EXECUTION COPY


Loan Number 1007312







 


 










AMENDED AND RESTATED TERM LOAN AGREEMENT


 


Dated as of July 2, 2012


 


among


 


AMERICAN REALTY CAPITAL OPERATING PARTNERSHIP,
L.P.,

as Borrower,


 


AMERICAN REALTY CAPITAL TRUST, INC.,

as a Guarantor,


 


WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Administrative Agent


 


TD BANK, N.A. and UNION BANK, N.A.,

as Documentation Agents


 


and


 


The Other Lenders Party Hereto


 


WELLS FARGO SECURITIES, LLC

as

Lead Arranger and Book Manager


 


 



 



    	 



    	 



    



 


Table of Contents


 





Table of Contents


 


	Section	 	Page
	 	 
	Article I. Definitions and Accounting Terms	1
	1.01	Defined Terms	1
	1.02	Other Interpretive Provisions	32
	1.03	Accounting Terms	32
	1.04	Financial Standards	33
	1.05	Rounding	33
	1.06	Times of Day	33
	1.07	Amendment and Restatement of the Interim Agreement	33
	 	 
	Article II. The Credit	34
	2.01	Reallocation; Loans	34
	2.02	Borrowings, Conversions and Continuations of Loans	35
	2.03	Incremental Term Loans	36
	2.04	Extension Offers	37
	2.05	Prepayments	38
	2.06	Reduction and Termination of Commitments	39
	2.07	Repayment of Loans	39
	2.08	Interest	39
	2.09	RESERVED	40
	2.10	Computation of Interest; Retroactive Adjustments of Applicable Rate	40
	2.11	Evidence of Debt	40
	2.12	Payments Generally; Administrative Agent’s Clawback	41
	2.13	Sharing of Payments by Lenders	43
	2.14	RESERVED	43
	2.15	RESERVED	43
	2.16	RESERVED	43
	2.17	Defaulting Lenders	44
	2.18	Guaranties	44
	 	 
	Article III. Taxes, Yield Protection and Illegality	45
	3.01	Taxes	45
	3.02	Illegality	49
	3.03	Inability to Determine Rates	50
	3.04	Increased Costs; Reserves on Eurodollar Loans	50
	3.05	Compensation for Losses	52
	3.06	Mitigation Obligations; Replacement of Lenders	52
	3.07	Survival	53
	 	 
	Article IV. Borrowing Base	53
	4.01	Initial Borrowing Base	53
	4.02	Changes in Borrowing Base Calculation	53
	4.03	Requests for Admission into Borrowing Base	53
	4.04	Eligibility	53
	 	 	 	 



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	4.05	Approval of Borrowing Base Properties	54
	4.06	Liens on Borrowing Base Properties	54
	4.07	Notice of Admission of New Borrowing Base Properties	54
	4.08	RESERVED	54
	4.09	Release of Borrowing Base Property	54
	4.10	Exclusion Events	55
	4.11	Documentation Required with Respect to Borrowing Base Properties	56
	 	 
	Article V. Conditions Precedent to Credit Extensions	56
	5.01	Conditions to Effectiveness	56
	5.02	Conditions to all Credit Extensions	58
	 	 
	Article VI. Representations and Warranties	59
	6.01	Existence, Qualification and Power; Compliance with Laws	59
	6.02	Authorization; No Contravention	59
	6.03	Governmental Authorization; Other Consents	60
	6.04	Binding Effect	60
	6.05	Financial Statements; No Material Adverse Effect	60
	6.06	Litigation	61
	6.07	No Default	61
	6.08	Ownership of Property; Liens; Equity Interests	61
	6.09	Environmental Compliance	61
	6.10	Insurance	62
	6.11	Taxes	62
	6.12	ERISA Compliance	63
	6.13	Subsidiaries; Equity Interests	63
	6.14	Margin Regulations; Investment Company Act	64
	6.15	Disclosure	64
	6.16	Compliance with Laws	64
	6.17	Taxpayer Identification Number	64
	6.18	Intellectual Property; Licenses, Etc	64
	6.19	Representations Concerning Leases	65
	6.20	Solvency	65
	6.21	REIT Status of Parent	65
	6.22	Labor Matters	65
	6.23	Ground Lease Representation	65
	6.24	Borrowing Base Properties	66
	6.25	Patriot Act and Other Specified Laws	66
	 	 
	Article VII. Affirmative Covenants	67
	7.01	Financial Statements	67
	7.02	Certificates; Other Information	68
	7.03	Notices	70
	7.04	Payment of Obligations	71
	7.05	Preservation of Existence, Etc	71
	7.06	Maintenance of Properties	71
	7.07	Maintenance of Insurance	72



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	7.08	Compliance with Laws	72
	7.09	Books and Records	72
	7.10	Inspection Rights	72
	7.11	Use of Proceeds	73
	7.12	Environmental Matters	73
	7.13	Maintenance of Status	73
	7.14	Ground Leases	73
	7.15	Borrowing Base Properties	74
	7.16	Subsidiary Guarantor Organizational Documents	74
	7.17	UCC Termination Statements	75
	 	 
	Article VIII. Negative Covenants	75
	8.01	Liens	75
	8.02	Investments	76
	8.03	Fundamental Changes	77
	8.04	Dispositions	78
	8.05	Restricted Payments	78
	8.06	Change in Nature of Business	79
	8.07	Transactions with Affiliates	79
	8.08	Burdensome Agreements	80
	8.09	Use of Proceeds	80
	8.10	Borrowing Base Properties; Ground Leases	80
	8.11	Incentive Listing Fee Note	81
	8.12	Environmental Matters	82
	8.13	Negative Pledge; Indebtedness	82
	8.14	Financial Covenants	83
	 	 
	Article IX. Events of Default and Remedies	84
	9.01	Events of Default	84
	9.02	Remedies Upon Event of Default	86
	9.03	Application of Funds	87
	 	 
	Article X. Administrative Agent	87
	10.01	Appointment and Authority	88
	10.02	Rights as a Lender	88
	10.03	Exculpatory Provisions	88
	10.04	Reliance by Administrative Agent	89
	10.05	Delegation of Duties	89
	10.06	Successor Administrative Agent	90
	10.07	Non-Reliance on Administrative Agent and Other Lenders	90
	10.08	No Other Duties, Etc	90
	10.09	Administrative Agent May File Proofs of Claim	91
	10.10	Collateral and Guaranty Matters	91
	10.11	Funds Transfer Disbursements	93
	10.12	Requests for Approval	93
	10.13	Exercise of Rights by Lenders	94



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	Article XI. Miscellaneous	94
	11.01	Amendments, Etc	94
	11.02	Notices; Effectiveness; Electronic Communication	95
	11.03	No Waiver; Cumulative Remedies; Enforcement	98
	11.04	Expenses; Indemnity; Damage Waiver	98
	11.05	Payments Set Aside	103
	11.06	Successors and Assigns	103
	11.07	Treatment of Certain Information; Confidentiality	108
	11.08	Right of Setoff	109
	11.09	Interest Rate Limitation	109
	11.10	Counterparts; Integration; Effectiveness	110
	11.11	Survival of Representations and Warranties	110
	11.12	Severability	110
	11.13	Replacement of Lenders	110
	11.14	Governing Law; Jurisdiction; Etc.	111
	11.15	Waiver of Jury Trial	112
	11.16	No Advisory or Fiduciary Responsibility	112
	11.17	Electronic Execution of Assignments and Certain Other Documents	113
	11.18	USA PATRIOT Act	113
	11.19	ENTIRE AGREEMENT	113


 










 


Schedules


 


Schedule 2.01 – Commitments


Schedule 4.01 – Initial Borrowing Base Properties


Schedule 6.06 – Litigation


Schedule 6.09 – Environmental Matters


Schedule 6.13 – Subsidiaries and Other Equity Investments


Schedule 6.18 – Intellectual Property Matters


Schedule 8.01 – Existing Liens


Schedule 8.13 – Indebtedness


Schedule 11.02 – Addresses for Notices


 


Exhibits


 


Exhibit A – Form of Loan Notice


Exhibit B – Form of Note


Exhibit C – Form of Compliance Certificate


Exhibit D-1 – Assignment and Assumption


Exhibit D-2 – Form of Administrative Questionnaire


Exhibit E – Form of Borrowing Base Report


Exhibit F – Transfer Authorizer Designation Form


Exhibit G – Form of Incentive Listing Fee Note


Exhibit H – Form of Subordination Agreement


Exhibit I – Form of Amendment Regarding Incremental Term
Loans


Exhibit J – List of Closing Documents






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AMENDED AND RESTATED TERM LOAN AGREEMENT


 


This AMENDED AND RESTATED
TERM LOAN AGREEMENT (“Agreement”) is entered into as of July 2, 2012, among AMERICAN REALTY CAPITAL OPERATING
PARTNERSHIP, L.P., a Delaware limited partnership (“Borrower”), AMERICAN REALTY CAPITAL TRUST, INC., a Maryland
corporation and the sole member of the sole general partner of Borrower (“Parent”), each lender from time to
time party hereto (collectively, the “Lenders” and individually, a “Lender”), Wells Fargo
Bank, National Association (“Wells Fargo”), as Administrative Agent (in such capacity, “Administrative
Agent”), and TD BANK, N.A. and UNION BANK, N.A., as Documentation Agents.


 


WHEREAS, Borrower,
Parent, certain Lenders and Administrative Agent are party to that certain Term Loan Agreement dated as of April 16, 2012 (the
“Interim Agreement”) among Borrower, as borrower, Parent, the lenders thereunder (the “Existing Lenders”)
and Wells Fargo, as Administrative Agent;


 


WHEREAS, Borrower,
Parent, Lenders and Administrative Agent have agreed to enter into this Agreement in order to (i) amend and restate the Interim
Agreement in its entirety; (ii) re-evidence the “Obligations” under, and as defined in, the Interim Agreement, which
shall be repayable in accordance with the terms of this Agreement; and (iii) set forth the terms and conditions under which (x)
the Existing Loans (as defined below) shall be reallocated as Loans (as defined below) owing to Lenders under this Agreement in
accordance with each Lender’s Applicable Percentage and (y) the Lenders shall, in order to effect such reallocation, purchase
Existing Loans from the Existing Lenders, in each case, on the Restatement Effective Date;


 


WHEREAS, it
is the intent of the parties hereto that this Agreement not constitute a novation of the obligations and liabilities of the parties
under the Interim Agreement or be deemed to evidence or constitute full repayment of such obligations and liabilities, but that
this Agreement amend and restate in its entirety the Interim Agreement and re-evidence the obligations and liabilities of Borrower
outstanding thereunder, which shall be payable in accordance with the terms hereof; and


 


WHEREAS, it
is also the intent of each of Borrower and Parent to confirm that all obligations under the Interim Agreement and “Loan Documents”
(as referred to and defined in the Interim Agreement) shall continue in full force and effect as modified and/or restated hereby
and that, from and after the Restatement Effective Date, all references to the “Agreement” contained in any such existing
“Loan Documents” shall be deemed to refer to this Agreement;


 


NOW, THEREFORE, in
consideration of the premises and the mutual covenants contained herein, the parties hereto hereby agree that the Interim Agreement
is hereby amended and restated in its entirety as follows:


 


Article
I.

Definitions and Accounting Terms


 


1.01Defined
Terms. As used in this Agreement, the following terms shall have the meanings set forth below:


 



    	1



    	 



    

“Acceptable
Environmental Report” means, with respect to any Real Property, an environmental report reasonably acceptable to the
Administrative Agent.


 


“Acceptable
Ground Lease” means a ground lease with respect to an Acceptable Property executed by a Property Owner, as lessee, that
has a remaining lease term (including extension or renewal rights) of at least thirty-five (35) years, calculated as of the date
such Acceptable Property is admitted into the Borrowing Base, and that Administrative Agent determines, in its commercial reasonable
discretion, is a financeable ground lease.


 


“Acceptable
Property” means a Property (a) that is approved by Administrative Agent and meets the following requirements, or (b)
that is approved by Administrative Agent and the Required Lenders:


 


(i)such
Property is wholly-owned by, or ground leased pursuant to an Acceptable Ground Lease to, Borrower or a Subsidiary Guarantor free
and clear of any Liens (other than Liens permitted by Section 8.01);


 


(ii)such
Property is a retail, hotel, industrial and/or office property located within the United States which is one hundred percent (100%)
leased and occupied by a single tenant, with any Property which is leased to a single tenant having a lease expiration no earlier
than December 31, 2015, with any Property which is or includes a gas station being expressly excluded as an Acceptable Property;
and


 


(iii)if
such Property is owned by, or ground leased pursuant to an Acceptable Ground Lease to, a Subsidiary Guarantor, then the Equity
Interests of such Subsidiary Guarantor are owned, directly or indirectly by Borrower, free and clear of any Liens other than Liens
permitted by Section 8.01.


 


“Adjusted
Borrowing Base NOI” means, with respect to any Borrowing Base Property for the prior quarter, annualized, Borrowing Base
NOI for such Borrowing Base Property less the Capital Reserve for such Borrowing Base Property.


 


“Administrative
Agent” means Wells Fargo Bank, in its capacity as administrative agent under any of the Loan Documents, or any successor
administrative agent.


 


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


 


“Administrative
Questionnaire” means an Administrative Questionnaire in substantially the form of Exhibit D-2 or any other form
approved by 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.


 


“Aggregate
Commitments” means the Commitments of all the Lenders, which, as of the Restatement Effective Date, total two hundred
thirty-five million Dollars ($235,000,000).


 



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“Agreement”
means this Amended and Restated Term Loan Agreement.


 


“Applicable
Percentage” means, with respect to any Lender at any time, (i) immediately upon the occurrence of the Restatement Effective
Date, the percentage (carried out to the ninth decimal place) of the Aggregate Commitments represented by such Lender’s Commitment
at such time and (ii) upon and following the reallocation and assignment of the Existing Loans on the Restatement Effective Date
(or in the case of a payment by the Borrower), a percentage (carried out to the ninth decimal place) equal to a fraction the numerator
of which is such Lender’s outstanding principal amount of the Loans and the denominator of which is the Total Outstandings;
provided that in the case of Section 2.17 when a Defaulting Lender shall exist, any such Defaulting Lender’s Commitment or
Loans, as applicable, shall be disregarded in all aspects of the calculation.


 


“Applicable
Rate” means the following percentages per annum, based upon the Consolidated Leverage Ratio as set forth in the most-recent
Compliance Certificate received by Administrative Agent pursuant to Section 7.02(a):


 


Applicable Rate


 


	
        Pricing

        Level
	
        Consolidated
        Leverage

        Ratio
	
        Applicable

        Rate

	1	< 40%	1.95%
	2	≥ 40% but < 45%	2.10%
	3	≥ 45% but < 50%	2.35%
	4	≥ 50% but < 55%	2.55%
	5	≥ 55%	2.75%


 


Any increase or decrease
in the Applicable Rate resulting from a change in the Consolidated Leverage Ratio shall become effective as of the first (1st)
Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 7.02(a) provided that
if a Compliance Certificate is not delivered when due in accordance with such Section, then, upon the request of Required Lenders,
Pricing Level 5 shall apply as of the first (1st) Business Day after the date on which such Compliance Certificate was
required to have been delivered and shall remain in effect until the date on which such Compliance Certificate is delivered. The
Applicable Rate in effect from the Restatement Effective Date until adjusted as set forth above shall be set at Pricing Level 3
(based upon the Pro Forma Financial Statements).


 


In the event that the
Parent or the Borrower obtains Ratings of BBB- or better from S&P or Baa3 or better from Moody’s during the term
of this Agreement, at the election of the Borrower upon written notice to the Administrative Agent, addressed to the Administrative
Agent and the Lenders, the Applicable Rate shall vary from time to time in accordance with the then effective Ratings as follows
(such that the Applicable Rate shall change from time to time when the Rating changes):


 


	
        Pricing

        Level
	
        Rating
	
        Applicable

        Rate

	I	≥ A-/ A3	1.15%
	II	BBB+/Baa1	1.25%
	III	BBB/Baa2	1.45%
	IV	BBB-/Baa3	1.75%
	V	BB+/Ba1	2.05%
	VI	<BB+/Ba1	2.35%


 


 



    	3



    	 



    

 


 


The Applicable Rate
shall be determined by the higher of the two Ratings from S&P or Moody’s; provided that (i) in the event that the two
Ratings are two tiers apart, the tier corresponding to the midpoint of the Ratings shall apply and (ii) in the event that the Ratings
are more than two tiers apart, the tier that is two tiers below the higher of the two Ratings shall apply. If only one of S&P
and Moody’s shall have assigned a Rating, the Applicable Rate shall be determined by the sole Rating in effect. If neither
S&P nor Moody’s shall have assigned a Rating, the Applicable Rate shall be determined based on Level VI of the table
above.


 


Notwithstanding anything
to the contrary contained in this definition, the determination of the Applicable Rate 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.


 


“Assignee
Group” means two (2) or more Eligible Assignees that are Affiliates of one another or two (2) 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 assignee (with the consent of any
party whose consent is required by Section 11.06(c)(iii)), and accepted by Administrative Agent, in substantially the form
of Exhibit D-1 or any other form approved by Administrative Agent and Borrower.


 


“Attributable
Indebtedness” means, on any date, in respect of any Capital Lease of any Person, the capitalized amount thereof that
would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP.


 


“Audited Financial
Statements” means initially, the financial statements of Parent required for the fiscal year ending December 31, 2011,
then after the delivery of the financial statements of Parent required pursuant to Section 7.01(a) for the fiscal
year ending December 31, 2012, the most-recent financial statements furnished pursuant to Section 7.01(a).


 


“Available
Loan Amount” means, as of any date of determination, the lesser of (a) the Aggregate Commitments, and (b) the Borrowing
Base.


 


“Balloon Payments”
shall mean with respect to any loan constituting Indebtedness, any required principal payment of such loan which is payable at
the maturity of such Indebtedness, provided, however, that the final payment of a fully amortized loan shall not constitute a Balloon
Payment.


 



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“Base LIBOR
Rate” means, with respect to any Eurodollar Loan, for any Interest Period, the rate of interest obtained by dividing
(i) the rate of interest, rounded upward to the nearest whole multiple of one-hundredth of one percent (0.01%), referred to as
the BBA (British Bankers’ Association) LIBOR rate as set forth by any service selected by the Administrative Agent that has
been nominated by the British Bankers’ Association as an authorized information vendor for the purpose of displaying such
rate for deposits in U.S. Dollars at approximately 11:00 a.m. (Eastern Time), two (2) Business Days prior to the date of commencement
of such Interest Period for purposes of calculating effective rates of interest for loans or obligations making reference thereto,
for an amount approximately equal to the applicable Eurodollar Loan and for a period of time approximately equal to such Interest
Period by (ii) a percentage equal to 1 minus the stated maximum rate (stated as a decimal) of all reserves, if any, required to
be maintained with respect to eurocurrency funding (currently referred to as “Eurocurrency liabilities”) as specified
in Regulation D of the Board of Governors of the Federal Reserve System (or against any other category of liabilities which includes
deposits by reference to which the interest rate on Eurodollar Loans is determined or any applicable category of extensions of
credit or other assets which includes loans by an office of any Lender outside of the United States of America). Any change in
such maximum rate shall result in a change in the Base LIBOR Rate on the date on which such change in such maximum rate becomes
effective.


 


“Borrower”
has the meaning specified in the introductory paragraph hereto.


 


“Borrower
Materials” has the meaning specified in Section 7.02.


 


“Borrowing”
means Loans of the same Type, made, converted or continued on the same date and, in the case of Eurodollar Loans, as to which a
single Interest Period is in effect.


 


“Borrowing
Base” means, as of any date of determination, the lesser of (a) the amount of Total Outstandings such that the Borrowing
Base Asset Value Ratio shall not be less than 1.60 to 1.0, and (b) the Implied Loan Amount. Notwithstanding the foregoing, (1)
the amount of the Borrowing Base attributable to any Dark Property shall not exceed five percent (5%) of the Borrowing Base, and
(2) the amount of the Borrowing Base attributable to any individual Borrowing Base Property shall not exceed twenty percent (20%)
of the Borrowing Base.


 


“Borrowing
Base Asset Value” means, as of any date of determination, the sum of (a) (i) the aggregate Adjusted Borrowing Base NOI
from Borrowing Base Properties owned for the entire prior quarter divided by (ii) the Capitalization Rate, plus (b) the aggregate
acquisition cost of all Borrowing Base Properties owned for a period less than the entire prior quarter; provided that (a) the
aggregate Borrowing Base Asset Value from Borrowing Base Properties owned pursuant to an Acceptable Ground Lease shall not exceed
fifteen percent (15%) of the aggregate Borrowing Base Asset Value, and (b) the aggregate Borrowing Base Asset Value from Borrowing
Base Properties which are hotels or convenience stores shall not exceed ten percent (10%) of the aggregate Borrowing Base Asset
Value.


 


“Borrowing
Base Asset Value Ratio” means, as of any date of determination, the ratio of (a) Borrowing Base Asset Value to (b) the
sum of (x) the Total Outstandings plus (y) the Total Revolver Outstandings plus (z) the aggregate unsecured Indebtedness (other
than the Incentive Listing Fee Note) of the Consolidated Group.


 



    	5



    	 



    

“Borrowing
Base Debt Service Coverage Ratio” means, as of any date of determination, the ratio of (a) the aggregate Adjusted Borrowing
Base NOI with respect to the Borrowing Base Properties for the quarter most-recently ended for which financial statements are available
divided by (b) pro forma annual debt service on an amount equal to the sum of (x) Total Outstandings plus (y) Total Revolver Outstandings
plus (z) the aggregate unsecured Indebtedness (other than the Incentive Listing Fee Note) of the Consolidated Group assuming a
twenty five (25) year amortization and an interest rate equal to the greater of (i) seven percent (7.0%) per annum, or (ii) the
sum of (A) the most-recent rate published on such date in the United States Federal Reserve Statistical Release (H.15) for ten
(10) year Treasury Constant Maturities plus (B) three percent (3.0%).


 


“Borrowing
Base NOI” means, as of any date, the sum of (a) the aggregate NOI for the most recent fiscal quarter for which financial
results have been reported attributable to all Borrowing Base Properties owned for the entirety of such fiscal quarter as of the
last day of such fiscal quarter plus, (b) in the case of any Borrowing Base Property that was owned as of the last day of such
fiscal quarter by a Subsidiary Guarantor, but not so owned for the full fiscal quarter, the additional amount of NOI that would
have been earned if such Borrowing Base Property had been so owned for the full fiscal quarter.


 


“Borrowing
Base Properties” means each Acceptable Property that either (a) is an Initial Borrowing Base Property or (b) becomes
a Borrowing Base Property pursuant to Section 4.03, but excluding any Acceptable Properties that have been released from
the Borrowing Base pursuant to Section 4.09, and “Borrowing Base Property” means any one of the Borrowing
Base Properties, provided that after the date that is six (6) months after a Borrowing Base Property becomes a Dark Property, said
Property shall no longer constitute a Borrowing Base Property and its Borrowing Base Asset Value and Adjusted Borrowing Base NOI
shall be excluded when calculating the Borrowing Base.


 


“Borrowing
Base Report” means a report in substantially the form of Exhibit E (or such other form approved by Administrative
Agent) certified by a Responsible Officer of Borrower.


 


“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, the state where Administrative Agent’s Office is located or the State of New York,
and, if such day relates to any Eurodollar Loan, means any such day that is also a London Banking Day.


 


“Capital Lease”
means, with respect to any Person, the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified
and accounted for as capital leases on a balance sheet of such Person under GAAP.


 


“Capital Lease
Obligations” means, with respect to any Person for any period, the capitalized amount of obligations under Capital Leases
for such Person for such period as determined in accordance with GAAP.


 


“Capital Reserve”
means a capital reserve of $0.20 per weighted average gross leasable square foot for each Property.


 



    	6



    	 



    

“Capitalization
Rate” means eight and 25/100 percent (8.25).


 


“Cash Equivalents”
means any of the following types of Investments, to the extent owned by Guarantor, Borrower or any of their Subsidiaries free and
clear of all Liens (other than Liens created under the Security Documents and other Liens permitted hereunder):


 


(a)readily
marketable obligations issued or directly and fully guaranteed or insured by the United States of America or any agency or instrumentality
thereof having maturities of not more than 360 days from the date of acquisition thereof; provided that the full faith and credit
of the United States of America is pledged in support thereof;


 


(b)demand
or time deposits with, or insured certificates of deposit or bankers’ acceptances of, any commercial bank that (A) is a Lender
or (B) (i) is organized under the laws of the United States of America, any state thereof or the District of Columbia or is the
principal banking subsidiary of a bank holding company organized under the laws of the United States of America, any state thereof
or the District of Columbia, and is a member of the Federal Reserve System, (ii) issues (or the parent of which issues) commercial
paper rated as described in clause (c)of this definition and (iii) has combined capital and surplus of at least $1,000,000,000,
in each case with maturities of not more than 90 days from the date of acquisition thereof;


 


(c)commercial
paper in an aggregate amount of no more than $5,000,000 per issuer outstanding at any time issued by any Person organized under
the laws of any state of the United States of America and rated at least “Prime-1” (or the then equivalent grade) by
Moody’s or at least “A-1” (or the then equivalent grade) by S&P, in each case with maturities of not more
than 180 days from the date of acquisition thereof; and


 


(d)Investments,
classified in accordance with GAAP as current assets of the REIT or any of its Subsidiaries, in money market investment programs
registered under the Investment Company Act of 1940, which are administered by financial institutions that have the highest rating
obtainable from either Moody’s or S&P, and the portfolios of which are limited solely to Investments of the character,
quality and maturity described in clauses (a), (b) and (c) of this definition.


 


“Change in
Law” means the occurrence, after the date of this Agreement, 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
or application thereof by any Governmental Authority; or (c) the making or issuance of any request, guideline or directive (whether
or not having the force of law) by any Governmental Authority; without limiting the foregoing, Change in Law shall include the
Dodd-Frank Act, Public Law 111-203, 12 U.S.C. 5301 et seq., enacted July 21, 2010, as well as all requests, rules, guidelines,
requirements 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,
regardless of the date enacted, adopted, issued or implemented.


 


“Change of
Control” means an event or series of events by which:


 



    	7



    	 



    

(a)any
“person” or “group” (as such terms are used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its Subsidiaries, and any person
or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial
owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group
shall be deemed to have “beneficial ownership” of all Equity Interests that such person or group has the right to acquire,
whether such right is exercisable immediately or only after the passage of time (such right, an “option right”)),
directly or indirectly, of thirty-five percent (35%) or more of the Equity Interests of Parent entitled to vote for members of
the board of directors or equivalent governing body of Parent on a fully-diluted basis (and taking into account all such Equity
Interests that such person or group has the right to acquire pursuant to any option right);


 


(b)William
M. Kahane and Nicholas Schorsch shall cease to be members of the board of directors or other equivalent governing body of Parent,
unless replaced by a director acceptable to the Administrative Agent, in its sole discretion; or


 


(c)Parent
shall cease to (i) either be the sole general partner of, or wholly own and control the general partner of, Borrower or (ii) own,
directly or indirectly, greater than fifty percent (50%) of the Equity Interests of Borrower; or


 


(d)Borrower
shall cease to own, directly or indirectly, one hundred percent (100%) of the Equity Interests of any Subsidiary Guarantor that
owns a Borrowing Base Property free and clear of any Liens (other than Liens in favor of Administrative Agent) unless Borrower
removes the Borrowing Base Property owned by such Subsidiary Guarantor from the Borrowing Base in accordance with Section 4.09.


 


“Code”
means the Internal Revenue Code of 1986.


 


“Collateral”
means the Equity Interest Collateral, and all other property of the Companies on which Liens have been granted to Administrative
Agent, for the benefit of the Lenders, to secure the Obligations.


 


“Commitment”
means, as to each Lender, its obligation to make Loans to Borrower pursuant to Section 2.01, in an aggregate principal amount
at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01 or in
the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted
from time to time in accordance with this Agreement.


 


“Companies”
means, without duplication, Parent and its Consolidated Subsidiaries (including Borrower), and “Company” means
any one of the Companies.


 


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


 


“Condemnation”
means a temporary or permanent taking by any Governmental Authority as the result, in lieu, or in anticipation, of the exercise
of the right of condemnation or eminent domain of all or any part of any Borrowing Base Property, or any interest therein or right
accruing thereto, including any right of access thereto or any change of grade affecting any Borrowing Base Property or any part
thereof.


 



    	8



    	 



    

“Consolidated
Adjusted EBITDA” means (a) three (3) month trailing Consolidated EBITDA of the Consolidated Group, less the Capital Reserve,
multiplied by (b) four (4).


 


“Consolidated
EBITDA” means, for any Person for any period, an amount equal to (a) Consolidated Net Income for the trailing three months,
plus (b) the sum of the following (without duplication and to the extent reflected as a charge in the statement of such Consolidated
Net Income for such period): (i) income tax expense; (ii) interest expense, amortization or write-off of debt discount and debt
issuance costs and commissions, discounts and other fees and charges associated with Indebtedness; (iii) depreciation and amortization
expense; (iv) amortization of intangibles (including goodwill) and organization costs; (v) any extraordinary, unusual or non-recurring
expenses or losses (including, whether or not otherwise includable as a separate item in the statement of such Consolidated Net
Income for such period, losses on sales of assets outside of the ordinary course of business and costs and expenses incurred during
such period with respect to acquisitions consummated); (vi) any other non-cash charges, (vii) all commissions, guaranty fees, discounts
and other fees and charges owed by such Person with respect to letters of credit and bankers’ acceptance financing and net
costs of such Person under Swap Contracts in respect of interest rates to the extent such net costs are allocable to such period
in accordance with GAAP; and (viii) fees, expenses and charges incurred during such period, in an aggregate amount during the term
of this Agreement not to exceed $10,000,000, directly relating to (A) the issuance of any Equity Interests of such Person permitted
hereunder (including, in each case, any such transaction undertaken but not completed) or (B) the Tender Offer Transactions (including,
without limitation, the negotiation of and entry into the First Amendment to the Existing Revolving Credit Agreement) or (C) the
negotiation of and entry into this Agreement, the Interim Agreement, the Second Amendment to the Existing Revolving Credit Agreement
and any future amendments to this Agreement or the Existing Revolving Credit Agreement), minus (c) the sum of the following (to
the extent included in the statement of such Consolidated Net Income for such period): (i) interest income (except to the extent
deducted in determining such Consolidated Net Income); (ii) any extraordinary, unusual or non-recurring income or gains (including,
whether or not otherwise includable as a separate item in the statement of such Consolidated Net Income for such period, gains
on the sales of assets outside of the ordinary course of business); (iii) any other non-cash income; and (iv) any cash payments
made during such period in respect of items described in clause (b)(v) above subsequent to the fiscal quarter in which the
relevant non-cash expenses or losses were reflected as a charge in the statement of Consolidated Net Income.


 


“Consolidated
Fixed Charges” means, on a consolidated basis annualized, for the Consolidated Group for any period, the sum (without
duplication) of (a) Consolidated Interest Expense, (b) provision for cash income taxes made by such Person on a consolidated basis
in respect of such period, (c) scheduled principal amortization payments due during such period on account of Indebtedness of such
Person (excluding Balloon Payments), and (d) Restricted Payments paid in cash with respect to preferred Equity Interests of such
Person during such period.


 



    	9



    	 



    

“Consolidated
Group” means the Parent and all Persons whose financial results are consolidated with the Parent for financial reporting
purposes under GAAP.


 


“Consolidated
Interest Expense” means, for any Person for any period, the total interest expense (including that attributable to Capital
Lease Obligations) of such Person for such period with respect to all outstanding Total Funded Debt (including all commissions,
discounts and other fees and charges owed by such Person with respect to letters of credit and bankers’ acceptance financing
and net costs of such Person under Swap Contracts in respect of interest rates to the extent such net costs are allocable to such
period in accordance with GAAP). Consolidated Interest Expenses shall exclude interest rate hedge termination payments or receipts,
loan prepayment costs, and upfront loan fees, interest expense covered by an interest reserve established under a loan facility
and any interest expense under any construction loan or construction activity that under GAAP is required to be capitalized.


 


“Consolidated
Leverage Ratio” means, as of any date of determination, the quotient (expressed as a percentage) of (a) Consolidated
Total Debt, divided by (b) Total Asset Value.


 


“Consolidated
Net Income” means, for any Person for any period, the consolidated net income (or loss) of such Person for such period,
determined on a consolidated basis in accordance with GAAP; provided that in calculating Consolidated Net Income of the Parent
for any period, there shall be excluded (a) the income (or deficit) of any Person accrued prior to the date it becomes a Subsidiary
or is merged into or consolidated with Parent or any of its Subsidiaries, (b) the income (or deficit) of any Person (other than
a Company) in which any Company has an ownership interest, except to the extent that any such income is actually received by such
Company in the form of dividends or similar distributions, and (c) the undistributed earnings of any Subsidiary of any Company
to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary is not at the time permitted
by the terms of any Contractual Obligation (other than under any Loan Document) or requirement of Law applicable to such Subsidiary.


 


“Consolidated
Subsidiary” means any Person in which Parent or Borrower has a direct or indirect Equity Interest and whose financial
results would be consolidated under GAAP with the financial results of Parent on the consolidated financial statements of Parent.


 


“Consolidated
Total Debt” means, as of any date of determination, (1) the Parent’s consolidated pro rata share of Indebtedness
which includes all GAAP Indebtedness (adjusted to eliminate increases or decreases arising from FAS-141) including recourse and
non-recourse mortgage debt, letters of credit, net obligations under uncovered interest rate contracts, contingent obligations
to the extent the obligations are binding, unsecured debt, capitalized lease obligations (including ground leases), guarantees
of indebtedness (excluding traditional carve-outs relating to non-recourse debt obligations), subordinated debt, and (2) the Parent’s
pro rata share of preferred obligations that are structurally senior to the Obligations.


 


“Construction
in Progress” means each Property that is either (a) new ground up construction which has commenced or is intended to
be under construction within twelve (12) months or (b) under renovation in which (i) greater than thirty percent (30%) of the square
footage of such Property is unavailable for occupancy due to renovation and (ii) no rents are being paid on such square footage.
A Property will cease to be classified as “Construction in Progress” on the earlier to occur of (A) the time that such
Property has an Occupancy Rate of greater than ninety percent (90%), or (B) one hundred eighty (180) days after completion of construction
or renovation of such Property, as applicable.


 



    	10



    	 



    

“Contamination”
means the presence of Hazardous Materials in amounts exceeding regulatory action levels.


 


“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. The terms “Controlling”
and “Controlled” have meanings correlative thereto.


 


“Credit Extension”
means a Borrowing.


 


“Customary
Recourse Exceptions” means, with respect to any Indebtedness, personal recourse that is limited to fraud, misrepresentation,
misapplication of cash, waste, environmental claims and liabilities, prohibited transfers, and violations of single purposes entity
covenants.


 


“Dark Property”
shall mean a Borrowing Base Property where one or more of the tenants previously occupying the Borrowing Base Property has vacated
the Borrowing Base Property, but the Borrowing Base Property remains 100% leased (without regard to any subleases) to a tenant
maintaining a rating of BBB-/Baa3 or better, which tenant is current on payments, has a minimum of eight (8) years left on the
applicable lease and does not have any right to terminate its lease.


 


“Debtor Relief
Laws” means the Bankruptcy Code of the United States, 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 or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time,
or both, would be an Event of Default.


 


“Default Rate”
means an interest rate equal to the Floating Rate plus two percent (2%) per annum.


 


“Defaulting
Lender” means, subject to Section 2.17(c), any Lender that (a) has failed to (i) fund all or any portion of its Loans
within two (2) 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 good-faith determination that one or more
conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically
identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent or any other Lender any other amount
required to be paid by it hereunder within two (2) Business Days of the date when due, (b) has notified the Borrower or the Administrative
Agent in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that
effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that
such position is based on such Lender’s good-faith 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 (3) Business Days after 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 of America or from the
enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject,
repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent
that a Lender is a Defaulting Lender under clauses (a) through (d) above shall be conclusive and binding absent manifest error,
and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.17(c)) upon delivery of written notice of such
determination to the Borrower and each Lender by the Administrative Agent, and the Administrative Agent hereby agrees to promptly
provide such notice.


 



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“Disposition”
or “Dispose” means the sale, transfer, license, lease (other than a real estate lease entered into in the ordinary
course of business as part of Property leasing operations) 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 but excluding any arrangement constituting a Lien.


 


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


 


“Eligible
Assignee” means (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund and (d) any other Person (other than
a natural person) approved by the Administrative Agent (such approval not to be unreasonably withheld or delayed by any of the
foregoing); provided that notwithstanding the foregoing, “Eligible Assignee” shall not include the Borrower or any
of the Borrower’s Affiliates or Subsidiaries.


 


“Engagement
Letter” means the letter agreement, dated March 27, 2012, among Borrower, Administrative Agent and the Lead Arranger.


 



    	12



    	 



    

“Environmental
Assessment” means a report of an environmental assessment of any or all Borrowing Base Properties and of such scope so
as to be compliant with the guidelines established by the ASTM (including the taking of soil borings and air and groundwater samples
and other above and below ground testing) as Administrative Agent may reasonably request to be performed by a licensed environmental
consulting firm reasonably acceptable to Administrative Agent.


 


“Environmental
Claim” means any investigative, enforcement, cleanup, removal, containment, remedial, or other private or governmental
or regulatory action at any time instituted or completed pursuant to any applicable Environmental Requirement against any Company
or against or with respect to any Real Property or any condition, use, or activity on any Real Property (including any such action
against Administrative Agent or any Lender), and any claim at any time made by any Person against any Company or against or with
respect to any Real Property or any condition, use, or activity on any Real Property (including any such claim against Administrative
Agent or any Lender), relating to damage, contribution, cost recovery, compensation, loss, or injury resulting from or in any way
arising in connection with any Hazardous Material or any Environmental Requirement.


 


“Environmental
Damages” means all liabilities (including strict liability), losses, damages (excluding consequential, special, exemplary
or punitive damages except to the extent such damages were imposed upon an Indemnitee as a result of any claims made against such
Indemnitee by a governmental entity or any other third party), judgments, penalties, fines, costs and expenses (including fees,
costs and expenses of attorneys, consultants, contractors, experts and laboratories), of any and every kind or character, at law
or in equity, contingent or otherwise, matured or unmatured, foreseeable or unforeseeable, made, incurred, suffered, brought, or
imposed at any time and from time to time, whether before or after the Release Date and arising in whole or in part from:


 


(a)the
presence of any Hazardous Material on any Borrowing Base Property in violation of any Environmental Requirement, or any escape,
seepage, leakage, spillage, emission, release, discharge or disposal of any Hazardous Material on or from any Borrowing Base Property,
or the migration or release or threatened migration or release of any Hazardous Material to, from or through any Borrowing Base
Property, on or before the Release Date; or


 


(b)any
act, omission, event or circumstance existing or occurring in connection with the handling, treatment, containment, removal, storage,
decontamination, clean up, transport or disposal of any Hazardous Material which is at any time on or before the Release Date present
on any Borrowing Base Property; or


 


(c)the
breach, in any material respect, of any representation, warranty, covenant or agreement contained in this Agreement relating to
the presence of any Hazardous Material on any Borrowing Base Property because of any event or condition occurring or existing on
or before the Release Date; or


 


(d)any
violation on or before the Release Date, of any Environmental Requirement in connection with any Borrowing Base Property in effect
on or before the Release Date, regardless of whether any act, omission, event or circumstance giving rise to the violation constituted
a violation at the time of the occurrence or inception of such act, omission, event or circumstance; or


 



    	13



    	 



    

(e)any
Environmental Claim, or the filing or imposition of any environmental Lien against any Borrowing Base Property, because of, resulting
from, in connection with, or arising out of any of the matters referred to in subparagraphs (a) through (d) preceding;


 


and regardless of whether any of the foregoing
was caused by Borrower, any other Loan Party or their respective tenant or subtenant, or a prior owner of a Borrowing Base Property
or its tenant or subtenant, or any third party including (i) injury or damage to any person, property or natural resource occurring
on or off of a Borrowing Base Property including the cost of demolition and rebuilding of any improvements on any Real Property;
(ii) the investigation or remediation of any such Hazardous Material or violation of Environmental Requirement including the preparation
of any feasibility studies or reports and the performance of any cleanup, remediation, removal, response, abatement, containment,
closure, restoration, monitoring or similar work required by any Environmental Requirement or necessary to have full use and benefit
of Borrowing Base Properties as contemplated by the Loan Documents (including any of the same in connection with any foreclosure
action or transfer in lieu thereof); (iii) all liability to pay or indemnify any Person or Governmental Authority for costs expended
in connection with any of the foregoing; (iv) the investigation and defense of any claim, whether or not such claim is ultimately
withdrawn or defeated; and (v) the settlement of any claim or judgment. “Costs” as used in this definition shall also
include any diminution in the value of the security afforded by the Borrowing Base Property (or the Equity Interests therein) or
any future reduction of the sales price of any Borrowing Base Property (or the Equity Interests therein) by reason of any matter
set forth in Section 7.12 or Section 8.12.


 


“Environmental
Indemnity Agreement” means that certain Environmental Indemnity Agreement executed by Borrower and Parent (if required
by Administrative Agent), and each Property Owner, in favor of Administrative Agent and the Lenders.


 


“Environmental
Laws” means any and all applicable 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.


 


“Environmental
Requirement” means any Environmental Law, agreement or restriction, as the same now exists or may be changed or amended
or come into effect in the future, which pertains to any Hazardous Material or the environment including ground or air or water
or noise pollution or contamination, and underground or aboveground tanks.


 


“Equity Interest
Collateral” means (i) one hundred percent (100%) of the Equity Interests owned by the Borrower or any Subsidiary in each
Property Owner, and (ii) one hundred percent (100%) of the Equity Interests in each Company, other than Borrower and Parent, that
owns a direct or indirect interest in a Property Owner.


 



    	14



    	 



    

“Equity Interests”
means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person,
all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or
other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital
stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition
from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including
partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options,
rights or other interests are outstanding on any date of determination.


 


“Equity Issuance”
means the issuance or sale by any Person of any of its Equity Interests or any capital contribution to such Person by the holders
of its Equity Interests.


 


“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 Borrower within the meaning of Section 414(b)
or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).


 


“ERISA Event”
means: (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal of Parent or any ERISA Affiliate from a Pension
Plan subject to Section 4063 of ERISA during a plan year in which such entity 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 Parent 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 Pension Plan amendment
as a termination under Section 4041 or 4041A of ERISA; (e) the institution by the PBGC of proceedings to terminate a Pension Plan;
(f) any event or condition which constitutes grounds under Section 4042(a)(1) or (2) of ERISA for the termination of, or the appointment
of a trustee to administer, any Pension Plan; (g) the determination that any Pension Plan is considered an at-risk plan or notification
that a Multiemployer Plan is in endangered or critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections
303, 304 and 305 of ERISA; or (h) 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 Parent or any ERISA Affiliate.


 


“Eurodollar”
means, when used in reference to any Loan or Borrowing, that such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Base LIBOR Rate.


 


“Eurodollar
Rate” means the Base LIBOR Rate or the LIBOR Market Index Rate, as the context requires.


 


“Event of
Default” has the meaning specified in Section 9.01.


 



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“Excluded
Taxes” means, with respect to Administrative Agent, any Lender or any other recipient of any payment to be made by or
on account of any obligation of Borrower hereunder, (a) Taxes imposed on or measured by its overall net income (however denominated),
and franchise Taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any political subdivision thereof) under
the Laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which
its applicable Lending Office is located, (b) any branch profits Taxes imposed by the United States or any similar tax imposed
by any other jurisdiction in which Borrower is located, (c) any backup withholding tax that is required by the Code to be withheld
from amounts payable to a Lender that has failed to comply with clause (A) of Section 3.01(e)(ii), (d) any withholding
Taxes imposed under FATCA, and (e) in the case of a Foreign Lender (other than an assignee pursuant to a request by Borrower under
Section 11.13), any withholding tax that (i) is required to be imposed on amounts payable to such Foreign Lender pursuant
to the Laws in force at the time such Foreign Lender becomes a party hereto (or designates a new Lending Office) or (ii) is attributable
to such Foreign Lender’s failure or inability (other than as a result of a Change in Law) to comply with clause (B)
of Section 3.01(e)(ii), except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time
of designation of a new Lending Office (or assignment), to receive additional amounts from Borrower with respect to such withholding
tax pursuant to Section 3.01(a)(ii) or (c).


 


“Exclusion
Event” has the meaning specified in Section 4.10.


 


“Exclusion
Notice” has the meaning specified in Section 4.10.


 


“Existing
Lenders” has the meaning specified in the Preamble to this Agreement.


 


“Existing
Revolving Credit Agreement” means that certain Credit Agreement dated as of August 17, 2011 among the Borrower as borrower
thereunder, the Parent, RBS Citizens, N.A., as Administrative Agent, certain lenders from time to time party thereto and RBS Citizens,
N.A., as Lead Arranger and Sole Bookrunner, including any “Refinancing Debt Documents” (as defined in the Intercreditor
Agreement).


 


“Extending
Lender” has the meaning specified in Section 2.04(a).


 


“Extension
Agreement” means an Extension Agreement, in form and substance reasonably satisfactory to the Administrative Agent, among
the Borrower, the Administrative Agent and one or more Extending Lenders, effecting one or more Extension Permitted Amendments
and such other amendments hereto and to the other Loan Documents as are contemplated by Section 2.04.


 


“Extension
Offer” has the meaning specified in Section 2.04(a).


 


“Extension
Permitted Amendment” means an amendment to this Agreement and the other Loan Documents, effected in connection with an
Extension Offer pursuant to Section 2.04, providing for an extension of the Maturity Date applicable to the Extending Lenders’
Loans (such Loans being referred to as the “Extended Loans”) and, in connection therewith, (a) an increase or decrease
in the rate of interest accruing on such Extended Loans, (b) a modification of the scheduled amortization applicable thereto, provided
that the weighted average life to maturity of such Extended Loans shall be no shorter than the remaining weighted average life
to maturity (determined at the time of such Extension Offer) of the Loans, (c) a modification of voluntary or mandatory prepayments
(including prepayment premiums and other restrictions thereon) applicable thereto, provided that such requirements may provide
that such Extended Loans may participate in any mandatory prepayments on a pro rata basis (or on a basis that is less than a pro
rata basis) with the Loans, but may not provide for prepayment requirements that are more favorable than those applicable to the
Loans, (d) an increase in the fees payable to, or the inclusion of new fees to be payable to, the Extending Lenders in respect
of such Extension Offer or their Extended Loans and/or (e) provision for material additional or different financial or other covenants
or prepayment requirements applicable only during periods after the latest Maturity Date in effect immediately prior to such Extension
Permitted Amendment.



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“Extension
Request Class” as defined in Section 2.04(a).


 


“FATCA”
means Sections 1471 through 1474 of the Code, as of the date of this Agreement (and 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.


 


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


 


“Federal Funds
Rate” means, for any day, an interest 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 for such
day (or, if such day is not a Business Day, for the immediately preceding Business Day) by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day which is a Business Day, the average of the quotations at approximately 11:00
a.m. (Eastern Time) on such day on such transactions received by the Administrative Agent from three Federal funds brokers of recognized
standing selected by the Administrative Agent in its sole discretion.


 


“Fixed Rate”
means, with respect to a Eurodollar Borrowing for the relevant Interest Period, a rate per annum equal to the sum of (i) the Base
LIBOR Rate applicable to such Interest Period plus (ii) the Applicable Rate in effect from time to time during such Interest Period.


 


“Fixed Rate
Borrowing” means a Borrowing which bears interest at the Fixed Rate.


 


“Fixed Rate
Loan” means a Loan which bears interest at the Fixed Rate.


 


“Floating
Rate” means, for any day, a floating interest rate per annum equal to the sum of (i) the LIBOR Market Index Rate for
such day plus (ii) Applicable Rate for such day.


 


“Floating
Rate Borrowing” means a Borrowing which bears interest at the Floating Rate.


 


“Floating
Rate Loan” means a Loan which bears interest at the Floating Rate.


 



    	17



    	 



    

“Foreign Lender”
means any Lender that is organized under the Laws of a jurisdiction other than that in which 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.


 


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


 


“Funds From
Operations” shall have the meaning promulgated by the National Association of Real Estate Investment Trusts at the time
of closing (or, if approved by the Borrower and the Administrative Agent, as such meaning may be updated from time to time) which
is the basis of the Parent’s publicly filed financial statements, as adjusted by (a) real estate acquisition costs and expenses
for acquisitions that were consummated and impairment of real estate assets for the Consolidated Group.


 


“GAAP”
means generally accepted accounting principles in the United States 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 or such other principles as may be approved by a significant segment of the accounting profession in
the United States, that are applicable to the circumstances as of the date of determination, consistently applied.


 


“Governmental
Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether
state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national
bodies such as the European Union or the European Central Bank).


 


“Guarantee”
means, as to any Person (the “guaranteeing person”), any obligation, including a reimbursement, counterindemnity
or similar obligation, of the guaranteeing person that guarantees, or which is given to induce the creation of a separate obligation
by another Person (including any bank under any letter of credit) that guarantees or in effect guarantees any Indebtedness, leases,
dividends or other obligations (the “primary obligations”) of any other third Person (the “primary
obligor”) in any manner, whether directly or indirectly, including any obligation of the guaranteeing person, whether
or not contingent, (a) to purchase any such primary obligation or any property constituting direct or indirect security therefor,
(b) to advance or supply funds (i) for the purchase or payment of any such primary obligation or (ii) to maintain working capital
or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (c) to purchase
property, Equity Interests or services primarily for the purpose of assuring the owner of any such primary obligation of the ability
of the primary obligor to make payment of such primary obligation or (d) otherwise to assure or hold harmless the owner of any
such primary obligation against loss in respect thereof; provided that the term Guarantee shall not include endorsements of instruments
for deposit or collection in the ordinary course of business. The amount of any Guarantee of any guaranteeing person shall be deemed
to be the lesser of (y) an amount equal to the stated or determinable amount of the primary obligation in respect of which such
Guarantee is made and (z) the maximum amount for which such guaranteeing person may be liable pursuant to the terms of the instrument
embodying such Guarantee, unless such primary obligation and the maximum amount for which such guaranteeing person may be liable
are not stated or determinable, in which case the amount of such Guarantee shall be such guaranteeing person’s maximum reasonably
anticipated liability in respect thereof as determined by Borrower in good faith. The term “Guarantee” as a
verb has a corresponding meaning.


 



    	18



    	 



    

“Guaranties”
means the Parent Guaranty and the Subsidiary Guaranties, and “Guaranty” means any one of the Guaranties.


 


“Guarantors”
means, collectively, Parent and each Subsidiary Guarantor, and “Guarantor” means any one of the Guarantors.


 


“Hazardous
Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other
pollutants regulated pursuant to any Environmental Law, including petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature
regulated pursuant to any Environmental Law.


 


“Implied Loan
Amount” means, as of any date of determination and without duplication, the amount of Outstanding Amount plus the “hypothetical
Outstanding Amount” (under and as used in the Existing Revolving Credit Agreement) plus the aggregate unsecured Indebtedness
(other than the Incentive Listing Fee Note) of the Consolidated Group that would result, on a pro forma basis, in a Borrowing Base
Debt Service Coverage Ratio as of such date of determination equal to 1.50 to 1.0.


 


“Improvements”
means any Property Owner’s interest in and to all on site improvements to the Borrowing Base Properties, together with all
fixtures, tenant improvements, and appurtenances now or later to be located on the Borrowing Base Properties and/or in such improvements.


 


“Incentive
Listing Fee” means the fee, payable to AR Capital or its affiliate, in connection with the listing of Parent’s
common stock on NASDAQ equal to the amount, if any, by which (a) the market value of Parent’s outstanding common stock plus
distributions paid by Parent prior to listing, exceeds (b) the sum of the total amount of capital raised from stockholders during
Parent’s prior continuous offering and the amount of cash flow necessary to generate a 6% annual cumulative, non-compounded
return to such stockholders. For purposes of this definition, the market value of Parent’s common stock will be calculated
based on the average market value of Parent’s shares issued and outstanding at listing over the 30 trading days beginning
180 days after such shares are first listed or included for quotation.


 


“Incentive
Listing Fee Note” means the three-year convertible note to be issued in the amount of the Incentive Listing Fee, in form
reasonably satisfactory to the Administrative Agent and substantially on the terms previously disclosed to the Administrative Agent,
together with such other terms as are reasonably satisfactory to the Administrative Agent (it being understood and agreed that
the draft Incentive Listing Fee Note attached as Exhibit G is satisfactory).


 



    	19



    	 



    

“Incremental
Term Loan” has the meaning specified in Section 2.03.


 


“Incremental
Term Loan Amendment” has the meaning specified in Section 2.03.


 


“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 of such Person arising under letters of credit (including standby and commercial), bankers’
acceptances, bank guaranties, surety bonds and similar instruments;


 


(c)all
obligations of such Person to pay the deferred purchase price of property or services (other than trade accounts payable in the
ordinary course of business and, in each case, either (i) not past due for more than one hundred and eighty (180) days or (ii)
being contested in good faith by appropriate proceedings diligently conducted);


 


(d)Capital
Lease Obligations;


 


(e)all
obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Equity Interest
(excluding perpetual preferred Equity Interests) in such Person or any other Person, valued, in the case of a redeemable preferred
interest, at the greater of its voluntary or involuntary liquidation preference plus (without duplication and only to the extent
required to be paid) accrued and unpaid dividends;


 


(f)all
Guarantees of such Person in respect of any of the foregoing;


 


(g)all
obligations of the kind referred to in clauses (a) through (f) above secured by (or for which the holder of such
obligation has an existing right, contingent or otherwise, to be secured by) any Lien on Property (including accounts and contract
rights) owned by such Person, whether or not such Person has assumed or become liable for the payment of such obligation, but limited
to the lesser of (i) the fair market value of the property subject to such Lien and (ii) the aggregate amount of the obligations
so secured; and


 


(h)for
purposes of Section 9.01(f) only, all obligations of such Person under Swap Contracts.


 


For all purposes hereof, the Indebtedness
of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner)
to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with
such entity, except to the extent the terms of such Indebtedness expressly provide that such Person is not liable therefor. 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 amount of any Capital Lease Obligations on any date shall be deemed to be the amount of Attributable Indebtedness
in respect thereof as of such date.


 



    	20



    	 



    

“Indemnified
Taxes” means Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any
obligation of Borrower under any Loan Document.


 


“Indemnitees”
has the meaning specified in Section 11.04(b).


 


“Individual
Asset Value” means, as applicable for any particular Property, (a) except as otherwise provided in this definition, the
Consolidated Group’s pro rata share of NOI for the most recent quarter from such Property, multiplied by four, and divided
by the Capitalization Rate, (b) the acquisition price paid for any Property acquired during the prior quarter, (c) vacant land
at cost, (d) mortgage notes receivable at GAAP, and (e) Construction In Process at cost.


 


“Information”
has the meaning specified in Section 11.07.


 


“Initial Borrowing
Base Properties” means the Acceptable Properties listed on Schedule 4.01, and “Initial Borrowing Base
Property” means any one of the Initial Borrowing Base Properties.


 


“Intercreditor
Agreement” means that certain Intercreditor Agreement, dated as of April 16, 2012, by and among the Administrative Agent,
the administrative agent under the Existing Revolving Credit Agreement, the Borrower, the Parent and the other Loan Parties party
thereto.


 


“Interest
Payment Date” means the last Business Day of each month.


 


“Interest
Period” means, with respect to a Eurodollar Borrowing, a period commencing on the date such Eurodollar Borrowing is made
(or in the case of the continuation of a Eurodollar Loan the last day of the preceding Interest Period for such Loan) and ending
on the numerically corresponding day in the first, second, third, sixth or, subject to the consent of each Lender, twelfth calendar
month thereafter (or such shorter period as may be approved by the Lenders), as the Borrower may select in the applicable Loan
Notice, except that each Interest Period that commences on the last Business Day of a calendar month (or on any day for which there
is no numerically corresponding day in the appropriate subsequent calendar month) shall end on the last Business Day of the appropriate
subsequent calendar month. Notwithstanding the foregoing or anything in this Agreement to the contrary: (i) if any Interest Period
for any Eurodollar Borrowing would otherwise end after the Maturity Date, such Interest Period shall end on the Maturity Date;
and (ii) each Interest Period that would otherwise end on a day which is not a Business Day shall end on the immediately following
Business Day (provided that if such immediately following Business Day falls in the next calendar month, such Interest Period shall
end on the immediately preceding Business Day).


 



    	21



    	 



    

“Interim Agreement”
has the meaning specified in the Preamble to this Agreement.


 


“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 Equity Interests of another Person, (b) a loan, advance or capital contribution to, Guarantee 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 and any arrangement pursuant to which the investor Guarantees Indebtedness
of 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.


 


“IP Rights”
has the meaning specified in Section 6.18.


 


“IRS”
means the United States Internal Revenue Service.


 


“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.


 


“Lead Arranger”
means Wells Fargo Securities, in its capacity as lead arranger and sole bookrunner.


 


“Lease”
means each existing or future lease, sublease (to the extent of any Property Owner’s rights thereunder), license, or other
agreement (other than an Acceptable Ground Lease) under the terms of which any Person has or acquires any right to occupy or use
any Property, or any part thereof, or interest therein, and each existing or future guaranty of payment or performance thereunder.


 


“Lender”
has the meaning specified in the introductory paragraph hereto.


 


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


 


“LIBOR Market
Index Rate” means, for any day, the Base LIBOR Rate as of that day for a eurodollar borrowing having a one month interest
period determined at approximately 11:00 a.m. (Eastern Time) for such day (or if such day is not a Business Day, the immediately
preceding Business Day). The LIBOR Market Index Rate shall be determined on a daily basis.


 


“Lien”
means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever
(including any conditional sale or other title retention agreement and any Capital Lease having substantially the same economic
effect as any of the foregoing).


 



    	22



    	 



    

“Loan”
has the meaning specified in Section 2.01; provided that to the extent there shall be any Incremental Term Loans made pursuant
to Section 2.03, from and after the date of the making of any such Incremental Term Loans, the term “Loans” shall include
such Incremental Term Loans.


 


“Loan Documents”
means this Agreement, each Note, the Security Documents, the Engagement Letter (it being understood that the inclusion of the Engagement
Letter as a Loan Document shall not be deemed to have modified any of the confidentiality restrictions contained therein), the
Intercreditor Agreement, the Subordination Agreement, any Extension Agreements, any Incremental Term Loan Amendments and the Guaranties.


 


“Loan Notice”
means a notice of (a) a Borrowing, (b) a conversion of Loans from one Type to the other, or (c) a continuation of Eurodollar Loans,
pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit A.


 


“Loan Parties”
means, collectively, Borrower, each Guarantor, and each Pledgor, and “Loan Party” means any one of the Loan Parties.


 


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


 


“Management
Fees” means, with respect to each Property for any period, an amount equal to the greater of (i) actual management fees
payable with respect thereto or (ii) three percent (3.0%) per annum on the aggregate base rent and percentage rent due and payable
under leases at such Property.


 


“Material
Adverse Effect” means: (a) a material adverse change in, or a material adverse effect upon, the business, assets, operations,
or financial condition of the Companies, taken as a whole; (b) a material impairment of the ability of the Loan Parties, taken
as a whole, to perform their obligations under the Loan Documents; or (c) a material adverse effect upon the legality, validity,
binding effect, or enforceability against any Loan Party of any Loan Document to which it is a party.


 


“Material
Environmental Event” means, with respect to any Borrowing Base Property, (a) a violation of any Environmental Law with
respect to such Borrowing Base Property, or (b) the presence of any Hazardous Materials on, about, or under such Borrowing Base
Property that, under or pursuant to any Environmental Law, would require remediation, if in the case of either (a) or (b), such
event or circumstance could reasonably be expected to have a Material Property Event.


 


“Material
Property Event” means, with respect to any Borrowing Base Property, the occurrence of any event or circumstance occurring
or arising after the date of this Agreement that could reasonably be expected to have a (a) material adverse effect with respect
to the financial condition or the operations of such Borrowing Base Property, (b) material adverse effect on the Borrowing Base
Asset Value of such Borrowing Base Property, or (c) material adverse effect on the ownership of such Borrowing Base Property.


 



    	23



    	 



    

“Material
Title Defects” means, with respect to any Borrowing Base Property, defects, Liens (other than Liens for local real estate
taxes and similar local governmental charges), and other encumbrances in the nature of easements, servitudes, restrictions, and
rights-of-way that would customarily be deemed unacceptable title exceptions for a prudent lender (i.e., a prudent lender would
reasonably determine that such exceptions, individually or in the aggregate, materially impair the value or operations of such
Borrowing Base Property, would prevent such Borrowing Base Property from being used in the manner in which it is currently being
used, or would result in a violation of any Law which would have a material and adverse effect on such Borrowing Base Property);
provided that Material Title Defects shall not include any Liens or other encumbrances that existed as of the date of this Agreement
and that are reflected in the Title Insurance Commitments or that are listed on Schedule 8.01.


 


“Maturity
Date” means” means June 30, 2017.


 


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


 


“Multiemployer
Plan” means any employee benefit plan described in Section 4001(a)(3) of ERISA, to which Parent or any ERISA Affiliate
makes or is obligated to make contributions, or during the preceding five (5) plan years, has made or been obligated to make contributions.


 


“Multiple
Employer Plan” means a Plan which has two (2) or more contributing sponsors (including Parent or any ERISA Affiliate)
at least two (2) of whom are not under common control, as such a plan is described in Section 4064 of ERISA.


 


“NOI”
means, with respect to any Property for any period, property rental and other income (as determined by GAAP) attributable to such
Property accruing for such period (adjusted to eliminate the straight lining of rents) minus the amount of all expenses (as determined
in accordance with GAAP) incurred in connection with and directly attributable to the ownership and operation of such Property
for such period, including, without limitation, Management Fees and amounts accrued for the payment of real estate taxes and insurance
premiums, but excluding any general and administrative expenses related to the operation of the Borrower or the Guarantors, any
interest expense or other debt service charges and any non-cash charges such as depreciation or amortization of financing costs.


 


“Non-Consenting
Lender” means any Lender that does not approve any consent, waiver, amendment, modification or termination that (i) requires
the approval of all Lenders or all affected Lenders in accordance with the terms of Section 11.01 and (ii) has been approved
by the Required Lenders.


 


“Non-Recourse
Indebtedness” means, for any Person, any Indebtedness of such Person for the repayment of which neither Parent or Borrower
has any personal liability (other than for Customary Recourse Exceptions) or, if such Person is Parent or Borrower, in which recourse
of the applicable holder of such Indebtedness for non-payment is limited to such holder’s Liens on a particular asset or
group of assets (other than for Customary Recourse Exceptions). For the avoidance of doubt, if any Indebtedness is partially guaranteed
by Parent or Borrower, then the portion of such Indebtedness that is not so guaranteed shall still be Non-Recourse Indebtedness
if it otherwise satisfies the requirements in this definition.


 



    	24



    	 



    

“Note”
means a promissory note made by Borrower in favor of each Lender requesting same evidencing Loans made by such Lender, substantially
in the form of Exhibit B.


 


“Obligations”
means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document
or otherwise with respect to any Loan, 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 Loan 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; provided that all references
to the “Obligations” in the Subsidiary Guaranty and the Security Documents, and any other Guaranties, security
agreements, or pledge agreements delivered to Administrative Agent to Guarantee, or create or evidence Liens securing, the Obligations
shall, in addition to the foregoing, include all present and future indebtedness, liabilities, and obligations now or hereafter
owed to Administrative Agent, any Lender, or any Affiliate of Administrative Agent or any Lender arising from, by virtue of, or
pursuant to any Swap Contract that relates solely to the Obligations.


 


“Occupancy
Rate” means, for any Property, the percentage of the rentable area of such Property leased and occupied by bona fide
tenants of such Property pursuant to bona fide tenant Leases, in each case, which tenants are not more than 30 days past due in
the payment of all rent or other similar payments due under such Leases.


 


“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 Taxes”
means all present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or under any other Loan Document or from the execution, delivery or enforcement of, or otherwise
with respect to, this Agreement or any other Loan Document.


 


“Outstanding
Amount” means with respect to Loans on any date, the aggregate outstanding principal amount thereof after giving effect
to any prepayments or repayments of Loans occurring on such date.


 


“Parent”
has the meaning specified in the introductory paragraph hereto.


 



    	25



    	 



    

“Parent Guaranty”
means the Amended and Restated Parent Guaranty Agreement executed by Parent in favor of Administrative Agent, for the benefit of
the Lenders, in form and substance acceptable to Administrative Agent.


 


“Parent Share”
means a share of common stock, par value $0.01 per share, of the Parent.


 


“Participant”
has the meaning specified in Section 11.06(b)(i).


 


“Participant
Register” has the meaning specified in Section 11.06(b)(i)(iii).


 


“Patriot Act”
has the meaning specified in Section 11.18.


 


“PBGC”
means the Pension Benefit Guaranty Corporation.


 


“Pension Act”
means the Pension Protection Act of 2006.


 


“Pension Funding
Rules” means the rules of the Code and ERISA regarding minimum required contributions (including any installment payment
thereof) to Pension Plans and set forth in, with respect to plan years ending prior to the effective date of the Pension Act, Section
412 of the Code and Section 302 of ERISA, each as in effect prior to the Pension Act and, thereafter, Section 412, 430, 431, 432
and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.


 


“Pension Plan”
means any employee pension benefit plan (including a Multiple Employer Plan or a Multiemployer Plan) that is maintained or is contributed
to by Borrower and any ERISA Affiliate and is either covered by Title IV of ERISA or is subject to the minimum funding standards
under Section 412 of the Code.


 


“Permitted
Distributions” means (a) for Parent for any fiscal year of Parent, Restricted Payments in an amount not to exceed in
the aggregate the greater of (i) ninety-five percent (95%) of Funds from Operations of the Parent, and (ii) the amount of distributions
required to be paid by Parent in order for Parent to qualify as a REIT, and (b) for Borrower for any fiscal year of Borrower, Restricted
Payments in an amount not to exceed in the aggregate the greater of (i) ninety-five percent (95%) of Funds from Operations of Borrower
and its Subsidiaries thereafter, and (ii) the amount of distributions required to be paid by Borrower to Parent in order for Parent
to qualify as a REIT.


 


“Permitted
Percentage” shall mean twenty five percent (25.00%).


 


“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 within the meaning of Section 3(3) of ERISA (including a Pension Plan), maintained for employees
of Parent or any ERISA Affiliate or any such Plan to which Parent or any ERISA Affiliate is required to contribute on behalf of
any of its employees.


 


“Platform”
has the meaning specified in Section 7.02.


 



    	26



    	 



    

“Pledge Agreement”
means the Amended and Restated Pledge Agreement dated as of the Restatement Effective Date and each Pledge Agreement or similarly
titled document, in each case executed by a Pledgor, to or for the benefit of Administrative Agent, for the benefit of the Lenders,
covering the Equity Interest Collateral.


 


“Pledgors”
means, collectively, each Person that owns Equity Interests in a Property Owner and the general partner of each Property Owner
that is a limited partnership; “Pledgor” means any one of the Pledgors.


 


“Pro Forma
Financial Statements” has the meaning specified in Section 5.01(a).


 


“Property”
means any Real Property which is owned or ground leased, directly or indirectly, by a Company.


 


“Property
Owners” means, collectively, each Subsidiary which owns a Borrowing Base Property, and “Property Owner”
means any one of the Property Owners.


 


“Property
Information” has the meaning specified in Section 4.03.


 


“Public Lender”
has the meaning specified in Section 7.02.


 


“Rating”
means, as of any date, the rating that has been most recently announced by either S&P or Moody’s, as the case may be,
for any class of non-credit enhanced long-term senior unsecured debt issued by the Borrower or the Parent; provided that if any
such rating agency shall have issued more than one such rating in effect at such time, the lowest such rating issued by such rating
agency shall apply.


 


“Real Property”
of any Person means all of the right, title, and interest of such Person in and to land, improvements, and fixtures.


 


“Recourse
Indebtedness” means Indebtedness that is not Non-Recourse Indebtedness; provided that personal recourse for Customary
Recourse Exceptions shall not, by itself, cause such Indebtedness to be characterized as Recourse Indebtedness.


 


“REIT”
means a “real estate investment trust” in accordance with Section 856 of the Code.


 


“Register”
has the meaning specified in Section 11.06(d).


 


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


 


“Release Condition”
means that, after giving effect to any requested release of a Borrowing Base Property, the Borrowing Base Asset Value shall be
at least One Hundred Million Dollars ($100,000,000.00).


 



    	27



    	 



    

“Release Date”
means the earlier of: (a) the date on which the Obligations have been paid in full and the Equity Collateral been released; and
(b) the date on which the Liens of the Equity Collateral are fully and finally foreclosed or a conveyance by deed in lieu of such
foreclosure is fully and finally effective and control of the Equity Interests of each Property Owner has been given to and accepted
by the purchaser or Administrative Agent free of occupancy and claims to occupancy by the Companies and their respective heirs,
devisees, representatives, successors, and assigns; provided that if such payment, performance, release, foreclosure, or conveyance
is challenged, in bankruptcy proceedings or otherwise, the Release Date shall be deemed not to have occurred until such challenge
is validly released, dismissed with prejudice, or otherwise barred by Law from further assertion.


 


“Reportable
Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the thirty (30) day
notice period has been waived.


 


“Required
Lenders” means, as of any date of determination, Lenders holding in the aggregate more than fifty percent (50%) of the
Total Outstandings and unfunded Commitments; provided that the portion of the Total Outstandings and unfunded Commitments held
or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders; provided
further that at all times when two or more Lenders are party to this Agreement, the term “Required Lenders” shall in
no event mean less than two Lenders unless only two Lenders are party to this Agreement and one of such Lenders is a Defaulting
Lender.


 


“Responsible
Officer” means the chief executive officer, president, chief financial officer, chief accounting officer, treasurer,
assistant treasurer or controller of a Loan Party, and solely for purposes of the delivery of incumbency certificates pursuant
to Section 5.01, the secretary or any assistant secretary of a Loan Party and, solely for purposes of notices given pursuant
to Article II, any other officer of the applicable Loan Party so designated by any of the foregoing officers in a notice
to Administrative Agent. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively
presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and
such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.


 


“Restatement
Effective Date” means the first date all the conditions precedent in Section 5.01 are satisfied or waived in accordance
with Section 11.01.


 


“Restricted
Payment” means any dividend or other distribution (whether in cash, Equity Interests or other property) with respect
to any capital stock or other Equity Interest of Borrower or any Subsidiary, or any payment (whether in cash, Equity Interests
or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such capital stock or other Equity Interest, or on account of any return of capital to Borrower’s
stockholders, partners or members (or the equivalent Person thereof).


 


“S&P”
means Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business, and any successor
thereto.


 



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


 


“Secured Debt”
means, as of any date of determination, that portion of Consolidated Total Debt which is secured by a lien on any real property
owned or leased by the Borrower or its subsidiaries.


 


“Secured Leverage
Ratio” means, as of any date of determination, the quotient (expressed as a percentage) of (a) Secured Debt, divided
by (b) Total Asset Value.


 


“Security
Documents” means:


 


(a)the
Pledge Agreements;


 


(b)financing
statements to be filed with the appropriate state and/or county offices for the perfection of a security interest in any of the
Collateral; and


 


(c)all
other agreements, documents, and instruments securing the Obligations or any part thereof, as shall from time to time be executed
and delivered by Borrower, Subsidiary Guarantors, or any other Person in favor of Administrative Agent for the benefit of itself
and the other Lenders.


 


“Share”
means Borrower’s and Parent’s direct or indirect share of a Consolidated Subsidiary or an Unconsolidated Affiliate
as reasonably determined by Borrower based upon Borrower’s and Parent’s economic interest (whether direct or indirect)
in such Consolidated Subsidiary or Unconsolidated Affiliate, as of the date of such determination.


 


“Subordination
Agreement” means the Subordination Agreement, to be entered into substantially contemporaneously with the issuance of
the Incentive Listing Fee Note, between the Administrative Agent, the administrative agent under the Existing Revolving Credit
Agreement and AR Capital in form and substance satisfactory to the Administrative Agent (it being understood and agreed that the
draft Subordination Agreement attached as Exhibit H is satisfactory).


 


“Subsidiary”
of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority
of the Equity Interests having ordinary voting power for the election of directors or other governing body (other than Equity 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 specified,
all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary
or Subsidiaries of Borrower.


 


“Subsidiary
Guarantors” means, as of any date, all Subsidiaries of Borrower owning a direct or indirect interest in a Borrowing Base
Property (including each Property Owner), and the general partner of each Subsidiary that is a limited partnership and “Subsidiary
Guarantor” means any one of the Subsidiary Guarantors.


 



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“Subsidiary
Guaranty” means the Amended and Restated Subsidiary Guaranty Agreement executed by each Subsidiary Guarantor in favor
of Administrative Agent, for the benefit of the Lenders, in form and substance acceptable to Administrative Agent.


 


“Substitute
Rate” means, with respect to any Borrowing, a floating rate of interest equal to (a) the Federal Funds Rate from time
to time plus one and one-half of one percent (1.50%) plus (b) the Applicable Rate.


 


“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, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement, or any other master agreement (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 value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date
referenced in clause (a), the amount(s) determined as the mark-to-market value(s) 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).


 


“Tangible
Net Worth” means, as of any date, the stockholders’ equity of Parent and its Subsidiaries on a consolidated basis,
plus accumulated depreciation and amortization (other than amortization in respect of acquired intangible lease assets), minus
(to the extent included when determining stockholders’ equity): (a) the amount of any write-up in the book value of any assets
reflected in any balance sheet resulting from revaluation thereof or any write up in excess of the cost of such assets acquired,
and (b) the aggregate of all amounts appearing on the assets side of any such balance sheet for franchises, licenses, permits,
patents, patent applications, copyrights, trademarks, service marks, trade names, goodwill, treasury stock, experimental or organizational
expenses and other like assets which would be classified as intangible assets under GAAP (other than acquired intangible lease
assets net of amortization of such leasing intangibles), all determined on a consolidated basis.


 



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“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.


 


“Tender Offer
Transactions” shall mean the purchase by Parent of up to $250,000,000.00 in value of shares of its common stock, par
value $0.01 per share, on the terms set forth in the Offer to Purchase and the related Letter of Transmittal, as filed with the
SEC on Schedule TO, dated February 15, 2012.


 


“Threshold
Amount” means $50,000,000 for any Non-Recourse Indebtedness and $0 for any Recourse Indebtedness.


 


“Title Company”
means Chicago Title Insurance Company or such other title insurance company reasonably acceptable to Administrative Agent.


 


“Total Asset
Value” means the sum of (a) Consolidated Group’s pro rata share of NOI for the most recent quarter, multiplied
by four, and divided by the Capitalization Rate (excluding the Consolidated Group’s pro rata share of the NOI for any Property
not owned for the entire prior quarter), (b) the acquisition price paid for any Property acquired during the prior quarter, (c)
cash and Cash Equivalents at quarter end, (d) vacant land at cost (e) mortgage notes receivable at GAAP, and (f) Construction In
Process at cost.


 


“Total Funded
Debt” means, as of any date, Consolidated Total Debt excluding intracompany Indebtedness, deferred income taxes, security
deposits, accounts payable and accrued liabilities, and any prepaid rents, in each case determined in accordance with GAAP.


 


“Total Outstandings”
means, as of any date, the aggregate Outstanding Amount of all Loans.


 


“Total Revolver
Outstandings” means, as of any date, the amount equal to the “Total Outstandings” as of such date under and
as defined in the Existing Revolving Credit Agreement.


 


“Transfer
Authorizer Designation Form” means a form substantially in the form of Exhibit F to be delivered to the Administrative
Agent pursuant to Section 10.11, as the same may be amended, restated or modified from time to time with the prior written
approval of the Administrative Agent.


 


“Type”
when used in reference to any Loan or Borrowing, refers to the rate by reference to which interest on such Loan, or on the Loans
comprising such Borrowing, is determined. For purposes hereof, “rate” shall include the Base LIBOR Rate and the LIBOR
Market Index Rate.


 


“Unconsolidated
Affiliate” means any Person in which a Company has an Equity Interest and whose financial results would not be consolidated
under GAAP with the financial results of Parent on the consolidated financial statements of Parent.


 


“United States”
and “U.S.” mean the United States of America.


 



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“Variable
Rate Indebtedness” means any Indebtedness that bears interest at a variable rate without the benefit of a Swap Contract.


 


“Wells Fargo
Bank” means Wells Fargo Bank, National Association, in its individual capacity and its successors.


 


1.02Other
Interpretive Provisions. With reference to this Agreement and each other Loan Document, unless otherwise specified
herein or in such other Loan Document:


 


(a)The
definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes”
and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will”
shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise,
(i) any definition of or reference to any agreement, instrument or other document (including any Organization Document) shall be
construed as referring to such agreement, instrument or other document as from time to time amended, supplemented, or otherwise
modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document),
(ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words
“hereto,” “herein,” “hereof” and “hereunder,” and words of similar import when
used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision
thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles
and Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any law
shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference
to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented
from time to time, and (vi) the words “asset” and “property” shall be construed to have the same meaning
and effect and to refer to any and all tangible and intangible assets and properties, including cash, Equity Interests, accounts
and contract rights.


 


(b)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.”


 


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


 


1.03Accounting
Terms.


 


(a)Generally.
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 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 Pro Forma Financial Statements or the Audited Financial Statements, as applicable, except as otherwise specifically
prescribed herein.


 



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(b)Changes
in GAAP. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in
any Loan Document, and either Borrower or Required Lenders shall so request, Administrative Agent, the Lenders and Borrower shall
negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP
(subject to the approval of Required Lenders); provided that until so amended, (i) such ratio or requirement shall continue to
be computed in accordance with GAAP prior to such change therein and (ii) Borrower shall provide to Administrative Agent and the
Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth
a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.


 


(c)Consolidation
of Variable Interest Entities. All references herein to consolidated financial statements of the Companies or to the determination
of any amount for the Companies on a consolidated basis or any similar reference shall, in each case, be deemed to include each
variable interest entity that Parent is required to consolidate pursuant to FASB ASC 810 as if such variable interest entity were
a Subsidiary as defined herein, provided further that for all purposes in calculating consolidated covenants hereunder the Parent
shall be deemed to own one hundred percent (100%) of the equity interests in the Borrower.


 


1.04Financial
Standards. All financial computations required of a Person under this Agreement shall be calculated without giving
effect to any election under Accounting Standards Codification 825-10-25 (or any other Accounting Standards Codification or Financial
Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of the Borrower or any Subsidiary
at “fair value”, as defined therein.


 


1.05Rounding.
Any financial ratios required to be maintained by Borrower pursuant to this 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).


 


1.06Times
of Day. Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight
or standard, as applicable).


 


1.07Amendment
and Restatement of the Interim Agreement.


 


(a)The
parties to this Agreement agree that, on the Restatement Effective Date, the terms and provisions of the Interim Agreement shall
be and hereby are amended, superseded and restated in their entirety by the terms and provisions of this Agreement. This Agreement
is not intended to and shall not constitute a novation, payment and reborrowing or termination of the “Obligations”
under (and as defined in) the Interim Agreement and the other Loan Documents as in effect prior to the Restatement Effective Date.
All “Loans” made and “Obligations” incurred under (and as defined in) the Interim Agreement which are outstanding
on the Restatement Effective Date shall continue as Loans and Obligations under (and shall be governed by the terms of) this Agreement
and the other Loan Documents. Without limiting the foregoing, upon the effectiveness hereof: (a) all references in the “Loan
Documents” (as defined in the Interim Agreement) to the “Administrative Agent”, the “Term Loan Agreement”
and the “Loan Documents” shall be deemed to refer to the Administrative Agent, this Agreement and the Loan Documents,
(b) all obligations constituting “Obligations” (under and as defined in the Interim Agreement) with any Lender or any
Affiliate of any Lender which are outstanding on the Restatement Effective Date shall continue as Obligations under this Agreement
and the other Loan Documents, (c) the liens and security interests in favor of Administrative Agent for the benefit of the “Secured
Parties” securing payment of the “Secured Obligations” are in all respects continuing and in full force and effect
with respect to all “Secured Obligations” (in each case as defined in the Loan Documents), (d) the Borrower hereby
agrees to compensate each Lender for any and all losses, costs and expenses incurred by such Lender in connection with the sale
and assignment of any Eurodollar Loans and such reallocation described below, in each case on the terms and in the manner set forth
in Section 3.05 hereof, (e) the “Loans” (as defined in the Interim Agreement) shall be reallocated as Loans owing to
the Lenders under this Agreement on the Restatement Effective Date in accordance with each Lender’s Applicable Percentage
and, in connection therewith, Administrative Agent shall, and is hereby authorized to, make such reallocations, sales, assignments
or other relevant actions in respect of each Lender’s Loans under the Interim Agreement as are necessary in order that each
such Lender’s outstanding Loans hereunder reflect such Lender’s Applicable Percentage of the Aggregate Commitments
on the Restatement Effective Date. 


 



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(b)Each
of Borrower and Parent hereby (a) agrees that this Agreement and the transactions contemplated hereby and thereby shall not limit
or diminish its respective obligations arising under or pursuant to the Loan Documents to which it is a party, (b) reaffirms all
of its obligations under the Loan Documents to which it is a party, (c) reaffirms all Liens on any collateral (including the Collateral)
which have been granted by it in favor of Administrative Agent pursuant to any of the Loan Documents (and any filings made in connection
therewith), and (d) acknowledges and agrees that each Loan Document executed by it remains in full force and effect and is hereby
reaffirmed, ratified and confirmed. 


 


Article
II.

The Credit


 


2.01Reallocation;
Loans. Prior to the Restatement Effective Date, certain term loans were previously made to Borrower under the Interim
Agreement which remain outstanding as of the Restatement Effective Date (such outstanding loans being hereinafter referred to
as the “Existing Loans”). Subject to the terms and conditions set forth in this Agreement, Borrower and each
of the Lenders agree that on the Restatement Effective Date but subject to the satisfaction of the reallocation and other transactions
described in Section 1.07, the Existing Loans shall be reevidenced as loans under this Agreement (each such loan, a “Loan”
hereunder), the terms of the Existing Loans shall be restated in their entirety and shall be evidenced by this Agreement and the
aggregate Commitments under this Agreement shall be increased. Subject to the terms and conditions set forth herein, each Lender
(other than any Lender holding Existing Loans in an amount not less than its Commitment under this Agreement, which Existing Loans
constitute Loans hereunder) severally and not jointly agrees to the reallocation and other transactions described in Section 1.07
and agrees to purchase, on the Restatement Effective Date, from any Existing Lender such Existing Loans (which, following such
purchase, shall be Loans hereunder) and to make additional Loans to Borrower as is necessary to cause each such Lender’s
outstanding Loans hereunder to reflect such Lender’s Applicable Percentage of the Aggregate Commitments on the Restatement
Effective Date; provided that after giving effect to all such reallocations and purchases, the Total Outstandings shall not exceed
the Available Loan Amount. It is understood and agreed that, subject to the terms of this Agreement, new Loans made to Borrower
on the Restatement Effective Date shall be in an aggregate amount equal to $35,000,000. Borrowings hereunder may be ratable Floating
Rate Borrowings or ratable Eurodollar Borrowings. Amounts repaid or prepaid in respect of the Loans may not be reborrowed.


 



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2.02Borrowings,
Conversions and Continuations of Loans.


 


(a)Each
Borrowing, each conversion of Loans from one Type to the other, and each continuation of Eurodollar Loans shall be made upon Borrower’s
irrevocable notice to Administrative Agent, which may be given by telephone. Each such notice must be received by Administrative
Agent not later than 10:00 a.m. (i) three (3) Business Days prior to the requested date of any Borrowing of, conversion to or continuation
of Eurodollar Loans or of any conversion of Eurodollar Loans to Floating Rate Loans, and (ii) one (1) Business Day prior to the
requested date of any Borrowing of Floating Rate Loans. Each telephonic notice by Borrower pursuant to this Section 2.02(a)
must be confirmed promptly by delivery to Administrative Agent of a written Loan Notice, appropriately completed and signed by
a Responsible Officer of Borrower. Each Borrowing of, conversion to or continuation of Eurodollar Loans shall be in a principal
amount of $2,500,000 or a whole multiple of $500,000 in excess thereof. Each Borrowing of or conversion to Floating Rate Loans
shall be in a principal amount of $250,000 or a whole multiple of $50,000 in excess thereof. Each Loan Notice (whether telephonic
or written) shall specify (i) whether Borrower is requesting a Borrowing, a conversion of Loans from one Type to the other, or
a continuation of Eurodollar Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (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 or to which existing Loans are to be converted, and (v) in the case of a Eurodollar Borrowing, the duration of the
initial Interest Period with respect thereto. If Borrower fails to specify a Type of Loan in a Loan Notice or if Borrower fails
to give a timely notice requesting a conversion or continuation, then (I) so long as no Event of Default exists, the applicable
Loans shall be made as, or continued to, a Eurodollar Loan with an Interest Period of one (1) month and (II) if an Event of Default
exists, then the applicable Loans shall be made as, or converted to, Floating Rate Loans. If Borrower requests a Borrowing of,
conversion to, or continuation of Eurodollar Loans in any such Loan Notice, but fails to specify an Interest Period, then it will
be deemed to have specified an Interest Period of one (1) month.


 



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(b)Following
receipt of a Loan Notice, Administrative Agent shall promptly notify each Lender of the amount of its Applicable Percentage of
the applicable Loans, and if no timely notice of a conversion or continuation is provided by Borrower, Administrative Agent shall
notify each Lender of the details of any automatic continuation described in the preceding subsection. In the case of a Borrowing,
each Lender, subject to the provisions of Section 1.07 and Section 2.01, shall make the amount of its Loan available to Administrative
Agent in immediately available funds at Administrative Agent’s Office not later than 12:00 noon on the Business Day specified
in the applicable Loan Notice. Upon satisfaction of the applicable conditions set forth in Sections 5.02 and Section
5.01, Administrative Agent shall make all funds so received available to Borrower by 1:00 p.m. in like funds as received by
Administrative Agent either by (i) crediting the account of Borrower on the books of Wells Fargo Bank 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) Administrative
Agent by Borrower.


 


(c)Except
as otherwise provided herein, a Eurodollar Loan may be continued or converted only on the last day of an Interest Period for such
Eurodollar Loan. During the existence of an Event of Default, no Loans may be converted to or continued as Eurodollar Loans without
the consent of Required Lenders.


 


(d)Administrative
Agent shall promptly notify Borrower and the Lenders of the interest rate applicable to any Interest Period for Eurodollar Loans
upon determination of such interest rate. 


 


(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 six (6) Interest Periods in effect with respect to Loans.


 


2.03Incremental
Term Loans. The Borrower may, by written notice to the Administrative Agent on up to six (6) occasions during the
period from the Restatement Effective Date to the date that is 30 days prior to the Maturity Date, enter into one or more tranches
of incremental term loans (each an “Incremental Term Loan”) in an amount not to exceed the aggregate amount
of $165,000,000 (and not less than $25,000,000 (and increments of $2,500,000 in excess thereof) in respect of any individual tranche
of Incremental Term Loans) one or more additional Lenders (which may include any existing Lender) willing to provide such Incremental
Term Loans in their own discretion. The Administrative Agent and/or its Affiliates shall use commercially reasonable efforts,
with the assistance of the Borrower, to arrange a syndicate of Lenders willing to hold the requested Incremental Term Loans. If
Lenders are willing to provide such Incremental Term Loans, the Incremental Term Loans may be made with the consent of only the
Borrower, the Administrative Agent, and each new or existing Lender providing such Incremental Term Loan so long as the aggregate
outstanding principal amount of all Loans does not exceed $400,000,000 less any voluntary reductions after the Restatement Effective
Date pursuant to Section 2.05. Nothing in this Section 2.03 shall constitute or be deemed to constitute an agreement
by any Lender to provide Incremental Term Loans. Such Incremental Term Loans shall be evidenced by the execution and delivery
of an Amendment Regarding Incremental Term Loans in the form of Exhibit I attached hereto by the Borrower, the Administrative
Agent and the new Lender or existing Lender providing such Incremental Term Loan, a copy of which shall be forwarded to each Lender
by the Administrative Agent promptly after execution thereof. The Borrower agrees to pay all fees associated with any Incremental
Term Loans including any amounts due under Section 3.05 in connection with any reallocation of Eurodollar Borrowings. Notwithstanding
the foregoing, no Incremental Term Loan shall become effective under this Section 2.03 unless (i) on the date of such effectiveness,
(x) the Administrative Agent shall have received such customary certificates, documents and opinion letters as it may reasonably
request (it being understood and agreed that the forms of certificates, documents and opinion letters delivered pursuant to Section
5.01(a)(ii) through (vi) shall be acceptable) and (y)(A) the conditions set forth in Section 5.02(a) and (b) shall
be satisfied and (B) after giving effect to the Incremental Term Loans to be made on such date, the Total Outstandings shall not
exceed the Borrowing Base and, in each case, the Administrative Agent shall have received a certificate to that effect dated such
date and executed by a Responsible Officer of the Borrower, which certificate can be incorporated into and constitute a part of
an Amendment Regarding Incremental Term Loans executed by the Borrower pursuant to this Section 2.03, and (ii) the Borrower shall
be in pro forma compliance with the covenants set forth in Section 8.14 after giving effect to the Incremental Term Loans
to be made on such date and the application of the proceeds therefrom as if made and applied on such date. The Incremental Term
Loans (i) shall rank pari passu in right of payment with the Loans, (ii) shall not mature earlier than the Maturity Date (but
may have amortization prior to such date) and (iii) shall be treated substantially the same as (and in any event no more favorably
than) the Loans; provided that the terms and conditions applicable to any tranche of Incremental Term Loans maturing after
the Maturity Date may provide for material additional or different financial or other covenants or prepayment requirements applicable
only during periods after the Maturity Date. Incremental Term Loans may be made hereunder pursuant to an amendment or restatement
(an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed
by the Borrower, the other Loan Parties, each new Lender participating in such tranche (if any), each existing Lender participating
in such tranche (if any) and the Administrative Agent. The Incremental Term Loan Amendment may, without the consent of any other
Lenders (except as expressly required pursuant to Section 11.01), effect such amendments to this Agreement and the other
Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions
of this Section 2.03.


 



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2.04Extension
Offers.


(a) The
Borrower may on one or more occasions, by written notice to the Administrative Agent, make one or more offers (each, an “Extension
Offer”) to all the Lenders to make one or more Extension Permitted Amendments pursuant to procedures reasonably specified
by the Administrative Agent and reasonably acceptable to the Borrower. Such notice shall set forth (i) the terms and conditions
of the requested Extension Permitted Amendment and (ii) the date on which such Extension Permitted Amendment is requested to become
effective (which shall not be less than 10 Business Days nor more than 30 Business Days after the date of such notice, unless otherwise
agreed to by the Administrative Agent). Extension Permitted Amendments shall become effective only with respect to the Loans of
the Lenders that accept the applicable Extension Offer (such Lenders, the “Extending Lenders”).



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(b) An
Extension Permitted Amendment shall be effected pursuant to an Extension Agreement executed and delivered by the Parent, the Borrower,
each applicable Extending Lender and the Administrative Agent; provided that no Extension Permitted Amendment shall become effective
unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, (ii) on the date of
effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and
correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in
all material respects, in each case on and as of such date, except in the case of any such representation and warranty that specifically
relates to an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier
date, and (iii) the Parent and the Borrower shall have delivered to the Administrative Agent such legal opinions, board resolutions,
secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative
Agent in connection therewith. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Extension
Agreement. Each Extension Agreement may, without the consent of any Lender other than the applicable Extending Lenders, effect
such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative
Agent, to give effect to the provisions of this Section.


 


2.05Prepayments.


 


(a)Borrower
may, upon notice to Administrative Agent, at any time or from time to time voluntarily prepay Loans in whole or in part without
premium or penalty; provided that (i) such notice must be received by Administrative Agent not later than 11:00 a.m. (A) three
(3) Business Days prior to any date of prepayment of Fixed Rate Loans and (B) one (1) Business Day prior to any date of prepayment
of Floating Rate Loans or, in each case, in connection with a prepayment of the Loans in full, upon such shorter notice as shall
be approved by the Administrative Agent in writing; (ii) any prepayment of Fixed Rate Loans shall be in a principal amount of $1,000,000
or a whole multiple of $100,000 in excess thereof; and (iii) any prepayment of Floating Rate Loans shall be in a principal amount
of $100,000 or a whole multiple of $25,000 in excess thereof or, in each case, if less, the entire principal amount thereof then
outstanding. Each such notice shall specify the date and amount of such prepayment and the Type(s) of Loans to be prepaid and,
if Eurodollar Loans are to be prepaid, the Interest Period(s) of such Loans. Administrative Agent will promptly notify each Lender
of its receipt of each such notice, and of the amount of such Lender’s Applicable Percentage of such prepayment. If such
notice is given by Borrower, then Borrower shall make such prepayment and the payment amount specified in such notice shall be
due and payable on the date specified therein, provided that such notice may state that it is conditioned upon the effectiveness
of other credit facilities or other events. Any prepayment of a Eurodollar Loan shall be accompanied by all accrued interest on
the amount prepaid, together with any additional amounts required pursuant to Section 3.05. Subject to Section 2.17,
each such prepayment shall be applied to the Loans of the Lenders in accordance with their respective Applicable Percentages.


 



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(b)If
for any reason the Total Outstandings at any time exceed the Available Loan Amount, then Borrower shall, within three (3) Business
Days, prepay Loans in an aggregate amount equal to such excess; provided that any prepayment hereunder be applied first to any
Floating Rate Loans outstanding and then to the Eurodollar Loans outstanding.


 


(c)Upon
the occurrence of any Change of Control, the Borrower shall, within five (5) Business Days thereafter, (i) prepay in full the Outstanding
Amount of Loans held by each Lender and (ii) pay all fees, expenses and other amounts due to the Administrative Agent and the Lenders
hereunder.


 


2.06Reduction
and Termination of Commitments. The Aggregate Commitments shall terminate at 5:00 p.m. (Eastern Time) on the Restatement
Effective Date.


 


2.07Repayment
of Loans. Borrower shall repay to the Lenders on the Maturity Date the aggregate principal amount of all Loans
outstanding on such date.


 


2.08Interest.


 


(a)Subject
to the provisions of subsection (b) below, (i) each Eurodollar Loan shall bear interest on the outstanding principal amount
thereof for each Interest Period at a rate per annum equal to the Fixed Rate and (ii) each Floating Rate Loan shall bear interest
on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Floating Rate.


 


(i)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, then 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.


 


(ii)If
any amount (other than principal of any Loan) payable by Borrower under any Loan 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 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.


 


(iii)Upon
the request of Required Lenders, while any Event of Default exists, Borrower shall pay interest on the principal amount of all
outstanding Obligations hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest
extent permitted by applicable Laws.


 


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


 



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(b)Interest
on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may
be specified herein. 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.


 


2.09RESERVED.


 


2.10Computation
of Interest; Retroactive Adjustments of Applicable Rate.


 


(a)All
computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed, except that computations
of interest in respect of Floating Rate Borrowings shall be made on the basis of a 365-day year (or 366-day year in a leap 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. Each determination by Administrative Agent of an interest rate or fee hereunder
shall be conclusive and binding for all purposes, absent manifest error.


 


(b)If,
as a result of any restatement of or other adjustment to the financial statements of Parent or for any other reason, then Parent,
Borrower, Administrative Agent or the Lenders determine that (i) the Consolidated Leverage Ratio as calculated by Parent and Borrower
as of any applicable date was inaccurate at any time during which the Applicable Rate is determined by reference to the Consolidated
Leverage Ratio, and (ii) a proper calculation of the Consolidated Leverage Ratio would have resulted in higher pricing for such
period, then Borrower shall be obligated to pay to Administrative Agent for the account of the applicable Lenders within three
(3) Business Days after demand by Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief
with respect to any Loan Party under the Bankruptcy Code of the United States, automatically and without further action by Administrative
Agent or any Lender), 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 Administrative
Agent or any Lender, as the case may be, under Section 2.08(b) or under Article IX. Borrower’s obligations
under this paragraph shall survive the termination of the Aggregate Commitments and the repayment of all other Obligations hereunder.


 


2.11Evidence
of Debt. The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained
by such Lender and by Administrative Agent in the ordinary course of business. The accounts or records maintained by Administrative
Agent and each Lender shall be conclusive absent manifest error of the amount of the Credit Extensions made by the Lenders to
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 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 Administrative Agent in
respect of such matters, the accounts and records of Administrative Agent shall control in the absence of manifest error. Upon
the request of any Lender made through Administrative Agent, Borrower shall execute and deliver to such Lender (through Administrative
Agent) a Note, which 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.


 



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2.12Payments
Generally; Administrative Agent’s Clawback.


 


(a)General.
All payments to be made by Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, all payments by Borrower hereunder shall be made to Administrative Agent, for the
account of the respective Lenders to which such payment is owed, at Administrative Agent’s Office in Dollars and in immediately
available funds not later than 1:00 p.m. on the date specified herein. Administrative Agent will promptly distribute to each Lender
its Applicable 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. If and to the extent Administrative Agent shall not make such payments to a Lender when
due as set forth in the preceding sentence, then such unpaid amounts shall accrue interest, payable by Administrative Agent, at
the Federal Funds Rate from the due date until (but not including) the date on which Administrative Agent makes such payments to
such Lender. All payments received by Administrative Agent after 1:00 p.m. shall be deemed received on the next succeeding Business
Day and any applicable interest or fee shall continue to accrue. If any payment to be made by 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.


 


(b)Clawback.


 


(i)Funding
by Lenders; Presumption by Administrative Agent. Unless Administrative Agent shall have received notice from a Lender prior
to the proposed date of any Borrowing that such Lender will not make available to Administrative Agent such Lender’s share
of such Borrowing, Administrative Agent may assume that such Lender has made such share available on such date in accordance with
Section 2.02 and may, in reliance upon such assumption, make available to Borrower a corresponding amount. The Administrative
Agent shall use its best efforts to provide the Borrower with notice (but failure to provide such notice shall not act as a waiver
or limitation of any of the Administrative Agent’s rights under this Section 2.12(b)) of its intent to so fund to
the Borrower without having received all Lenders’ share of such Borrowing. In such event, if a Lender has not in fact made
its share of the applicable Borrowing available to Administrative Agent, then the applicable Lender and Borrower severally agree
to pay to Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon,
for each day from and including the date such amount is made available to Borrower to but excluding the date of payment to Administrative
Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate determined by
Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or
similar fees customarily charged by Administrative Agent in connection with the foregoing, and (B) in the case of a payment to
be made by Borrower, the interest rate applicable to Floating Rate Loans. If Borrower and such Lender shall pay such interest to
Administrative Agent for the same or an overlapping period, then Administrative Agent shall promptly remit to Borrower the amount
of such interest paid by Borrower for such period. If such Lender pays its share of the applicable Borrowing to Administrative
Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by Borrower shall
be without prejudice to any claim Borrower may have against a Lender that shall have failed to make such payment to Administrative
Agent.


 



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(ii)Payments
by Borrower; Presumptions by Administrative Agent. Unless Administrative Agent shall have received notice from Borrower prior
to the date on which any payment is due to Administrative Agent for the account of the Lenders hereunder that Borrower will not
make such payment, Administrative Agent may assume that Borrower has made such payment on such date in accordance herewith and
may, in reliance upon such assumption, distribute to the Lenders the amount due. In such event, if Borrower has not in fact made
such payment, then each of the Lenders severally agrees to repay to Administrative Agent forthwith on demand the amount so distributed
to such Lender, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed
to it to but excluding the date of payment to Administrative Agent, at the greater of the Federal Funds Rate and a rate determined
by Administrative Agent in accordance with banking industry rules on interbank compensation, within one (1) Business Day. If and
to the extent Administrative Agent shall not return such funds to a Lender when due as set forth in the preceding sentence, then
such unpaid amounts shall accrue interest, payable by Administrative Agent, at the Federal Funds Rate from the due date until (but
not including) the date on which Administrative Agent returns such funds to such Lender.


 


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


 


(c)Failure
to Satisfy Conditions Precedent. If any Lender makes available to 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 Borrower by
Administrative Agent because the conditions to the applicable Credit Extension set forth in Article V are not satisfied
or waived in accordance with the terms hereof, then Administrative Agent shall return such funds (in like funds as received from
such Lender) to such Lender, without interest.


 


(d)Obligations
of Lenders Several. The obligations of the Lenders hereunder to make Loans and to make payments pursuant to Section 11.04(d)
are several and not joint. The failure of any Lender to make any Loan, to fund any participation or to make any payment under Section
11.04(d) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such
date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation
or to make its payment under Section 11.04(d).


 



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(e)Funding
Source. 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.


 


2.13Sharing
of Payments by Lenders. If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain
payment in respect of any principal of or interest on any of the Loans made by it, resulting in such Lender’s receiving
payment of a proportion of the aggregate amount of such Loans or participations and accrued interest thereon greater than its
pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify Administrative Agent
of such fact, and (b) purchase (for cash at face value) participations in the Loans of the other Lenders, or make such other adjustments
as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them, provided that:


 


(i)if
any such participations or subparticipations are purchased and all or any portion of the payment giving rise thereto is recovered,
such participations or subparticipations shall be rescinded and the purchase price immediately restored to the extent of such recovery,
without interest; 


 


(ii)the
provisions of this Section shall not be construed to apply to (x) any payment made by or on behalf of 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), or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its
Loans to any assignee or participant, other than an assignment to Borrower or any Affiliate thereof (as to which the provisions
of this Section shall apply); and


 


(iii)the
provisions of this Section shall be disregarded to the extent necessary to conform to the intended treatment of the Loans in connection
with any Extension Permitted Amendment or Incremental Term Loan Amendment.


 


Each Loan Party consents
to the foregoing and agrees, to the extent it may effectively do so under applicable Law, that any Lender acquiring a participation
pursuant to the foregoing arrangements may exercise against such Loan Party rights of setoff and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of such Loan Party in the amount of such participation.


 


2.14RESERVED.


 


2.15RESERVED.


 


2.16RESERVED.


 



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2.17Defaulting
Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then
to the extent permitted by applicable Law, the following provisions shall apply for so long as such Lender is a Defaulting Lender:


 


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


 


(b)Defaulting
Lender Waterfall. Any payment of principal, interest, fees or other amounts received by Administrative Agent for the account
of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 9.02 or otherwise) or received
by Administrative Agent from a Defaulting Lender pursuant to Section 2.13 shall be applied at such time or times as may
be determined by Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to
Administrative Agent hereunder; second, as Borrower may request (so long as no 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 Administrative Agent; third, if so determined by Administrative Agent and Borrower, to be held in a deposit account and
released pro rata in order to satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans
under this Agreement; fourth, to the payment of any amounts owing to the Lenders as a result of any judgment of a court
of competent jurisdiction obtained by any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach
of its obligations under this Agreement; fifth, so long as no Default exists, to the payment of any amounts owing to Borrower
as a result of any judgment of a court of competent jurisdiction obtained by Borrower against such Defaulting Lender as a result
of such Defaulting Lender’s breach of its obligations under this Agreement; and sixth, to such Defaulting Lender or
as otherwise directed by a court of competent jurisdiction. Any payments, prepayments or other amounts paid or payable to a Defaulting
Lender that are applied (or held) to pay amounts owed by a Defaulting Lender pursuant to this subsection shall be deemed paid to
and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.


 


(c)Defaulting
Lender Cure. If Borrower and Administrative Agent agree in writing that a Lender is no longer a Defaulting Lender, Administrative
Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice; provided 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.


 


2.18Guaranties.
Pursuant to the Parent Guaranty, Parent shall unconditionally Guarantee in favor of Administrative Agent and Lenders the full
payment and performance of the Obligations. Pursuant to the Subsidiary Guaranty or an addendum thereto in the form attached to
the Subsidiary Guaranty, Parent and Borrower shall cause each Subsidiary Guarantor to execute a Subsidiary Guaranty unconditionally
guarantying in favor of Administrative Agent and Lenders the full payment and performance of the Obligations.


 



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Article
III.

Taxes, Yield Protection and Illegality


 


3.01Taxes.


 


(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 Borrower hereunder or under any other Loan Document shall to the extent
permitted by applicable Laws be made free and clear of and without reduction or withholding for any Taxes. If, however, applicable
Laws require Borrower or Administrative Agent to withhold or deduct any Tax, such Tax shall be withheld or deducted in accordance
with such Laws as determined by Borrower or Administrative Agent, as the case may be, upon the basis of the information and documentation
to be delivered pursuant to subsection (e) below.


 


(ii)If
Borrower or Administrative Agent shall be required by the Code to withhold or deduct any Taxes, including both United States Federal
backup withholding and withholding taxes, from any payment, then (A) Administrative Agent or Borrower, as applicable, shall withhold
or make such deductions as are determined by Administrative Agent to be required based upon the information and documentation it
has received pursuant to subsection (e) below, (B) Administrative Agent or Borrower, as applicable, shall timely pay the
full amount withheld or deducted to the relevant Governmental Authority in accordance with the Code, and (C) to the extent that
the withholding or deduction is made on account of Indemnified Taxes or Other Taxes, the sum payable by Borrower 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) Administrative Agent or a Lender, as the case may be, 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 Borrower. Without limiting the provisions of subsection (a) above, Borrower shall timely pay any Other
Taxes to the relevant Governmental Authority in accordance with applicable Laws.


 


(c)Tax
Indemnifications.


 


(i)Without
limiting the provisions of subsection (a) or (b) above, Borrower shall, and does hereby, indemnify Administrative
Agent and each Lender, without duplication, and shall make payment in respect thereof within ten (10) days after demand therefor,
for the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on
or attributable to amounts payable under this Section) withheld or deducted by Borrower or Administrative Agent or paid by Administrative
Agent or such Lender, as the case may be, and any penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental
Authority. Borrower shall also, and does hereby, indemnify Administrative Agent, and shall make payment in respect thereof within
10 days after demand therefor, for any amount which a Lender for any reason fails to pay indefeasibly to Administrative Agent as
required by clause (ii) of this subsection. A certificate as to the amount of any such payment or liability delivered to
Borrower by a Lender or (with a copy to Administrative Agent), or by Administrative Agent on its own behalf or on behalf of a Lender,
shall be conclusive absent manifest error.


 



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(ii)Without
limiting the provisions of subsection (a) or (b) above, each Lender shall, and does hereby, indemnify Borrower and
Administrative Agent, and shall make payment in respect thereof within ten (10) days after demand therefor, against any and all
Taxes and any and all related losses, claims, liabilities, penalties, interest and expenses (including the fees, charges and disbursements
of any counsel for Borrower or Administrative Agent) incurred by or asserted against Borrower or Administrative Agent by any Governmental
Authority as a result of the failure by such Lender to deliver, or as a result of the inaccuracy, inadequacy or deficiency of,
any documentation required to be delivered by such Lender to Borrower or Administrative Agent pursuant to subsection (e).
Each Lender hereby authorizes Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under
this Agreement or any other Loan Document against any amount due to Administrative Agent under this clause (ii). The agreements
in this clause (ii) shall survive the resignation and/or replacement of Administrative Agent, any assignment of rights by,
or the replacement of, a Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all
other Obligations.


 


(iii)Each
Lender shall severally indemnify Administrative Agent, within ten (10) days after demand therefor, for (i) any Indemnified Taxes
or Other Taxes attributable to such Lender (but only to the extent that Borrower has not already indemnified Administrative Agent
for such Indemnified Taxes or Other Taxes and without limiting the obligation of Borrower to do so), (ii) any Taxes attributable
to such Lender's failure to comply with the provisions of Section 11.06(b)(iii)(B) relating to the maintenance of a Participant
Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by Administrative Agent
in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such
Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such
payment or liability delivered to any Lender by Administrative Agent shall be conclusive absent manifest error. Each Lender hereby
authorizes Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document
or otherwise payable by Administrative Agent to Lender from any other source against any amount due to Administrative Agent under
this subparagraph (iii).


 



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(d)Evidence
of Payments. Upon request by Borrower or Administrative Agent, as the case may be, after any payment of Taxes by Borrower or
by Administrative Agent to a Governmental Authority as provided in this Section 3.01, Borrower shall deliver to Administrative
Agent or Administrative Agent shall deliver to 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 Borrower or Administrative Agent, as the case may be.


 


(e)Status
of Lenders; Tax Documentation.


 


(i)Each
Lender shall deliver to Borrower and to Administrative Agent, at the time or times prescribed by applicable Laws or when reasonably
requested by Borrower or Administrative Agent, such properly completed and executed documentation prescribed by applicable Laws
or by the taxing authorities of any jurisdiction and such other reasonably requested information as will permit Borrower or Administrative
Agent, as the case may be, to determine (A) whether or not payments made hereunder or under any other Loan Document are subject
to Taxes, (B) if applicable, the required rate of withholding or deduction, and (C) such Lender’s entitlement to any available
exemption from, or reduction of, applicable Taxes in respect of all payments to be made to such Lender by Borrower pursuant to
this Agreement or otherwise to establish such Lender’s status for withholding tax purposes in the applicable jurisdiction.


 


(ii)Without
limiting the generality of the foregoing, if Borrower is resident for tax purposes in the United States,


 


(A)any
Lender that is a “United States person” within the meaning of Section 7701(a)(30) of the Code shall deliver to Borrower
and Administrative Agent executed originals of Internal Revenue Service Form W-9 or such other documentation or information prescribed
by applicable Laws or reasonably requested by Borrower or Administrative Agent as will enable Borrower or Administrative Agent,
as the case may be, to determine whether or not such Lender is subject to backup withholding or information reporting requirements;
and


 


(B)each
Foreign Lender that is entitled under the Code or any applicable treaty to an exemption from or reduction of withholding tax with
respect to payments hereunder or under any other Loan Document shall deliver to Borrower and 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 request of Borrower or Administrative Agent, but only if such Foreign Lender
is legally entitled to do so), whichever of the following is applicable:


 



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(1)executed
originals of Internal Revenue Service Form W-8BEN claiming eligibility for benefits of an income tax treaty to which the United
States is a party,


 


(2)executed
originals of Internal Revenue Service Form W-8ECI,


 


(3)executed
originals of Internal Revenue Service Form W-8IMY and all required supporting documentation,


 


(4)in
the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under section 881(c) of the Code, (x)
a certificate to the effect that such Foreign Lender is not (A) a “bank” within the meaning of section 881(c)(3)(A)
of the Code, (B) a “10 percent shareholder” of Borrower within the meaning of section 881(c)(3)(B) of the Code,
or (C) a “controlled foreign corporation” described in section 881(c)(3)(C) of the Code and (y) executed originals
of Internal Revenue Service Form W-8BEN, or


 


(5)executed
originals of any other form prescribed by applicable Laws as a basis for claiming exemption from or a reduction in United States
Federal withholding tax together with such supplementary documentation as may be prescribed by applicable Laws to permit Borrower
or Administrative Agent to determine the withholding or deduction required to be made.


 


(iii)Each
Lender shall promptly (A) notify Borrower and Administrative Agent of any change in circumstances which would modify or render
invalid any claimed exemption or reduction, and (B) take such steps as shall not be materially disadvantageous to it, in the reasonable
judgment of such Lender, and as may be reasonably necessary (including the re-designation of its Lending Office) to avoid any requirement
of applicable Laws of any jurisdiction that Borrower or Administrative Agent make any withholding or deduction for taxes from amounts
payable to such Lender.


 


(iv)If
a payment made to a Lender by or on account of any obligation of Borrower hereunder or under any other Loan Document would be subject
to U.S. Federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements
of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to Borrower
and Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by Borrower or Administrative
Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such
additional documentation reasonably requested by Borrower or Administrative Agent as may be necessary for Borrower and 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 subparagraph (iv),
“FATCA” shall include any amendments made to FATCA after the date of this Agreement.



    	48



    	 



    

 


(f)Treatment
of Certain Refunds. Unless required by applicable Laws, at no time shall Administrative Agent have any obligation to file for
or otherwise pursue on behalf of a Lender, or have any obligation to pay to any Lender, any refund of Taxes withheld or deducted
from funds paid for the account of such Lender. If Administrative Agent or any Lender determines, in its sole discretion, that
it has received a refund of any Taxes or Other Taxes as to which it has been indemnified by Borrower or with respect to which Borrower
has paid additional amounts pursuant to this Section, it shall pay to Borrower an amount equal to such refund (but only to the
extent of indemnity payments made, or additional amounts paid, by Borrower under this Section with respect to the Taxes or Other
Taxes giving rise to such refund), net of all out-of-pocket expenses incurred by Administrative Agent or such Lender and without
interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that Borrower,
upon the request of Administrative Agent or such Lender, agrees to repay the amount paid over to Borrower (plus any penalties,
interest or other charges imposed by the relevant Governmental Authority) to Administrative Agent or such Lender in the event Administrative
Agent or such Lender is required to repay such refund to such Governmental Authority. This subsection shall not be construed to
require Administrative Agent or any Lender to make available its tax returns (or any other information relating to its taxes that
it deems confidential) to Borrower or any other Person.


 


3.02Illegality.
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 applicable 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 Borrower through Administrative Agent, (i) any obligation of such Lender to
make or continue Loans based on the Eurodollar Rate or to convert Floating Rate Loans to Eurodollar Loans shall be suspended,
and (ii) if such notice asserts the illegality of, or material restriction on, such Lender making or maintaining Loans based on
the Eurodollar Rate, the Loans of such Lender shall, if necessary to avoid such illegality or material restriction, bear interest
at the Substitute Rate, in each case until such Lender notifies Administrative Agent and Borrower that the circumstances giving
rise to such determination no longer exist. Upon receipt of such notice, (x) Borrower shall, upon demand from such Lender (with
a copy to Administrative Agent), convert all Eurodollar Loans of such Lender to Floating Rate Loans (the interest rate on which
Floating Rate Loans of such Lender shall, if necessary to avoid such illegality, accrue at the Substitute 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 Loans and (y) if such notice asserts the
illegality of such Lender determining or charging interest rates based upon the Eurodollar Rate, Administrative Agent shall during
the period of such suspension compute the interest rate applicable to such Lender by referencing the Substitute Rate until 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 conversion, Borrower shall also pay accrued interest on the amount so converted.


 



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3.03Inability
to Determine Rates. If Required Lenders determine that for any reason in connection with any request for a Eurodollar
Loan or a Floating 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 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 Floating Rate Loan, or (c) the Eurodollar Rate for any requested
Interest Period with respect to a proposed Eurodollar Loan or the LIBOR Market Index Rate, as applicable, does not adequately
and fairly reflect the cost to such Lenders of funding such Loan, then Administrative Agent will promptly so notify 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 LIBOR Market Index Rate, the Floating Rate
Loans shall accrue interest at the Substitute Rate, in each case until Administrative Agent (upon the instruction of Required
Lenders) revokes such notice. Upon receipt of such notice, 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 Loans that will bear interest at the Substitute Rate in the amount specified therein.


 


3.04Increased
Costs; Reserves on Eurodollar Loans.


 


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


 


(i)impose,
modify or deem applicable any reserve, assessment, 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
contemplated by Section 3.04(e));


 


(ii)subject
Administrative Agent or any Lender to any Taxes (other than (A) Indemnified Taxes, (B) Excluded Taxes and (C) Other Taxes) on its
loans, loan principal, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable
thereto; or


 


(iii)impose
on any Lender or the London interbank market any other condition, cost or expense affecting this Agreement or Eurodollar Loans
made by such Lender;


 



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and the result of any of the foregoing
shall be to increase the cost or increase liquidity requirements to the Administrative Agent or such Lender of making or maintaining
any Loan or to reduce the amount of any sum received or receivable by the Administrative Agent or such Lender hereunder (whether
of principal, interest or any other amount) then, upon request of the Administrative Agent or such Lender, then Borrower will pay
to the Administrative Agent or such Lender, as the case may be, such additional amount or amounts as will compensate the Administrative
Agent or such Lender, as the case may be, for such additional costs or expenses related to such liquidity requirements incurred
or reduction suffered.


 


(b)Capital
Requirements. If any Lender determines that any Change in Law affecting such Lender or any Lending Office of such Lender or
such Lender’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 capital or on the capital of such Lender’s holding company, if any, as a consequence
of this Agreement, the Commitments of such Lender or the Loans made by such Lender to a level below that which such Lender or such
Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies
and the policies of such Lender’s holding company with respect to capital adequacy), then from time to time Borrower will
pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for
any such reduction suffered.


 


(c)Certificates
for Reimbursement. A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its
holding company, as the case may be, as specified in subsection (a) or (b) of this Section and delivered to Borrower
shall be conclusive absent manifest error. Borrower shall pay such Lender the amount shown as due on any such certificate within
fifteen (15) days after receipt thereof.


 


(d)Delay
in Requests. Failure or delay on the part of any Lender to demand compensation pursuant to the foregoing provisions of this
Section shall not constitute a waiver of such Lender’s right to demand such compensation, provided that Borrower shall not
be required to compensate a Lender pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions
suffered more than nine (9) months prior to the date that such Lender notifies Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Lender’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-(9-)month period referred to above shall be
extended to include the period of retroactive effect thereof).


 


(e)Reserves
on Eurodollar Loans. Borrower shall pay to each Lender, as long as such Lender shall be required to maintain reserves with
respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “Eurocurrency
liabilities”), additional interest on the unpaid principal amount of each Eurodollar Loan equal to the actual costs of
such reserves allocated to such Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive),
which shall be due and payable on each date on which interest is payable on such Loan, provided that Borrower shall have received
at least ten (10) days’ prior notice (with a copy to Administrative Agent) of such additional interest from such Lender.
If a Lender fails to give notice ten (10) days prior to the relevant Interest Payment Date, such additional interest shall be due
and payable ten (10) days from receipt of such notice.


 



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3.05Compensation
for Losses. Upon demand of any Lender (with a copy to Administrative Agent) from time to time, 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 Eurodollar 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 Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert
any Eurodollar Loan on the date or in the amount notified by 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 Borrower
pursuant to Section 11.13;


 


excluding any loss of anticipated profits
and including 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. Borrower shall also pay any customary administrative
fees charged by such Lender in connection with the foregoing.


 


For purposes of calculating
amounts payable by 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 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.


 


3.06Mitigation
Obligations; Replacement of Lenders.


 


(a)Designation
of a Different Lending Office. If any Lender requests compensation under Section 3.04, or Borrower is required to pay
any additional amount to any Lender, or any Governmental Authority for the account of any Lender pursuant to Section 3.01,
or if any Lender gives a notice pursuant to Section 3.02, then such Lender shall 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 reasonable judgment of such Lender, 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 to any material unreimbursed
cost or expense and would not otherwise be materially disadvantageous to such Lender. Borrower hereby agrees to pay all reasonable
costs and expenses incurred by any Lender in connection with any such designation or assignment.


 


(b)Replacement
of Lenders. If any Lender requests compensation under Section 3.04, or if Borrower is required to pay any additional
amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, then Borrower
may replace such Lender in accordance with Section 11.13.


 



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3.07Survival.
All of Borrower’s, each Lender’s and the Administrative Agent’s obligations under this Article III shall
survive termination of the Aggregate Commitments, repayment of all other Obligations hereunder, and resignation of Administrative
Agent.


 


Article
IV.

Borrowing Base


 


4.01Initial
Borrowing Base. As of the Restatement Effective Date, the Borrowing Base shall consist of the Initial Borrowing
Base Properties.


 


4.02Changes
in Borrowing Base Calculation. Each change in the Borrowing Base shall be effective upon receipt of a new Borrowing
Base Report pursuant to Section 7.02(b); provided that any increase in the Borrowing Base reflected in such Borrowing Base
Report shall not become effective until (a) the first (1st) Business Day following admission of any new Borrowing Base
Property, and (b) the fifth (5th) Business Day following delivery of the new Borrowing Base Report in all other instances,
and provided, further, that any change in the Borrowing Base as a result of the admission of an Acceptable Property into the Borrowing
Base pursuant to Section 4.03 shall be effective upon the date that such Acceptable Property is admitted into the Borrowing
Base.


 


4.03Requests
for Admission into Borrowing Base. Borrower shall provide Administrative Agent with a written request for an Acceptable
Property to be admitted into the Borrowing Base. Such request shall be accompanied by the following information regarding such
Acceptable Property (the “Property Information”) including the following, in each case reasonably acceptable
to Administrative Agent: (a) a general description of such Acceptable Property’s location, market, and amenities; (b) a
property description; (c) UCC searches related to the applicable Property Owner and the owners of the Equity Interests of such
Property Owner; (d) the documents and information with respect to such Acceptable Property listed in Section 4.11; (e)
a Borrowing Base Report setting forth in reasonable detail the calculations required to establish the amount of the Borrowing
Base with such Acceptable Property included in the Borrowing Base; (f) a Compliance Certificate setting forth in reasonable detail
the calculations required to show that the Parent and Borrower will be in compliance with the terms of this Agreement with the
inclusion of such Acceptable Property included the calculation of the Borrowing Base; and (g) such other customary information
reasonably requested by Administrative Agent as shall be necessary in order for Administrative Agent to determine whether such
Acceptable Property is eligible to be a Borrowing Base Property.


 


4.04Eligibility.
In order for an Acceptable Property to be eligible for inclusion in the Borrowing Base, such Acceptable Property shall satisfy
the following unless otherwise approved by the Required Lenders:


 


(a)all
Property Information with respect to such Acceptable Property shall be reasonably acceptable to Administrative Agent; 


 



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(b)no
Material Title Defect with respect to such Acceptable Property shall exist;


 


(c)such
Acceptable Property shall have reasonably satisfactory access to public utilities;


 


(d)the
admission of such Acceptable Property into the Borrowing Base shall not breach any obligation of the Borrower under any Contractual
Obligation;


 


(e)the
Acceptable Environmental Report with respect to such Acceptable Property shall not reveal any Material Environmental Event; and


 


(f)the
property condition report with respect to such Acceptable Property shall not reveal any material defects.


 


4.05Approval
of Borrowing Base Properties. Each Acceptable Property shall be subject to Administrative Agent’s approval
for admission into the Borrowing Base. Administrative Agent hereby approves all Initial Borrowing Base Properties for admission
into the Borrowing Base.


 


4.06Liens
on Borrowing Base Properties. An Acceptable Property shall not be admitted into the Borrowing Base until: (a) the
Borrower and any applicable Pledgors shall have executed and delivered (or caused to be executed and delivered) a Subsidiary Guaranty
and a Pledge Agreement covering the Equity Interests with respect to the applicable Property Owner and such Property Owner’s
general partner, if such Property Owner is a limited partnership; and (b) Borrower shall have delivered to Administrative Agent
all of the Property Information listed in Section 4.11.


 


4.07Notice
of Admission of New Borrowing Base Properties. If, after the date of this Agreement, an Acceptable Property meets
all the requirements to be included in the Borrowing Base set forth in this Article IV, then Administrative Agent shall
notify Borrower and Lenders in writing (a) that such Acceptable Property is admitted into the Borrowing Base, and (b) of any changes
to the Borrowing Base as a result of the admission of such Acceptable Property into the Borrowing Base.


 


4.08RESERVED.


 


4.09Release
of Borrowing Base Property. The Borrower shall provide the Administrative Agent with no less than five (5) Business
Days written notice of any proposed sale, refinancing or other permanent disposition of any Borrowing Base Property, and in connection
therewith, Administrative Agent shall release such Borrowing Base Property from the Borrowing Base and any and all Liens in the
Equity Interests of the applicable Property Owner or individually related to such Property Owner granted pursuant to the Security
Documents and, where appropriate, release such Property Owner from the Subsidiary Guaranty; provided that no Default exists before
and after giving effect thereto (other than Defaults solely with respect to such Borrowing Base Property that would no longer
exist after giving effect to the release of such Borrowing Base Property from the Borrowing Base) and the Release Condition shall
be satisfied; provided, further, that Administrative Agent shall have no obligation to release any such Liens or obligations without
a Borrowing Base Report setting forth in reasonable detail the calculations required to establish the amount of the Borrowing
Base without such Borrowing Base Property and a Compliance Certificate setting forth in reasonable detail the calculations required
to show that Parent and Borrower are in compliance with the terms of this Agreement without the inclusion of such Borrowing Base
Property in the calculation of the Borrowing Base and the various financial covenants set forth herein, in each case as of the
date of such release and after giving effect to any such release. In addition, to the extent the Administrative Agent has received
a Subsidiary Guaranty and/or Equity Interest collateral with respect to any Company or Property which does not own, directly or
indirectly, a Borrowing Base Property, provided no Default is then in existence, the Administrative Agent will release such Subsidiary
Guaranty and/or Equity Interest collateral upon the request of the Borrower in connection with any sale or financing not prohibited
under this Agreement or the creation of any joint venture Investment not prohibited hereunder.


 



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4.10Exclusion
Events. Each of the following events shall be an “Exclusion Event” with respect to a Borrowing
Base Property:


 


(a)such
Borrowing Base Property suffers a Material Environmental Event after the date of this Agreement which the Administrative Agent
determines, acting reasonably and in good faith, materially impairs the Borrowing Base Asset Value or marketability of such Borrowing
Base Property;


 


(b)Administrative
Agent determines that such Borrowing Base Property has suffered a Material Property Event after the date such Property was admitted
into the Borrowing Base (or in the case of an uninsured Casualty, in respect of such Borrowing Base Property, is reasonably likely
to become a Material Property Event) which the Administrative Agent determines, acting reasonably and in good faith, materially
impairs the Borrowing Base Asset Value or marketability of such Borrowing Base Property;


 


(c)(i)
any default by any Property Owner, as tenant under any applicable Acceptable Ground Lease, in the observance or performance of
any material term, covenant, or condition of any applicable Acceptable Ground Lease on the part of such Property Owner to be observed
or performed and said default is not cured following the expiration of any applicable grace and notice periods therein provided,
or (ii) the leasehold estate created by any applicable Acceptable Ground Lease shall be surrendered or (iii) any applicable Acceptable
Ground Lease shall cease to be in full force and effect or (iv) any applicable Acceptable Ground Lease shall be terminated or canceled
for any reason or under any circumstances whatsoever, or any of the material terms, covenants or conditions of any applicable Acceptable
Ground Lease shall be modified, changed, supplemented, altered, or amended in any manner not otherwise permitted hereunder without
the consent of Administrative Agent; and


 


(d)The
Improvements have been damaged (ordinary wear and tear excepted) and not repaired or are the subject of any pending or, to any
Loan Party’s knowledge, threatened Condemnation or adverse zoning proceeding, except as could not reasonably be expected
to cause a Material Property Event.


 



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After the occurrence
of any Exclusion Event, Administrative Agent, at the direction of Required Lenders in their sole discretion, shall have the right
at any time and from time to time to notify Borrower (the “Exclusion Notice”) that, effective ten (10) Business
Days after the giving of such notice and for so long as such circumstance exists, such Property shall no longer be considered a
Borrowing Base Property for purposes of determining the Borrowing Base. Borrowing Base Properties which have been subject to an
Exclusion Event may, at Borrower’s request, be released from the Borrowing Base; provided that such release shall be subject
to the conditions for release set forth in Section 4.09.


 


If Administrative Agent
delivers an Exclusion Notice and such Exclusion Event no longer exists, then Borrower may give Administrative Agent written notice
thereof (together with reasonably detailed evidence of the cure of such condition) and such Borrowing Base Property shall, effective
with the delivery by Borrower of the next Borrowing Base Report, be considered a Borrowing Base Property for purposes of calculating
the Borrowing Base as long as such Borrowing Base Property meets all the requirements to be included in the Borrowing Base set
forth in this Article IV. Any Property that is excluded from the Borrowing Base pursuant to this Section 4.10 may
subsequently be reinstated as a Borrowing Base Property, even if an Exclusion Event exists, upon such terms and conditions as Required
Lenders may approve.


 


4.11Documentation
Required with Respect to Borrowing Base Properties


 


. Borrower shall deliver,
or shall cause the applicable Property Owner to deliver, each of the following with respect to each Acceptable Property to be admitted
to the Borrowing Base:


 


(a)UCC-1
financing statements which shall have been furnished for filing in all filing offices that Administrative Agent may reasonably
require;


 


(b)if
such Acceptable Property is held pursuant to an Acceptable Ground Lease, true and correct copies of such Acceptable Ground Lease
and any Guarantees thereof; and (ii) to the extent required by Administrative Agent or the Required Lenders in their reasonable
discretion, recognition agreements and estoppel certificates executed by the lessor under such Acceptable Ground Lease, in form
and content reasonably satisfactory to Administrative Agent or the Required Lenders, as applicable;


 


(c)a
true and correct rent roll for such Acceptable Property; and


 


(d)a
current property conditions report performed by an engineer reasonably satisfactory to Administrative Agent.


 


Article
V.

Conditions Precedent to Credit Extensions


 


5.01Conditions
to Effectiveness. The effectiveness of this Agreement is subject to satisfaction of the following conditions precedent:


 


(a)Administrative
Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless
otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Restatement Effective
Date (or, in the case of certificates of governmental officials, a recent date before the Restatement Effective Date) and each
in form and substance satisfactory to Administrative Agent:


 



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(i)executed
counterparts of this Agreement, the Parent Guaranty, the Subsidiary Guaranty and the applicable Pledge Agreements;


 


(ii)a
Note executed by Borrower in favor of each Lender who has requested a Note on or prior to the date that is two Business Days prior
to the Restatement Effective Date;


 


(iii)such
certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each
Loan Party as 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 Agreement and the other Loan Documents to which such Loan Party
is a party;


 


(iv)such
documents and certifications as Administrative Agent may reasonably require to evidence that each Loan Party is duly organized
or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction
where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the
extent that failure to do so would not have a Material Adverse Effect;


 


(v)a
favorable opinion of legal counsel to the Loan Parties and local counsel to the Loan Parties in the jurisdictions in which the
Initial Borrowing Base Properties are located, in each case, addressed to Administrative Agent and each Lender, as to matters concerning
due formation and applicable good standing of the Loan Parties and the due execution and enforceability of the Loan Documents;


 


(vi)a
certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required
in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan
Documents to which it is a party (including, without limitation, under the Existing Revolving Credit Agreement), and such consents,
licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;


 


(vii)a
certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Sections 5.02(a)
and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Pro Forma Financial
Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;


 


(viii)a
certificate signed by the chief financial officer or treasurer of Parent attaching the consolidated and consolidating pro forma
balance sheets of Parent as of April 30, 2012, and the related consolidated and consolidating pro forma statements of income for
the portion of the fiscal year then ended (the “Pro Forma Financial Statements”) and certifying that such Pro
Forma Financial Statements fairly present the consolidated and consolidating pro forma financial condition of Parent as of April
30, 2012 and the consolidated and consolidating pro forma results of operations of Parent for the period ended on such date, all
in accordance with GAAP.


 



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(ix)
a duly completed Borrowing Base Report and Compliance Certificate as of the Restatement Effective Date, signed by a Responsible
Officer of Borrower;


 


(x)the
Property Information with respect to each of the Initial Borrowing Base Properties;


 


(xi)evidence
that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect; and


 


(xii)such
other certificates, documents, consents or opinions as Administrative Agent shall reasonably request as further described in the
list of closing documents attached hereto as Exhibit J.


 


(b)Any
fees required to be paid on or before the Restatement Effective Date shall have been paid.


 


(c)Unless
waived by Administrative Agent, Borrower shall have paid all fees, charges and disbursements of counsel to Administrative Agent
(directly to such counsel if requested by Administrative Agent) to the extent invoiced at least two days prior to the Restatement
Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate
of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate
shall not thereafter preclude a final settling of accounts between Borrower and Administrative Agent).


 


Without limiting the
generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions
specified in this Section 5.01, each Lender that has signed this Agreement or an Assignment and Assumption 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 Administrative Agent shall have received notice from such Lender
prior to the proposed Restatement Effective Date specifying its objection thereto.


 


5.02Conditions
to all Credit Extensions. The obligation of each Lender to honor any request for a Credit Extension is subject
to the following conditions precedent:


 


(a)The
representations and warranties of Borrower and each other Loan Party contained in Article VI or any other Loan Document,
or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct
in all material respects (except to the extent that any such representation and warranty is qualified as to “materiality,”
“Material Adverse Effect” or similar language, in which case it shall be true and correct in all respects (after giving
effect to any such qualification)) on and as of the date of such Credit Extension; provided, if any such representations and warranties
specifically refer to an earlier date, they shall be true and correct in all material respects (except to the extent that any such
representation and warranty is qualified as to “materiality,” “Material Adverse Effect” or similar language,
in which case it shall be true and correct in all respects (after giving effect to any such qualification)) as of such earlier
date; provided, further, that, for purposes of this Section 5.02, the representations and warranties contained in Section
6.05(b) shall be deemed to refer to the most recent statements furnished pursuant to Section 7.01(b).


 



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(b)No
Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.


 


(c)Administrative
Agent shall have received a Loan Notice in accordance with the requirements hereof.


 


(d)After
giving effect to such proposed Credit Extension, the Total Outstandings do not exceed the Available Loan Amount. 


 


Each Loan Notice submitted
by Borrower shall be deemed to be a representation and warranty that the conditions specified in Sections 5.02(a), (b),
and (d) have been satisfied on and as of the date of the applicable Credit Extension.


 


Article
VI.

Representations and Warranties


 


Each of Parent and
Borrower represents and warrants to Administrative Agent and the Lenders that:


 


6.01Existence,
Qualification and Power; Compliance with Laws. Parent, Borrower and each Subsidiary Guarantor (a) is duly organized
or formed, validly existing and, as applicable, in good standing under the Laws of the jurisdiction of its incorporation or organization,
(b) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to (i)
own or lease its assets and carry on its business and (ii) in the case of the Loan Parties, execute, deliver, and perform its
obligations under the Loan Documents to which it is a party, and (c) is duly qualified and is licensed and, as applicable, in
good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its
business requires such qualification or license; except in each case referred to in clause (b)(i) or (c) to the
extent that failure to do so would not have a Material Adverse Effect.


 


6.02Authorization;
No Contravention. The execution, delivery and performance by each Loan Party of each Loan 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, or require any payment to be made under (i) any Contractual Obligation to which such Person
is a party or affecting such Person or the properties of such Person or any of its Subsidiaries 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.


 



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6.03Governmental
Authorization; Other Consents. No 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, any Loan Party of this Agreement or any other Loan Document except for those that have
been obtained, taken or made, as the case may be, and those specified herein.


 


6.04Binding
Effect. This Agreement has been, and each other Loan Document, when delivered hereunder, will have been, duly executed
and delivered by each Loan Party that is party thereto. This Agreement constitutes, and each other Loan Document when so delivered
will constitute, a legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is party thereto
in accordance with its terms, except as enforcement may be limited by Debtor Relief Laws or general equitable principles relating
to or limiting creditors’ rights generally.


 


6.05Financial
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 the financial condition of Parent as of the date thereof and their
results of operations for each period covered thereby in accordance with GAAP consistently applied throughout the each period covered
thereby, except as otherwise expressly noted therein; and (iii) show all material indebtedness and other liabilities, direct or
contingent, of Parent as of the date thereof, including liabilities for taxes, material commitments and Indebtedness.


 


(b)The
most recent unaudited consolidated and consolidating balance sheets of Parent delivered pursuant to Section 7.01(b) (it
being acknowledged that, as of the Restatement Effective Date, no such balance sheets or statements have been so delivered), and
the related consolidated and consolidating statements of income or operations, consolidated shareholders’ equity and cash
flows for the fiscal quarter ended on that date (i) were prepared in accordance with GAAP consistently applied throughout the period
covered thereby, except as otherwise expressly noted therein, and (ii) fairly present the financial condition of Parent as of the
date thereof and its results of operations for the period covered thereby, subject, in the case of clauses (i) and (ii),
to the absence of footnotes and to normal year-end audit adjustments.


 


(c)The
Pro Forma Financial Statements, certified by the chief financial officer or treasurer of Parent, copies of which have been furnished
to each Lender, fairly present the consolidated and consolidating pro forma financial condition of Parent as of April 30, 2012,
and the consolidated and consolidating pro forma results of operations of Parent for the period ended on such date, all in accordance
with GAAP.


 



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(d)From
and after the date of the Audited Financial Statements, and thereafter, from and after the date of the most recent financial statements
delivered pursuant to Section 7.01(a) or 7.01(b), there has been no event or circumstance, either individually or
in the aggregate, that has had or would have a Material Adverse Effect.


 


6.06Litigation.
There are no actions, suits, proceedings, claims or disputes pending or, to the actual knowledge of any Company without independent
investigation, threatened, at law, in equity, in arbitration or before any Governmental Authority, by or against any Company or
against any of their properties or revenues that (a) purport to affect or pertain to this Agreement or any other Loan Document,
or any of the transactions contemplated hereby, or (b) except as specifically disclosed in Schedule 6.06, either individually
or in the aggregate, could reasonably be expected to have a Material Adverse Effect, and there has been no adverse change in the
status, or financial effect on any Company, of the matters described on Schedule 6.06.


 


6.07No
Default. No Company 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. No Default has occurred and is continuing.


 


6.08Ownership
of Property; Liens; Equity Interests. Each Property Owner has good record and marketable title in fee simple to,
or valid leasehold interests in, all Borrowing Base Properties necessary or used in the ordinary conduct of its business, except
for such defects in title as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Each applicable Property Owner has good record and marketable fee simple title (or, in the case of Acceptable Ground Leases, a
valid leasehold) to the Borrowing Base Property owned by such Property Owner, subject only to Liens permitted by Section 8.01.
All of the outstanding Equity Interests in each Property Owner have been validly issued, are fully paid and nonassessable and
are owned by the applicable Pledgors free and clear of all Liens (other than Liens permitted by Section 8.01).


 


6.09Environmental
Compliance.


 


(a)The
Companies conduct in the ordinary course of business a review of the effect of existing Environmental Laws and claims alleging
potential liability or responsibility for violation of any Environmental Law on their respective businesses, operations and properties,
and as a result thereof Parent and Borrower have reasonably concluded that, except as specifically disclosed in Schedule 6.09,
such Environmental Laws and claims could not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.


 


(b)To
the best of the Borrower’s knowledge, without independent investigation, and except as otherwise may be disclosed in any
Environmental Assessment, or as may be indicated in an Environmental Report delivered to Administrative Agent and except to the
extent the same could not reasonably be expected to have a Material Adverse Effect: (i) no Borrowing Base Property has been used
(A) for landfilling, dumping, or other waste or Hazardous Material disposal activities or operations in violation of Environmental
Laws, or (B) for generation, storage, use, sale, treatment, processing, or recycling of any Hazardous Material, in violation of
Environmental Laws, or for any other use that has resulted in Contamination; (ii) there is no Hazardous Material, storage tank
(or similar vessel) whether underground or otherwise, sump or well currently on any Property; (iii) no Company has received any
written notice of, or has actual knowledge of, any Environmental Claim or any completed, pending, proposed or threatened investigation
or inquiry concerning the presence or release of any Hazardous Material on any Property or concerning whether any condition, use
or activity on any Property is in violation of any Environmental Requirement; (iv) the present conditions, uses, and activities
on each Property do not violate any Environmental Requirement and the use of any Property which any Company (and each tenant and
subtenant) makes and intends to make of any Property complies and will comply with all applicable Environmental Requirements; (v)
no Property appears on the National Priorities List, any federal or state “superfund” or “superlien” list,
or any other list or database of properties maintained by any local, state, or federal agency or department showing properties
which are known to contain or which are suspected of containing a Hazardous Material; (vi) no Company has ever applied for and
been denied environmental impairment liability insurance coverage relating to any Property; (vii) no Company has, nor, to any Company’s
knowledge, have any tenants or subtenants, obtained any permit or authorization to construct, occupy, operate, use, or conduct
any activity on any Property by reason of any Environmental Requirement; and (viii) to any Company’s knowledge, there are
no underground or aboveground storage tanks on such Property.


 



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(c)Even
though a Loan Party may have provided Administrative Agent with an Environmental Report or other environmental report or assessment
together with other relevant information regarding the environmental condition of the Borrowing Base Properties, Borrower acknowledges
and agrees that Administrative Agent is not accepting the Borrowing Base Properties hereunder based solely on that report, assessment,
or information. Rather Administrative Agent has relied on the assessments, reports, and representations and warranties of Borrower
in this Agreement and Administrative Agent is not waiving any of its rights and remedies in the environmental provisions of this
Agreement, or any other Loan Document.


 


6.10Insurance.
The properties of the Loan Parties are insured with financially sound and reputable insurance companies not Affiliates of any
Loan 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 Loan Parties operate.


 


6.11Taxes.
The Companies have filed all material Federal, state and other tax returns and reports required to be filed, and have paid all
material Federal, state and other 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 provided in accordance with GAAP or which would not result in a
Material Adverse Effect. There is no proposed tax assessment against any Company that would, if made, have a Material Adverse
Effect.


 



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6.12ERISA
Compliance.


 


(a)Each
Plan is in compliance in all material respects with the applicable provisions of ERISA, the Code and other Federal or state laws.
Each Pension Plan that is intended to be a qualified plan under Section 401(a) of the Code has received a favorable determination
letter from the Internal Revenue Service to the effect that the form of such Plan is qualified under Section 401(a) of the Code
and the trust related thereto has been determined by the Internal Revenue Service to be exempt from federal income tax under Section
501(a) of the Code, or an application for such a letter is currently being processed by the Internal Revenue Service. To the best
knowledge of Parent and Borrower, nothing has occurred that would prevent or cause the loss of such tax-qualified status. Parent
and each ERISA Affiliate have made all required contributions to each Plan subject to Section 412 of the Code, and no application
for a funding waiver or an extension of any amortization period pursuant to Section 412 of the Code has been made with respect
to any Plan.


 


(b)There
are no pending or, to the best knowledge of Parent and Borrower, threatened claims, actions or lawsuits, or action by any Governmental
Authority, with respect to any Plan that would have a Material Adverse Effect. There has been no prohibited transaction or violation
of the fiduciary responsibility rules with respect to any Plan that has resulted or would have a Material Adverse Effect.


 


(c)(i)No
ERISA Event has occurred, and neither Parent nor any ERISA Affiliate is aware of any fact, event or circumstance that would constitute
or result in an ERISA Event with respect to any Pension Plan; (ii) Parent and each ERISA Affiliate has met all applicable requirements
under the Pension Funding Rules in respect of each Pension Plan, and no waiver of the minimum funding standards under the Pension
Funding Rules has been applied for or obtained; (iii) as of the most-recent valuation date for any Pension Plan, the funding target
attainment percentage (as defined in Section 430(d)(2) of the Code) is 60% or higher and neither Parent nor any ERISA Affiliate
knows of any facts or circumstances that would cause the funding target attainment percentage for any such plan to drop below 60%
as of the most-recent valuation date; (iv) neither Parent nor any ERISA Affiliate has incurred any liability to the PBGC other
than for the payment of premiums, and there are no premium payments which have become due that are unpaid; (v) neither Parent nor
any ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or Section 4212(c) of ERISA; and (vi) no
Pension Plan has been terminated by the plan administrator thereof nor by the PBGC, and no event or circumstance has occurred or
exists that would cause the PBGC to institute proceedings under Title IV of ERISA to terminate any Pension Plan, in each case,
that would result in a liability, individually, or in the aggregate, in excess of the Threshold Amount.


 


6.13Subsidiaries;
Equity Interests. As of the Restatement Effective Date, Parent and Borrower have no Subsidiaries other than those
specifically disclosed in Part (a) of Schedule 6.13, and all of the outstanding Equity Interests in such Subsidiaries have
been validly issued, are fully paid and nonassessable and are owned by a Company in the amounts specified on Part (a) of Schedule
6.13 free and clear of all Liens (other than Liens permitted by Section 8.01). As of the Restatement Effective Date,
neither Parent nor Borrower has any direct or indirect Equity Interests in any other Person other than those specifically disclosed
in Part (b) of Schedule 6.13. All of the outstanding Equity Interests in each Property Owner have been validly issued,
are fully paid and nonassessable and are owned by the applicable holders in the amounts specified on Part (c) of Schedule 6.13
free and clear of all Liens (other than Liens permitted by Section 8.01).


 



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6.14Margin
Regulations; Investment Company Act.


 


(a)Neither
Parent nor Borrower is engaged and will not engage, principally or as one of their important activities, in the business of purchasing
or carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing
or carrying margin stock.


 


(b)None
of Parent, Borrower, any Person Controlling Borrower, or any other Company is or is required to be registered as an “investment
company” under the Investment Company Act of 1940.


 


6.15Disclosure.
Parent and Borrower have disclosed to Administrative Agent and the Lenders all agreements, instruments and corporate or other
restrictions to which any Company is subject, and all other matters known to them, that, individually or in the aggregate, would
have a Material Adverse Effect. The reports, financial statements, certificates or other information furnished (whether in writing
or orally) by or on behalf of any Company to 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 Loan Document (in each case, as modified
or supplemented by other information so furnished), taken as a whole, do not contain any material misstatement of fact or fail
to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made,
not misleading; provided that with respect to projected financial information, Parent and Borrower represent only that such information
was prepared in good faith based upon assumptions believed to be reasonable at the time made.


 


6.16Compliance
with Laws. Each Company 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, would not have a Material Adverse Effect.


 


6.17Taxpayer
Identification Number. As of the date hereof, each Loan Party’s true and correct U.S. taxpayer identification
number is set forth on Schedule 11.02.


 


6.18Intellectual
Property; Licenses, Etc. Each Loan Party owns, or possesses the right to use, all of the trademarks, service
marks, trade names, copyrights, patents, patent rights, franchises, licenses and other intellectual property rights (collectively,
“IP 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 would not have a Material Adverse Effect.
To the best knowledge of each Loan Party, no slogan or other advertising device, product, process, method, substance, part or
other material now employed, or now contemplated to be employed, by any Loan Party infringes upon any rights held by any other
Person except where such infringement would not have a Material Adverse Effect. Except as specifically disclosed in Schedule
6.18, no claim or litigation regarding any of the foregoing is pending or, to the best knowledge of each Loan Party, threatened,
which, either individually or in the aggregate, would have a Material Adverse Effect.


 



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6.19Representations
Concerning Leases. Borrower and the applicable Property Owners have delivered true and correct copies of each rent
roll as required by Section 4.11(c).


 


6.20Solvency.
No Loan Party (a) has entered into the transaction or executed this Agreement or any other Loan Document with the actual intent
to hinder, delay or defraud any creditor and (b) has not received reasonably equivalent value in exchange for its obligations
under the Loan Documents. After giving effect to any Loan, the fair saleable value of each Loan Party’s assets exceeds and
will, immediately following the making of any such Loan, exceed such Loan Party’s total liabilities, including subordinated,
unliquidated, disputed and contingent liabilities. No Loan Party’s assets constitute unreasonably small capital to carry
out its business as conducted or as proposed to be conducted, nor will its assets constitute unreasonably small capital immediately
following the making of any Loan. No Loan Party intends to incur debt and liabilities (including contingent liabilities and other
commitments) beyond its ability to pay such debt and liabilities as they mature (taking into account the timing and amounts of
cash to be received by such Loan Party and the amounts to be payable on or in respect of obligations of such Loan Party). No petition
under any Debtor Relief Laws has been filed against any Loan Party in the last seven (7) years, and neither Borrower nor any other
Loan Party in the last seven (7) years has ever made an assignment for the benefit of creditors or taken advantage of any insolvency
act for the benefit of debtors. No Loan Party is contemplating either the filing of a petition by it under any Debtor Relief Laws
or the liquidation of all or a major portion of its assets or property, and no Loan Party has knowledge of any Person contemplating
the filing of any such petition against it or any other Loan Party.


 


6.21REIT
Status of Parent. Parent elected to qualify as a REIT commencing with its taxable year ending December 31, 2010
and will maintain such status each taxable year thereafter.


 


6.22Labor
Matters. There is (a) no significant unfair labor practice complaint pending against any Company or, to the best
of each Company’s knowledge, threatened in writing against any Company, before the National Labor Relations Board, and no
significant grievance or significant arbitration proceeding arising out of or under any collective bargaining agreement is pending
on the date hereof against any Company or, to best of any Company’s knowledge, threatened in writing against any Company
which, in either case, would result in a Material Adverse Effect, and (b) no significant strike, labor dispute, slowdown or stoppage
is pending against any Company or, to the best of any Company’s knowledge, threatened in writing against any Company which
would result in a Material Adverse Effect.


 


6.23Ground
Lease Representation.


 



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(a)The
applicable Property Owner has delivered to Administrative Agent true and correct copies of each Acceptable Ground Lease as required
by Section 4.11(b).


 


(b)Each
Acceptable Ground Lease is in full force and effect.


 


6.24Borrowing
Base Properties. To Borrower’s knowledge and except where the failure of any of the following to be true
and correct would not have a Material Adverse Effect:


 


(a)Each
Borrowing Base Property complies with all Laws, including all subdivision and platting requirements, without reliance on any adjoining
or neighboring property. No Loan Party has received any notice or claim from any Person that a Borrowing Base Property, or any
use, activity, operation, or maintenance thereof or thereon, is not in compliance with any Law, and has no actual knowledge of
any such noncompliance except as disclosed in writing to Administrative Agent;


 


(b)The
Loan Parties have not directly or indirectly conveyed, assigned, or otherwise disposed of, or transferred (or agreed to do so)
any development rights, air rights, or other similar rights, privileges, or attributes with respect to a Borrowing Base Property,
including those arising under any zoning or property use ordinance or other Laws;


 


(c)All
utility services necessary for the use of each Borrowing Base Property and the operation thereof for their intended purpose are
available at each Borrowing Base Property;


 


(d)The
current use of each Borrowing Base Property complies in all material respects with all applicable zoning ordinances, regulations,
and restrictive covenants affecting such Borrowing Base Property, all use restrictions of any Governmental Authority having jurisdiction
have been satisfied; and


 


(e)No
Borrowing Base Property is the subject of any pending or, to any Loan Party’s knowledge, threatened Condemnation or material
adverse zoning proceeding.


 


6.25Patriot
Act and Other Specified Laws.


 


(i)To
the extent applicable, each Loan Party is in compliance, in all material respects, with the (i) Trading with the Enemy Act, and
each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V) and any
other enabling legislation or executive order relating thereto, and (ii) the Patriot Act. No part of the proceeds of the Loans
will be used, directly or indirectly, in violation in any material respect of the United States Foreign Corrupt Practices Act of
1977. No Loan Party is engaged in or has engaged in any course of conduct that could reasonably be expected to subject any of its
properties to any Lien, seizure or other forfeiture under any criminal law, racketeer influenced and corrupt organizations or other
similar criminal laws. No Loan Party is named on the list of Specially Designated Nationals and Blocked Persons maintained by the
United States Department of Treasury Office of Foreign Assets Control.


 



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(ii)No
Loan Party (i) is a Person whose property or interest in property is blocked or subject to blocking pursuant to Section 1 of Executive
Order 13224 of September 23, 2001 Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or
Support Terrorism (66 Fed. Reg. 49079 (2001)), (ii) engages in any dealings or transactions prohibited by Section 2 of such Executive
Order, or, to the knowledge of the Borrower after due inquiry, is otherwise associated with any such Person in any manner that
violates such Section 2 and (iii) is a Person on the list of Specially Designated Nationals and Blocked Persons or subject to the
limitations or prohibitions under any other U.S. Department of Treasury’s Office of Foreign Assets Control regulation or
executive order.


 


Article
VII.

Affirmative Covenants


 


So long as any Lender
shall have any Commitment hereunder, any Loan or other Obligation hereunder (excluding contingent indemnification obligations to
the extent no unsatisfied claim giving rise thereto has been asserted) shall remain unpaid or unsatisfied:


 


7.01Financial
Statements. Each of Parent and Borrower shall deliver to Administrative Agent and each Lender, in form and detail
reasonably satisfactory to Administrative Agent and Required Lenders:


 


(a)as
soon as available, but in any event within ninety (90) days after the end of each fiscal year of Parent (or, if earlier, fifteen
(15) days after the date required to be filed with the SEC) (commencing with the fiscal year ended December 31, 2012), a consolidated
and consolidating balance sheet of Parent as at the end of such fiscal year, and the related consolidated and consolidating statements
of income or operations, consolidated changes in shareholders’ 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, such consolidated statements to be audited and accompanied by a report and opinion of an independent certified public
accountant of nationally recognized standing reasonably acceptable to 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 such consolidating statements to be certified
by the chief executive officer, chief financial officer, treasurer or controller of Parent to the effect that such statements are
fairly stated in all material respects when considered in relation to the consolidated financial statements of Parent;


 


(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 Parent (or, if earlier, five (5) days after the date required to be filed with the SEC) (commencing with the
fiscal quarter ended June 30, 2012), a consolidated and consolidating balance sheet of Parent as at the end of such fiscal quarter,
the related consolidated and consolidating statements of income or operations for such fiscal quarter and for the portion of Parent’s
fiscal year then ended, and the related consolidated changes in shareholders’ equity, and cash flows for the portion of Parent’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, such consolidated
statements to be certified by the chief executive officer, chief financial officer, treasurer or controller of Parent as fairly
presenting the financial condition, results of operations, shareholders’ equity and cash flows of Parent in accordance with
GAAP, subject only to normal year-end audit adjustments and the absence of footnotes and such consolidating statements to be certified
by the chief executive officer, chief financial officer, treasurer or controller of Parent to the effect that such statements are
fairly stated in all material respects when considered in relation to the consolidated financial statements of Parent; and


 



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(c)concurrently
with the delivery of the financial statements referred to in Sections 7.01(a) and (b), (i) a statement of all income
and expenses in connection with each Borrowing Base Property, and (ii) for any Borrowing Base Property subject to more than one
(1) Lease Agreement, a rent roll, each certified in writing as true and correct by Responsible Officer of Parent together with
a status report regarding the leasing activities with respect to the Borrowing Base Properties and copies of any leases executed
during the prior calendar quarter.


 


As to any information
contained in materials furnished pursuant to Section 7.02, Parent and Borrower shall not be separately required to furnish
such information under clause (a) or (b) above, but the foregoing shall not be in derogation of the obligation of
Parent and Borrower to furnish the information and materials described in clauses (a) and (b) above at the times
specified therein.


 


7.02Certificates;
Other Information. Each of Parent and Borrower shall deliver to Administrative Agent and each Lender, in form and
detail reasonably satisfactory to Administrative Agent and Required Lenders:


 


(a)concurrently
with the delivery of the financial statements referred to in Sections 7.01(a) and (b), a duly completed Compliance
Certificate signed by the chief executive officer, chief financial officer, treasurer or controller of Borrower (which delivery
may, unless Administrative Agent or a Lender requests executed originals, be by electronic communication including fax or email
and shall be deemed to be an original authentic counterpart thereof for all purposes);


 


(b)concurrently
with the delivery of the financial statements referred to in Sections 7.01(a) and (b), upon the admission of an Acceptable
Property into the Borrowing Base, and upon the removal of any Property from the Borrowing Base, a duly completed Borrowing Base
Report signed by the chief executive officer, chief financial officer, treasurer or controller of Borrower (which delivery may,
unless Administrative Agent or a Lender requests executed originals, be by electronic communication including fax or email and
shall be deemed to be an original authentic counterpart thereof for all purposes);


 



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(c)promptly
after any request by Administrative Agent, copies of any detailed audit opinions or review reports submitted to the board of directors
(or the audit committee of the board of directors) of Parent by independent accountants in connection with the accounts or books
of Parent;


 


(d)promptly
after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent
to the stockholders of Parent, and copies of all annual, regular, periodic and special reports and registration statements which
Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not
otherwise required to be delivered to Administrative Agent pursuant hereto;


 


(e)as
soon as reasonably practicable, but in any event within ninety (90) days after request by the Administrative Agent or any Lender,
an annual budget for Parent, on a consolidated basis prepared by Parent in the ordinary course of its business;


 


(f)promptly
after the furnishing thereof, copies of any statement or report furnished to any holder of debt securities of Parent or Borrower
pursuant to the terms of any indenture, loan or credit or similar agreement and not otherwise required to be furnished to the Lenders
pursuant to Section 7.01 or any other clause of this Section 7.02;


 


(g)promptly,
and in any event within five (5) Business Days after receipt thereof by Parent or Borrower, copies of each notice or other correspondence
received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any material investigation or other
material inquiry by such agency regarding financial or other operational results of any Company unless restricted from doing so
by such agency;


 


(h)simultaneously
with any Disposition, notice of such Disposition; and


 


(i)promptly,
such additional information regarding the business, financial or corporate affairs of Parent or Borrower or any Borrowing Base
Property, or compliance with the terms of the Loan Documents, as Administrative Agent or any Lender may from time to time reasonably
request.


 


Documents required
to be delivered pursuant to Section 7.01(a) or (b) or Section 7.02(d) (to the extent any such documents are
included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have
been delivered on the date (i) on which Parent and Borrower posts such documents, or provides a link thereto on Parent and Borrower’s
website on the Internet at the website address listed on Schedule 11.02; or (ii) on which such documents are posted on Parent
and Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and Administrative Agent have access
(whether a commercial, third-party website or whether sponsored by Administrative Agent). Administrative Agent shall have no obligation
to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility
to monitor compliance by Parent and Borrower with any such request by a Lender for delivery, and each Lender shall be solely responsible
for requesting delivery to it or maintaining its copies of such documents.


 



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Parent and Borrower
hereby acknowledge that (a) Administrative Agent and/or the Lead Arranger will make available to the Lenders materials and/or information
provided by or on behalf of Parent and Borrower hereunder (collectively, “Borrower Materials”) by posting the
Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the
Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information
with respect to Parent, Borrower or their Affiliates, or the respective Equity Interests of any of the foregoing, and who may be
engaged in investment and other market-related activities with respect to such Persons’ Equity Interests. Parent and Borrower
hereby agree that (w) 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; (x) by marking Borrower Materials “PUBLIC,” Parent and Borrower shall be deemed to have authorized
Administrative Agent, Lead Arranger and the Lenders to treat such Borrower Materials as not containing any material non-public
information with respect to Parent and Borrower or their Equity Interests for purposes of United States Federal and state securities
laws (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section
11.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the
Platform designated “Public Side Information;” and (z) Administrative Agent and the Lead Arranger 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 designated “Public Side Information.”


 


7.03Notices.
Each of Parent and Borrower shall, upon becoming aware of same, promptly notify Administrative Agent who shall notify each Lender:


 


(a)of
the occurrence of any Default;


 


(b)of
any matter that has resulted or could reasonably be expected to have a Material Adverse Effect;


 


(c)of
the occurrence of any ERISA Event which has resulted or would result in liabilities of any Company in an aggregate amount in excess
of the Threshold Amount;


 


(d)of
any material litigation, arbitration or governmental investigation or proceeding instituted or threatened in writing against any
Borrowing Base Property, and which could reasonably be expected to have a Material Adverse Effect;


 


(e)of
any actual or threatened in writing Condemnation of any portion of any Borrowing Base Property, and which could reasonably be expected
to have a Material Adverse Effect;


 


(f)of
any Casualty with respect to any Borrowing Base Property to the extent such notice is required pursuant to Section 7.13(b);


 


(g)of
any material permit, license, certificate or approval required with respect to any Borrowing Base Property lapses or ceases to
be in full force and effect or claim from any person that any Borrowing Base Property, or any use, activity, operation or maintenance
thereof or thereon, is not in compliance with any Law except to the extent that the same would not result in a Material Adverse
Effect; and


 



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(h)of
any material change in accounting policies or financial reporting practices by any Company, including any determination by Borrower
referred to in Section 2.10(b).


 


Each notice pursuant
to this Section 7.03 shall be accompanied by a statement of a Responsible Officer of Parent and Borrower setting forth details
of the occurrence referred to therein and stating what action Parent and/or Borrower has taken and proposes to take with respect
thereto. Each notice pursuant to Section 7.03(a) shall describe with particularity any and all provisions of this Agreement
and any other Loan Document that have been breached.


 


7.04Payment
of Obligations. Each of Parent and Borrower shall, and shall cause each other Loan Party to, pay and discharge
as the same shall become due and payable, all its obligations and liabilities, including: (a) all tax liabilities, assessments
and governmental charges or levies upon a Loan Party or its properties or assets, 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
Loan Party; (b) all lawful claims which, if unpaid, would by law become a Lien upon its property other than Liens of the type
permitted under Sections 8.01(a) through (g); and (c) all Indebtedness, as and when due and payable except, in each
case, where the failure to do so would not result in a Material Adverse Effect.


 


7.05Preservation
of Existence, Etc. Each of Parent and Borrower shall, and shall cause each other Loan Party to (a) preserve,
renew and maintain in full force and effect its legal existence and good standing under the Laws of the jurisdiction of its organization
except in a transaction permitted by Section 8.03; (b) take all reasonable action to maintain all rights, privileges, permits,
licenses and franchises necessary or desirable in the normal conduct of its business, except to the extent that failure to do
so would not have a Material Adverse Effect; and (c) preserve or renew all of its IP Rights, the non-preservation of which would
have a Material Adverse Effect.


 


7.06Maintenance
of Properties. Each of Parent and Borrower shall, and shall cause each other Company to (a) maintain, preserve
and protect all of its material properties and equipment necessary in the operation of its business in good working order and
condition except to the extent the failure to do so would not result in a Material Adverse Effect; (b) make all necessary repairs
thereto and renewals and replacements thereof except where the failure to do so would not have a Material Adverse Effect; (c)
use the standard of care typical in the industry in the operation and maintenance of its (i) Borrowing Base Properties, and, (ii)
as to its other Properties except where the failure to do so would not have a Material Adverse Effect; and (d) keep the Borrowing
Base Properties in good order, repair, operating condition, and appearance, causing all necessary repairs, renewals, replacements,
additions, and improvements to be promptly made, and not allow any of the Borrowing Base Properties to be misused, abused or wasted
or to deteriorate (ordinary wear and tear excepted) except where the failure to do so would not have a Material Adverse Effect.


 



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7.07Maintenance
of Insurance. Each of Parent and Borrower shall, and shall cause each other Company to, maintain with financially
sound and reputable insurance companies not Affiliates of any Company, 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.


 


7.08Compliance
with Laws. Each of Parent and Borrower shall, and shall cause each other Subsidiary Guarantor to, comply in all
material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its
business or 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 would not have
a Material Adverse Effect.


 


7.09Books
and Records. Each of Parent and Borrower shall, and shall cause each other Company to: (a) maintain proper books
of record and account, in which full, true and correct entries in conformity with GAAP consistently applied shall be made of all
financial transactions and matters involving the assets and business of each Company, as the case may be; and (b) maintain such
books of record and account in material conformity with all applicable requirements of any Governmental Authority having regulatory
jurisdiction over any Company, as the case may be.


 


7.10Inspection
Rights. Subject to the rights of tenants, each of Parent and Borrower shall, and shall cause each other Loan Party
to, permit representatives and independent contractors of Administrative Agent (which may be accompanied by representatives and
independent contractors of one or more Lenders) and, if an Event of Default has occurred and is continuing, representatives and
independent contractors of any Lender to visit and inspect and photograph any Borrowing Base Property and any of its other properties,
to examine its corporate, financial and operating records, and all recorded data of any kind or nature, regardless of the medium
of recording including all software, writings, plans, specifications and schematics, and make copies thereof or abstracts therefrom,
and to discuss its affairs, finances and accounts with its officers all at the expense of Borrower and at such reasonable times
during normal business hours, upon reasonable advance notice to the applicable Loan Party and no more often than once in any period
of twelve (12) consecutive months unless an Event of Default has occurred and is continuing; provided that when an Event of Default
has occurred and is continuing Administrative Agent or any Lender (or any of their respective representatives or independent contractors)
may do any of the foregoing at the expense of Borrower at any time during normal business hours and without advance notice, subject
to the rights of tenants. Any inspection or audit of the Borrowing Base Properties or the books and records, including recorded
data of any kind or nature, regardless of the medium of recording including software, writings, plans, specifications and schematics
of any Loan Party, or the procuring of documents and financial and other information, by Administrative Agent on behalf of itself
or on behalf of Lenders shall be for Administrative Agent’s and Lenders’ protection only, and shall not constitute
any assumption of responsibility to any Loan Party or anyone else with regard to the condition, construction, maintenance or operation
of the Borrowing Base Properties nor Administrative Agent’s approval of any certification given to Administrative Agent
nor relieve any Loan Party of Borrower’s or any other Loan Party’s obligations.


 



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7.11Use
of Proceeds. Each of Parent and Borrower shall, and shall cause each other Company to, use the proceeds of the
Credit Extensions (a) to finance the acquisition of Properties, (b) to pay operating and leasing expenses with respect to its
Properties, and (c) for general corporate purposes, in each case, not in contravention of any Law or of any Loan Document.


 


7.12Environmental
Matters. Each of Parent and Borrower shall, and shall cause each other Loan Party to:


 


(a)Violations;
Notice to Administrative Agent. Use reasonable efforts to:


 


(i)Keep
the Borrowing Base Properties free of Contamination;


 


(ii)Promptly
deliver to Administrative Agent a copy of each report pertaining to any Property or to any Loan Party prepared by or on behalf
of such Loan Party pursuant to a material violation of any Environmental Requirement; and


 


(iii)As
soon as practicable advise Administrative Agent in writing of any Environmental Claim or of the discovery of any Contamination
on any Borrowing Base Property, as soon as any Loan Party first obtains knowledge thereof, including a description of the nature
and extent of the Environmental Claim and/or Hazardous Material and all relevant circumstances.


 


7.13Maintenance
of Status. The Parent shall maintain at least one class of common shares which is subject to price quotations on
The NASDAQ Stock Market’s National Market System or having trading privileges on the New York Stock Exchange or any other
national securities exchange.


 


7.14Ground
Leases. Solely with respect to Borrowing Base Property, each of Parent and Borrower shall, and shall cause each
other Loan Party to:


 


(a)Diligently
perform and observe in all material respects all of the terms, covenants, and conditions of any Acceptable Ground Lease as tenant
under such Acceptable Ground Lease; and


 


(b)Promptly
notify Administrative Agent of (i) the giving to the applicable Property Owner of any notice of any default by such Property Owner
under any Acceptable Ground Lease and deliver to Administrative Agent a true copy of each such notice within five (5) Business
Days of such Property Owner’s receipt thereof, and (ii) any bankruptcy, reorganization, or insolvency of the landlord under
any Acceptable Ground Lease or of any notice thereof, and deliver to Administrative Agent a true copy of such notice within five
(5) Business Days of the applicable Property Owner’s receipt;


 


(c)Exercise
any individual option to extend or renew the term of an Acceptable Ground Lease upon demand by Administrative Agent made at any
time within thirty (30) days prior to the last day upon which any such option may be exercised, and each applicable Property Owner
hereby expressly authorizes and appoints Administrative Agent as its attorney-in-fact to exercise any such option in the name of
and upon behalf of such Property Owner, which power of attorney shall be irrevocable and shall be deemed to be coupled with an
interest.


 



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If the applicable Property
Owner shall default in the performance or observance of any term, covenant, or condition of any Acceptable Ground Lease on the
part of such Property Owner and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder,
then Administrative Agent shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take
any action as may be appropriate to cause all of the terms, covenants, and conditions of such Acceptable Ground Lease on the part
of such Property Owner to be performed or observed on behalf of such Property Owner, to the end that the rights of such Property
Owner in, to, and under such Acceptable Ground Lease shall be kept unimpaired and free from default. If the landlord under any
Acceptable Ground Lease shall deliver to Administrative Agent a copy of any notice of default under such Acceptable Ground Lease,
then such notice shall constitute full protection to Administrative Agent for any action taken or omitted to be taken by Administrative
Agent, in good faith, in reliance thereon.


 


7.15Borrowing
Base Properties.


 


(a)Except
where the failure to comply with any of the following would not have a Material Adverse Effect, each of Parent and Borrower shall,
and shall use commercially reasonable efforts to cause each other Loan Party or the applicable tenant, to:


 


(b)Pay
all real estate and personal property taxes, assessments, water rates or sewer rents, ground rents, maintenance charges, impositions,
and any other charges, including vault charges and license fees for the use of vaults, chutes and similar areas adjoining any Borrowing
Base Property, now or hereafter levied or assessed or imposed against any Borrowing Base Property or any part thereof (except those
which are being contested in good faith by appropriate proceedings diligently conducted).


 


(c)Promptly
pay (or cause to be paid) when due all bills and costs for labor, materials, and specifically fabricated materials incurred in
connection with any Borrowing Base Property (except those which are being contested in good faith by appropriate proceedings diligently
conducted), and in any event never permit to be created or exist in respect of any Borrowing Base Property or any part thereof
any other or additional Lien or security interest other than Liens permitted by Section 8.01.


 


(d)Operate
the Borrowing Base Properties in a good and workmanlike manner and in all material respects in accordance with all Laws in accordance
with such Loan Party’s prudent business judgment.


 


(e)Cause
each other Loan Party to, to the extent owned and controlled by a Loan Party, preserve, protect, renew, extend and retain all material
rights and privileges granted for or applicable to each Borrowing Base Property.


 


7.16Subsidiary
Guarantor Organizational Documents. Each of Parent and Borrower shall, and shall cause each other Pledgor to, at
its expense, maintain the Organization Documents of each Subsidiary Guarantor in full force and effect, without any cancellation,
termination, amendment, supplement, or other modification of such Organization Documents, except as explicitly required by their
terms (as in effect on the date hereof), except for amendments, supplements, or other modifications that do not adversely affect
the interests of the Lenders under the applicable Pledge Agreement in any material respect, and except for Organization Documents
in respect of Equity Interests of partnerships or limited liability companies that have been released from the applicable Pledgor’s
Pledge Agreement.


 



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7.17UCC
Termination Statements. By no later than July 31, 2012, (or such later date as the Administrative Agent may determine
in its sole discretion), the Borrower shall deliver to the Administrative Agent copies of filed UCC termination statements with
respect to each of the unterminated UCC financing statements appearing in the UCC lien search reports for the Subsidiary Guarantors
delivered to the Administrative Agent prior to the Restatement Effective Date.


 


Article
VIII.

Negative Covenants


 


So long as any Lender
shall have any Commitment hereunder, any Loan or other Obligation hereunder (excluding contingent indemnification obligations to
the extent no unsatisfied claim giving rise thereto has been asserted) shall remain unpaid or unsatisfied:


 


8.01Liens.
Each of Parent and Borrower shall not, nor shall it permit any other Loan Party to, directly or indirectly, create, incur, assume
or suffer to exist any Lien upon any Collateral other than, with respect to the Borrowing Base Properties, the following:


 


(a)Liens
pursuant to any Loan Document or any “Loan Document” (or similar term) as defined in the Existing Revolving Credit
Agreement;


 


(b)Liens
existing on the date hereof and listed on Schedule 8.01;


 


(c)Liens
for taxes 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;


 


(d)carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course
of business which are not overdue for a period of more than thirty (30) days 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;


 


(e)easements,
rights-of-way, restrictions, restrictive covenants, encroachments, protrusions and other similar encumbrances affecting real property
disclosed in the Title Insurance Policies and which, in the aggregate, are not substantial in amount, and 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;


 



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(f)Liens
securing judgments for the payment of money not constituting an Event of Default under Section 9.01(i);


 


(g)the
rights of tenants under leases or subleases not interfering with the ordinary conduct of business of such Person;


 


(h)Liens
securing obligations in the nature of personal property financing leases for furniture, furnishings or similar assets, Capital
Lease Obligations and other purchase money obligations for fixed or capital assets; provided that (i) such Liens do not at any
time encumber any property other than the property financed by such Indebtedness, (ii) the obligations secured thereby does not
exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition, and (iii)
with respect to Capital Leases, such Liens do not at any time extend to or cover any assets other than the assets subject to such
Capital Leases;


 


(i)Liens
securing obligations in the nature of the performance of bids, trade contracts and leases (other than Indebtedness), statutory
obligations, surety bonds (other than bonds related to judgments or litigation), performance bonds and other obligations of a like
nature incurred in the ordinary course of business; and


 


(j)such
other title and survey exceptions as Administrative Agent has approved in writing in Administrative Agent’s reasonable discretion;
and


 


(k)with
respect to all other Collateral, Liens described in clauses (a) and (c) above.


 


8.02Investments.
Neither Parent nor Borrower shall have and shall not permit the Companies’ to have any Investments other than:


 


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


 


(b)Investments
existing on the date hereof and set forth on Schedule 6.13;


 


(c)advances
to officers, directors and employees of the Borrower and Subsidiaries for travel, entertainment, relocation and analogous ordinary
business purposes;


 


(d)Investments
of the Guarantor and the Borrower in the form of Equity Interests and investments of the Borrower in any wholly-owned Subsidiary,
and Investments of Borrower directly in, or of any wholly-owned Subsidiary in another wholly-owned Subsidiary which owns, real
property assets which are functional retail, hotel, industrial, manufacturing, warehouse/distribution and/or office properties
located within the United States, provided in each case the Investments held by Borrower or Subsidiary are in accordance with the
provisions of this Section 8.02 other than this Section 8.02(d);


 



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(e)Investments
consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit
in the ordinary course of business;


 


(f)Investments
in non-wholly owned Subsidiaries and Unconsolidated Affiliates not to at any time exceed five (5%) of Total Asset Value;


 


(g)Investments
in mortgages and mezzanine loans not to at any time exceed fifteen percent (15%) of Total Asset Value;


 


(h)Investments
in unimproved land holdings not to at any time exceed five percent (5%) of Total Asset Value;


 


(i)Investments
in Construction in Progress not to at any time exceed five percent (5%) of Total Asset Value; and


 


(j)Investments
by the Parent for the redemption, conversion, exchange, retirement, sinking fund or similar payment, purchase or other acquisition
for value, direct or indirect, of any Equity Interests of Parent or Borrower now or hereafter outstanding to the extent permitted
under Section 8.05 below;


 


Provided, that the aggregate Investments of the types
described in clauses (f) through (i) above shall not at any time exceed twenty percent (20%) of Total Asset Value.


 


8.03Fundamental
Changes. Each of Parent and Borrower shall not, nor shall it permit any other Loan Party to, directly or indirectly,
merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series
of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person,
except that, so long as no Event of Default has occurred and is continuing or would result therefrom:


 


(a)any
Loan Party (other than Parent or Borrower) may merge with (i) Parent or Borrower, provided that Parent or Borrower, as applicable,
shall be the continuing or surviving Person, or (ii) any other Loan Party, or (iii) any other Person provided that, if it owns
a Borrowing Base Property and is not the surviving entity, then Borrower has complied with Section 4.09 to remove such Borrowing
Base Property from the Borrowing Base;


 


(b)any
Loan Party (other than Parent or Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or
otherwise) to another Loan Party;


 


(c)any
Loan Party may Dispose of a Property owned by such Loan Party in the ordinary course of business and for fair value; provided that
if such Property is a Borrowing Base Property, then Borrower shall have complied with Section 4.09; and


 


(d)Parent
or Borrower may merge or consolidate with another Person so long as either Parent or Borrower, as the case may be, is the surviving
entity, shall remain in pro forma compliance with the covenants set forth in Section 8.14 below after giving effect to such
transaction, and Borrower obtains the prior written consent in writing of the Required Lenders in their sole discretion.


 



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Nothing in this Section
shall be deemed to prohibit the sale or leasing of Property or portions of Property in the ordinary course of business.


 


8.04Dispositions.
Each of the Parent, the Borrower or any Loan Party shall not 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)Any
other Dispositions of Properties or other assets in an arm’s length transaction; provided that (i) if such Property is a
Borrowing Base Property, then Borrower shall have complied with Section 4.09 and (ii) the Borrower and the Parent will remain
in pro forma compliance with the covenants set forth in Section 8.14 after giving effect to such transaction; and


 


(d)Dispositions
permitted by Section 8.03.


 


8.05Restricted
Payments. Each of Parent and Borrower shall not, nor shall it permit any other Company to, directly or indirectly,
declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, or
issue or sell any Equity Interests, except that, so long as no Default shall have occurred and be continuing at the time of any
action described below or would result therefrom:


 


(a)each
Subsidiary may make Restricted Payments to Parent, Borrower, and any other Person that owns an Equity Interest in such Subsidiary,
ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being
made;


 


(b)any
Company may declare and make dividend payments or other distributions payable solely in the common Equity Interests or other Equity
Interests of such Company including (i) “cashless exercises” of options granted under any share option plan adopted
by Parent, (ii) distributions of rights or equity securities under any rights plan adopted by Borrower or Parent, and (iii) distributions
(or effect stock splits or reverse stock splits) with respect to its Equity Interests payable solely in additional shares of its
Equity Interests;


 


(c)Borrower
and Parent may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially
concurrent issue of new shares of its common Equity Interests or other Equity Interests; 


 


(d)Parent
may and Borrower may make any Permitted Distributions;


 



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(e)Parent
or Borrower may issue or sell Equity Interests; provided that they remain in compliance with clause (a), in the case of
Parent, and clause (c), in the case of Borrower, of the definition of Change of Control;


 


(f)Parent,
Borrower and each Subsidiary may make cash payments in lieu of the issuance of fractional shares representing insignificant interests
in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests
of Parent, Borrower or any Subsidiary;


 


(g)Parent,
Borrower and each Subsidiary may make Restricted Payments in connection with the implementation of or pursuant to any retirement,
health, stock option and other benefit plans, bonus plans, performance-based incentive plans, and other similar forms of compensation
for the benefit of the directors, officers and employees of Parent, Borrower and the Subsidiaries;


 


(h)Parent
and Borrower may, and Borrower may make dividends or distributions to Parent to allow Parent to, make payments with respect to
the Incentive Listing Fee Note (including the conversion thereof) to the extent permitted by the Subordination Agreement; and


 


(i)Parent
may, and Borrower may make dividends or distributions to Parent to allow Parent to, make payments in connection with share repurchase
programs, to the extent not otherwise prohibited by the terms of this Agreement.


 


Notwithstanding the
foregoing, notwithstanding the existence of any Default or Event of Default, any Company may make such dividends and payments to
the Parent required in order for the Parent to be able to make, and the Parent shall be permitted to make, any Permitted Distributions
described in clause (a)(ii) and (b)(ii) of the definition of Permitted Distributions.


 


8.06Change
in Nature of Business. Except for Investments permitted under Section 8.02, each of Parent and Borrower
shall not, nor shall it permit any other Loan Party to, directly or indirectly, engage in any material line of business substantially
different from those lines of business conducted by the Companies on the date hereof or any business substantially related or
incidental thereto.


 


8.07Transactions
with Affiliates. Each of Parent and Borrower shall not, nor shall it permit any other Loan Party to, directly or
indirectly, enter into any transaction of any kind with any Affiliate of a Company, whether or not in the ordinary course of business,
other than on fair and reasonable terms substantially as favorable to such Loan Party as would be obtainable by such Company at
the time in a comparable arm’s length transaction with a Person other than an Affiliate, except:


 


(a)reasonable
and customary fees paid to, and indemnification arrangements with, members of the board of directors (or similar governing body)
of any of the Loan Parties or the issuance of directors’ or nominees’ qualifying shares;


 


(b)compensation
and indemnification arrangements for directors (or equivalent), officers and employees of Parent, Borrower and the Subsidiaries,
including retirement, health, option and other benefit plans, bonuses, performance-based incentive plans, and other similar forms
of compensation, the granting of Equity Interests to directors (or equivalent), officers and employees of Parent, Borrower and
the Subsidiaries in connection with the implementation of any such arrangement, and the funding of any such arrangement;


 



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(c)Restricted
Payments permitted under Section 8.05;


 


(d)Investments
permitted under Section 8.02(F);


 


(e)transactions
between or among the Borrower and the Subsidiaries permitted under Section 8.03 not involving any other Affiliate;


 


(f)the
incurrence of the Incentive Listing Fee and the issuance of the Incentive Listing Fee Note; and


 


(g)Parent
may, and Borrower may make dividends or distributions to Parent to allow Parent to, purchase up to $7,300,000 of furniture, fixtures
and equipment from AR Capital.


 


8.08Burdensome
Agreements. Each of Parent and Borrower shall not, nor shall it permit any other Loan Party to, directly or indirectly,
enter into any Contractual Obligation (other than this Agreement or any other Loan Document) that directly or indirectly prohibits
any Company from (a) creating or incurring any Lien on any Borrowing Base Property unless simultaneously therewith, such Borrowing
Base Property is released from the Borrowing Base pursuant to Section 4.09, or (b) subject to rights of tenants under leases
(i) that are approved in writing by Administrative Agent, or (ii) that do not materially and adversely affect Administrative Agent’s
Liens on the applicable Borrowing Base Property or Administrative Agent’s ability to exercise its rights and remedies with
respect to such Liens, transferring ownership of any Borrowing Base Property.


 


8.09Use
of Proceeds. Each of Parent and Borrower shall not, nor shall it permit any other Company to, directly or indirectly,
use the proceeds of any Credit Extension, 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.


 


8.10Borrowing
Base Properties; Ground Leases. Each of Parent and Borrower shall not, nor shall it permit any other Loan Party
to, directly or indirectly:


 


(a)Use
or occupy or conduct any activity on, or knowingly permit the use or occupancy of or the conduct of any activity on any Borrowing
Base Properties by any tenant, in any manner which violates any Law or which constitutes a public or private nuisance in any manner
which would have a Material Adverse Effect or which makes void, voidable, or cancelable any insurance then in force with respect
thereto or makes the maintenance of insurance in accordance with Section 7.07 commercially unreasonable (including by way
of increased premium);


 



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(b)Without
the prior written consent of Administrative Agent (which consent shall not be unreasonably withheld or delayed), initiate or permit
any zoning reclassification of any Borrowing Base Property or seek any variance under existing zoning ordinances applicable to
any Borrowing Base Property or use or knowingly permit the use of any Borrowing Base Property in such a manner which would result
in such use becoming a nonconforming use under applicable zoning ordinances or other Laws;


 


(c)Without
the prior written consent of Administrative Agent (which consent shall not be unreasonably withheld or delayed), (i) impose any
material easement, restrictive covenant, or encumbrance upon any Borrowing Base Property, (ii) execute or file any subdivision
plat or condominium declaration affecting any Borrowing Base Property, or (iii) consent to the annexation of any Borrowing Base
Property to any municipality;


 


(d)Do
any act, or suffer to be done any act by any Company or any of its Affiliates, which would reasonably be expected to materially
decrease the value of any Borrowing Base Property (including by way of negligent act);


 


(e)Without
the prior written consent of the Required Lenders (which consent shall not be unreasonably withheld or delayed), permit any drilling
or exploration for or extraction, removal or production of any mineral, hydrocarbon, gas, natural element, compound or substance
(including sand and gravel) from the surface or subsurface of any Borrowing Base Property regardless of the depth thereof or the
method of mining or extraction thereof;


 


(f)Allow
there to be less than twenty (20) Borrowing Base Properties;


 


(g)Allow
Borrowing Base Properties leased to tenants maintaining a rating of BBB-/Baa3 or better to be less than twenty percent (20%) of
the aggregate Borrowing Base;


 


(h)Without
the prior consent of the Required Lenders (which consent shall not be unreasonably withheld or delayed), surrender the leasehold
estate created by any Acceptable Ground Lease or terminate or cancel any Acceptable Ground Lease or materially modify, change,
supplement, alter, or amend any Acceptable Ground Lease, either orally or in writing; or


 


(i)Enter
into any Contractual Obligations related to any Borrowing Base Property providing for the payment of a management fee (or any other
similar fee) to anyone other than a Company if, with respect thereto, the Administrative Agent has reasonably required that such
fee be subordinated to the Obligations in a manner satisfactory to Administrative Agent, and an acceptable subordination agreement
has not yet been obtained.


 


8.11Incentive
Listing Fee Note


 


(a).
The Parent and Borrower shall not, collectively, make cash payments under the Incentive Listing Fee Note in excess of $100,000,000
in the aggregate during the term of the Incentive Listing Fee Note.


 



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8.12Environmental
Matters. Each of Parent and Borrower shall not knowingly directly or indirectly:


 


(a)Cause,
commit, permit, or allow to continue (i) any violation of any Environmental Requirement by or with respect to any Borrowing Base
Property or any use of or condition or activity on any Borrowing Base Property, or (ii) the attachment of any environmental Liens
on any Borrowing Base Property, in each case, that could reasonably be expected to have a Material Adverse Effect; and


 


(b)Place,
install, dispose of, or release, or cause, permit, or allow the placing, installation, disposal, spilling, leaking, dumping, or
release of, any Hazardous Material on any Borrowing Base Property in any manner that could reasonably be expected to have a Material
Adverse Effect. Any Hazardous Material disclosed in the Acceptable Environmental Report or otherwise permitted pursuant to any
Lease affecting any Borrowing Base Property shall be permitted on any Borrowing Base Property so long as such Hazardous Material
is maintained in compliance in all material respects with all applicable Environmental Requirements.


 


(c)Place
or install, or allow the placing or installation of any storage tank (or similar vessel) on any Borrowing Base Property except
that any storage tank (or similar vessel or any replacement thereof) disclosed in the Acceptable Environmental Report or otherwise
permitted pursuant to any Lease affecting any Borrowing Base Property shall be permitted on any Borrowing Base Property so long
as such storage tank (or similar vessel) is maintained in compliance in all material respects with all applicable Environmental
Requirements.


 


(d)Use
any Hazardous Material on any Borrowing Base Property except: (i) as reasonably necessary in the ordinary course of business; (ii)
in compliance with applicable Environmental Requirements; and (iii) in such a manner which could not reasonably be expected to
have a Material Adverse Effect.


 


8.13Negative
Pledge; Indebtedness. Each of Parent and Borrower shall not permit:


 


(a)The
Equity Interests of Borrower held by Parent to be subject to any Lien.


 


(b)Any
Subsidiary (other than Parent or Borrower) that directly or indirectly owns Equity Interests in any Subsidiary Guarantor to (i)
incur any Indebtedness (whether Recourse Indebtedness or Non-Recourse Indebtedness) (other than Indebtedness listed on Schedule
8.13), (ii) provide Guarantees to support Indebtedness (other than Indebtedness listed on Schedule 8.13), or (iii) have
its Equity Interests subject to any Lien or other encumbrance (other than in favor of the Administrative Agent or the administrative
agent (or equivalent person) under the Existing Revolving Credit Agreement).


 


(c)Any
Property Owner that owns a Borrowing Base Property to (i) incur any Indebtedness (whether Recourse Indebtedness or Non-Recourse
Indebtedness) or (ii) provide Guarantees to support Indebtedness (other than, in each case, Indebtedness secured by Liens permitted
by Section 8.01).


 



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(d)The
Borrower to incur any Indebtedness (other than pursuant to this Agreement or the Existing Revolving Credit Agreement) secured by
any Lien on any Borrowing Base Property or Equity Interest Collateral.


 


(e)Any
Subsidiary to provide Guarantees to support obligations under the Existing Revolving Credit Agreement (or any Refinancings (as
defined in the Intercreditor Agreement) thereof) unless such Subsidiary shall promptly, and in any event no later than the tenth
(10th) day following providing such Guarantee in respect of the Existing Revolving Credit Agreement, become party to a Subsidiary
Guaranty unconditionally guarantying in favor of Administrative Agent and Lenders the full payment and performance of the Obligations.


 


8.14Financial
Covenants. Parent shall not, directly or indirectly, permit:


 


(a)Maximum
Leverage Ratio. The Consolidated Leverage Ratio to exceed sixty percent (60%).


 


(b)Maximum
Recourse Indebtedness. Recourse Indebtedness of the Parent and the Borrower (excluding Indebtedness under this Agreement and
the Existing Revolving Credit Agreement) to exceed ten percent (10%) of Total Asset Value of the Companies.


 


(c)Minimum
Fixed Charge Ratio. The ratio of the Parent’s Consolidated Adjusted EBITDA to (ii) Consolidated Fixed Charges, for the
fiscal quarter then ended, to be equal to or less than 1.50 to 1.0.


 


(d)Minimum
Borrowing Base Debt Service Ratio. The Borrowing Base Debt Service Coverage Ratio, for the fiscal quarter then ended, to be
less than 1.50 to 1.0.


 


(e)Secured
Leverage Ratio. The Secured Leverage Ratio to exceed fifty percent (50%).


 


(f)Borrowing
Base Asset Value Ratio. The Borrowing Base Asset Value Ratio to be less than 1.60 to 1.0.


 


(g)Minimum
Tangible Net Worth. Tangible Net Worth of Parent, on a consolidated basis, to be less than the sum of (i) $925,000,000 plus
(ii) eighty-five percent (85%) of net cash proceeds of any Equity Issuances received by Parent or Borrower after such fiscal quarter
end (other than (x) proceeds received within ninety (90) days after the redemption, retirement or repurchase of ownership or equity
interests in Borrower or Parent, up to the amount paid by Borrower or Parent in connection with such redemption, retirement or
repurchase, where, for the avoidance of doubt, the net effect is that neither Borrower nor Parent shall have increased its Tangible
Net Worth as a result of any such proceeds and (y) proceeds received from any Equity Issuance to the extent such proceeds shall
be used solely to make cash payments pursuant to the terms of the Incentive Listing Fee Note subject to the limitation set forth
in Section 8.11).


 



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(h)Variable
Rate Indebtedness. The aggregate pro rata amount of the Indebtedness (including the Obligations) of the Consolidated Group
which is Variable Rate Indebtedness shall not exceed twenty percent (20%) of the Total Asset Value.


 


Article
IX.

Events of Default and Remedies


 


9.01Events
of Default. Any of the following shall constitute an Event of Default:


 


(a)Non-Payment.
Borrower or any other Loan Party fails to pay (i) when and as required to be paid herein, any amount of principal of any Loan,
or (ii) within five (5) days after the same becomes due, any interest on any Loan due hereunder, except that there shall be no
grace period for interest due on the Maturity Date, or (iii) within ten (10) days after notice from Administrative Agent, any other
amount payable to Administrative Agent or any Lender hereunder or under any other Loan Document except that there shall be no grace
period for any amount due the Maturity Date; or


 


(b)Specific
Covenants. Any Loan Party fails to perform or observe any term, covenant or agreement contained in any of Section 7.11
or Article VIII (other than Sections 8.10 (a), (b), and (d), or 8.12) or Parent fails to perform
or observe any term, covenant or agreement contained in the Parent Guaranty or any Subsidiary Guarantor fails to perform or observe
any term, covenant or agreement contained in the Subsidiary Guaranty; or


 


(c)Other
Covenants. Any Loan Party fails to perform or observe any term, covenant or agreement contained in any of Section 7.01,
7.02, 7.03, or 7.10 and such failure continues unremedied for ten (10) Business Days after such failure has
occurred; or


 


(d)Other
Defaults. Any Loan Party fails to perform or observe any other covenant or agreement (not specified in subsection (a),
(b), or (c) above) contained in any Loan Document on its part to be performed or observed and such failure continues
unremedied for thirty (30) days after the earlier of notice from Administrative Agent or the actual knowledge of the Loan Party,
and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts
but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Administrative Agent’s original
notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess
of ninety (90) days from Borrower’s receipt of Administrative Agent’s original notice; or


 


(e)Representations
and Warranties. Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of Borrower
or any other Loan Party herein, in any other Loan 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 and shall not be cured or remedied so that such representation,
warranty, certification or statement of fact is no longer incorrect or misleading in any material respect within ten (10) days
after the earlier of notice from Administrative Agent or the actual knowledge of any Loan Party thereof; or


 



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(f)Cross-Default.
(i) Any Company (A) fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand,
or otherwise), after the expiration of any applicable grace periods, in respect of any Indebtedness or Guarantee (other than Indebtedness
hereunder and Indebtedness under Swap Contracts) having an aggregate principal amount (including amounts owing to all creditors
under any combined or syndicated credit arrangement) of more than the Threshold Amount, or (B) fails to observe or perform any
other agreement or condition relating to any such Indebtedness or Guarantee or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event occurs, the effect of which default or other event is to permit the holder or
holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder
or holders or beneficiary or beneficiaries) 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 such Guarantee to become payable or cash collateral
in respect thereof to be demanded; (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 Company 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 any Company is
an Affected Party (as so defined) and, in either event, the Swap Termination Value owed by such Company as a result thereof is
greater than the Threshold Amount; or (iii) there occurs an “Event of Default” under and as defined in the Incentive
Listing Fee Note and such “Event of Default” is not cured or waived in writing within any applicable grace period;
or


 


(g)Insolvency
Proceedings, Etc. Any Loan 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 property; or any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of
such Person and the appointment continues undischarged or unstayed for sixty (60) calendar days; or any proceeding under any Debtor
Relief Law relating to any 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 sixty (60) calendar days, or an order for relief is entered in any such proceeding;
or


 


(h)Inability
to Pay Debts; Attachment. (i) Parent or Borrower becomes unable to pay its debts as they become due, or any Loan Party 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 is issued or levied against all or any material part of the property of any such Loan Party and is not released,
vacated or fully bonded within thirty (30) days after its issue or levy; or


 



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(i)Judgments.
There is entered against any Loan Party (i) one or more final judgments or orders for the payment of money in an aggregate amount
(as to all such judgments or orders) exceeding $35,000,000.00 (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 would 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 sixty (60) consecutive days during which a stay of enforcement
of such judgment, by reason of a pending appeal or otherwise, is not in effect; or


 


(j)ERISA.
(i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted or would result in liability
of any Company under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of
the Threshold Amount, or (ii) Parent 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 the Threshold Amount; or


 


(k)Invalidity
of Loan Documents. Any Loan Document at any time after its execution and delivery and for any reason other than as expressly
permitted hereunder or thereunder or satisfaction in full of all the Obligations, ceases to be in full force and effect in all
material effects, or any Lien on a material portion of the Collateral granted under any Security Document, at any time after its
execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of
all the Obligations, ceases to be in full force and effect and as to any such Lien, such Lien remains outstanding for thirty (30)
days notice from Administrative Agent; or any Loan Party or any other Person contests in any manner the validity or enforceability
of any Loan Document or any Lien granted under any Security Document; or any Loan Party denies that it has any or further liability
or obligation under any Loan Document, or purports to revoke, terminate or rescind any Loan Document or any Lien granted under
any Security Document; or


 


(l)Environmental
Matters. The failure by the Consolidated Group to remediate within the time period permitted by law or governmental order (or
within a reasonable time give the nature of the problem if no specific time period has been given) material environmental problems
related to properties whose aggregate book values are in excess of $10,000,000 after all administrative hearings and appeals have
been concluded; or


 


(m)REIT
Status of Parent. Parent ceases to be treated as a REIT in any taxable year after December 31, 2011; or


 


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


 


9.02Remedies
Upon Event of Default. If any Event of Default occurs and is continuing, Administrative Agent shall, at the request
of, or may, with the consent of, Required Lenders, take any or all of the following actions:


 



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(a)declare
the commitment of each Lender to make Loans 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 Loan Document to be immediately due and payable, without presentment, demand, protest or other notice
of any kind, all of which are hereby expressly waived by Borrower; and


 


(c)exercise
on behalf of itself and the Lenders all rights and remedies available to it and the Lenders under the Loan Documents;


 


provided that upon the occurrence of an
actual or deemed entry of an order for relief with respect to Borrower under the Bankruptcy Code of the United States, the obligation
of each Lender to make Loans 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, in each case without further act of Administrative Agent
or any Lender.


 


9.03Application
of Funds. After the exercise of remedies provided for in Section 9.02 (or after the Loans have automatically
become immediately due and payable as set forth in the proviso to Section 9.02), any amounts received on account of the
Obligations shall, subject to the provisions of Sections 2.17, be applied by Administrative Agent in the following order:


 


First, to
payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including reasonable fees,
charges and disbursements of counsel to Administrative Agent and amounts payable under Article III) payable to 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 fees, charges and disbursements of counsel to the respective Lenders and amounts payable under
Article III), ratably among them in proportion to the respective 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 other Obligations, ratably
among the Lenders in proportion to the respective amounts described in this clause Third payable to them;


 


Fourth, to
payment of that portion of the Obligations constituting unpaid principal of the Loans, ratably among the Lenders in proportion
to the respective amounts described in this clause Fourth held by them; and


 


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


 


Article
X.

Administrative Agent


 



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10.01Appointment
and Authority. Each of the Lenders hereby irrevocably appoints Wells Fargo Bank, National Association, as its contractual
representative (herein referred to as the “Administrative Agent”) hereunder and under the other Loan Documents
and authorizes Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to Administrative
Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. In its capacity
as the Lenders’ contractual representative, the Administrative Agent (i) does not hereby assume any fiduciary duties to
any of the Lenders and (ii) is acting as an independent contractor, the rights and duties of which are limited to those expressly
set forth in this Agreement and the other Loan Documents. Each of the Lenders hereby agrees to assert no claim against the Administrative
Agent on any agency theory or any other theory of liability for breach of fiduciary duty, all of which claims each Lender hereby
waives. The provisions of this Article are solely for the benefit of Administrative Agent and the Lenders, and neither Borrower
nor any other Company shall have rights as a third party beneficiary of any of such provisions other than with respect to Section
10.06.


 


10.02Rights
as a Lender. The Person serving as Administrative Agent hereunder shall have the same rights and powers in its
capacity as a Lender as any other Lender and may exercise the same as though it were not Administrative Agent and the term “Lender”
or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include
the Person serving as Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits
from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business
with any Company or other Affiliate thereof as if such Person were not Administrative Agent hereunder and without any duty to
account therefor to the Lenders.


 


10.03Exculpatory
Provisions. Administrative Agent shall not have any duties or obligations except those expressly set forth herein
and in the other Loan Documents. Without limiting the generality of the foregoing, Administrative Agent:


 


(a)shall
not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;


 


(b)shall
not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby or by the other Loan Documents that Administrative Agent is required to exercise as directed in writing
by Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other
Loan Documents), provided that Administrative Agent shall not be required to take any action that, in its opinion or the opinion
of its counsel, may expose Administrative Agent to liability or that is contrary to any Loan Document or applicable Law; and


 


(c)shall
not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for
the failure to disclose, any information relating to Parent, Borrower or any of their respective Affiliates that is communicated
to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity.


 



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Administrative Agent
shall not be liable for any action taken or not taken by it (i) with the consent or at the request of Required Lenders (or such
other number or percentage of the Lenders as shall be necessary, or as Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 11.01 and 9.02) or (ii) in the absence of its own gross
negligence or willful misconduct. The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of
any Default unless the Administrative Agent has received notice from a Lender or the Borrower referring to this Agreement, describing
with reasonable specificity such Default and stating that such notice is a “notice of default.” If a Lender becomes
aware of a Default, such Lender shall notify the Administrative Agent of such fact. Upon receipt of such notice that a Default
has occurred, the Administrative Agent shall notify each of the Lenders of such fact.


 


Administrative Agent
shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in
or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document
delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article V or elsewhere herein, other than to confirm receipt of items expressly
required to be delivered to Administrative Agent.


 


10.04Reliance
by Administrative Agent. Administrative Agent shall be entitled to rely upon, and shall not incur any liability
for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic
message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent
or otherwise authenticated by the proper Person. Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In
determining compliance with any condition hereunder to the making of a Loan that by its terms must be fulfilled to the satisfaction
of a Lender, Administrative Agent may presume that such condition is satisfactory to such Lender unless Administrative Agent shall
have received notice to the contrary from such Lender prior to the making of such Loan. Administrative Agent may consult with
legal counsel (who may be counsel for Borrower), independent accountants and other experts selected by it, and shall not be liable
for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative
Agent shall be fully justified in failing or refusing to take any action hereunder and under any other Loan Document unless it
shall be indemnified to its satisfaction by the Lenders pro rata against any and all liability, cost and expense that it may incur
by reason of taking or continuing to take any such action.


 


10.05Delegation
of Duties. 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 Administrative Agent. 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 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.


 



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10.06Successor
Administrative Agent. The Administrative Agent may resign at any time as Administrative Agent under the Loan Documents
by giving written notice thereof to the Lenders, the Parent and the Borrower. Upon any such resignation, the Required Lenders
shall have the right to appoint a successor Administrative Agent which appointment shall, provided no Event of Default exists,
be subject to the Borrower’s approval, which approval shall not be unreasonably withheld or delayed. If no successor Administrative
Agent shall have been so appointed in accordance with the immediately preceding sentence, and shall have accepted such appointment,
within 30 days after the current Administrative Agent’s giving of notice of resignation, then the current Administrative
Agent may, on behalf of the Lenders, appoint a successor Administrative Agent, which shall be a Lender, if any Lender shall be
willing to serve, and otherwise shall be an Eligible Assignee which appointment shall, provided no Event of Default exists, be
subject to Borrower’s approval, which approval shall not be unreasonably withheld or delayed; provided that, if no
such successor Administrative Agent shall accept such appointment, such resignation shall be effective in accordance with the
Administrative Agent’s resignation notice and the Required Lenders shall be deemed to constitute the Administrative Agent
for all determinations hereunder. Upon the acceptance of any appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the current Administrative Agent, and the current Administrative Agent shall be discharged from its duties and obligations
under the Loan Documents. After any Administrative Agent’s resignation hereunder as Administrative Agent, the provisions
of this Article X shall continue to inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative
Agent under the Loan Documents. Notwithstanding anything contained herein to the contrary, the Administrative Agent may assign
its rights and duties under the Loan Documents to any of its Affiliates by giving the Borrower, the Parent and each Lender prior
written notice. The Administrative Agent may be removed as administrative agent by all of the Lenders (excluding the Lender then
serving as Administrative Agent) and the Borrower upon 30 days’ prior written notice if the Administrative Agent is found
by a court of competent jurisdiction in a final, non-appealable judgment to have committed gross negligence or willful misconduct
in the course of performing its duties hereunder.


 


10.07Non-Reliance
on Administrative Agent and Other Lenders. Each Lender acknowledges that it has, independently and without reliance
upon Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it
has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges
that it will, independently and without reliance upon Administrative Agent or any other Lender or any of their Related Parties
and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions
in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document
furnished hereunder or thereunder.


 


10.08No
Other Duties, Etc


 


. Anything herein
to the contrary notwithstanding, the Lead Arranger listed on the cover page hereof shall not have any powers, duties or responsibilities
under this Agreement or any of the other Loan Documents.


 



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10.09Administrative
Agent May File Proofs of Claim. In case of the pendency of any proceeding under any Debtor Relief Law or any other
judicial proceeding relative to any Loan Party, Administrative Agent (irrespective of whether the principal of any Loan shall
then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether Administrative Agent shall
have made any demand on 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 and all other
Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims
of the Lenders and Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances
of the Lenders and Administrative Agent and their respective agents and counsel and all other amounts due the Lenders and Administrative
Agent under Sections 2.09 and 11.04) 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 Administrative Agent and, in the event that Administrative Agent shall consent to the making of such payments directly to the
Lenders, to pay to Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of
Administrative Agent and its agents and counsel, and any other amounts due Administrative Agent under Sections 2.09 and
11.04.


 


Nothing contained herein shall be deemed to authorize
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 to authorize Administrative Agent to vote in respect
of the claim of any Lender in any such proceeding.


 


10.10Collateral
and Guaranty Matters. The Lenders irrevocably authorize Administrative Agent, at its option and in its discretion,


 


(a)to
transfer or release any Lien on any Collateral (i) upon termination of the Aggregate Commitments and payment and satisfaction in
full of all Obligations (other than contingent indemnification obligations), (ii) that is sold or to be sold as part of or in connection
with any sale permitted hereunder or under any other Loan Document, (iii) subject to Section 11.01, if approved, authorized
or ratified in writing by Required Lenders, (iv) in accordance with the provisions of Section 4.09, (v) in accordance with
the Intercreditor Agreement or (vi) after foreclosure or other acquisition of title if approved by Required Lenders;


 



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(b)to
release any Subsidiary Guarantor from its obligations under any Subsidiary Guaranty if such Person, or the limited partnership
in which such Person is the general partner, ceases to own a Borrowing Base Property; and


 


(c)if
all or any portion of the Collateral is acquired by foreclosure or by deed in lieu of foreclosure, Administrative Agent shall take
title to the collateral in its name or by an Affiliate of Administrative Agent, but for the benefit of all Lenders in their Applicable
Percentages on the date of the foreclosure sale or recordation of the deed in lieu of foreclosure. Administrative Agent and all
Lenders hereby expressly waive and relinquish any right of partition with respect to any Collateral so acquired.


 


In its capacity, the
Administrative Agent is a “representative” of the Lenders within the meaning of the term “secured party”
as defined in the New York Uniform Commercial Code. Each Lender authorizes the Administrative Agent to enter into the Intercreditor
Agreement and each of the Security Documents to which it is a party and to take all action contemplated by such documents. Each
Lender agrees that no Lender (other than the Administrative Agent) shall have the right individually to seek to realize upon the
security granted by any Security Document, it being understood and agreed that such rights and remedies may be exercised solely
by the Administrative Agent for the benefit of the Lenders upon the terms of the Security Documents. In the event that any Collateral
is hereafter pledged by any Person as collateral security for the Obligations, the Administrative Agent is hereby authorized, and
hereby granted a power of attorney, to execute and deliver on behalf of the Lenders any Loan Documents necessary or appropriate
to grant and perfect a Lien on such Collateral in favor of the Administrative Agent on behalf of the Lenders.


 


Upon request by Administrative
Agent at any time, Required Lenders will confirm in writing Administrative Agent’s authority to release or subordinate its
interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty pursuant
to this Section 10.10. Upon any sale or transfer of assets constituting Collateral which is permitted pursuant to Section
10.10(a)(ii), or consented to in writing by the Required Lenders or all of the Lenders, as applicable, and upon at least five
(5) Business Days’ prior written request by the Borrower to the Administrative Agent, the Administrative Agent shall (and
is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary to evidence the release of the Liens
granted to the Administrative Agent for the benefit of the Lenders herein or pursuant hereto upon the Collateral that was sold
or transferred; provided, however, that (i) the Administrative Agent shall not be required to execute any such document
on terms which, in the Administrative Agent’s opinion, would expose the Administrative Agent to liability or create any obligation
or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in
any manner discharge, affect or impair the Obligations or any Liens upon (or obligations of the Borrower or any Subsidiary in respect
of) all interests retained by the Borrower or any Subsidiary, including (without limitation) the proceeds of the sale, all of which,
if applicable, shall continue to constitute part of the Collateral.


 



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10.11Funds
Transfer Disbursements.


 


(a)Generally.
The Borrower hereby authorizes the Administrative Agent to disburse the proceeds of any Loan made by the Lenders or any of their
Affiliates pursuant to the Loan Documents as requested by an authorized representative of the Borrower to any of the accounts designated
in the Transfer Authorizer Designation Form. The Borrower agrees to be bound by any transfer request: (i) authorized or transmitted
by the Borrower; or (ii) made in the Borrower’s name and accepted by the Administrative Agent in good faith and in compliance
with these transfer instructions, even if not properly authorized by the Borrower. The Borrower further agrees and acknowledges
that the Administrative Agent may rely solely on any bank routing number or identifying bank account number or name provided by
the Borrower to effect a wire or funds transfer even if the information provided by the Borrower identifies a different bank or
account holder than named by the Borrower. The Administrative Agent is not obligated or required in any way to take any actions
to detect errors in information provided by the Borrower. If the Administrative Agent takes any actions in an attempt to detect
errors in the transmission or content of transfer requests or takes any actions in an attempt to detect unauthorized funds transfer
requests, the Borrower agrees that no matter how many times the Administrative Agent takes these actions the Administrative Agent
will not in any situation be liable for failing to take or correctly perform these actions in the future and such actions shall
not become any part of the transfer disbursement procedures authorized under this provision, the Loan Documents, or any agreement
between the Administrative Agent and the Borrower. The Borrower agrees to notify the Administrative Agent of any known errors in
the transfer of any funds or of any unauthorized or improperly authorized transfer requests within fourteen (14) days after the
Administrative Agent’s confirmation to the Borrower of such transfer.


 


(b)Funds
Transfer. The Administrative Agent will, in its sole discretion, determine the funds transfer system and the means by which
each transfer will be made. The Administrative Agent may delay or refuse to accept a funds transfer request if the transfer would:
(i) violate the terms of this authorization, (ii) require use of a bank unacceptable to the Administrative Agent in its reasonable
discretion or any Lender or prohibited by any Governmental Authority, (iii) cause the Administrative Agent or any Lender to violate
any Federal Reserve or other regulatory risk control program or guideline or (iv) otherwise cause the Administrative Agent or any
Lender to violate any applicable law or regulation.


 


10.12Requests
for Approval. If the Administrative Agent requests in writing the consent or approval of a Lender, such Lender
shall, or, in the case of any request for consent or approval that is subject to clauses (a) through (h) of Section 11.01,
shall use commercially reasonable efforts to, respond and either approve or disapprove definitively in writing to the Administrative
Agent within ten (10) Business Days (or sooner if such notice specifies a shorter period, but in no event less than five (5) Business
Days for responses based on Administrative Agent’s good faith determination that circumstances exist warranting its request
for an earlier response) after such written request from the Administrative Agent provided that the request for approval states
the time by which a response is needed before approval is deemed given. Solely with respect to any request for consent or approval
requiring only the consent of the Required Lenders pursuant to Section 11.01, if the Lender does not so respond, that Lender
shall be deemed to have approved the request.


 



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10.13Exercise
of Rights by Lenders. Each Lender hereby agrees that, except as otherwise provided in any Loan Documents or with
the written consent of the Administrative Agent and the Required Lenders, it will not take any enforcement action, accelerate
obligations under any Loan Documents, or exercise any right that it might otherwise have under applicable law to credit bid at
foreclosure sales, UCC sales or other similar dispositions of Collateral.


 


 


 


Article
XI.

Miscellaneous


 


11.01Amendments,
Etc. Subject to (x) the right of the Borrower, solely with the agreement of the Administrative Agent and such new
Lenders or existing Lenders as may provide Incremental Term Loans, to enter into a Incremental Term Loan Amendment as described
in Section 2.03 above and any necessary and appropriate amendments in connection therewith to the other Loan Documents
and (y) the provisions of Section 2.04 above, no amendment or waiver of any provision of this Agreement or any other Loan
Document, and no consent to any departure by Borrower or any other Loan Party therefrom, shall be effective unless in writing
signed by Required Lenders and Borrower or the applicable Loan Party, as the case may be, and acknowledged by Administrative Agent,
and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given;
provided that no such amendment, waiver or consent shall:


 


(a)waive
any condition set forth in Section 5.01(a) without the written consent of each Lender;


 


(b)extend
or increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 9.02) without the written
consent of such Lender;


 


(c)postpone
any date fixed by this Agreement or any other Loan Document for any payment or mandatory prepayment of principal, interest, fees
or other amounts due to a Lender or any scheduled or mandatory reduction or termination of the Aggregate Commitments hereunder
or under any other Loan Document without the written consent of each Lender directly affected thereby;


 


(d)reduce
or forgive the principal of, or the rate of interest specified herein on, any Loan, or (subject to clause (ii) of the second
proviso to this Section 11.01) any fees or other amounts payable hereunder or under any other Loan Document, or change the
manner of computation of any financial ratio (including any change in any applicable defined term) used in determining the Applicable
Rate that would result in a reduction of any interest rate on any Loan or any fee payable hereunder without the written consent
of each Lender directly affected thereby; provided that only the consent of Required Lenders shall be necessary to amend the definition
of “Default Rate” or to waive any obligation of Borrower to pay interest at the Default Rate;


 



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(e)change
Section 9.03 in a manner that would alter the pro rata sharing of payments required thereby without the written consent
of each Lender;


 


(f)change
any provision of this Section 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, without the written consent of each Lender (it being understood that, solely with the consent of
the parties prescribed by Section 2.03 to be parties to an Incremental Term Loan Amendment, Incremental Term Loans may be
included in the determination of Required Lenders on substantially the same basis as the Commitments and the initial Loans are
included following satisfaction of the conditions set forth in Section 2.03);


 


(g)release
all or substantially all of the value of the Collateral without the written consent of each Lender, except to the extent the release
of such Collateral is permitted pursuant to Sections 4.09 or 10.10 (in which case such release may be made by Administrative
Agent acting alone); or


 


(h)release
all or substantially all of the value of the Guaranties without the written consent of each Lender, except to the extent the release
of any Guarantor is permitted pursuant to Sections 4.09 or 10.10 (in which case such release may be made by Administrative
Agent acting alone);


 


and, provided, further, that (i) no amendment,
waiver or consent shall, unless in writing and signed by Administrative Agent in addition to the Lenders required above, affect
the rights or duties of Administrative Agent under this Agreement or any other Loan Document; and (ii) the Engagement Letter may
be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Notwithstanding anything
to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder
(and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected
with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender
may not be increased or extended without the consent of such Lender and (y) any waiver, amendment or modification requiring the
consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than other affected
Lenders shall require the consent of such Defaulting Lender.


 


11.02Notices;
Effectiveness; Electronic Communication.


 


(a)Notices
Generally. Except in the case of notices and other communications expressly permitted to be given by telephone (and except
as provided in subsection (b) below), all notices and other communications provided for herein shall be in writing and shall
be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopier as follows, and
all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone
number, as follows:


 



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(i)if
to Borrower, Administrative Agent, to the address, telecopier number, electronic mail address or telephone number specified for
such Person on Schedule 11.02; and 


 


(ii)if
to any other Lender, to the address, telecopier number, electronic mail address or telephone number specified in its Administrative
Questionnaire (including, as appropriate, notices delivered solely to the Person designated by a Lender on its Administrative Questionnaire
then in effect for the delivery of notices that may contain material non-public information relating to Borrower).


 


Notices and other communications sent by
hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received;
notices and other communications sent by telecopier 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 and other communications 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 Administrative Agent, provided that the
foregoing shall not apply to notices to any Lender pursuant to Article II if such Lender has notified Administrative Agent
that it is incapable of receiving notices under such Article by electronic communication. Administrative Agent or Borrower may,
in its 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.


 


Unless Administrative
Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s
receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available,
return e-mail or other written acknowledgement); provided that if such notice or other communication is not sent during the normal
business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the
next business day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed
received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i)
of notification that such notice or communication is available and identifying the website address therefor.


 


(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 Administrative
Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to Borrower, any
Lender or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise)
arising out of Borrower’s or 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
that in no event shall any Agent Party have any liability to Borrower, any Lender or any other Person for indirect, special, incidental,
consequential or punitive damages (as opposed to direct or actual damages) resulting therefrom.


 



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(d)Change
of Address, Etc. Each of Borrower and Administrative Agent 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 Borrower and Administrative Agent. In addition,
each Lender agrees to notify Administrative Agent from time to time to ensure that 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. Furthermore, each Public Lender agrees to cause at least one (1)
individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar
designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance
with such Public Lender’s compliance procedures and applicable Law, including United States Federal and state securities
Laws, to make reference to Borrower Materials that are not made available through the “Public Side Information” portion
of the Platform and that may contain material non-public information with respect to Borrower or its Equity Interests for purposes
of United States Federal or state securities laws.


 


(e)Reliance
by Administrative Agent and Lenders.  Administrative Agent and the Lenders shall be entitled to rely and act upon any notices
(including telephonic Loan Notices) purportedly given by or on behalf of 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. Borrower shall indemnify Administrative Agent, each
Lender and the Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the reliance by
such Person on each notice purportedly given by or on behalf of Borrower. All telephonic notices to and other telephonic communications
with Administrative Agent may be recorded by Administrative Agent, and each of the parties hereto hereby consents to such recording.


 



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11.03No
Waiver; Cumulative Remedies; Enforcement


 


. No failure by any
Lender or 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 Loan Document, the authority to enforce rights and remedies hereunder and under
the other Loan Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings
at law in connection with such enforcement shall be instituted and maintained exclusively by, Administrative Agent in accordance
with Section 9.02 for the benefit of all the Lenders; provided that the foregoing shall not prohibit (a) Administrative
Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative
Agent) hereunder and under the other Loan Documents, (b) any Lender from exercising setoff rights in accordance with Section
11.08 (subject to the terms of Section 2.13), or (c) any Lender from filing proofs of claim or appearing and filing
pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; and provided,
further, that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then
(i) Required Lenders shall have the rights otherwise ascribed to Administrative Agent pursuant to Section 9.02 and (ii)
in addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject to Section
2.13, any Lender may, with the consent of Required Lenders, enforce any rights and remedies available to it and as authorized
by Required Lenders.


 


11.04Expenses;
Indemnity; Damage Waiver.


 


(a)Costs
and Expenses. Each Loan Party shall jointly and severally pay (i) all reasonable out-of-pocket expenses incurred by Administrative
Agent and its Affiliates (including (a) the reasonable fees, charges and disbursements of counsel for Administrative Agent; (b)
fees and charges of each consultant, inspector, and engineer; (c) title search or examination costs, including abstracts, abstractors’
certificates and uniform commercial code searches; (d) judgment and tax lien searches for Borrower and each Guarantor; (e) escrow
fees; (f) recordation taxes, documentary taxes and transfer taxes; and (g) filing and recording fees), in connection with the initial
syndication of the credit facilities provided for herein, the preparation, negotiation, execution, delivery and administration
of this Agreement and the other Loan 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) and (ii) all reasonable out-of-pocket expenses
incurred by Administrative Agent or any Lender (including the reasonable fees, charges and disbursements of any counsel for Administrative
Agent or any Lender (only if a Default shall be in existence)), in connection with the enforcement or protection of its rights
(A) in connection with this Agreement and the other Loan Documents, including its rights under this Section, or (B) in connection
with the Loans made, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect
of such Loans.


 



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(b)Indemnification.
Parent and Borrower shall jointly and severally indemnify Administrative Agent (and any sub-agent thereof), each Lender 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 reasonable
fees, charges and disbursements of any counsel for any Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee
by any third party or by Borrower or any other Loan Party resulting from any action, suit, or proceeding relating to (i) the execution
or delivery of this Agreement, any other Loan 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 Administrative Agent (and any subagent thereof) and its Related Parties only, the administration
of this Agreement and the other Loan Documents (including in respect of any matters addressed in Section 3.01), (ii) any
Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials
on or from any property owned or operated by Borrower or any of its Subsidiaries, or any Environmental Damages related in any way
to Borrower or any of its Subsidiaries, 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 Borrower or
any other Loan Party, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to
any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (w) 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 (x) result from a claim brought by Borrower or any other Loan Party against an Indemnitee for
material breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if Borrower or
such other Loan Party has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent
jurisdiction or (y) for which an Indemnitee has been compensated pursuant to the terms of this Agreement or the Engagement Letter.


 


(c)Environmental
Indemnity. Each Loan Party hereby, jointly and severally, assumes liability for, and covenants and agrees at its sole cost
and expense to protect, defend (at trial and appellate levels), indemnify and hold the Indemnitees harmless from and against, and,
if and to the extent paid, reimburse them on demand for, any and all Environmental Damages. WITHOUT LIMITATION, THE FOREGOING INDEMNITY
SHALL APPLY TO EACH INDEMNITEE WITH RESPECT TO ENVIRONMENTAL DAMAGES WHICH IN WHOLE OR IN PART ARE CAUSED BY OR ARISE OUT OF, OR
ARE CLAIMED TO BE CAUSED BY OR ARISE OUT OF, THE NEGLIGENCE OR STRICT LIABILITY OF SUCH (AND/OR ANY OTHER) INDEMNITEE. HOWEVER,
SUCH INDEMNITY SHALL NOT APPLY TO A PARTICULAR INDEMNITEE TO THE EXTENT THAT THE SUBJECT OF THE INDEMNIFICATION IS (W) CAUSED BY
OR ARISES OUT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THAT PARTICULAR INDEMNITEE OR ANY RELATED PARTY OF SUCH INDEMNITEE
AS DETERMINED IN A NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION, (X) INDIRECT, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY
DAMAGES UNLESS SUCH DAMAGES WERE IMPOSED UPON SUCH INDEMNITEE AS A RESULT OF ANY CLAIMS MADE AGAINST SUCH INDEMNITEE BY A GOVERNMENTAL
ENTITY OR ANY OTHER THIRD PARTY (Y) RESULTS FROM ANY CLAIMS RELATED TO ANY REMEDIAL WORK PERFORMED BY OR ON BEHALF OF ANY PERSON
(OTHER THAN BORROWER OR ANOTHER LOAN PARTY) SO INDEMNIFIED TO THE EXTENT THAT SUCH REMEDIAL WORK WAS NOT REQUIRED UNDER ANY APPLICABLE
ENVIRONMENTAL LAW OR (Z) AFTER THE RELEASE DATE, ANY ENVIRONMENTAL DAMAGES OR ENVIRONMENTAL CLAIM THAT ARE (A) BASED ON AN EVENT
THAT OCCURS SOLELY AFTER SUCH RELEASE DATE, AND (B) THAT IS IN NO WAY RESULTING FROM ANY STATE OF FACTS OR CONDITION THAT EXISTED
ON OR BEFORE SUCH RELEASE DATE. Upon demand by Administrative Agent or any Lender, the applicable Loan Party shall diligently defend
any Environmental Claim which affects a Borrowing Base Property or is made or commenced against Administrative Agent or Lenders,
whether alone or together with any other Loan Party or any other person, all at the Loan Parties’ own cost and expense and
by counsel to be approved by Administrative Agent in the exercise of its reasonable judgment which shall not be unreasonably withheld
or delayed. Notwithstanding the foregoing, if the defendants in a claim include any Loan Party and any Indemnitee shall have reasonably
concluded that (a) there are legal defenses available to it that are materially different from those available to such Loan Party,
(b) the use of the counsel engaged by Parent and Borrower would present such counsel with a conflict of interest, or (c) the counsel
engaged by Parent and Borrower are not properly representing the Indemnitee’s interests or were not promptly provided, any
Indemnitee may, at the sole cost and expense of Parent and Borrower, engage its own counsel to assume its legal defenses and to
defend or assist it, and, at the option of such Indemnitee, its counsel may act as co-counsel in connection with the resolution
of any Indemnified Claim; provided, however, that no compromise or settlement, which would impose upon any Loan Party any liabilities,
obligations, losses, damages, and/or penalties, shall be entered into without the consent of Parent and Borrower, which consent
shall not be unreasonably withheld and, provided, further, that Parent and Borrower shall not be liable for the expenses of more
than one separate counsel for all Indemnitees unless an Indemnitee shall have reasonably concluded that there may be legal defenses
available to it that are different from or additional to those available to another Indemnitee and which legal defenses raise ethical
and/or legal considerations which warrant separate counsel, provided that such Indemnitee shall make reasonable attempts to ensure
that any environmental disbursements and legal expenses are not duplicative. Notwithstanding anything to the contrary contained
above:


 



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(i)The
Indemnitees will endeavor to give Borrower notice of any Environmental Damage within thirty (30) days after an Indemnitee receives
written notice of that Environmental Damage. However, if the Indemnitees fail to give Borrower timely notice of such Environmental
Damage or otherwise default in their obligations under this Section 11.04(c) or Section 7.12, the Indemnitees shall
retain the right to defend and control the settlement of the Environmental Damage. The Loan Parties’ sole remedy for such
a default by the Indemnitees shall be to offset against the indemnification liability otherwise payable by the Loan Parties to
the Indemnitees the amount of damages actually suffered by the Loan Parties as a result of the late notice or other default by
the Indemnitees under this Section 11.04(c).


 



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(ii)The
Loan Parties shall have the right to elect to defend and control the settlement of any Environmental Damage if each of the following
conditions is satisfied:


 


(A)The
Environmental Damage seeks only monetary damages and does not seek any injunction or other equitable relief against the Indemnitees;


 


(B)The
Loan Parties unconditionally acknowledge in writing, in a notice of election to contest or defend the Environmental Damage given
to the Indemnitees within ten (10) days after the Indemnitees give the Borrower notice of the Environmental Damage, that the Loan
Parties are obligated to indemnify the Indemnitees in full, but subject to the limitations, as set forth in this Section 11.04(c)
above with respect to the Environmental Damage;


 


(C)No
Event of Default is then in existence under the Loan Documents;


 


(D)The
counsel chosen by the Loan Parties to defend the Environmental Damage is reasonably satisfactory to the Administrative Agent; and


 


(E)If
reasonably requested by the Administrative Agent, the Loan Parties furnish the Indemnitees with a letter of credit, surety bond,
or similar security in form and substance satisfactory to the Indemnitees in an amount sufficient to secure the Loan Parties’
potential indemnity liability to the Indemnitees in the full amount of the Environmental Damage.


 


(iii)If
the Loan Parties elect to defend against an Environmental Damage, the Indemnitees shall, at their own expense, be entitled to participate
in (but not control) the defense of, and receive copies of all pleadings and other papers in connection with, such Environmental
Damage. If the Loan Parties do not, or are not entitled to, elect to defend an Environmental Damage in conformity with the requirements
of this Section, the Indemnitees shall be entitled to defend or settle (or both), with the reasonable approval of the Borrower
unless an Event of Default is in existence, that Environmental Damage on such terms as the Indemnitees for that Environmental Damage
shall be satisfied in the manner provided for in this Section 11.04(c).


 


(iv)The
Indemnitees will permit the Loan Parties to control the settlement of an Environmental Damage only if: (A) the terms of the settlement
require no more than the payment of money - that is, the settlement does not require the Indemnitees to admit any wrongdoing or
take or refrain from taking any action; (B) the full amount of the monetary settlement will be paid by the Loan Parties; and (C)
the Indemnitees receive, as part of the settlement, a legally binding and enforceable unconditional satisfaction or release, which
is in form and substance reasonably satisfactory to the Indemnitees, providing that the Environmental Damage and any claimed liability
of the Indemnitees with respect to it being fully satisfied because of the settlement and that the Indemnitees are being released
from any and all obligations or liabilities they may have with respect to the Environmental Damage.


 



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(d)Reimbursement
by Lenders. To the extent that the Loan Parties for any reason fails to indefeasibly pay any amount required under subsection
(a), (b) or (c) of this Section to be paid by the Loan Parties to Administrative Agent (or any sub-agent
thereof) or any Related Party of any of the foregoing (and without limiting their obligation to do so), each Lender severally agrees
to pay to Administrative Agent (or any such sub-agent) or such Related Party, as the case may be, such Lender’s Applicable
Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount,
provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was
incurred by or asserted against Administrative Agent (or any such sub-agent) in its capacity as such, or against any Related Party
of any of the foregoing acting for Administrative Agent (or any such sub-agent) in connection with such capacity. The obligations
of the Lenders under this subsection (d) are subject to the provisions of Section 2.12(d).


 


(e)Waiver
of Consequential Damages, Etc. To the fullest extent permitted by applicable Law, no Loan Party shall assert, and each Loan
Party hereby waives, 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 Agreement, any other
Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or
the use of the proceeds thereof. No Indemnitee referred to in subsection (b) above 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 Agreement or the other
Loan 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.


 


(f)Payments.
All amounts due under this Section shall be payable not later than thirty (30) days after demand therefor.


 


(g)Survival.
The agreements in this Section shall survive the resignation of Administrative Agent, the replacement of any Lender, the
termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations.


 



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11.05Payments
Set Aside


 


. To the extent that
any payment by or on behalf of Borrower is made to Administrative Agent or any Lender, or Administrative Agent or any Lender exercises
its right of setoff, and such payment or the proceeds of such setoff 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 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 setoff had
not occurred, and (b) each Lender severally agrees to pay to Administrative Agent upon demand its applicable share (without duplication)
of any amount so recovered from or repaid by 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. The obligations of the Lenders
under clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the termination of this
Agreement.


 


11.06Successors
and Assigns.


 


(a)Successors
and Assigns Generally. The terms and provisions of the Loan Documents shall be binding upon and inure to the benefit of the
Borrower and the Lenders and their respective successors and assigns, except that (i) the Borrower shall not have the right to
assign its rights or obligations under the Loan Documents without the prior written consent of all Lenders (and any such assignment
or other transfer to which all of the Lenders have not so consented shall be null and void) and (ii) any assignment by any Lender
must be made in compliance with Section 11.06(c). Notwithstanding clause (ii) of this Section, any Lender may at any time,
without the consent of the Borrower or the Administrative Agent, (x) pledge or assign all or any portion of its rights under this
Agreement and any Notes to a Federal Reserve Bank or other central banking authority and (y) in the case of a Lender which is a
Fund, pledge or assign all or any portion of its rights under this Agreement and any Note to its trustee in support of its obligations
to its trustee; provided, however, that no such pledge or assignment creating a security interest shall release the transferor
Lender from its obligations hereunder unless and until the parties hereto have complied with the provisions of Section 11.06(c).
The Administrative Agent may treat the payee of any Loan or any Note as the owner thereof for all purposes hereof unless and until
such payee complies with Section 11.06(c) in the case of an assignment thereof or, in the case of any other transfer, a
written notice of the transfer is filed with the Administrative Agent. Any assignee of the rights to any Loan or any Note agrees
by acceptance of such assignment to be bound by all the terms and provisions of the Loan Documents. Any request, authority or consent
of any Person, who at the time of making such request or giving such authority or consent is the owner of the rights to any Loan
(whether or not a Note has been issued in evidence thereof), shall be conclusive and binding on any subsequent holder or assignee
of the rights to such Loan.


 


(b)Participations.


 


(i)Permitted
Participants; Effect. Any Lender may, in the ordinary course of its business and in accordance with applicable law,
at any time sell, without the consent of the Borrower or the Administrative Agent, to one or more banks, financial institutions,
pension funds, or any other funds or entities other than the Borrower or its Affiliates (“Participants”) participating
interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest
of such Lender under the Loan Documents. In the event of any such sale by a Lender of participating interests to a Participant,
such Lender’s obligations under the Loan Documents shall remain unchanged, such Lender shall remain solely responsible to
the other parties hereto for the performance of such obligations, such Lender shall remain the owner of its Loans and the holder
of any Note issued to it in evidence thereof for all purposes under the Loan Documents, all amounts payable by the Borrower under
this Agreement shall be determined as if such Lender had not sold such participating interests, and the Borrower and the Administrative
Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations
under the Loan Documents.


 



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(ii)Voting
Rights. Each Lender shall retain the sole right to approve, without the consent of any Participant, any amendment, modification
or waiver of any provision of the Loan Documents other than any amendment, modification or waiver with respect to any Loan or Commitment
in which such Participant has an interest which forgives principal, interest or fees or reduces the interest rate or fees payable
with respect to any such Loan or Commitment or postpones any date fixed for any regularly-scheduled payment of principal of, or
interest or fees on, any such Loan or Commitment or releases all or substantially all of the value of the Guaranties (subject to
Sections 4.09 or 10.10).


 


(iii)Benefit
of Certain Provisions; Participant Register. 


 


(A)The
Borrower agrees that each Participant shall be deemed to have the right of setoff provided in Section 11.08 in respect of
its participating interest in amounts owing under the Loan Documents to the same extent as if the amount of its participating interest
were owing directly to it as a Lender under the Loan Documents. Each Lender shall retain the right of setoff provided in Section
11.08 with respect to the amount of participating interests sold to each Participant, provided that such Lender and Participant
may not each setoff amounts against the same portion of the Obligations, so as to collect the same amount from the Borrower twice.
The Lenders agree to share with each Participant, and each Participant, by exercising the right of setoff provided in Section
11.08, agrees to share with each Lender, any amount received pursuant to the exercise of its right of setoff, such amounts
to be shared in accordance with Section 2.13 as if each Participant were a Lender. The Borrower further agrees that each
Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it
were a Lender and had acquired its interest by assignment pursuant to Section 11.06(c), provided that (i) a Participant
shall not be entitled to receive any greater payment under Section 3.01, 3.04 or 3.05 than the Lender who
sold the participating interest to such Participant would have received had it retained such interest for its own account, unless
the sale of such interest to such Participant is made with the prior written consent of the Borrower, (ii) any Participant not
incorporated under the laws of the United States of America or any State thereof agrees to comply with the provisions of Section
3.01 to the same extent as if it were a Lender and (iii) such Participant agrees to comply with Section 3.06 as if it
were a Lender.


 



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(B)Each
Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register
on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s
interest in the Loans or other obligations under this Agreement (the “Participant Register”); provided
that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the
identity of any Participant or any information relating to a Participant’s interest in any Commitments, Loans or its other
obligations under this Agreement) except to the extent that such disclosure is necessary to establish that such Commitment, Loan
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.


 


(c)Assignments.
Any Lender may at any time assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans at the time owing to it); provided that any such assignment
shall be subject to the following conditions:


 


(i)Minimum
Amounts.


 


(A)in
the case of an assignment of the entire remaining amount of an assigning Lender’s Commitment and the Loans at the time owing
to it, or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned;
and


 


(B)in
any case not described in the immediately preceding clause (A), the aggregate amount of the Commitments (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 (in each case, determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified
in the Assignment and Assumption, as of the Trade Date) shall not be less than $5,000,000 unless each of the Administrative Agent
and, so long as no Event of Default shall exist, the Borrower otherwise consents (each such consent not to be unreasonably withheld
or delayed); provided that concurrent assignments to members of an Assignee Group and concurrent assignments from members
of an Assignee Group to a single Eligible Assignee (or to an Eligible Assignee and members of its Assignee Group) will be treated
as a single assignment for purposes of determining whether such minimum amount has been met and provided, further, that if, after
giving effect to such assignment, the amount of the Commitment held by such assigning Lender or the outstanding principal balance
of the Loans of such assigning Lender, as applicable, would be less than $5,000,000, then such assigning Lender shall assign the
entire amount of its Commitment and the Loans at the time owing to it.


 



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(ii)Proportionate
Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s
rights and obligations under this Agreement with respect to the Loan or the Commitment assigned.


 


(iii)Required
Consents. No consent shall be required for any assignment except to the extent required by clause (B) of this Section 11.06(c)(i)
and, in addition:


 


(A)the
consent of the Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (x) an Event of Default
shall exist at the time of such assignment or (y) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund;
provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written
notice to the Administrative Agent within ten (10) Business Days after having received notice thereof; and


 


(B)the
consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments
in respect of (x) a Commitment if such assignment is to a Person that is not already a Lender with a Commitment, an Affiliate of
such a Lender or an Approved Fund with respect to such a Lender or (y) a Loan to a Person who is not a Lender, an Affiliate of
a Lender or an Approved Fund.


 


(iv)Assignment
and Assumption; Notes. The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and
Assumption, together with a processing and recordation fee of $4,500 for each assignment, and the assignee, if it is not a Lender,
shall deliver to the Administrative Agent an Administrative Questionnaire. If requested by the transferor Lender or the assignee,
upon the consummation of any assignment, the transferor Lender, the Administrative Agent and the Borrower shall make appropriate
arrangements so that new Notes requested pursuant to Section 2.11 are issued to the assignee and such transferor Lender,
as appropriate.


 



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(v)No
Assignment to Certain Persons. No such assignment shall be made (A) to Parent or Borrower or any of their Affiliates or Subsidiaries,
or (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), or (C) to a natural person.


 


(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 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 Borrower and 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 Administrative Agent or any Lender
hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all 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 clause (iv) above, from and after the effective date specified in each Assignment and Assumption,
the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption,
have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of
an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender
shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05
and 11.04 and the other provisions of this Agreement and the other Loan Documents that expressly survive the termination
hereof with respect to facts and circumstances occurring prior to the effective date of such assignment. Any assignment or transfer
by a Lender of rights or obligations under this Agreement that does not comply with this paragraph shall be treated for purposes
of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 11.06(b).


 


(d)Register.
Administrative Agent, acting solely for this purpose as an agent of Borrower (and such agency being solely for tax purposes), shall
maintain at Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts of the Loans owing to, each
Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be
conclusive absent manifest error, and Borrower, Administrative Agent and the Lenders may treat each Person whose name is recorded
in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to
the contrary. In addition, Administrative Agent shall maintain on the Register information regarding the designation, and revocation
of designation, of any Lender as a Defaulting Lender. The Register shall be available for inspection by Borrower and any Lender,
at any reasonable time and from time to time upon reasonable prior notice.


 



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11.07Treatment
of Certain Information; Confidentiality. Each of Administrative Agent and the Lenders agrees to maintain the confidentiality
of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’
respective partners, directors, officers, employees, agents, trustees, advisors and representatives actively involved in the origination,
syndication, closing, administration or enforcement of the Loans, (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential),
(b) to the extent requested by any regulatory authority purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners) or in connection with an examination of such Person by
any such authority or at the request of any self-regulated body, (c) at the express direction of any other governmental authority,
with jurisdiction over the Administrative Agent and/or the Lenders, of any State of the United States of America or of any other
jurisdiction in which such Person conducts its business, (d) to the extent required by applicable Laws or regulations or by any
subpoena or similar legal process, (e) in connection with the exercise of any remedies hereunder or under any other Loan Document
or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder,
(f) to such Person’s independent auditors, attorneys, agents and other professional advisors, (g) to bank trade publications,
such customary information to consist of the name of the Borrower, size, tenor and type of facility, and the identity of titled
banks, (h) to any other party hereto, (i) subject to an agreement containing provisions substantially the same or at least as
restrictive as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or its advisors) to
any swap or derivative transaction relating to Borrower and its obligations hereunder, (j) with the consent of Borrower or (k)
to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section or (y) becomes
available to Administrative Agent, any Lender or any of their respective Affiliates on a nonconfidential basis from a source other
than Borrower provided that the source of such information was not at the time known by Administrative Agent, any Lender or any
of their respective Affiliates to be bound by a confidentiality agreement or other legal or contractual obligation of confidentiality
with respect to such Information. For purposes of this Section, “Information” means all information received from
any Company relating to any Company or any of their respective businesses, other than any such information that is available to
Administrative Agent or any Lender on a nonconfidential basis prior to disclosure by any Company, provided that in the case of
information received from any Company after the date hereof, such information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of Information as provided in this Section shall
be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own confidential information.


 



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Each of Administrative
Agent and the Lenders acknowledges that (a) the Information may include material non-public information concerning Borrower 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 United States Federal
and state securities Laws.


 


11.08Right
of Setoff. If an Event of Default shall have occurred and be continuing, each Lender is hereby authorized at any
time and from time to time, after obtaining the prior written consent of the Required Lenders exercised in their sole discretion,
to the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general or special, time or demand,
provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by
such Lender to or for the credit or the account of Borrower or any other Loan Party against any and all of the obligations of
Borrower or such Loan Party now or hereafter existing under this Agreement or any other Loan Document to such Lender, irrespective
of whether or not such Lender shall have made any demand under this Agreement or any other Loan Document and although such obligations
of Borrower or such Loan Party may be contingent or unmatured or are owed to a branch or office of such Lender different from
the branch or office holding such deposit or obligated on such 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 Administrative Agent for
further application in accordance with the provisions of Section 2.17 and, pending such payment, shall be segregated by
such Defaulting Lender from its other funds and deemed held in trust for the benefit of Administrative Agent and the Lenders,
and (y) the Defaulting Lender shall provide promptly to 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 under this Section are
in addition to other rights and remedies (including other rights of setoff) that such Lender may have. Each Lender agrees to notify
Borrower and 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.


 


11.09Interest
Rate Limitation. Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or
agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable
Law (the “Maximum Rate”). If 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 Borrower. In determining whether the interest contracted for, charged, or received by 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.


 



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11.10Counterparts;
Integration; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto in
different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single
contract. This Agreement and the other Loan Documents constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Section 5.01, this Agreement shall become effective when it shall have been executed by Administrative
Agent and when Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of
each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by telecopy or other
electronic imaging means shall be effective as delivery of a manually executed counterpart of this Agreement.


 


11.11Survival
of Representations and Warranties. All representations and warranties made hereunder and in any other Loan 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 Administrative Agent and
each Lender, regardless of any investigation made by Administrative Agent or any Lender or on their behalf and notwithstanding
that Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and
shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied.


 


11.12Severability.
If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality,
validity and enforceability of the remaining provisions of this Agreement and the other Loan 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. Without limiting the foregoing provisions of this Section 11.12, if and to the extent that the
enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined
in good faith by Administrative Agent, then such provisions shall be deemed to be in effect only to the extent not so limited.


 


11.13Replacement
of Lenders. If any Lender requests compensation under Section 3.04, or if Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, if
any Lender is a Defaulting Lender or a Non-Consenting Lender or if any other circumstance exists hereunder that gives Borrower
the right to replace a Lender as a party hereto, then Borrower may, at its sole expense and effort, upon notice to such Lender
and Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in, and consents required by, Section 11.06, other than the consent of any Lender being so replaced),
all of its interests, rights and obligations under this Agreement and the related Loan Documents to an assignee that shall assume
such obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided that:


 







 


 



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(a)Borrower
shall have paid to Administrative Agent the assignment fee specified in Section 11.06(c)(iv);


 


(b)such
Lender shall have received payment of an amount equal to 100% of the outstanding principal of its Loans, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (excluding, in the case of any Defaulting
Lender, any amounts under Section 3.05) from the assignee (to the extent of such outstanding principal and accrued interest
and fees) or Borrower (in the case of all other amounts);


 


(c)in
the case of any such assignment resulting from a claim for compensation under Section 3.04 or payments required to be made
pursuant to Section 3.01, such assignment will result in a reduction in such compensation or payments thereafter; and


 


(d)such
assignment does not conflict with applicable Laws.


 


A Lender shall not
be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling Borrower to require such assignment and delegation cease to apply.


 


11.14Governing
Law; Jurisdiction; Etc.


 


(a)GOVERNING
LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.


 


(b)SUBMISSION
TO JURISDICTION. EACH OF PARENT, BORROWER, AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND
ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED
STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND
EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING SHALL
BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT.
EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED
IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER
LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT ADMINISTRATIVE AGENT OR ANY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS
OF ANY JURISDICTION AS NECESSARY TO ENFORCE ITS RIGHTS AND REMEDIES HEREUNDER.


 



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(c)WAIVER
OF VENUE. EACH OF PARENT, BORROWER, AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (b) OF THIS
SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE
OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.


 


(d)SERVICE
OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 11.02.
NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE
LAW.


 


 





11.15Waiver
of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED
ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE
THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT
AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.


 


11.16No
Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction
contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document),
Parent, Borrower, and each other Loan Party acknowledges and agrees, and acknowledges its Affiliates’ understanding, that:
(i)(A) the arranging and other services regarding this Agreement provided by Administrative Agent and Lead Arranger are arm’s-length
commercial transactions between Parent, Borrower, each other Loan Party and their respective Affiliates, on the one hand, and
Administrative Agent and Lead Arranger, on the other hand, (B) each of Parent, Borrower, and the other Loan Parties has consulted
its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) Borrower and each other
Loan Party is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated
hereby and by the other Loan Documents; (ii)(A) Administrative Agent, each Lender and Lead Arranger is and has been acting solely
as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting
as an advisor, agent or fiduciary for Parent, Borrower, any other Loan Party, or any of their respective Affiliates, or any other
Person and (B) neither Administrative Agent, any Lender nor Lead Arranger has any obligation to Parent, Borrower, any other Loan
Party, or any of their respective Affiliates with respect to the transactions contemplated hereby except those obligations expressly
set forth herein and in the other Loan Documents; and (iii) Administrative Agent, each Lender and the Lead Arranger and their
respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of Parent,
Borrower, the other Loan Parties, and their respective Affiliates, and neither Administrative Agent, any Lender nor any Lead Arranger
has any obligation to disclose any of such interests to Parent, Borrower, any other Loan Party, or any of their respective Affiliates.
To the fullest extent permitted by Law, each of Parent, Borrower, and the other Loan Parties hereby waives and releases any claims
that it may have against Administrative Agent, each Lender and the Lead Arranger with respect to any breach or alleged breach
of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.


 



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11.17Electronic
Execution of Assignments and Certain Other Documents. The words “execution,” “signed,” “signature,”
and words of like import in any Assignment and Assumption or in any amendment or other modification hereof (including waivers
and consents) shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall
be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping
system, as the case may be, to the extent and as provided for in any applicable Law, including the Federal Electronic Signatures
in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws
based on the Uniform Electronic Transactions Act.


 


11.18USA
PATRIOT Act. Each Lender that is subject to the Act (as hereinafter defined) and Administrative Agent (for itself and
not on behalf of any Lender) hereby notifies Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub.
L. 10756 (signed into law October 26, 2001)) (the “Patriot Act”), it is required to obtain, verify and record
information that identifies each Loan Party, which information includes the name and address of each Loan Party and other information
that will allow such Lender or Administrative Agent, as applicable, to identify each Loan Party in accordance with the Patriot
Act. Borrower or such Loan Party shall, promptly following a request by Administrative Agent or any Lender, provide all documentation
and other information that Administrative Agent or such Lender requests in order to comply with its ongoing obligations under
applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.


 


11.19ENTIRE
AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN 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.


 



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[SIGNATURE PAGES FOLLOW]


 



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IN WITNESS WHEREOF,
the parties hereto have caused this Agreement to be duly executed as of the date first above written.


 


BORROWER:


 


AMERICAN REALTY CAPITAL

OPERATING PARTNERSHIP, L.P., a Delaware

limited partnership


 


By: /s/ Jesse C. Galloway

Name: Jesse C. Galloway

Title: Authorized Signatory


 


PARENT:


 


AMERICAN REALTY CAPITAL TRUST,

INC., a Maryland corporation


 


By: /s/ Jesse C. Galloway

Name: Jesse C. Galloway

Title: Authorized Signatory


 





Signature Page to


Amended and Restated Term Loan Agreement


 



    	 



    	 



    

Wells Fargo
Bank, National Association, as Administrative Agent and as a Lender


 


By: /s/ D. Bryan Gregory

Name: D. Bryan Gregory

Title: Director


 





Signature Page to


Amended and Restated Term Loan Agreement


 



    	 



    	 



    

TD Bank, N.A.


 


By: /s/ Aaron Miller

Name: Aaron Miller

Title: Vice President


 





Signature Page to


Amended and Restated Term Loan Agreement


 



    	 



    	 



    

UNION BANK, N.A.


 


By: /s/ Gregory A. Conner

Name: Gregory A. Conner

Title: Assistant Vice President


 





Signature Page to


Amended and Restated Term Loan Agreement


 



    	 



    	 



    

U.S. BANK NATIONAL ASSOCIATION


 


By: /s/ Gordon J. Clough

Name: Gordon J. Clough

Title: Vice President


 





Signature Page to


Amended and Restated Term Loan Agreement


 



    	 



    	 



    

 


 


BRANCH BANKING & TRUST COMPANY


 


By: /s/ Ahaz A. Armstrong





Name: Ahaz A. Armstrong





Title: Assistant Vice President


 





Signature Page to


Amended and Restated Term Loan Agreement


 



    	 



    	 



    

MIDFIRST BANK


 


By: /s/ Tom Gray

Name: Tom Gray

Title: Vice President


 





Signature Page to


Amended and Restated Term Loan Agreement


 



    	 



    	 



    

RAYMOND JAMES BANK, N.A.


 


By: /s/ James M. Armstrong





Name: James M. Armstrong

Title: Senior Vice President


 





Signature Page to


Amended and Restated Term Loan Agreement