Unassociated Document


    



    


    


     

    


     

    Loan No.
07-0004350

     

    CREDIT
AGREEMENT

     

    Dated as
of February 23, 2010

     

    among

     

    THE
PARTIES LISTED ON SCHEDULE 1.01 ATTACHED HERETO

     

    as
Borrowers,

     

    GENERAL
ELECTRIC CAPITAL CORPORATION,

     

    as
Administrative Agent and a Lender,

     

    and

     

    THE OTHER
FINANCIAL INSTITUTIONS WHO ARE OR HEREAFTER

    BECOME
PARTIES TO THIS CREDIT AGREEMENT,

     

    as
Lenders

     

    


     

    


    
      
        
          
            


             DAL:0535130/00080:1910701v7

          

           


        

        
           


          
            

          

        

        
           


        

      

    

    


    TABLE OF
CONTENTS

     

     

    
      	 Article and
      Section	 Page
	 	 	 
	
              ARTICLE
      I

            	
              DEFINITIONS
      AND ACCOUNTING TERMS

            	
              1

            
	
              1.01.

            	
              Defined
      Terms.

            	
              1

            
	
              1.02.

            	
              Interpretive
      Provisions.

            	
              32

            
	
              1.03.

            	
              Accounting
      Terms.

            	
              33

            
	
              1.04.

            	
              Rounding.

            	
              33

            
	
              1.05.

            	
              References
      to Agreements and Laws.

            	
              33

            
	
              1.06.

            	
              Times
      of Day.

            	
              33

            
	 	 	 
	
              ARTICLE
      II

            	
              COMMITMENTS
      AND ADVANCES

            	
              33

            
	
              2.01.

            	
              Commitments.

            	
              33

            
	
              2.02.

            	
              Advances
      of the Loan.

            	
              35

            
	
              2.03.

            	
              Calculation
      of Availability Amount.

            	
              36

            
	
              2.04.

            	
              Repayment
      of the Loan.

            	
              36

            
	
              2.05.

            	
              Prepayments.

            	
              37

            
	
              2.06.

            	
              Interest.

            	
              37

            
	
              2.07.

            	
              Fees
      and Expenses.

            	
              38

            
	
              2.08.

            	
              Computation
      of Interest.

            	
              39

            
	
              2.09.

            	
              Payments
      Generally.

            	
              39

            
	
              2.10.

            	
              Sharing
      of Payments.

            	
              41

            
	
              2.11.

            	
              Evidence
      of Debt.

            	
              41

            
	
              2.12.

            	
              Joint
      and Several Liability of the Borrowers.

            	
              42

            
	
              2.13.

            	
              Appointment
      of Parent as Legal Representative for Credit Parties.

            	
              46

            
	
              2.14.

            	
              Establishment
      of Impounds.

            	
              46

            
	
              2.15.

            	
              Defaulting
      Lenders.

            	
              48

            
	 	 	 
	
              ARTICLE
      III

            	
              TAXES,
      YIELD PROTECTION AND ILLEGALITY

            	
              49

            
	
              3.01.

            	
              Taxes.

            	
              49

            
	
              3.02.

            	
              Illegality.

            	
              50

            
	
              3.03.

            	
              Inability
      to Determine Rates.

            	
              51

            
	
              3.04.

            	
              Increased
      Cost and Reduced Return; Capital Adequacy; Reserves.

            	
              51

            
	
              3.05.

            	
              Funding
      Losses.

            	
              52

            
	
              3.06.

            	
              Matters
      Applicable to all Requests for Compensation.

            	
              52

            
	
              3.07.

            	
              Survival.

            	
              53

            
	 	 	 
	
              ARTICLE
      IV

            	
              CONDITIONS
      PRECEDENT TO ADVANCES

            	
              53

            
	
              4.01.

            	
              Conditions
      to Initial Advance.

            	
              53

            
	
              4.02.

            	
              Conditions
      to Advances.

            	
              57

            
	 	 	 
	
              ARTICLE
      V

            	
              REPRESENTATIONS
      AND WARRANTIES

            	
              57

            
	
              5.01.

            	
              Financial
      Statements; No Material Adverse Effect; No Internal Control
      Event.

            	
              57

            
	
              5.02.

            	
              Corporate
      Existence and Power.

            	
              58

            
	
              5.03.

            	
              Corporate
      and Governmental Authorization; No Contravention.

            	
              58

            


       

      
        
          
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              5.04.

            	
              Binding
      Effect.

            	
              58

            
	
              5.05.

            	
              Litigation.

            	
              59

            
	
              5.06.

            	
              Compliance
      with ERISA.

            	
              59

            
	
              5.07.

            	
              Environmental
      Matters.

            	
              60

            
	
              5.08.

            	
              Margin
      Regulations; Investment Company Act.

            	
              60

            
	
              5.09.

            	
              Compliance
      with Laws.

            	
              61

            
	
              5.10.

            	
              Ownership
      of Property; Liens.

            	
              61

            
	
              5.11.

            	
              Corporate
      Structure; Capital Stock, Etc.

            	
              61

            
	
              5.12.

            	
              Real
      Property Assets; Leases.

            	
              62

            
	
              5.13.

            	
              Material
      Contracts; Additional Contractual Obligations.

            	
              63

            
	
              5.14.

            	
              Investments.

            	
              63

            
	
              5.15.

            	
              Solvency.

            	
              63

            
	
              5.16.

            	
              Taxes.

            	
              63

            
	
              5.17.

            	
              Reserved.

            	
              64

            
	
              5.18.

            	
              Insurance.

            	
              64

            
	
              5.19.

            	
              Healthcare;
      Facility Representations and Warranties.

            	
              64

            
	
              5.20.

            	
              Disclosure.

            	
              65

            
	
              5.21.

            	
              Collateral
      Documents.

            	
              65

            
	 	 	 
	
              ARTICLE
      VI

            	
              AFFIRMATIVE
      COVENANTS

            	
              66

            
	
              6.01.

            	
              Financial
      Statements.

            	
              66

            
	
              6.02.

            	
              Certificates;
      Other Information.

            	
              67

            
	
              6.03.

            	
              Preservation
      of Existence and Franchises.

            	
              69

            
	
              6.04.

            	
              Books
      and Records.

            	
              69

            
	
              6.05.

            	
              Compliance
      with Law.

            	
              69

            
	
              6.06.

            	
              Payment
      of Taxes and Other Indebtedness.

            	
              69

            
	
              6.07.

            	
              Insurance.

            	
              70

            
	
              6.08.

            	
              Maintenance
      of Property.

            	
              70

            
	
              6.09.

            	
              Performance
      of Obligations.

            	
              70

            
	
              6.10.

            	
              Visits
      and Inspections.

            	
              70

            
	
              6.11.

            	
              Use
      of Proceeds/Purpose of Loan.

            	
              71

            
	
              6.12.

            	
              Financial
      Covenants.

            	
              71

            
	
              6.13.

            	
              Environmental
      Matters.

            	
              71

            
	
              6.14.

            	
              Single
      Purpose Entity/Separateness.

            	
              72

            
	
              6.15.

            	
              New
      Borrowers.

            	
              74

            
	
              6.16.

            	
              Pledged
      Assets.

            	
              75

            
	
              6.17.

            	
              Appraisals.

            	
              75

            
	
              6.18.

            	
              Anti-Terrorism
      Laws.

            	
              75

            
	
              6.19.

            	
              Compliance
      With Material Contracts.

            	
              76

            
	
              6.20.

            	
              Health
      Care Covenants.

            	
              76

            
	
              6.21.

            	
              Public
      Company Status.

            	
              77

            
	
              6.22.

            	
              Use
      and Application of Insurance Proceeds.

            	
              77

            
	
              6.23.

            	
              Condemnation
      Awards.

            	
              78

            
	
              6.24.

            	
              Cash
      Management System.

            	
              79

            
	 	 	 
	
              ARTICLE
      VII

            	
              NEGATIVE
      COVENANTS

            	
              79

            
	
              7.01.

            	
              Liens.

            	
              79

            


       

      
        
          
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              7.02.

            	
              Indebtedness.

            	
              79

            
	
              7.03.

            	
              Fundamental
      Changes.

            	
              80

            
	
              7.04.

            	
              Dispositions;
      Acquisitions.

            	
              80

            
	
              7.05.

            	
              Business
      Activities.

            	
              81

            
	
              7.06.

            	
              Transactions
      with Affiliates and Insiders.

            	
              81

            
	
              7.07.

            	
              Organization
      Documents; Fiscal Year.

            	
              81

            
	
              7.08.

            	
              Modifications
      to Other Documents.

            	
              81

            
	
              7.09.

            	
              Ownership
      of Subsidiaries.

            	
              82

            
	
              7.10.

            	
              No
      Further Negative Pledges.

            	
              82

            
	
              7.11.

            	
              Limitation
      on Restricted Actions.

            	
              82

            
	
              7.12.

            	
              Addition/Replacement
      of Borrowing Base Assets.

            	
              83

            
	 	 	 
	
              ARTICLE
      VIII

            	
              EVENTS
      OF DEFAULT AND REMEDIES

            	
              84

            
	
              8.01.

            	
              Events
      of Default.

            	
              84

            
	
              8.02.

            	
              Remedies
      Upon Event of Default.

            	
              86

            
	
              8.03.

            	
              Application
      of Funds.

            	
              87

            
	
              8.04.

            	
              Administrative
      Agent’s Right to Perform the Obligations.

            	
              87

            
	
              8.05.

            	
              Special
      Cure Right.

            	
              88

            
	 	 	 
	
              ARTICLE
      IX

            	
              ADMINISTRATIVE
      AGENT

            	
              88

            
	
              9.01.

            	
              Appointment
      and Authorization of Administrative Agent.

            	
              88

            
	
              9.02.

            	
              Delegation
      of Duties.

            	
              89

            
	
              9.03.

            	
              Liability
      of Administrative Agent.

            	
              89

            
	
              9.04.

            	
              Reliance
      by Administrative Agent.

            	
              89

            
	
              9.05.

            	
              Notice
      of Default.

            	
              90

            
	
              9.06.

            	
              Credit
      Decision; Disclosure of Confidential Information by Administrative
      Agent.

            	
              90

            
	
              9.07.

            	
              Indemnification
      of Administrative Agent.

            	
              91

            
	
              9.08.

            	
              Administrative
      Agent in its Individual Capacity.

            	
              91

            
	
              9.09.

            	
              Successor
      Administrative Agent.

            	
              92

            
	
              9.10.

            	
              Administrative
      Agent May File Proofs of Claim.

            	
              92

            
	 	 	 
	
              ARTICLE
      X

            	
              MISCELLANEOUS

            	
              93

            
	
              10.01.

            	
              Amendments,
      Etc.

            	
              93

            
	
              10.02.

            	
              Notices
      and Other Communications; Facsimile Copies.

            	
              94

            
	
              10.03.

            	
              No
      Waiver; Cumulative Remedies.

            	
              96

            
	
              10.04.

            	
              Attorney
      Costs, Expenses and Taxes.

            	
              96

            
	
              10.05.

            	
              Indemnification
      by the Borrowers.

            	
              97

            
	
              10.06.

            	
              Payments
      Set Aside.

            	
              98

            
	
              10.07.

            	
              Successors
      and Assigns.

            	
              98

            
	
              10.08.

            	
              Confidentiality.

            	
              101

            
	
              10.09.

            	
              Set-off.

            	
              102

            
	
              10.10.

            	
              Interest
      Rate Limitation.

            	
              103

            
	
              10.11.

            	
              Counterparts.

            	
              103

            
	
              10.12.

            	
              Integration.

            	
              103

            
	
              10.13.

            	
              Survival
      of Representations and Warranties.

            	
              103

            
	
              10.14.

            	
              Severability.

            	
              104

            


       

      
        
          
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              10.15.

            	
              Tax
      Forms.

            	
              104

            
	
              10.16.

            	
              Replacement
      of Lenders.

            	
              106

            
	
              10.17.

            	
              No
      Advisory or Fiduciary Responsibility.

            	
              106

            
	
              10.18.

            	
              Source
      of Funds.

            	
              107

            
	
              10.19.

            	
              GOVERNING
      LAW.

            	
              107

            
	
              10.20.

            	
              WAIVER
      OF RIGHT TO TRIAL BY JURY.

            	
              108

            
	
              10.21.

            	
              No
      Conflict.

            	
              108

            
	
              10.22.

            	
              USA
      Patriot Act Notice.

            	
               

            	 
      	108
	
              10.23.

            	
              Entire
      Agreement.

            	
               

            	 
      	108 
      
	
              10.24.

            	
              California
      Real Property Assets.

            	
               

            	 
      	109


    

    


     

    SCHEDULES

     

    1.01           List
of Borrowers

    2.01           Lenders
and Commitments

    2.12           Allocable
Amounts of Loan

    5.11           Corporate
Structure; Capital Stock

    5.12           Real
Property Asset Matters

    Part I           Borrowing
Base Assets

    Part II          Management
Agreements and Property Managers

    Part
III         Defaulting
Tenants

    Part
IV         Facility Operating
Leases and Operating Tenants

    Part
V           Material
Subleases

    5.13           Material
Contracts; Contracts Subject to Assignment of Claims Act

    5.18           Insurance
Certificates

    5.19           Covered
Entities Under HIPAA

    7.01           Liens

    7.02           Borrower’s
Indebtedness

    10.02         Notice
Addresses

     

    EXHIBITS

     

    A     
    Form of Loan Borrowing Notice

    B          Form
of Revolving Note

    C-1       Form
of Compliance Certificate

    C-2       Borrowing
Base Certificate

    D          Form
of Assignment and Assumption

    E           Form
of Borrower Joinder Agreement

    F           Form
of Lender Joinder Agreement

    G           Form
of Guaranty

    H           Form
of Security Agreement

     

    I         
   Form of Partial Release Letter

     

    


     

    


    
      
        
          
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    CREDIT
AGREEMENT

     

    This
CREDIT AGREEMENT (as
amended, modified, restated or supplemented from time to time, this “Credit
Agreement” or this “Agreement”)
is entered into as of February ___, 2010 by and among GENERAL ELECTRIC CAPITAL
CORPORATION, a Delaware corporation (in its individual capacity, “GECC” and in its capacity as agent
for the Lenders, together with its successors, “Administrative
Agent”), the
financial institutions other than GECC who are or hereafter become parties to
this Agreement (together with GECC, individually, a “Lender”, and collectively, the
“Lenders”,
as the context may require), and THE PARTIES LISTED ON SCHEDULE 1.01 ATTACHED
HERETO (each of the foregoing entities and each of the entities from time to
time executing a Joinder Agreement pursuant to Section 6.15 hereof
shall be hereinafter referred to individually as “Borrower”
and collectively as the “Borrowers”).

     

    WHEREAS, the Borrowers have
requested the Lenders to provide a revolving credit facility to Borrowers in an
amount of $100,000,000.00 (the “Credit
Facility”) for
the purposes of refinancing certain existing debt and for the purposes
hereinafter set forth; and

     

    WHEREAS, the Lenders have
agreed to provide the Credit Facility to the Borrowers, subject to the terms and
conditions set forth herein.

     

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

     

    ARTICLE
I

    DEFINITIONS AND ACCOUNTING
TERMS

     

    1.01.           Defined
Terms.

     

    As used
in this Credit Agreement, the following terms have the meanings set forth
below:

     

    “Administrative Agent”
means General Electric Capital Corporation in its capacity as administrative
agent for the Lenders under any of the Credit Documents, or any successor
administrative agent.

     

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

     

    “Adjusted Expenses”
means actual operating expenses related to the Borrowing Base Assets, excluding
any rent and interest paid by Operating Tenants and depreciation recorded by the
Operating Tenants or Borrowers on a stabilized accrual basis for the previous
twelve (12) month period (as reasonably adjusted by Administrative Agent),
including: (i) recurring expenses (e.g., tenant improvements, leasing
commissions, carpeting replacement, appliance and drapery replacement and such
others as determined by Administrative Agent), (ii) real estate taxes, (iii)
management fees (whether paid or not) in an amount not less than five percent
(5%) of effective gross income (or the actual management fee paid, if higher),
(iv) a replacement reserve (whether reserved or not) of not less than Three
Hundred Fifty and No/100 Dollars ($350.00) per Senior

     

    


    
      
        
          
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    Housing
Unit and (v) definitive changes (federal or state) in the Medicare and/or
Medicaid reimbursement rates.

     

    “Adjusted Net Operating
Income” or “ANOI” means
annualized Adjusted Revenue less Adjusted
Expenses, based upon the financial reports provided by Borrowers under Section 6.01 and
approved by Administrative Agent in its reasonable discretion.

     

    “Adjusted Revenue”
means revenues from the Borrowing Base Assets for the period in question (and if
none specified, then for the most current twelve (12) months), as determined
under GAAP, but excluding (a)
nonrecurring income and non-property related income (as determined by
Administrative Agent in its sole discretion) and income from tenants and/or
residents that is classified as “bad debt” under generally accepted accounting
principles, and (b) other revenue for such period not to exceed ten percent
(10%) of the amounts included in clause (a) above for laundry, vending, parking
and other occupancy payments (but excluding late fees and interest income) based
upon collections for such period.

     

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

     

    “Advance” or “Advances” have the
meanings provided in Section
2.01(a).

     

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

     

    “Agent-Related
Persons” means the Administrative Agent, together with its Affiliates,
and the officers, directors, employees, agents and attorneys-in-fact of such
Persons and Affiliates.

     

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

     

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

     

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

     

    “Allocable Amount” has
the meaning provided in Section
2.12(i).

     

    “Applicable
Percentage” means each of the following percentages per annum, as
applicable, based upon the Outstanding Amount Percentage:

     

    
      	
              Outstanding
      Amount

              Percentage

            	
               

              Applicable
      Percentage

            
	
              <35%

            	
              4.50%

            
	
              >35%,
      but <50%

            	
              5.00%

            
	
              >50,
      but <100%

            	
              5.50%

            


    

     

    
 

    
      
        
          
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    Any
increase or decrease in the Applicable Percentage resulting from a change in the
Outstanding Amount Percentage shall become effective as of the first Business
Day immediately following the change in the Outstanding Amount
Percentage.

     

    “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.

     

    “Arizona Facility” has
the meaning provided in Section
5.13(b).

     

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

     

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

     

    “Assignment of Leases”
means an assignment of leases, rents and profits to the Administrative Agent
with respect to the applicable Borrower’s interests in a Borrowing Base Asset
(which assignment may be contained within the related Mortgage Instrument);
provided that each such Assignment of Leases shall, subject to the terms and
conditions of the applicable underlying lease, directly assign to the
Administrative Agent the following: (a) all existing and future leases,
subleases, tenancies, licenses, occupancy agreements or agreements to lease all
or any portion of such Borrowing Base Asset (including, without limitation, any
applicable Facility Operating Lease), whether written or oral or for a definite
period or month-to-month, together with any extensions, renewals, amendments,
modifications or replacements thereof, and any options, rights of first refusal,
pledges, security agreements and guarantees of any tenant’s obligations under
any lease or sublease now or hereafter in effect with respect to the Borrowing
Base Asset (individually, for the purposes of this definition, a “Lease” and collectively, the “Leases”); and (b) all rents
(including, without limitation, base rents, minimum rents, additional rents,
percentage rents, parking, maintenance and deficiency rents and payments which
are characterized under the terms of the applicable Lease as payments of
interest and/or principal with respect to the applicable Borrowing Base Asset),
security deposits (in whatever form, including cash and letters of credit),
tenant escrows, income, receipts, revenues, reserves, issues and profits of the
Borrowing Base Asset from time to time accruing, including, without limitation,
(i) all rights to receive payments arising under, derived from or relating to
any Lease, (ii) all lump sum payments for the cancellation or termination of any
Lease, the waiver of any term thereof, or the exercise of any right of first
refusal, call option, put option or option to purchase, and (iii) the return of
any insurance premiums or ad valorem tax payments made in advance and
subsequently refunded.  In furtherance (and not limitation) of the
foregoing, each Assignment of Leases shall assign to the Administrative Agent
any and all of the applicable Borrower’s rights to collect or receive any
payments with respect to the applicable Borrowing Base
Asset.  Finally, each Assignment of Leases shall, in any case, be in
form and substance satisfactory to the Administrative Agent in its discretion
and suitable for recording in the applicable jurisdiction; and “Assignments of
Leases” means a collective reference to each such Assignment of
Leases.

     

    


    
      
        
          
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    “Attorney Costs” means
and includes all reasonable and documented fees, expenses and disbursements of
any law firm or other external counsel and, without duplication, the allocated
reasonable and documented cost of internal legal services and all expenses and
disbursements of internal counsel.

     

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

     

    “Audited Financial
Statements” means the audited consolidated balance sheet of the Parent
and its consolidated Subsidiaries for the fiscal year ended December 31,
2009, and the related consolidated statements of earnings, shareholders’ equity
and cash flows for such fiscal year of the Parent and its consolidated
Subsidiaries, including the notes thereto.

     

    “Availability Amount”
means, as of any date of determination, the sum of the following
amounts:  (a) the annualized ANOI (based on the trailing six (6) month
period prior to the date of determination) for the Borrowing Base Assets that
are not skilled nursing facilities, divided by 12.5% and (b) the annualized ANOI
(based on the trailing six (6) month period prior to the date of determination)
for the Borrowing Base Assets that are skilled nursing facilities, divided by
13.5%.

     

    “Award” has the
meaning provided in Section
6.23.

     

    “Bankruptcy Event”
means, with respect to any Person, the occurrence of any of the following: (a)
the entry of a decree or order for relief by a court or governmental agency in
an involuntary case under any applicable Debtor Relief Law or any other
bankruptcy, insolvency or other similar law now or hereafter in effect, or the
appointment by a court or governmental agency of a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar official) of such Person
or for any substantial part of its Property or the ordering of the winding up or
liquidation of its affairs by a court or governmental agency and such decree,
order or appointment is not vacated or discharged within ninety (90) days of its
filing; or (b) the commencement against such Person of an involuntary case
under any applicable Debtor Relief Law or any other bankruptcy, insolvency or
other similar law now or hereafter in effect, or of any case, proceeding or
other action for the appointment of a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of such Person or for any
substantial part of its Property or for the winding up or liquidation of its
affairs, and such involuntary case or other case, proceeding or other action
shall remain undismissed for a period of ninety (90) consecutive days, or
the repossession or seizure by a creditor of such Person of a substantial part
of its Property; or (c) such Person shall commence a voluntary case under any
applicable Debtor Relief Law or any other bankruptcy, insolvency or other
similar law now or hereafter in effect, or consent to the entry of an order for
relief in an involuntary case under any such law, or consent to

     

    


    
      
        
          
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    the
appointment of or the taking possession by a receiver, liquidator, assignee,
creditor in possession, custodian, trustee, sequestrator (or similar official)
of such Person or for any substantial part of its Property or make any general
assignment for the benefit of creditors; or (d) the filing of a petition by such
Person seeking to take advantage of any Debtor Relief Law or any other
applicable Law, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of debts, or (e) such
Person shall fail to contest in a timely and appropriate manner (and if not
dismissed within ninety (90) days or shall consent to any petition filed against
it in an involuntary case under such bankruptcy laws or other applicable Law or
consent to any proceeding or action relating to any bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of debts with respect
to its assets or existence, or (f) such Person shall admit in writing, or such
Person’s financial statements shall reflect, an inability to pay its debts
generally as they become due.

     

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

     

    “Base Rate Bank” means
Bank of America, N.A.

     

    “Bath Asset” has the
meaning provided in Section
2.03.

     

    “Blocked Account
Agreements” means the Blocked Account Agreements (With Activation) dated
of even date herewith, executed by (a) with respect to the Portfolio General
Receivables Account, Borrower Representative, as agent for Borrowers,
Administrative Agent and the bank named therein (the “Blocked Account
Bank”) and (b) with respect to the Third Party Payor Receivables Account,
each of the Borrowers who own a Borrowing Base Asset that is a skilled nursing
facility, Administrative Agent and Blocked Account Bank.

     

    “Borrower” and “Borrowers” shall have
the meanings given to such terms in the introductory paragraph
hereof.

     

    “Borrower Joinder
Agreement” means a joinder agreement in the form of Exhibit E
hereto, to be executed by each new Person who becomes a Borrower in accordance
with Section 6.15
hereof.

     

    “Borrower
Representative” has the meaning provided in Section 2.13
hereof.

     

    “Borrowing” means a
borrowing of an Advance under the Loan by Borrowers pursuant to this
Agreement.

     

    “Borrowing Base
Amount” means an amount equal to the lesser of: (a) the Availability
Amount as of such date and (b) the aggregate Collateral Value Amount as of such
date for the Borrowing Base Assets.

     

    


    
      
        
          
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    “Borrowing Base Asset”
means a Real Property Asset which, as of any date of determination, satisfies
all of the following requirements:  (a) such Real Property Asset is
100% owned by a Borrower in fee simple or pursuant to the terms of an Eligible
Ground Lease; (b) the Administrative Agent, on behalf of the Lenders, shall have
received each of the Borrowing Base Asset Deliverables with respect to such Real
Property Asset, in each case in form and substance acceptable to the
Administrative Agent in its discretion; (c) such Real Property Asset is not
subject to any Lien (other than a Permitted Lien) or any Negative Pledge; (d)
such Real Property Asset is free of all material mechanical and structural
defects, environmental conditions (as evidenced by environmental reports
acceptable to Administrative Agent) or other adverse matters except for defects,
conditions or matters individually or collectively which are not material to the
profitable operation of such Real Property Asset and the most recently-delivered
FIRREA-compliant MAI appraisal with respect to such Real Property Asset is
acceptable to the Administrative Agent in its discretion; (e) such Real Property
Asset has been fully developed for use as a skilled nursing facility, domestic
assisted living facility, independent living facility, rehabilitation hospital
or other healthcare facility acceptable to the Administrative Agent and Required
Lenders; (f) such Real Property Asset is leased to and operated by an Eligible
Tenant pursuant to a Facility Operating Lease reasonably acceptable to the
Administrative Agent; (g) no required rental payment, principal or interest
payment, payments of real property taxes or payments of premiums on insurance
policies payable to the applicable Borrower-owner with respect to such Real
Property Asset is past due beyond the earlier of the applicable grace period
with respect thereto, if any, and sixty (60) days; (h) no event of default has
occurred and is then continuing under any Material Contract applicable to such
Borrowing Base Asset; (i) no Material Contract applicable to such Borrowing Base
Asset shall have been terminated without the prior written consent of the
Required Lenders; (j) no condemnation or condemnation proceeding shall have been
instituted (and remain undismissed for a period of ninety (90) consecutive
days), in each case, with respect to a material portion of the Real Property
Asset; (k) no material casualty event shall have occurred with respect to the
improvements located on such Real Property Asset which is not able to be fully
remediated with available insurance proceeds; and (l) no Hazardous Substances
are located on or under such Real Property Asset and no other environmental
conditions exist in connection with such Real Property Asset which constitute a
violation of any Environmental Law.  “Borrowing Base
Assets” means a collective reference to all Borrowing Base Assets in
existence at any given time.

     

    “Borrowing Base Asset
Deliverables” means, with respect to any Real Property Asset which is
proposed for qualification as a “Borrowing Base Asset” hereunder, a collective
reference to each of the following (with each such item to be in form and
substance acceptable to the Administrative Agent):

     

    (a)           a
fully executed and notarized Mortgage Instrument and Assignments of Leases with
respect to such Real Property Asset and a related legal opinion from special
local counsel to the Borrowers opining as to the propriety of the form of such
documents for recording in the applicable jurisdiction and such other matters as
may be required by the Administrative Agent;

     

    (b)           a
fully executed copy of any Facility Operating Lease applicable to such Real
Property Asset, together with an estoppel certificate from the applicable
Eligible Tenant and a subordination, non-disturbance and attornment agreement
with respect to such Facility Operating Lease (the “Facility
Operating Lease SNDA”);

     

    


    
      
        
          
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    (c)           in
the case of a Real Property Asset which constitutes a leasehold interest,
evidence that the applicable lease, a memorandum of lease with respect thereto,
or other evidence of such lease in form and substance reasonably satisfactory to
the Administrative Agent, has been properly recorded in all places to the extent
necessary or desirable, in the reasonable judgment of the Administrative Agent,
so as to enable the Mortgage Instrument encumbering such leasehold interest to
effectively create a valid and enforceable first priority lien (subject to
Permitted Liens and required landlord consents) on such leasehold interest in
favor of the Administrative Agent (or such other Person as may be required or
desired under local law) for the benefit of Lenders and that such lease
qualifies as an Eligible Ground Lease hereunder, together with such estoppels,
waivers and/or consents from the lessor under such Eligible Ground Lease as are
required by the terms thereof or otherwise reasonably requested by the
Administrative Agent;

     

    (d)           maps
or plats of an as-built survey of the site constituting the Real Property Asset
sufficient in all cases to delete the standard survey exception from the
applicable Mortgage Policy;

     

    (e)           a
FIRREA-compliant MAI appraisal, commissioned, reviewed and approved by the
Administrative Agent (or otherwise acceptable to the Administrative Agent, in
its discretion) with respect to such Real Property Asset;

     

    (f)           evidence
as to the compliance of such Real Property Asset and the improvements related
thereto with applicable zoning and use requirements;

     

    (g)           an
ALTA mortgagee title insurance policy (or its equivalent in non-ALTA
jurisdictions) with respect to the applicable Real Property Asset (each, a
“Mortgage
Policy” and collectively, the “Mortgage
Policies”), assuring the Lender that the Mortgage Instrument creates a
valid and enforceable first priority mortgage lien on the applicable Real
Property Asset, free and clear of all defects and encumbrances except Permitted
Liens, which Mortgage Policy shall (i) be in an amount acceptable to the
Administrative Agent, (ii) be from an insurance company reasonably acceptable to
the Administrative Agent, (iii) include such available endorsements and
reinsurance as the Administrative Agent may reasonably require and (iv)
otherwise satisfy the reasonable title insurance requirements of the
Administrative Agent;

     

    (h)           evidence
as to whether the applicable Real Property Asset is in an area designated by the
Federal Emergency Management Agency as having special flood or mud slide hazards
(a “Flood Hazard
Property”) and if such Real Property Asset is a Flood Hazard Property,
(i) the applicable Borrower’s written acknowledgment of receipt of written
notification from the Administrative Agent (A) as to the fact that such Real
Property Asset is a Flood Hazard Property and (B) as to whether the community in
which each such Flood Hazard Property is located is participating in the
National Flood Insurance Program and (ii) copies of insurance policies or
certificates of insurance evidencing flood insurance satisfactory to the
Administrative Agent and naming the Administrative Agent as sole loss payee on
behalf of the Lenders under a standard mortgagee endorsement;

     

    


    
      
        
          
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    (i)           copies
of any material subleases which would be required to be disclosed on Part V
of Schedule
5.12 hereof with respect to such Real Property Asset if approved as a
Borrowing Base Asset;

     

    (j)           evidence
that the Operating Tenant under the applicable Facility Operating Lease is an
Eligible Tenant;

     

    (k)           a
Phase I environmental assessment from an environmental consultant acceptable to
the Administrative Agent, dated as of a date acceptable to the Administrative
Agent and indicating that, as of such date, no Hazardous Substances or other
conditions on, under or with respect to the applicable Real Property Asset
constitute a violation of any Environmental Laws and that, in any case, no
commercially unreasonable amount of any Hazardous Substances are located on or
under such Real Property Asset; and

     

    (l)           evidence
of insurance coverage with respect to such Real Property Asset meeting the
requirements set forth herein and establishing the Administrative Agent as loss
payee, as required pursuant to the terms hereof.

     

    “Borrowing Base
Certificate” means a certificate substantially in the form of Exhibit C-2
hereto delivered to the Administrative Agent pursuant to Section 6.02(b)
or more frequently at the option of the Borrower Representative and (a) setting
forth each Real Property Asset of the Borrowers, identifying which such Real
Property Assets are Borrowing Base Assets, and certifying the Collateral Value
Amount with respect to each such Borrowing Base Asset, (b) certifying
(based upon its own information and the information made available to the Parent
by the applicable Operating Tenants, which information the Parent believes in
good faith to be true and correct in all material respects) (i) as to the
calculation of the Borrowing Base Amount as of the date of such certificate and
(ii) that each Real Property Asset used in the calculation of the Borrowing Base
Amount meets each of the criteria for qualification as a Borrowing Base Asset
and (c) providing such other information with respect to the Real Property
Assets and/or Borrowing Base Assets as the Administrative Agent may reasonably
require.

     

    “Business” or “Businesses” means, at
any time, a collective reference to the businesses operated by the respective
Borrowers or Parent, as applicable, at such time.

     

    “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 of
Illinois or the state where the Administrative Agent’s Office is located and, if
such day relates to determining the Eurodollar Rate hereunder, means any such
day on which dealings in Dollar deposits are conducted by and between banks in
the London interbank eurodollar market.

     

    “Capitalized Loan
Fees” means, with respect to the Parent and its Subsidiaries, and with
respect to any period, (a) any up-front, closing or similar fees paid by such
Person in connection with the incurrence or refinancing of Indebtedness during
such period and (b) all other costs incurred in connection with the incurrence
or refinancing of Indebtedness during such period, including, without
limitation, appraisal fees paid to lenders, costs and expenses incurred in
connection with Swap Contracts, engineering reports, phase I environmental
report and other report review fees paid to lenders and legal fees, in each of
the foregoing cases, that are

     

    


    
      
        
          
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    capitalized
on the balance sheet of such Person in accordance with GAAP and amortized over
the term of such Indebtedness.

     

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

     

    “Capital Lease
Obligation” means, with respect to a Capital Lease, the amount of rental
and other obligations of the lessee thereunder which would, in accordance with
GAAP, appear on a balance sheet of such lessee in respect of such Capital
Lease.

     

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

     

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

     

    “Cash Lease Expense”
means for any period, the aggregate amount of fixed and contingent rentals
payable (on a cash basis) by the Parent and its Subsidiaries for such period
with respect to leases of real and personal property, determined on a
consolidated basis, provided that
payments in respect of Capital Lease Obligations shall not constitute Cash Lease
Expense.

     

    “Cash Management
Agreement” means any agreement existing as of the date hereof, including
the Blocked Account Agreement, or from time to time during the term of the
Loan

     

    


    
      
        
          
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    among
Administrative Agent, Borrowers, Borrower Representative on behalf of the
Borrowers and/or Operators and a bank approved by Administrative Agent regarding
the establishment and operation of a lockbox account, blocked account or similar
account into which rents and other revenue are to be deposited.

     

    “Casualty” has the
meaning specified in Section
6.22.

     

    “Change of Control”
means the occurrence of any of the following events:  (a) any Person
or two or more Persons acting in concert, other than the Permitted Investors,
shall have acquired beneficial ownership, directly or indirectly, of, or shall
have acquired by contract or otherwise, control over, voting stock of the Parent
(or other securities convertible into such voting stock) representing forty-nine
percent (49%) or more of the combined voting power of all voting stock of the
Parent, (b) during any period of up to twenty-four (24) consecutive months,
commencing after the Closing Date, individuals who at the beginning of such
twenty-four (24) month period were directors of the Parent (together with any
new director whose election by the Parent’s Board of Directors or whose
nomination for election by the Parent’s shareholders was approved by a vote of
at least fifty percent (50%) of the directors then still in office who either
were directors at the beginning of such period or whose election or nomination
for election was previously so approved) cease for any reason to constitute a
majority of the directors of the Parent then in office, or (c) the Parent shall
fail to own (directly or indirectly) 100% of the Capital Stock of the
Borrowers.  As used herein, “beneficial ownership” shall have the
meaning provided in Rule 13d-3 of the Securities and Exchange Commission
under the Securities Exchange Act of 1934.

     

    “Closing Date” means
the date hereof.

     

    “CMS” means the
Centers for Medicare & Medicaid Services, the federal agency responsible for
administering the Medicare, Medicaid, SCHIP (State Children’s Health Insurance),
HIPAA, CLIA (Clinical Laboratory Improvement Amendments), and any other federal
health-related programs affecting the operation of the Borrowing Base
Assets.

     

    “Collateral” means a collective
reference to all real and personal Property (including without limitation, the
Borrowing Base Assets) with respect to which Liens in favor of the
Administrative Agent are either executed, identified or purported to be granted
pursuant to and in accordance with the terms of the Collateral
Documents.

     

    “Collateral
Documents” means a collective
reference to the Mortgage Instruments, the Security Agreement, the Assignments
of Leases and any UCC financing statements securing payment hereunder, or any
other documents securing the Obligations under this Credit Agreement or any
other Credit Document.

     

    “Collateral Value”
means, with respect to any Borrowing Base Asset or Real Property Asset, an
amount equal to the “as-is” appraised value of such Real Property Asset (on an
individual, as opposed to portfolio values, basis), as determined by the most
recently delivered FIRREA-compliant MAI appraisals commissioned, reviewed and
approved by the Administrative Agent or otherwise acceptable to the
Administrative Agent in its discretion.

     

    


    
      
        
          
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    “Collateral Value
Amount” means an amount equal to (a) seventy percent (70%) multiplied by (b) the
Collateral Value as of such date for each Borrowing Base Asset.

     

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

     

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

     

    “Commitment Period”
means the period from and including the Closing Date to the earlier of (a) the
Maturity Date or (b) the date on which the Commitments shall have been
terminated as provided herein.

     

    “Committed Amount”
means, with respect to each Lender, the amount of such Lender’s
Commitment.  The initial Committed Amounts are set forth on
Schedule 2.01.

     

    “Compliance
Certificate” means a certificate substantially in the form of Exhibit C-1;
provided, that each such Compliance Certificate shall, in any case, include
(without limitation): (a) a Borrowing Base Certificate in the form of Exhibit C-2;
(b) an updated version of Schedules 5.11,
5.12, 5.13 and 5.18, along with a
summary of changes made to such schedules since the previous delivery thereof;
provided, further, that upon the delivery of such updated schedules, then Schedule 5.11,
Schedule 5.12,
Schedule 5.13
and Schedule 5.18
shall each be deemed to have been amended and restated to read in accordance
with the applicable updated schedule and the representations and warranties with
respect thereto shall apply to such amended and restated schedules and (c)
supporting documents and materials reasonably required by the Administrative
Agent for the evidencing of the calculations and certifications made in
connection therewith.

     

    “CON” has the meaning
provided in Section
6.20.

     

    “Condemnation” has the
meaning provided in Section
6.23.

     

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

     

    “Consolidated EBITDA”
means, for any period, for any Person, net income of such Person and its
Subsidiaries for such period plus, without
duplication and to the extent reflected as a charge in the statement of such
consolidated net income for such period, the sum of (a) income tax expense,
(b) interest expense of such Person and its Subsidiaries, amortization or
write-off of debt discount and debt issuance costs and commissions, discounts
and other fees and charges associated with Indebtedness whether paid, accrued or
capitalized and including, without limitation, the interest component of Capital
Lease Obligations, (c) depreciation and amortization expense, (d) net entrance
fees received, (e) non-cash compensation expense, (f) amortization of
intangibles (including, but not limited to, goodwill) and organization costs,
(g) 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

     

    


    
      
        
          
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    period,
losses on sales of assets outside of the ordinary course of business),
(h) such Person’s share of distributions from
Unconsolidated Joint Ventures and (i) any other non-cash charges (such as
loss on extinguishment on debt, equity in loss of unconsolidated ventures,
change in fair value of derivatives and amortization, straight line rent, etc.),
and minus, to
the extent included in the statement of such Consolidated Net Income for such
period, the sum of (a) 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), (b) any other non-cash
income and (c) any cash payments made during such period in respect of items
described in clause (e) 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, all as determined on a consolidated
basis.

     

    “Consolidated EBITDAR”
means for any period, Consolidated EBITDA of the Parent and its Subsidiaries for
such period plus Cash Lease
Expense of the Parent and its Subsidiaries for such period.

     

    “Consolidated Fixed Charge
Coverage Ratio” means for any period, the ratio of (a) Consolidated
EBITDAR of the Parent and its Subsidiaries for such period to (b) Consolidated
Fixes Charges for such period plus Cash Lease
Expense for such period provided:

     

    (i)           the
Consolidated EBITDA of any Person acquired by the Parent or its Subsidiaries
during the last quarter of such four quarter period shall be included on a pro forma basis
(assuming the consummation of such acquisition and the incurrence or assumption
of any Indebtedness in connection therewith occurred on the first day of such
quarter) determined on an annualized basis based on the most recent fiscal
quarter of such Person for which financial statements are available if the
consolidated balance sheet of such acquired Person and its consolidated
Subsidiaries as at the end of the period preceding the acquisition of such
Person and the related consolidated statements of income and stockholders’
equity and of cash flows for the period, in each case, to the extent available,
in respect of which Consolidated EBITDA is to be calculated (x) have been
previously provided to the Administrative Agent and the Lenders and (y) either
(1) have been reported on without a qualification arising out of the scope of
the audit by independent certified public accountants of nationally recognized
standing or (2) have been found reasonably acceptable by the Administrative
Agent;

     

    (ii)           the
Consolidated EBITDA of any Person acquired during the first, second or third
quarters of such four quarter period shall be deemed to be equal to Consolidated
EBITDA of such Person for the number of fiscal quarters elapsed since the date
of acquisition (after giving effect to any pro forma adjustment
made pursuant to clause (i) above) multiplied by 4, 2 and 4/3,
respectively; and

     

    (iii)           the
Consolidated EBITDA of any Person Disposed of by the Parent or its Subsidiaries
during such period shall be excluded for such four quarter period (assuming the
consummation of such Disposition and the repayment of any Indebtedness in
connection therewith occurred on the first day of such period).

     

    


    
      
        
          
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    “Consolidated Fixed
Charges” means for any period, the sum (without duplication) of (a)
Consolidated Interest Expense of the Parent and its Subsidiaries for such
period, (b) cash income taxes actually paid by the Parent or any of its
Subsidiaries on a consolidated basis during such period, (c) scheduled payments
made during such period on account of principal of Indebtedness of the Parent or
any of its Subsidiaries, (d) dividends accrued (whether or not declared or
payable) on the preferred stock of the Parent and its Subsidiaries during such
period, (e) the Parent’s and its Subsidiaries’ pro rata share of all expenses
and payments referred to in the preceding clauses (a) and (b) of any
unconsolidated Person in which they have an equity interest and (f) maintenance
capital expenditures in an amount equal to the product of (i) $575 per Senior
Living Unit per annum, and (ii) the number of Senior Living Units owned or
leased by the Parent and its Subsidiaries during such period measured at the end
of the most recent calendar quarter ending prior to such date of
determination.

     

    “Consolidated Interest
Expense” means with respect to any Person for any period, total cash
interest expense (including that attributable to Capital Lease Obligations) of
such Person and its Subsidiaries for such period with respect to all outstanding
Indebtedness of such Person and its Subsidiaries (including, without limitation,
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 (but only to the extent included in interest
expense in such Person’s financial statement and to the extent actually paid) in
respect of interest rates to the extent such net costs are allocable to such
period in accordance with GAAP).

     

    “Consolidated Net
Income” means, with respect to any Person for any period, the
consolidated net income (or loss) of such Person and its Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP; provided,
that in calculating Consolidated Net Income of the Parent and its Consolidated
Subsidiaries for any period, there shall be excluded (a) the income (or deficit)
of any Person accrued prior to the date it becomes a Subsidiary of the Parent or
is merged into or consolidated with the Parent or any of its Subsidiaries, (b)
the income (or deficit) of any Person (other than a Subsidiary of the Parent) in
which the Parent or any of its Subsidiaries has an ownership interest, except to
the extent that any such income is actually received by the Parent or such
Subsidiary in the form of dividends or similar distributions and (c) the
undistributed earnings of any Subsidiary of the Parent 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 Obligations (other
than under any Credit Document) or requirement of Law applicable to such
Subsidiary.

     

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

     

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

     

    “Consolidated Tangible Net
Worth” means (i) Stockholders’ Equity plus (ii) Minority
Interests plus
(iii) cumulative net additions of Depreciation and Amortization Expense deducted
in determining income for all fiscal quarters ending after the date of Parent’s
formation plus
(iv)

     

    


    
      
        
          
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    non-cash
deferred gains from sale-leaseback transactions and deferred entrance fee
revenue, minus
(v) Intangible Assets, in each case, for the most recent fiscal quarter ending
prior to such date for which financial statements are available.

     

    “Contract Rate” means
(a) the Eurodollar Rate plus the Applicable Percentage or (b) if the
provisions of Section 3.02 or
Section 3.03
apply and Borrowers elect to request Borrowings using the Base Rate, in which
event it shall mean the Base Rate plus the Applicable Percentage; provided that
in no event would use of the Base Rate plus Applicable Percentage increase or
decrease the Lender’s rate of return over what it would have received at the
Eurodollar Rate plus the Applicable Percentage.

     

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

     

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

     

    “Control Investment
Affiliates” means, as to any Person that (a) directly or indirectly, is
in control of, is controlled by, or is under common control with, such Person
and (b) is organized by such Person primarily for the purpose of making equity
or debt investments in one or more companies.  For purposes of this
definition, “control” of a Person means the power, directly or indirectly, to
direct or cause the direction of the management and policies of such Person,
whether by contract or otherwise.

     

    “COSO” means the
Committee of Sponsoring Organizations of the Treadway Commission.

     

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

     

    “Credit Documents”
means this Credit Agreement, the Collateral Documents, the Notes, the Guaranty,
the Proposal, the Lender Joinder Agreements, the Borrower Joinder Agreement, the
Borrowing Base Certificates, the Hazardous Materials Indemnity Agreement and the
Compliance Certificates.

     

    “Credit Party” means,
as of any date, the Borrowers or Guarantor; and “Credit Parties” means
a collective reference to each of them.

     

    “Daily Unused Fee”
means, for any day during the Commitment Period, an amount equal to (a) one
percent (1%) multiplied by (b) the
amount by which the Aggregate Commitments exceed the sum of the Outstanding
Amount of Obligations as of the beginning of such day.

     

    


    
      
        
          
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    “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.

     

    “Debt Yield” means the
ratio, expressed as a percentage, as of any date of determination, of (a)
annualized Adjusted Net Operating Income from the Borrowing Base Assets, as
determined by Administrative Agent for a particular period, to (b) the
outstanding principal balance of the Loan as of such date.

     

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

     

    “Default Rate” means
an interest rate equal to the Contract Rate plus five percent (5%) per
annum.

     

    “Defaulting Lender”
means any Lender that (a) has failed to fund any portion of the Advances
required to be funded by it hereunder within one Business Day of the date
required to be funded by it hereunder and has not cured such failure prior to
the date of determination, (b) has notified the Borrowers, the Administrative
Agent or any Lender that it does not intend to comply with its funding
obligations or has made a public statement to that effect with respect to its
funding obligations hereunder or under other agreements in which it commits to
extend credit, (c) has failed, within three Business Days after request by the
Administrative Agent, to confirm in a manner satisfactory to the Administrative
Agent that it will comply with its funding obligations, (d) has otherwise failed
to pay over to the Administrative Agent or any other Lender any other amount
required to be paid by it hereunder within one Business Day of the date when
due, unless the subject of a good faith dispute, and has not cured such failure
prior to the date of determination, or (e) has, or has a direct or indirect
parent company that has, (i) become the subject of a proceeding under any Debtor
Relief Law, (ii) had a receiver, conservator, trustee, administrator, assignee
for the benefit of creditors or similar Person charged with reorganization or
liquidation of its business or a custodian appointed for it, or (iii) taken any
action in furtherance of, or indicated its consent to, approval of or
acquiescence in any such proceeding or appointment; 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.

     

    “Depreciation and
Amortization Expense” means for any period, without duplication, the sum
for such period of (i) total depreciation and amortization expense, whether paid
or accrued, of the Parent and its Subsidiaries during such period, plus (ii) the
Parent’s and its Subsidiaries’ pro rata share of depreciation and amortization
expenses of Unconsolidated Joint Ventures for such period.  For
purposes of this definition, the Parent’s and its Subsidiaries’ pro rata share
of depreciation and amortization expense of any Unconsolidated Joint Venture
shall be deemed equal to the product of (i) the depreciation and amortization
expense of such Unconsolidated Joint Venture, multiplied by (ii) the percentage
of the total outstanding Equity Interests of such Unconsolidated Joint Venture
held by the Parent or such Subsidiary, expressed as a decimal.

     

    


    
      
        
          
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    “Determination Date”
has the meaning specified in Section
2.03.

     

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

     

    “Disqualified Stock”
means any capital stock, warrants, options or other rights to acquire capital
stock (but excluding any debt security which is convertible, or exchangeable,
for capital stock), which, by its terms (or by the terms of any security into
which it is convertible or for which it is exchangeable), or upon the happening
of any event, matures or is mandatorily redeemable prior to the Maturity Date,
pursuant to a sinking fund obligation or otherwise, or is or may be redeemable
at the option of the holder thereof, in whole or in part, prior to the Maturity
Date.

     

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

     

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

     

    “Eligible Ground
Lease” means, at any time, a ground lease (a) under which a Borrower is
the lessee or holds equivalent rights and is the fee owner of the improvements
located thereon, (b) that has a remaining term of not less than thirty (30)
years, (c) under which any required rental payment, principal or interest
payment or other payment due under such lease from such Borrower to the ground
lessor is not more than sixty (60) days past due and any required rental
payment, principal or interest payment or other payment due to such Borrower
under any sublease of the applicable real property lessor is not more than
sixty (60) days past due, (d) where no party to such lease is subject
to a then-continuing Bankruptcy Event, (e) such ground lease (or a related
document executed by the applicable ground lessor) contains customary provisions
protective of any lender to the lessee and (f) where the Borrower’s interest in
the underlying Real Property Asset or the lease is not subject to (i) any Lien
other than Permitted Liens and other encumbrances acceptable to the
Administrative Agent and the Required Lenders, in their discretion, or (ii) any
Negative Pledge.

     

    “Eligible Tenant”
means an Operating Tenant which (a) is not in arrears on any required rental
payment, principal or interest payment, payments of real property taxes or
payments of premiums on insurance policies with respect to its lease or sublease
beyond the later of (i) the applicable grace period with respect thereto, if
any, and (ii) forty five (45) days; (b) is not subject to a then-continuing
Bankruptcy Event; and (c) is reasonably acceptable in all material respects to
the Administrative Agent and the Required Lenders (it being understood that for
purposes of this clause (c), each Operating Tenant set forth on Schedule 5.12 hereto
on the Closing Date is deemed acceptable).

     

    


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

     

    “Equity 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.

     

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

     

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

     

    “Eurodollar Base Rate”
means:

     

    (a)           For
any Interest Period, the rate determined by the Administrative Agent to be the
offered rate for deposits of Dollars for the applicable Interest Period that
appears on Reuters Screen LIBOR01 Page as of 11:00 a.m. (London, England time)
on the second full Business Day next preceding the first day of each Interest
Period.  In the event that such rate does not appear on the Reuters Screen
LIBOR01 page at such time, the “Eurodollar Base
Rate” shall be determined by reference to such other comparable publicly
available service for displaying the

     

    


    
      
        
          
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    offered
rate for deposit in Dollars in the London interbank market as may be selected by
the Administrative Agent and, in the absence of availability, such other method
to determine such offered rate as may be selected by the Administrative Agent in
its sole discretion.

     

    (b)           Notwithstanding
the foregoing, for purposes of this Agreement, the Eurodollar Base Rate shall in
no event be less than 2.0% per annum at any time.

     

    “Eurodollar Rate”
means for any Interest Period, a rate per annum determined by the Administrative
Agent pursuant to the following formula:

     

    


    
      	
              Eurodollar
      Rate  =

            	
              Eurodollar Base Rate

              1.00
      - Eurodollar Reserve Percentage

            


    

    


    “Eurodollar Reserve
Percentage” means, for any day during any Interest Period, the reserve
percentage (expressed as a decimal, carried out to five decimal places) in
effect on such day, whether or not applicable to any Lender, under regulations
issued from time to time by the FRB for determining the maximum reserve
requirement (including any emergency, supplemental or other marginal reserve
requirement) with respect to Eurocurrency funding (currently referred to as
“Eurocurrency liabilities”).  The Eurodollar Rate shall be adjusted
automatically as of the effective date of any change in the Eurodollar Reserve
Percentage.

     

    “Event of
Acceleration” means any of the events or conditions set forth in Sections 8.01(f),
(g) or (j) with respect to
the Parent or any Borrower.

     

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

     

    “Extension of Credit”
means with respect to any Lender, collectively, all Advances made by such Lender
under the Loan.

     

    “Facility Operating Lease
SNDA” shall have the meaning provided in the definition of “Borrowing
Base Asset Deliverables” contained in this Section 1.01.

     

    “Facility Operating
Leases” means each lease or master lease with respect to any Borrowing
Base Asset from the applicable Borrower as lessor, to an Eligible Tenant, which,
in the reasonable judgment of the Administrative Agent, is a triple net lease
such that such Eligible Tenant is required to pay all taxes, utilities,
insurance, maintenance, casualty insurance payments and other expenses with
respect to the subject Borrowing Base Asset (whether in the form of
reimbursements or additional rent) in addition to the base rental payments
required thereunder such that net operating income for such Borrowing Base Asset
(before non-cash items) equals the base rent paid thereunder; provided, that
each such lease or master lease shall be in form and substance reasonably
satisfactory to the Administrative Agent; as the foregoing may be amended and
extended from time to time after the Closing Date in accordance with and subject
to the terms of this Agreement and the Facility Operating Lease SNDA applicable
thereto.

     

    “Federal Funds Rate”
means, for any day, the rate per annum equal to the weighted average of the
rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers on such day, as published by
the Federal Reserve Bank

     

    


    
      
        
          
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    of New
York on the Business Day immediately succeeding such day; provided that (a) if
such day is not a Business Day, the Federal Funds Rate for such day shall be
such rate on such transactions on the immediately preceding Business Day as so
published on the immediately succeeding Business Day, and (b) if no such rate is
so published on such immediately succeeding Business Day, the Federal Funds Rate
for such day shall be the average rate (rounded upward, if necessary, to the
next 1/100th of
1%) charged to Bank of America on such day on such transactions as determined by
the Administrative Agent.

     

    “FIG” means Fortess
Investment Group LLC.

     

    “Flood Hazard
Property” has the meaning provided in the definition of “Borrowing Base
Asset Deliverables” contained in this Section
1.01.

     

    “Foreign Lender” has
the meaning provided in Section
10.15(a)(i).

     

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

     

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

     

    “Funded Debt” means,
as to any Person (or consolidated group of Persons) 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 for borrowed money, whether current or long-term (including the
Obligations hereunder), and all obligations evidenced by bonds, debentures,
notes, loan agreements or other similar instruments;

     

    (b)           all
purchase money indebtedness (including indebtedness and obligations in respect
of conditional sales and title retention arrangements, except for customary
conditional sales and title retention arrangements with suppliers that are
entered into in the ordinary course of business) and all indebtedness and
obligations in respect of the deferred purchase price of property or services
(other than trade accounts payable incurred in the ordinary course of business
and payable on customary trade terms);

     

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

     

    (d)           the
Attributable Principal Amount of Capital Leases and Synthetic
Leases;

     

    (e)           the
Attributable Principal Amount of Securitization Transactions;

     

    (f)           all
preferred stock and comparable equity interests providing for mandatory
redemption, sinking fund or other like payments;

     

    


    
      
        
          
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    (g)           Support
Obligations in respect of Funded Debt of another Person (other than Persons in
such group, if applicable); and

     

    (h)           Funded
Debt of any partnership or joint venture or other similar entity in which such
Person is a general partner or joint venturer, and, as such, has personal
liability for such obligations, but only to the extent there is recourse to such
Person (or, if applicable, any Person in such consolidated group) for payment
thereof.

     

    For
purposes hereof, the amount of Funded Debt shall be determined based on (i) the
outstanding principal amount in the case of borrowed money indebtedness under
clause (a), (ii) the outstanding purchase money indebtedness and the
deferred purchase obligations under clause (b), (iii) the maximum
amount available to be drawn in the case of letter of credit obligations and the
other obligations under clause (c), and (iv) the amount of Funded Debt that
is the subject of the Support Obligations in the case of Support Obligations
under clause (g).  For purposes of clarification, “Funded Debt”
of Persons constituting a consolidated group shall not include inter-company
indebtedness of such Persons, general accounts payable of such Persons which
arise in the ordinary course of business, accrued expenses of such Persons
incurred in the ordinary course of business or minority interests in joint
ventures or limited partnerships (except to the extent set forth in
clause (h) above).

     

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

     

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

     

    “Guarantor” means the
Parent.

     

    “Guaranty” means the
guaranty in the form of Exhibit G
dated as of the date hereof executed by the Parent, as amended, supplemented or
otherwise modified from time to time.

     

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

     

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

     

    “Healthcare Laws” has
the meaning provided in Section
5.19(a).

     

    


    
      
        
          
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    “HIPAA” means the
Health Insurance Portability and Accountability Act of 1996 and the related
regulations set forth at 45 CFR Parts 160 and 164.

     

    “HMO” means any health
maintenance organization, managed care organization, any Person doing business
as a health maintenance organization or managed care organization, or any Person
required to qualify or be licensed as a health maintenance organization or
managed care organization under applicable federal or state law (including,
without limitation, HMO Regulations).

     

    “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
Funded Debt;

     

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

     

    (c)           net
obligations under any Swap Contract;

     

    (d)           Support
Obligations in respect of Indebtedness of another Person; and

     

    (e)           Indebtedness
of any partnership or joint venture or other similar entity in which such Person
is a general partner or joint venturer, and, as such, has personal liability for
such obligations, but only to the extent there is recourse to such Person for
payment thereof.

     

    For
purposes hereof, the amount of Indebtedness shall be determined based on Swap
Termination Value in the case of net obligations under Swap Contracts under
clause (c) and based on the outstanding principal amount of the
Indebtedness that is the subject of the Support Obligations in the case of
Support Obligations under clause (d).

     

    “Indemnified
Liabilities” has the meaning provided in Section
10.05.

     

    “Indemnitees” has the
meaning provided in Section
10.05.

     

    “Intangible Assets”
means assets that are considered intangible assets under GAAP, including
customer lists, goodwill, computer software, copyrights, trade names,
trademarks, patents and Capitalized Loan Fees.

     

    “Interest Period”
means each period commencing on the first day of a calendar month and ending on
the date three months thereafter, provided that:

     

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

     

    


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

     

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

     

    “Internal Control
Event” means a material weakness in, or fraud that involves management or
other employees who have a significant role in, the Borrower’s internal controls
over financial reporting, in each case as described in the Securities
Laws.

     

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

     

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

     

    “IRS” means the United
States Internal Revenue Service.

     

    “Joint Commission” has
the meaning given to such term in Section
5.19(b).

     

    “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.

     

    “Lender” means each of
the Persons identified as a “Lender” on the signature pages hereto and each
Person who joins as a Lender pursuant to the terms hereof, together with their
respective successors and assigns.

     

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

     

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

     

    “Licenses” has the
meaning provided in Section
5.19(b)(i).

     

    


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

     

    “Loan” means the
revolving loan to be made pursuant to the terms of this Credit
Agreement.

     

    “Loan Borrowing
Notice” means a notice of a Borrowing, which, if in writing, shall be
substantially in the form of Exhibit A.

     

    “Management
Agreements” means, collectively, those certain agreements between
Borrowers and the Property Managers or between Operating Tenants and the
Property Managers for the management of certain of the Borrowing Base Assets,
and as described on Part II of Schedule
5.12.

     

    “Material Action”
means to file any insolvency, or reorganization case or proceeding, to institute
proceedings to have any Borrower or any Credit Party be adjudicated bankrupt or
insolvent, to institute proceedings under any applicable insolvency law, to seek
any relief under any law relating to relief from debts or the protection of
debtors, to consent to the filing or institution of bankruptcy or insolvency
proceedings against any Borrower or any Credit Party, to file a petition
seeking, or consent to, reorganization or relief with respect to any Borrower or
any Credit Party under any applicable federal or state law relating to
bankruptcy or insolvency, to seek or consent to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator, custodian, or any similar official
of or for any Borrower or any Credit Party or a substantial part of its
respective property, to make any assignment for the benefit of creditors of any
Borrower or any Credit Party, the admission in writing by any Borrower or any
Credit Party of such Person’s inability to pay its debts generally as they
become due, or to take action in furtherance of any of the
foregoing.

     

    “Material Adverse
Effect” means a material adverse effect on (i) the condition (financial
or otherwise), operations, business, assets, liabilities or prospects of (A) the
Parent and its Consolidated Subsidiaries taken as a whole or (B) the Borrowers
taken as a whole, (ii) the ability of the Parent or the Borrowers to perform any
material obligation under the Credit Documents, or (iii) the rights and remedies
of the Administrative Agent and the Lenders under the Credit
Documents.

     

    “Material Contract”
means, collectively, any Facility Operating Lease, any property management
agreement, any cash management agreement, or any similar agreement with respect
to any Borrowing Base Asset.

     

    “Maturity Date” means,
as applicable, the earlier of (a) June 30, 2013, or (b) any earlier date on
which the all of the Obligations are required to be paid in full, by
acceleration or otherwise, under this Agreement or any of the other Credit
Documents.

     

    


    
      
        
          
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    “Medicaid” means the
medical assistance programs administered by state agencies and approved by CMS
pursuant to the terms of Title XIX of the Social Security Act, codified at 42
U.S.C. 1396 et
seq.

     

    “Medical Services”
means medical and health care services provided to a Person, including, but not
limited to, medical and health care services provided to a Person which are
covered by a policy of insurance, and includes physician services, nurse and
therapist services, dental services, hospital services, skilled nursing facility
services, comprehensive outpatient rehabilitation services, home health care
services, residential and out-patient behavioral healthcare services, and
medicine or health care equipment provided to a Person for a necessary or
specifically requested valid and proper medical or health purpose.

     

    “Medicare” means the
program of health benefits for the aged and disabled administered by CMS
pursuant to the terms of Title XVIII of the Social Security Act, codified at 42
U.S.C. 1395 et
seq.

     

    “Minority Interests”
means that portion of “minority interests” as set forth in the Parent’s
financial statements which is attributable to the ownership interest in the
Parent of Persons other than the Permitted Investors.

     

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

     

    “Mortgage Instrument”
means, for any Real Property Asset, a first lien priority mortgage, deed of
trust or deed to secure debt in favor of the Administrative Agent (for the
benefit of the Lenders) with respect to such Real Property
Asset.  Each Mortgage Instrument shall be in form and substance
satisfactory to the Administrative Agent and suitable for recording in the
applicable jurisdiction.

     

    “Mortgage Policies”
shall have the meaning assigned to such term in the definition of “Borrowing
Base Asset Deliverables” contained in this Section 1.01.

     

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

     

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

     

    “Notes” or “Notes” means the note
or notes in the form of Exhibit B
attached hereto given to the Lenders to evidence the Loan, as amended, restated,
modified, supplemented, extended, renewed or replaced.

     

    


    
      
        
          
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    “Obligations” means,
without duplication, all advances to, and debts, liabilities, obligations,
covenants and duties of, any Credit Party arising under any Credit Document or
otherwise with respect to the 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 Credit Party or any Affiliate thereof of any
proceeding under any Debtor Relief Laws naming such Person as the debtor in such
proceeding, regardless of whether such interest and fees are allowed claims in
such proceeding.

     

    “Occupancy Rate”
means, with respect to any Real Property Asset, the percentage of  (a)
total patient days relating to such Real Property Asset for any reporting period
divided by (b)
the product of (i) total number
of  in-service beds  (as determined as of the Closing
Date) at such Real Property Asset and (ii) the total days in such reporting
period.

     

    “Operating Tenant”
means any Person who is a lessee with respect to the Facility Operating Leases
or any other lease of an entire Borrowing Base Asset held by any Borrower as
lessor or as an assignee of the lessor thereunder.

     

    “Operator”,
individually, and “Operators”,
collectively, means the applicable Property Manager, Operating Tenant and any
successor to such Operator approved by Administrative Agent.  If there
exists a Property Manager, Operating Tenant, or any combination thereof, with
respect to any Borrowing Base Asset, then “Operator” shall refer to all such
entities, collectively and individually as applicable and as the context may
require.

     

    “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” has the
meaning provided in Section
3.01.

     

    “Outstanding Amount”
means the aggregate outstanding principal amount of the Loan after giving effect
to any Borrowings and prepayments or repayments of the Loan, as the case may be,
occurring on such date.

     

    “Outstanding Amount
Percentage” means a fraction, stated as a percentage, the numerator of
which is the Outstanding Amount and the denominator of which is the Aggregate
Committed Amount.

     

    “Overpaying Borrower”
has the meaning provided in Section
2.12(j).

     

    “Overpayment Amount”
has the meaning provided in Section
2.12(j).

     

    


    
      
        
          
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    “Parent” means
Brookdale Senior Living Inc., a Delaware corporation.

     

    “Parent Cash Management
System” has the meaning provided in Section
6.24.

     

    “Parent Sweep Account”
means the account established at Bank of America, N.A., or another national bank
or other financial institution approved by Administrative Agent into which
deposits from the Portfolio General Receivables Account will be swept on a daily
basis, all as more fully described in Section
6.24.

     

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

     

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

     

    “Payment Date” has the
meaning provided in Section 2.04(a)(ii),
and is the date that a regularly scheduled payment of interest is
due.

     

    “PBGC” means the
Pension Benefit Guaranty Corporation.

     

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

     

    “Permitted Investors”
means, collectively, FIG and its Control Investment Affiliates, provided that,
the definition of “Permitted Investors” shall not include any Control Investment
Affiliate whose primary purpose is the operation of an on-going business
(excluding any business whose primary purpose is the investment of capital or
assets).

     

    “Permitted Liens”
means, as to any Person: (a) Liens securing taxes, assessments and other charges
or levies imposed by any Governmental Authority (excluding any Lien imposed
pursuant to any of the provisions of ERISA), in each case, which are not yet due
and payable; (b) Liens evidencing the claims of materialmen, mechanics, carders,
warehousemen or landlords for labor, materials, supplies or rentals, in each
case, incurred in the ordinary course of business and which are not at the time
required to be paid or discharged; provided, that with respect to any Borrowing
Base Asset, no exception is taken therefor in the related Mortgage Policy or
such Mortgage Policy otherwise affirmatively insures over such Liens in form and
substance satisfactory to the Administrative Agent; (c) Liens consisting of
deposits or pledges made, in the ordinary course of business, in connection
with, or to secure payment of, obligations under workmen’s compensation,
unemployment insurance or similar applicable Laws; (d) zoning restrictions,
easements, rights-of-way, covenants, reservations and other rights, restrictions
or encumbrances of record on the use of Real Property Assets, which do not
materially detract from the value of such property or materially impair the use
thereof for the business of such Person; (e) Liens in existence as of the
Closing Date as set forth on Schedule 7.01
and, with respect to the Borrowing Base Assets, as set forth on the Mortgage
Policies (or updates thereto) delivered in connection herewith; and (f) Liens,
if any, in favor of the Administrative Agent for the benefit of the
Lenders.

     

    


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

     

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

     

    “Portfolio General
Receivables Account” means an account established at Bank of America,
N.A., or another national bank or other financial institution approved by
Administrative Agent into which the Borrowers will deposit, or cause to be
deposited, all general receivables and other income generated from the
operations of the Borrowing Base Assets and proceeds of the Third Party Payor
Receivables Accounts, and which account will be (a) in the name of Borrower
Representative, as agent for all Borrowers, and (b) subject to a Blocked Account
Agreement in form satisfactory to Administrative Agent.

     

    “Principal
Obligations” has the meaning provided in Section
2.05(b).

     

    “Prohibited Person”
means any Person (i) listed in the annex to, or who is otherwise subject to the
provisions of, Executive Order No. 13224 on Terrorist Financing, effective
September 24, 2001, and relating to Blocking Property and Prohibiting
Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism
(the “Executive
Order”); (ii) that is owned or controlled by, or acting for or on behalf
of, any person or entity that is listed in the annex to, or is otherwise subject
to the provisions, of the Executive Order; (iii) with whom a Person is
prohibited from dealing or otherwise engaging in any transaction by any
terrorism or money laundering Law, including the Executive Order; (iv) who
commits, threatens or conspires to commit or supports “terrorism” as defined in
the Executive Order; (v) that is named as a “specially designated national and
blocked person” on the most current list published by the U.S. Treasury
Department Office of Foreign Assets Control at its official website or at any
replacement website or other replacement official publication of such list; or
who is an Affiliate of a Person listed in clauses (i) - (v) above.

     

    “Property Manager”
means any manager under the Management Agreements listed on Part II of Schedule 5.12 and any
successor property manager approved by Administrative Agent.

     

    “Proposal” means the
Proposal from GECC to the Parent, dated January 4, 2010, and accepted by the
Parent on January 8, 2010.

     

    “Real Estate Taxes”
means any real estate taxes and assessments, franchise taxes and charges, and
other governmental charges that may become a Lien upon the Borrowing Base Assets
or become payable during the term of the Loan.

     

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

     

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

     

    


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

     

    “Regulation T”
means Regulation T of the Board of Governors of the Federal Reserve System,
as in effect from time to time.

     

    “Regulation U”
means Regulation U of the Board of Governors of the Federal Reserve System,
as in effect from time to time.

     

    “Regulation X”
means Regulation X of the Board of Governors of the Federal Reserve System,
as in effect from time to time.

     

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

     

    “Release Price” has
the meaning provided in Section
7.12.

     

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

     

    “Required Lenders”
means, as of any date of determination, two or more Lenders (except to the
extent only one Lender exists as of such date) having at least (i) 66-2/3%
of the Aggregate Commitments or, (ii) if the commitments of each Lender to
make Advances have been terminated pursuant to Article VIII, Lenders
holding in the aggregate at least 66-2/3% of the Obligations; provided that the
Commitment of, and the portion of the Obligations held or deemed held by, any
Defaulting Lender shall be excluded for purposes of making a determination of
Required Lenders.

     

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

     

    “Restoration
Threshold” means on a per Borrowing Base Asset basis, the lesser of
(a) $1,000,000 or (b) an amount equal to 20% times the pre-casualty
value of the affected Borrowing Base Asset, as determined by Agent.

     

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

     

    “Sale and Leaseback
Transaction” means, with respect to the Parent or any Subsidiary, any
arrangement, directly or indirectly, with any person whereby the Parent or such
Subsidiary shall sell or transfer any property, real or personal, used or useful
in its business, whether now owned or hereafter acquired, and thereafter rent or
lease such property or other property that it

     

    


    
      
        
          
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    intends
to use for substantially the same purpose or purposes as the property being sold
or transferred.

     

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

     

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

     

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

     

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

     

    “Security Agreement”
means the security agreement dated as of the date hereof in the form of Exhibit H,
as amended, supplemented, restated or otherwise modified from time to
time.

     

    “Senior Housing Units”
means, collectively, each skilled nursing bed, assisted living unit, memory care
unit and independent living unit located on and comprising the Borrowing Base
Assets.

     

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

     

    “State Regulator”
means the applicable state department of health or other applicable state
regulatory agency with jurisdiction over the Borrower, the Operators or the Real
Property Assets with respect to the Healthcare Laws affecting the maintenance,
use or operation of the Real Property Assets or the provision of services to the
occupants of the Real Property Assets.

     

    


    
      
        
          
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    “Stockholders’ Equity”
means, as of any date of determination, the consolidated Stockholders’ Equity of
the Parent as at such date determined in accordance with GAAP and shown in the
financial consolidated statements of the Parent and its Subsidiaries, provided
that, there shall be excluded from Stockholders’ Equity any amount attributable
to Disqualified Stock.

     

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

     

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

     

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

     

    


    
      
        
          
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    or any
other master agreement (any such master agreement, together with any related
schedules, a “Master
Agreement”), including any such obligations or liabilities under any
Master Agreement.

     

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

     

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

     

    “Taxes” has the
meaning provided in Section
3.01.

     

    “Third Party Payor
Receivables Accounts” means the accounts established at Bank of America,
N.A., or another national bank or other financial institution approved by
Administrative Agent for each Borrowing Base Asset that is a skilled nursing
facility and into which the Borrowers will deposit, or cause to be deposited,
all Medicaid, Medicare and Tricare receivables generated from the operations at
such Borrowing Base Assets, and which accounts will be (a) in the names of the
Borrowers to which such receivables are payable and (b) subject to a Blocked
Account Agreement in form satisfactory to Administrative Agent.

     

    “Threshold Amount”
means (a) for any provision relating to the Borrowers as a whole, the Parent or
the Consolidated Parties as a whole, $10,000,000 and (b) for any Borrower,
individually, $500,000.

     

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

     

    “Tricare” means the
health care program of the United States Department of Defense Military Health
System.

     

    “Unconsolidated Joint
Venture” means any Joint Venture of the Parent or any of its Subsidiaries
in which the parent or such Subsidiary holds any Equity Interest but which
would

     

    


    
      
        
          
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    not be
combined with the Parent in the consolidated financial statements of the Parent
in accordance with GAAP.

     

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

     

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

     

    “Unused Fee” shall
have the meaning provided in Section 2.07(a).

     

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

     

    1.02.           Interpretive
Provisions.

     

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

     

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

     

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

     

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

     

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

     

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

     

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

     

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

     

    


    
      
        
          
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    1.03.           Accounting Terms.

     

    (a)           All
accounting terms not specifically or completely defined herein shall be
construed in conformity with, and all financial data (including financial ratios
and other financial calculations) required to be submitted pursuant to this
Credit Agreement shall be prepared in conformity with, GAAP applied on a
consistent basis, as in effect from time to time, applied in a manner consistent
with that used in preparing the audited financial statements for the fiscal year
ended December 31, 2008, except as otherwise specifically prescribed
herein.

     

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

     

    1.04.           Rounding.

     

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

     

    1.05.           References to Agreements and
Laws.

     

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

     

    1.06.           Times of
Day.

     

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

     

    ARTICLE
II

    COMMITMENTS AND
ADVANCES

     

    2.01.           Commitments.

     

    Subject
to the terms and conditions set forth herein:

     

    


    
      
        
          
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    (a)           Loan
Advances.  During the Commitment Period, each Lender severally
agrees to make revolving credit advances (each an “Advance”
and collectively, the “Advances”)
to the Borrower Representative on any Business Day; provided that after giving
effect to any such Advance, (i) with regard to the Lenders collectively, the
aggregate outstanding principal amount of the Obligations shall not exceed the
lesser of (x) One Hundred Million Dollars ($100,000,000), (the “Aggregate
Committed Amount”) and (y) the Borrowing Base Amount for such date and
(ii) with regard to each Lender individually, such Lender’s Commitment
Percentage of Obligations shall not exceed its respective Committed
Amount.  The Loan may be repaid and reborrowed in accordance with the
provisions hereof.

     

    (b)           Increase in
Commitments.  Subject to the terms and conditions set forth
herein, the Borrower Representative shall have the one-time right, to be
exercised at any time prior to the earlier of (i) the date that is two (2) years
following the Closing Date or (ii) the exercise of its option to decrease the
Aggregate Committed Amount under Section 2.01(c)
below, cause an increase in the Aggregate Committed Amount by up to Twenty
Million Dollars ($20,000,000) (to an aggregate amount not more than One Hundred
Twenty Million Dollars ($120,000,000)); provided that such increase shall be
conditioned and effective upon the satisfaction of the following
conditions:

     

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

     

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

     

    (iii)           the
Borrowers shall pay to the Administrative Agent the following
fees:  (1) for payment to each Lender making such increased
commitment, a commitment fee equal to one percent (1%) of the increase to the
Aggregate Committed Amount of such Lender and (2) for payment to Administrative
Agent for its own account, an arrangement fee equal to one-half of one percent
(.5%) times the amount of the increase to the Aggregate Committed
Amount.

     

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

     

    (v)           the
conditions to the making of an Advance set forth in Section 4.02
shall be satisfied.

     

    In
connection with any such increase in the Commitments, Schedule 2.01
shall be revised to reflect the modified Commitments and Commitment Percentages
of the Lenders, and the

     

    


    
      
        
          
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    Borrowers
shall provide supporting corporate resolutions, legal opinions, promissory notes
and other items as may be reasonably requested by the Administrative Agent and
the Lenders in connection therewith.

     

    (c)           Reduction of
Commitments.  Subject to the terms and conditions set forth
herein, the Borrower Representative shall have the one-time right, at any time
prior to the date that is two (2) years following the Closing Date, upon written
notice to the Administrative Agent, to permanently reduce the Aggregate
Committed Amount.  Once decreased, the Aggregate Committed Amount may
no longer be increased under Section
2.01(b).  Any such decrease shall be conditioned and effective
upon the satisfaction of the following conditions:

     

    (i)           any
such notice thereof must be received by 11:00 a.m. at least five (5)
Business Days prior to the date of reduction or termination; and

     

    (ii)           the
Commitments may not be reduced to an amount less than the Obligations then
outstanding.  The Administrative Agent will give prompt notice to the
Lenders of any such reduction in Commitments.  Any reduction of the
Aggregate Commitments shall be applied to the Commitment of each Lender
according to its Commitment Percentage thereof.  All commitment or
other fees accrued until the effective date of any termination of the Aggregate
Commitments shall be paid on the effective date of such
termination;

     

    In
connection with any such decrease in the Commitments, Schedule 2.01
shall be revised to reflect the modified Commitments and Commitment Percentages
of the Lenders, and the Borrowers shall provide supporting corporate
resolutions, legal opinions, promissory notes and other items as may be
reasonably requested by the Administrative Agent and the Lenders in connection
therewith.

     

    (d)           Temporary Cap on
Commitments.  Anything in this Agreement to the contrary
notwithstanding, until such time as a Person other than General Electric Capital
Corporation is added as a Lender pursuant to Section 10.07 hereof
with a Commitment of not less than $20,000,000.00, the Aggregate Commitment
Amount hereunder shall not exceed the lesser of (x) $80,000,000.00 and (y) the
Borrowing Base Amount.

     

    2.02.           Advances of the
Loan.

     

    (a)           Each
Advance of the Loan shall be made upon the Borrower Representative’s irrevocable
Loan Borrowing Notice to the Administrative Agent, which may be given by
telephone.  Each such notice must be received by the Administrative
Agent not later than 11:00 a.m., three (3) Business Days prior to the
requested date of any Advance.  Each telephonic notice pursuant to
this Section 2.02(a)
must be confirmed promptly by delivery to the Administrative Agent of a written
Loan Borrowing Notice, appropriately completed and signed by a Responsible
Officer of the Parent.  Each Borrowing shall be in a principal amount
of not less than $500,000.  Each Loan Borrowing Notice (whether
telephonic or written) shall specify (i) the requested date of such Borrowing
(which shall be a Business Day) and (ii) the principal amount of Advances to be
borrowed.

     

    


    
      
        
          
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    (b)           Following
receipt of a Loan Borrowing Notice, the Administrative Agent shall promptly
notify each Lender of the amount of its Commitment Percentage of the applicable
Advance.  Each Lender shall make the amount of its Advance available
to the Administrative Agent in immediately available funds at the Administrative
Agent’s Office not later than 2:00 p.m. on the Business Day specified in
the applicable Loan Borrowing Notice.  Upon satisfaction of the
applicable conditions set forth in Section 4.02
(and, if such Borrowing is the initial Advance, Section 4.01),
the Administrative Agent shall make all funds so received available to the party
referenced in the applicable Loan Borrowing Notice in like funds as received by
the Administrative Agent either by (i) crediting the account of the applicable
party on the books of the Administrative Agent with the amount of such funds or
(ii) wire transfer of such funds, in each case in accordance with instructions
provided to (and reasonably acceptable to) the Administrative Agent by the
Borrower Representative.

     

    2.03.           Calculation of Availability
Amount.

     

    (a)           The
Availability Amount shall be calculated as of the end of each calendar quarter
(the “Determination
Date”); provided that the Borrowing Base Amount shall be reduced to the
Availability Amount only if (a) the Availability Amount is less than the
Collateral Value for two (2) consecutive calendar quarters in which case the
provisions of Section 2.05(b)(i) shall apply or (b) if the Debt Yield is less
than ten percent (10%) for any calendar quarter, in which event the provisions
of Section 2.05(b)(ii) shall apply.

     

    (b)           Anything
herein to the contrary notwithstanding, with respect to the calculation of the
Availability Amount for the Borrowing Base Asset located in Akron, Summit
County, Ohio (the “Bath
Asset”) on the first two Determination Dates following the Closing Date
only, in lieu of using the ANOI for the trailing six (6) month period prior to
the Determination Date for the Bath Asset (i) on the first Determination Date
following the Closing Date, the Availability Amount will be calculated using the
ANOI for the first six (6) months of 2010 as reflected in the pro forma budget
for the Bath Asset provided to Administrative Agent and (b) on the second
Determination Date following the Closing Date, the Availability Amount will be
calculated using the ANOI for the first three(3) months of 2010 as reflected in
the pro forma budget for the Bath Asset provided to Administrative Agent, plus
the actual ANOI of the Bath Asset for the trailing three (3) month period prior
to the Determination Date.

     

    2.04.           Repayment of the
Loan.

     

    The Loan
shall be payable as follows:

     

    (a)           Interest
Payments.

     

    (i)           The
Borrowers shall pay a payment of interest only on the Closing Date for the
period from the date hereof through the last day of the current month computed
at the Contract Rate.

     

    (ii)           Commencing
on April 1, 2010, and continuing on the first (1st) day of each calendar month
thereafter (each such date a “Payment
Date”), the Borrowers shall pay interest only in arrears computed at the
Contract Rate on the outstanding principal balance of the Loan.

     

    


    
      
        
          
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    (b)           Maturity.  On
the Maturity Date, the Borrower shall pay to the Lender all outstanding
principal, accrued and unpaid interest, default interest, late charges and any
and all other Obligations due under the Credit Documents.

     

    2.05.           Prepayments.

     

    (a)           Voluntary
Prepayments.  The Loan may be repaid in whole or in part
without premium or penalty (except amounts payable pursuant to Section 3.05);
provided that notice thereof must be received by 11:00 a.m. by the
Administrative Agent at least three (3) Business Days prior to the date of
prepayment.  Each such notice of voluntary prepayment hereunder shall
be irrevocable and shall specify the date and amount of
prepayment.  The Administrative Agent will give prompt notice to the
applicable Lenders of any prepayment on the Loan and the Lender’s interest
therein.  Prepayments hereunder shall be accompanied by accrued
interest thereon and breakage amounts, if any, under Section 3.05.

     

    (b)           Mandatory
Prepayments.

     

    (i)           If
at any Determination Date, the aggregate principal amount of the Obligations
(the “Principal
Obligations”) shall exceed the lesser of (x) the Aggregate Committed
Amount and (y) the Borrowing Base Amount for such date, Borrowers shall within
thirty (30) days after such determination, make a prepayment on the Loan in an
amount equal to such excess.

     

    (ii)           If
at any Determination Date, the Debt Yield is less than ten percent (10%),
Borrowers shall, within thirty (30) days following the
Determination  Date, reduce the Principal Obligations by an amount
necessary to achieve a Debt Yield of not less than 10.0%.

     

    (c)           Application.  Prepayments
on the Obligations will be paid by the Administrative Agent to the Lenders
ratably in accordance with their respective interests therein.

     

    2.06.           Interest.

     

    (a)           Subject
to the provisions of subsection (b) below, the Loan and all Advances
thereunder shall bear interest on the outstanding principal amount thereof at a
rate per annum equal to the Contract Rate.

     

    (b)           If
any amount payable by the Borrowers under any Credit Document is not paid when
due (without regard to any applicable grace periods), whether at stated
maturity, by acceleration or otherwise, such amount shall thereafter bear
interest at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable
Law.  Furthermore, upon the written request of the Required Lenders,
while any Event of Default exists, the Borrowers 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 Law.  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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    (c)           In
addition to the application of the Default Rate of interest to past due amounts
hereunder, if Borrower fails to pay any installment of interest or principal
within five (5) days after the date on which the same is due, Borrowers shall
pay to Administrative Agent a late charge on such past due amount, as liquidated
damages and not as a penalty, equal to five percent (5%) of such amount, but not
in excess of the maximum amount of interest allowed by applicable
Law.  The foregoing late charge is intended to compensate
Administrative Agent and Lenders for the expenses incident to handling any such
delinquent payment and for the losses incurred by Administrative Agent and
Lenders as a result of such delinquent payment.  Borrowers agree that,
considering all of the circumstances existing on the date this Agreement is
executed, the late charge represents a reasonable estimate of the costs and
losses Administrative Agent and Lenders will incur by reason of late
payment.  Borrowers, Administrative Agent and Lenders further agree
that proof of actual losses would be costly, inconvenient, impracticable and
extremely difficult to fix.  Acceptance of the late charge shall not
constitute a waiver of the Default or Event of Default arising from the past due
installment, and shall not prevent Administrative Agent from exercising any
other rights or remedies available to Administrative Agent with respect to such
Default or Event of Default.

     

    (d)           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.

     

    2.07.           Fees and
Expenses.

     

    (a)           Unused
Fee.  From and after the Closing Date, the Borrowers agree to
pay the Administrative Agent for the ratable benefit of the Lenders an unused
fee (the “Unused
Fee”) for each calendar quarter (or portion thereof) in an amount equal
to the sum of the Daily Unused Fees incurred during such period.  The
Unused Fee shall accrue at all times during the Commitment Period (and
thereafter so long as Obligations shall remain outstanding), including periods
during which the conditions to Advances in Section 4.02 may
not be met, and shall be payable quarterly in arrears on the last day of each
March, June, September and December, commencing with the first such date to
occur after the Closing Date, and on the Maturity Date (and, if applicable,
thereafter on demand); provided, that (i) no
Unused Fee shall accrue on the Commitment of a Defaulting Lender so long as such
Lender shall be a Defaulting Lender and (ii) any Unused Fee accrued with respect
to the Commitment of a Defaulting Lender during the period prior to the time
such Lender became a Defaulting Lender and unpaid at such time shall not be
payable by the Borrower so long as such Lender shall be a Defaulting
Lender.  The Administrative Agent shall distribute the Unused Fee to
the Lenders pro rata in accordance with the respective Commitments of the
Lenders.

     

    (b)           Annual Administrative
Fee.  From and after the Closing Date, the Borrowers agree to
pay Administrative Agent, for its sole benefit, an annual administrative agent
fee in the amount of $100,000.00.  Such fee shall be payable in twelve
(12) equal installments of $8,333.303 each, which installments shall be due and
payable on each Payment Date.

     

    (c)           Arrangement
Fee.  On the Closing Date, the Borrowers shall pay to the
Administrative Agent, for its sole benefit and account, an arrangement fee equal
to one half of one percent (.5%) times the Aggregate Committed Amount in excess
of $80,000,000.

     

    


    
      
        
          
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    (d)           Collateral Monitoring
Fee.  The Borrowers shall pay to the Administrative Agent on
the first (1st) day of each month during the term of the Loan, in addition to
all other amounts due under the Credit Documents, the sum of One Hundred Fifty
and No/100 Dollars ($150.00) per Borrowing Base Asset as a collateral monitoring
fee.

     

    2.08.           Computation of
Interest.

     

    All
computations of fees and interest shall be made on the basis of a 360-day year
and actual days elapsed (which results in more fees or interest, as applicable,
being paid than if computed on the basis of a 365-day year).

     

    2.09.           Payments
Generally.

     

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

     

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

     

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

     

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

     

    (ii)           if
any Lender failed to make such payment, such Lender shall forthwith on demand
pay to the Administrative Agent the amount thereof in immediately available
funds, together with interest thereon for the period from the date such amount
was made

     

    


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

     

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

     

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

     

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

     

    (f)           Nothing
herein shall be deemed to obligate any Lender to obtain the funds for any
Advance 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 Advance in any
particular place or manner.

     

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

     

    


    
      
        
          
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    2.10.           Sharing of
Payments.

     

    If any
Lender shall obtain on account of the Advances made by it, any payment (whether
voluntary, involuntary, through the exercise of any right of set-off, or
otherwise, but excluding any payments made to a Lender in error by the
Administrative Agent (which such payments shall be returned by the Lender to the
Administrative Agent immediately upon such Lender’s obtaining knowledge that
such payment was made in error)) in excess of its ratable share (or other share
contemplated hereunder) thereof, such Lender shall immediately (a) notify the
Administrative Agent of such fact, and (b) purchase from the other Lenders such
participations in the Advances made by them as shall be necessary to cause such
purchasing Lender to share the excess payment in respect of such Advances or
such participations, as the case may be, pro rata with each of them; provided, however,
that if all or any portion of such excess payment is thereafter recovered from
the purchasing Lender under any of the circumstances described in Section 10.06
(including pursuant to any settlement entered into by the purchasing Lender in
its discretion), such purchase shall to that extent be rescinded and each other
Lender shall repay to the purchasing Lender the purchase price paid therefor,
together with an amount equal to such paying Lender’s ratable share (according
to the proportion of (i) the amount of such paying Lender’s required repayment
to (ii) the total amount so recovered from the purchasing Lender) of any
interest or other amount paid or payable by the purchasing Lender in respect of
the total amount so recovered, without further interest thereon.  The
Borrowers agree that any Lender so purchasing a participation from another
Lender may, to the fullest extent permitted by law, exercise all its rights of
payment (including the right of set-off, but subject to Section 10.09)
with respect to such participation as fully as if such Lender were the direct
creditor of the Borrowers in the amount of such participation.  The
Administrative Agent will keep records (which shall be conclusive and binding in
the absence of manifest error) of participations purchased under this
Section and will in each case notify the Lenders following any such
purchases or repayments.  Each Lender that purchases a participation
pursuant to this Section shall from and after such purchase have the right
to give all notices, requests, demands, directions and other communications
under this Credit Agreement with respect to the portion of the Obligations
purchased to the same extent as though the purchasing Lender were the original
owner of the Obligations purchased.

     

    2.11.           Evidence of
Debt.

     

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

     

    2.12.           Joint and Several Liability
of the Borrowers.

     

    (a)           Each
of the Borrowers is accepting joint and several liability hereunder in
consideration of the financial accommodation to be provided by the Lenders under
this Credit Agreement, for the mutual benefit, directly and indirectly, of each
of the Borrowers and in consideration of the undertakings of each of the
Borrowers to accept joint and several liability for the obligations of each of
them.

     

    (b)           Each
Borrower hereby agrees such Borrower is, and each such Borrower’s heirs,
personal representatives, successors and assigns are, jointly and severally
liable for, and hereby absolutely and unconditionally guarantees to
Administrative Agent and Lenders and their respective successors and assigns,
the full and prompt payment (whether at stated maturity, by acceleration or
otherwise) and performance of, all of the Obligations arising under this Credit
Agreement and the other Credit Documents, it being the intention of the parties
hereto that all the Obligations shall be the joint and several obligations of
each of the Borrowers without preferences or distinction among
them.  Each Borrower agrees that its guaranty obligation hereunder is
a continuing guaranty of payment and performance and not of collection, that its
obligations under this Section 2.12 shall
not be discharged until payment and performance, in full, of the Obligations has
occurred, and that its obligations under this Section 2.12 shall be
absolute and unconditional.

     

    (c)           If
and to the extent that any of the Borrowers shall fail to make any payment with
respect to any of the Obligations hereunder as and when due or to perform any of
such Obligations in accordance with the terms thereof, then in each such event,
the other Borrowers will make such payment with respect to, or perform, such
Obligation.

     

    (d)           The
guaranty obligations of each Borrower under the provisions of this Section 2.12
constitute full recourse obligations of such Borrower, enforceable against it to
the full extent of its properties and assets, irrespective of the validity,
regularity or enforceability of this Credit Agreement or any other circumstances
whatsoever, including without limitation, the following:

     

    (i)           the
genuineness, validity, regularity, enforceability or any future amendment of, or
change in, this Credit Agreement, any other Credit Document or any other
agreement, document or instrument to which any other Borrower is or may become a
party;

     

    (ii)           the
absence of any action to enforce this Credit Agreement (including this Section 2.12) or any
other Credit Document or the waiver or consent by Administrative Agent and
Lenders with respect to any of the provisions thereof;

     

    (iii)           the
existence, value or condition of, or failure to perfect any Lien or any security
for the Obligations or any action, or the absence of any action, by
Administrative Agent and Lenders in respect thereof (including the release of
any such security);

     

    


    
      
        
          
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    (iv)           the
insolvency of any other Borrower;

     

    (v)           the
institution of any proceeding under the Federal Bankruptcy Code, or any similar
proceeding, by or against a Borrower or Administrative Agent’s election in any
such proceeding of the application of Section 1111(b)(2) of the Federal
Bankruptcy Code;

     

    (vi)           any
borrowing or grant of a security interest by any Borrower as
debtor-in-possession, under Section 364 of the Federal Bankruptcy
Code;

     

    (vii)           the
disallowance, under Section 502 of the Federal Bankruptcy Code, of all or any
portion of Administrative Agent’s claim(s) for repayment of any of the
Obligations; or

     

    (viii)           any
other action or circumstances that might otherwise constitute a legal or
equitable discharge or defense of a surety or guarantor other than the payment
and performance, in full, of the Obligations.

     

    Each
Borrower shall be regarded, and shall be in the same position, as principal
debtor with respect to the Obligations guaranteed hereunder.

    


    (e)           Except
as otherwise expressly provided herein, each Borrower hereby waives notice of
acceptance of its joint and several liability, notice of occurrence of any
Default or Event of Default (except to the extent notice is expressly required
to be given pursuant to the terms of this Credit Agreement), or of any demand
for any payment under this Credit Agreement (except to the extent demand is
expressly required to be given pursuant to the terms of this Credit Agreement),
notice of any action at any time taken or omitted by the Administrative Agent or
any Lender under or in respect of any of the Obligations hereunder, any
requirement of diligence and, generally, all demands, notices and other
formalities of every kind in connection with this Credit
Agreement.  Each Borrower hereby assents to, and waives notice of, any
extension or postponement of the time for the payment of any of the Obligations
hereunder, the acceptance of any partial payment thereon, any waiver, consent or
other action or acquiescence by the Lenders at any time or times in respect of
any default by any Borrower in the performance or satisfaction of any term,
covenant, condition or provision of this Credit Agreement, any and all other
indulgences whatsoever by the Lenders in respect of any of the Obligations
hereunder, and the taking, addition, substitution or release, in whole or in
part, at any time or times, of any security for any of such Obligations or the
addition, substitution or release, in whole or in part, of any
Borrower.  Without limiting the generality of the foregoing, each
Borrower assents to any other action or delay in acting or any failure to act on
the part of the Lender, including, without limitation, any failure strictly or
diligently to assert any right or to pursue any remedy or to comply fully with
applicable laws or regulations thereunder which might, but for the provisions of
this Section 2.12,
afford grounds for terminating, discharging or relieving such Borrower, in whole
or in part, from any of its obligations under this Section 2.12, it
being the intention of each Borrower that, so long as any of the Obligations
hereunder remain unsatisfied, the obligations of such Borrower under this Section 2.12
shall not be discharged except by performance and then only to the extent of
such performance.  The obligations of each Borrower under this Section 2.12
shall not be diminished or rendered unenforceable by any winding
up,

     

    


    
      
        
          
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    reorganization,
arrangement, liquidation, reconstruction or similar proceeding with respect to
any Borrower or any Lender.  The joint and several liability of the
Borrowers hereunder shall continue in full force and effect notwithstanding any
absorption, merger, amalgamation or any other change whatsoever in the name,
membership, constitution or place of formation of any Borrower or any
Lender.

     

    (f)           Notwithstanding
anything to the contrary in this Agreement or in any other Credit Document, and
except as set forth in Section 2.12(j), each
Borrower hereby expressly and irrevocably subordinates to payment of the
Obligations any and all rights at law or in equity to subrogation,
reimbursement, exoneration, contribution, indemnification or set off and any and
all defenses available to a surety, guarantor or accommodation co-obligor until
the Obligations are indefeasibly paid in full in cash.  Each Borrower
acknowledges and agrees that this subordination is intended to benefit
Administrative Agent and Lenders and shall not limit or otherwise affect such
Borrower’s liability hereunder or the enforceability of this Section 2.12, and
that Administrative Agent, Lenders and their respective successors and assigns
are intended third party beneficiaries of the waivers and agreements set forth
in this Section
2.12.

     

    (g)           If
Administrative Agent or any Lender may, under applicable Law, proceed to realize
its benefits under any of the Credit Documents giving Administrative Agent or
such Lender a Lien upon any Collateral, whether owned by any Borrower or by any
other Person, either by judicial foreclosure or by non-judicial sale or
enforcement, Administrative Agent or any Lender may, at its sole option,
determine which of its remedies or rights it may pursue without affecting any of
its rights and remedies under this Section
2.12.  If, in the exercise of any of its rights and remedies,
Administrative Agent or any Lender shall forfeit any of its rights or remedies,
including its right to enter a deficiency judgment against any Borrower or any
other Person, whether because of any applicable Laws pertaining to “election of
remedies” or the like, each Borrower hereby consents to such action by
Administrative Agent or such Lender and waives any claim based upon such action,
even if such action by Administrative Agent or such Lender shall result in a
full or partial loss of any rights of subrogation that each Borrower might
otherwise have had but for such action by Administrative Agent or such
Lender.  Any election of remedies that results in the denial or
impairment of the right of Administrative Agent or any Lender to seek a
deficiency judgment against any Borrower shall not impair any other Borrower’s
obligation to pay the full amount of the Obligations.  In the event
Administrative Agent or any Lender shall bid at any foreclosure or trustee’s
sale or at any private sale permitted by law or the Credit Documents,
Administrative Agent or such Lender may bid all or less than the amount of the
Obligations and the amount of such bid need not be paid by Administrative Agent
or such Lender but shall be credited against the Obligations.  The
amount of the successful bid at any such sale, whether Administrative Agent,
Lender or any other party is the successful bidder, shall be conclusively deemed
to be the fair market value of the Collateral and the difference between such
bid amount and the remaining balance of the Obligations shall be conclusively
deemed to be the amount of the  Obligations guaranteed under this
Section 2.12,
notwithstanding that any present or future law or court decision or ruling may
have the effect of reducing the amount of any deficiency claim to which
Administrative Agent or any Lenders might otherwise be entitled but for such
bidding at any such sale.

     

    (h)           The
provisions of this Section 2.12 are
made for the benefit of the Administrative Agent, the Lenders and their
respective successors and assigns, and may be enforced by any such

     

    


    
      
        
          
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    Person
from time to time against any of the Borrowers as often as occasion therefor may
arise and without requirement on the part of any Lender first to marshal any of
its claims or to exercise any of its rights against any of the other Borrowers
or to exhaust any remedies available to it against any of the other Borrowers or
to resort to any other source or means of obtaining payment of any of the
Obligations or to elect any other remedy.  The provisions of this
Section 2.12
shall remain in effect until all the Obligations hereunder shall have been paid
in full or otherwise fully satisfied.  If at any time, any payment, or
any part thereof, made in respect of any of the Obligations, is rescinded or
must otherwise be restored or returned by the Lenders upon the insolvency,
bankruptcy or reorganization of any of the Borrowers, or otherwise, the
provisions of this Section 2.12
will forthwith be reinstated and in effect as though such payment had not been
made.

     

    (i)           Each
Borrower’s liability under this Section 2.12 shall be
limited to an amount not to exceed as of any date of determination the greater
of the following:

     

    (i)           the
amount of the Loan allocated to each Borrower as set forth on Schedule 2.12
hereto  (the “Allocable
Amount”); and

     

    (ii)           the
amount that could be claimed by Administrative Agent and any Lender from such
Borrower under this Section 2.12 without
rendering such claim voidable or avoidable under Section 548 of Chapter 11 of
the Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer
Act, Uniform Fraudulent Conveyance Act or similar statute or common law after
taking into account, among other things, such Borrower’s right of contribution
and indemnification from each other Borrower under Section 2.12(j)
below.

     

    (j)           Contribution
with Respect to Guaranty Obligations.

     

    (i)           To
the extent that any Borrower (the “Overpaying
Borrower”) incurs (i) any payment in excess of its Allocable Amount, or
(ii) a loss of its Collateral due to the foreclosure (or other realization by
lenders) of, or the delivery of deeds in lieu of foreclosure relating to it
Collateral, and the value of such Collateral exceeded its Allocable Share (the
“Overpayment
Amount”), then such Overpaying Borrower shall be entitled, after
indefeasible payment in full and the satisfaction of all Obligations to Lenders
under the Credit Agreement, to contribution from each of the benefited
Borrowers, on a pro rata basis, for the amounts so paid, advanced or benefited,
in an amount equal to the difference between the Overpayment Amount and such
benefited Borrower’s then current Allocable Amount.  Any such
contribution payments shall be made within ten (10) Business Days after demand
therefor.

     

    (ii)           This
Section 2.12(j)
is intended only to define the relative rights of Borrowers and nothing set
forth in this Section
2.12(j) is intended to or shall impair the obligations of Borrowers,
jointly and severally, to pay any amounts as and when the same shall become due
and payable in accordance with the terms of this Agreement, including Section
2.12(a)
above.  Nothing contained in this Section 2.12(j) shall
limit the liability of any Borrower to pay all or any part of the Loan made
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    Borrower
and accrued interest, fees and expenses with respect thereto for which such
Borrower shall be primarily liable.

     

    (iii)           The
parties hereto acknowledge that the rights of contribution and indemnification
hereunder shall constitute assets of the Borrower to which such contribution and
indemnification is owing.

     

    (iv)           The
rights of the indemnifying Borrowers against other Borrowers under this Section 2.12(j) shall
be exercisable only upon the full and indefeasible payment of the
Obligations.

     

    (k)           The
liability of Borrowers under this Section 2.12 is in
addition to and shall be cumulative with all liabilities of each Borrower to
Agent and Lender under this Agreement and the other Credit Documents to which
such Borrower is a party or in respect of any Obligations or obligation of the
other Borrower, without any limitation as to amount, unless the instrument or
agreement evidencing or creating such other liability specifically provides to
the contrary.

     

    2.13.           Appointment of Parent as
Legal Representative for Credit Parties.

     

    Each of
the Credit Parties hereby appoints the Parent to act as its exclusive legal
representative for all purposes under this Credit Agreement and the other Credit
Documents (including, without limitation, with respect to all matters related to
Borrowings and the repayment of the Loan as described in Article II and
Article III
hereof) (in such capacity, the “Borrower
Representative”).  Each of the Credit Parties acknowledges and
agrees that (a) the Borrower Representative may execute such documents on behalf
of all the Credit Parties (whether as Borrowers or Guarantor) as the Borrower
Representative deems appropriate in its reasonable discretion and each Credit
Party shall be bound by and obligated by all of the terms of any such document
executed by the Borrower Representative on its behalf, (b) any notice or other
communication delivered by the Administrative Agent or any Lender hereunder to
the Borrower Representative shall be deemed to have been delivered to each of
the Credit Parties and (c) the Administrative Agent and each of the Lenders
shall accept (and shall be permitted to rely on) any document or agreement
executed by the Borrower Representative on behalf of the Credit Parties (or any
of them).  The Borrowers must act through the Borrower Representative
for all purposes under this Credit Agreement and the other Credit
Documents.  Notwithstanding anything contained herein to the contrary,
to the extent any provision in this Credit Agreement requires any Credit Party
to interact in any manner with the Administrative Agent or the Lenders, such
Credit Party shall do so through the Borrower Representative.

     

    2.14.           Establishment of
Impounds.

     

    (a)           Real Estate Tax
Impounds.  Borrowers shall deposit with Administrative Agent,
monthly on each Payment Date, a sum of money (the “Tax
Impound”) equal to one-twelfth (1/12th) of the annual Real Estate
Taxes.  At or before the initial Advance of the Loan, Borrowers shall
deposit with Administrative Agent a sum of money which together with the monthly
installments will be sufficient to make each of such payments thirty (30) days
prior to the date any delinquency or penalty becomes due with respect to such
payments.  Deposits shall be made on the basis of Administrative
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    Taxes for
the current year (after giving effect to any reassessment or, at Administrative
Agent’s election, on the basis of the Real Estate Taxes for the prior year, with
adjustments when the Real Estate Taxes are fixed for the then current
year).  All funds so deposited shall be held by Administrative Agent
or its servicer. So long as no Default or Event of Default exists hereunder,
Administrative Agent shall credit for Borrowers’ account interest at the
interest rate actually available to Administrative Agent’s or its servicer on
the funds held in such account, as determined by Administrative Agent in its
sole discretion. These sums may be commingled with Administrative Agent’s
general funds and shall not be deemed to be held in trust for the benefit of
Borrowers.  Borrowers hereby grant to Administrative Agent for the
benefit of the Lenders a security interest in all funds so deposited with
Administrative Agent for the purpose of securing the Loan.  Until an
Event of Default exists, Administrative Agent shall apply the funds deposited to
pay the Real Estate Taxes as provided herein.  While an Event of
Default exists, the funds deposited may be applied in payment of the charges for
which such funds have been deposited, or to the payment of the Loan or any other
charges affecting the security of Lenders, as Administrative Agent may elect,
but no such application shall be deemed to have been made by operation of law or
otherwise until actually made by Administrative Agent.  Borrowers
shall furnish Administrative Agent with bills for the Real Estate Taxes for
which such deposits are required at least thirty (30) days prior to the date on
which the Real Estate Taxes first become payable.  If at any time the
amount on deposit with Administrative Agent, together with amounts to be
deposited by Borrowers before such Real Estate Taxes are payable, is
insufficient to pay such Real Estate Taxes, Borrowers shall deposit any
deficiency with Administrative Agent immediately upon
demand.  Administrative Agent shall pay such Real Estate Taxes when
the amount on deposit with Administrative Agent is sufficient to pay such Real
Estate Taxes and Administrative Agent has received a bill for such Real Estate
Taxes.  The obligation of Borrowers to pay the Real Estate Taxes, as
set forth in the Credit Documents, is not affected or modified by the provision
of this paragraph; provided, however, that Borrowers shall not be in default
under the Loan for failure to pay Real Estate Taxes if and to the extent there
are sufficient funds on deposit in the Tax Impound to timely pay such Real
Estate Taxes.  On the Maturity Date, the monies then remaining on
deposit with Administrative Agent under this Section 2.14(a)
shall, at Administrative Agent’s option, be applied against the Obligations or
if no Event of Default exists hereunder, returned to Borrowers.

     

    (b)           Replacement
Reserve.  Borrowers shall deposit with Administrative Agent on
each Payment Date the product of Twenty-Five Dollars ($25.00) multiplied by the
number of Senior Housing Units in the Borrowing Base Assets, which shall be held
by Administrative Agent or its servicer for replacements and repairs required to
be made to the Borrowing Base Assets during the term of the Loan (the “Replacement
Escrow Fund”).  So long as no Default or Event of Default
exists hereunder, Administrative Agent shall credit for Borrowers’ account
interest at the interest rate actually available to Administrative Agent’s
servicer on the funds held in such account, as determined by Administrative
Agent in its sole discretion.  Borrowers hereby pledge to
Administrative Agent for the benefit of the Lenders, and grant a security
interest in, any and all monies now or hereafter deposited in the Replacement
Escrow Fund as additional security for the payment of the
Loan.  Administrative Agent may reasonably reassess its estimate of
the amount necessary for the Replacement Escrow Fund from time to time and may
adjust the monthly amounts required to be deposited into the Replacement Escrow
Fund upon thirty (30) days notice to Borrowers.  Administrative Agent
shall make disbursements from the Replacement Escrow Fund as requested by
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    its
reasonable discretion, on a quarterly basis in increments of no less than
$5,000.00 upon delivery by Borrowers of Administrative Agent’s standard form of
draw request accompanied by copies of paid invoices for the amounts requested
and, if required by Administrative Agent for any draw request for an invoice
exceeding $15,000.00, lien waivers and releases from all parties furnishing
materials and/or services in connection with the requested
payment.  Administrative Agent may require an inspection of the
Borrowing Base Assets at Borrowers’ expense prior to making a quarterly
disbursement in order to verify completion of replacements and repairs for which
reimbursement is sought.  The Replacement Escrow Fund shall be held
without interest in Administrative Agent’s name and may be commingled with
Administrative Agent’s general funds at financial institutions selected by
Administrative Agent in its reasonable discretion.  Upon the
occurrence of an Event of Default, Administrative Agent may apply any sums then
present in the Replacement Escrow Fund to the payment of the Loan in any order
in its reasonable discretion.  Until expended or applied as above
provided, the Replacement Escrow Fund shall constitute additional security for
the Loan.  Administrative Agent shall have no obligation to release
any of the Replacement Escrow Fund while any Event of Default or Default
exists.  All costs and expenses incurred by Administrative Agent in
the disbursement of any of the Replacement Escrow Fund shall be paid by
Borrowers promptly upon demand or, at Administrative Agent’s sole discretion,
deducted from the Replacement Escrow Fund.

     

    2.15.           Defaulting
Lenders.

     

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

     

    (i)           Waivers and
Amendments.  That 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 Section
10.01.

     

    (ii)           Reallocation of
Payments.  Any payment of principal, interest, fees or other
amounts received by the Administrative Agent for the account of that Defaulting
Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or
otherwise, and including any amounts made available to the Administrative Agent
by that Defaulting Lender pursuant to Section 10.06), shall
be applied at such time or times as may be determined by the Administrative
Agent as follows: first, to the payment of any
amounts owing by that Defaulting Lender to the Administrative Agent hereunder;
second, as the Borrower
Representative may request (so long as no Default or Event of Default exists),
to the funding of any Loan in respect of which that Defaulting Lender has failed
to fund its portion thereof as required by this Agreement, as determined by the
Administrative Agent; third, if so determined by
the Administrative Agent and the Borrower Representative, to be held in a
non-interest bearing deposit account and released in order to satisfy
obligations of that Defaulting Lender to fund 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 that Defaulting Lender as
a result of that Defaulting Lender’s breach of its obligations under this
Agreement; fifth, so
long as no Default or Event of Default exists, to the payment of

     

    


    
      
        
          
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    any
amounts owing to the Borrowers as a result of any judgment of a court of
competent jurisdiction obtained by the Borrowers against that Defaulting Lender
as a result of that Defaulting Lender’s breach of its obligations under this
Agreement; and sixth,
to that Defaulting Lender or as otherwise directed by a court of competent
jurisdiction; provided that if (x)
such payment is a payment of the principal amount of any Advances in respect of
which that Defaulting Lender has not fully funded its appropriate share and
(y) such Advances were made at a time when the conditions set forth in
Section 4.02
were satisfied or waived, such payment shall be applied solely to pay the
Advances all non-Defaulting Lenders on a pro rata basis prior to being applied
to the payment of any Advances owed to that Defaulting Lender.  Any
payments, prepayments or other amounts paid or payable to a Defaulting Lender
that are applied (or held) to pay amounts owed by a Defaulting Lender or to post
Cash Collateral pursuant to this Section 2.15(a)(ii)
shall be deemed paid to and redirected by that Defaulting Lender, and each
Lender irrevocably consents hereto.  

     

    (b)           Defaulting Lender
Cure. If the
Borrowers and the Administrative Agent agree in writing in their sole discretion
that a Defaulting Lender should no longer be deemed to be a Defaulting Lender,
the Administrative Agent will so notify the parties hereto, whereupon as of the
effective date specified in such notice and subject to any conditions set forth
therein, that Lender will, to the extent applicable, purchase that portion of
outstanding Advances of the other Lenders or take such other actions as the
Administrative Agent may determine to be necessary to cause the Advances (in the
aggregate) to be held on a pro rata basis by the Lenders in accordance with
their applicable Commitment Percentages, whereupon that Lender will cease to be
a Defaulting Lender; provided that no
adjustments will be made retroactively with respect to fees accrued or payments
made by or on behalf of the Borrowers while that Lender was a Defaulting Lender;
and provided,
further, that
except to the extent otherwise expressly agreed by the affected parties, no
change hereunder from Defaulting Lender to Lender will constitute a waiver or
release of any claim of any party hereunder arising from that Lender’s having
been a Defaulting Lender.

     

    ARTICLE
III

    TAXES, YIELD PROTECTION AND
ILLEGALITY

     

    3.01.           Taxes.

     

    (a)           Any
and all payments by any Credit Party to or for the account of the Administrative
Agent or any Lender under any Credit Document shall be made free and clear of
and without deduction for any and all present or future taxes, duties, levies,
imposts, deductions, assessments, fees, withholdings or similar charges, and all
liabilities with respect thereto, excluding, in the case of the Administrative
Agent and each Lender, taxes imposed on or measured by its overall net income,
and franchise and excise taxes imposed on it (in lieu of net income taxes), as a
result of a present or former connection between the Administrative Agent or
such Lender and the jurisdiction of the Governmental Authority imposing such tax
or any political subdivision or taxing authority thereof or therein (other than
any such connection arising solely from the Administrative Agent’s or such
Lender’s having executed, delivered or performed its obligations or received a
payment under, or enforced, this Credit Agreement or any other Credit Document)
(all such non-excluded taxes, duties, levies, imposts, deductions,

     

    


    
      
        
          
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    assessments,
fees, withholdings or similar charges, and liabilities being hereinafter
referred to as “Taxes”).  If
any Credit Party shall be required by any Laws to deduct any Taxes from or in
respect of any sum payable under any Credit Document to the Administrative Agent
or any Lender, (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section), each of the Administrative Agent and such
Lender receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Credit Party shall make such deductions, (iii)
such Credit Party shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable Laws, and (iv) within
thirty (30) days after the date of such payment, such Credit Party shall furnish
to the Administrative Agent (which shall forward the same to such Lender) the
original or a certified copy of a receipt evidencing payment
thereof.

     

    (b)           In
addition, the Borrowers agree to pay any and all present or future stamp, court
or documentary taxes or charges or similar levies which arise from any payment
made under any Credit Document or from the execution, delivery, performance,
enforcement or registration of, or otherwise with respect to, any Credit
Document (hereinafter referred to as “Other
Taxes”).  For the avoidance of doubt, “Other Taxes” shall not
include any taxes assessed on the net or gross income of a taxpayer, regardless
of whether such taxes are designated excise or property taxes.

     

    (c)           If
the Borrowers shall be required to deduct or pay any Taxes or Other Taxes from
or in respect of any sum payable under any Credit Document to the Administrative
Agent or any Lender, the Borrowers shall also pay to the Administrative Agent or
to such Lender, as the case may be, at the time interest is paid, such
additional amount that the Administrative Agent or such Lender specifies is
necessary to preserve the after-tax yield (after factoring in all taxes,
including taxes imposed on or measured by net income) that the Administrative
Agent or such Lender would have received if such Taxes or Other Taxes had not
been imposed.

     

    (d)           The
Borrowers agree to indemnify the Administrative Agent and each Lender for (i)
the full amount of Taxes and Other Taxes (including any Taxes or Other Taxes
imposed or asserted by any jurisdiction on amounts payable under this Section)
that are paid by the Administrative Agent and such Lender and that are the
responsibility of the Borrowers, (ii) amounts payable under Section 3.01(c)
and (iii) any liability (including additions to tax, penalties, interest and
expenses) arising therefrom or with respect thereto, in each case whether or not
such Taxes or Other Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority.  Payment under this
subsection (d) shall be made within thirty (30) days after the date the
Lender or the Administrative Agent makes a written demand therefor.

     

    3.02.           Illegality.

     

    If any
Lender determines that any Law has made it unlawful, or that any Governmental
Authority has asserted that it is unlawful, for any Lender or its applicable
Lending Office to make, maintain or fund its Extension of Credit using the
Eurodollar Rate, or to determine or charge interest rates based upon the
Eurodollar Rate, then, on notice thereof by such Lender to the Borrowers through
the Administrative Agent, any obligation of such Lender to continue its
Extension of Credit or make Advances at the Eurodollar Rate shall be suspended
until such Lender notifies the Administrative Agent and the Borrowers that the
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    such
determination no longer exist.  Upon receipt of such notice, the
Borrowers shall either (a) agree to substitute the Base Rate for the
Eurodollar Base Rate on the outstanding Extension of Credit or (b) upon
demand from such Lender (with a copy to the Administrative Agent), prepay such
Lender’s Extension of Credit on the last day of the Interest Period therefor, if
such Lender may lawfully continue to maintain its Extension of Credit to such
day, or immediately, if such Lender may not lawfully continue to maintain its
Extension of Credit.  Upon any such prepayment or substitution of the
Base Rate, the Borrowers shall also pay accrued interest on the amount so
prepaid or converted.  Each Lender agrees to designate a different
Lending Office if such designation will avoid the need for such notice and will
not, in the good faith judgment of such Lender, otherwise be materially
disadvantageous to such Lender.

     

    3.03.           Inability to Determine
Rates.

     

    If the
Required Lenders determine that for any reason adequate and reasonable means do
not exist for determining the Eurodollar Rate with respect to a proposed Advance
under the Loan, or that the Eurodollar Rate for any requested proposed Advance
does not adequately and fairly reflect the cost to such Lenders of funding such
Advance, the Administrative Agent will promptly so notify the Parent and each
Lender.  Thereafter, the obligation of the Lenders to make further
Advances or maintain the Extensions of Credit using the Eurodollar Rate shall be
suspended until the Administrative Agent (upon the instruction of the Required
Lenders) revokes such notice.  Upon receipt of such notice, the
Borrowers may revoke any pending request for a Borrowing at the Eurodollar Rate
or may substitute a request for a Borrowing using the Base Rate.

     

    3.04.           Increased Cost and Reduced
Return; Capital Adequacy; Reserves.

     

    (a)           If
any Lender determines that as a result of the introduction of or any change in
or in the interpretation of any Law, or such Lender’s compliance therewith,
there shall be any increase in the cost to such Lender of agreeing to make or
making, funding or maintaining the Loan, or a reduction in the amount received
or receivable by such Lender in connection with any of the foregoing (excluding
for purposes of this subsection (a) any such increased costs or reduction
in amount resulting from (i) Taxes or Other Taxes (as to which Section 3.01
shall govern), (ii) changes in the basis of taxation of overall net income or
overall gross income by the United States or any foreign jurisdiction or any
political subdivision of either thereof under the Laws of which such Lender is
organized or has its Lending Office, and (iii) reserve requirements contemplated
by Section 3.04(c)),
then from time to time upon demand of such Lender (with a copy of such demand to
the Administrative Agent), the Borrowers shall pay to such Lender such
additional amounts as will compensate such Lender for such increased cost or
reduction.

     

    (b)           If
any Lender determines that the introduction of any Law regarding capital
adequacy or any change therein or in the interpretation thereof, or compliance
by such Lender (or its Lending Office) therewith, has the effect of reducing the
rate of return on the capital of such Lender or any corporation controlling such
Lender as a consequence of such Lender’s obligations hereunder (taking into
consideration its policies with respect to capital adequacy and such Lender’s
desired return on capital), then from time to time upon demand of such
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    (with a
copy of such demand to the Administrative Agent), the Borrowers shall pay to
such Lender such additional amounts as will compensate such Lender for such
reduction.

     

    (c)           The
Borrowers 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 the
Advances made by such Lender under the Loan equal to the actual costs of such
reserves allocated to such portion of the 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 the Loan,
provided the Borrowers shall have received at least fifteen (15) days’ prior
written notice (with a copy to the Administrative Agent) of such additional
interest from such Lender.  If a Lender fails to give notice fifteen
(15) days prior to the relevant Payment Date, such additional interest shall be
due and payable fifteen (15) days from receipt of such notice.

     

    3.05.           Funding
Losses.

     

    Upon
demand of any Lender (with a copy to the Administrative Agent) from time to
time, the Borrowers 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
payment or prepayment of all or any portion of the Loan on a day other than the
last day of the Interest Period for the Loan or portion thereof (whether
voluntary, mandatory, automatic, by reason of acceleration, or
otherwise);

     

    (b)           any
failure by the Borrowers (for a reason other than the failure of such Lender to
make an Advance) to prepay or borrow any Advance on the date or in the amount
notified by the Borrowers; or

     

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

     

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

     

    For
purposes of calculating amounts payable by the Borrowers to the Lenders under
this Section 3.05,
each Lender shall be deemed to have funded each Advance made by it at the
Eurodollar Base Rate used in determining the Eurodollar Rate for such Advance 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 Advance
was in fact so funded.

     

    3.06.           Matters Applicable to all
Requests for Compensation.

     

    (a)           A
certificate of the Administrative Agent or any Lender claiming compensation
under this Article III and setting forth the additional amount or amounts
to be paid to it

     

    


    
      
        
          
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    hereunder
shall be conclusive in the absence of manifest error.  In determining
such amount, the Administrative Agent or such Lender may use any reasonable
averaging and attribution methods.

     

    (b)           Upon
any Lender’s making a claim for compensation under Section 3.01 or
3.04, the
Borrowers may replace such Lender in accordance with Section 10.16.

     

    (c)           Failure
or delay on the part of any Lender to demand compensation pursuant to the
foregoing provisions of this Article III shall not constitute a waiver of
such Lender’s right to demand such compensation, provided that the Borrowers
shall not be required to compensate a Lender pursuant to the foregoing
provisions of this Article III for any increased costs incurred or
reductions suffered more than nine (9) months prior to the date that such Lender
notifies the Borrowers of the change in Law or other matter giving rise to such
increased costs or reductions and of such Lender’s intention to claim
compensation therefore (except that, if the change in Law giving rise to such
increased costs or reductions is retroactive, then the nine-month period
referred to above shall be extended to include the period of retroactive effect
thereof).

     

    3.07.           Survival.

     

    All of
the Borrowers’ obligations under this Article III shall survive termination
of the Aggregate Commitments and repayment of all other Obligations
hereunder.

     

    ARTICLE
IV

    CONDITIONS PRECEDENT TO
ADVANCES

     

    The
obligation of each Lender to make Advances hereunder is subject to satisfaction
of the following conditions precedent:

     

    4.01.           Conditions to Initial
Advance.

     

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

     

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

     

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

     

    (ii)           a
Note executed by the Borrowers in favor of each Lender requesting a
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    (iii)           copies
of the Organization Documents of the Parent and each Borrower certified to be
true and complete as of a recent date by the appropriate Governmental Authority
of the state or other jurisdiction of its incorporation or organization, where applicable, and
certified by a secretary or assistant secretary of Parent and Borrowers to be
true and correct as of the Closing Date;

     

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

     

    (v)           such
documents and certifications as the Administrative Agent may reasonably require
to evidence that the Parent and Borrowers are duly organized or formed, and are
validly existing, in good standing and qualified to engage in business in (A)
the jurisdiction of their incorporation or organization and (B) each
jurisdiction where their ownership, lease or operation of properties or the
conduct of their business requires such qualification.

     

    (b)           Opinions of
Counsel.  The Administrative Agent shall have received, in each
case dated as of the Closing Date and in form and substance reasonably
satisfactory to the Administrative Agent:

     

    (i)           a
legal opinion of counsel for the Credit Parties;

     

    (ii)           a
legal opinion of special local counsel for the Borrowers for the states in which
each Borrowing Base Asset is located with respect to licensing matters and for
any other state in which the Parent or any Borrower is organized, in each case
addressed to the Administrative Agent, its counsel and the Lenders.

     

    (c)           Personal Property
Collateral.  The Administrative Agent shall have received (in
each case in form and substance reasonably satisfactory to the Administrative
Agent):

     

    (i)           searches
of Uniform Commercial Code filings in the state of organization of each Borrower
or where a filing would need to be made in order to perfect the Administrative
Agent’s security interest in the tangible personal property Collateral, copies
of the financing statements on file in such jurisdictions and evidence that no
Liens exist other than Permitted Liens;

     

    (ii)           UCC
financing statements for each appropriate jurisdiction as is necessary, in the
Administrative Agent’s sole discretion, to perfect the Administrative Agent’s
security interest in the Collateral;

     

    (iii)           duly
executed notices of grant of security interest as are necessary, in the
Administrative Agent’s sole discretion, to perfect the Administrative Agent’s
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    (iv)           all
instruments and chattel paper in the possession of any of the Borrowers,
together with allonges or assignments as may be necessary or appropriate to
perfect the Administrative Agent’s security interest in the
Collateral;

     

    (v)           duly
executed consents as are necessary, in the Administrative Agent’s sole
discretion, to perfect the Administrative Agent’s security interest in the
Collateral;

     

    (vi)           in
the case of any tangible personal property Collateral located at a premises
leased by a Borrower, such estoppel letters, consents and waivers from the
landlords on such real property as may be required by the Administrative Agent;
and

     

    (vii)           a
copy of each Material Contract.

     

    (d)           Real Property Collateral
(Borrowing Base Assets).  The Administrative Agent shall have
received, in form and substance reasonably satisfactory to the Administrative
Agent and the Lenders, each of the Borrowing Base Asset Deliverables with
respect to each Real Property Asset set forth on Schedule 5.12
attached hereto and shall have approved each such Real Property Asset as a
Borrowing Base Asset hereunder.

     

    (e)           Property and Liability
Insurance.  The Administrative Agent shall have received copies
of all insurance policies held by (or for the benefit of) the Parent, Borrowers
and Operators with respect to the Real Property Assets of the Borrowers, each
such policy shall name the Administrative Agent (on behalf of the Lenders) as an
additional insured or sole loss payee under a standard mortgagee endorsement, as
applicable and each provider of any such insurance shall agree, by endorsement
upon the policy or policies issued by it or by independent instruments furnished
to the Administrative Agent, that it will give the Administrative Agent
(i) thirty (30) days prior written notice before any such policy or
policies shall be canceled and (ii) fifteen (15) days prior written notice
before any such policy or policies shall be altered.

     

    (f)           Officer’s
Certificates.  The Administrative Agent shall have received a
certificate or certificates executed by a Responsible Officer of the Parent as
of the Closing Date, in a form satisfactory to the Administrative Agent, stating
that (i) each Borrower is in compliance with all existing financial obligations
(whether pursuant to the terms and conditions of this Credit Agreement or
otherwise) and Parent is in compliance with all financial obligations except
when the failure to so comply would not reasonably be expected to have a
Material Adverse Effect, (ii) all governmental, shareholder and third party
consents and approvals, if any, with respect to the Credit Documents and the
transactions contemplated thereby have been obtained, (iii) no action, suit,
investigation or proceeding is pending or threatened in any court or before any
arbitrator or governmental instrumentality that purports to affect any
Consolidated Party or any transaction contemplated by the Credit Documents, if
such action, suit, investigation or proceeding could reasonably be expected to
have a Material Adverse Effect, (iv) immediately prior to and following the
transactions contemplated herein, each of the Credit Parties shall be Solvent,
and (v) immediately after the execution of this Credit Agreement and the
other Credit Documents, (A) no Default or Event of Default exists and (B) all
representations and warranties contained herein and in the other Credit
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    (g)           Opening Borrowing Base
Certificate.  Receipt by the Administrative Agent of a
Borrowing Base Certificate as of the Closing Date, substantially in the form of
Exhibit
C-2, duly completed and executed by a Responsible Officer of the
Parent.

     

    (h)           Financial
Statements.  Receipt by the Administrative Agent and the
Lenders of (i) pro forma projections of financial statements (balance sheet,
income and cash flows) for each of the fiscal years of the Consolidated Parties
through December 31, 2010 and (ii) such other information relating to the
Consolidated Parties as the Administrative Agent may reasonably require in
connection with the structuring and syndication of credit facilities of the type
described herein.

     

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

     

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

     

    (k)           Material Adverse
Change.  No material adverse change shall have occurred since
December 31, 2009 in the condition
(financial or otherwise), business, assets, operations, management or prospects
of (i) the Parent, (ii) the Parent and its Consolidated Subsidiaries taken as a
whole, or (iii) the Borrowers taken as a whole.

     

    (l)           Litigation.  There
shall not exist any pending or threatened action, suit, investigation or
proceeding against any Credit Party that could reasonably be expected to have a
Material Adverse Effect or could otherwise materially and adversely effect the
transactions set forth herein or contemplated hereby.

     

    (m)           Fees and
Expenses.  Payment by the Credit Parties to the Administrative
Agent of all fees and expenses relating to the preparation, execution and
delivery of this Credit Agreement and the other Credit Documents which are due
and payable on the Closing Date, including, without limitation, payment to the
Administrative Agent of the fees set forth in the Proposal, and reasonable and
documented Attorney Costs, consultants’ fees, travel expenses and all fees and
expenses associated with the due diligence done in connection with and the
preparation of documentation with respect to the Borrowing Base Assets or other
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    (n)           Other.  Receipt
by the Lenders or the Administrative Agent of such other documents, instruments,
agreements or information as reasonably requested by any Lender or the
Administrative Agent, including, but not limited to, additional legal opinions,
contribution agreements, corporate resolutions, indemnifications, information
regarding litigation, tax, accounting, labor, insurance, pension liabilities
(actual or contingent), real estate leases, material contracts, debt agreements,
property ownership and contingent liabilities of the Credit
Parties.

     

    4.02.           Conditions to
Advances.

     

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

     

    (a)           The
Administrative Agent shall receive the applicable Loan Borrowing Notice and the
conditions set forth in Section 4.01 for the
initial Advance shall have been met as of the Closing Date;

     

    (b)           No
Default or Event of Default shall have occurred and be continuing immediately
before the making of such Advance and no Default or Event of Default shall exist
immediately thereafter;

     

    (c)           The
representations and warranties of the Borrowers made in or pursuant to the
Credit Documents shall be true in all material respects on and as of the date of
such Extension of Credit, except for those (i) which expressly relate to an
earlier date and (ii) relating to a Real Property Asset or a Borrower or an
Operator of a Real Property Asset that is no longer qualified as a Borrowing
Base Asset and is not included in the Borrowing Base Amount; and

     

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

     

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

     

    ARTICLE
V

    REPRESENTATIONS AND
WARRANTIES

     

    The
Borrowers hereby represent and warrant (on behalf of themselves, the Parent or
the Credit Parties as a whole, as applicable) that:

     

    5.01.           Financial Statements; No
Material Adverse Effect; No Internal Control Event.

     

    (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 the
Consolidated Parties as of the date thereof and their results of operations for
the period covered thereby in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly
noted

     

    


    
      
        
          
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    therein;
and (iii) show all material indebtedness and other liabilities, direct or
contingent, of the Consolidated Parties as of the date thereof, including
liabilities for taxes, material commitments and Indebtedness.

     

    (b)           During
the period from December 31, 2009, to and including the Closing Date, there has
been no sale, transfer or other disposition by any Consolidated Party of any
material part of the business or Property of the Consolidated Parties, taken as
a whole, and no purchase or other acquisition by any of them of any business or
property (including any Capital Stock of any other Person) material in relation
to the consolidated financial condition of the Consolidated Parties, taken as a
whole, in each case, which is not reflected in the foregoing financial
statements or in the notes thereto and has not otherwise been disclosed in
writing to the Lenders on or prior to the Closing Date.

     

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

     

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

     

    (e)           Since
the date of the Audited Financial Statements, no Internal Control Event has
occurred.

     

    5.02.           Corporate Existence and
Power.

     

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

     

    5.03.           Corporate and Governmental
Authorization; No Contravention.

     

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

     

    


    
      
        
          
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      5.04.           Binding
Effect.

       

    

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

     

    5.05.           Litigation.

     

    There are
no actions, suits, proceedings, claims or disputes pending or, to the knowledge
of the Responsible Officers of the Credit Parties, threatened at law, in equity,
in arbitration or before any Governmental Authority, by or against any Credit
Party or against any of its properties or revenues that (a) purport to affect or
pertain to this Credit Agreement or any other Credit Document, or any of the
transactions contemplated hereby or (b) either individually or in the aggregate,
if determined adversely, would reasonably be expected to have a Material Adverse
Effect.

     

    5.06.           Compliance with
ERISA.

     

    (a)           Each
Plan is in compliance in all material respects with the applicable provisions of
ERISA, the Code and other Federal or state Laws.  Each Plan that is
intended to qualify under Section 401(a) of the Code has received a
favorable determination letter from the IRS or an application for such a letter
is currently being processed by the IRS with respect thereto and, to the
knowledge of the Responsible Officers of the Credit Parties, nothing has
occurred which would prevent, or cause the loss of, such
qualification.  The 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 knowledge of the Responsible Officers of the Credit
Parties, threatened claims (other than routine claims for benefits), actions or
lawsuits, or action by any Governmental Authority, with respect to any Plan that
could reasonably be expected to have a Material Adverse
Effect.  Neither the Parent nor any ERISA Affiliate or, to the
knowledge of the Responsible Officers of the Credit Parties, any other Person
has engaged in any prohibited transaction or violation of the fiduciary
responsibility rules under ERISA or the Code with respect to any Plan that has
resulted or could reasonably be expected to result in a Material Adverse
Effect.

     

    (c)           No
ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension
Plan has any Unfunded Pension Liability except any such that would not
reasonably be expected to have a Material Adverse Effect; (iii) neither the
Parent nor any ERISA Affiliate has incurred, or reasonably expects to incur, any
liability under Title IV of ERISA with respect to any Pension Plan (other
than premiums due and not delinquent under Section 4007 of ERISA);
(iv) neither the Parent nor any ERISA Affiliate has incurred, or reasonably
expects to incur, any liability (and no event has occurred which, with the
giving of notice under Section 4219 of ERISA, would result in such
liability) under Sections 4201 or 4243 of ERISA with respect to
a

     

    


    
      
        
          
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    Multiemployer
Plan; and (v) the Parent nor any ERISA Affiliate has engaged in a transaction
that could be subject to Sections 4069 or 4212(c) of ERISA.

     

    5.07.           Environmental
Matters.

     

    (a)           Each
of the Borrowing Base Assets and all operations with respect to each of the
Borrowing Base Assets and the Real Property Assets owned by the Borrowers are in
compliance with all applicable Environmental Laws in all material respects and
there are no conditions relating to the Borrowing Base Assets, the other Real
Property Assets owned by the Borrowers or the Businesses of the Borrowers that
are likely to give rise to liability under any applicable Environmental
Laws.

     

    (b)           None
of the Borrowing Base Assets or other Real Property Assets owned by the
Borrowers contains, or, to the knowledge of the Responsible Officers of the
Parent and the Borrowers, has previously contained, any Hazardous Substances at,
on or under such property in amounts or concentrations that constitute a
violation of, or could give rise to liability under, applicable Environmental
Laws.

     

    (c)           Neither
the Parent nor any Borrower has received any written or verbal notice of, or
inquiry from any Governmental Authority regarding, any violation, alleged
violation, non-compliance, liability or potential liability regarding
environmental matters or compliance with Environmental Laws with regard to any
of the Borrowing Base Assets, any of the other Real Property Assets owned by the
Borrowers or the Businesses of the Borrowers, nor does any Responsible Officer
of the Parent or any Borrower have knowledge or reason to believe that any such
notice will be received or is being threatened.

     

    (d)           Neither
the Parent nor any Borrower has generated, treated, stored or disposed of
Hazardous Substances at, on or under any of the Borrowing Base Assets or any of
the other Real Property Assets owned by the Borrowers in violation of, or in a
manner that could give rise to liability under, any applicable Environmental
Law.  No Hazardous Substances have been transported or disposed of
from the Borrowing Base Assets or the other Real Property Assets owned by the
Borrowers, in each case by or on behalf of any Borrower, in violation of, or in
a manner that is likely to give rise to liability under, any applicable
Environmental Law.

     

    (e)           No
judicial proceeding or governmental or administrative action is pending or, to
the knowledge of the Responsible Officers of the Parent and the Borrowers,
threatened, under any Environmental Law to which any Borrower is or will be
named as a party, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other administrative or
judicial requirements outstanding under any Environmental Law with respect to
the Borrowers, the Borrowing Base Assets, the other Real Property Assets owned
by the Borrowers or the Businesses of the Borrowers.

     

    5.08.           Margin Regulations;
Investment Company Act.

     

    (a)           No
Credit Party is engaged or will engage, principally or as one of its important
activities, in the business of purchasing or carrying margin stock (within the
meaning of Regulation U issued by the FRB), or extending credit for the
purpose of purchasing or carrying

     

    


    
      
        
          
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    margin
stock and no part of the proceeds of the Loan will be used, directly or
indirectly, for the purpose of purchasing or carrying any margin
stock.

     

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

     

    5.09.           Compliance with
Laws.

     

    (a)           Each
Credit Party 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 such requirement of Law or
order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted.

     

    (b)           Each
of the Borrowing Base Assets, and the uses of the Borrowing Base Assets, are in
compliance in all material respects with the requirements of all Laws and all
orders, writs, injunctions and decrees applicable to the Borrowing Base Assets
(including, without limitation, building and zoning laws and Healthcare Laws),
except in such instances in which such requirement of Law or order, writ,
injunction or decree is being contested in good faith by appropriate proceedings
diligently conducted.

     

    5.10.           Ownership of Property;
Liens.

     

    Each
Borrower has good record and marketable title in fee simple to, or valid
leasehold interests in, all real property necessary or used in the ordinary
conduct of its business (including, in any case, each of the Borrowing Base
Assets).  Each Borrowing Base Asset is subject to no Liens, other than
Permitted Liens.  No Borrower owns any material intellectual
property.

     

    5.11.           Corporate Structure; Capital
Stock, Etc.

     

    As of the
Closing Date and as of each date on which such schedule is subsequently updated
pursuant to the terms hereof through the delivery of a Compliance Certificate,
Schedule 5.11
correctly sets forth the corporate structure of Parent and the entity and
ownership structure of the Borrowers and the correct legal name and the
jurisdiction of formation of the Parent and each of the
Borrowers.  Also included on Schedule 5.11 is a
listing of the number of shares of each class of Capital Stock outstanding with
respect to each Borrower, the Persons holding equity interests in such
Borrowers, their percentage equity or voting interest in the Borrowers and the
number and effect, if exercised, of all outstanding options, warrants, rights of
conversion or purchase and all other similar rights with respect
thereto.  Except as set forth on Schedule 5.11, as of
the Closing Date: (i) no Borrower has issued to any third party any securities
convertible into any equity interest in such Borrower, or any options, warrants
or other rights to acquire any securities convertible into any such equity
interest, and (ii) the outstanding Capital Stock of each Borrower is owned by
the Persons indicated on Schedule 5.11,
is validly issued, fully paid and non-assessable, and is free and clear of all
Liens, warrants, options and rights of others of any kind
whatsoever.  Each Borrower is a Wholly Owned Subsidiary of the
Parent.  No Borrower holds or otherwise has any interest in any
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    5.12.           Real Property Assets;
Leases.

     

    (a)           Part I
of Schedule 5.12
(as updated pursuant to the terms hereof through the delivery of a Compliance
Certificate) is a true and complete list as of the Closing Date of (i) the
street address of each Borrowing Base Asset, (ii) the Borrower which owns each
such Borrowing Base Asset, (iii) the facility type of each such Borrowing Base
Asset, (iv) the number of Senior Housing Units at such Borrowing Base Asset, (v)
the Facility Operating Leases to which each such Borrowing Base Asset is
subject, and (vi) the name and address of the applicable Operating
Tenant.  The applicable Borrower has a fee simple title to or holds a
ground lease interest pursuant to an Eligible Ground Lease in each Borrowing
Base Asset listed on Schedule 5.12
hereto and such schedule correctly sets forth the type of interest (fee or
leasehold) held by each Borrower in each Borrowing Base Asset.  Each
parcel of real property identified on Part I of Schedule 5.12 is
a Real Property Asset that qualifies as a Borrowing Base Asset pursuant to the
terms hereof and which is subject to a first priority lien (subject to Permitted
Liens) in favor of the Administrative Agent (for the benefit of the Lenders)
pursuant to a properly-recorded Mortgage Instrument and Assignment of
Leases.

     

    (b)           Part II
of Schedule 5.12
(as updated pursuant to the terms hereof through the delivery of a Compliance
Certificate) properly sets forth all Management Agreements in existence as of
the date hereof with respect to the Borrowing Base Assets, together with the
applicable Property Manager.  There are no other Management Agreements
affecting the Borrowing Base Assets.

     

    (c)           Part III
of Schedule 5.12
(as updated pursuant to the terms hereof through the delivery of a Compliance
Certificate) properly sets forth the names and addresses of all Operating
Tenants with respect to the Real Property Assets who are (i) delinquent in
paying any franchise, business, intangible, personal property taxes or real
estate taxes due beyond the later of the applicable grace period with respect
thereto, if any, and forty five (45) days and/or (ii) the subject of any
Bankruptcy Event.

     

    (d)           Part
IV of Schedule
5.12 (as updated pursuant to the terms hereof through the delivery of a
Compliance Certificate) properly identifies all Facility Operating Leases in
existence as of the date hereof with respect to the Borrowing Base Assets,
together with the applicable Operating Tenant and the remaining term of each
such Facility Operating Lease.  There are no other Facility Operating
Leases affecting the Borrowing Base Assets.

     

    (e)           Part V
of Schedule 5.12 (as updated pursuant to the terms hereof through the
delivery of a Compliance Certificate) properly sets forth all subleases relating
to any of the Borrowing Base Assets, the termination of which could result in a
Material Adverse Effect on the operation of the Borrowing Base Asset, together
with the applicable subtenant with respect thereto, the remaining term of such
sublease and whether or not such subtenant is current on payments due
thereunder.  There are no other subleases affecting the Borrowing Base
Assets.

     

    (f)           Each
of the facilities located on the Borrowing Base Assets owned by the Borrowers is
currently in good repair, working order and condition without any material
structural or engineering defects or conditions.  No Condemnation has
been instituted and remained undismissed for a period in excess of
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    respect
to a material portion of any Real Property Asset listed as a Borrowing Base
Asset on Part I of Schedule
5.12.  No material casualty event has occurred with respect to
the improvements located on any Real Property Asset listed as a Borrowing Base
Asset on Part I of Schedule 5.12 which
has not been (or, if applicable, will not be able to be) fully remediated with
available insurance proceeds.

     

    (g)           No
required rental payment, principal or interest payment, payments of real
property taxes or payments of premiums on insurance policies payable to the
Borrowers with respect to such Real Property Asset is past due beyond the
earlier of the applicable grace period with respect thereto, if any, and sixty
(60) days.

     

    5.13.           Material Contracts;
Additional Contractual Obligations.

     

    (a)           Schedule 5.13
(as updated pursuant to the terms hereof through the delivery of a Compliance
Certificate) is a true, correct and complete listing of all Material Contracts
with respect to the Borrowing Base Assets (other than those set forth on Part V
of Schedule
5.12).  No event of default, or event or condition which with
the giving of notice, the lapse of time, a determination of materiality, the
satisfaction of any other condition or any combination of the foregoing, would
constitute such an event of default, exists with respect to any such Material
Contract. Except as set forth on Schedule 5.13, no
Borrower is a party to any contract or agreement that is subject to the Federal
Assignment of Claims Act, as amended (31 U.S.C. Section 3727) or any
similar state or local law.

     

    (b)           With
respect to the Borrowing Base Asset located in Peoria, Arizona (the “Arizona
Facility”), residents of the independent living facility located adjacent
to the Arizona Facility have the right to receive services at the Arizona
Facility at discounted rates.  The existence of this program does not,
and will not during the term of this Credit Agreement, result in a Material
Adverse Effect on the operations of the Arizona Facility.

     

    5.14.           Investments.

     

    All
Investments of each Borrower are Investments permitted pursuant to Section
7.04(b).

     

    5.15.           Solvency.

     

    The
Credit Parties are Solvent on a consolidated basis.

     

    5.16.           Taxes.

     

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

     

    


    
      
        
          
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    5.17.           Reserved.

     

    5.18.           Insurance.

     

    All
insurance coverage of the Borrowers and all insurance coverage of the Operators
with respect to the Borrowing Base Assets, in each case, as in existence as of
the Closing Date and as of each date on which such schedule is subsequently
updated pursuant to the terms hereof through the delivery of a Compliance
Certificate, is in compliance with the requirements set forth on Schedule 5.18.

     

    5.19.           Healthcare; Facility
Representations and Warranties.

     

    (a)           Compliance With Healthcare
Laws.  Without limiting the generality of Section 5.09
hereof or any other representation or warranty made herein, no Borrower and no
Operator with respect to a Borrowing Base Asset is in material violation of any
applicable statutes, laws, ordinances, rules and regulations of any Governmental
Authority governing patient healthcare or the operation of any Healthcare
Facility (including without limitation Section 1128B(b) of the Social
Security Act, as amended, 42 U.S.C. Section 1320a-7(b) (Criminal Penalties
Involving Medicare or State Health Care Programs), commonly referred to as the
“Federal Anti-Kickback Statute,” and the Social Security Act, as amended,
Section 1877, 42 U.S.C. Section 1395nn (Prohibition Against Certain
Referrals), commonly referred to as “Stark Statute” (collectively, “Healthcare
Laws”).  Each of the Borrowers (if applicable) and each of the
Operators, comply in all material respects with the applicable requirements of
the Joint Commission, the Food and Drug Administration, Drug Enforcement Agency
and State Boards of Pharmacy and the federal and state Medicare and Medicaid
programs as required by the Healthcare Laws and there are no notices of material
violations of the Healthcare Laws with respect to the Borrowers, any of the
Borrowing Base Assets or the Operators, in their capacity as an operator of a
Borrowing Base Asset.

     

    (b)           Licenses, Permits, and
Certifications.

     

    (i)           Each
Borrower and/or Operator has such permits, licenses, franchises, certificates
and other approvals or authorizations (collectively, the “Licenses”)
of Governmental Authorities as are necessary under applicable law or regulations
to own its properties and to conduct its business.  Each Borrower and
each Operator which owns or operates a Borrowing Base Asset that is a skilled
nursing facility has such Licenses as are necessary under applicable law or
regulations to provide any Medical Services offered at the Borrowing Base Asset
and receive reimbursement under Medicare, Tricare (if applicable) and Medicaid
(including without limitation such permits as are required under such federal,
state and other health care laws, and under such HMO or similar licensure laws
and such insurance laws and regulations, as are applicable
thereto).

     

    (ii)           Each
Borrower and/or each Operator which owns or operates a Borrowing Base Asset that
is a skilled nursing facility has all Medicare, Tricare (if applicable),
Medicaid and related provider or supplier billing number(s) and related
documentation necessary to submit reimbursement claims to Medicare, Tricare
and/or Medicaid for any Medical Service furnished by such Person in any
jurisdiction where it conducts business.

     

    


    
      
        
          
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    No such
Borrower or Operator is currently subject to suspension, revocation, renewal or
denial of its Medicare, Tricare and/or Medicaid certification, supplier billing
number(s), or Medicare, Tricare and/or Medicaid participation
agreement(s).

     

    (iii)           Each
of the facilities located on the Borrowing Base Assets is currently accredited
by The Joint Commission (the “Joint
Commission”) or certified by any required Governmental Authority and is
duly licensed to operate in the manner currently operated, as required under
applicable Laws.  In addition, each such facility is in compliance in
all material respects with the applicable provisions of every Law of any
Governmental Authority having jurisdiction over the operation thereof,
including, without limitation, Healthcare Laws and fire safety
codes.

     

    (c)           Covered
Entities.  Each of the Borrowers listed on Schedule 5.19 is
a “covered entity” within the meaning of HIPAA.

     

    (d)           No Investigations or
Proceedings.  Neither the Parent nor any Borrower nor any
Operator is the subject of any civil or criminal penalty, process, claim, action
or proceeding, investigation or any administrative or other regulatory review,
survey, process or proceeding with respect to a Borrowing Base Asset (other than
routine surveys or reviews conducted by any government health plan or other
accreditation entity) that if determined adversely would reasonably be expected
to have a Material Adverse Effect.

     

    5.20.           Disclosure.

     

    Each
Credit Party has disclosed to the Administrative Agent and the Lenders all
agreements, instruments and corporate or other restrictions to which it or any
of its Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect.  No report, financial statement, certificate
or other information furnished (whether in writing or orally) by or on behalf of
any Credit Party to the Administrative Agent or any Lender in connection with
the transactions contemplated hereby and the negotiation of this Agreement or
delivered hereunder or under any other Credit Document (in each case, as
modified or supplemented by other information so furnished) contains any
material misstatement of fact or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.

     

    5.21.           Collateral
Documents.

     

    The
Collateral Documents create valid security interests in, and Liens on, the
Collateral purported to be covered thereby, which security interests and Liens
are currently perfected security interests and Liens, prior to all other Liens
other than Permitted Liens which by operation of law or contract would have
priority over the Liens securing the Obligations.

     

    


    
      
        
          
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    ARTICLE
VI

    AFFIRMATIVE
COVENANTS

     

    The
Borrowers hereby covenant and agree (on their own behalf and on behalf of the
Parent, as applicable) that until the Obligations, together with interest, fees
and other obligations hereunder, have been paid in full and the Commitments
hereunder shall have terminated:

     

    6.01.           Financial
Statements.

     

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

     

    (a)           as
soon as available, but in any event within ninety (90) days after the end of
each fiscal year of the Parent (or if earlier, the date that is five (5) days
after the reporting date for such information required by the SEC), a
consolidated balance sheet of the Consolidated Parties as at the end of such
fiscal year, and the related consolidated statements of earnings, 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, audited and accompanied by (i) a
report and opinion of a Registered Public Accounting Firm of nationally
recognized standing reasonably acceptable to the Required Lenders, which report
and opinion shall be prepared in accordance with generally accepted auditing
standards and applicable Securities Laws 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 (ii) an attestation report of such Registered
Public Accounting Firm as to the Borrower’s internal controls pursuant to
Section 404 of Sarbanes-Oxley expressing a conclusion that the Parent has
maintained effective internal controls over financial reporting based on COSO
criteria; provided, that the Administrative Agent hereby agrees that a Form 10-K
of the Parent in form similar to that delivered as part of the Audited Financial
Statements shall satisfy the requirements of this Section 6.01(a);
and

     

    (b)           as
soon as available, but in any event within forty-five (45) days after the end of
each of the first three (3) fiscal quarters of each fiscal year of the Parent
(or if earlier, the date that is five (5) days after the reporting date for such
information required by the SEC), a consolidated balance sheet of the
Consolidated Parties as at the end of such fiscal quarter, and the related
consolidated statements of earnings, shareholders’ equity and cash flows for
such fiscal quarter and for the portion of the Parent’s fiscal year then ended,
setting forth in each case in comparative form the figures for the corresponding
fiscal quarter of the previous fiscal year and the corresponding portion of the
previous fiscal year, all in reasonable detail and certified by a Responsible
Officer of the Parent as fairly presenting the financial condition, results of
operations, shareholders’ equity and cash flows of the Consolidated Parties in
accordance with GAAP, subject only to normal year-end audit adjustments and the
absence of footnotes; provided, that the Administrative Agent hereby agrees that
a Form 10-Q of the Parent in form similar to that delivered to the SEC shall
satisfy the requirements of this Section
6.01(b).

     

    


    
      
        
          
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    6.02.           Certificates; Other
Information.

     

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

     

    (a)           concurrently
with the delivery of the financial statements referred to in Sections 6.01(a)
and (b), a duly
completed Compliance Certificate signed by a Responsible Officer of the
Parent;

     

    (b)           within
thirty (30) days after the end of each fiscal quarter, a Borrowing Base
Certificate calculated as of the end of the immediately prior fiscal quarter,
duly completed and executed by a Responsible Officer of the Parent; provided,
however, the Borrower Representative may, at its option, provide an updated
Borrowing Base Certificate more frequently than quarterly;

     

    (c)           within
thirty (30) days after the end of each calendar month for each Borrowing Base
Asset, (A) a detailed operating statement (showing monthly activity and
year-to-date) stating operating revenues, operating expenses and operating
income for the calendar month just ended and year-to-date and (B) a current
revenue journal which includes a schedule showing pay or mix in respect of Third
Party Payor Programs and Occupancy Rate Calculations;

     

    (d)           within
thirty (30) days after the end of each calendar quarter, internally prepared
quarterly income statements prepared for the Borrowers with respect to the
Borrowing Base Assets on a consolidated basis which fairly present the financial
condition for the Borrowers with respect to the Borrowing Base Assets on a
consolidated basis for such period and year-to-date;

     

    (e)           within
thirty (30) days after the end of each fiscal year of the Parent, beginning with
the fiscal year ending December 31, 2009, an annual operating forecast of
the Parent containing, among other things, pro forma financial statements for
the then current fiscal year and updated versions of the pro forma financial
projections delivered in connection with Section 4.01(h)
hereof;

     

    (f)           promptly
after any request by the Administrative Agent, copies of any detailed audit
reports, management letters or recommendations submitted to the board of
directors by the independent accountants of the Parent (or the audit committee
of the board of directors of the Parent) in respect of the Parent (and, to the
extent any such reports, letters or recommendations are prepared separately for
any one or more of the Borrowers, such Borrower(s)) by independent accountants
in connection with the accounts or books of the Parent (or such Borrower(s)) or
any audit of the Parent (or such Borrower(s));

     

    (g)           promptly
after the same are available, (i) copies of each annual report, proxy or
financial statement or other report or communication sent to the stockholders of
the Parent, and copies of all annual, regular, periodic and special reports and
registration statements which the Parent may file or be required to file with
the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934 or
to a holder of any Indebtedness owed by the Parent in its capacity as such
holder and not otherwise required to be delivered to the Administrative Agent
pursuant hereto and (ii) upon the request of the Administrative Agent, all
reports and written information

     

    


    
      
        
          
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    to and
from the United States Environmental Protection Agency, or any state or local
agency responsible for environmental matters, the United States Occupational
Health and Safety Administration, or any state or local agency responsible for
health and safety matters, or any successor agencies or authorities concerning
environmental, health or safety matters;

     

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

     

    (i)           promptly
upon any Responsible Officer of the Parent or the Borrowers becoming aware
thereof, notice of (i) the existence of any contemplated offering, placement or
arrangement which will constitute an Event of Default under the terms of Section 8.01(k),
(ii) any matter that has resulted or could reasonably be expected to result in a
Material Adverse Effect, (iii) the occurrence of any Internal Control Event and
(iv) any other Default or Event of Default;

     

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

     

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

     

    (l)           promptly
after receipt, copies of all financial statements and other reports and
information required to be delivered by (i) the Operating Tenants under the
Facility Operating Leases and (ii) the Property Managers under the Management
Agreements.

     

    Documents
required to be delivered pursuant to Section 6.01(a)
or (b) or Section 6.02(b),
(c), (d), or (e) may be delivered
electronically and if so delivered, shall be deemed to have been delivered on
the date (i) on which the Parent or the Borrowers post such documents, or
provides a link thereto on the Parent’s website on the Internet at the website
address listed on Schedule 10.02;
or (ii) on which such documents are posted by the Administrative Agent (on the
Borrowers’ behalf) on IntraLinks/IntraAgency or another relevant website, if
any, to which each Lender and the Administrative Agent have access (whether a
commercial, third-party website or whether sponsored by the Administrative
Agent); provided that: (A) the Borrowers shall deliver paper copies of such
documents to the Administrative Agent or any Lender (through the Administrative
Agent) that requests the Borrowers to deliver such paper copies until a written
request to cease delivering paper copies is given by the Administrative Agent or
such Lender (through the Administrative Agent) and (B) the Borrowers shall
notify (which may be by facsimile or electronic mail) the Administrative Agent
and each Lender (through the Administrative Agent) of the posting of any such
documents (each Lender to which delivery of such documents shall be made by
posting to any such website shall have been given access to such website on or
prior to the date of such posting) and provide to the Administrative Agent by
electronic mail electronic versions (i.e., soft copies) of such
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    anything
contained herein, in every instance the Parent shall be required to provide
paper copies of the Compliance Certificates required by Section 6.02(a)
to the Administrative Agent and each of the Lenders (through the Administrative
Agent).  Except for such Compliance Certificates, the Administrative
Agent shall have no obligation to request the delivery or to maintain copies of
the documents referred to above, and in any event shall have no responsibility
to monitor compliance by the Parent or the Borrowers with any such request for
delivery, and each Lender shall be solely responsible for requesting delivery to
it or maintaining its copies of such documents.

     

    6.03.           Preservation of Existence
and Franchises.

     

    Each
Credit Party will do all things necessary to preserve and keep in full force and
effect its existence, rights, franchises and authority.  Each Credit
Party shall remain qualified and in good standing in each jurisdiction in which
it is required to so qualify.

     

    6.04.           Books and
Records.

     

    Each
Credit Party will keep complete and accurate books and records of its
transactions in accordance with good accounting practices on the basis of
GAAP.

     

    6.05.           Compliance with
Law.

     

    Each
Borrower will comply with, and cause the Operators to comply in all material
respects with, all Laws, rules, regulations and orders, and all applicable
restrictions imposed by all Governmental Authorities (including, without
limitation, building and zoning laws and all Healthcare Laws), applicable to
each Borrowing Base Asset.  Each Borrower will comply in all material
respects with all terms and conditions of all Material Contracts to which it is
a party.

     

    6.06.           Payment of Taxes and Other
Indebtedness.

     

    Each
Credit Party will pay and discharge (or cause to be paid or discharged) (a) all
taxes (including, without limitation, any corporate or franchise taxes),
assessments and governmental charges or levies imposed upon it, or upon its
income or profits, or upon any of its properties (including, without limitation,
each Borrowing Base Asset), before they shall become delinquent, (b) all lawful
claims (including claims for labor, materials and supplies) which, if unpaid,
might give rise to a Lien (other than a Permitted Lien) upon any of its
properties, and (c) except as prohibited hereunder, all of its other
Indebtedness as it shall become due; provided, however, that (i) no Borrower
shall be required to pay any such tax, assessment, charge, levy, claim or
Indebtedness which is being contested in good faith by appropriate proceedings
and as to which adequate reserves therefor have been established in accordance
with GAAP, unless the failure to make any such payment (1) could give rise to an
immediate right to foreclose on a Lien securing such amounts in respect of any
Borrowing Base Assets or (2) could be reasonably expected to have a Material
Adverse Effect and (ii) Parent shall not be required to pay such tax,
assessment, charge, levy, claim or Indebtedness unless failure to do so could be
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    6.07.           Insurance.

     

    In
addition to the requirements of any of the other Credit Documents, the Parent
and the Borrowers shall maintain, or with respect to any Borrowing Base Asset
leased by a Borrower to an Eligible Tenant, cause the applicable Eligible
Tenant, to maintain, insurance policies and coverages described on Schedule 5.18
attached hereto, subject to changes in policies and coverages based on the
availability of insurance for Persons engaged in ownership and operation similar
types of properties in the applicable location, in each case as approved by the
Administrative Agent in its reasonable discretion.  The Borrowers will
deliver to the Administrative Agent (a) within ten (10) days of receipt of
notice from any insurer a copy of any notice of cancellation or material change
in coverage from that existing on the date hereof or with respect to the
Borrowing Base Assets and (b) promptly upon receipt, notice of any cancellation
or nonrenewal of coverage by the Parent or any Borrower thereof.  The
Administrative Agent shall be named as loss payee or mortgagee, as its interest
may appear, and/or additional insured with respect to any insurance procured
with respect to the Borrowing Base Assets and each provider of any such
insurance shall agree, by endorsement upon the policy or policies issued by it
or by independent instruments furnished to the Administrative Agent, that it
will give the Administrative Agent (i) thirty (30) days prior written
notice before any such policy or policies shall be canceled and (ii) fifteen
(15) days prior written notice before any policy or policies shall be
altered.

     

    6.08.           Maintenance of
Property.

     

    In
addition to the requirements of any of the other Credit Documents, the Borrowers
shall (a) protect and preserve, or cause to be protected and preserved all
Borrowing Base Assets and maintain, or cause to be maintained, in good repair,
working order and condition all Borrowing Base Assets, ordinary wear and tear
excepted, and (b) from time to time make, or cause to be made, all needed and
appropriate repairs, renewals, replacements and additions to such Borrowing Base
Assets, so that the business carried on in connection therewith may be properly
and advantageously conducted at all times.

     

    6.09.           Performance of
Obligations.

     

    The
Credit Parties will pay and discharge at or before maturity, or prior to
expiration of applicable notice, grace and curative periods, all their
respective material obligations and liabilities, except where the same may be
contested in good faith by appropriate proceedings, and will maintain, in
accordance with GAAP, appropriate reserves for the accrual of any of the
same.

     

    6.10.           Visits and
Inspections.

     

    The
Borrowers (subject to applicable Facility Operating Leases and privacy rights of
residents), shall permit representatives or agents of any Lender or the
Administrative Agent, from time to time, and, if no Event of Default shall have
occurred and be continuing, after reasonable prior notice, but not more than
twice annually and only during normal business hours to: (a) visit and inspect
all Borrowing Base Assets to the extent any such right to visit or inspect is
within the control of such Person; (b) inspect and make extracts from their
respective books and records, including but not limited to management letters
prepared by independent accountants but excluding any private records of
residents; and (c) discuss with its principal

     

    


    
      
        
          
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    officers,
and its independent accountants, its business, properties, condition (financial
or otherwise), results of operations and performance.  If requested by
the Administrative Agent, the Parent or the Borrowers, as applicable, shall
execute an authorization letter addressed to its accountants authorizing the
Administrative Agent or any Lender to discuss the financial affairs of the
Parent or any Borrower with its accountants.

     

    6.11.           Use of Proceeds/Purpose of
Loan.

     

    The
Borrowers shall use the proceeds of the Loan only for the purpose of (i) on the
Closing Date to refinance existing Indebtedness of the Borrowers and (ii) on and
after the Closing Date to finance general corporate working capital (including
asset acquisitions and capital expenditures) or other corporate purposes of the
Borrowers and the other Credit Parties (to the extent not inconsistent with the
Credit Parties’ covenants and obligations under this Credit Agreement and the
other Credit Documents).

     

    6.12.           Financial
Covenants.

     

    (a)           Consolidated Fixed Charge
Coverage Ratio.  The Borrowers shall cause the Consolidated
Fixed Charge Coverage Ratio for any period of four consecutive calendar quarters
ending on the last day of any calendar quarter, to be equal to or greater than
1.20 to 1.00.

     

    (b)           Consolidated Tangible Net
Worth.  The Borrowers shall cause the Consolidated Tangible Net
Worth as of the end of any calendar quarter to be equal to or greater than
$800,000,000.

     

    6.13.           Environmental
Matters.

     

    (a)           The
Borrowers shall comply, and cause the Operators to comply, with all
Environmental Laws in respect of the Borrowing Base Assets.  The
Borrowers shall promptly take, or cause the Operators to take, all actions
necessary to prevent the imposition of any Liens on any of the Borrowing Base
Assets arising out of or related to any Environmental Laws.

     

    (b)           In
respect of any Borrowing Base Asset, if any of the Parent or any Borrower shall
(a) receive notice that any violation of any Environmental Law may have been
committed or is about to be committed by such Person, (b) receive notice that
any administrative or judicial complaint or order has been filed or is about to
be filed against the Parent or any Borrower alleging violations of any
Environmental Law or requiring any such Person to take any action in connection
with the release of any Hazardous Substance or (c) receive any notice from a
Governmental Authority or private party alleging that any such Person may be
liable or responsible for costs associated with a response to or cleanup of a
release of a Hazardous Substance or any damages caused thereby, the Parent or
the applicable Borrower shall provide the Administrative Agent with a copy of
such notice within ten (10) Business Days after the receipt thereof by the
Parent or any Borrower.  To the extent requested by the Administrative
Agent, any Borrower owning any Borrowing Base Asset or any Real Property Asset
which is proposed for qualification as such shall execute and deliver to the
Administrative Agent an environmental indemnity agreement with respect to
thereto in form and substance acceptable to the Administrative
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    6.14.           Single Purpose
Entity/Separateness.

     

    Each
Borrower represents, warrants and covenants as follows:

     

    (a)           Limited
Purpose.  The sole purpose conducted or promoted by each
Borrower is to engage in the following activities:

     

    (i)           to
acquire, own, hold, lease, operate, manage, maintain, develop and improve the
Borrowing Base Asset owned or leased by it (or an undivided interest therein)
and to contract for the operation, maintenance, management and development of
such Borrowing Base Asset;

     

    (ii)           to
enter into and perform its obligations under the Credit Documents;

     

    (iii)           to
sell, transfer, service, convey, dispose of, pledge, assign, borrow money
against, finance, refinance or otherwise deal with the Borrowing Base Assets to
the extent permitted under the Credit Documents; and

     

    (iv)           to
engage in any lawful act or activity and to exercise any powers permitted to
limited liability companies, limited partnerships or corporations organized
under the laws of the state in which the applicable Borrower was formed that are
related or incidental to and necessary, convenient or advisable for the
accomplishment of the above mentioned purposes.

     

    (b)           Limitations on Indebtedness,
Actions.  Notwithstanding anything to the contrary in the
Credit Documents or in any other document governing the formation, management or
operation of each Borrower, each Borrower shall not:

     

    (i)           other
than with respect to the Indebtedness permitted under Section 7.02(d)
and the pledge of its assets to secure the Indebtedness of the other Borrowers
hereunder, guarantee any obligation of any Person, including any Affiliate, or
become obligated for the debts of any other Person or hold out its credit as
being available to pay the obligations of any other Person;

     

    (ii)           engage,
directly or indirectly, in any business other than as required or permitted to
be performed under this Section;

     

    (iii)           incur,
create or assume any Indebtedness other than (A) the Loan and (B) unsecured
trade payables incurred in the ordinary course of its business that are related
to the ownership and operation of the Borrowing Base Assets and which shall
(1) not be evidenced by a note, and (2) be paid within sixty (60) days, and
(C) Indebtedness described in Section 7.02.

     

    (iv)           make
or permit to remain outstanding any loan or advance to, or own or acquire any
stock or securities of, any Person, except that Borrowers may invest in those
investments permitted under the Credit Documents;

     

    


    
      
        
          
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    (iv)           to
the fullest extent permitted by law, engage in any dissolution, liquidation,
consolidation, merger, sale or other transfer of any of its assets outside the
ordinary course of each Borrower’s business, except as permitted under Section 7.03.

     

    (v)           buy
or hold evidence of indebtedness issued by any other Person (other than cash or
investment-grade securities);

     

    (vi)           form,
acquire or hold any subsidiary (whether corporate, partnership, limited
liability company or other) or own any equity interest in any other
entity;

     

    (vii)           own
any asset or property other than the Borrowing Base Assets (or an undivided
interest therein) and incidental personal property necessary for the ownership
or operation of the Borrowing Base Assets; or

     

    (viii)           take
any Material Action without the unanimous written approval of all members or
partners of each Borrower.

     

    (c)           Separateness
Covenants.  In order to maintain its status as a separate
entity and to avoid any confusion or potential consolidation with any Affiliate,
each Borrower covenants that it will observe the following
covenants:

     

    (i)           maintain
books and records separate from those of any other Person;

     

    (ii)           maintain
its assets in such a manner that it is not costly or difficult to segregate,
identify or ascertain such assets;

     

    (iii)           comply
with all organizational formalities necessary to maintain its separate
existence;

     

    (iv)           hold
itself out to creditors and the public as a legal entity separate and distinct
from any other entity;

     

    (v)           maintain
separate financial statements, showing its assets and liabilities separate and
apart from those of any other Person;

     

    (vi)           other
than with respect to the consolidated tax returns of its Affiliates, prepare and
file its own tax returns separate from those of any Person to the extent
required by applicable law, and pay any taxes required to be paid by applicable
law;

     

    (vii)           allocate
and charge fairly and reasonably any common employee or overhead shared with
Affiliates;

     

    (viii)           not
enter into any transaction with Affiliates except as permitted under Section 7.06 and
except on an arm’s-length basis on terms which are intrinsically fair and no
less favorable than would be available for unaffiliated third parties, and
pursuant to written, enforceable agreements;

     

    (ix)           conduct
business in its own name;

     

    


    
      
        
          
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    (x)           not
commingle its assets or funds with those of any other Person, other than as (A)
permitted or required by this Agreement and (B) contemplated by the Parent Cash
Management System;

     

    (xi)           not
assume, guarantee or pay the debts or obligations of any other Person, other
than with respect to the pledge of its assets to secure the indebtedness of the
other Borrowers hereunder and as described in Section 7.02(d).

     

    (xii)           correct
any known misunderstanding as to its separate identity;

     

    (xiii)           not
permit any Affiliate to guarantee or pay its obligations (other than limited
guarantees, indemnities and pledge of assets set forth in the Credit Documents
and in the Hazardous Materials Indemnity Agreement) and as permitted under Section 7.06;

     

    (xiv)           not
make loans or advances to any other Person except as contemplated by the Parent
Cash Management System;

     

    (xv)           pay
its liabilities and expenses out of and to the extent of its own funds or from
advances permitted under Section 7.06;

     

    (xvi)           maintain
a sufficient number of employees in light of its contemplated business purpose
and pay the salaries of its own employees, if any, only from its own funds or
from advances permitted under Section
7.06;

     

    (xvii)           maintain
adequate capital in light of its contemplated business purpose, transactions and
liabilities; provided, however, that the foregoing shall not require any equity
owner to make additional capital contributions to any Borrower; and

     

    (xviii)           cause
the managers, officers, employees, agents and other representatives of each
Borrower to act at all times with respect to such Borrower consistently and in
furtherance of the foregoing and in the best interests of such
Borrower.

     

    Failure
of any Borrower to comply with any of the foregoing covenants or any other
covenants contained in this Agreement shall not affect the status of such
Borrower as a separate legal entity.

     

    6.15.           New
Borrowers.

     

    Upon the
acquisition, incorporation or other creation of any direct or indirect
Subsidiary of the Parent which owns or is to own a Borrowing Base Asset or the
determination that any Real Property Asset owned by a Subsidiary is to become a
Borrowing Base Asset, the Borrowers shall (i) cause such Subsidiary to become a
Borrower hereunder through the execution and delivery to the Administrative
Agent of a Borrower Joinder Agreement on or before the earlier of (A) the date
on which a Real Property Asset owned by such Subsidiary is included in any
calculation (pro forma or otherwise) of the Borrowing Base Amount and (B) the
deadline for the delivery of the next Compliance Certificate pursuant to Section 6.02(a),
and (ii) cause such Subsidiary to deliver such other documentation as the
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    connection
with the foregoing, including, without limitation, certified resolutions and
other organizational and authorizing documents of such Subsidiary, favorable
opinions of counsel to such Subsidiary (which shall cover, among other things,
the legality, validity, binding effect and enforceability of the documentation
referred to above), all in form, content and scope reasonably satisfactory to
the Administrative Agent.

     

    6.16.           Pledged
Assets.

     

    The
Borrowers shall at all times subject all Borrowing Base Assets and all of their
respective personal property to first priority Liens (subject in any case to
Permitted Liens which by operation of law or contract would have priority over
the Liens securing the Obligations) in favor of the Administrative Agent to
secure the Obligations pursuant to the terms and conditions of the Credit
Documents and such other additional security documents as the Administrative
Agent shall reasonably request, and deliver all Borrowing Base Asset
Deliverables (and any updates to any of the information or materials delivered
as a portion thereof) and such other documentation as the Administrative Agent
may reasonably request in connection with the foregoing, all in form, content
and scope reasonably satisfactory to the Administrative Agent.  In
furtherance of the Borrowers’ obligations under this Section 6.16,
each of the Borrowers hereby agree that they shall, from time to time, at their
own expense, promptly execute, deliver, file and/or record all further
instruments and documents, and take all further action, that may be necessary or
desirable, or that the Administrative Agent may reasonably request (including,
without limitation, the procurement of landlord consents with respect to the
assignment of the applicable Borrower’s interests in any Borrowing Base Assets),
in order to (a) properly evidence the Borrowers’ Obligations hereunder or under
any Credit Document or (b) perfect, continue and protect the Liens and security
interests granted or purported to be granted by any Collateral Documents and to
enable the Administrative Agent to exercise and enforce its rights and remedies
hereunder and under any other Credit Document with respect to any
Collateral.  The applicable Borrower(s) shall promptly deliver to the
Administrative Agent a copy of each such instrument and evidence of its proper
filing or recording, as necessary or desirable.

     

    6.17.           Appraisals.

     

    The
Borrowers agree that the Administrative Agent shall have the right, once prior
to the Maturity Date (but to the extent no Default or Event of Default has
occurred and is continuing, not during the six (6) month period immediately
prior to the Maturity Date), to request appraisals with respect to the Borrowing
Base Assets, that the Administrative Agent shall engage all appraisers with
respect to such appraisals and that the Borrowers shall pay or reimburse to the
Administrative Agent all reasonable and documented costs and expenses associated
therewith to the extent required by and subject to the provisions of Section 10.04
hereof.

     

    6.18.           Anti-Terrorism
Laws.

     

    None of
the Credit Parties nor any of their respective Consolidated Subsidiaries (i)
will conduct any business or will engage in any transaction or dealing with any
Prohibited Person, including making or receiving any contribution of funds,
goods or services to or for the benefit of any Prohibited Person, (ii) will deal
in, or will engage in any transaction relating to, any property or interests in
property blocked pursuant to the Executive Order; or (iii) will engage
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    or will
conspire to engage in any transaction that evades or avoids, or has the purpose
of evading or avoiding, or attempts to violate, any of the prohibitions set
forth in the Executive Order or the Patriot Act.  Each Borrower
covenants and agrees to execute and/or deliver to Administrative Agent any
certification or other evidence requested from time to time by Administrative
Agent in its sole discretion, confirming such Borrower’s compliance with this
Section including, without limitation, any documentation which is necessary for
ongoing compliance with any anti-money laundering Laws applicable to any
Lender.

     

    6.19.           Compliance With Material
Contracts.

     

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

     

    6.20.           Health Care
Covenants.

     

    Without
limiting the generality of the provisions of Section 6.05, each
Borrower hereby represents, covenants and agrees as follows:

     

    (a)           If
and to the extent required under applicable Laws, each Borrower shall, and shall
cause each Operator to, maintain in full force and effect a valid certificate of
need (“CON”) or
similar certificate, license, or approval issued by the State Regulator for the
requisite number of Senior Housing Units (other than the independent living
units) in the Borrowing Base Assets, and a provider agreement or other required
documentation of approved provider status for each provider payment or
reimbursement program, if applicable.  Each Borrower shall, and shall
cause each Operator to, operate the Borrowing Base Assets in a manner such that
the Licenses shall remain in full force and effect.  True and complete
copies of the Licenses have been delivered to Lender.

     

    (b)           The
Licenses:

     

    (i)           Are
not now and will not be (A) transferred to any location other than the
applicable Borrowing Base Asset or (B) pledged as collateral security for any
loan or indebtedness, other than the Loan; and

     

    (ii)           Shall
continue in full force and effect throughout the term of the Credit Facility and
will remain free from restrictions or known conflicts, and shall not be
provisional, probationary or restricted in any manner which would materially
impair the use or operation of the applicable Borrowing Base Asset as a skilled
nursing facility, assisted living facility, memory care facility, or senior
independent living facility, as applicable.

     

    (c)           The
Borrowers shall not do, and shall not permit any Operator to do (or suffer to be
done), any of the following with respect to the Borrowing Base
Assets:

     

    


    
      
        
          
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    (i)           Rescind,
withdraw, revoke, or amend the number of Senior Housing Units permitted under
the Licenses or otherwise amend the Licenses in such a manner that results in a
Material Adverse Effect on the rates charged or otherwise diminish or impair the
nature, tenor or scope of the Licenses or which could in any way be
reasonably  expected to materially impair the use or operation of the
applicable Borrowing Base Asset as a skilled nursing facility, assisted living
facility, memory care facility, or senior independent living facility, as
applicable;

     

    (ii)           Replace
or transfer all or any part of any Borrowing Base Asset’s licensed beds or CON
to another site or location other than another Borrowing Base
Asset;

     

    6.21.           Public Company
Status.

     

    The
Parent shall, at all times during the term hereof, maintain its status as a
publicly traded company whose shares are or are intended to be listed on the New
York Stock Exchange or such other nationally recognized stock
exchange.

    


    6.22.           Use and Application of
Insurance Proceeds.

     

    (a)           Notice; Repair
Obligation.  If any Borrowing Base Asset shall be damaged or
destroyed, in whole or in part, by fire or other casualty (a “Casualty”),
the Borrowers shall give prompt notice thereof to the Administrative
Agent.  Following the occurrence of a Casualty, the Borrowers,
regardless of whether insurance proceeds are available, shall promptly proceed
to restore, repair, replace or rebuild the same to be of at least equal value
and of substantially the same character as prior to such damage or destruction,
all to be effected in accordance with applicable law.

     

    (b)           Application of Insurance
Proceeds.  The Administrative Agent shall apply insurance
proceeds to costs of restoring the applicable Borrowing Base Asset or to the
payment of the Loan as follows:

     

    (i)           if
the loss is less than or equal to the Restoration Threshold, the Administrative
Agent shall apply the insurance proceeds to restoration provided (A) no Event of
Default exists, and (B) the applicable Borrower who owns the affected Borrowing
Base Asset promptly commences and is diligently pursuing restoration of the
applicable Borrowing Base Asset;

     

    (ii)           if
the loss exceeds the Restoration Threshold, the Administrative Agent shall apply
the insurance proceeds to restoration provided that (A) at all times during such
restoration no Event of Default exists; (B) the Administrative Agent determines
throughout the restoration that there are sufficient funds available to restore
and repair the affected Borrowing Base Asset to a condition approved by the
Administrative Agent; (C) the Administrative Agent determines that the revenues
from the affected Borrowing Base Asset and the other Borrowing Base Assets
during restoration, taking into account rent loss or business interruption
insurance, will be sufficient to pay debt service on the Loan; (D) the
Administrative Agent determines that the ratio of the outstanding principal
balance of the Loan to appraised value of the affected Borrowing Base Asset and
other Borrowing Base Assets after restoration will not exceed the loan-to-value
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    existed
on the Closing Date; (E) the Administrative Agent determines that restoration
and repair of the affected Borrowing Base Asset to a condition approved by the
Administrative Agent will be completed within nine (9) months after the date of
loss or casualty and in any event at least ninety (90) days prior to the
Maturity Date; (F) the applicable Borrower promptly commences and is diligently
pursuing restoration of the Borrowing Base Asset; and (G) the affected Borrowing
Base Asset after the restoration will be in compliance with and permitted under
all applicable Laws, including zoning, building and land use laws, rules,
regulations and ordinances; and

     

    (iii)           if
the conditions set forth in (i) and (ii) above are not satisfied, in the
Administrative Agent’s reasonable discretion, the Administrative Agent may apply
any insurance proceeds it may receive to Obligations owing under the Credit
Documents in such order and manner as the Administrative Agent in its sole
discretion determines, or allow all or a portion of such proceeds to be used for
the restoration of the affected Borrowing Base Asset.

     

    (c)           Disbursement of Insurance
Proceeds.  Insurance proceeds applied to restoration will be
disbursed by the Administrative Agent on receipt of reasonably satisfactory
plans and specifications, contracts and subcontracts, schedules, budgets, lien
waivers and architects’ certificates, and otherwise in accordance with prudent
commercial construction lending practices for construction loan advances
(including appropriate retainages to ensure that all work is completed in a
workmanlike manner).

     

    6.23.           Condemnation
Awards.

     

    The
Borrowers shall promptly give the Administrative Agent written notice of the
actual or threatened commencement of any condemnation or eminent domain
proceeding affecting any Borrowing Base Asset (a “Condemnation”)
and shall deliver to the Administrative Agent copies of any and all papers
served in connection with such Condemnation.  Following the occurrence
of a Condemnation, the Borrower that owns the affected Borrowing Base Asset,
regardless of whether any award or compensation (an “Award”) is
available, shall promptly proceed to restore, repair, replace or rebuild the
same to the extent practicable to be of at least equal value and of
substantially the same character as prior to such Condemnation, all to be
effected in accordance with applicable Law.  The Administrative Agent
may participate in any such proceeding and the Borrowers will deliver to the
Administrative Agent all instruments necessary or required by the Administrative
Agent to permit such participation.  Without the Administrative
Agent’s prior consent, the Borrowers (a) shall not agree to any Award, and (b)
shall not take any action or fail to take any action which would cause the Award
to be determined.  All Awards for the taking or purchase in lieu of
condemnation of any Borrowing Base Asset or any part thereof are hereby assigned
to and shall be paid to the Administrative Agent.  The Administrative
Agent is hereby irrevocably appointed as each Borrower’s attorney-in-fact,
coupled with an interest, with exclusive power to collect, receive and retain
any Award and to make any compromise or settlement in connection with any such
Condemnation and to give proper receipts and acquittances therefor, and in the
Administrative Agent’s sole discretion to apply the same toward the payment of
the Loan, notwithstanding that the Loan may not then be due and payable, or to
the restoration of the affected Borrowing Base Asset; provided, however, if the
Award is less than or equal to $100,000 and the Borrowers request that such
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    structural
site improvements (such as landscape, driveway, walkway and parking area
repairs) required to be made as a result of such Condemnation, the
Administrative Agent will apply the Award to such restoration in accordance with
disbursement procedures applicable to insurance proceeds provided there exists
no Default or Event of Default.  The Borrowers, upon request by the
Administrative Agent, shall execute all instruments requested to confirm the
assignment of the Award to the Administrative Agent, free and clear of all
liens, charges or encumbrances.  Anything herein to the contrary
notwithstanding, if a Default or an Event of Default exists, the Administrative
Agent is authorized to adjust such Award without the consent of the Borrowers
and to collect such Award in the name of the Administrative Agent and the
Borrowers.

     

    6.24.           Cash
Management System.

     

    Borrowers
covenant and agree that all revenue from the operations of the Borrowing Base
Assets will be deposited on a daily basis into either the Portfolio General
Receivables Account or the Third Party Payor Receivables Accounts, both of which
accounts will be subject to a Blocked Account Agreement. Funds in the Third
Party Payor Receivables Account will be swept on a daily basis into the
Portfolio General Receivables Account, and all funds in the Portfolio General
Receivables Account will then be swept on a daily basis into the Parent Sweep
Account.  All expenses of each Borrowing Base Asset will be paid
directly from Parent Sweep Account or other Parent accounts.  All cash
swept to the Parent Sweep Account from a Borrowing Base Asset and remaining
after payment of expenses of such Borrowing Base Asset shall be reflected in the
accounting records of Parent and its Subsidiaries with respect to such Borrowing
Base Asset as “due from Parent”, and all amounts by which expenses paid with
respect to a Borrowing Base Asset exceed cash swept to the Parent Sweep Account
from such Borrowing Base Asset shall be reflected in the accounting records of
Parent and its Subsidiaries with respect to such Borrowing Base Asset as “due to
Parent.”  Borrowers will not modify the cash management system
described in this Section 6.24 (“Parent Cash
Management System”) without the prior written consent of Administrative
Agent.

     

    ARTICLE
VII

    NEGATIVE
COVENANTS

     

    The
Borrowers hereby covenant and agree (on their own behalf and on behalf of the
Parent, as applicable) that until the Obligations, together with interest, fees
and other obligations hereunder, have been paid in full and the Commitments
hereunder shall have terminated:

     

    7.01.           Liens.

     

    No
Borrower shall, at any time, create, incur, assume or suffer to exist any Lien
upon any of its assets or revenues, whether now owned or hereafter acquired,
other than Permitted Liens.  The Parent shall not create, or permit
the creation of, any Lien upon the Capital Stock of any Borrower.

     

    7.02.           Indebtedness.

     

    No
Borrower shall create, incur, assume or suffer to exist any Indebtedness,
except:

     

    


    
      
        
          
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    (a)           Indebtedness
under the Credit Documents;

     

    (b)           Indebtedness
of the Borrowers set forth in Schedule 7.02
(and renewals, refinancings and extensions thereof on terms and conditions no
less favorable to such Person than such existing Indebtedness);

     

    (c)           unsecured
intercompany Indebtedness of any Borrower to any Credit Party; provided, that
such Indebtedness shall be expressly subordinate in all respects to the
Obligations on terms reasonably acceptable to the Administrative
Agent;

     

    (d)           Indebtedness
of the Borrowers under equipment leasing or financing arrangements for use at
the Borrowing Base Assets, provided such Indebtedness shall not exceed (i)
$100,000 for any Borrowing Base Asset with fewer than 150 units and (ii)
$200,000 for any Borrowing Base Asset with 150 or more units.

     

    7.03.           Fundamental
Changes.

     

    No
Borrower shall merge, dissolve, liquidate, consolidate with or into another
Person, provided, that,
notwithstanding the foregoing provisions of this Section 7.03,
any Consolidated Party which is not a Borrower may be merged or consolidated
with or into any Borrower provided that such Borrower shall be the continuing or
surviving entity and such Borrower must continue to satisfy the requirements of
Section 6.14.

     

    7.04.           Dispositions;
Acquisitions.

     

    (a)           The
Borrowers shall not make any sale, lease, transfer or other Disposition of
(i) any Borrowing Base Asset, except to the extent permitted pursuant to
Section 7.12
hereof; or (ii) any material assets of the Borrowers unless (A) such sale,
lease, transfer or other Disposition is performed in the ordinary course of the
Borrowers’ Businesses or (B) the consideration paid in connection with such
material assets (1) is in cash or Cash Equivalents, (2) is in an amount not less
than the fair market value of the Property disposed of and (3) does not exceed,
in the aggregate during any calendar year (for the all Borrowers and all such
sales, leases, transfers or other Dispositions) $500,000.  The Parent
shall not, in any case, transfer, sell, lease, pledge or otherwise Dispose of
the Capital Stock of the Borrowers held by it without the prior written consent
of the Administrative Agent (which consent may be granted or withheld in the
sole discretion of the Administrative Agent).

     

    (b)           The
Borrowers shall not, without the prior written consent of the Administrative
Agent (which consent may be granted or withheld in the sole discretion of the
Administrative Agent), make any Investments or otherwise acquire any material
real or personal property other than: (i) acquisitions of personal property in
the ordinary course of business to the extent required to continue to operate
the Borrowers’ Businesses in the manner in which they are currently being
operated, (ii) investments in cash or Cash Equivalents, (iii) investments
in Borrowing Base Assets and (iv) the amounts reflected as “due from Parent” on
accounting records in connection with the operation of the Parent Cash
Management System.

     

    


    
      
        
          
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    7.05.           Business
Activities.

     

    No
Borrower shall engage in any business activities other than owning, holding,
leasing, operating, developing, managing, improving and providing secured
financing for real and personal property and similar interests in leasehold
properties which are owned by or net leased to healthcare operators for use as
Healthcare Facilities and activities incidental thereto.

     

    7.06.           Transactions with Affiliates
and Insiders.

     

    No
Borrower shall, at any time, enter into or permit to exist any transaction or
series of transactions with any officer, director or Affiliate of such Borrower
other than (a) advances by such Person of working capital to any such Borrower,
(b) transfer of assets to any Borrower, provided such transfer is made without
obligation on the receiving Borrower to return the assets transferred,
(c) intercompany transactions expressly permitted by Section 7.02,
Section 7.03 or
Section 7.04 and
under the Parent Cash Management System, (d) normal compensation and
reimbursement of expenses of officers and directors and (e) except as otherwise
specifically limited in this Credit Agreement, other transactions which are
entered into in the ordinary course of such Borrower’s business on terms and
conditions substantially as favorable to such Borrower as would be obtainable by
it in a comparable arms-length transaction with a Person other than an officer,
director or Affiliate.

     

    7.07.           Organization Documents;
Fiscal Year.

     

    No Credit
Party shall (a) amend, modify or change its organization documents in a manner
adverse to the Lenders or (b) change its fiscal year.

     

    7.08.           Modifications to Other
Documents.

     

    The
Borrowers shall not, without the prior written consent of the Required Lenders
enter into any material amendment or modification or cancel or terminate any
Material Contract (subject to the provisions of this Section 7.08 with
respect to Facility Operating Leases) prior to its stated
maturity.  Notwithstanding the foregoing, with respect to any Facility
Operating Lease, the Borrowers may amend or modify or permit the amendment or
modification of any Facility Operating Lease without the Required Lenders’ prior
written consent, except to the extent such amendment or
modification:  (a) decreases the rent or any other monetary
obligations under any Facility Operating Lease (except as set forth in the
proviso to this sentence); (b) shortens the term of any Facility Operating
Lease; (c) releases or limits the liability of any guarantor under any
Facility Operating Lease; (d) releases any security deposits or letters of
credit or any other security or collateral under any Facility Operating Lease or
under any guaranty of or pledge or security agreement in respect of any Facility
Operating Lease; (e) consents to the assignment, delegation or other
transfer of rights and obligations under any Facility Operating Lease; (f)
changes the terms of any purchase option under any Facility Operating Lease,
including the purchase price or the time during which such option may be
exercised; or (g) makes any other material change to the terms and
conditions of any Facility Operating Lease or increases in any material respect
the obligations or liabilities of the applicable Borrower thereunder; provided,
however, that to the extent such amendment, modification or restructuring of a
Facility Operating Lease involves the replacement of an Operating Tenant, (A)
the Borrowers shall have

     

    


    
      
        
          
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    delivered
to the Lenders and the Administrative Agent (1) the identity of such proposed
new tenant (the “New
Tenant”), (2) the proposed lease with such New Tenant (the “New
Lease”) and (3) such other information as reasonably requested and (B)
provided that (1) such New Tenant is an Eligible Tenant, (2) the New Lease
provides for rent payments in each year which are at least eighty percent (80%)
of the rent payments in each year due under the lease being amended, modified or
replaced (the “Existing Facility
Operating Lease”) and (3) the New Lease is otherwise substantially
similar in all material respects to the Existing Facility Operating Lease, then
within twenty (20) Business Days after receiving the foregoing information from
the Borrowers, with a request that the Required Lenders approve the New Tenant
and New Lease and which prominently states on the face of the request that it
will be deemed approved if not approved or disapproved within twenty (20)
Business Days after receipt by Administrative Agent, if the Required Lenders
have not either approved or disapproved such proposal, the Required Lenders
shall be deemed to have approved such proposal.

     

    7.09.           Ownership of
Subsidiaries.

     

    Notwithstanding
any other provisions of this Credit Agreement to the contrary, (a) no Borrower
shall own any Capital Stock of any other entity; (b) no Person other than the
Parent or its Wholly Owned Subsidiaries shall own any Capital Stock of any
Borrower; and (c) no Borrower shall permit the creation, incurrence, assumption
or existence of any Lien on any Capital Stock of any Borrower.

     

    7.10.           No Further Negative
Pledges.

     

    No
Borrower will enter into, assume or become subject to any Negative Pledges or
agreement prohibiting or otherwise restricting the existence of any Lien upon
any of its property in favor of the Administrative Agent (for the benefit of the
Lenders) for the purpose of securing the Obligations, whether now owned or
hereafter acquired, or requiring the grant of any security for any obligation if
such property is given as security for the Obligations, except (a) in connection
with any Permitted Lien or any document or instrument governing any Permitted
Lien, provided that any such restriction contained therein relates only to the
asset or assets subject to such Permitted Lien, and (b) pursuant to customary
restrictions and conditions contained in any agreement relating to the sale of
any property permitted under Section 7.04,
pending the consummation of such sale.

     

    7.11.           Limitation on Restricted
Actions.

     

    The
Borrowers will not directly or indirectly, create or otherwise cause or suffer
to exist or become effective any encumbrance or restriction on the ability of
any such Person to (a) pay dividends or make any other distributions to the
Parent on its Capital Stock or with respect to any other interest or
participation in, or measured by, its profits, (b) pay any Indebtedness or other
obligation owed to any Credit Party, (c) make loans or advances to any Credit
Party, (d) sell, lease or transfer any of its properties or assets to any Credit
Party, or (e) act as a Borrower and pledge its assets pursuant to the Credit
Documents or any renewals, refinancings, exchanges, refundings or extension
thereof, except (in respect of any of the matters referred to in
clauses (a)-(d) above) for such encumbrances or restrictions existing under
or by reason of (i) this Credit Agreement and the other Credit Documents, (ii)
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    any
documentation or instrument governing any Lien permitted under Section 7.01
provided that any such restriction contained therein relates only to the asset
or assets subject to such Lien.

     

    7.12.           Addition/Replacement of
Borrowing Base Assets.

     

    (a)           The
Borrowers shall not request a release of any Borrowing Base Assets from the
Liens established pursuant to the applicable Mortgage Instrument and Assignment
of Leases with respect thereto or add any Real Property Assets as Borrowing Base
Assets hereunder except in accordance with the following:

     

    (i)           The
Borrowers may at any time include additional Real Property Assets (which satisfy
the requirements set forth in the definition of Borrowing Base Assets,
including, without limitation, delivery of each of the Borrowing Base Asset
Deliverables with respect thereto) as Borrowing Base Assets with the written
approval of the Administrative Agent.

     

    (ii)           The
Borrowers may obtain releases of Borrowing Base Assets from the Liens and
security interests of the Administrative Agent hereunder and under the
Collateral Documents relating thereto through satisfaction of each of the
following conditions:  (A) the applicable Borrower shall deliver
to the Administrative Agent, not less than thirty (30) days prior to the date of
such requested release a written request for release of the applicable Borrowing
Base Asset, (B) the applicable Borrower shall deliver, together with such
request for release, a pro forma Compliance Certificate showing that, on a pro
forma basis, after giving effect to such release, (1) all financial covenants
contained herein shall be satisfied and (2) the outstanding principal amount of
Obligations shall not exceed the lesser of the Aggregate Committed Amount and
the Borrowing Base Amount (after giving effect to the removal of such Borrowing
Base Asset from the calculation of the Borrowing Base Amount or Borrowers shall
pay to Administrative Agent an amount necessary to make such statement true (the
“Release
Price”)), (C) a Responsible Officer of the Borrowers shall certify in
writing to the Administrative Agent that no Default or Event of Default shall
exist immediately after giving effect to the applicable release and (D) the
Administrative Agent shall have received evidence, acceptable to it in its
discretion that the matters set forth in such request, Compliance Certificate
and certification are true and correct in all material respects.  To
the extent all such conditions to release are satisfied, including the payment
of the Release Price, the Administrative Agent will, at the Borrowers’ expense,
deliver to the applicable Borrower a partial release letter in the form of Exhibit I
attached hereto.

     

    (b)           The
Borrowers shall not otherwise actively cause or willfully fail to take any
commercially reasonable action that causes any Borrowing Base Asset to fail to
qualify as such during the term of this Credit Agreement.

     

    (c)           Immediately
upon a Responsible Officer of any Borrower obtaining knowledge that a Borrowing
Base Asset fails to qualify as such, Borrowers shall deliver a pro forma
Borrowing Base Certificate (which certificate shall include an update to the
information set forth on Schedule 5.12)
demonstrating that, upon giving effect to the removal of the Collateral
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    or
Availability Amount attributable to such former Borrowing Base Asset from the
calculation of the Borrowing Base Amount, the Borrowers shall be in compliance
with Section 2.01(a)
hereof.

     

    (d)           The
Borrowers shall not include any Real Property Asset as a Borrowing Base Asset on
any schedule, Borrowing Base Certificate or Compliance Certificate delivered in
connection with this Credit Agreement unless (i) such Real Property Asset meets
the definition of Borrowing Base Asset and Borrowers have otherwise satisfied
the requirements set forth in this Agreement and (ii) such Real Property Asset
continues to qualify as a Borrowing Base Asset as of the date of such
inclusion.

     

    ARTICLE
VIII

    EVENTS OF DEFAULT AND
REMEDIES

     

    8.01.           Events of
Default.

     

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

     

    (a)           Non-Payment.  The
Borrowers or any other Credit Party fails to pay when and as required to be paid
herein (i) any amount of principal of the Loan when due, (ii) within five (5)
days after the same becomes due, any interest on the Loan or any Unused Fee,
(iii) within ten (10) Business Days after the earlier of (A) a Responsible
Officer of the Parent or any Borrower becoming aware that the same has become
due or (B) written notice from the Administrative Agent to the Borrowers, any
other fee payable herein or any other amount payable herein or under any other
Credit Document becomes due, or (iv) the Obligations at the Maturity Date,
whether by acceleration or otherwise; or

     

    (b)           Specific
Covenants.  The Borrowers fail to perform or observe any term,
covenant or agreement contained in (i) any of Sections 6.01 6.02 or 6.10 within ten (10)
Business Days after the same becomes due or required or (ii) any of Sections 6.07,
6.11, 6.12, 6.14, 6.15 or Sections 7.02,
7.03, 7.05, 7.07, 7.09 through 7.12; or

     

    (c)           Other
Defaults.  Any Credit Party fails to perform or observe any
other covenant or agreement (not specified in subsection (a) or (b) above)
contained in any Credit Document on its part to be performed or observed and
such failure continues for thirty (30) days after the earlier of (i) a
Responsible Officer of the Parent or any Borrower becoming aware of such default
or (ii) written notice thereof by the Administrative Agent to the Borrowers (or,
if such failure cannot be reasonably cured within such period, sixty (60) days,
so long as the applicable Credit Party has diligently commenced such cure and is
diligently pursuing completion thereof); or

     

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

     

    


    
      
        
          
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    (e)           Cross-Default.  (i) Any
Borrower (A) fails to perform or observe (beyond the applicable grace or cure
period with respect thereto, if any) any Contractual Obligation, (B) fails to
make any payment when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise and beyond the applicable grace or cure
period with respect thereto, if any) in respect of any Indebtedness (other than
Indebtedness hereunder) or otherwise fails to observe or perform any other
agreement or condition relating to any such Indebtedness or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other
event occurs, the effect of which event of default is to cause, or to permit the
holder or holders of such Indebtedness (or a trustee or agent on behalf of such
holder or holders) to cause, with the giving of notice if required, such
Indebtedness to be demanded or to become due or to be repurchased, prepaid,
defeased or redeemed (automatically or otherwise), or an offer to repurchase,
prepay, defease or redeem such Indebtedness to be made, prior to its stated
maturity, or cash collateral in respect thereof to be demanded, in each case to
the extent such Contractual Obligation or Indebtedness or other obligation is in
an amount (including undrawn committed or available amounts and including
amounts owing to all creditors under any combined or syndicated credit
arrangement) of more than the Threshold Amount or (ii) there occurs a “default”
or an “event of default” (as such terms are defined in the Facility Operating
Leases) under any Facility Operating Lease; or

     

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

     

    (g)           Inability to Pay Debts;
Attachment.  (i) The Parent or any Borrower becomes unable or
admits in writing its inability or fails generally to pay its debts as they
become due, or (ii) any writ or warrant of attachment or execution or similar
process in an amount in excess of the Threshold Amount is issued or levied
against all or any material part of the properties of the Parent or any Borrower
and is not released, vacated or fully bonded within sixty (60) days after its
issue or levy; or

     

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

     

    (i)           ERISA.  (i)
An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which
has resulted or could reasonably be expected to result in liability of a
Borrower 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) a
Borrower 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

     

    (j)           Invalidity of Credit
Documents; Guaranty.  (i) Any Credit Document, at any time
after its execution and delivery and for any reason other than as expressly
permitted hereunder or as a result of satisfaction in full of all the
Obligations or as a result of the Administrative Agent’s failure to record
and/or file where and/or when appropriate any Collateral Documents or any
continuation statements, ceases to be in full force and effect; or any Credit
Party contests in any manner the validity or enforceability of any Credit
Document; or any Credit Party denies that it has any or further liability or
obligation under any Credit Document, or purports to revoke, terminate or
rescind any Credit Document; (ii) the Guaranty or the Hazardous Materials
Indemnity Agreement shall cease to be in full force and effect, or the Guarantor
shall deny or disaffirm its obligations under such Guaranty or Hazardous
Materials Indemnity Agreement, or any Guarantor shall default in the due
performance or observance of any term, covenant or agreement on its part to be
performed or observed pursuant to the Guaranty or Hazardous Materials Indemnity
Agreement; or (iii) any Facility Operating Lease shall cease to be in full force
and effect, or the Operating Tenant shall deny or disaffirm such Operating
Tenant’s obligations under such Facility Operating Lease; or (iv) any of the
Eligible Ground Leases shall be terminated by the ground lessor thereunder or
otherwise cease to be in full force and effect by action of the ground lessor
thereunder; or

     

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

     

    8.02.           Remedies Upon Event of
Default.

     

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

     

    (a)           declare
the commitment of each Lender to make Advances to be terminated, whereupon such
commitments and obligation shall be terminated;

     

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

     

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

     

    


    
      
        
          
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    provided,
however, that upon the occurrence of an Event of Acceleration, the obligation of
each Lender to make Advances shall automatically terminate, the unpaid principal
amount of the Loan and all interest and other amounts as aforesaid shall
automatically become due and payable without further act of the Administrative
Agent or any Lender.

     

    8.03.           Application of
Funds.

     

    After the
exercise of remedies in accordance with the provisions of Section 8.02 (or
after the Loan has automatically become immediately due and payable as set forth
in the proviso to Section 8.02),
any amounts received on account of the Obligations shall be applied by the
Administrative Agent in the following order:

     

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

     

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

     

    Third, to payment of
that portion of the Obligations constituting accrued and unpaid interest on the
Loan, 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 Loan,
ratably among such parties 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 indefeasibly paid in full, to the
Borrowers or as otherwise required by Law.

     

    8.04.           Administrative Agent’s Right
to Perform the Obligations.

     

    Upon the
occurrence of an Event of Default and during continuation thereof, then, without
waiving or releasing any other right, remedy or recourse the Administrative
Agent or Lenders may have because of such Event of Default, the Administrative
Agent may (but shall not be obligated to) make such payment or perform any act
required of the Borrowers under this Agreement for the account of and at the
expense of the Borrowers, and shall have the right to enter upon the Borrowing
Base Assets for such purpose and to take all such action thereon and with
respect to the Borrowing Base Assets as it may deem necessary or
appropriate.  The Borrowers shall indemnify, defend and hold the
Administrative Agent and Lenders harmless from and against any and all losses,
liabilities, claims, damages, expenses, obligations, penalties, actions,
judgments, suits, costs, or disbursements of any kind or nature whatsoever,
including reasonable attorneys’ fees, incurred or accruing by reason of any acts
performed by the Administrative Agent pursuant to the provisions of this Section  8.04,
including those arising from the joint, concurrent, or comparative negligence of
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    result of
the Administrative Agent’s and/or Lenders’ gross negligence or willful
misconduct.  All sums paid by the Administrative Agent pursuant to
this Section
8.04, and all other sums expended by the Administrative Agent to which it
shall be entitled to be indemnified pursuant to this Section 8.04,
together with interest thereon at the Default Rate from the date of such payment
or expenditure until paid, shall constitute additions to the Obligations, shall
be secured by the Credit Documents and shall be paid by the Borrowers to the
Administrative Agent upon demand.

     

    8.05.           Special
Cure Right.

     

    Notwithstanding
anything contained in this Article 8 to the contrary, if there occurs an Event
of Default with respect to a particular Borrowing Base Asset  (the
“Defaulting
Asset”) or the Borrower who owns such Defaulting Asset (the “Defaulting
Borrower”), then absent any other continuing Event of Default hereunder,
such Event of Default with respect to the Defaulting Asset shall not constitute
an “Event of Default” hereunder subject to satisfaction of each of the
following:

     

    (a)           Borrowers
shall within five (5) days following such Event of Default deliver to
Administrative Agent a pro forma Compliance Certificate showing, on a pro forma
basis (after giving effect to the removal of the Defaulting Asset(s) from such
calculation) (i) the Borrowing Base Amount, and (ii) the Debt
Yield.

     

    (b)           If
the calculation of the Debt Yield is below 10%, Borrowers shall (i) within ten
(10) days following the occurrence of such Event of Default, pay to the
Administrative Agent a prepayment of principal in an amount necessary to achieve
a Debt Yield of not less than 10.0% and (ii) within thirty (30) days following
the occurrence of such Event of Default, cure the Event of Default to the
satisfaction of Administrative Agent or pay to the Administrative Agent a
prepayment of principal in an amount necessary to reduce the Principal
Obligations to an amount that does not exceed the Borrowing Base Amount
(excluding for purposes of such calculation, the Defaulting
Asset(s)).

     

    (c)           If
the calculation of the Debt Yield is above 10%, Borrowers shall within thirty
(30) days following the occurrence of such Event of Default, cure the Event of
Default to the satisfaction of Administrative Agent or pay to the Administrative
Agent a prepayment of principal in an amount necessary to reduce the Principal
Obligations to amount that does not exceed the Borrowing Base Amount (excluding
for purposes of such calculation, the Defaulting Asset(s)).

     

    ARTICLE
IX

    ADMINISTRATIVE
AGENT

     

    9.01.           Appointment and
Authorization of Administrative Agent.

     

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

     

    9.02.           Delegation of
Duties.

     

    The
Administrative Agent may execute any of its duties under this Credit Agreement
or any other Credit Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel and other
consultants or experts concerning all matters pertaining to such
duties.  The Administrative Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects in the
absence of gross negligence or willful misconduct.

     

    9.03.           Liability of Administrative
Agent.

     

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

     

    9.04.           Reliance by Administrative
Agent.

     

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

     

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

     

    9.05.           Notice of
Default.

     

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

     

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

     

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

     

    9.07.           Indemnification of
Administrative Agent.

     

    Whether
or not the transactions contemplated hereby are consummated, the Lenders shall
indemnify upon demand each Agent-Related Person (to the extent not reimbursed by
or on behalf of any Credit Party and without limiting the obligation of any
Credit Party to do so), pro rata, and hold harmless each Agent-Related Person
from and against any and all Indemnified Liabilities incurred by it; provided,
however, that no Lender shall be liable for the payment to any Agent-Related
Person of any portion of such Indemnified Liabilities to the extent determined
in a final, nonappealable judgment by a court of competent jurisdiction to have
resulted from such Agent-Related Person’s own gross negligence or willful
misconduct; provided, however, that no action taken in accordance with the
directions of the Required Lenders shall be deemed to constitute gross
negligence or willful misconduct for purposes of this
Section.  Without limitation of the foregoing, each Lender shall
reimburse the Administrative Agent upon demand for its ratable share of any
costs or out-of-pocket expenses (including Attorney Costs) incurred by the
Administrative Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Credit Agreement, any other Credit
Document, or any document contemplated by or referred to herein, to the extent
that the Administrative Agent is not reimbursed for such expenses by or on
behalf of the Borrowers.  The undertaking in this Section shall
survive termination of the Aggregate Commitments, the payment of all other
Obligations and the resignation of the Administrative Agent.

     

    9.08.           Administrative Agent in its
Individual Capacity.

     

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

     

    9.09.           Successor Administrative
Agent.

     

    The
Administrative Agent may resign as Administrative Agent upon thirty (30)
days’ notice to the Lenders.  If the Administrative Agent resigns
under this Credit Agreement, the Required Lenders shall appoint from among the
Lenders a successor administrative agent for the Lenders, which successor
administrative agent shall be consented to by the Borrower Representative at all
times other than during the existence of an Event of Default (which consent of
the Borrower Representative shall not be unreasonably withheld or
delayed).  If no successor administrative agent is appointed prior to
the effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Lenders and the
Borrower Representative, a successor administrative agent from among the
Lenders.  Upon the acceptance of its appointment as successor
administrative agent hereunder, the Person acting as such successor
administrative agent shall succeed to all the rights, powers and duties of the
retiring Administrative Agent and the term “Administrative Agent” thereafter
shall mean such successor administrative agent and the retiring Administrative
Agent’s appointment, powers and duties as Administrative Agent shall be
terminated without any other or further act or deed on the part of such retiring
Administrative Agent or any other Lender.  After any retiring
Administrative Agent’s resignation hereunder as Administrative Agent, the
provisions of this Article IX and
Sections 10.04
and 10.05 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Administrative Agent under this Credit Agreement.  If no
successor administrative agent has accepted appointment as Administrative Agent
by the date thirty (30) days following a retiring Administrative Agent’s
notice of resignation, the retiring Administrative Agent’s resignation shall
nevertheless thereupon become effective and the Lenders shall perform all of the
duties of the Administrative Agent hereunder until such time, if any, as the
Required Lenders appoint a successor agent as provided for above.

     

    9.10.           Administrative Agent
May File Proofs of Claim.

     

    In case
of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Credit Party, the Administrative Agent (irrespective
of whether the principal of the Loan shall then be due and payable as herein
expressed or by declaration or otherwise and irrespective of whether the
Administrative Agent shall have made any demand on the Borrowers) 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 Loan 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 the Administrative Agent (including
any claim for the reasonable compensation, expenses, disbursements and advances
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    respective
agents and counsel and all other amounts due the Lenders and the Administrative
Agent under Section 2.07 and 10.04) allowed in
such judicial proceeding; and

     

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

     

    and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Lender to make such payments to the Administrative Agent and, in the event that
the Administrative Agent shall consent to the making of such payments directly
to the Lenders, to pay to the Administrative Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.07
and 10.04.

     

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

     

    ARTICLE
X

    MISCELLANEOUS

     

    10.01.           Amendments,
Etc.

     

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

     

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

     

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

     

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

     

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

     

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

     

    (v)           change
any provision of this Section 10.01(a)
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,
or

     

    (vi)           release
the Parent from its obligations hereunder (other than as provided herein or as
appropriate in connection with transactions permitted hereunder);

     

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

     

    provided, however,
that notwithstanding anything to the contrary contained herein, (i) no
Defaulting Lender shall have any right to approve or disapprove any amendment,
waiver or consent hereunder, except that the Commitment of such Lender may not
be increased or extended without the consent of such Lender, (ii) each Lender is
entitled to vote as such Lender sees fit on any bankruptcy or insolvency
reorganization plan that affects the Loan (iii) each Lender acknowledges that
the provisions of Section 1126(c) of the Bankruptcy Code supersedes the
unanimous consent provisions set forth herein, and (iv) the Required Lenders may
consent to allow a Credit Party to use cash collateral in the context of a
bankruptcy or insolvency proceeding.

     

    10.02.           Notices and Other
Communications; Facsimile Copies.

     

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

     

    (i)           if
to any Borrower or the Administrative Agent, to the address, facsimile number,
electronic mail address or telephone number specified for such Person on
Schedule 10.02 or to such other address, facsimile number, electronic mail
address or telephone number as shall be designated by such party in a notice to
the other parties; and

     

    (ii)           if
to any other Lender, to the address, facsimile number, electronic mail address
or telephone number specified in its Administrative Questionnaire or to
such

     

    


    
      
        
          
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    other
address, facsimile number, electronic mail address or telephone number as shall
be designated by such party in a notice to any Borrower and the Administrative
Agent.

     

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

     

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

     

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

     

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

     

    (e)           Change of Address,
Etc.  Each of the Borrowers and the 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 the Borrowers and the
Administrative Agent.  In addition, each Lender agrees to notify the
Administrative Agent from time to time to ensure that the Administrative Agent
has on record (i) an effective address, contact name, telephone number,
telecopier number and electronic mail

     

    


    
      
        
          
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    address
to which notices and other communications may be sent and (ii) accurate wire
instructions for such Lender.

     

    10.03.           No Waiver; Cumulative
Remedies.

     

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

     

    Notwithstanding
anything to the contrary contained herein or in any other Credit Document, the
authority to enforce rights and remedies hereunder and under the other Credit
Documents against the Credit Parties or any of them shall be vested exclusively
in, and all actions and proceedings at law in connection with such enforcement
shall be instituted and maintained exclusively by, the Administrative Agent in
accordance with Section 8.02 for the
benefit of all the Lenders; provided, however, that the
foregoing shall not prohibit (a) the Administrative Agent from exercising on its
own behalf the rights and remedies that inure to its benefit (solely in its
capacity as Administrative Agent) hereunder and under the other Credit
Documents, (b) any Lender from exercising setoff rights in accordance with Section 10.09
(subject to the terms of Section 2.10), or (d)
any Lender from filing proofs of claim or appearing and filing pleadings on its
own behalf during the pendency of a proceeding relative to any Credit Party
under any Debtor Relief Law; and provided, further, that if at
any time there is no Person acting as Administrative Agent hereunder and under
the other Credit Documents, then (i) the Required Lenders shall have the rights
otherwise ascribed to the Administrative Agent pursuant to Section 8.02 and (ii)
in addition to the matters set forth in clauses (b) and (c) of the preceding
proviso and subject to Section 2.10, any
Lender may, with the consent of the Required Lenders, enforce any rights and
remedies available to it and as authorized by the Required Lenders.

     

    10.04.           Attorney Costs, Expenses and
Taxes.

     

    The
Borrowers agree (a) to pay directly to the provider thereof or to pay or
reimburse the Administrative Agent for all reasonable and documented costs and
expenses incurred in connection with the development, preparation, negotiation
and execution of this Credit Agreement and the other Credit Documents, the
preservation of any rights or remedies under this Credit Agreement and the other
Credit Documents, and any amendment, waiver, consent or other modification of
the provisions hereof and thereof (whether or not the transactions contemplated
hereby or thereby are consummated), and the consummation and administration of
the transactions contemplated hereby and thereby, including all Attorney Costs,
(b) to pay or reimburse the Administrative Agent and each Lender for all
reasonable costs and expenses incurred following an Event of Default in
connection with the enforcement, attempted enforcement, or preservation of any
rights or remedies under this Credit Agreement or the other Credit Documents
(including all such costs and expenses incurred during any “workout” or
restructuring in respect of the Obligations and during any legal proceeding,
including any proceeding under any Debtor Relief Law), including all Attorney
Costs and (c) all reasonable and documented appraisal costs incurred by the
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    Administrative
Agent’s procurement of FIRREA-compliant MAI appraisals with respect to any
Borrowing Base Asset or any other Real Property Asset owned by any Borrower, to
the extent any such appraisal is requested by the Administrative Agent
(provided, that the Borrowers shall not be required to pay the costs and
expenses associated with any Administrative Agent-requested appraisal more than
once during the term of the Loan with respect to any Borrowing Base Asset); and
(iii) any re-appraisals requested by any Borrower.  The foregoing
costs and expenses shall include all search, filing, recording, title insurance
and appraisal charges and fees and taxes related thereto, and other reasonable
and documented out-of-pocket expenses incurred by the Administrative Agent and
the reasonable and documented cost of independent public accountants and other
outside experts retained by the Administrative Agent or any
Lender.  All amounts due under this Section 10.04
shall be payable within twenty (20) Business Days after written invoice therefor
is received by the Borrowers.  The agreements in this
Section shall survive the termination of the Aggregate Commitments and
repayment of all other Obligations.

     

    10.05.           Indemnification by the
Borrowers.

     

    The
Borrowers shall indemnify and hold harmless each Agent-Related Person, each
Lender and their respective Affiliates, directors, officers, employees, counsel,
agents, trustees, advisors and attorneys-in-fact (collectively the “Indemnitees”) from and
against any and all liabilities, obligations, losses, damages, penalties,
claims, litigation, investigation, proceeding, demands, actions, judgments,
suits, costs, expenses and disbursements (including Attorney Costs) of any kind
or nature whatsoever (subject to the provisions of Section 3.01
with respect to Taxes and Other Taxes) that may at any time be imposed on,
incurred by or asserted against any such Indemnitee (whether by a Credit Party
or any other party) in any way relating to or arising out of or in connection
with (a) the execution, delivery, enforcement, performance or administration of
any Credit Document or any other agreement, letter or instrument delivered in
connection with the transactions contemplated thereby or the consummation of the
transactions contemplated thereby, or, in the case of the Administrative Agent
(and any sub-agent thereof) and its Related Parties only, the administration of
this Agreement and the other Credit Documents, (b) any Commitment, Loan or the
use or proposed use of the proceeds therefrom, (c) performance of any labor
or services or the furnishing of any materials or other property in respect of
any Real Property Asset or any part thereof, (d) violation by any Person of any
Healthcare Laws, (e) the Facility Operating Leases, (f) the failure of any
Person to file timely with the Internal Revenue Service an accurate Form 1099-B,
Statement for Recipients of Proceeds from Real Estate, Broker and Barter
Exchange Transactions, which may be required in connection with this Agreement,
or to supply a copy thereof in a timely fashion to the recipient of the proceeds
of the transaction in connection with which this Agreement is made, or (g) any
actual or threatened claim, litigation, investigation or proceeding relating to
any of the foregoing, whether based on contract, tort or any other theory
(including any investigation of, preparation for, or defense of any pending or
threatened claim, investigation, litigation or proceeding) and regardless of
whether any Indemnitee is a party thereto (all the foregoing, collectively, the
“Indemnified
Liabilities”); provided, that such
indemnification shall not, as to any Indemnitee, be available to the extent that
such liabilities, obligations, losses, damages, penalties, claims, litigation,
investigation, proceeding, demands, actions, judgments, suits, costs, expenses
or disbursements (x) are determined to have resulted from the gross
negligence or willful misconduct of any Indemnitee or (y) result from a
claim brought by any Credit Party against an Indemnitee for breach in bad faith
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    Credit
Document, if such Credit Party has obtained a final and nonappealable judgment
in its favor on such claim as determined by a court of competent
jurisdiction.  No Indemnitee shall be liable for any damages arising
from the use by others of any information or other materials obtained through
IntraLinks or other similar information transmission systems in connection with
this Credit Agreement, and no Indemnitee shall have any liability for any
indirect or consequential damages relating to this Credit Agreement or any other
Credit Document or arising out of its activities in connection herewith or
therewith (whether before or after the Closing Date).  All amounts
that may become due under this Section 10.05
shall be payable within twenty (20) Business Days after written invoice therefor
is received by the Borrowers.  The agreements in this Section 10.05
shall survive the resignation of the Administrative Agent, the assignment by any
Lender of any of its interests hereunder, the replacement of any Lender, the
termination of the Aggregate Commitments and the repayment, satisfaction or
discharge of all the other Obligations.

     

    10.06.           Payments Set
Aside.

     

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

     

    10.07.           Successors and
Assigns.

     

    (a)           The
provisions of this Credit Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that no Borrower may assign or otherwise transfer any
of its rights or obligations hereunder without the prior written consent of each
Lender and no Lender may assign or otherwise transfer any of its rights or
obligations hereunder except (i) to an Eligible Assignee in accordance with the
provisions of subsection (b) of this Section, (ii) by way of participation
in accordance with the provisions of subsection (d) of this Section, or
(iii) by way of pledge or assignment of a security interest subject to the
restrictions of subsection (f) or (i) of this Section (and any other
attempted assignment or transfer by any party hereto shall be null and
void).  Nothing in this Credit Agreement, expressed or implied, shall
be construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby, Participants to the extent
provided in subsection (d) of this Section and, to the extent
expressly contemplated hereby, the Indemnitees) any legal or equitable right,
remedy or claim under or by reason of this Credit Agreement.

     

    


    
      
        
          
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    (b)           Any
Lender may at any time assign to one or more Eligible Assignees all or a portion
of its rights and obligations under this Credit Agreement (including all or a
portion of its Commitment and Extension of Credit at the time owing to it);
provided that (i) except in the case of an assignment of the entire remaining
amount of the assigning Lender’s Commitment and Extension of Credit at the time
owing to it or in the case of an assignment to a Lender or an Affiliate of a
Lender or an Approved Fund with respect to a Lender, the aggregate amount of the
Commitment (which for this purpose includes the Extension of Credit outstanding
thereunder) subject to each such assignment, determined as of the date the
Assignment and Assumption with respect to such assignment is delivered to the
Administrative Agent or, if “Trade Date” is specified in the Assignment and
Assumption, as of the Trade Date, shall not be less than $1,000,000 unless each
of the Administrative Agent and, so long as no Event of Default has occurred and
is continuing, the Borrower Representative otherwise consents (each such consent
not to be unreasonably withheld or delayed) provided, however, 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; (ii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender’s rights and obligations under
this Credit Agreement with respect to the Extension of Credit or the Commitment
assigned; (iii) any assignment of a Commitment must be approved by the
Administrative Agent, unless the Person that is the proposed assignee is itself
a Lender (whether or not the proposed assignee would otherwise qualify as an
Eligible Assignee); and (iv) the parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Assumption, together with
a processing and recordation fee in the amount of $3,500; provided, however, that the
Administrative Agent may, in its sole discretion, elect to waive such processing
and recordation fee in the case of any assignment.  Subject to
acceptance and recording thereof by the Administrative Agent pursuant to
subsection (c) of this Section, from and after the effective date specified
in each Assignment and Assumption, the Eligible Assignee thereunder shall be a
party to this Credit Agreement and, to the extent of the interest assigned by
such Assignment and Assumption, have the rights and obligations of a Lender
under this Credit Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Assumption, be released
from its obligations under this Credit Agreement (and, in the case of an
Assignment and Assumption covering all of the assigning Lender’s rights and
obligations under this Credit 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, 10.04 and 10.05 with respect to
facts and circumstances occurring prior to the effective date of such
assignment).  Upon request, the Borrowers (at their expense) shall
execute and deliver a Note to the assignee Lender and, if the assignor Lender
retains a portion of the Loan, a Note to the assignor Lender.  Any
assignment or transfer by a Lender of rights or obligations under this Credit
Agreement that does not comply with this subsection shall be treated for
purposes of this Credit Agreement as a sale by such Lender of a participation in
such rights and obligations in accordance with subsection (d) of this
Section.

     

    (c)           The
Administrative Agent, acting solely for this purpose as an agent of the
Borrowers, shall maintain at the 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
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    each
Lender pursuant to the terms hereof from time to time (the “Register”).  The
entries in the Register shall be conclusive, and the Borrowers, the
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.  The Register shall be available for inspection by the
Borrower Representative at any reasonable time and from time to time upon
reasonable prior notice.  In addition, at any time that a request for
a consent for a material or other substantive change to the Credit Documents is
pending, any Lender wishing to consult with other Lenders in connection
therewith may request and receive from the Administrative Agent a copy of the
Register.

     

    (d)           Any
Lender may at any time, without the consent of, or notice to, the Borrowers or
the Administrative Agent, sell participations to any Person (other than a
natural person or the Borrowers or any of the Borrowers’ Affiliates or
Subsidiaries) (each, a “Participant”)
in all or a portion of such Lender’s rights and/or obligations under this Credit
Agreement (including all or a portion of its Commitment and/or the Extension of
Credit owing to it); provided that (i) such Lender’s obligations under this
Credit Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (iii) the Borrowers, the Administrative Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Credit Agreement.  Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Credit Agreement and to approve any amendment, modification or waiver of
any  provision of this Credit Agreement; provided that such agreement
or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, waiver or other modification that extends
the time for, reduces the amount or alters the application of proceeds with
respect to such obligations and payments required therein that directly affects
such Participant.  Subject to subsection (e) of this Section, the
Borrowers agree 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 subsection (b) of this Section.  To the extent
permitted by law, each Participant also shall be entitled to the benefits of
Section 10.09 as
though it were a Lender, provided such Participant agrees to be subject to Section 2.10 as
though it were a Lender.

     

    (e)           A
Participant shall not be entitled to receive any greater payment under Section 3.01 or
3.04 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant.  A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of
Section 3.01
unless the Borrower Representative is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the Borrowers, to
comply with Section 10.15 as
though it were a Lender.

     

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

     

    


    
      
        
          
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    (g)           Notwithstanding
anything to the contrary contained herein, any Lender that is a Fund may
(without notice to or the consent of any of the parties hereto) create a
security interest in all or any portion of the Extension of Credit owing to it
and the Note evidencing such Extension of Credit, if any, held by it to the
trustee for holders of obligations owed, or securities issued, by such Fund as
security for such obligations or securities, provided that unless and until such
trustee actually becomes a Lender in compliance with the other provisions of
this Section 10.07,
(i) no such pledge shall release the pledging Lender from any of its obligations
under the Credit Documents and (ii) such trustee shall not be entitled to
exercise any of the rights of a Lender under the Credit Documents even though
such trustee may have acquired ownership rights with respect to the pledged
interest through foreclosure or otherwise.

     

    (h)           Anything
herein to the contrary notwithstanding, with respect to any assignment by a
Lender to a Permitted Investor under this Section 10.07 or if
any Permitted Investor becomes a Lender hereunder pursuant to Section 10.16 or
otherwise, the following shall apply:  (i) in no event may Permitted
Investors own in the aggregate more than a thirty percent (30%) interest in the
Loan; (ii) if as a result of any such transfer or series of transfers, Permitted
Investors and GECC are the only Lenders hereunder, actions to be taken by
Administrative Agent under this Credit Agreement or the other Credit Documents
on behalf of the Lenders that require the consent of (A) all Lenders will not
require the consent of the Permitted Investors and (B) the Required Lenders will
not require the consent of the Permitted Investors; and (iii) if any action to
be taken by Administrative Agent under this Agreement requires the consent of
the Required Lenders, and the consent of the Permitted Investor causes the 66
2/3% percentage requirement set forth in the definition of “Required Investors”
to be met, such action will nonetheless require the consent of one additional
Lender hereunder. The execution by a Permitted Investor of an Assignment and
Assumption Agreement and/or Lender Joinder Agreement will be sufficient to
evidence such Permitted Investor’s agreement to the terms of this Section 10.06(h),
provided the Permitted Investor will execute any additional documents required
by Administrative Agent to evidence the agreements contained in this Section
10.06(h).

     

    10.08.           Confidentiality.

     

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

     

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

     

    10.09.           Set-off.

     

    In
addition to any rights and remedies of the Lenders provided by law, upon the
occurrence and during the continuance of any Event of Default, each Lender and
each of its Affiliates are authorized at any time and from time to time, without
prior notice to the Borrowers or any other Credit Party, any such notice being
waived by the Borrowers (on their own behalf and on behalf of each Credit Party)
to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held by, and other indebtedness at any time owing by, such Lender or Affiliate
to or for the credit or the account of the respective Credit Parties against any
and all Obligations owing to such Lender hereunder or under any other Credit
Document (subject to Section 2.10), now or
hereafter existing, irrespective of whether or not the Administrative Agent or
such Lender shall have made demand under this Credit Agreement or any other
Credit Document and although such Obligations may be contingent or unmatured or
denominated in a currency different from that of the applicable deposit or
indebtedness.  Each Lender agrees promptly to notify the
Borrowers

     

    


    
      
        
          
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    and the
Administrative Agent after any such set-off and application made by such Lender;
provided, however, that the failure to give such notice shall not affect the
validity of such set-off and application.

     

    10.10.           Interest Rate
Limitation.

     

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

     

    10.11.           Counterparts.

     

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

     

    10.12.           Integration.

     

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

     

    10.13.           Survival of Representations
and Warranties.

     

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

     

    


    
      
        
          
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    10.14.           Severability.

     

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

     

    10.15.           Tax
Forms.

     

    (a)           (i)
Each Lender that is not a “United States person” within the meaning of
Section 7701(a)(30) of the Internal Revenue Code (a “Foreign
Lender”) shall deliver to the Administrative Agent, prior to receipt of
any payment subject to withholding under the Internal Revenue Code (or upon
accepting an assignment of an interest herein), two duly signed completed copies
of either IRS Form W-8BEN or any successor thereto (relating to such
Foreign Lender and entitling it to an exemption from, or reduction of,
withholding tax on all payments to be made to such Foreign Lender by the
Borrowers pursuant to this Credit Agreement) or IRS Form W-8ECI or any
successor thereto (relating to all payments to be made to such Foreign Lender by
the Borrowers pursuant to this Credit Agreement) or such other evidence
satisfactory to the Borrowers and the Administrative Agent that such Foreign
Lender is entitled to an exemption from, or reduction of,
U.S.  withholding tax, including any exemption pursuant to
Section 881(c) of the Internal Revenue Code.  Thereafter and from
time to time, each such Foreign Lender shall (A) promptly submit to the
Administrative Agent such additional duly completed and signed copies of one of
such forms (or such successor forms as shall be adopted from time to time by the
relevant United States taxing authorities) as may then be available under then
current United States laws and regulations to avoid, or such evidence as is
satisfactory to the Borrowers and the Administrative Agent of any available
exemption from or reduction of, United States withholding taxes in respect of
all payments to be made to such Foreign Lender by the Borrowers pursuant to this
Credit Agreement, (B) promptly notify the Administrative Agent of any change in
circumstances that would modify or render invalid any claimed exemption or
reduction, and (C) 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 Law that the Borrowers make any deduction or
withholding for taxes from amounts payable to such Foreign Lender.

     

    (ii)           Each
Foreign Lender, to the extent it does not act or ceases to act for its own
account with respect to any portion of any sums paid or payable to such Lender
under any of the Credit Documents (for example, in the case of a typical
participation by such Lender), shall deliver to the Administrative Agent on the
date when such Foreign Lender ceases to act for its own account with respect to
any portion of any such sums paid or payable, and at such other times as may be
necessary in the determination of the Administrative Agent (in the reasonable
exercise of its discretion), (A) two duly signed completed copies of the forms
or statements required to be provided by such Lender as

     

    


    
      
        
          
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    set forth
above, to establish the portion of any such sums paid or payable with respect to
which such Lender acts for its own account that is not subject to
U.S.  withholding tax, and (B) two duly signed completed copies of IRS
Form W-8IMY (or any successor thereto), together with any information such
Lender chooses to transmit with such form, and any other certificate or
statement of exemption required under the Internal Revenue Code, to establish
that such Lender is not acting for its own account with respect to a portion of
any such sums payable to such Lender.

     

    (iii)           The
Borrowers shall not be required to pay any additional amount to any Foreign
Lender under Section 3.01 (A)
with respect to any Taxes required to be deducted or withheld on the basis of
the information, certificates or statements of exemption such Lender transmits
with an IRS Form W-8IMY pursuant to this Section 10.15(a)
or (B) if such Lender shall have failed to satisfy the foregoing provisions of
this Section 10.15(a);
provided that if such Lender shall have satisfied the requirement of this Section 10.15(a)
on the date such Lender became a Lender or ceased to act for its own account
with respect to any payment under any of the Credit Documents, nothing in this
Section 10.15(a)
shall relieve the Borrowers of their obligation to pay any amounts pursuant to
Section 3.01 in
the event that, as a result of any change in any applicable Law, treaty or
governmental rule, regulation or order, or any change in the interpretation,
administration or application thereof, such Lender is no longer properly
entitled to deliver forms, certificates or other evidence at a subsequent date
establishing the fact that such Lender or other Person for the account of which
such Lender receives any sums payable under any of the Credit Documents is not
subject to withholding or is subject to withholding at a reduced
rate.

     

    (iv)           The
Administrative Agent may, without reduction, withhold any Taxes required to be
deducted and withheld from any payment under any of the Credit Documents with
respect to which the Borrowers are not required to pay additional amounts under
this Section 10.15(a).

     

    (b)           Upon
the request of the Administrative Agent, each Lender that is a “United States
person” within the meaning of Section 7701(a)(30) of the Internal Revenue
Code shall deliver to the Administrative Agent two duly signed completed copies
of IRS Form W-9.  If such Lender fails to deliver such forms,
then the Administrative Agent may withhold from any interest payment to such
Lender an amount equivalent to the applicable back-up withholding tax imposed by
the Internal Revenue Code, without reduction.

     

    (c)           If
any Governmental Authority asserts that the Administrative Agent did not
properly withhold or backup withhold, as the case may be, any tax or other
amount from payments made to or for the account of any Lender, such Lender shall
indemnify the Administrative Agent therefor, including all penalties and
interest, any taxes imposed by any jurisdiction on the amounts payable to the
Administrative Agent under this Section, and costs and expenses (including
Attorney Costs) of the Administrative Agent.  The obligation of the
Lenders under this Section shall survive the termination of the Aggregate
Commitments, repayment of all other Obligations hereunder and the resignation of
the Administrative Agent.

     

    


    
      
        
          
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    10.16.           Replacement of
Lenders.

     

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

     

    10.17.           No Advisory or Fiduciary
Responsibility.

     

    In
connection with all aspects of each transaction contemplated hereby, the
Borrowers each acknowledge and agree, and acknowledge their respective
Affiliates’ understanding, that: (a) the credit facility provided for hereunder
and any related arranging or other services in connection therewith (including
in connection with any amendment, waiver or other modification hereof or of any
other Credit Document) are an arm’s-length commercial transaction between the
Borrowers and their respective Affiliates, on the one hand, and the
Administrative Agent, on the other hand, and each Borrower is capable of
evaluating and understanding and understands and accepts the terms, risks and
conditions of the transactions contemplated hereby and by the other Credit
Documents (including any amendment, waiver or other modification hereof or
thereof); (b) in connection with the process leading to such transaction, the
Administrative Agent is and has been acting solely as a principal and is not the
financial advisor, agent or fiduciary, for the Borrowers or any of their
respective Affiliates, stockholders, creditors or employees or any other Person;
(c) the Administrative Agent has not assumed or will assume an advisory, agency
or fiduciary responsibility in favor of the Borrowers with respect to any of the
transactions contemplated hereby or the process leading thereto, including with
respect to any amendment, waiver or other modification hereof or of any other
Credit Document (irrespective of whether the Administrative Agent has advised or
is currently advising the Borrowers or any of their respective Affiliates on
other matters) and the Administrative Agent has no obligation to the Borrowers
or any of their respective Affiliates with respect to the transactions
contemplated hereby except those obligations expressly set forth herein and in
the other Credit Documents; (d) the Administrative Agent and its Affiliates may
be engaged in a broad range of transactions that involve interests that differ
from those of the Borrowers and their respective Affiliates, and the
Administrative Agent has no obligation to disclose any of such interests by
virtue of any advisory, agency or fiduciary relationship; and (e) the
Administrative Agent has not provided and will not provide any legal,
accounting, regulatory or tax advice with respect to any of the transactions
contemplated hereby (including any amendment, waiver or other modification
hereof or of any other Credit Document) and each Borrower has consulted its own
legal, accounting, regulatory and tax advisors to the extent it has deemed
appropriate.  Each Borrower hereby waives and releases, to the fullest
extent permitted

     

    


    
      
        
          
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    by law,
any claims that it may have against the Administrative Agent with respect to any
breach or alleged breach of agency or fiduciary duty.

     

    10.18.           Source of
Funds.

     

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

     

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

     

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

     

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

     

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

     

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

     

    10.19.           GOVERNING
LAW.

     

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

     

    (b)           ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT
DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF ILLINOIS SITTING IN
CHICAGO OR OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF SUCH STATE, AND BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWERS, THE ADMINISTRATIVE
Agent AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO
THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS.  THE BORROWERS, THE
ADMINISTRATIVE Agent AND EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING
ANY OBJECTION TO THE LAYING OF

     

    


    
      
        
          
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    VENUE OR
BASED ON THE GROUNDS OF FORUM
NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY
ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY CREDIT DOCUMENT OR
OTHER DOCUMENT RELATED THERETO.  THE BORROWERS, THE ADMINISTRATIVE
Agent AND EACH LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER
PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH
STATE.

     

    10.20.           WAIVER OF RIGHT TO TRIAL BY
JURY.

     

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

     

    10.21.           No
Conflict.

     

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

     

    10.22.           USA Patriot Act
Notice.

     

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

     

    10.23.           Entire
Agreement.

     

    THIS
CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS REPRESENT THE FINAL AGREEMENT
AMONG THE PARTIES AND MAY NOT BE

     

    


    
      
        
          
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    CONTRADICTED
BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES.  THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE
PARTIES.

     

    10.24.           California Real Property
Assets.

     

    NOTWITHSTANDING
ANYTHING TO THE CONTRARY CONTAINED HEREIN, AT ANY TIME THAT ANY OF THE
OBLIGATIONS SHALL BE SECURED BY REAL PROPERTY ASSETS LOCATED IN CALIFORNIA, NO
LENDER SHALL EXERCISE A RIGHT OF SETOFF, LENDER’S LIEN OR COUNTERCLAIM OR TAKE
ANY COURT OR ADMINISTRATIVE ACTION OR INSTITUTE ANY PROCEEDING TO ENFORCE ANY
PROVISION OF THIS AGREEMENT OR ANY CREDIT DOCUMENT UNLESS IT IS TAKEN WITH THE
CONSENT OF THE REQUIRED LENDERS, IF SUCH SETOFF OR ACTION OR PROCEEDING WOULD OR
MIGHT (PURSUANT TO SECTIONS 580a, 580b, 580d AND 726 OF THE CALIFORNIA CODE OF
CIVIL PROCEDURE OR SECTION 2924 OF THE CALIFORNIA CIVIL CODE, IF APPLICABLE, OR
OTHERWISE) AFFECT OR IMPAIR THE VALIDITY, PRIORITY, OR ENFORCEABILITY OF THE
LIENS GRANTED TO THE ADMINISTRATIVE AGENT PURSUANT TO THE COLLATERAL DOCUMENTS
OR THE ENFORCEABILITY OF THE OBLIGATIONS HEREUNDER, AND ANY ATTEMPTED EXERCISE
BY ANY LENDER OR ANY SUCH RIGHT WITHOUT OBTAINING SUCH CONSENT OF THE PARTIES AS
REQUIRED ABOVE, SHALL BE NULL AND VOID.  THIS SECTION 10.24 SHALL
BE SOLELY FOR THE BENEFIT OF EACH OF THE LENDERS.

     

    [REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK -

     

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

     

    BORROWERS:                                                                             
    BLC ATRIUM-JACKSONVILLE SNF,

    LLC, a Delaware limited
liability

    company

    BLC WESTWOOD, LLC, a
Delaware

    limited liability company

    BLC JACKSON OAKS, LLC, a
Delaware

    limited liability company

    CAROLINA HOUSE OF
BLUFFTON,

    LLC, a North Carolina limited
liability

    company

    CAROLINA HOUSE OF HILTON

    HEAD, LLC, a North Carolina
limited

    liability company

    ARC HDV, LLC, a Tennessee
limited

    liability company

    FIT RAMSEY, LLC, a Delaware
limited

    liability company

    AHC STERLING HOUSE OF

    HARBISON, LLC, a Delaware
limited

    liability company

    AHC PROPERTIES, INC., a
Delaware

    corporation

    BROOKDALE PLACE OF BATH,
LLC,

    a Delaware limited liability
company

    


    


    
      	 
      	 
      	
              By:

            	
                /s/
      George T. Hicks

            	 
      
	 
      	 
      	
              Name:

            	
              George
      T. Hicks

            	 
      
	 
      	 
      	
              Title:

            	
              Executive
      Vice President

            	 
      


    

    


    


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              ADMINISTRATIVE
      AGENT:

            	 
      	
              GENERAL
      ELECTRIC CAPITAL

            	 
      
	 
      	 
      	
              CORPORATION, as
      Administrative Agent

            	 
      


    

    


    


    
      	 
      	 
      	
              By:

            	 
      /s/ Adam Zeiger	 
      
	 
      	 
      	
              Name:

            	 
      Adam Zeiger	 
      
	 
      	 
      	
              Title:

            	 
      Duly Authorized Signatory	 
      


    

    


    


    


    


    
      
        
          
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              LENDERS:

            	 
      	
              GENERAL
      ELECTRIC CAPITAL

            	 
      
	 
      	 
      	
              CORPORATION, as a
      Lender

            	 
      


    

    


    


    
      	 
      	 
      	
              By:

            	 
      /s/ Adam Zeiger	 
      
	 
      	 
      	
              Name:

            	 
      Adam Zeiger	 
      
	 
      	 
      	
              Title:

            	 
      Duly Authorized Signatory	 
      


    

     

     

     

    
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