to the extent
applicable, the other Credit Parties) and other information that will allow such Lender or the
Administrative Agent, as applicable, to identify the Borrower (and to the extent applicable, the
other Credit Parties) in accordance with the Act. The Borrower shall, promptly following a request
by the Administrative Agent or any Lender, provide all documentation and other information that the
Administrative Agent or such Lender reasonably requests in order to comply with its ongoing
obligations under applicable “know your customer” and anti-money laundering rules and regulations,
including the Act.



10.23 Entire Agreement.



THIS CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.



ARTICLE XI

GUARANTY




11.01 The Guaranty.




(a) Each of the Guarantors hereby jointly and severally guarantees to the
Administrative Agent and each of the holders of the Obligations, as hereinafter provided, as
primary obligor and not as surety, the prompt payment of the Obligations (the
“Guaranteed Obligations”) in full when due (whether at stated maturity, as a
mandatory prepayment, by acceleration, as a mandatory Cash Collateralization or otherwise)
strictly in accordance with the terms thereof. The Guarantors hereby further agree that if
any of the Guaranteed Obligations are not paid in full when due (whether at stated maturity,
as a mandatory prepayment, by acceleration, as a mandatory Cash Collateralization or
otherwise), the Guarantors will, jointly and severally, promptly pay the same, without any
demand or notice whatsoever, and that in the case of any extension of time of payment or
renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when
due (whether at extended maturity, as a mandatory prepayment, by acceleration, as a
mandatory Cash Collateralization or otherwise) in accordance with the terms of such
extension or renewal.




(b) Notwithstanding any provision to the contrary contained herein, in any of the other
Credit Documents or other documents relating to the Obligations, the obligations of each
Guarantor under this Credit Agreement shall be limited to an aggregate amount equal to the
largest amount that would not render such obligations subject to avoidance under the Debtor
Relief Laws or any comparable provisions of any applicable state law.



11.02 Obligations Unconditional.



The obligations of the Guarantors under Section 11.01 are joint and several, absolute
and unconditional, irrespective of the value, genuineness, validity, regularity or enforceability
of any of the Credit Documents or other documents relating to the Obligations, or any substitution,
compromise, release, impairment or exchange of any other guarantee of or security for any of the
Guaranteed Obligations, and, to the fullest extent permitted by applicable Laws, irrespective of
any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or
defense of a surety or guarantor, it being the intent of this Section 11.02 that the
obligations of the Guarantors hereunder shall be absolute and unconditional under any and all
circumstances. Each Guarantor agrees that such Guarantor shall have no right of subrogation,
indemnity, reimbursement or contribution against the Borrower or any other Guarantor for amounts
paid under this Article XI until such time as the Obligations have been irrevocably paid in
full and the Commitments relating thereto have expired or been terminated. Without limiting the
generality of the foregoing, it is agreed that, to the fullest extent permitted by applicable Laws,
the occurrence of any one or more of the following shall not alter or impair the liability of any
Guarantor hereunder, which shall remain absolute and unconditional as described above:




(a) at any time or from time to time, without notice to any Guarantor, the time for any
performance of or compliance with any of the Guaranteed Obligations shall be extended, or
such performance or compliance shall be waived;




(b) any of the acts mentioned in any of the provisions of any of the Credit Documents,
or other documents relating to the Guaranteed Obligations or any other agreement or
instrument referred to therein shall be done or omitted;




(c) the maturity of any of the Guaranteed Obligations shall be accelerated, or any of
the Obligations shall be modified, supplemented or amended (with Borrower’s consent) in any
respect, or any right under any of the Credit Documents or other documents relating to the
Guaranteed Obligations, or any other agreement or instrument referred to therein shall be
waived or any other guarantee of any of the Guaranteed Obligations or any security therefor
shall be released, impaired or exchanged in whole or in part or otherwise dealt with;




(d) any Lien granted to, or in favor of, the Administrative Agent or any of the holders
of the Guaranteed Obligations as security for any of the Guaranteed Obligations shall fail
to attach or be perfected; or




(e) any of the Guaranteed Obligations shall be determined to be void or voidable
(including for the benefit of any creditor of any Guarantor) or shall be subordinated to the
claims of any Person (including any creditor of any Guarantor).



With respect to its obligations hereunder, each Guarantor hereby expressly waives diligence,
presentment, demand of payment, protest notice of acceptance of the guaranty given hereby and of
extensions of credit that may constitute Guaranteed Obligations, notices of amendments, waivers and
supplements to the Credit Documents and other documents relating to the Guaranteed Obligations, or
the compromise, release or exchange of collateral or security, and all notices whatsoever, and any
requirement that the Administrative Agent or any holder of the Guaranteed Obligations exhaust any
right, power or remedy or proceed against any Person under any of the Credit Documents or any other
documents relating to the Guaranteed Obligations or any other agreement or instrument referred to
therein, or against any other Person under any other guarantee of, or security for, any of the
Obligations.



11.03 Reinstatement.



Neither the Guarantors’ obligations hereunder nor any remedy for the enforcement thereof shall
be impaired, modified, changed or released in any manner whatsoever by an impairment, modification,
change, release or limitation of the liability of the Borrower, by reason of the Borrower’s
bankruptcy or insolvency or by reason of the invalidity or unenforceability of all or any portion
of the Guaranteed Obligations. The obligations of the Guarantors under this Article XI
shall be automatically reinstated if and to the extent that for any reason any payment by or on
behalf of any Person in respect of the Guaranteed Obligations is rescinded or must be otherwise
restored by any holder of any of the Obligations, whether as a result of any proceedings pursuant
to any Debtor Relief Law or otherwise, and each Guarantor agrees that it will indemnify the
Administrative Agent and each holder of Guaranteed Obligations on demand for all reasonable costs
and expenses (including all reasonable fees, expenses and disbursements of any law firm or other
counsel) incurred by the Administrative Agent or such holder of Guaranteed Obligations in
connection with such rescission or restoration, including any such costs and expenses incurred in
defending against any claim alleging that such payment constituted a preference, fraudulent
transfer or similar payment under any Debtor Relief Law; provided, that such
indemnification shall not be available to the extent that such costs and expenses are determined to
have resulted from the gross negligence or willful misconduct of the Administrative Agent or such
holder of the Guaranteed Obligations.



11.04 Certain Waivers.



Each Guarantor acknowledges and agrees that (a) the guaranty given hereby may be enforced
without the necessity of resorting to or otherwise exhausting remedies in respect of any other
security or collateral interests, and without the necessity at any time of having to take recourse
against the Borrower hereunder or against any collateral securing the Guaranteed Obligations or
otherwise, (b) it will not assert any right to require the action first be taken against the
Borrower or any other Person (including any other Guarantor) or pursuit of any other remedy or
enforcement any other right and (c) nothing contained herein shall prevent or limit action being
taken against the Borrower hereunder, under the other Credit Documents or the other documents and
agreements relating to the Guaranteed Obligations or from foreclosing on any security or collateral
interests relating hereto or thereto, or from exercising any other rights or remedies available in
respect thereof, if neither the Borrower nor the Guarantors shall timely perform their obligations,
and the exercise of any such rights and completion of any such foreclosure proceedings shall not
constitute a discharge of the Guarantors’ obligations hereunder unless as a result thereof, the
Guaranteed Obligations shall have been paid in full and the Commitments relating thereto shall have
expired or been terminated, it being the purpose and intent that the Guarantors’ obligations
hereunder be absolute, irrevocable, independent and unconditional under all circumstances.



11.05 Rights of Contribution.



The Guarantors hereby agree as among themselves that, in connection with payments made
hereunder, each Guarantor shall have a right of contribution from each other Guarantor in
accordance with applicable Laws. Such contribution rights shall be subordinate and subject in
right of payment to the Guaranteed Obligations until such time as the Guaranteed Obligations have
been paid in full and the Commitments relating thereto shall have expired or been terminated, and
none of the Guarantors shall exercise any such contribution rights until the Guaranteed Obligations
have been paid in full and the Commitments relating thereto shall have expired or been terminated.



11.06 Guaranty of Payment; Continuing Guaranty.



The guarantee in this Article XI is a guaranty of payment and not of collection, and is a
continuing guarantee, and shall apply to all Guaranteed Obligations whenever arising until such
time as the Guaranteed Obligations have been paid in full and the Commitments relating thereto
shall have expired or been terminated.



[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK;

SIGNATURE PAGES AND SCHEDULES AND EXHIBITS TO FOLLOW]




IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Credit
Agreement to be duly executed and delivered as of the date first above written.



BORROWER: Griffin-American Healthcare REIT II Holdings, LP,



	 	 	 	 	 	 	 
	 	 	a Delaware limited partnership,	 	 
	 	 	its Sole Member	 	 
	 	 	By:	 	Griffin-American Healthcare REIT II, Inc.

	 	 	 	 	a Maryland corporation,

its General Partner

By:

Name:

Its:

	 	



/s/ Shannon K S Johnson

Shannon K S Johnson

Chief Financial Officer
	PARENT:	 	 	 	Griffin-American Healthcare REIT II, Inc.

	 
	 	

	 	


	 	

	 	 	 	 	a Maryland corporation,

its General Partner

By:

Name:

Its:

	 	



/s/ Shannon K S Johnson

Shannon K S Johnson

Chief Financial Officer






	 	 	 	 	 	 	 	 	 
	SUBSIDIARY GUARANTORS:

	 	

	 	







1




	 	 	 	 	 	 	 
		 	 	 	 	 	 	 	 
	G&E HC REIT II Lacombe MOB, LLC,	 	 	 	 	 	 
		 	 	 	 	 	 	 	 
	a Delaware limited liability company	 	 	 	 	 	 
	 	 		 	 	 	 	 	 
	By:	 	Griffin-American Healthcare REIT II Holdings, LP,	 	 
	 	 		 	 	 	 	 	 
	 	 	a Delaware limited partnership,	 	 	 	 
	 	 	its Sole Member	 	 	 	 	 	 
	 	 	 	 	 		 	 	 
	 	 	By:	 	 	Griffin-American Healthcare REIT II, Inc.	 
	 	 	 	 	 	a Maryland corporation,	 	 	 
	 	 	 	 	 	its General Partner	 	 	 
	 	 	 	 	 	By:	 	 	/s/ Shannon K S Johnson
	 	 	 	 	 	Name:	 	 	Shannon K S Johnson
	 	 	 	 	 	Its:	 	 	Chief Financial Officer





	 	 	 	 	 	 	 	 	 	 	 	 	 






	 	 	 	 	 	 	 
		 	 	 	 	 	 	 	 
	a Delaware limited liability company	 	 	 	 
	 	 		 	 	 	 	 	 
	By:	 	Griffin-American Healthcare REIT II Holdings, LP,	 	 
	 	 		 	 	 	 	 	 
	 	 	a Delaware limited partnership,	 	 	 	 
	 	 	its Sole Member	 	 	 	 	 	 
	 	 	 	 	 		 	 	 
	 	 	By:	 	 	Griffin-American Healthcare REIT II, Inc.	 
	 	 	 	 	 	a Maryland corporation,	 	 	 
	 	 	 	 	 	its General Partner	 	 	 
	 	 	 	 	 	By:	 	 	/s/ Shannon K S Johnson
	 	 	 	 	 	Name:	 	 	Shannon K S Johnson
	 	 	 	 	 	Its:	 	 	Chief Financial Officer





	 	 	 	 	 	 	 
	G&E HC REIT II St. Vincent Cleveland MOB, LLC,
	 	 






2




	 	 	 	 	 	 	 
	 	 		 	 	 	 	 	 
	By:	 	Griffin-American Healthcare REIT II Holdings, LP,	 	 
	 	 		 	 	 	 	 	 
	 	 	a Delaware limited partnership,	 	 	 	 
	 	 	its Sole Member	 	 	 	 	 	 
	 	 	 	 	 		 	 	 
	 	 	By:	 	 	Griffin-American Healthcare REIT II, Inc.	 
	 	 	 	 	 	a Maryland corporation,	 	 	 
	 	 	 	 	 	its General Partner	 	 	 
	 	 	 	 	 	By:	 	 	/s/ Shannon K S Johnson
	 	 	 	 	 	Name:	 	 	Shannon K S Johnson
	 	 	 	 	 	Its:	 	 	Chief Financial Officer





	 	 	 	 	 	 	 	 	 	 	 	 	 






	 	 	 	 	 	 	 
		 	 	 	 	 	 	 	 
	a Delaware limited liability company	 	 	 	 
	 	 		 	 	 	 	 	 
	By:	 	Griffin-American Healthcare REIT II Holdings, LP,	 	 
	 	 		 	 	 	 	 	 
	 	 	a Delaware limited partnership,	 	 	 	 
	 	 	its Sole Member	 	 	 	 	 	 
	 	 	 	 	 		 	 	 
	 	 	By:	 	 	Griffin-American Healthcare REIT II, Inc.	 
	 	 	 	 	 	a Maryland corporation,	 	 	 
	 	 	 	 	 	its General Partner	 	 	 
	 	 	 	 	 	By:	 	 	/s/ Shannon K S Johnson
	 	 	 	 	 	Name:	 	 	Shannon K S Johnson
	 	 	 	 	 	Its:	 	 	Chief Financial Officer





	 	 	 
	G&E HC REIT II Charlottesville SNF, LLC,







	 	 	 
	By:	 	G&E HC REIT II Virginia SNF






Portfolio, LLC, a Delaware limited


Liability Company, its Sole Member




By: Griffin-American Healthcare REIT II Holdings, LP,



	 	 	 	 	 
	a Delaware limited partnership,	 	 
	its Sole Member	 	 
	By:	 	Griffin-American Healthcare REIT II, Inc.

	 	 	a Maryland corporation,

its General Partner

By:

Name:

Its:

	 	



/s/ Shannon K S Johnson

Shannon K S Johnson

Chief Financial Officer






3




	 	 	 
	G&E HC REIT II Fincastle SNF, LLC,







	 	 	 
	By:	 	G&E HC REIT II Virginia SNF





Portfolio, LLC, a Delaware limited liability



company, its Sole Member




By: Griffin-American Healthcare REIT II Holdings, LP,



	 	 	 	 	 
	a Delaware limited partnership,	 	 
	its Sole Member	 	 
	By:	 	Griffin-American Healthcare REIT II, Inc.

	 	 	a Maryland corporation,

its General Partner

By:

Name:

Its:

	 	



/s/ Shannon K S Johnson

Shannon K S Johnson

Chief Financial Officer






	 	 	 
	G&E HC REIT II Hot Springs SNF, LLC,







	 	 	 
	By:	 	G&E HC REIT II Virginia SNF Portfolio, LLC






a Delaware limited liability company,


its Sole Member




By: Griffin-American Healthcare REIT II Holdings, LP,



	 	 	 	 	 
	a Delaware limited partnership,	 	 
	its Sole Member	 	 
	By:	 	Griffin-American Healthcare REIT II, Inc.

	 	 	a Maryland corporation,

its General Partner

By:

Name:

Its:

	 	



/s/ Shannon K S Johnson

Shannon K S Johnson

Chief Financial Officer






4




	 	 	 
	G&E HC REIT II Midlothian SNF, LLC,







	 	 	 
	By:	 	G&E HC REIT II Virginia SNF Portfolio, LLC






a Delaware limited liability company,


its Sole Member




By: Griffin-American Healthcare REIT II Holdings, LP,



	 	 	 	 	 
	a Delaware limited partnership,	 	 
	its Sole Member	 	 
	By:	 	Griffin-American Healthcare REIT II, Inc.

	 	 	a Maryland corporation,

its General Partner

By:

Name:

Its:

	 	



/s/ Shannon K S Johnson

Shannon K S Johnson

Chief Financial Officer






	 	 	 
	G&E HC REIT II Bastian SNF, LLC,







	 	 	 
	By:	 	G&E HC REIT II Virginia SNF Portfolio, LLC






a Delaware limited liability company,


its Sole Member




By: Griffin-American Healthcare REIT II Holdings, LP,



	 	 	 	 	 
	a Delaware limited partnership,	 	 
	its Sole Member	 	 
	By:	 	Griffin-American Healthcare REIT II, Inc.

	 	 	a Maryland corporation,

its General Partner

By:

Name:

Its:

	 	



/s/ Shannon K S Johnson

Shannon K S Johnson

Chief Financial Officer






5




	 	 	 
	G&E HC REIT II Lebanon SNF, LLC,







	 	 	 
	By:	 	G&E HC REIT II Virginia SNF Portfolio, LLC






a Delaware limited liability company,


its Sole Member




By: Griffin-American Healthcare REIT II Holdings, LP,



	 	 	 	 	 
	a Delaware limited partnership,	 	 
	its Sole Member	 	 
	By:	 	Griffin-American Healthcare REIT II, Inc.

	 	 	a Maryland corporation,

its General Partner

By:

Name:

Its:

	 	



/s/ Shannon K S Johnson

Shannon K S Johnson

Chief Financial Officer






	 	 	 
	G&E HC REIT II Low Moor SNF, LLC,







	 	 	 
	By:	 	G&E HC REIT II Virginia SNF Portfolio, LLC






a Delaware limited liability company,


its Sole Member




By: Griffin-American Healthcare REIT II Holdings, LP,



	 	 	 	 	 
	a Delaware limited partnership,	 	 
	its Sole Member	 	 
	By:	 	Griffin-American Healthcare REIT II, Inc.

	 	 	a Maryland corporation,

its General Partner

By:

Name:

Its:

	 	



/s/ Shannon K S Johnson

Shannon K S Johnson

Chief Financial Officer






6




	 	 	 	 	 	 	 
	G&E HC REIT II Sylva MOB, LLC,
	 	 	 	 






	 	 	 	 	 	 	 
	 	 		 	 	 	 	 	 
	By:	 	Griffin-American Healthcare REIT II Holdings, LP,	 	 
	 	 		 	 	 	 	 	 
	 	 	a Delaware limited partnership,	 	 	 	 
	 	 	its Sole Member	 	 	 	 	 	 
	 	 	 	 	 		 	 	 
	 	 	By:	 	 	Griffin-American Healthcare REIT II, Inc.	 
	 	 	 	 	 	a Maryland corporation,	 	 	 
	 	 	 	 	 	its General Partner	 	 	 
	 	 	 	 	 	By:	 	 	/s/ Shannon K S Johnson
	 	 	 	 	 	Name:	 	 	Shannon K S Johnson
	 	 	 	 	 	Its:	 	 	Chief Financial Officer





	 	 	 	 	 	 	 
	G&E HC REIT II Surgical Hospital of Humble, LLC,
	 	 






7




	 	 	 	 	 	 	 
	 	 		 	 	 	 	 	 
	By:	 	Griffin-American Healthcare REIT II Holdings, LP,	 	 
	 	 		 	 	 	 	 	 
	 	 	a Delaware limited partnership,	 	 	 	 
	 	 	its Sole Member	 	 	 	 	 	 
	 	 	 	 	 		 	 	 
	 	 	By:	 	 	Griffin-American Healthcare REIT II, Inc.	 
	 	 	 	 	 	a Maryland corporation,	 	 	 
	 	 	 	 	 	its General Partner	 	 	 
	 	 	 	 	 	By:	 	 	/s/ Shannon K S Johnson
	 	 	 	 	 	Name:	 	 	Shannon K S Johnson
	 	 	 	 	 	Its:	 	 	Chief Financial Officer





	 	 	 	 	 	 	 	 	 	 	 	 	 






	 	 	 	 	 	 	 
		 	 	 	 	 	 	 	 
	a Delaware limited liability company	 	 	 	 
	 	 		 	 	 	 	 	 
	By:	 	Griffin-American Healthcare REIT II Holdings, LP,	 	 
	 	 		 	 	 	 	 	 
	 	 	a Delaware limited partnership,	 	 	 	 
	 	 	its Sole Member	 	 	 	 	 	 
	 	 	 	 	 		 	 	 
	 	 	By:	 	 	Griffin-American Healthcare REIT II, Inc.	 
	 	 	 	 	 	a Maryland corporation,	 	 	 
	 	 	 	 	 	its General Partner	 	 	 
	 	 	 	 	 	By:	 	 	/s/ Shannon K S Johnson
	 	 	 	 	 	Name:	 	 	Shannon K S Johnson
	 	 	 	 	 	Its:	 	 	Chief Financial Officer





	 	 	 	 	 	 	 
	G&E HC REIT II St. Anthony North Denver MOB, LLC,
	 	 






8




	 	 	 	 	 	 	 
	 	 		 	 	 	 	 	 
	By:	 	Griffin-American Healthcare REIT II Holdings, LP,	 	 
	 	 		 	 	 	 	 	 
	 	 	a Delaware limited partnership,	 	 	 	 
	 	 	its Sole Member	 	 	 	 	 	 
	 	 	 	 	 		 	 	 
	 	 	By:	 	 	Griffin-American Healthcare REIT II, Inc.	 
	 	 	 	 	 	a Maryland corporation,	 	 	 
	 	 	 	 	 	its General Partner	 	 	 
	 	 	 	 	 	By:	 	 	/s/ Shannon K S Johnson
	 	 	 	 	 	Name:	 	 	Shannon K S Johnson
	 	 	 	 	 	Its:	 	 	Chief Financial Officer






	 	 	G&E HC REIT II Loma Linda Pediatric Specialty Hospital, LLC,





	 	 	 	 	 	 	 
	a Delaware limited liability company	 	 
	By:	 	Griffin-American Healthcare REIT II Holdings, LP,
	 	 	a Delaware limited partnership,	 	 
	 	 	its Sole Member
	 	


	 	

	 	 	By:	 	Griffin-American Healthcare REIT II, Inc.

	 	 	 	 	a Maryland corporation,

its General Partner

By:

Name:

Its:

	 	



/s/ Shannon K S Johnson

Shannon K S Johnson

Chief Financial Officer






	 	 	 	 	 	 	 
	G&E HC REIT II Yuma SNF, LLC,
	 	 	 	 






9




	 	 	 	 	 	 	 
	 	 		 	 	 	 	 	 
	By:	 	Griffin-American Healthcare REIT II Holdings, LP,	 	 
	 	 		 	 	 	 	 	 
	 	 	a Delaware limited partnership,	 	 	 	 
	 	 	its Sole Member	 	 	 	 	 	 
	 	 	 	 	 		 	 	 
	 	 	By:	 	 	Griffin-American Healthcare REIT II, Inc.	 
	 	 	 	 	 	a Maryland corporation,	 	 	 
	 	 	 	 	 	its General Partner	 	 	 
	 	 	 	 	 	By:	 	 	/s/ Shannon K S Johnson
	 	 	 	 	 	Name:	 	 	Shannon K S Johnson
	 	 	 	 	 	Its:	 	 	Chief Financial Officer





	 	 	 	 	 	 	 	 	 	 	 	 	 






	 	 	 	 	 	 	 
		 	 	 	 	 	 	 	 
	a Delaware limited liability company	 	 	 	 
	 	 		 	 	 	 	 	 
	By:	 	Griffin-American Healthcare REIT II Holdings, LP,	 	 
	 	 		 	 	 	 	 	 
	 	 	a Delaware limited partnership,	 	 	 	 
	 	 	its Sole Member	 	 	 	 	 	 
	 	 	 	 	 		 	 	 
	 	 	By:	 	 	Griffin-American Healthcare REIT II, Inc.	 
	 	 	 	 	 	a Maryland corporation,	 	 	 
	 	 	 	 	 	its General Partner	 	 	 
	 	 	 	 	 	By:	 	 	/s/ Shannon K S Johnson
	 	 	 	 	 	Name:	 	 	Shannon K S Johnson
	 	 	 	 	 	Its:	 	 	Chief Financial Officer





	 	 	 	 	 	 	 	 	 






	 	 	 	 	 
	
	a Delaware limited liability company
	By:	 	G&E HC REIT II Dixie-Lobo MOB






Portfolio, LLC, a Delaware limited


liability company, its Sole Member




By: Griffin-American Healthcare REIT II Holdings, LP,



	 	 	 	 	 
	a Delaware limited partnership,	 	 
	its Sole Member	 	 
	By:	 	Griffin-American Healthcare REIT II, Inc.

	 	 	a Maryland corporation,

its General Partner

By:

Name:

Its:

	 	



/s/ Shannon K S Johnson

Shannon K S Johnson

Chief Financial Officer






10




	 	 	 	 	 






	 	 	 
	
	a Delaware limited liability company
	By:	 	G&E HC REIT II Dixie-Lobo MOB






Portfolio, LLC, a Delaware limited


liability company, its Sole Member




By: Griffin-American Healthcare REIT II Holdings, LP,



	 	 	 	 	 
	a Delaware limited partnership,	 	 
	its Sole Member	 	 
	By:	 	Griffin-American Healthcare REIT II, Inc.

	 	 	a Maryland corporation,

its General Partner

By:

Name:

Its:

	 	



/s/ Shannon K S Johnson

Shannon K S Johnson

Chief Financial Officer






	 	 	 	 	 






	 	 	 
	
	a Delaware limited liability company
	By:	 	G&E HC REIT II Dixie-Lobo MOB






Portfolio, LLC, a Delaware limited


liability company, its Sole Member




By: Griffin-American Healthcare REIT II Holdings, LP,



	 	 	 	 	 
	a Delaware limited partnership,	 	 
	its Sole Member	 	 
	By:	 	Griffin-American Healthcare REIT II, Inc.

	 	 	a Maryland corporation,

its General Partner

By:

Name:

Its:

	 	



/s/ Shannon K S Johnson

Shannon K S Johnson

Chief Financial Officer






11




	 	 	 	 	 






	 	 	 
	
	a Delaware limited liability company
	By:	 	G&E HC REIT II Dixie-Lobo MOB






Portfolio, LLC, a Delaware limited


liability company, its Sole Member




By: Griffin-American Healthcare REIT II Holdings, LP,



	 	 	 	 	 
	a Delaware limited partnership,	 	 
	its Sole Member	 	 
	By:	 	Griffin-American Healthcare REIT II, Inc.

	 	 	a Maryland corporation,

its General Partner

By:

Name:

Its:

	 	



/s/ Shannon K S Johnson

Shannon K S Johnson

Chief Financial Officer






	 	 	 	 	 






	 	 	 
	
	a Delaware limited liability company
	By:	 	G&E HC REIT II Dixie-Lobo MOB






Portfolio, LLC, a Delaware limited


liability company, its Sole Member




By: Griffin-American Healthcare REIT II Holdings, LP,



	 	 	 	 	 
	a Delaware limited partnership,	 	 
	its Sole Member	 	 
	By:	 	Griffin-American Healthcare REIT II, Inc.

	 	 	a Maryland corporation,

its General Partner

By:

Name:

Its:

	 	



/s/ Shannon K S Johnson

Shannon K S Johnson

Chief Financial Officer






12




	 	 	 	 	 






	 	 	 
	
	a Delaware limited liability company
	By:	 	G&E HC REIT II Dixie-Lobo MOB






Portfolio, LLC, a Delaware limited


liability company, its Sole Member




By: Griffin-American Healthcare REIT II Holdings, LP,



	 	 	 	 	 
	a Delaware limited partnership,	 	 
	its Sole Member	 	 
	By:	 	Griffin-American Healthcare REIT II, Inc.

	 	 	a Maryland corporation,

its General Partner

By:

Name:

Its:

	 	



/s/ Shannon K S Johnson

Shannon K S Johnson

Chief Financial Officer






	 	 	 	 	 






	 	 	 
	
	a Delaware limited liability company
	By:	 	G&E HC REIT II Dixie-Lobo MOB






Portfolio, LLC, a Delaware limited


liability company, its Sole Member




By: Griffin-American Healthcare REIT II Holdings, LP,



	 	 	 	 	 
	a Delaware limited partnership,	 	 
	its Sole Member	 	 
	By:	 	Griffin-American Healthcare REIT II, Inc.

	 	 	a Maryland corporation,

its General Partner

By:

Name:

Its:

	 	



/s/ Shannon K S Johnson

Shannon K S Johnson

Chief Financial Officer






13




	 	 	 	 	 






	 	 	 
	
	a Delaware limited liability company
	By:	 	G&E HC REIT II Dixie-Lobo MOB






Portfolio, LLC, a Delaware limited


liability company, its Sole Member




By: Griffin-American Healthcare REIT II Holdings, LP,



	 	 	 	 	 
	a Delaware limited partnership,	 	 
	its Sole Member	 	 
	By:	 	Griffin-American Healthcare REIT II, Inc.

	 	 	a Maryland corporation,

its General Partner

By:

Name:

Its:

	 	



/s/ Shannon K S Johnson

Shannon K S Johnson

Chief Financial Officer






	 	 	 	 	 






	 	 	 
	
	a Delaware limited liability company
	By:	 	G&E HC REIT II Milestone MOB Portfolio, LLC






a Delaware limited liability company,


its Sole Member




By: Griffin-American Healthcare REIT II Holdings, LP,



	 	 	 	 	 
	a Delaware limited partnership,	 	 
	its Sole Member	 	 
	By:	 	Griffin-American Healthcare REIT II, Inc.

	 	 	a Maryland corporation,

its General Partner

By:

Name:

Its:

	 	



/s/ Shannon K S Johnson

Shannon K S Johnson

Chief Financial Officer






14




	 	 	 	 	 






	 	 	 
	
	a Delaware limited liability company
	By:	 	G&E HC REIT II Milestone MOB Portfolio, LLC






a Delaware limited liability company,


its Sole Member




By: Griffin-American Healthcare REIT II Holdings, LP,



	 	 	 	 	 
	a Delaware limited partnership,	 	 
	its Sole Member	 	 
	By:	 	Griffin-American Healthcare REIT II, Inc.

	 	 	a Maryland corporation,

its General Partner

By:

Name:

Its:

	 	



/s/ Shannon K S Johnson

Shannon K S Johnson

Chief Financial Officer






15





	 	 	G&E HC REIT II Care Pavilion SNF, L.P.






a Delaware limited partnership




By: G&E HC REIT II Philadelphia SNF Portfolio SPE General Partner, LLC,




a Delaware limited liability company,


its General Partner




By: G&E HC REIT II Philadelphia SNF Portfolio SPE Limited Partner, LLC, a




Delaware limited liability company, its Sole Member




By: G&E HC REIT II Philadelphia SNF Portfolio Holdings, LLC, a
Delaware limited liability company,




its Managing Member




By: Griffin-American Healthcare REIT II Holdings, LP,



	 	 	 	 	 
	a Delaware limited partnership,	 	 
	its Sole Member	 	 
	By:	 	Griffin-American Healthcare REIT II, Inc.

	 	 	a Maryland corporation,

its General Partner

By:

Name:

Its:

	 	



/s/ Shannon K S Johnson

Shannon K S Johnson

Chief Financial Officer






16





	 	 	G&E HC REIT II Cheltenham York SNF, L.P.






a Delaware limited partnership




By: G&E HC REIT II Philadelphia SNF Portfolio SPE General Partner, LLC,




a Delaware limited liability company,


its General Partner




By: G&E HC REIT II Philadelphia SNF Portfolio SPE Limited Partner, LLC, a




Delaware limited liability company, its Sole Member




By: G&E HC REIT II Philadelphia SNF Portfolio Holdings, LLC, a
Delaware limited liability company,




its Managing Member




By: Griffin-American Healthcare REIT II Holdings, LP,



	 	 	 	 	 
	a Delaware limited partnership,	 	 
	its Sole Member	 	 
	By:	 	Griffin-American Healthcare REIT II, Inc.

	 	 	a Maryland corporation,

its General Partner

By:

Name:

Its:

	 	



/s/ Shannon K S Johnson

Shannon K S Johnson

Chief Financial Officer






17





	 	 	G&E HC REIT II Cliveden SNF, L.P.






a Delaware limited partnership




By: G&E HC REIT II Philadelphia SNF Portfolio SPE General Partner, LLC,




a Delaware limited liability company,


its General Partner




By: G&E HC REIT II Philadelphia SNF Portfolio SPE Limited Partner, LLC, a




Delaware limited liability company, its Sole Member




By: G&E HC REIT II Philadelphia SNF Portfolio Holdings, LLC, a
Delaware limited liability company,




its Managing Member




By: Griffin-American Healthcare REIT II Holdings, LP,



	 	 	 	 	 
	a Delaware limited partnership,	 	 
	its Sole Member	 	 
	By:	 	Griffin-American Healthcare REIT II, Inc.

	 	 	a Maryland corporation,

its General Partner

By:

Name:

Its:

	 	



/s/ Shannon K S Johnson

Shannon K S Johnson

Chief Financial Officer






18





	 	 	G&E HC REIT II Maplewood Manor SNF, L.P.






a Delaware limited partnership




By: G&E HC REIT II Philadelphia SNF Portfolio SPE General Partner, LLC,




a Delaware limited liability company,


its General Partner




By: G&E HC REIT II Philadelphia SNF Portfolio SPE Limited Partner, LLC, a




Delaware limited liability company, its Sole Member




By: G&E HC REIT II Philadelphia SNF Portfolio Holdings, LLC, a
Delaware limited liability company,




its Managing Member




By: Griffin-American Healthcare REIT II Holdings, LP,



	 	 	 	 	 
	a Delaware limited partnership,	 	 
	its Sole Member	 	 
	By:	 	Griffin-American Healthcare REIT II, Inc.

	 	 	a Maryland corporation,

its General Partner

By:

Name:

Its:

	 	



/s/ Shannon K S Johnson

Shannon K S Johnson

Chief Financial Officer






19





	 	 	G&E HC REIT II Tucker House SNF, L.P.






a Delaware limited partnership




By: G&E HC REIT II Philadelphia SNF Portfolio SPE General Partner, LLC,




a Delaware limited liability company,


its General Partner




By: G&E HC REIT II Philadelphia SNF Portfolio SPE Limited Partner, LLC, a




Delaware limited liability company, its Sole Member




By: G&E HC REIT II Philadelphia SNF Portfolio Holdings, LLC, a
Delaware limited liability company,




its Managing Member




By: Griffin-American Healthcare REIT II Holdings, LP,



	 	 	 	 	 
	a Delaware limited partnership,	 	 
	its Sole Member	 	 
	By:	 	Griffin-American Healthcare REIT II, Inc.

	 	 	a Maryland corporation,

its General Partner

By:

Name:

Its:

	 	



/s/ Shannon K S Johnson

Shannon K S Johnson

Chief Financial Officer






	 	 	 	 	 	 	 	 	 	 	 	 	 






20




	 	 	 	 	 	 	 
		 	 	 	 	 	 	 	 
	a Delaware limited liability company	 	 	 	 	 	 
	 	 		 	 	 	 	 	 
	By:	 	Griffin-American Healthcare REIT II Holdings, LP,	 	 
	 	 		 	 	 	 	 	 
	 	 	a Delaware limited partnership,	 	 	 	 
	 	 	its Sole Member	 	 	 	 	 	 
	 	 	 	 	 		 	 	 
	 	 	By:	 	 	Griffin-American Healthcare REIT II, Inc.	 
	 	 	 	 	 	a Maryland corporation,	 	 	 
	 	 	 	 	 	its General Partner	 	 	 
	 	 	 	 	 	By:	 	 	/s/ Shannon K S Johnson
	 	 	 	 	 	Name:	 	 	Shannon K S Johnson
	 	 	 	 	 	Its:	 	 	Chief Financial Officer





	 	 	 	 	 






	 	 	 
	
	a Delaware limited liability company
	By:	 	G&E HC REIT II Flags MOB Portfolio, LLC






a Delaware limited liability company,


its Sole Member




By: Griffin-American Healthcare REIT II Holdings, LP,



	 	 	 	 	 
	a Delaware limited partnership,	 	 
	its Sole Member	 	 
	By:	 	Griffin-American Healthcare REIT II, Inc.

	 	 	a Maryland corporation,

its General Partner

By:

Name:

Its:

	 	



/s/ Shannon K S Johnson

Shannon K S Johnson

Chief Financial Officer






	 	 	 	 	 	 	 	 	 	 	 	 	 






21




	 	 	 	 	 	 	 
		 	 	 	 	 	 	 	 
	a Delaware limited liability company	 	 	 	 
	 	 		 	 	 	 	 	 
	By:	 	Griffin-American Healthcare REIT II Holdings, LP,	 	 
	 	 		 	 	 	 	 	 
	 	 	a Delaware limited partnership,	 	 	 	 
	 	 	its Sole Member	 	 	 	 	 	 
	 	 	 	 	 		 	 	 
	 	 	By:	 	 	Griffin-American Healthcare REIT II, Inc.	 
	 	 	 	 	 	a Maryland corporation,	 	 	 
	 	 	 	 	 	its General Partner	 	 	 
	 	 	 	 	 	By:	 	 	/s/ Shannon K S Johnson
	 	 	 	 	 	Name:	 	 	Shannon K S Johnson
	 	 	 	 	 	Its:	 	 	Chief Financial Officer





	 	 	 	 	 






	 	 	 
	
	a Delaware limited liability company
	By:	 	G&E HC REIT II Gulf Plains MOB Portfolio, LLC






a Delaware limited liability company,


its Sole Member




By: Griffin-American Healthcare REIT II Holdings, LP,



	 	 	 	 	 
	a Delaware limited partnership,	 	 
	its Sole Member	 	 
	By:	 	Griffin-American Healthcare REIT II, Inc.

	 	 	a Maryland corporation,

its General Partner

By:

Name:

Its:

	 	



/s/ Shannon K S Johnson

Shannon K S Johnson

Chief Financial Officer






	 	 	 	 	 






	 	 	 
	
	a Delaware limited liability company
	By:	 	G&E HC REIT II Gulf Plains MOB Portfolio, LLC






a Delaware limited liability company,


its Sole Member




By: Griffin-American Healthcare REIT II Holdings, LP,



	 	 	 	 	 
	a Delaware limited partnership,	 	 
	its Sole Member	 	 
	By:	 	Griffin-American Healthcare REIT II, Inc.

	 	 	a Maryland corporation,

its General Partner

By:

Name:

Its:

	 	



/s/ Shannon K S Johnson

Shannon K S Johnson

Chief Financial Officer







	 	 	BANK OF AMERICA, N.A., as Administrative Agent

By: /s/ Keegan Koch

Name: Keegan Koch

Title: Senior Vice President

BANK OF AMERICA, N.A., as a Lender, L/C Issuer

and Swing Line Lender

By: /s/ Keegan Koch

Name: Keegan Koch

Title: Senior Vice President




22










KEYBANK NATIONAL ASSOCIATION as a Lender



By: /s/ Brian Heagler

Name: Brian Heagler

Title: VP





RBS CITIZENS N.A., as a Lender



By: /s/ Donald Woods

Name: Donald Woods

Title: SVP





COMERICA BANK, as a Lender



By: /s/ Charles Weddell

Name: Charles Weddell

Title: Vice PresidentSchedule 2.01




LENDERS AND COMMITMENTS




	 	 	 	 	 	 	 	 	 
	Lender

	 	Revolving Commitment
	 	Revolving Commitment

Percentage

	 

	 	 	 	 	 	 	 	 
	Bank of America, N.A.

	 	$	72,500,000.00	 	 	 	36.250000000	%
	 

	 	 	 	 	 	 	 	 
	KeyBank, National Association

	 	$	72,500,000.00	 	 	 	36.250000000	%
	 

	 	 	 	 	 	 	 	 
	RBS Citizens, N.A. d/b/a Charter One

	 	$	40,000,000.00	 	 	 	20.000000000	%
	 

	 	 	 	 	 	 	 	 
	Comerica Bank

	 	$	15,000,000.00	 	 	 	7.500000000	%
	 

	 	 	 	 	 	 	 	 
	Total:

	 	$	200,000,000.00	 	 	 	100.000000000	%
	 

	 	 	 	 	 	 	 	 






Schedule 5.10




BORROWING BASE PROPERTIES




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Entity Name	 	Property Name	 	Domestic State	 	Foreign State	 	EIN
	 	1	 	 	G&E HC REIT II Lacombe MOB, LLC
	 	Lacombe Medical Office Building

	 	Delaware
	 	Louisiana
	 	27-1649487
	 	 	 	 	 
	 	 

	 	 
	 	 
	 	 
	 	2	 	 	G&E HC REIT II Parkway Medical Center,

LLC
	 	

Parkway Medical Center

	 	

Delaware
	 	

Ohio
	 	

27-1732461
	 	 	 	 	 
	 	 

	 	 
	 	 
	 	 
	 	3	 	 	G&E HC REIT II Livingston MOB, LLC
	 	Livingston Medical Arts Pavilion

	 	Delaware
	 	Texas
	 	27-2414904
	 	 	 	 	 
	 	 

	 	 
	 	 
	 	 
	 	4	 	 	G&E HC REIT II St. Vincent Cleveland

MOB, LLC
	 	

St. Vincent Medical Office Building

	 	

Delaware
	 	

Ohio
	 	

27-2841675
	 	 	 	 	 
	 	 

	 	 
	 	 
	 	 
	 	5	 	 	G&E HC REIT II Bastian SNF, LLC
	 	Bland County Nursing &

Rehabilitation (VA SNF)

	 	

Delaware
	 	

Virginia
	 	

27-3006558
	 	 	 	 	 
	 	 

	 	 
	 	 
	 	 
	 	6	 	 	G&E HC REIT II Fincastle SNF, LLC
	 	The Brian Center of Fincastle (VA

SNF)

	 	

Delaware
	 	

Virginia
	 	

27-3006791
	 	 	 	 	 
	 	 

	 	 
	 	 
	 	 
	 	7	 	 	G&E HC REIT II Low Moor SNF, LLC
	 	The Brian Center of Low Moor (VA

SNF)

	 	

Delaware
	 	

Virginia
	 	

27-3006994
	 	 	 	 	 
	 	 

	 	 
	 	 
	 	 
	 	8	 	 	G&E HC REIT II Lebanon SNF, LLC
	 	Maple Grove Health Care Center (VA

SNF)

	 	

Delaware
	 	

Virginia
	 	

27-3006933
	 	 	 	 	 
	 	 

	 	 
	 	 
	 	 
	 	9	 	 	G&E HC REIT II Hot Springs SNF, LLC
	 	The Springs Nursing Center (VA SNF)

	 	Delaware
	 	Virginia
	 	27-3006862
	 	 	 	 	 
	 	 

	 	 
	 	 
	 	 
	 	10	 	 	G&E HC REIT II Midlothian SNF, LLC
	 	The Laurels of Willow Creek (VA SNF)

	 	Delaware
	 	Virginia
	 	27-3007051
	 	 	 	 	 
	 	 

	 	 
	 	 
	 	 
	 	11	 	 	G&E HC REIT II Charlottesville SNF, LLC
	 	The Laurels of Charlottesville (VA

SNF)

	 	

Delaware
	 	

Virginia
	 	

27-3006658
	 	 	 	 	 
	 	 

	 	 
	 	 
	 	 
	 	12	 	 	G&E HC REIT II Sylva MOB, LLC
	 	Sylva Medical Office Building

	 	Delaware
	 	North Carolina
	 	90-0626383
	 	 	 	 	 
	 	 

	 	 
	 	 
	 	 
	 	13	 	 	G&E HC REIT II Surgical Hospital of

Humble, LLC
	 	

Humble Surgical Hospital

	 	

Delaware
	 	

Texas
	 	

27-3996170
	 	 	 	 	 
	 	 

	 	 
	 	 
	 	 
	 	14	 	 	G&E HC REIT II Ennis MOB, LLC
	 	Ennis Medical Office Building

	 	Delaware
	 	Texas
	 	27-4062085
	 	 	 	 	 
	 	 

	 	 
	 	 
	 	 
	 	15	 	 	G&E HC REIT II Loma Linda Pediatric

Specialty Hospital, LLC
	 	

Totally Kids Specialty Healthcare

	 	

Delaware
	 	

California
	 	

27-5348563
	 	 	 	 	 
	 	 

	 	 
	 	 
	 	 
	 	16	 	 	G&E HC REIT II St. Anthony North

Denver MOB, LLC
	 	St. Anthony North Medical Office

Building

	 	

Delaware
	 	

Colorado
	 	

27-5348483
	 	 	 	 	 
	 	 

	 	 
	 	 
	 	 
	 	17	 	 	G&E HC REIT II Yuma SNF, LLC
	 	Kissito Palm View Healthcare

	 	Delaware
	 	Arizona
	 	27-5416463
	 	 	 	 	 
	 	 

	 	 
	 	 
	 	 
	 	18	 	 	G&E HC REIT II Lakewood MOB I, LLC
	 	Lakewood Ranch Medical Office

Building I

	 	

Delaware
	 	

Florida
	 	

27-2841633
	 	 	 	 	 
	 	 

	 	 
	 	 
	 	 
	 	19	 	 	G&E HC REIT II Carlsbad MOB, LLC
	 	Carlsbad Medical Office Building

(Dixie-Lobo)

	 	

Delaware
	 	

New Mexico
	 	

27-5408935
	 	 	 	 	 
	 	 

	 	 
	 	 
	 	 
	 	20	 	 	G&E HC REIT II Alice MOB, LLC
	 	Alice Medical Office Building

(Dixie-Lobo)

	 	

Delaware
	 	

Texas
	 	

27-5408383
	 	 	 	 	 
	 	 

	 	 
	 	 
	 	 
	 	21	 	 	G&E HC REIT II Hobbs MOB, LLC
	 	Hobbs Medical Office Building

(Dixie-Lobo)

	 	

Delaware
	 	

New Mexico
	 	

27-5409062
	 	 	 	 	 
	 	 

	 	 
	 	 
	 	 
	 	22	 	 	G&E HC REIT II Hope MOB, LLC
	 	Hope Medical Office Building

(Dixie-Lobo)

	 	

Delaware
	 	

Arkansas
	 	

27-5409203
	 	 	 	 	 
	 	 

	 	 
	 	 
	 	 
	 	23	 	 	G&E HC REIT II Lake Charles MOB, LLC
	 	Lake Charles Medical Office

Building (Dixie-Lobo)

	 	

Delaware
	 	

Louisiana
	 	

27-5409437
	 	 	 	 	 
	 	 

	 	 
	 	 
	 	 
	 	24	 	 	G&E HC REIT II Lufkin MOB, LLC
	 	Lufkin Medical Office Building

(Dixie-Lobo)

	 	

Delaware
	 	

Texas
	 	

27-5409564
	 	 	 	 	 
	 	 

	 	 
	 	 
	 	 
	 	25	 	 	G&E HC REIT II Victoria MOB, LLC
	 	Victoria Medical Office Building

(Dixie-Lobo)

	 	

Delaware
	 	

Texas
	 	

27-5409651
	 	 	 	 	 
	 	 

	 	 
	 	 
	 	 
	 	26	 	 	G&E HC REIT II Wharton MOB, LLC
	 	Wharton Medical Office Building

(Dixie-Lobo)

	 	

Delaware
	 	

Texas
	 	

27-5409752
	 	 	 	 	 
	 	 

	 	 
	 	 
	 	 
	 	27	 	 	G&E HC REIT II Bryant MOB, LLC
	 	Bryant Medical Office Building

(Milestone)

	 	

Delaware
	 	

Arkansas
	 	

45-1607268
	 	 	 	 	 
	 	 

	 	 
	 	 
	 	 
	 	28	 	 	G&E HC REIT II Benton Home Health MOB,

LLC
	 	Benton Medical Plaza I & II

(Milestone)

	 	

Delaware
	 	

Arkansas
	 	

45-1622149
	 	 	 	 	 
	 	 

	 	 
	 	 
	 	 
	 	29	 	 	G&E HC REIT II Care Pavilion SNF, L.P.
	 	Care Pavilion (PA SNF)

	 	Delaware
	 	Pennsylvania
	 	45-2542855
	 	 	 	 	 
	 	 

	 	 
	 	 
	 	 
	 	30	 	 	G&E HC REIT II Cheltenham York SNF,

L.P.
	 	Cheltenham-York Road Nursing &

Rehabilitation (PA SNF)

	 	

Delaware
	 	

Pennsylvania
	 	

45-2549091
	 	 	 	 	 
	 	 

	 	 
	 	 
	 	 
	 	31	 	 	G&E HC REIT II Cliveden SNF, L.P.
	 	Cliveden Convalescent Center (PA

SNF)

	 	

Delaware
	 	

Pennsylvania
	 	

45-2543074
	 	 	 	 	 
	 	 

	 	 
	 	 
	 	 
	 	32	 	 	G&E HC REIT II Maplewood Manor SNF,

L.P.
	 	

Maplewood Manor (PA SNF)

	 	

Delaware
	 	

Pennsylvania
	 	

45-2543017
	 	 	 	 	 
	 	 

	 	 
	 	 
	 	 
	 	33	 	 	G&E HC REIT II Tucker House SNF, L.P.
	 	Tucker House (PA SNF)

	 	Delaware
	 	Pennsylvania
	 	45-2543117
	 	 	 	 	 
	 	 

	 	 
	 	 
	 	 
	 	34	 	 	G&E HC REIT II Lafayette

Rehabilitation Hospital, LLC
	 	Lafayette Physical Rehabilitation

Hospital

	 	

Delaware
	 	

Louisiana
	 	

45-3252453
	 	 	 	 	 
	 	 

	 	 
	 	 
	 	 
	 	35	 	 	G&E HC REIT II El Paso MOB, LLC
	 	Sierra Providence East Medical Plaza

	 	Delaware
	 	Texas
	 	35-2426580
	 	 	 	 	 
	 	 

	 	 
	 	 
	 	 
	 	36	 	 	G&E HC REIT II Austell MOB, LLC
	 	East-West Medical Center (FLAGS)

	 	Delaware
	 	Georgia
	 	45-3677260
	 	 	 	 	 
	 	 

	 	 
	 	 
	 	 
	 	37	 	 	GA HC REIT II Amarillo MOB, LLC
	 	Amarillo Heart Center

	 	Delaware
	 	Texas
	 	45-5012997
	 	 	 	 	 
	 	 

	 	 
	 	 
	 	 
	 	38	 	 	GA HC REIT II River Oaks Houston MOB,

LLC
	 	

Memorial Hermann Imaging Center

	 	

Delaware
	 	

Texas
	 	

45-5013053
	 	 	 	 	 
	 	 

	 	 
	 	 
	 	 






Schedule 5.11




CORPORATE STRUCTURE; CAPITAL STOCK




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Entity Name

	 	Domestic State
	 	Ownership Interest
	 	EIN
	 	 	 	 	 

	 	 
	 	 
	 	 
	 	1.	 	 	Griffin-American

Healthcare REIT II, Inc.

(“REIT”)1

	 	Maryland



	 	See Footnote 1

below.



	 	26-4008719





	 	 	 	 	 

	 	 
	 	 
	 	 
	 	2.	 	 	Griffin-American

Healthcare REIT II

Holdings, LP

(“OP”)2

	 	Delaware





	 	See Footnote 2

below.





	 	26-4008819







	 	 	 	 	 

	 	 
	 	 
	 	 
	 	3.	 	 	G&E HC REIT II Virginia

SNF Portfolio, LLC “(VA

Portfolio”)

	 	Delaware





	 	100% owned by OP





	 	27-3139225





	 	 	 	 	 

	 	 
	 	 
	 	 
	 	4.	 	 	G&E HC REIT II Dixie-Lobo

MOB Portfolio, LLC

(“Dixie-Lobo Portfolio”)

	 	Delaware





	 	100% owned by OP





	 	27-5408235





	 	 	 	 	 

	 	 
	 	 
	 	 
	 	5.	 	 	G&E HC REIT II Milestone

MOB Portfolio, LLC

(“Milestone Portfolio”)

	 	Delaware





	 	100% owned by OP





	 	45-1606858





	 	 	 	 	 

	 	 
	 	 
	 	 
	 	6.	 	 	G&E HC REIT II FLAGS MOB

Portfolio, LLC (“Flags

Portfolio”)

	 	Delaware





	 	100% owned by OP





	 	30-0702721





	 	 	 	 	 

	 	 
	 	 
	 	 
	 	7.	 	 	GA HC REIT II Gulf Plains

MOB Portfolio, LLC (“Gulf

Plains Portfolio”)

	 	Delaware





	 	100% owned by OP





	 	32-0373429





	 	 	 	 	 

	 	 
	 	 
	 	 
	 	8.	 	 	G&E HC REIT II Boynton

MOB Member, LLC (“Boynton

Portfolio”)

	 	Delaware



	 	100% owned by Flags

Portfolio



	 	None





	 	 	 	 	 

	 	 
	 	 
	 	 
	 	9.	 	 	G&E HC REIT II Monument

LTACH Portfolio, LLC

(“Monument Portfolio”)

	 	Delaware





	 	100% owned by OP





	 	27-3170911





	 	 	 	 	 

	 	 
	 	 
	 	 
	 	10.	 	 	G&E HC REIT II Pocatello

MOB JV, LLC (“Pocatello

Portfolio”)

	 	Delaware





	 	98.75% owned by OP





	 	27-2912622





	 	 	 	 	 

	 	 
	 	 
	 	 
	 	11.	 	 	G&E HC REIT II

Southeastern SNF

Portfolio, LLC

(“Southeastern

Portfolio”)

	 	Delaware









	 	100% owned by OP









	 	45-3416002









	 	 	 	 	 

	 	 
	 	 
	 	 
	 	12.	 	 	G&E HC REIT II Spokane

MOB Member, LLC (“Spokane

Portfolio”)

	 	Delaware





	 	100% owned by OP





	 	None





	 	 	 	 	 

	 	 
	 	 
	 	 
	 	13.	 	 	G&E HC REIT II Tempe MOB

Member, LLC (“Tempe

Portfolio”)

	 	Delaware



	 	100% owned by Flags

Portfolio



	 	None





	 	 	 	 	 

	 	 
	 	 
	 	 
	 	14.	 	 	GA HC REIT II Midwestern

MOB Portfolio, LLC

(“Midwestern Portfolio”)

	 	Delaware





	 	100% owned by OP





	 	38-3860849





	 	 	 	 	 

	 	 
	 	 
	 	 
	 	15.	 	 	G&E HC REIT II Lacombe

MOB, LLC

	 	Delaware



	 	100% owned by OP



	 	27-1649487



	 	 	 	 	 

	 	 
	 	 
	 	 
	 	16.	 	 	G&E HC REIT II Parkway

Medical Center, LLC

	 	Delaware



	 	100% owned by OP



	 	27-1732461



	 	 	 	 	 

	 	 
	 	 
	 	 
	 	17.	 	 	G&E HC REIT II St.

Vincent Cleveland MOB,

LLC

	 	Delaware





	 	100% owned by OP





	 	27-2841675





	 	 	 	 	 

	 	 
	 	 
	 	 
	 	18.	 	 	G&E HC REIT II Livingston

MOB, LLC

	 	Delaware



	 	100% owned by OP



	 	27-2414904



	 	 	 	 	 

	 	 
	 	 
	 	 
	 	19.	 	 	G&E HC REIT II

Charlottesville SNF, LLC

	 	Delaware
	 	100% owned by VA

Portfolio
	 	27-3006658



	 	 	 	 	 

	 	 
	 	 
	 	 
	 	20.	 	 	G&E HC REIT II Fincastle

SNF, LLC

	 	Delaware
	 	100% owned by VA

Portfolio
	 	27-3006791



	 	 	 	 	 

	 	 
	 	 
	 	 
	 	21.	 	 	G&E HC REIT II Hot

Springs SNF, LLC

	 	Delaware
	 	100% owned by VA

Portfolio
	 	27-3006862



	 	 	 	 	 

	 	 
	 	 
	 	 
	 	22.	 	 	G&E HC REIT II Midlothian

SNF, LLC

	 	Delaware
	 	100% owned by VA

Portfolio
	 	27-3007051



	 	 	 	 	 

	 	 
	 	 
	 	 
	 	23.	 	 	G&E HC REIT II Bastian

SNF, LLC

	 	Delaware
	 	100% owned by VA

Portfolio
	 	27-3006558



	 	 	 	 	 

	 	 
	 	 
	 	 
	 	24.	 	 	G&E HC REIT II Lebanon

SNF, LLC

	 	Delaware
	 	100% owned by VA

Portfolio
	 	27-3006933



	 	 	 	 	 

	 	 
	 	 
	 	 
	 	25.	 	 	G&E HC REIT II Low Moor

SNF, LLC

	 	Delaware
	 	100% owned by VA

Portfolio
	 	27-3006994



	 	 	 	 	 

	 	 
	 	 
	 	 
	 	26.	 	 	G&E HC REIT II Sylva MOB,

LLC

	 	Delaware



	 	100% owned by OP



	 	90-0626383



	 	 	 	 	 

	 	 
	 	 
	 	 
	 	27.	 	 	G&E HC REIT II Surgical

Hospital of Humble, LLC

	 	Delaware



	 	100% owned by OP



	 	27-3996170



	 	 	 	 	 

	 	 
	 	 
	 	 
	 	28.	 	 	G&E HC REIT II Ennis MOB,

LLC

	 	Delaware



	 	100% owned by OP



	 	27-4062085



	 	 	 	 	 

	 	 
	 	 
	 	 
	 	29.	 	 	G&E HC REIT II St.

Anthony North Denver MOB,

LLC

	 	Delaware





	 	100% owned by OP





	 	27-5348483





	 	 	 	 	 

	 	 
	 	 
	 	 
	 	30.	 	 	G&E HC REIT II Loma Linda

Pediatric Specialty

Hospital, LLC

	 	Delaware





	 	100% owned by OP





	 	27-5348563





	 	 	 	 	 

	 	 
	 	 
	 	 
	 	31.	 	 	G&E HC REIT II Yuma SNF,

LLC

	 	Delaware



	 	100% owned by OP



	 	27-5416463



	 	 	 	 	 

	 	 
	 	 
	 	 
	 	32.	 	 	G&E HC REIT II Lakewood

MOB I, LLC

	 	Delaware



	 	100% owned by OP



	 	27-2841633



	 	 	 	 	 

	 	 
	 	 
	 	 
	 	33.	 	 	G&E HC REIT II Carlsbad

MOB, LLC

	 	Delaware
	 	100% owned by

Dixie-Lobo

Portfolio
	 	27-5408935





	 	 	 	 	 

	 	 
	 	 
	 	 
	 	34.	 	 	G&E HC REIT II Alice MOB,

LLC

	 	Delaware
	 	100% owned by

Dixie-Lobo

Portfolio
	 	27-5408383





	 	 	 	 	 

	 	 
	 	 
	 	 
	 	35.	 	 	G&E HC REIT II Hobbs MOB,

LLC

	 	Delaware
	 	100% owned by

Dixie-Lobo

Portfolio
	 	27-5409062





	 	 	 	 	 

	 	 
	 	 
	 	 
	 	36.	 	 	G&E HC REIT II Hope MOB,

LLC

	 	Delaware
	 	100% owned by

Dixie-Lobo

Portfolio
	 	27-5409203





	 	 	 	 	 

	 	 
	 	 
	 	 
	 	37.	 	 	G&E HC REIT II Lake

Charles MOB, LLC

	 	Delaware
	 	100% owned by

Dixie-Lobo

Portfolio
	 	27-5409437





	 	 	 	 	 

	 	 
	 	 
	 	 
	 	38.	 	 	G&E HC REIT II Lufkin

MOB, LLC

	 	Delaware
	 	100% owned by

Dixie-Lobo

Portfolio
	 	27-5409564





	 	 	 	 	 

	 	 
	 	 
	 	 
	 	39.	 	 	G&E HC REIT II Victoria

MOB, LLC

	 	Delaware
	 	100% owned by

Dixie-Lobo

Portfolio
	 	27-5409651





	 	 	 	 	 

	 	 
	 	 
	 	 
	 	40.	 	 	G&E HC REIT II Wharton

MOB, LLC

	 	Delaware
	 	100% owned by

Dixie-Lobo

Portfolio
	 	27-5409752





	 	 	 	 	 

	 	 
	 	 
	 	 
	 	41.	 	 	G&E HC REIT II Benton

Home Health MOB, LLC

	 	Delaware
	 	100% owned by

Milestone Portfolio
	 	45-1622149



	 	 	 	 	 

	 	 
	 	 
	 	 
	 	42.	 	 	G&E HC REIT II Bryant

MOB, LLC

	 	Delaware
	 	100% owned by

Milestone Portfolio
	 	45-1607268



	 	 	 	 	 

	 	 
	 	 
	 	 
	 	43.	 	 	G&E HC REIT II Care

Pavilion SNF, L.P.

	 	Delaware
	 	99.99% LP owned by

PA LP LLC and 0.01%

GP owned by PA GP

LLC
	 	45-2542855







	 	 	 	 	 

	 	 
	 	 
	 	 
	 	44.	 	 	G&E HC REIT II Cheltenham

York SNF, L.P.

	 	Delaware
	 	99.99% LP owned by

PA LP LLC and 0.01%

GP owned by PA GP

LLC
	 	45-2549091







	 	 	 	 	 

	 	 
	 	 
	 	 
	 	45.	 	 	G&E HC REIT II Cliveden

SNF, L.P.

	 	Delaware
	 	99.99% LP owned by

PA LP LLC and 0.01%

GP owned by PA GP

LLC
	 	45-2543074







	 	 	 	 	 

	 	 
	 	 
	 	 
	 	46.	 	 	G&E HC REIT II Maplewood

Manor SNF, L.P.

	 	Delaware
	 	99.99% LP owned by

PA LP LLC and 0.01%

GP owned by PA GP

LLC
	 	45-2543017







	 	 	 	 	 

	 	 
	 	 
	 	 
	 	47.	 	 	G&E HC REIT II Tucker

House SNF, L.P.

	 	Delaware
	 	99.99% LP owned by

PA LP LLC and 0.01%

GP owned by PA GP

LLC
	 	45-2543117







	 	 	 	 	 

	 	 
	 	 
	 	 
	 	48.	 	 	G&E HC REIT II Lafayette

Rehabilitation Hospital,

LLC

	 	Delaware





	 	100% owned by OP





	 	45-3252453





	 	 	 	 	 

	 	 
	 	 
	 	 
	 	49.	 	 	G&E HC REIT II Austell

MOB, LLC

	 	Delaware
	 	100% owned by Flags

Portfolio
	 	45-3677260



	 	 	 	 	 

	 	 
	 	 
	 	 
	 	50.	 	 	G&E HC REIT II El Paso

MOB, LLC

	 	Delaware



	 	100% owned by OP



	 	35-2426580



	 	 	 	 	 

	 	 
	 	 
	 	 
	 	51.	 	 	GA HC REIT II Amarillo

MOB, LLC

	 	Delaware
	 	100% owned by Gulf

Plains Portfolio
	 	45-5012997



	 	 	 	 	 

	 	 
	 	 
	 	 
	 	52.	 	 	GA HC REIT II River Oaks

Houston MOB, LLC

	 	Delaware
	 	100% owned by Gulf

Plains Portfolio
	 	45-5013053



	 	 	 	 	 

	 	 
	 	 
	 	 
	 	53.	 	 	G&E HC REIT II

Philadelphia SNF

Portfolio Holdings, LLC

(“PA Holdings”)

	 	Delaware







	 	100% owned by OP







	 	45-2047225







	 	 	 	 	 

	 	 
	 	 
	 	 
	 	54.	 	 	G&E HC REIT II

Philadelphia SNF

Portfolio Holdings II,

LLC (“PA Holdings II”)

	 	Delaware





	 	100% owned by PA

Holdings





	 	None







	 	 	 	 	 

	 	 
	 	 
	 	 
	 	55.	 	 	G&E HC REIT II

Philadelphia SNF

Portfolio Holding GP, LLC

(“PA Holding GP”)

	 	Delaware





	 	100% owned by PA

Holdings





	 	45-2542606







	 	 	 	 	 

	 	 
	 	 
	 	 
	 	56.	 	 	G&E HC REIT II

Philadelphia SNF

Portfolio SPE Limited

Partner, LLC (“PA LP

LLC”)

	 	Delaware
	 	89% owned by PA

Holdings, 10.99 %

owned by PA

Holdings II and

0.01% owned by PA

Holding GP
	 	45-2542699











	 	 	 	 	 

	 	 
	 	 
	 	 
	 	57.	 	 	G&E HC REIT II

Philadelphia SNF

Portfolio SPE General

Partner, LLC (“PA GP

LLC”)

	 	Delaware







	 	100% owned by PA LP

LLC







	 	45-2542769









	 	 	 	 	 

	 	 
	 	 
	 	 
	 	58.	 	 	G&E HC REIT II Athens

LTACH, LLC

	 	Delaware
	 	100% owned by

Monument Portfolio
	 	27-3170964



	 	 	 	 	 

	 	 
	 	 
	 	 
	 	59.	 	 	G&E HC REIT II Benton

Medical Plaza I & II MOB,

LLC

	 	Delaware



	 	100% owned by

Milestone Portfolio



	 	45-1621975





	 	 	 	 	 

	 	 
	 	 
	 	 
	 	60.	 	 	G&E HC REIT II Boynton

MOB, LLC

	 	Delaware
	 	100% owned by

Boynton Portfolio
	 	45-3677297



	 	 	 	 	 

	 	 
	 	 
	 	 
	 	61.	 	 	G&E HC REIT II Buckhead

SNF, LLC

	 	Delaware
	 	100% owned by

Southeastern

Portfolio
	 	37-1649819





	 	 	 	 	 

	 	 
	 	 
	 	 
	 	62.	 	 	G&E HC REIT II Burien

MOB, LLC

	 	Delaware
	 	100% owned by

Milestone Portfolio
	 	45-1607155



	 	 	 	 	 

	 	 
	 	 
	 	 
	 	63.	 	 	G&E HC REIT II Cape

Girardeau LTACH, LLC

	 	Delaware
	 	100% owned by

Monument Portfolio
	 	27-3170994



	 	 	 	 	 

	 	 
	 	 
	 	 
	 	64.	 	 	G&E HC REIT II Chula

Vista MOB, LLC

	 	Delaware



	 	100% owned by OP



	 	36-4714137



	 	 	 	 	 

	 	 
	 	 
	 	 
	 	65.	 	 	G&E HC REIT II Columbia

LTACH, LLC

	 	Delaware
	 	100% owned by

Monument Portfolio
	 	27-3171014



	 	 	 	 	 

	 	 
	 	 
	 	 
	 	66.	 	 	G&E HC REIT II Covington

SNF, LLC

	 	Delaware
	 	100% owned by

Southeastern

Portfolio
	 	38-3853542





	 	 	 	 	 

	 	 
	 	 
	 	 
	 	67.	 	 	G&E HC REIT II

Gainesville SNF, LLC

	 	Delaware
	 	100% owned by

Southeastern

Portfolio
	 	61-1661609





	 	 	 	 	 

	 	 
	 	 
	 	 
	 	68.	 	 	G&E HC REIT II Hardy Oak

MOB, LLC

	 	Delaware



	 	100% owned by OP



	 	27-4677824



	 	 	 	 	 

	 	 
	 	 
	 	 
	 	69.	 	 	G&E HC REIT II Highlands

Ranch Medical Pavilion,

LLC

	 	Delaware





	 	100% owned by OP





	 	27-1648773





	 	 	 	 	 

	 	 
	 	 
	 	 
	 	70.	 	 	G&E HC REIT II Hudson

MOB, LLC

	 	Delaware
	 	100% owned by

Milestone Portfolio
	 	45-1607024



	 	 	 	 	 

	 	 
	 	 
	 	 
	 	71.	 	 	G&E HC REIT II Jersey

City MOB, LLC

	 	Delaware
	 	100% owned by

Milestone Portfolio
	 	45-1606960



	 	 	 	 	 

	 	 
	 	 
	 	 
	 	72.	 	 	G&E HC REIT II Joplin

LTACH, LLC

	 	Delaware
	 	100% owned by

Monument Portfolio
	 	27-3171053



	 	 	 	 	 

	 	 
	 	 
	 	 
	 	73.	 	 	G&E HC REIT II Lawton MOB

Portfolio, LLC

	 	Delaware



	 	100% owned by OP



	 	27-4062394



	 	 	 	 	 

	 	 
	 	 
	 	 
	 	74.	 	 	G&E HC REIT II Maxfield

Sarasota MOB, LLC

	 	Delaware



	 	100% owned by OP



	 	27-4576301



	 	 	 	 	 

	 	 
	 	 
	 	 
	 	75.	 	 	G&E HC REIT II Memphis

SNF, LLC

	 	Delaware
	 	100% owned by

Southeastern

Portfolio
	 	30-0701466





	 	 	 	 	 

	 	 
	 	 
	 	 
	 	76.	 	 	G&E HC REIT II Millington

SNF, LLC

	 	Delaware
	 	100% owned by

Southeastern

Portfolio
	 	32-0355009





	 	 	 	 	 

	 	 
	 	 
	 	 
	 	77.	 	 	G&E HC REIT II Mobile SNF

LLC

	 	Delaware
	 	100% owned by

Southeastern

Portfolio
	 	35-2423485





	 	 	 	 	 

	 	 
	 	 
	 	 
	 	78.	 	 	G&E HC REIT II Muskogee

LTACH, LLC

	 	Delaware



	 	100% owned by OP



	 	27-2613348



	 	 	 	 	 

	 	 
	 	 
	 	 
	 	79.	 	 	G&E HC REIT II Okatie

MOB, LLC

	 	Delaware
	 	100% owned by Flags

Portfolio
	 	45-3677329



	 	 	 	 	 

	 	 
	 	 
	 	 
	 	80.	 	 	G&E HC REIT II Pocatello

MOB, LLC

	 	Delaware
	 	100% owned by

Pocatello Portfolio
	 	27-2912816



	 	 	 	 	 

	 	 
	 	 
	 	 
	 	81.	 	 	G&E HC REIT II Rockdale

SNF, LLC

	 	Delaware
	 	100% owned by

Southeastern

Portfolio
	 	36-4711084





	 	 	 	 	 

	 	 
	 	 
	 	 
	 	82.	 	 	G&E HC REIT II Shreveport

SNF, LLC

	 	Delaware
	 	100% owned by

Southeastern

Portfolio
	 	37-1649976





	 	 	 	 	 

	 	 
	 	 
	 	 
	 	83.	 	 	G&E HC REIT II Snellville

SNF, LLC

	 	Delaware
	 	100% owned by

Southeastern

Portfolio
	 	38-3853680





	 	 	 	 	 

	 	 
	 	 
	 	 
	 	84.	 	 	G&E HC REIT II Spokane

MOB, LLC

	 	Delaware
	 	100% owned by

Spokane Portfolio
	 	45-2990308



	 	 	 	 	 

	 	 
	 	 
	 	 
	 	85.	 	 	G&E HC REIT II Spokane

Parking Garage, LLC

	 	Delaware



	 	100% owned by OP



	 	30-0708211



	 	 	 	 	 

	 	 
	 	 
	 	 
	 	86.	 	 	G&E HC REIT II Tempe MOB,

LLC

	 	Delaware
	 	100% owned by Tempe

Portfolio
	 	45-3677360



	 	 	 	 	 

	 	 
	 	 
	 	 
	 	87.	 	 	G&E HC REIT II

Westminster SNF, LLC

	 	Delaware
	 	100% owned by

Southeastern

Portfolio
	 	61-1661770





	 	 	 	 	 

	 	 
	 	 
	 	 
	 	88.	 	 	G&E Healthcare REIT II

Sartell MOB, LLC

	 	Delaware



	 	100% owned by OP



	 	27-1604610



	 	 	 	 	 

	 	 
	 	 
	 	 
	 	89.	 	 	GA HC REIT II Champaign

MOB, LLC

	 	Delaware
	 	100% owned by

Midwestern

Portfolio
	 	45-4319180





	 	 	 	 	 

	 	 
	 	 
	 	 
	 	90.	 	 	GA HC REIT II Lemont MOB,

LLC

	 	Delaware
	 	100% owned by

Midwestern

Portfolio
	 	45-4319401





	 	 	 	 	 

	 	 
	 	 
	 	 
	 	91.	 	 	GA HC REIT II Naperville

MOB, LLC

	 	Delaware
	 	100% owned by

Midwestern

Portfolio
	 	45-4319481





	 	 	 	 	 

	 	 
	 	 
	 	 
	 	92.	 	 	GA HC REIT II Urbana MOB,

LLC

	 	Delaware
	 	100% owned by

Midwestern

Portfolio
	 	45-4319639





	 	 	 	 	 

	 	 
	 	 
	 	 
	 	93.	 	 	GA HC REIT II Jasper MOB

Portfolio, LLC (“Jasper

Portfolio”)

	 	Delaware





	 	100% owned by OP





	 	None





	 	 	 	 	 

	 	 
	 	 
	 	 
	 	94.	 	 	GA HC REIT II Jasper MOB

I, LLC

	 	Delaware
	 	100% owned by

Jasper Portfolio
	 	None



	 	 	 	 	 

	 	 
	 	 
	 	 
	 	95.	 	 	GA HC REIT II Jasper MOB

II, LLC

	 	Delaware
	 	100% owned by

Jasper Portfolio
	 	None



	 	 	 	 	 

	 	 
	 	 
	 	 
	 	96.	 	 	G&E HC REIT II Lubbock

MOB, LLC

	 	Delaware



	 	100% owned by OP



	 	45-3251699



	 	 	 	 	 

	 	 
	 	 
	 	 
	 	97.	 	 	GA HC REIT II Columbia

MOB, LLC

	 	Delaware



	 	100% owned by OP



	 	30-0736595



	 	 	 	 	 

	 	 
	 	 
	 	 
	 	98.	 	 	GA HC REIT II Greeley

MOB, LLC

	 	Delaware



	 	100% owned by OP



	 	None



	 	 	 	 	 

	 	 
	 	 
	 	 
	 	99.	 	 	GA HC REIT II San Antonio

MOB, LLC

	 	Delaware



	 	100% owned by OP



	 	36-4713939



	 	 	 	 	 

	 	 
	 	 
	 	 
	 	100.	 	 	GA HC REIT II San Antonio

Surgical Hospital, LLC

	 	Delaware



	 	100% owned by OP



	 	37-1653123



	 	 	 	 	 

	 	 
	 	 
	 	 
	 	101.	 	 	GA HC REIT II Silver Star

MOB Portfolio, LLC

	 	Delaware



	 	100% owned by OP



	 	30-0726403



	 	 	 	 	 

	 	 
	 	 
	 	 
	 	102.	 	 	GA HC REIT II Texarkana

MOB, LLC

	 	Delaware



	 	100% owned by OP



	 	None



	 	 	 	 	 

	 	 
	 	 
	 	 






1There are 64,072,089.76 total shares of stock
outstanding as of May 29, 2012. Officers and Directors of REIT own 173,691.79
shares. Griffin-American Healthcare REIT Advisor, LLC (“REIT Advisor”), a
limited partner, owns 27,189.08 shares. American Healthcare Investors LLC owns
14,901.25 shares. The remaining shares are owned by the general public.



2There are 64,072,489.76 total OP Units
outstanding as of May 29, 2012. 64,072,089.76 OP Units are owned by REIT, 200
OP Units are owned by Grubb & Elis Healthcare REIT II Advisor, LLC, a limited
partner, and 200 OP Units by REIT Advisor.



23



Schedule 7.01




LIENS




None.






24






Schedule 7.02




INDEBTEDNESS




None.





25






Schedule 7.03




INVESTMENTS




None.






26






Schedule 7.09




NEGATIVE PLEDGES




None.







27






Schedule 10.02




NOTICE ADDRESSES




	 	 	 
	Credit Parties:

	 	

	c/o Griffin-American Healthcare REIT II Holdings, LP

	4000 MacArthur Boulevard

West Tower, Suite 200

Newport Beach, CA 92660

Attention:

Telephone:

Email:

Facsimile:

Website:

	 	





Danny Prosky

(949) 270-9200

dprosky@ahinvestors.com

(949) 474-0442

www.healthcarereit2.com






and to:



	 	 	 
	c/o Griffin-American Healthcare REIT II Holdings, LP

	4000 MacArthur Boulevard

West Tower, Suite 200

Newport Beach, CA 92660

Attention:

Telephone:

Email:

Facsimile:

Website:

	 	





Shannon K S Johnson

(949) 270-9200

sjohnson@ahinvestors.com

(949) 474-0442

www.healthcarereit2.com






	 	 	 
	with a copy to:

	 	

	Cox, Castle & Nicholson LLP

	2049 Century Park East 28th Floor

	Los Angeles, CA 90067

	Attention:

Telephone:

Email:

	 	David Lari

(310) 284-2292

dlari@coxcastle.com






28




Administrative Agent:



For payments and Requests for Credit Extensions:



	 	 	 
	Bank of America, N.A.

	 	

	135 South LaSalle Street, Suite 1060

	Mail Code: IL4-135-10-63

	Chicago, IL 60603

Attention:

Telephone:

Facsimile:

	 	

Carolyn Labatte-Leavitt

(312) 992-2673

(312) 453-3118
	Electronic Mail: carolyn.labatte@baml.com

	ABA #:

Account No.:

Reference:

	 	026-009-593

1366211723001

Griffin-American Healthcare REIT II Holdings, LP






For all other Notices:



	 	 	 
	Bank of America, N.A.

135 South LaSalle Street, Suite 630

Chicago, IL 60603

	 	





	Attention:Michelle Herrick, Senior Vice President

	Telephone:(312) 904-8305

Facsimile:(312) 992-9765

Electronic Mail:

	 	



michelle.herrick@bankofamerica.com
	with a copy to:

	 	

	Bank of America, N.A.

135 South LaSalle Street, Suite 630

Chicago, IL 60603

	 	





	Attention:Keegan Koch, Vice President

	Telephone:(312) 992-6167

Facsimile:(312) 992-9767

Electronic Mail:

	 	



keegan.koch@baml.com






and



	 	 	 
	Bank of America, N.A.

135 South LaSalle Street, Suite 1060

Mail Code: IL4-135-10-63

Chicago, IL 60603

Attention:Carolyn Labatte-Leavitt

Telephone:(312) 992-2673

Facsimile:(312) 453-3118

Electronic Mail:

	 	













carolyn.labatte@baml.com






Lenders:



Contact information on file with the Administrative Agent.




29