Exhibit 10.1


 


EXECUTION VERSION


 


 






 


TERM LOAN AGREEMENT


 


Dated as of July 1, 2016


 


among


 


AGREE LIMITED PARTNERSHIP,


as the Borrower,


 


CAPITAL ONE, NATIONAL
ASSOCIATION,


as Administrative Agent,


 


and


 


The other Lenders Party
Hereto


 


 






 


CAPITAL ONE, NATIONAL
ASSOCIATION,


as


Sole Lead Arranger and
Sole Bookrunner


 


 






 




     


     


    

 





 


TABLE OF CONTENTS


 


	 	Page
	 	 
	ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS	1
	 	 	 
	1.01	Defined Terms	1
	1.02	Other Interpretive Provisions	24
	1.03	Accounting Terms.	24
	1.04	Rounding	24
	1.05	Times of Day	24
	1.06	Intentionally Omitted	25
	1.07	Classifications of Term Loans and Borrowings	25
	 	 	 
	ARTICLE II. THE TERM LOANS AND BORROWINGS	25
	 	 	 
	2.01	Term Loans	25
	2.02	Borrowings, Conversions and Continuations of Term Loans.	25
	2.03	Intentionally Omitted.	26
	2.04	Intentionally Omitted.	26
	2.05	Intentionally Omitted.	26
	2.06	Prepayments.	26
	2.07	Intentionally Omitted	27
	2.08	Repayment of Term Loans	27
	2.09	Interest.	27
	2.10	Fees	28
	2.11	Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate.	28
	2.12	Evidence of Debt	28
	2.13	Payments Generally; Administrative Agent’s Clawback.	29
	2.14	Sharing of Payments by Lenders	30
	2.15	Intentionally Omitted	30
	2.16	Additional Term Loans.	31
	2.17	Intentionally Omitted.	32
	2.18	Defaulting Lenders.	32
	 	 	 
	ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY	33
	 	 	 
	3.01	Taxes.	33
	3.02	Illegality	36
	3.03	Inability to Determine Rates	36
	3.04	Increased Costs.	36
	3.05	Compensation for Losses	37
	3.06	Mitigation Obligations; Replacement of Lenders.	38
	3.07	Survival	38
	 	 	 
	ARTICLE IV. [INTENTIONALLY OMITTED]	38
	 	 	 
	ARTICLE V. CONDITIONS PRECEDENT TO BORROWINGS	38
	 	 	 
	5.01	Conditions of Initial Borrowing	38
	5.02	Conditions to all Loans	40
	 	 	 
	ARTICLE VI. REPRESENTATIONS AND WARRANTIES	40
	 	 	 
	6.01	Existence, Qualification and Power	40
	6.02	Authorization; No Contravention	41
	6.03	Governmental Authorization; Other Consents	41
	6.04	Binding Effect	41


 




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TABLE OF CONTENTS


 


	 	Page
	 	 
	6.05	Financial Statements; No Material Adverse Effect.	41
	6.06	Litigation	42
	6.07	No Default	42
	6.08	Ownership of Property; Liens	42
	6.09	Environmental Compliance	42
	6.10	Insurance	42
	6.11	Taxes	42
	6.12	ERISA Compliance.	42
	6.13	Subsidiaries; Equity Interests	43
	6.14	Margin Regulations; Investment Company Act.	43
	6.15	Disclosure	44
	6.16	Compliance with Laws	44
	6.17	Taxpayer Identification Number	44
	6.18	Anti-Money Laundering/International Trade Law Compliance	44
	6.19	Unencumbered Pool Properties	44
	 	 	 
	ARTICLE VII. AFFIRMATIVE COVENANTS	44
	 	 	 
	7.01	Financial Statements	45
	7.02	Certificates; Other Information	45
	7.03	Notices	47
	7.04	Payment of Obligations	47
	7.05	Preservation of Existence, Etc.	47
	7.06	Maintenance of Properties	48
	7.07	Maintenance of Insurance	48
	7.08	Compliance with Laws	48
	7.09	Books and Records	48
	7.10	Inspection Rights	48
	7.11	Use of Proceeds	48
	7.12	Unencumbered Pool Properties	48
	7.13	Subsidiary Guarantor Organizational Documents	49
	7.14	Additional Guarantors; Release of Guarantors.	49
	7.15	Environmental Matters	50
	7.16	REIT Status; New York Stock Exchange Listing	50
	7.17	Anti-Money Laundering/International Trade Law Compliance	50
	 	 	 
	ARTICLE VIII. NEGATIVE COVENANTS	50
	 	 	 
	8.01	[Intentionally Omitted]	50
	8.02	Investments	50
	8.03	Fundamental Changes	51
	8.04	Dispositions	52
	8.05	Restricted Payments	52
	8.06	Change in Nature of Business	53
	8.07	Transactions with Affiliates	53
	8.08	Burdensome Agreements	53
	8.09	Use of Proceeds	53
	8.10	Minimum Number of Unencumbered Pool Properties	53
	8.11	Industry Concentration	53
	8.12	[Intentionally Omitted]	53
	8.13	Negative Pledge	53
	8.14	Financial Covenants	53


 




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TABLE OF CONTENTS


 


	 	Page
	 	 
	ARTICLE IX. EVENTS OF DEFAULT AND REMEDIES	54
	 	 	 
	9.01	Events of Default	54
	9.02	Remedies Upon Event of Default	56
	9.03	Application of Funds	56
	 	 	 
	ARTICLE X. ADMINISTRATIVE AGENT	57
	 	 	 
	10.01	Appointment and Authority	57
	10.02	Rights as a Lender	57
	10.03	Exculpatory Provisions	57
	10.04	Reliance by Administrative Agent	58
	10.05	Delegation of Duties	59
	10.06	Resignation of Administrative Agent	59
	10.07	Non-Reliance on Administrative Agent and Other Lenders	60
	10.08	No Other Duties, Etc.	60
	10.09	Administrative Agent May File Proofs of Claim	60
	10.10	Collateral and Guaranty Matters	60
	10.11	No Reliance on Administrative Agent’s Customer Identification Program	61
	10.12	Consents and Approvals	61
	 	 	 
	ARTICLE XI. MISCELLANEOUS	62
	 	 	 
	11.01	Amendments, Etc.	62
	11.02	Notices; Effectiveness; Electronic Communication.	64
	11.03	No Waiver; Cumulative Remedies; Enforcement	66
	11.04	Expenses; Indemnity; Damage Waiver.	66
	11.05	Payments Set Aside	68
	11.06	Successors and Assigns.	68
	11.07	Treatment of Certain Information; Confidentiality	71
	11.08	Right of Setoff	72
	11.09	Interest Rate Limitation	72
	11.10	Counterparts; Integration; Effectiveness	72
	11.11	Survival of Representations and Warranties	72
	11.12	Severability	73
	11.13	Replacement of Lenders	73
	11.14	Governing Law; Jurisdiction; Etc.	73
	11.15	Waiver of Jury Trial	74
	11.16	No Advisory or Fiduciary Responsibility	75
	11.17	Electronic Execution of Assignments and Certain Other Documents	75
	11.18	USA PATRIOT Act	75
	11.19	ENTIRE AGREEMENT	75
	11.20	Promotional Materials	76
	11.21	Acknowledgement and Consent to Bail-In of EEA Financial Institutions	76


 




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	SCHEDULES	 	 
	 	 	 
	1.01(A)	Term Loan Commitments 	 
	1.01(B)	Guarantors	 
	6.05	Material Indebtedness and Other Liabilities	 
	6.06	Litigation	 
	6.08	Existing Liens	 
	6.09	Environmental Matters	 
	6.13	Subsidiaries; Other Equity Investments; Equity Interests	 
	6.17	Loan Parties’ Taxpayer Identification Numbers	 
	6.19	Initial Unencumbered Pool Properties	 
	11.02	Administrative Agent’s Office; Certain Addresses for Notices	 
	 	 	 
	EXHIBITS	 	 
	 	Form of	 
	 	 	 
	A	Term Loan Notice	 
	B	Term Note	 
	C	Compliance Certificate	 
	D	Assignment and Assumption	 
	E	Unencumbered Pool Report	 


 




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TERM LOAN AGREEMENT


 


This TERM LOAN AGREEMENT
(this “Agreement”) is entered into as of July 1, 2016 by and among AGREE LIMITED PARTNERSHIP, a Delaware limited
partnership (the “Borrower”), each of the Loan Parties from time to time party hereto, each lender from time
to time party hereto (collectively, the “Lenders” and individually, a “Lender”), and CAPITAL
ONE, NATIONAL ASSOCIATION, as Administrative Agent, with CAPITAL ONE, NATIONAL ASSOCIATION as Sole Lead Arranger and Sole Bookrunner.


 


The Administrative
Agent and the Lenders desire to make available to the Borrower a 7-year term loan facility in the initial amount of $40,000,000
on the terms and conditions contained herein.


 


In consideration of
the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:


 


ARTICLE I. DEFINITIONS
AND ACCOUNTING TERMS


 


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


 


“Adjusted
EBITDA” means EBITDA for the Consolidated Group for the most recently ended period of four fiscal quarters minus
the aggregate Annual Capital Expenditure Adjustment.


 


“Adjusted
Eurodollar Rate” means, with respect to each Interest Period for any Eurodollar Rate Loan, the rate obtained by dividing
(a) the Eurodollar Rate for such Interest Period by (b) a percentage equal to 1 minus the stated maximum rate (stated
as a decimal) of all reserves, if any, required to be maintained with respect to Eurocurrency funding (currently referred to as
“Eurocurrency liabilities”) as specified in Regulation D of the Board of Governors of the Federal Reserve System
(or against any other category of liabilities which includes deposits by reference to which the interest rate on Eurodollar Rate
Loans is determined or any applicable category of extensions of credit or other assets which includes loans by an office of any
Lender outside of the United States of America to residents of the United States of America). Any change in such maximum rate shall
result in a change in Adjusted Eurodollar Rate on the date on which such change in such maximum rate becomes effective.


 


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


 


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


 


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


 


“Affected
Eurodollar Rate Loan” has the meaning specified in Section 3.02.


 


“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.


 




     


     


    

 


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


 


“Annual Capital
Expenditure Adjustment” means for all Properties, an amount equal to (i) $0.10 multiplied by (ii)
the aggregate net rentable area (determined on a square feet basis) of all Properties multiplied by (iii) the number
of days in such period divided by (iv) 365.


 


“Anti-Terrorism
Laws” means any Laws relating to terrorism, trade sanctions programs and embargoes, import/export licensing, money laundering
or bribery, and any regulation, order, or directive promulgated, issued or enforced pursuant to such Laws, all as amended, supplemented
or replaced from time to time.


 


“Applicable
Percentage” means with respect to any Lender at any time, the percentage (carried out to the ninth decimal place) of
(a) the aggregate outstanding principal amount of the Term Loans represented by (b) the outstanding principal amount of such Lender’s
Term Loans at such time, subject to adjustment as provided in Section 2.18.


 


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


 


	Pricing Level	 	Leverage Ratio	 	Applicable Rate

for Eurodollar

Rate Loans	 	Applicable Rate

for Base Rate

Loans
	1	 	< 40%	 	1.65%	 	0.65%
	 	 	 	 	 	 	 
	2	 	≥ 40% but < 45%	 	1.75%	 	0.75%
	 	 	 	 	 	 	 
	3	 	≥ 45% but < 50%	 	1.90%	 	0.90%
	 	 	 	 	 	 	 
	4	 	≥ 50% but < 55%	 	2.05%	 	1.05%
	 	 	 	 	 	 	 
	5	 	≥ 55%	 	2.25%	 	1.25%


 


Any increase or decrease
in the Applicable Rate resulting from a change in the Leverage Ratio shall become effective as of the first Business Day immediately
following the date a Compliance Certificate is delivered pursuant to Section 7.02(a); provided, however, that
if a Compliance Certificate is not delivered when due in accordance with such Section, then Pricing Level 5 shall apply as
of the fifth Business Day after the date on which such Compliance Certificate was required to have been delivered and shall remain
in effect until the date on which such Compliance Certificate is delivered. The Applicable Rate in effect as of the Closing Date
shall be determined based upon Pricing Level 1.


 


“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.


 


“Arranger”
mean Capital One, National Association, in its capacity as sole lead arranger and sole bookrunner for the Term Loan Facility.


 


“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.


 




     2


     


    

 


“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 11.06(b)), and accepted by the Administrative Agent, in substantially
the form of Exhibit D or any other form approved by the Administrative Agent.


 


“Attributable
Indebtedness” means, on any date, (a) in respect of any capital lease of any Person, the capitalized amount thereof that
would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic
Lease Obligation, the capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance
sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a capital lease.


 


“Audited Financial
Statements” means the audited consolidated balance sheet of the Parent and its Subsidiaries for the fiscal year ended
December 31, 2015, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for
such fiscal year of the Parent and its Subsidiaries, including the notes thereto.


 


“Bail-In Action”
means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability
of an EEA Financial Institution.


 


“Bail-In Legislation”
means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of
the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the
EU Bail-In Legislation Schedule.


 


“Bankruptcy
Code” means the Bankruptcy Reform Act of 1978, as heretofore and hereafter amended, as codified at 11 U.S.C. § 101
et seq., and the rules and regulations promulgated thereunder, or any successor provision thereto.


 


“Base Rate”
for any day, a rate per annum equal to the highest of (a) the Federal Funds Rate for such day plus 1/2 of 1%, (b) the Prime Rate
for such day and (c) the Eurodollar Rate for a one month Interest Period plus 1.0%. Each change in any interest rate provided for
herein based upon the Base Rate resulting from a change in the Base Rate shall take effect at the time of such change in the Base
Rate. For purposes of this definition, the Eurodollar Rate referred to above shall be the rate for deposits in U.S. dollars for
a one-month period in the London interbank market, as determined by Administrative Agent based on quotes or other information available
to it, and shall not be required to be determined strictly in accordance with the requirements of the definition of “Eurodollar
Rate” and the notice and other provisions applicable thereto as set forth herein.


 


“Base Rate
Loan” means a Loan (or portion thereof) that bears interest based on the Base Rate.


 


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


 


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


 


“Borrowing”
means a borrowing consisting of simultaneous Term Loans and, in the case of Eurodollar Rate Loans, having the same Interest Period
made by each of the Lenders pursuant to Section 2.01.


 


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


 




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“Capital One”
means Capital One, National Association and its successors.


 


“Capitalization
Rate” means (i) 7.25% for any single or multiple tenant buildings leased to tenants all of which have Investment Grade
Ratings, but only to the extent that all such tenants maintain Investment Grade Ratings; and (ii) 8.50% for all other properties.


 


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


 


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


 


(a)          any
“person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act
of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity
as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined
in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial
ownership” of all securities that such person or group has the right to acquire, whether such right is exercisable immediately
or only after the passage of time (such right, an “option right”)), directly or indirectly, of 30% or more of
the equity securities of the Borrower entitled to vote for members of the board of directors or equivalent governing body of the
Borrower on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire
pursuant to any option right); or


 


(b)          during
any period of 12 consecutive months, a majority of the members of the board of directors or other equivalent governing body of
the Parent cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day
of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred
to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent
governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals
referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority
of that board or equivalent governing body; or


 


(c)          the
Parent fails at any time to own, directly or indirectly, at least 75% of the Equity Interests of the Borrower, free and clear of
all Liens; or


 


(d)          the
Borrower fails at any time to own, directly or indirectly, 99% of the Equity Interests of each other Loan Party, free and clear
of all Liens.


 




     4


     


    

 


“Closing Date”
means the first date on which all the conditions precedent in Section 5.01 are satisfied or waived in accordance with Section
11.01(a).


 


“Code”
means the Internal Revenue Code of 1986.


 


“Comparable
Credit Facility” means any agreement that evidences Unsecured Indebtedness which contains (a) restrictions on Contractual
Obligations of the types set forth in Section 8.08, (b) restrictions on activities of Subsidiaries of the types referred
to in clause (b) of the definition of Eligible Property and (c) a negative pledge and restrictions of the type referred
to in clause (d) of the definition of Eligible Property, in each case, that are not more restrictive than the corresponding
provisions of this Agreement.


 


“Compliance
Certificate” means a certificate signed by the chief executive officer, chief financial officer, treasurer or controller
of the Parent substantially in the form of Exhibit C.


 


“Consolidated
Group” means the Loan Parties and their consolidated Subsidiaries, as determined in accordance with GAAP.


 


“Construction
in Progress” means each Property that is either (a) new ground up construction which has commenced or is intended to
be under construction within twelve (12) months or (b) under renovation in which (i) greater than thirty percent (30%) of the square
footage of such Property is unavailable for occupancy due to renovation and (ii) no rents are being paid on such square footage.
A Property will cease to be classified as “Construction in Progress” on the earlier to occur of (A) with respect
to a multi-tenant Property, the time that such Property has an occupancy rate of greater than seventy-five percent (75%) from tenants
occupying such Property and paying rent, or (B) one hundred eighty (180) days after completion of construction or renovation
of such Property or (C) with respect to a single-tenant Property, rent commences from the tenant occupying such Property,
as applicable.


 


“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.


 


“Covered Entity”
means (a) the Borrower, each of the Borrower’s Subsidiaries and each Guarantor and (b) each Person that, directly or indirectly,
is in control of a Person described in clause (a) above. For purposes of this definition, control of a Person means the
direct or indirect (x) ownership of, or power to vote, 25% or more of the issued and outstanding Equity Interests having ordinary
voting power for the election of directors of such Person or other Persons performing similar functions for such Person, or (y)
power to direct or cause the direction of the management and policies of such Person, whether through the ability to exercise voting
power, by contract or otherwise.


 


“Credit Rating”
means the rating assigned by a Rating Agency to the senior unsecured long term Indebtedness of a Person.


 


“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.


 




     5


     


    

 


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


 


“Default Rate”
means an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate applicable to Base Rate Loans plus
(iii) 2.0% per annum.


 


“Defaulting
Lender” means, subject to Section 2.18(b), any Lender that (a) has failed to perform any of its funding obligations
hereunder, including in respect of its Term Loans, within three Business Days of the date required to be funded by it hereunder,
(b) has notified the Borrower, or the Administrative Agent 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
writing to the Administrative Agent that it will comply with its funding obligations, (d) has assigned all or any portion of its
Term Loan Commitment or Term Loans, as applicable, in breach of Section 11.06, 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, custodian, conservator,
trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of
its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority
acting in such a capacity, (iii) taken any action in furtherance of, or indicated its consent
to, approval of or acquiescence in any such proceeding or appointment; or (iv) become the subject of a Bail-In Action; provided
that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in
that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest
does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement
of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate,
disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender
is a Defaulting Lender under any one or more of clauses (a) through (e) above shall be conclusive and binding absent
manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.18(b))
upon delivery of written notice of such determination to the Borrower and each Lender.


 


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


 


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


 


“EBITDA”
means for the Consolidated Group, without duplication, the sum of (a) Net Income of the Consolidated Group, in each case, excluding
(i) any non-recurring or extraordinary gains and losses for such period, (ii) any income or gain and any loss in each case resulting
from early extinguishment of indebtedness and (iii) any net income or gain or any loss resulting from a swap or other derivative
contract (including by virtue of a termination thereof), plus (b) an amount which, in the determination of net income for
such period pursuant to clause (a) above, has been deducted for or in connection with (i) Interest Expense (plus,
amortization of deferred financing costs, to the extent included in the determination of Interest Expense per GAAP), (ii) income
taxes, and (iii) depreciation and amortization, all determined in accordance with GAAP for the prior four quarters and (iv) adjustments
as a result of the straight lining of rents, all as determined in accordance with GAAP, plus (c) the Consolidated Group’s
pro rata share of the above attributable to interests in Unconsolidated Affiliates.


 




     6


     


    

 


“EEA Financial
Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject
to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an
institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which
is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision
with its parent.


 


“EEA Member
Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.


 


“EEA Resolution
Authority” means any public administrative authority or any person entrusted with public administrative authority of
any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.


 


“Eligible
Assignee” means any Person that meets the requirements to be an assignee under Sections 11.06(b)(iii) and 11.06(b)(v)
(subject to such consents, if any, as may be required under Section 11.06(b)(iii)).


 


“Eligible
Ground Lease” means a ground lease containing terms and conditions customarily required by mortgagees making a loan secured
by the interest of the holder of the leasehold estate demised pursuant to a ground lease, including the following: (a) a remaining
term (exclusive of any unexercised extension options) of 40 years or more from the date of the Term Loan Facility documentation;
(b) the right of the lessee to mortgage and encumber its interest in the leased property, and to amend the terms of any such mortgage
or encumbrance, in each case, without the consent of the lessor; (c) the obligation of the lessor to give the holder of any mortgage
Lien on such leased property written notice of any defaults on the part of the lessee and agreement of such lessor that such lease
will not be terminated until such holder has had a reasonable opportunity to cure or complete foreclosures, and fails to do so;
(d) acceptable transferability of the lessee’s interest under such lease, including ability to sublease; (e) acceptable
limitations on the use of the leased property; and (f) clearly determinable rental payment terms which in no event contain profit
participation rights.


 


“Eligible
Property” means a Property that meets and continues to satisfy each of the following criteria:


 


(a)          such
Property must be a retail property and owned in fee simple, or leased under an Eligible Ground Lease, entirely by the Borrower
or a Subsidiary Guarantor;


 


(b)          the
Loan Party that owns or leases such Property must be wholly-owned, directly or indirectly, by the Borrower (or be a Subsidiary
of the Borrower that is controlled exclusively by the Borrower and/or one or more wholly-owned Subsidiaries of the Borrower, including
control over operating activities of such Subsidiary and the ability of such Subsidiary to dispose of, pledge or otherwise encumber
assets, incur, repay and prepay debt, provide guarantees and pay dividends and distributions in each case without any requirement
for the consent of any other party or entity other than the Lenders as required hereunder; provided that restrictions on
the foregoing activities may also be provided in a Comparable Credit Facility);


 


(c)          the
Loan Party that owns or leases such Property and such Property itself must be located in the United States;


 




     7


     


    

 


(d)          neither
such Property, nor if such Property is owned by a Subsidiary of the Borrower, any of the Parent’s or the Borrower’s
direct or indirect ownership in such Subsidiary, may be subject to any Liens (other than Permitted Liens (excluding Liens of the
type described in clause (f) of the definition of “Permitted Liens”)), negative pledges and/or encumbrances or
any restrictions on the ability of the relevant Loan Party to transfer or encumber such Property or income therefrom, or ownership
interests in such Subsidiary, or proceeds of such property or ownership interests (other than the negative pledge and restrictions
hereunder and a negative pledge and restrictions set forth in the loan documents with respect to any other Comparable Credit Facility);


 


(e)          such
Property may not be subject to title, survey, environmental or other defects, except for title, survey, environmental or other
defects that do not materially detract from the value of such Property or materially interfere with the ordinary conduct of the
business of the applicable Person;


 


(f)          the
Loan Party that owns or leases such Property may not incur or otherwise be liable for any Indebtedness other than the Obligations,
trade payables and other Indebtedness permitted to be incurred by Loan Parties hereunder; and


 


(g)          the
Loan Party that owns or leases such Property must satisfy the requirements of Section 7.14(a).


 


If a Property which the
Borrower wants to have included as an Eligible Property does not satisfy the requirements of an Eligible Property, then the Borrower
shall so notify the Administrative Agent in writing and shall provide to the Administrative Agent a description of all the above-listed
criteria that such Property does not meet, historical operating statements and such other Property level diligence materials as
the Administrative Agent may reasonably request. The Administrative Agent shall promptly make available to each Lender the items
delivered by the Borrower pursuant to the preceding sentence and request that the Lenders determine whether such Property shall
be included as an Eligible Property. No later than 10 Business Days after the date on which a Lender has been provided with such
request and all of such items, such Lender shall notify the Administrative Agent in writing whether or not such Lender approves
that such Property be included as an Eligible Property (which approval shall not be unreasonably withheld, conditioned or delayed).
If a Lender fails to give such notice within such time period, such Lender shall be deemed to have not approved of the inclusion
of such Property as an Eligible Property. If the Required Lenders have approved such Property being included as an Eligible Property,
then such Property shall become an Eligible Property. The provisions of this paragraph shall be subject to Section 11.01(b)(i)(y).


 


“Engagement
Letters” means the (x) letters dated June 16, 2016, between the Borrower and Capital One and (y) letters dated June
2016 between the Borrower and Raymond James Bank, N.A.


 


“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.


 


“Environmental
Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Borrower, any other Loan Party or any of their respective Subsidiaries directly
or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation,
storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened
release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant
to which liability is assumed or imposed with respect to any of the foregoing.


 




     8


     


    

 


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


 


“ERISA Event”
means (a) any “reportable event” as defined in Section 4043 of ERISA with respect to a Plan (other than an event as
to which the PBGC has waived under subsection .22, .23, .25, .27 or .28 of PBGC Regulation Section 4043 the requirement of Section
4043(a) of ERISA that it be notified of such event); (b) any failure to make a required contribution to any Plan that would result
in the imposition of a lien or other encumbrance or the provision of security under Section 430 of the Code or Section 303 or 4068
of ERISA, or the arising of such a lien or encumbrance, there being or arising any “unpaid minimum required contribution”
(as defined or otherwise set forth in Section 4971 of the Code or Part 3 of Subtitle B of Title 1 of ERISA), whether or not waived,
or any filing of any request for or receipt of a minimum funding waiver under Section 412 of the Code or Section 303 of ERISA with
respect to any Plan, or that such filing may be made, or any determination that any Plan is, or is reasonably expected to be, in
at-risk status under Title IV of ERISA; (c) any incurrence by the Borrower, any of its Subsidiaries or any of their respective
ERISA Affiliates of any liability under Title IV of ERISA with respect to any Plan or Multiemployer Plan (other than for premiums
due and not delinquent under Section 4007 of ERISA); (d) any institution of proceedings, or the occurrence of an event or condition
which would reasonably be expected to constitute grounds for the institution of proceedings by the PBGC, under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to administer, any Plan; (e) any incurrence by the Borrower,
any of its Subsidiaries or any of their respective ERISA Affiliates of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan, or the receipt by the Borrower, any of its Subsidiaries or any of their respective
ERISA Affiliates of any notice that a Multiemployer Plan is in endangered or critical status under Section 305 of ERISA; (f) any
receipt by the Borrower, any of its Subsidiaries or any of their respective ERISA Affiliates of any notice, or any receipt by any
Multiemployer Plan from the Borrower, any of its Subsidiaries or any of their respective ERISA Affiliates of any notice, concerning
the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA; (g) engaging in a non-exempt prohibited transaction within the meaning of Section 4975
of the Code or Section 406 of ERISA; or (h) any filing of a notice of intent to terminate any Plan if such termination would require
material additional contributions in order to be considered a standard termination within the meaning of Section 4041(b) of ERISA,
any filing under Section 4041(c) of ERISA of a notice of intent to terminate any Plan, or the termination of any Plan under Section
4041(c) of ERISA.


 


“EU Bail-In
Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor
Person), as in effect from time to time.


 




     9


     


    

 


“Eurodollar
Rate” means, for any Eurodollar Rate Loan for any Interest Period therefor, the London interbank offered rate administered
by the ICE Benchmark Administration (or any other Person that takes over the administration of such rate for Dollars) for a period
equal in length to such Interest Period as displayed on pages LIBOR01 or LIBOR02 of the Reuters screen or, in the event such rate
does not appear on a Reuters page or screen, on any successor or substitute page on such screen that displays such rate, or on
the appropriate page of such other information service that publishes such rate as shall be selected by the Administrative Agent
from time to time in its reasonable discretion (the “LIBOR Screen Rate”) at approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period for a term comparable to such Interest Period. If for any reason
such rate is not available, the term “Eurodollar Rate” shall mean, for any Eurodollar Rate Loan for any Interest Period
therefor, the applicable British Bankers’ Association LIBOR rate for deposits in Dollars as reported by any generally recognized
financial information service as of 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period,
and having a maturity equal to such Interest Period. If for any reason the LIBOR Screen Rate shall not be available at such time
for a period equal in length to such Interest Period, then the Eurodollar Rate shall be an interpolated rate as determined by the
Administrative Agent at such time to be the rate at which Capital One or one of its affiliate banks offers to place deposits in
Dollars with first class banks in the London interbank market at approximately 11:00 a.m. (London time) two Business Days
prior to the first day of such Interest Period, in the approximate amount of the relevant Eurodollar Rate Loan and having a maturity
equal to such Interest Period. Except with respect to any portion of a Eurodollar Rate Loan which the Borrower has notified the
Administrative Agent in writing is subject to a Swap Contract entered into for the purpose of hedging interest rate risk, if the
Eurodollar Rate determined as provided above would be less than zero, then the Eurodollar Rate shall be deemed to be zero. Notwithstanding
the above, if the “Eurodollar Rate” is used in connection with a Base Rate Loan, such rate shall be determined as modified
by the definition of Base Rate.


 


“Eurodollar
Rate Loan” means a Term Loan (or portion thereof) that bears interest at a rate based on the Eurodollar Rate (other than
a Base Rate Loan during any period that the Base Rate is determined pursuant to clause (c) of the definition of “Base Rate”).


 


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


 


“Excluded
Subsidiary” means (a) any Subsidiary of the Borrower (i) holding title to assets that are or are to become
collateral for any Secured Indebtedness of such Subsidiary and (ii) that is prohibited from Guaranteeing the Indebtedness
of the Borrower, in each case, pursuant to (x) any document, instrument, or agreement evidencing or that will evidence such
Secured Indebtedness or (y) any provision of such Subsidiary’s organizational documents which provision was included
in such Subsidiary’s organizational documents as a condition to the extension of such Secured Indebtedness or (b) any
Subsidiary that is not a wholly-owned Subsidiary.


 


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


 




     10


     


    

 


“Existing
Credit Agreement” means that certain Revolving Credit and Term Loan Agreement dated July 21, 2014, among the Borrower,
PNC Bank, National Association, as Administrative Agent, Swing Line Lender and L/C Issuer and the other lenders party thereto.


 


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


 


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


 


“Federal Funds
Rate” means for any day, the rate per annum (rounded upwards, if necessary, to the nearest 1/32 of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the Federal Reserve System on such day, provided that
if such day is not a Business Day, the Federal Funds Rate for the immediately preceding Business Day shall be applicable, as determined
by Administrative Agent, or such other commercial bank as selected by Administrative Agent.


 


“Fitch”
means Fitch Ratings Inc. and any successor thereto.


 


“Fixed Charges”
means for the Consolidated Group, without duplication, the sum of (a) Interest Expense, plus (b) scheduled principal
payments, exclusive of balloon payments, plus (c) dividends and distributions on preferred stock, if any, plus (d)
the Consolidated Group’s pro rata share of the above attributable to interests in Unconsolidated Affiliates, all for the
most recently ended period of four fiscal quarters.


 


“Foreign Lender”
means any Lender that is organized under the Laws of a jurisdiction other than that in which the Borrower is resident for tax purposes.
For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute
a single jurisdiction.


 


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


 


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


 


“Funds From
Operations” means, with respect to the immediately prior twelve month period, the Consolidated Group’s net income
(or loss), plus depreciation, amortization and impairment charges on depreciable real estate assets and after adjustments for unconsolidated
partnerships and joint ventures as hereafter provided. Notwithstanding contrary treatment under GAAP, for purposes hereof, (a)
“Funds From Operations” shall include, and be adjusted to take into account, the Borrower’s interests in unconsolidated
partnerships and joint ventures, on the same basis as consolidated partnerships and subsidiaries, as provided in the “white
paper” issued in April 2002 by the National Association of Real Estate Investment Trusts, and (b) net income (or loss) shall
not include gains (or, if applicable, losses) resulting from or in connection with (i) restructuring of indebtedness, (ii) sales
of property, (iii) sales or redemptions of preferred stock, (iv) non-cash charges, or (v) non-recurring charges.


 




     11


     


    

 


“GAAP”
means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in
the United States, that are applicable to the circumstances as of the date of determination, consistently applied.


 


“Governmental
Authority” means any nation or government, any state or other political subdivision thereof or any entity, authority,
agency, division or department exercising the executive, legislative, judicial, taxing, regulatory or administrative powers or
functions of or pertaining to a government (including any supra-national bodies such as the European Union or the European Central
Bank) and any group or body charged with setting financial accounting or regulatory capital rules or standards (including, without
limitation, the Financial Accounting Standards Board, the Bank for International Settlements or the Basel Committee on Banking
Supervision or any successor or similar authority to any of the foregoing).


 


“Guarantee”
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 (or any right, contingent or
otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any Guarantee 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 Guarantee
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. The term “Guarantee” as a verb has a corresponding meaning. The term “Guarantee”
shall not include limited guaranties of customary exceptions for fraud, misapplication of funds, environmental indemnities, voluntary
bankruptcy, collusive involuntary bankruptcy and other similar exceptions to non-recourse liability.


 


“Guarantors”
means, collectively, Parent and each Subsidiary Guarantor, and “Guarantor” means any one of the Guarantors.
The initial Guarantors are listed on Schedule 1.01(B).


 


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


 


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


 




     12


     


    

 


“Immaterial
Subsidiary” means a Subsidiary the fair market value of whose assets is less than $10,000.


 


“Indebtedness”
means, for the Consolidated Group, without duplication, all of the following, whether or not included as indebtedness or liabilities
in accordance with GAAP:


 


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


 


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


 


(c)          net
obligations under any Swap Contract;


 


(d)          all
obligations to pay the deferred purchase price of property or services;


 


(e)          capital
leases, Synthetic Lease Obligations and Synthetic Debt;


 


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


 


(g)          indebtedness
(excluding prepaid interest thereon) secured by a Lien on property (including indebtedness arising under conditional sales or other
title retention agreements) whether or not such indebtedness has been assumed by the grantor of the Lien or is limited in recourse;
and


 


(h)          all
Guarantees in respect of any of the foregoing (except for Guarantees of customary exceptions for fraud, misapplication of funds,
environmental indemnities, voluntary bankruptcy, collusive involuntary bankruptcy and other similar exceptions to non-recourse
liability).


 


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


 


“Indemnified
Taxes” means Taxes other than Excluded Taxes.


 


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


 


“Information”
has the meaning specified in Section 11.07.


 


“Interest
Expense” means, without duplication, total interest expense of the Consolidated Group determined in accordance with GAAP
(including for the avoidance of doubt capitalized interest and interest expense attributable to the Consolidated Group’s
ownership interests in Unconsolidated Affiliates), all for the most recently ended period of four fiscal quarters.


 




     13


     


    

 


“Interest
Payment Date” means, (a) as to any Term Loan other than a Base Rate Loan, the last day of each Interest Period applicable
to such Term Loan and the Maturity Date; provided, however, that if any Interest Period for a Eurodollar Rate Loan
exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also
be Interest Payment Dates; and (b) as to any Base Rate Loan, the first day of each calendar month and the Maturity Date.


 


“Interest
Period” means as to each Eurodollar Rate Loan, the period commencing on the date such Eurodollar Rate Loan is disbursed,
converted to or continued as a Eurodollar Rate Loan and ending on the date one, two, three or six months thereafter (or such other
period as the Administrative Agent in its sole discretion may allow the Borrower to select; provided, that such period
is available from all of the Lenders), as selected by the Borrower in the applicable Term Loan Notice; provided, that:


 


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


 


(ii)         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


 


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


 


“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 or other securities of another Person, (b) a loan, advance or capital contribution to, Guarantee
or assumption of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person,
including any partnership or joint venture interest in such other Person and any arrangement pursuant to which the investor Guarantees
Indebtedness of such other Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions) of
assets of another Person that constitute a business unit; provided that the term “Investment” shall not include
(i) equipment, inventory and other tangible personal property acquired in the ordinary course of business, and (ii) Guarantees
of customary exceptions for fraud, misapplication of funds, environmental indemnities, voluntary bankruptcy, collusive involuntary
bankruptcy and other similar exceptions to non-recourse liability.


 


“Investment
Grade Rating” means a Credit Rating of BBB-/Baa3/BBB- (or the equivalent) or higher from a Rating Agency.


 


“IRS”
means the United States Internal Revenue Service.


 


“Laws”
means any law(s) (including common law), constitution, statute, treaty, regulation, rule, ordinance, opinion, issued guidance,
release, ruling, order, executive order, injunction, writ, decree, bond, judgment, authorization or approval, lien or award of
or any settlement arrangement, by agreement, consent or otherwise, with any Governmental Authority, foreign or domestic.


 


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


 


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


 




     14


     


    

 


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


 


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


 


“Loan”
means a Term Loan.


 


“Loan Documents”
means this Agreement, each Term Note, the Engagement Letters, and the Guaranty.


 


“Loan Parties”
means, collectively, the Borrower and each Guarantor.


 


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


 


“Master Agreement”
has the meaning specified in the definition of “Swap Contract”.


 


“Material
Adverse Effect” means (A) a material adverse change in, or a material adverse effect on, the operations, business, assets,
properties, liabilities (actual or contingent), or condition (financial or otherwise) of the Parent or the Borrower and its Subsidiaries,
taken as a whole; (B) a material adverse effect on the rights and remedies of the Administrative Agent or any Lender under any
Loan Documents, or of the ability of the Borrower and the Loan Parties taken as a whole to perform their obligations under any
Loan Documents; or (C) a material adverse effect upon the legality, validity, binding effect or enforceability against any Loan
Party of any Loan Documents to which it is a party.


 


“Material
Subsidiary” means one or more Subsidiaries, individually or in the aggregate, having assets equal to or greater than
$30,000,000 in value.


 


“Maturity
Date” means July 1, 2023 or, if such day is not a Business Day, the immediately preceding Business Day.


 


“Metropolitan
Statistical Area” means a Metropolitan Statistical Area as listed in Budget Bulletin No. 09-01 issued by the Executive
Office of the President of the United States of America, Office of Management and Budget.


 


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


 


“Multiemployer
Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Borrower
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.


 




     15


     


    

 


“Net Income”
means the net income (or loss) of the Consolidated Group for the subject period; provided, however that Net Income shall
exclude (a) extraordinary gains and extraordinary losses for such period, (b) the net income of any subsidiary of the Parent during
such period to the extent that the declaration or payment of dividends or similar distributions by such subsidiary of such income
is not permitted by operation of the terms of its organization documents or any agreement, instrument or law applicable to such
subsidiary during such period, except that the Parent’s equity in any net loss of any such subsidiary for such period shall
be included in determining Net Income, (c) any income (or loss) for such period of any Person if such Person is not a subsidiary
of the Parent, except that the Parent’s equity in the net income of any such Person for such period shall be included in
Net Income up to the aggregate amount of cash actually distributed by such Person during such period to the Parent or a subsidiary
thereof as a dividend or other distribution (and in the case of a dividend or other distribution to a subsidiary of the Parent,
such subsidiary is not precluded from further distributing such amount to the Parent as described in clause (b) of this
proviso), and (d) rental or other income from (i) any lease in respect of real property to tenants in any proceedings under
any Debtor Relief Laws during the subject period that was not paid on the date rent was due to be paid by such tenant taking into
account any applicable grace or cure period provided for by the terms of such lease, (ii) any lease in respect of real property
to tenants in any proceedings under any Debtor Relief Laws that did not physically occupy such real property during the entirety
of such period, and (iii) any leases in respect of real property to tenants, which leases have been rejected in any proceeding
under Debtor Relief Laws during the subject period. To the extent that more than ten (10%) of Net Income would be attributable
to any rental or other income received from tenants in any proceedings under any Debtor Relief Laws, the Net Income of which is
not already excluded in determining the Net Income under the immediately clause (d), such excess shall be excluded from the
Net Income.


 


“Net Operating
Income” means for any real property and for any period, an amount equal to the following (without duplication): (a) the
aggregate gross revenues from the operations of such real property during such period (exclusive of any rental or other income
from (i) any lease in respect of such real property to tenants in any proceedings under any Debtor Relief Laws during the
subject period that was not paid on the date rent was due to be paid by such tenant taking into account any applicable grace or
cure period provided for by the terms of such lease, (ii) any lease in respect of such real property to tenants in any proceedings
under any Debtor Relief Laws that did not physically occupy such real property during the entirety of such period, and (iii) any
leases in respect of such real property to tenants, which leases have been rejected in any proceeding under Debtor Relief Laws
during the subject period), plus (b) the aggregate gross revenues from any ground leases, minus (c) the sum of (i)
all expenses and other proper charges incurred in connection with the operation of such real property during such period (including
accruals for real estate taxes and insurance and an amount equal to the greater of (x) 3% of rents and (y) actual management fees
paid in cash, but excluding capital expenditures, debt service charges, income taxes, depreciation, amortization and other non-cash
expenses), which expenses and accruals shall be calculated in accordance with GAAP minus (d) the Annual Capital Expenditure
Adjustment.


 


“Non-Recourse
Indebtedness” means, with respect to a Person, Indebtedness for borrowed money in respect of which recourse for payment
(except for customary exceptions for fraud, misapplication of funds, environmental indemnities, and other similar customary exceptions
to nonrecourse liability) is contractually limited to specific assets of such Person encumbered by a Lien securing such Indebtedness.


 


“Non-U.S.
Plan” shall mean any plan, fund (including any superannuation fund) or other similar program established, contributed
to (regardless of whether through direct contributions or through employee withholding) or maintained outside the United States
by the Borrower or one or more of its Subsidiaries primarily for the benefit of employees of the Borrower or such Subsidiaries
residing outside the United States, which plan, fund or other similar program provides, or results in, retirement income, a deferral
of income in contemplation of retirement, or payments to be made upon termination of employment, and which plan is not subject
to ERISA or the Code.


 


“Note”
means a Term Note.


 




     16


     


    

 


“Obligations”
means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document
or otherwise with respect to any Term Loan, whether direct or indirect (including those acquired by assumption), absolute or contingent,
due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or
against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor
in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding. For the avoidance of doubt,
“Obligations” shall not include any obligations or liabilities under any Swap Contract.


 


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


 


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


 


“Overnight
Rate” means, for any day, the greater of (i) the Federal Funds Rate and (ii) an overnight rate determined by the Administrative
Agent in accordance with banking industry rules on interbank compensation.


 


“Parent”
means Agree Realty Corporation, a Maryland corporation.


 


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


 


“Patriot Act”
means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001, Public Law 107-56, as the same has been, or shall hereafter be, renewed, extended, amended or replaced.


 


“PBGC”
means the Pension Benefit Guaranty Corporation.


 


“Permitted
Distributions” means (a) for Parent for any fiscal year of Parent, Restricted Payments in an amount not to exceed in
the aggregate the greater of (i) 95% of Funds From Operations, calculated on a trailing twelve month basis, and (ii) the amount
of Restricted Payments required to be paid by the Parent in order for it to (x) maintain its REIT status for federal or state income
tax purposes and (y) avoid the payment of federal or state income or excise tax; provided, however that (1) during
an Event of Default under Section 9.01(a), Restricted Payments by the Parent shall only be permitted up to the minimum amount
needed to maintain the REIT status as a REIT for federal and state income tax purposes, and (2) notwithstanding the preceding clause
(1), no Restricted Payments will be permitted following acceleration of amounts owing hereunder or during the existence of
an Event of Default under Section 9.01(h).


 


“Permitted
Liens” means, with respect to any asset or property of a Person:


 




     17


     


    

 


(a)          Liens
for taxes, assessments, charges and levies imposed by any Governmental Authority (excluding any Lien imposed under ERISA or pursuant
to any Environmental Laws), in each case, not yet due or which are being contested in good faith and by appropriate proceedings
diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance
with GAAP;


 


(b)          carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course
of business which are not overdue for a period of more than 30 days or which are being contested in good faith and by appropriate
proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person;


 


(c)          pledges
or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other
social security legislation, other than any Lien imposed by ERISA;


 


(d)          deposits
to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;


 


(e)          easements,
rights-of-way, restrictions, leases, occupancy agreements and other similar encumbrances arising in the ordinary course of business
affecting real property which, in the aggregate, are not substantial in amount, and which do not in any case materially detract
from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable
Person; and


 


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


 


“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 defined in Section 3 of ERISA (other than a Multiemployer Plan) maintained or
contributed to by the Borrower or any ERISA Affiliate or to which the Borrower or any ERISA Affiliate has or may have an obligation
to contribute, and each such plan that is subject to Title IV of ERISA for the five-year period immediately following the latest
date on which the Borrower or any ERISA Affiliate maintained, contributed to or had an obligation to contribute to (or is deemed
under Section 4069 of ERISA to have maintained or contributed to or to have had an obligation to contribute to, or otherwise to
have liability with respect to) such plan.


 


“Platform”
has the meaning specified in Section 7.02.


 


“Prime Rate”
means the rate of interest from time to time announced by Capital One at its principal office as its prime commercial lending rate,
it being understood that such prime commercial rate is a reference rate and does not necessarily represent the lowest or best rate
being charged by Capital One to any customer and such rate is set by Capital One based upon various factors including Capital One’s
costs and desired return, general economic conditions and other factors. Any change in such prime rate announced by Capital One
shall take effect at the opening of business on the day specified in the announcement of such change.


 


“Property”
means any Real Property which is owned, directly or indirectly, by a Loan Party.


 




     18


     


    

 


“Property
Owners” means, collectively, each Subsidiary which owns an Unencumbered Pool Property, and “Property Owner”
means any one of the Property Owners.


 


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


 


“Rating Agency”
means S&P, Moody’s or Fitch.


 


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


 


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


 


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


 


“REIT”
means a Person qualifying for treatment as a “real estate investment trust” under the Code.


 


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


 


“Reportable
Compliance Event” means that any Covered Entity, or in the case of a Shareholder Covered Entity, a Responsible Officer
of either the Borrower or the Parent obtains actual knowledge that such Shareholder Covered Entity, becomes a Sanctioned Person,
or is charged by indictment, criminal complaint or similar charging instrument, arraigned, or custodially detained in connection
with any Anti-Terrorism Law or any predicate crime to any Anti-Terrorism Law, or has knowledge of facts or circumstances to the
effect that it is reasonably likely that any aspect of its operations is in actual or probable violation of any Anti-Terrorism
Law.


 


“Required
Lenders” means, as of any date of determination, Lenders having at least 66-2/3% of the aggregate outstanding principal
amount of the Term Loans; provided that the Term Loans of any Defaulting Lender shall be excluded for purposes of making
a determination of Required Lenders.


 


“Responsible
Officer” means the chief executive officer, chairman of the board, chief financial officer or president, and solely for
purposes of the delivery of incumbency certificates pursuant to Section 5.01, the secretary or any assistant secretary of
a Loan Party. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed
to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible
Officer shall be conclusively presumed to have acted on behalf of such Loan Party.


 


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


 




     19


     


    

 


“Sanctioned
Country” means a country subject to a sanctions program maintained under any Anti-Terrorism Law.


 


“Sanctioned
Person” means any individual person, group, regime, entity or thing listed or otherwise recognized as a specially designated,
prohibited, sanctioned or debarred person, group, regime, entity or thing, or subject to any limitations or prohibitions (including
but not limited to the blocking of property or rejection of transactions), under any Anti-Terrorism Law.


 


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


 


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


 


“Secured Indebtedness”
means for any Person, Indebtedness of such Person that is secured by a Lien.


 


“Secured Recourse
Indebtedness” means for any Person, Recourse Indebtedness of such Person that is secured by a Lien.


 


“Shareholder
Covered Entity” means any Person that is a Covered Person solely because such Person owns Equity Interests in the Parent.


 


“Solvent”
means, when used with respect to any Person, that (a) the fair value and the fair salable value of its assets (excluding any Indebtedness
due from any affiliate of such Person) are each in excess of the fair valuation of its total liabilities (including all contingent
liabilities); (b) such Person is able to pay its debts or other obligations in the ordinary course as they mature; and (c) such
Person has capital not unreasonably small to carry on its business and all business in which it proposes to be engaged.


 


“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 specified, all references herein to a “Subsidiary” or to “Subsidiaries”
shall refer to a Subsidiary or Subsidiaries of the Borrower.


 


“Subsidiary
Guarantor” means, as of any date, a Subsidiary of the Borrower that is a party to the Guaranty.


 


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


 




     20


     


    

 


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


 


“Synthetic
Lease Obligation” means the monetary obligation of a Person under (a) a so-called synthetic, off-balance sheet or tax
retention lease, or (b) an agreement for the use or possession of property creating obligations that do not appear on the balance
sheet of such Person but which, upon the insolvency or bankruptcy of such Person, would be characterized as the indebtedness of
such Person (without regard to accounting treatment).


 


“Tangible
Net Worth” means for the Consolidated Group as of any date of determination, (a) total equity on a consolidated basis
determined in accordance with GAAP, minus (b) all intangible assets on a consolidated basis determined in accordance with
GAAP plus (c) all depreciation determined in accordance with GAAP.


 


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


 


“Term Loan”
has the meaning specified in Section 2.01.


 


“Term Loan
Commitment” means, as to a Lender, its obligation to make a Term Loan to the Borrower pursuant to Section 2.01,
in the principal amount set forth opposite such Lender’s name on Schedule 1.01(A) as its “Term Loan Commitment”.
As used herein, “Term Loan Commitments” shall refer to the aggregate Term Loan Commitments of the Lenders.


 


“Term Loan
Facility” means the extensions of credit made hereunder by the Lenders.


 


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


 


“Term Note”
means a promissory note made by the Borrower in favor of a Lender evidencing the Term Loan made by such Lender, substantially in
the form of Exhibit B.


 


“Total Asset
Value” means at any time for the Consolidated Group, without duplication, the sum of the following: (a) an amount equal
to (1) Net Operating Income for the most recently ended period of four fiscal quarters from all real property assets owned by the
Consolidated Group for such entire period (excluding Net Operating Income attributable to real property assets disposed of during
such period), divided by (2) the Capitalization Rate, plus (b) the aggregate acquisition cost of all owned
real property assets owned by the Consolidated Group for less than four fiscal quarters, plus (c) the aggregate book value
of all unimproved land holdings, mortgage or mezzanine loans, notes receivable and/or construction in progress owned by the Consolidated
Group, plus (d) the Consolidated Group’s pro rata share of the foregoing items and components attributable to interests
in Unconsolidated Affiliates.


 




     21


     


    

 


“Total Indebtedness”
means all Indebtedness of the Consolidated Group determined on a consolidated basis.


 


“Total Secured
Indebtedness” means all Secured Indebtedness of the Consolidated Group determined on a consolidated basis.


 


“Type”
when used in reference to a Term Loan or a Borrowing, refers to whether the rate of interest on such Term Loan, or on the Term
Loans comprising such Borrowing, is determined by reference to the Eurodollar Rate or the Base Rate.


 


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


 


“Unencumbered
Asset Value” means at any time for the Consolidated Group, without duplication, the sum of the Unencumbered Pool NOI
divided by the Capitalization Rate.


 


“Unencumbered
Pool NOI” means, at any time with respect to an Unencumbered Pool Property, the Net Operating Income from such Property
for the fiscal quarter most recently ended multiplied by four. For the avoidance of doubt, the Net Operating
Income of a Property that has been owned or leased by a Person for less than one fiscal quarter will be included in calculating
Unencumbered Pool NOI as if such Property was owned by such Person for the then most recent fiscal quarter. For the avoidance of
doubt, the Net Operating Income of a Property that was sold by a Person within the fiscal quarter will be excluded in calculating
Unencumbered Pool NOI. For the purposes of calculating the aggregate Unencumbered Pool NOI of all Unencumbered Pool Properties:


 


(a)          no
single Property may account for greater than fifteen (15%) of the aggregate Unencumbered Pool NOI, with any excess over such limit
being deducted from the aggregate Unencumbered Pool NOI;


 


(b)          no
more than twenty-five (25%) of the aggregate Unencumbered Pool NOI may be in respect of Unencumbered Pool Properties that are located
in any one Metropolitan Statistical Area, with any excess over such limit being deducted from the aggregate Unencumbered Pool NOI;


 


(c)          no
more than seventy-five percent (75%) of the aggregate Unencumbered Pool NOI may be in respect of single tenant facilities that
have a tenant without an Investment Grade Rating, with any excess over such limit being excluded from the aggregate Unencumbered
Pool NOI;


 


(d)          no
more than ten (10%) of the aggregate Unencumbered Pool NOI may be from a single tenant without an Investment Grade Rating and no
more than twenty-five (25%) of the aggregate Unencumbered Pool NOI may be from a single tenant with an Investment Grade Rating,
with any excess over such limits being deducted from the aggregate Unencumbered Pool NOI;


 


(e)          to
the extent that more than ten (10%) of the aggregate Unencumbered Pool NOI would be attributable to any rental or other income
received from tenants in any proceedings under any Debtor Relief Laws, the Net Operating Income of which is not excluded in determining
the Net Operating Income for such Property, such excess shall be excluded from the aggregate Unencumbered Pool NOI; and


 




     22


     


    

 


(f)          if
the aggregate occupancy rate (determined with respect to tenants in actual occupancy and paying rent) of all Properties included
as Unencumbered Pool Properties would be less than eighty-five percent (85%), Borrower shall exclude from the determination of
the Unencumbered Pool NOI one or more of such Unencumbered Pool Properties as may be necessary for such aggregate occupancy rate
to equal or exceed eighty-five percent (85%); and


 


(g)          to
the extent that more than fifteen (15%) of the aggregate Unencumbered Pool NOI would be attributable to Properties leased under
Eligible Ground Leases, such excess shall be excluded from the aggregate Unencumbered Pool NOI.


 


“Unencumbered
Pool Property” means an Eligible Property that pursuant to the terms of this Agreement is permitted to be included in
determinations of Unencumbered Pool NOI and Unencumbered Asset Value.


 


“Unencumbered
Pool Report” means a report in substantially the form of Exhibit E (or such other form approved by Administrative
Agent) certified by the chief executive officer, chief financial officer, treasurer or controller of the Borrower.


 


“Unfunded
Pension Liability” of any Plan shall mean the amount, if any, by which the value of the accumulated plan benefits under
the Plan, determined on a plan termination basis in accordance with actuarial assumptions at such time consistent with those prescribed
by the PBGC for purposes of Section 4044 of ERISA, exceeds the fair market value of all Plan assets allocable to such liabilities
under Title IV of ERISA (excluding any accrued but unpaid contributions).


 


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


 


“Unsecured
Indebtedness” means all Indebtedness which is not secured by a lien on any property.


 


“Unsecured
Interest Expense” means, as of any given date, Interest Expense of any of the Parent and its Subsidiaries with respect
to Indebtedness that is not Secured Indebtedness.


 


“Withdrawal
Liability” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer
Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.


 


“Write-Down
and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such
EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down
and conversion powers are described in the EU Bail-In Legislation Schedule.


 




     23


     


    

 


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


 


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


 


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


 


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


 


1.03        Accounting
Terms.


 


(a)          Generally.
All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data
(including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared
in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that
used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein. Notwithstanding the foregoing,
for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein,
Indebtedness of the Borrower and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof,
and the effects of FASB ASC 825 on financial liabilities shall be disregarded.


 


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


 


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


 


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


 




     24


     


    

 


1.06        Intentionally
Omitted.


 


1.07        Classifications
of Term Loans and Borrowings. For purposes of this
Agreement, Term Loans may be classified and referred to by Type (e.g. “Eurodollar Rate Loan” or “Base Rate Loan”).
Borrowings also may be classified and referred to by Type (e.g. “Base Rate Borrowing” or “Eurodollar Rate Borrowing”).


 


ARTICLE II. THE
TERM LOANS AND BORROWINGS


 


2.01        Term
Loans. Subject to the terms and conditions set
forth herein, each Lender severally agrees to make a loan (each such loan, a “Term Loan”) to the Borrower on
the Closing Date in a principal amount equal to such Lender’s Term Loan Commitment. Upon a Lender making its Term Loan,
the Term Loan Commitment of such Lender shall terminate. Any portion of a Term Loan made under this Section 2.01 and repaid
or prepaid may not be reborrowed. Term Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein. Additional
Term Loans may be made in accordance with Section 2.16(b).


 


2.02        Borrowings,
Conversions and Continuations of Term Loans.


 


(a)          Each
Borrowing, each conversion of Term Loans from one Type to the other, and each continuation of Eurodollar Rate Loans shall be made
upon the Borrower’s irrevocable notice to the Administrative Agent, which must be given in writing. Each such notice must
be received by the Administrative Agent not later than 11:00 a.m. (i) three Business Days prior to the requested date of any Borrowing
of, conversion to or continuation of Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base Rate Loans, and
(ii) one Business Day prior to the requested date of any Borrowing of Base Rate Loans. Each conversion to or continuation of Eurodollar
Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof. Each conversion to Base
Rate Loans shall be in a principal amount of $100,000 or a whole multiple of $50,000 in excess thereof. Each Term Loan Notice shall
specify (i) whether the Borrower is requesting a Borrowing, a conversion of Term Loans from one Type to the other, or a continuation
of Eurodollar Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which
shall be a Business Day), (iii) the principal amount of Term Loans to be borrowed, converted or continued, (iv) the Type of Term
Loans to be borrowed or the Type to which existing Term Loans are to be converted, and (v) if applicable, the duration of the Interest
Period with respect thereto. If the Borrower fails to specify a Type of Term Loans in a Term Loan Notice or if the Borrower fails
to give a timely notice requesting a conversion or continuation, then, so long as no Default exists at the time of such making,
the Term Loans shall be made as, continued as, or converted to, Eurodollar Rate Loans having an Interest Period of one month; provided,
however, that if a Default exists at the time of such making, continuation or conversion, then the applicable Term Loans
shall be made as, or converted to, Base Rate Loans. Any such automatic conversion shall be effective as of the last day of the
Interest Period then in effect with respect to the applicable Eurodollar Rate Loans. If the Borrower requests a Borrowing of, conversion
to, or continuation of Eurodollar Rate Loans in any such Term Loan Notice, but fails to specify an Interest Period, it will be
deemed to have specified an Interest Period of one month.


 


(b)          Following
receipt of a Term Loan Notice, the Administrative Agent shall promptly notify each Lender of the amount of its share of the Term
Loans requested thereby, and if no timely notice of a conversion or continuation is provided by the Borrower, the Administrative
Agent shall notify each Lender of the details of any automatic conversion to Eurodollar Rate Loans having an Interest Period of
one month described in the preceding subsection. Each Lender shall make the amount of its Term Loan available to the Administrative
Agent in immediately available funds at the Administrative Agent’s Office not later than 12:00 p.m. on the Business Day specified
in the Term Loan Notice. Upon satisfaction of the applicable conditions set forth in Sections 5.01 and 5.02, the
Administrative Agent shall make all funds so received available to the Borrower in like funds as received by the Administrative
Agent either by (i) crediting the account of the Borrower on the books of Capital One 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.


 




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


 


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


 


(e)          After
giving effect to all Borrowings, all conversions of Term Loans from one Type to the other, and all continuations of Term Loans
as the same Type, there shall not be more than six (6) Interest Periods in effect with respect to the Term Loans.


 


2.03        Intentionally
Omitted.


 


2.04        Intentionally
Omitted.


 


2.05        Intentionally
Omitted.


 


2.06        Prepayments.


 


(a)          Except
as otherwise provided in subsection (b) below and subject to Section 3.05, the Borrower may, upon notice to the Administrative
Agent, at any time or from time to time voluntarily prepay Term Loans in whole or in part without premium or penalty; provided
that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior
to any date of prepayment of Eurodollar Rate Loans and (B) on the date of prepayment of Base Rate Loans; (ii) any prepayment of
Eurodollar Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $100,000 in excess thereof; and (iii)
any prepayment of Base Rate Loans shall be in a principal amount of $100,000 or a whole multiple of $50,000 in excess thereof or,
in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount
of such prepayment (including any prepayment premium to be paid pursuant to the immediately following subsection (d)) and
the Type(s) of Term Loans to be prepaid and, if Eurodollar Rate Loans are to be prepaid, the Interest Period(s) of such Loans.
The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such prepayment
payable to such Lender. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurodollar Rate Loan shall
be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section
3.05. Subject to Section 2.18, each such prepayment shall be applied to the Term Loans of the Lenders in accordance
with their respective Applicable Percentages.


 


(b)          During
the periods set forth below, the Borrower may only prepay the Term Loans, in whole or in part, at the prices (expressed as percentages
of the principal amount of the Term Loans to be prepaid) set forth below, plus accrued and unpaid interest, if any, to the date
of prepayment:


 




     26


     


    

 


	Period	 	Percentage
	Closing Date to and including June ___, 2017	 	102%
	________, 2017 to and including June ___, 2018	 	101%
	On or after June ___, 2018	 	100%


 


(c)          The
Borrower and the Lenders acknowledge and agree that the amounts payable by the Borrower in connection with the prepayment of the
Term Loans as provided in subsection (b) above, are a reasonable calculation of the Lenders’ lost profits in
view of the difficulties and impracticality of determining actual damages resulting from the prepayment of the Term Loans. For
the avoidance of doubt, the prepayment premiums set forth in this Section shall be in addition to, and not in lieu of, any prepayment
premiums required in connection with any prepayments made under and pursuant to any Master Agreement then in effect.


 


2.07        Intentionally
Omitted.


 


2.08        Repayment
of Term Loans. The Borrower shall repay to the Lenders
on the Maturity Date the aggregate principal amount of Term Loans outstanding on such date, together with all accrued but unpaid
interest, fees and all other sums due with respect thereto.


 


2.09        Interest.


 


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


 


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


 


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


 


(iii)        While
any Event of Default exists pursuant to Section 9.01(a)(i) or (h), the Borrower shall pay interest on the principal
amount of all outstanding Obligations hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate
to the fullest extent permitted by applicable Laws.


 


(iv)        The
Administrative Agent may, and upon the request of the Required Lenders shall, while any other Event of Default exists, require
the Borrower to pay interest on the principal amount of all outstanding Obligations hereunder at a fluctuating interest rate per
annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.


 


(v)         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)          Interest
on the Term Loans shall be due and payable in arrears on each Interest Payment Date and at such other times as may be specified
herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and
after the commencement of any proceeding under any Debtor Relief Law.


 


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


 


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


 


(a)          All
computations of interest for Base Rate Loans (including Base Rate Loans determined by reference to the Eurodollar Rate) shall be
made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees and
interest shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable,
being paid than if computed on the basis of a 365-day year). Interest shall accrue on the Term Loans for the day on which the Term
Loans are made, and shall not accrue on the Term Loans, or any portion thereof, for the day on which the Term Loan or such portion
is paid; provided that any Term Loan that is repaid on the same day on which it is made shall, subject to Section 2.13(a),
bear interest for one day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive
and binding for all purposes, absent manifest error.


 


(b)          If,
as a result of any restatement of or other adjustment to the financial statements of the Borrower or for any other reason, the
Borrower or the Lenders determine that (i) the Leverage Ratio as calculated by the Borrower as of any applicable date was inaccurate
and (ii) a proper calculation of the Leverage Ratio would have resulted in higher pricing for such period, the Borrower shall immediately
and retroactively be obligated to pay to the Administrative Agent for the account of the Lenders, promptly on demand by the Administrative
Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy
Code of the United States, automatically and without further action by the Administrative Agent or any Lender), an amount equal
to the excess of the amount of interest and fees that should have been paid for such period over the amount of interest and fees
actually paid for such period. This paragraph shall not limit the rights of the Administrative Agent or any Lender, as the case
may be, under Section 2.09(b) or under Article IX. The Borrower’s obligations under this paragraph shall survive
the termination of the Term Loan Commitments and the repayment of all Obligations hereunder.


 


2.12        Evidence
of Debt. The Loans 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 prima facie evidence of the
amount of the Loans made by the Lenders to the Borrower and the interest and payments thereon. Any failure to so record or any
error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing
with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the
accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent
shall control in the absence of manifest error. Upon the request of any Lender made through the Administrative Agent, the Borrower
shall execute and deliver to such Lender (through the Administrative Agent) a Term Note, which shall evidence such Lender’s
Loans in addition to such accounts or records. Each Lender may attach schedules to its Term Note and endorse thereon the date,
Type (if applicable), amount and maturity of its Term Loans and payments with respect thereto.


 




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2.13        Payments
Generally; Administrative Agent’s Clawback.


 


(a)          General.
All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment
or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative
Agent, for the account of the respective 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 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 next succeeding Business Day and any applicable interest or fee shall continue to accrue. If any payment to be made by the
Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such
extension of time shall be reflected in computing interest or fees, as the case may be.


 


(b)          (i)
Funding by Lenders; Presumption by Administrative Agent. Unless the Administrative Agent shall have received notice from
a Lender prior to the proposed date of any Borrowing of Eurodollar Rate Loans (or, in the case of any Borrowing of Base Rate Loans,
prior to 12:00 noon on the date of such Borrowing) that such Lender will not make available to the Administrative Agent such
Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such
date in accordance with Section 2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such
share available in accordance with and at the time required by Section 2.02) and may, in reliance upon such assumption,
make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the Borrowing
available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and
including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent,
at (A) in the case of a payment to be made by such Lender, the Overnight Rate, plus any administrative, processing or similar fees
customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by
the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative
Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest
paid by the Borrower for such period. If such Lender pays its share of the Borrowing to the Administrative Agent, then the amount
so paid shall constitute such Lender’s Term Loan included in such Borrowing. Any payment by the Borrower shall be without
prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative
Agent.


 


(ii)         Payments
by Borrower; Presumptions by Administrative Agent. Unless the Administrative Agent shall have received notice from the Borrower
prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders hereunder that the Borrower
will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to the Lenders the amount due. In such event, if the Borrower has
not in fact made such payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith on demand
the amount so distributed to such Lender in immediately available funds with interest thereon, for each day from and including
the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the Overnight Rate.


 


A notice of the Administrative
Agent to any Lender or the Borrower with respect to any amount owing under this subsection (b) shall be prima facie evidence
of the amount due.


 




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(c)          Failure
to Satisfy Conditions Precedent. If any Lender makes available to the Administrative Agent funds for any Term Loan to be made
by such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to the
Borrower by the Administrative Agent because the conditions to the applicable Borrowing set forth in Article V are not satisfied
or waived in accordance with the terms hereof, the Administrative Agent shall promptly return such funds (in like funds as received
from such Lender) to such Lender, without interest.


 


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


 


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


 


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


 


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


 


(ii)         the
provisions of this Section shall not be construed to apply to (x) any payment made by or on behalf of the Borrower pursuant to
and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a
Defaulting Lender) or (y) any payment obtained by a Lender as consideration for the assignment
of or sale of a participation in any of its Term Loans to any assignee or participant, other than an assignment to the Borrower
or any Subsidiary thereof (as to which the provisions of this Section
shall apply).


 


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


 


2.15        Intentionally
Omitted.


 




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2.16        Additional
Term Loans.


 


(a)          The
Borrower shall have the right at any time and from time to time during the period beginning on the Closing Date to but excluding
the date that is six (6) months prior to the Maturity Date to request additional Term Loans by providing written notice to the
Administrative Agent (an “Increase Request”); provided, however, that after giving effect to any
such increases, the aggregate amount of the Term Loans shall not exceed $75,000,000. Each such Increase Request must be an aggregate
minimum amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof. The Administrative Agent, in consultation
with the Borrower, shall manage all aspects of the syndication of such increase in the Term Loans, including decisions as to the
selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with
respect to such increase in the Term Loans and the allocations of the increase in the Term Loans among such existing Lenders and/or
other banks, financial institutions and other institutional lenders. Promptly after delivery of the Increase Request to the Administrative
Agent, the Borrower shall enter into an engagement letter with the Administrative Agent and the Arranger governing, among other
things, the syndication of such increase in the Term Loans and which shall include, among other things, the fees of the Lenders
and the Administrative Agent with respect to such Increase Request. Any additional Term Loans made pursuant to this Section shall
be regarded as Term Loans hereunder and accordingly shall have the same maturity date as, bear interest at the same rates as, and
otherwise be subject to the same terms and conditions of, the Term Loans outstanding hereunder at the time such additional Term
Loans are made. No Lender shall be obligated in any way whatsoever to increase the principal amount of its Term Loans or provide
a new Term Loan and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an
Eligible Assignee.


 


(b)          Effecting
the increase of the Term Loans under this Section is subject to the following conditions precedent: (x) no Default shall be in
existence on the effective date of such increase or would result from such proposed increase or from the application of the proceeds
thereof, (y) the representations and warranties of the Borrower and each other Loan Party contained in Article VI or any
other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith,
shall be true and correct in all material respects on and as of the effective date of such increase, except to the extent that
such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such
earlier date, and except that for purposes of this Section, the representations and warranties contained in clauses (a)
and (b) of Section 6.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses
(a) and (b), respectively, of Section 7.01, and (z) the Administrative Agent shall have received each of the
following, in form and substance reasonably satisfactory to the Administrative Agent: (i) if not previously delivered to the
Administrative Agent, copies certified by the Secretary or Assistant Secretary of the Borrower or Guarantor, as applicable, of
(A) all corporate and other necessary action taken by the Borrower to authorize such increase and (B) all corporate and other necessary
action taken by each Guarantor authorizing the guaranty of such increase; (ii) an opinion of counsel to the Borrower and the
Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Required
Lenders, in form and content similar to the opinion provided to the Administrative Agent and the Lenders pursuant to Section
5.01(a)(v) or such other form acceptable to the Administrative Agent, and (iii) to the extent requested, new Term Notes
executed by the Borrower, payable to any new Lenders and replacement Term Notes executed by the Borrower, payable to any existing
Lenders increasing the amount of the principal amount of their Term Loans. Any Lender receiving such a replacement Term Note shall
promptly return to the Borrower the Term Note that was replaced. In connection with any additional Term Loans made pursuant to
this Section 2.16, any Lender becoming a party hereto shall execute such documents and agreements as the Administrative
Agent may reasonably request. The Borrower shall pay such fees to the Administrative Agent, for its own account and for the benefit
of the Lenders providing such additional Term Loans as determined at the time of such increase.


 


(c)          This
Section shall supersede any provisions in Section 2.14 or 11.01(a) to the contrary.


 




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2.17        Intentionally
Omitted.


 


2.18        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 11.01(a).


 


(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 IX or otherwise, and including
any amounts made available to the Administrative Agent by that Defaulting Lender pursuant to Section 11.08), 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 may request (so long as no
Default or Event of Default exists), to the funding of any Term 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, 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; fourth,
so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment
of a court of competent jurisdiction obtained by the Borrower against that Defaulting Lender as a result of that Defaulting Lender’s
breach of its obligations under this Agreement; and fifth, to that Defaulting Lender or as otherwise directed by a court
of competent jurisdiction; provided that if such payment is a payment of the principal amount of Term Loans in respect of
which that Defaulting Lender has not fully funded its appropriate share, such payment shall be applied solely to pay the Term Loans
of all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Term Loans of 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 shall be deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.


 


(iii)        Intentionally
Omitted.


 


(iv)        Intentionally
Omitted.


 


(b)          Defaulting
Lender Cure. If the Borrower 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 Term Loans of the other Lenders or take such other actions as the Administrative
Agent may determine to be necessary to cause the Term Loans to be held on a pro rata basis by the Lenders, 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 Borrower while that Lender was a Defaulting Lender; and provided, further,
that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender
will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting
Lender.


 




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ARTICLE III. TAXES,
YIELD PROTECTION AND ILLEGALITY


 


3.01        Taxes.


 


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


 


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


 


(b)          Payment
of Other Taxes by the Borrower. Without limiting the provisions of subsection (a) above, the Borrower shall timely pay
any Other Taxes to the relevant Governmental Authority in accordance with applicable Laws.


 


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


 




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


 


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


 


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


 


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


 


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


 


(B)         each
Foreign Lender that is entitled under the Code or any applicable treaty to an exemption from or reduction of withholding tax with
respect to payments hereunder or under any other Loan Document shall deliver to the Borrower and the Administrative Agent (in such
number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender
under this Agreement (and from time to time thereafter upon the request of the Borrower or the Administrative Agent, but only if
such Foreign Lender is legally entitled to do so), whichever of the following is applicable:


 




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


 


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


 


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


 


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


 


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


 


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


 


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


 




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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 Term Loans whose interest is determined by reference to the Eurodollar Rate, or to determine or charge
interest rates based upon the Eurodollar Rate, or any Governmental Authority has imposed material restrictions on the authority
of such Lender to purchase or sell, or to take deposits of, Dollars in the applicable interbank market (each an “Affected
Eurodollar Rate Loan”), then (a) such Lender shall promptly give written notice of such circumstances to the Borrower
through the Administrative Agent, which notice shall be withdrawn whenever such circumstances no longer exist, (b) the obligation
of such Lender hereunder to make Affected Eurodollar Rate Loans, continue Affected Eurodollar Rate Loans as such and to convert
a Base Rate Loan to an Affected Eurodollar Rate Loan shall forthwith be cancelled and, until such time as it shall no longer be
unlawful for such Lender to make or maintain such Affected Eurodollar Rate Loans, such Lender shall then have a commitment only
to make a Base Rate Loan when an Affected Eurodollar Rate Loan is requested, and (c) such Lender’s Term Loans then outstanding
as Affected Eurodollar Rate Loans, if any, shall be converted automatically to Base Rate Loans on the respective last days of
the then current Interest Periods with respect to such Term Loans or within such earlier period as required by Law. If any such
conversion or prepayment of an Affected Eurodollar Rate Loan occurs on a day which is not the last day of the then current Interest
Period with respect thereto, the Borrower shall pay to such Lender such amounts, if any, as may be required pursuant to Section
3.05.


 


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


 


3.04        Increased
Costs.


 


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


 


(i)          impose,
modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets
of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement referred
to in the definition of “Adjusted Eurodollar Rate”);


 


(ii)         subject
any Lender to any Tax of any kind whatsoever with respect to this Agreement or any Eurodollar Rate Loan made by it, or change the
basis of taxation of payments to such Lender in respect thereof (except for Indemnified Taxes or Other Taxes covered by Section
3.01 and the imposition of, or any change in the rate of, any Excluded Tax payable by such Lender); or


 




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


 


and the result of any
of the foregoing shall be to increase the cost to such Lender of making or maintaining any Term Loan the interest on which is determined
by reference to the Eurodollar Rate (or of maintaining its obligation to make any such Term Loan), or to reduce the amount of any
sum received or receivable by such Lender hereunder (whether of principal, interest or any other amount) then, upon request of
such Lender, the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender for such additional
costs incurred or reduction suffered.


 


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


 


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


 


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


 


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


 


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


 


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


 


(c)          any
assignment of a Eurodollar Rate Loan on a day other than the last day of the Interest Period therefor as a result of a request
by the Borrower pursuant to Section 11.13;


 




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


 


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


 


3.06        Mitigation
Obligations; Replacement of Lenders.


 


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


 


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


 


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


 


ARTICLE IV. [INTENTIONALLY
OMITTED]


 


ARTICLE V. CONDITIONS
PRECEDENT TO BORROWINGS


 


5.01        Conditions
of Initial Borrowing. The effectiveness of this
Agreement and the obligation of each Lender to make its Loan hereunder are all subject to satisfaction of the following conditions
precedent:


 


(a)          The
Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals)
unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the 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 each of the Lenders:


 


(i)          executed
counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender
and the Borrower;


 




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


 


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


 


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


 


(v)         a
favorable opinion of counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, and covering such matters
relating to the Loan Parties, the Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required
Lenders may reasonably request; provided, however, that opinions with respect to Loan Parties (other than the Parent
and the Borrower) that are not organized in the States of Delaware, Maryland and Michigan (other than enforceability opinions with
respect to any Loan Document to which such Loan Party is a party which will not be from the jurisdiction of formation unless otherwise
requested below), will be required only if requested by the Administrative Agent, in its sole discretion, with the understanding
that enforceability opinions will be required with respect to any Loan Document to which such Loan Party is a party, which if the
Administrative Agent has not requested other opinions in addition to enforceability, may be subject to necessary assumptions to
avoid the requirement of having opinions from the jurisdiction of formation of such Loan Parties;


 


(vi)        a
certificate of a Responsible Officer of the Parent either (A) attaching copies of all consents, licenses and approvals required
in connection with the execution, delivery and performance by each Loan Party and the validity against each Loan Party of the Loan
Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that
no such consents, licenses or approvals are so required;


 


(vii)       a
certificate signed by a Responsible Officer of the Parent certifying (A) that the conditions specified in Sections 5.02(a)
and (b) have been satisfied, (B) that there has been no event or circumstance since December 31, 2015 that has had or could
be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;


 


(viii)      a
duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on March 31, 2016, signed
by a Responsible Officer of the Borrower;


 


(ix)         a
duly completed Unencumbered Pool Report as of the Closing Date, signed by a Responsible Officer of the Borrower; and


 


(x)          such
other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably
may require.


 




     39


     


    

 


(b)          The
absence of any action, suit, investigation or proceeding pending or, to the knowledge of any Loan Party, threatened in any court
or before any arbitrator or governmental authority related to the Loan that could reasonably be expected to have a Material Adverse
Effect.


 


(c)          Any
fees required to be paid on or before the Closing Date shall have been paid.


 


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


 


Without
limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance
with the conditions specified in this Section 5.01, each Lender that has signed this Agreement 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.


 


5.02        Conditions
to all Loans. The obligation of each Lender to make any Loan is subject to the following
conditions precedent:


 


(a)          The
representations and warranties of the Borrower and each other Loan Party contained in Article VI or any other Loan Document,
or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct
in all material respects on and as of the date of the making of such Loan, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date.


 


(b)          No
Default shall exist, or would result from the making of such Loan or from the application of the proceeds thereof.


 


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


 


Each Term Loan Notice
(other than a Term Loan Notice requesting only a conversion of Term Loans to the other Type or a continuation of Eurodollar Rate
Loans) submitted by the Borrower shall be deemed to be a representation and warranty that the conditions specified in Sections
5.02(a) and 5.02(b) have been satisfied on and as of the date of the applicable Borrowing.


 


ARTICLE VI. REPRESENTATIONS
AND WARRANTIES


 


The Borrower represents
and warrants to the Administrative Agent and the Lenders that:


 


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


 




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6.02        Authorization;
No Contravention. The execution, delivery and performance
by each Loan Party of each Loan Document to which such Person is party, have been duly authorized by all necessary corporate or
other organizational action, and do not and will not (a) contravene the terms of any of such Person’s Organization Documents;
(b) conflict with or result in any breach or contravention of, or the creation of any Lien under, or require any payment to be
made under (i) any Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person
or any of its Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to
which such Person or its property is subject; or (c) violate any Law.


 


6.03        Governmental
Authorization; Other Consents. No approval, consent,
exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary
or required in connection with the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement
or any other Loan Document.


 


6.04        Binding
Effect. This Agreement has been, and each other Loan
Document, when delivered hereunder, will have been, duly executed and delivered by each Loan Party that is party thereto. This
Agreement constitutes, and each other Loan Document when so delivered will constitute, a legal, valid and binding obligation of
such Loan Party, enforceable against each Loan Party that is party thereto in accordance with its terms.


 


6.05        Financial
Statements; No Material Adverse Effect.


 


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


 


(b)          The
unaudited consolidated balance sheets of the Parent and its Subsidiaries dated March 31, 2016, and the related consolidated statements
of income or operations, shareholders’ equity and cash flows for the fiscal quarter ended on that date (i) were prepared
in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein,
and (ii) fairly present the financial condition of the Parent and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes
and to normal year-end audit adjustments. Schedule 6.05 sets forth all material indebtedness and other liabilities, direct
or contingent, of the Parent and its consolidated Subsidiaries as of the date of such financial statements, including liabilities
for taxes, material commitments and Indebtedness.


 


(c)          Since
December 31, 2015, 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. Each of the Parent and Borrower is Solvent, and each of the Loan Parties and the
other Subsidiaries considered on a consolidated basis are Solvent.


 




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6.06        Litigation.
There are no actions, suits, proceedings, claims
or disputes pending or, to the knowledge of the Borrower after due and diligent investigation, threatened or contemplated, at
law, in equity, in arbitration or before any Governmental Authority, by or against the Borrower or any of its Subsidiaries or
against any of their properties or revenues that (a) purport to affect or pertain to this Agreement or any other Loan Document,
or any of the transactions contemplated hereby, or (b) except as specifically disclosed in Schedule 6.06, either individually
or in the aggregate, if determined adversely, could reasonably be expected to have a Material Adverse Effect , and there has been
no adverse change in the status, or financial effect on any Loan Party or any Subsidiary thereof, of the matters described on
Schedule 6.06.


 


6.07        No
Default. Neither any Loan Party nor any Subsidiary
thereof is in default under or with respect to any Contractual Obligation that could, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. No Default has occurred and is continuing or would result from the consummation
of the transactions contemplated by this Agreement or any other Loan Document.


 


6.08        Ownership
of Property; Liens. Each of the Borrower and each
Subsidiary 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, except for such defects in title as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. As of the Closing Date, the property of the Borrower and its Subsidiaries
is subject to no Liens, other than Permitted Liens and Liens set forth on Schedule 6.08.


 


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


 


6.10        Insurance.
The properties of the Loan Parties are insured with financially sound and reputable insurance companies, none of which are Affiliates
of the Borrower, in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged
in similar businesses and owning similar properties in localities where the Borrower or the applicable Loan Party operates, subject
to such self-insurance reasonably acceptable to the Administrative Agent.


 


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


 


6.12        ERISA
Compliance.


 


(a)          Each
Plan is in substantial compliance in form and operation with its terms and with ERISA and the Code (including the Code provisions
compliance with which is necessary for any intended favorable tax treatment) and all other applicable laws and regulations. Each
Plan (and each related trust, if any) which is intended to be qualified under Section 401(a) of the Code has received a favorable
determination letter from the IRS to the effect that it meets the requirements of Sections 401(a) and 501(a) of the Code covering
all applicable tax law changes, or is comprised of a master or prototype plan that has received a favorable opinion letter from
the IRS, and nothing has occurred since the date of such determination that would adversely affect such determination (or, in the
case of a Plan with no determination, nothing has occurred that would adversely affect the issuance of a favorable determination
letter or otherwise adversely affect such qualification).


 




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(b)          No
ERISA Event has occurred or is reasonably expected to occur. None of the Borrower, any of its Subsidiaries or any ERISA Affiliate
is making or accruing an obligation to make contributions, or has, within any of the five (5) calendar years immediately preceding
the date this assurance is given or deemed given, made or accrued an obligation to make, contributions to any Multiemployer Plan.


 


(c)          There
are no actions, suits or claims pending against or involving a Plan (other than routine claims for benefits) or, to the best knowledge
of the Borrower, any of its Subsidiaries or any ERISA Affiliate, threatened, which would reasonably be expected to be asserted
successfully against any Plan and, if so asserted successfully, would reasonably be expected either singly or in the aggregate
to result in liability to the Borrower or any of its Subsidiaries. The Borrower, each of its Subsidiaries and each ERISA Affiliate
have made all contributions to or under each Plan and Multiemployer Plan required by law within the applicable time limits prescribed
thereby, by the terms of such Plan or Multiemployer Plan, respectively, or by any contract or agreement requiring contributions
to a Plan or Multiemployer Plan. No Plan which is subject to Section 412 of the Code or Section 302 of ERISA has applied for or
received an extension of any amortization period within the meaning of Section 412 of the Code or Section 303 or 304 of ERISA.


 


(d)          None
of the Borrower, any of its Subsidiaries or any ERISA Affiliate have ceased operations at a facility so as to become subject to
the provisions of Section 4068(a) of ERISA, withdrawn as a substantial employer so as to become subject to the provisions of Section
4063 of ERISA or ceased making contributions to any Plan subject to Section 4064(a) of ERISA to which it made contributions.


 


(e)          Each
Non-U.S. Plan has been maintained in compliance with its terms and with the requirements of any and all applicable laws, statutes,
rules, regulations and orders and has been maintained, where required, in good standing with applicable regulatory authorities,
except as would not reasonably be expected to result in liability to the Borrower or any of its Subsidiaries. All contributions
required to be made with respect to a Non-U.S. Plan have been timely made. Neither the Borrower nor any of its Subsidiaries has
incurred any obligation in connection with the termination of, or withdrawal from, any Non-U.S. Plan. The present value of the
accrued benefit liabilities (whether or not vested) under each Non-U.S. Plan, determined as of the end of the Borrower’s
most recently ended fiscal year on the basis of reasonable actuarial assumptions, did not exceed the current value of the assets
of such Non-U.S. Plan allocable to such benefit liabilities.


 


6.13        Subsidiaries;
Equity Interests. The Parent and Borrower have
no Subsidiaries other than those specifically disclosed in Part (a) of Schedule 6.13 as of the date of this Agreement,
and all of the outstanding Equity Interests in such Subsidiaries have been validly issued, are fully paid and nonassessable and
are owned by a Loan Party in the amounts specified on Part (a) of Schedule 6.13 free and clear of all Liens (other than
Permitted Liens and Liens set forth on Schedule 6.08). Neither Parent nor Borrower has any direct or indirect Equity Interests
in any other Person other than those specifically disclosed in Part (b) of Schedule 6.13 as of the date of this Agreement.
All of the outstanding Equity Interests in each Property Owner have been validly issued, are fully paid and nonassessable and
are owned by the applicable holders in the amounts specified on Part (c) of Schedule 6.13 free and clear of all Liens (other
than Liens in favor of Administrative Agent).


 


6.14        Margin
Regulations; Investment Company Act.


 


(a)          None
of the Loan Parties is engaged nor 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 margin stock.


 




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


 


6.15        Disclosure.
The Loan Parties have disclosed to the Administrative Agent and the Lenders all agreements, instruments and corporate or other
restrictions to which it or any of their 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 Loan 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 Loan 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; provided that, with respect to projected financial information, the Borrower
represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time.


 


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


 


6.17        Taxpayer
Identification Number. Each Loan Party’s true and correct U.S. taxpayer identification
number is set forth on Schedule 6.17.


 


6.18        Anti-Money
Laundering/International Trade Law Compliance. No Covered Entity is a Sanctioned Person. No Covered
Entity, either in its own right or through any third party, (a) has any of its assets in a Sanctioned Country or in the possession,
custody or control of a Sanctioned Person in violation of any Anti-Terrorism Law; (b) does business in or with, or derives any
of its income from investments in or transactions with, any Sanctioned Country or Sanctioned Person in violation of any Anti-Terrorism
Law; or (c) engages in any dealings or transactions prohibited by any Anti-Terrorism Law. In the case of a Shareholder Covered
Entity, the representations in this Section shall be limited to the actual knowledge of the Responsible Officers of each of the
Borrower and the Parent.


 


6.19        Unencumbered
Pool Properties. As of the Closing Date, the initial Unencumbered Pool Properties are set forth
on Schedule 6.19. Each of the Properties included in calculations of Unencumbered Asset Value and Unencumbered Pool
NOI satisfies all of the requirements contained in the definition of Eligible Property (or if such Property was approved as an
Eligible Property pursuant to the last paragraph of the definition of such term, such Property satisfies the requirements to be
an Eligible Property that such Property satisfied at the time it was so approved).


 


ARTICLE VII. AFFIRMATIVE
COVENANTS


 


So long as any Lender
shall have a Term Loan Commitment hereunder or any Term Loan or other Obligation hereunder shall remain unpaid or unsatisfied,
the Loan Parties shall, and shall (except in the case of the covenants set forth in Sections 7.01, 7.02, and 7.03)
cause each Subsidiary to:


 




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7.01        Financial
Statements. Deliver to the Administrative Agent
and each Lender, in form and detail satisfactory to the Administrative Agent and the Required Lenders and prepared consistent
with past practices:


 


(a)          as
soon as available, but in any event within 120 days after the end of each fiscal year of the Parent, commencing with the fiscal
year ending December 31, 2016, a consolidated balance sheet of the Parent and its Subsidiaries as at the end of such fiscal year,
and the related consolidated statements of income or operations, changes in shareholders’ equity, and cash flows for such
fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail
and prepared in accordance with GAAP, such consolidated statements to be audited and accompanied by a report and opinion of an
independent certified public accountant of nationally recognized standing reasonably acceptable to the Required Lenders, which
report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going
concern” or like qualification or exception or any qualification or exception as to the scope of such audit; and


 


(b)          as
soon as available, but in any event within 60 days after the end of each of the first three fiscal quarters of each fiscal year
of the Parent, commencing with the fiscal quarter ending September 30, 2016, a consolidated balance sheet of the Parent and its
Subsidiaries as at the end of such fiscal quarter, the related consolidated statements of income or operations for such fiscal
quarter and for the portion of the Parent’s fiscal year then ended, and the related consolidated statements of changes in
shareholders’ equity, and cash flows for the portion of the Parent’s fiscal year then ended, in each case setting forth
in comparative form, as applicable, the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding
portion of the previous fiscal year, all in reasonable detail, such consolidated statements to be certified by the chief executive
officer, chief financial officer, treasurer or controller of the Parent as fairly presenting the financial condition, results of
operations, shareholders’ equity and cash flows of the Parent and its Subsidiaries in accordance with GAAP, subject only
to normal year-end audit adjustments and the absence of footnotes.


 


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


 


7.02        Certificates;
Other Information. Deliver to the Administrative
Agent and each Lender, in form and detail satisfactory to the Administrative Agent and the Required Lenders:


 


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


 


(b)          concurrently
with the delivery of the financial statements referred to in Sections 7.01(a) and (b), a duly completed Unencumbered
Pool Report (which delivery may, unless Administrative Agent or a Lender requests executed originals, be by electronic communication
including fax or e-mail and shall be deemed to be an original authentic counterpart thereof for all purposes);


 


(c)          promptly
after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations
submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants
in connection with the accounts or books of the Parent or any Subsidiary, or any audit of any of them;


 




     45


     


    

 


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


 


(e)          within
ninety (90) days after request by the Administrative Agent or any Lender, an annual budget for each of the Properties;


 


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


 


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


 


(h)          promptly,
such additional reasonable and customary information regarding the business, financial or corporate affairs of Parent or Borrower
or any Unencumbered Pool Property, or compliance with the terms of the Loan Documents, as Administrative Agent or any Lender may
from time to time reasonably request, to the extent such information is in a Loan Party’s possession or control.


 


Documents required
to be delivered pursuant to Section 7.01(a) or (b) or Section 7.02(d) (to the extent any such documents are
included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have
been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website
on the Internet at the website address listed on Schedule 11.02; or (ii) on which such documents are posted on the Borrower’s
behalf on an Internet or intranet 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: (i) the Borrower shall deliver paper
copies of such documents to the Administrative Agent or any Lender upon its written request to the Borrower to deliver such paper
copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) the
Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents
and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The
Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred
to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request by a Lender
for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.


 




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


 


7.03        Notices.
Promptly notify the Administrative Agent and
each Lender:


 


(a)          of
the occurrence of any Default;


 


(b)          of
any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect, including (i) breach or non-performance
of, or any default under, a Contractual Obligation of the Borrower or any Subsidiary; (ii) any dispute, litigation, investigation,
proceeding or suspension between the Borrower or any Subsidiary and any Governmental Authority; or (iii) the commencement of, or
any material development in, any litigation or proceeding affecting the Borrower or any Subsidiary, including pursuant to any applicable
Environmental Laws;


 


(c)          of
the occurrence of any ERISA Event; and


 


(d)          of
any material change in accounting policies or financial reporting practices by the Borrower or any Subsidiary.


 


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


 


7.04        Payment
of Obligations. Pay and discharge as the same shall become due and payable, all its obligations
and liabilities, including (a) all tax liabilities, assessments and governmental charges or levies upon it or its properties or
assets, unless the same are being contested in good faith by appropriate proceedings diligently conducted and adequate reserves
in accordance with GAAP are being maintained by the Parent or such Subsidiary; (b) all lawful claims which, if unpaid, would by
law become a Lien upon its property; and (c) all Indebtedness, as and when due and payable, but subject to any subordination provisions
contained in any instrument or agreement evidencing such Indebtedness.


 


7.05        Preservation
of Existence, Etc. (a) Preserve, renew and maintain in full force and effect its legal existence
and good standing under the Laws of the jurisdiction of its organization except in a transaction permitted by Section 8.03
or 8.04; (b) take all reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary or
desirable in the normal conduct of its business, except to the extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect; and (c) preserve or renew all of its registered patents, trademarks, trade names and service marks,
the non-preservation of which could reasonably be expected to have a Material Adverse Effect.


 




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7.06        Maintenance
of Properties. (a) Maintain, preserve and protect all of its material properties and equipment
necessary in the operation of its business in good working order and condition, ordinary wear and tear excepted; and (b) make all
necessary repairs thereto and renewals and replacements thereof except where the failure to do so could not reasonably be expected
to have a Material Adverse Effect.


 


7.07        Maintenance
of Insurance. Maintain, or cause to be maintained, with financially sound and reputable insurance
companies which are not Affiliates of the Borrower, insurance with respect to its properties and business against loss or damage
of the kinds customarily insured against by Persons engaged in the same or similar business, of such types and in such amounts
as are customarily carried under similar circumstances by such other Persons or as may be required by Law, taking into consideration
tenants that carry insurance in lieu of that normally carried by owners of similar Property or self-insure in lieu of such insurance.


 


7.08        Compliance
with Laws. Comply in all material respects with the requirements of all Laws and all orders,
writs, injunctions and decrees applicable to it or to its business or property, except in such instances in which (a) such requirement
of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted; or
(b) the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.


 


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


 


7.10        Inspection
Rights. Permit representatives and independent contractors of the Administrative Agent and each
Lender to visit and inspect any of its properties, to examine its corporate, financial and operating records, and make copies thereof
or abstracts therefrom, and to discuss its affairs, finances and accounts with its directors, officers, and independent public
accountants, all at the expense of the Borrower (after the occurrence of and during the continuance of an Event of Default) and
at such reasonable times during normal business hours and as often as may be reasonably desired, upon reasonable advance notice
to the Borrower; provided, however, that when an Event of Default exists the Administrative Agent or any Lender (or
any of their respective representatives or independent contractors) may do any of the foregoing at the expense of the Borrower
at any time during normal business hours and without advance notice.


 


7.11        Use
of Proceeds. Use the proceeds of the Loans for general corporate purposes and all other lawful
purposes including for debt repayment, working capital, capital expenditures, and acquisitions, new construction, redevelopment,
renovations, expansions, tenant improvement costs, joint ventures, note purchases, and construction primarily associated with income
producing, retail properties, but not in contravention of any Law or of any Loan Document.


 


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


 


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


 




     48


     


    

 


(b)          promptly
pay (or cause to be paid) when due all bills and costs for labor, materials, and specifically fabricated materials incurred in
connection with any Unencumbered Pool Property (except those which are being contested in good faith by appropriate proceedings
diligently conducted), and in any event never permit to be created or exist in respect of any Unencumbered Pool Property or any
part thereof any other or additional Lien or security interest other than Permitted Liens;


 


(c)          operate
the Unencumbered Pool Properties in a good and workmanlike manner and in all material respects in accordance with all Laws in accordance
with such Loan Party’s prudent business judgment; and


 


(d)          cause
each other Loan Party to, to the extent owned and controlled by a Loan Party, preserve, protect, renew, extend and retain all material
rights and privileges granted for or applicable to each Unencumbered Pool Property.


 


7.13        Subsidiary
Guarantor Organizational Documents. Each of
Parent and Borrower shall, and shall cause each other Subsidiary Guarantor to, at its expense, maintain the Organization Documents
of each Subsidiary Guarantor in full force and effect, without any cancellation, termination, amendment, supplement, or other
modification of such Organization Documents, except as explicitly required by their terms (as in effect on the date hereof), except
for amendments, supplements, or other modifications that do not adversely affect the interests of the Lenders in any material
respect.


 


7.14        Additional
Guarantors; Release of Guarantors.


 


(a)          No
later than the date the Borrower is required to deliver a Compliance Certificate pursuant to Section 7.02(a) with respect
to a fiscal quarter (or fiscal year in the case of the fourth fiscal quarter of a fiscal year) during which (x) a Person became
a Subsidiary (other than an Excluded Subsidiary or an Immaterial Subsidiary), (y) an Excluded Subsidiary ceased to be subject
to the restriction which prevented it from becoming a Guarantor on the Closing Date or pursuant to this Section or (z) the value
of the assets of an Immaterial Subsidiary precluded it from continuing to qualify as an Immaterial Subsidiary, the Borrower shall
cause such Subsidiary to become a Guarantor by executing and delivering to the Administrative Agent a counterpart of the Guaranty
(or such other document as the Administrative Agent shall deem appropriate for such purpose) each of the following in form and
substance satisfactory to the Administrative Agent: (i) a counterpart of the Guaranty or such other document as the Administrative
Agent may deem appropriate for such purpose executed by such Subsidiary and (ii) the items that would have been delivered
under subsections (iii) through (v) of Section 5.01(a) if such Subsidiary had been a Subsidiary on the Agreement Date;
provided, however, the requirement for delivery of a legal opinion referred to in Section 5.01(a)(v) shall
only apply to a Subsidiary to which $15,000,000 or more of Total Asset Value is attributable.


 




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(b)          The
Borrower may notify the Administrative Agent in writing that a Guarantor (other than the Parent) is to be released from the Guaranty,
and following receipt of such notice the Administrative Agent shall release such Guarantor from the Guaranty, so long as: (i) upon
its release from the Guaranty such Subsidiary will either become an Excluded Subsidiary or an Immaterial Subsidiary or shall cease
to be a Subsidiary of the Borrower, in each case, as a result of a transaction permitted hereunder; (ii) no Default shall
then be in existence or would occur as a result of such release, including without limitation; (iii) the representations and
warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party,
shall be true and correct on and as of the date of such release with the same force and effect as if made on and as of such date
except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations
and warranties shall have been true and correct on and as of such earlier date); and (iv) the Administrative Agent shall have
received such written notice at least 10 Business Days (or such shorter period as may be acceptable to the Administrative Agent)
prior to the requested date of release. Delivery by the Borrower to the Administrative Agent of any such notice shall constitute
a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such
request and as of the date of the effectiveness of such request) are true and correct with respect to such request. Upon the Borrower’s
written request, the Administrative Agent shall execute such documents as the Borrower may reasonably request (and at the expense
of the Borrower) to evidence the release of a Guarantor from the Guaranty.


 


7.15        Environmental
Matters. Comply and cause each other Loan Party and
each other Subsidiary to, comply with all Environmental Laws the failure with which to comply could reasonably be expected to have
a Material Adverse Effect. The Loan Parties shall use commercially reasonable efforts to cause all other Persons occupying, using
or present on the Properties to comply, with all Environmental Laws in all material respects. The Loan Parties shall promptly take
all actions and pay or arrange to pay all costs necessary for it and for the Properties to comply in all material respects with
all Environmental Laws and all Governmental Approvals, including actions to remove and dispose of all Hazardous Materials and to
clean up the Properties, each as required under Environmental Laws. The Loan Parties shall promptly take all actions necessary
to prevent the imposition of any Liens on any of their respective properties arising out of or related to any Environmental Laws.
Nothing in this Section shall impose any obligation or liability whatsoever on the Administrative Agent or any Lender.


 


7.16        REIT
Status; New York Stock Exchange Listing. The Parent
shall at all times (i) maintain its REIT status, and (ii) remain a publicly traded company listed on the New York Stock Exchange
or another national stock exchange located in the United States.


 


7.17        Anti-Money
Laundering/International Trade Law Compliance. No
Covered Entity will become a Sanctioned Person. No Covered Entity, either in its own right or through any third party, will (a)
have any of its assets in a Sanctioned Country or in the possession, custody or control of a Sanctioned Person in violation of
any Anti-Terrorism Law; (b) do business in or with, or derive any of its income from investments in or transactions with, any Sanctioned
Country or Sanctioned Person in violation of any Anti-Terrorism Law; (c) engage in any dealings or transactions prohibited by any
Anti-Terrorism Law; or (d) use the Term Loans to fund any operations in, finance any investments or activities in, or, make any
payments to, a Sanctioned Country or Sanctioned Person in violation of any Anti-Terrorism Law. The funds used to repay the Obligations
will not be derived from any unlawful activity. Each Covered Entity shall comply with all Anti-Terrorism Laws. The Borrower shall
promptly notify the Administrative Agent in writing upon the occurrence of a Reportable Compliance Event. The first, second and
fourth sentences of this Section shall not apply to Shareholder Covered Entities.


 


ARTICLE VIII. NEGATIVE
COVENANTS


 


So long as any Lender
shall have a Term Loan Commitment hereunder or any Term Loan or other Obligation hereunder shall remain unpaid or unsatisfied,
the Loan Parties shall not, nor shall they permit any Subsidiary to, directly or indirectly:


 


8.01        [Intentionally
Omitted]


 


8.02        Investments.
Make any Investments, except:


 


(a)          Investments
in the form of cash or cash equivalents;


 




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


 


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


 


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


 


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


 


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


 


(g)          Investments
in mortgages, mezzanine loans and notes receivable not to at any time exceed ten percent (10%) of Total Asset Value;


 


(h)          Investments
in Construction in Progress not to at any time exceed fifteen percent (15%) of Total Asset Value;


 


(i)          Investments
in non-wholly owned Subsidiaries and Unconsolidated Affiliates not to at any time exceed ten percent (10%) of Total Asset Value;
and


 


(j)          Investments
in Real Property assets that are not retail Properties not to at any time exceed ten percent (10%) of Total Asset Value.


 


Determinations of whether
an Investment in an asset is permitted will be made after giving effect to the subject Investment. Investments pursuant to clauses
(f) through (j) above in the aggregate will not exceed twenty-five percent (25%) of Total Asset Value.


 


8.03        Fundamental
Changes. Merge, dissolve, liquidate, consolidate
with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all
of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that, so long as no Event of Default
has occurred and is continuing or would result therefrom:


 


(a)          any
Loan Party (other Parent or Borrower) may merge with (i) Parent or Borrower; provided that Parent or Borrower, as
applicable, shall be the continuing or surviving Person, or (ii) any other Loan Party, or (iii) any other Person; provided
that, if such Loan Party owns an Unencumbered Pool Property and is not the surviving entity, then such Property shall cease to
be an Unencumbered Pool Property;


 


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


 


(c)          any
Loan Party may Dispose of a Property owned by such Loan Party in the ordinary course of business and for fair value; provided
that if such Property is a Unencumbered Pool Property, then such Property shall cease to be an Unencumbered Pool Property;


 




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


 


(e)          a
Subsidiary that is not (and is not required to be) a Loan Party may liquidate or otherwise dissolve, provided that immediately
prior to any such liquidation or dissolution and immediately thereafter and after giving effect thereto, no Default is or would
be in existence.


 


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


 


8.04        Dispositions.
Make any Disposition or enter into any agreement to make any Disposition,
except:


 


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


 


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


 


(c)          any
other Dispositions of Properties or other assets in an arm’s length transaction; provided that the Borrower
and the Parent will remain in pro forma compliance with the covenants set forth in Section 8.14 after giving effect to such
transaction; and


 


(d)          leases
and subleases of Properties, as lessor or sublessor (as the case may be), in the ordinary course of business.


 


8.05        Restricted
Payments. Declare or make, directly or indirectly,
any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:


 


(a)          so
long as no Default shall have occurred and be continuing at the time of any action described below or would result therefrom, each
Subsidiary may make Restricted Payments to Parent, Borrower, and any other Person that owns an Equity Interest in such Subsidiary,
ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being
made;


 


(b)          so
long as no Default shall have occurred and be continuing at the time of any action described below or would result therefrom, any
Loan Party may declare and make dividend payments or other distributions payable solely in the common Equity Interests or other
Equity Interests of such Loan Party including (i) “cashless exercises” of options granted under any share option plan
adopted by Parent, (ii) distributions of rights or equity securities under any rights plan adopted by Borrower or Parent, and (iii) distributions
(or effect stock splits or reverse stock splits) with respect to its Equity Interests payable solely in additional shares of its
Equity Interests;


 


(c)          so
long as no Default shall have occurred and be continuing at the time of any action described below or would result therefrom, Borrower,
Parent and each Subsidiary may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from
the substantially concurrent issue of new shares of its common Equity Interests or other Equity Interests; and


 


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


 




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8.06        Change
in Nature of Business. Engage in any material line of business substantially different from those
lines of business conducted by the Borrower and its Subsidiaries on the date hereof or any business substantially related or incidental
thereto.


 


8.07        Transactions
with Affiliates. Enter into any transaction of any kind with any Affiliate of a Loan Party, whether
or not in the ordinary course of business, other than on fair and reasonable terms substantially as favorable to such Loan Party
as would be obtainable by such Loan Party at the time in a comparable arm’s length transaction with a Person other than an
Affiliate.


 


8.08        Burdensome
Agreements. Enter into any Contractual Obligation (other than this Agreement, any other Loan
Document or any Comparable Credit Facility) that (a) limits the ability (i) of any Subsidiary (other than an Excluded Subsidiary)
to make Restricted Payments to the Borrower or any Guarantor or to otherwise transfer property to the Borrower or any Guarantor,
(ii) of any Subsidiary (other than an Excluded Subsidiary) to Guarantee the Indebtedness of the Borrower or (iii) of the Borrower
or any Subsidiary to create, incur, assume or suffer to exist Liens on any Unencumbered Pool Properties (other than Permitted Liens).


 


8.09        Use
of Proceeds. Use the proceeds of any Loan, whether directly or indirectly, and whether immediately,
incidentally or ultimately, to purchase or carry margin stock (within the meaning of Regulation U of the FRB) or to extend credit
to others for the purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose.


 


8.10        Minimum
Number of Unencumbered Pool Properties. Without the prior written consent of Required Lenders
allow there to be less than twenty (20) Unencumbered Pool Properties.


 


8.11        Industry
Concentration. Not permit more than 20% (or 40% in the case of retail drug stores and pharmacies)
of annualized base rents of the Loan Parties and their Subsidiaries for any twelve (12) month period to be attributable to any
one industry type.


 


8.12        [Intentionally
Omitted].


 


8.13        Negative
Pledge. Not permit the incurrence of any Indebtedness (other than the Loans) secured by any Lien
granted by a Loan Party on any Unencumbered Pool Property.


 


8.14        Financial
Covenants. Not, directly or indirectly, permit:


 


(a)          Maximum
Leverage Ratio. Total Indebtedness to exceed 60% of Total Asset Value at any time.


 


(b)          Maximum
Secured Leverage Ratio. Total Secured Indebtedness to exceed 40% of Total Asset Value at any time.


 


(c)          Minimum
Tangible Net Worth. Tangible Net Worth at any time to be less than the sum of (i) $240,998,541 plus (ii) an amount
equal to seventy-five percent (75%) of net equity proceeds received by the Parent after March 31, 2014 (other than proceeds
received in connection with any dividend reinvestment program).


 


(d)          Minimum
Fixed Charge Coverage Ratio. The ratio of Adjusted EBITDA to Fixed Charges to be less than 1.50 to 1.0 at any time.


 




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(e)          Maximum
Secured Recourse Indebtedness. Total Indebtedness that is Secured Recourse Indebtedness to be in excess of fifteen percent
(15%) of Total Asset Value at any time.


 


(f)          Maximum
Unencumbered Leverage Ratio. Total Indebtedness that is Unsecured Indebtedness to exceed sixty percent (60%) of Unencumbered
Asset Value at any time.


 


(g)          Minimum
Unsecured Interest Expense Ratio. The ratio of Unencumbered Pool NOI to Unsecured Interest Expense to be less than 2.00 to
1.00 at any time.


 


ARTICLE IX. EVENTS
OF DEFAULT AND REMEDIES


 


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


 


(a)          Non-Payment.
The Borrower or any other Loan Party fails to pay (i) when and as required to be paid herein, any amount of principal of any Term
Loan, or (ii) within three days after the same becomes due, any interest on any Term Loan or any fee due hereunder, or (iii)
within five days after the same becomes due, any other amount payable hereunder or under any other Loan Document; or


 


(b)          Specific
Covenants. The Borrower fails to perform or observe any term, covenant or agreement contained in any of Section 7.01,
7.02, 7.03, 7.05, 7.10, 7.11, 7.14, 7.16, 7.17 or Article VIII (other than Section 8.14(f) and 8.14(g));
or


 


(c)          Unencumbered
Pool Covenant Compliance. The Borrower fails to perform or observe any term, covenant or agreement contained in Section 8.14(f)
or 8.14(g) and such failure continues for 10 days; or


 


(d)          Other
Defaults. Any Loan Party fails to perform or observe any other covenant or agreement (not specified in subsections (a),
(b) or (c) above) contained in any Loan Document on its part to be performed or observed and such failure continues
for 30 days, or such longer period of time as is reasonably necessary to cure such failure, provided that the Loan Party has commenced
and is diligently prosecuting the cure of such failure and cures it within an additional 30 day period; or


 


(e)          Anti-Money
Laundering/International Trade Law Compliance. Any representation or warranty contained in Section 6.18 is or becomes
false or misleading at any time; or


 


(f)          Representations
and Warranties. Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of the
Borrower or any other Loan Party herein, in any other Loan Document, or in any document delivered in connection herewith or therewith
shall be incorrect or misleading in any material respect when made or deemed made; or


 




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(g)          Cross-Default.
(i) The Borrower or any Subsidiary (A) fails to make any payment when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) after taking into account any applicable grace or cure periods in respect of any (a) Recourse
Indebtedness (other than Indebtedness hereunder and Indebtedness under Swap Contracts) having an aggregate principal amount (including
undrawn committed or available amounts and including amounts owing to all creditors under any combined or syndicated credit arrangement)
of more than $20,000,000, or (b) Non-Recourse Indebtedness having an aggregate principal amount (including undrawn committed or
available amounts and including amounts owing to all creditors under any combined or syndicated credit arrangement) of more than
$25,000,000, or (B) fails to observe or perform any other agreement or condition relating to any such Indebtedness or Guarantee
described in subsections (a) or (b), above, or contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event occurs, the effect of which default or other event is to cause, or to permit the holder or holders
of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder or holders
or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to be demanded or to become
due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease
or redeem such Indebtedness to be made, prior to its stated maturity, or such Guarantee to become payable or cash collateral in
respect thereof to be demanded; or (ii) there occurs under any Swap Contract an Early Termination Date (as defined in such
Swap Contract) resulting from (A) any event of default under such Swap Contract as to which the Borrower or any Subsidiary is the
Defaulting Party (as defined in such Swap Contract) or (B) any Termination Event (as so defined) under such Swap Contract
as to which the Borrower or any Subsidiary is an Affected Party (as so defined) and, in either event, the Swap Termination Value
owed by the Borrower or such Subsidiary as a result thereof is greater than $5,000,000; or


 


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


 


(i)          Inability
to Pay Debts; Attachment. (i) The Borrower or any Material Subsidiary 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
is issued or levied against all or any material part of the property of any such Person and is not released, vacated or fully bonded
within 30 days after its issue or levy; or


 


(j)          Judgments.
There is entered against the Borrower or any Subsidiary (i) one or more final judgments or orders for the payment of money in an
aggregate amount (as to all such judgments or orders) exceeding $5,000,000 (to the extent not covered by independent third-party
insurance as to which the insurer does not dispute coverage), or (ii) any one or more non-monetary final judgments that have, or
could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and, in either case, (A) enforcement
proceedings are commenced by any creditor upon such judgment or order, or (B) there is a period of 10 consecutive days during
which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect; or


 


(k)          ERISA.
(i) An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with other ERISA Events
that have occurred, could reasonably be expected to result in liability to the Borrower and its Subsidiaries in an aggregate amount
exceeding $5,000,000, (ii) there is or arises Unfunded Pension Liability for all Plans (not taking into account Plans with negative
Unfunded Pension Liability) in an aggregate amount exceeding $5,000,000, or (iii) there is or arises any Withdrawal Liability as
regards the Borrower or any ERISA Affiliate in an aggregate amount exceeding $5,000,000; or


 


(l)          Invalidity
of Loan Documents. Any material provision of any Loan Document, at any time after its execution and delivery and for any reason
other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations, ceases to be in full
force and effect; or any Loan Party or any other Person contests in any manner the validity or enforceability of any provision
of any Loan Document; or any Loan Party denies that it has any or further liability or obligation under any Loan Document, or purports
to revoke, terminate or rescind any provision of any Loan Document; or


 




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(m)          Change
of Control. There occurs any Change of Control; or


 


(n)          REIT
Status of Parent. Parent ceases to be treated as a REIT.


 


9.02        Remedies
Upon Event of Default. If any Event of Default occurs and is continuing
and after giving effect to all applicable notice and cure periods, the Administrative Agent shall, at the request of, or may,
with the consent of, the Required Lenders, take any or all of the following actions:


 


(a)          Declare
the commitment of each Lender to make Term Loans to be terminated, whereupon such commitments shall be terminated;


 


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


 


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


 


provided, however,
that upon the occurrence of an Event of Default described in Section 9.01(h) with respect to the Borrower, the obligation
of each Lender to make Term Loans shall automatically terminate, the unpaid principal amount of all outstanding Term Loans and
all interest and other amounts as aforesaid shall automatically become due and payable, in each case without further act of the
Administrative Agent or any Lender.


 


9.03        Application
of Funds. After the exercise of remedies provided for in Section 9.02 (or after
the Term Loans have automatically become immediately due and payable), any amounts received on account of the Obligations shall,
subject to the provisions of Section 2.18, 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 fees, charges and disbursements
of counsel to the Administrative Agent and amounts payable under Article III) payable to the Administrative Agent in its
capacity as such;


 


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


 


Third, to payment
of that portion of the Obligations constituting accrued and unpaid interest on the Term Loans, interest on other Obligations and
prepayment premiums payable to the Lenders under Section 2.06(b), 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 Term Loans and Obligations under Swap Contracts ratably
among the Lenders in proportion to the respective amounts described in this clause Fourth held by them; and


 




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


 


ARTICLE X. ADMINISTRATIVE
AGENT


 


10.01      Appointment
and Authority.
Each of the Lenders hereby irrevocably appoints Capital One to act on its behalf as the Administrative Agent hereunder and under
the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers
as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably
incidental thereto. The provisions of this Article are solely for the benefit of the Administrative Agent and the Lenders, and
neither the Borrower nor any other Loan Party shall have rights as a third party beneficiary of any of such provisions. Without
limiting the generality of the foregoing, the use of the term “agent” or other similar terms in this Agreement 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.


 


10.02      Rights
as a Lender. The Person serving as the Administrative
Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same
as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise
expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder
in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor
or in any other advisory capacity for and generally engage in any kind of business with the Borrower or any Subsidiary or other
Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the
Lenders. The Lenders acknowledge that, as a result of engaging in such businesses, the Administrative Agent or its Affiliates may
(a) receive information regarding the Loan Parties or any of their Affiliates (including information that may be subject to
confidentiality obligations in favor of the Loan Parties or their Affiliates) in connection with other transactions or business
and shall be under no obligation to provide such information to the Lenders, and (b) accept fees and other consideration from
the Loan Parties for services in connection with this Agreement and otherwise without having to account for the same to the Lenders.


 


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


 


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


 


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


 




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


 


The Administrative
Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders
(or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good
faith shall be necessary, under the circumstances as provided in Sections 11.01(a) and 9.02) or (ii) in the absence
of its own gross negligence or willful misconduct. The Administrative Agent shall be fully justified in failing or refusing to
take any action under this Agreement or any of the other Loan Documents unless it shall first be indemnified to its satisfaction
by the Lenders against any and all liability and expense which may be incurred by the Administrative Agent by reason of taking
or continuing to take any such action. The Administrative Agent shall not be deemed to have knowledge of any Default unless and
until notice describing such Default and stating that such notice is a “notice of default” is given to the Administrative
Agent by the Borrower or a Lender.


 


The Administrative
Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation
made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other
document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of
any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv)
the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument
or document or (v) the satisfaction of any condition set forth in Article V or elsewhere herein, other than to confirm receipt
of items expressly required to be delivered to the Administrative Agent. No claim may be made by any Lender, the Administrative
Agent, or any of their Related Parties against the Administrative Agent, any Lender or any of their Related Parties, or any of
them, for any special, indirect or consequential damages or, to the fullest extent permitted by Law, for any punitive damages in
respect of any claim or cause of action (whether based on contract, tort, statutory liability, or any other ground) based on, arising
out of or related to any Loan Document or the transactions contemplated hereby or any act, omission or event occurring in connection
therewith, including the negotiation, documentation, administration or collection of the Term Loans, and the Administrative Agent
and each Lender hereby waives, releases and agrees never to sue upon any claim for any such damages, whether such claim now exists
or hereafter arises and whether or not it is now known or suspected to exist in its favor. Each Lender hereby agrees that, except
for notices, reports and other documents expressly required to be furnished to the Lenders by the Administrative Agent hereunder,
the Administrative Agent and each of its Related Parties shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, operations, property, condition (financial or otherwise), prospects or creditworthiness
of any of the Loan Parties that may come into the possession of the Administrative Agent or any of its Related Parties.


 


In the absence of gross
negligence or willful misconduct, the Administrative Agent shall not be liable for any error in computing the amount payable to
any Lender whether in respect of any Term Loan, any fees or any other amounts due to the Lenders under this Agreement. In the event
an error in computing any amount payable to any Lender is made, the Administrative Agent, the Borrower and each affected Lender
shall, forthwith upon discovery of such error, make such adjustments as shall be required to correct such error, and any compensation
therefor will be calculated at the Federal Funds Rate.


 




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


 


10.05      Delegation
of Duties. The Administrative Agent may perform any
and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more
sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its
duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article
shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply
to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities
as Administrative Agent.


 


10.06      Resignation
of Administrative Agent. The Administrative
Agent may at any time, and at the request of the Required Lenders as a result of Administrative Agent’s gross negligence
or willful misconduct in performing its duties under this Agreement shall, give notice of its resignation to the Lenders and the
Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the
Borrower, to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank
with an office in the United States. If no such successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the
retiring Administrative Agent may on behalf of the Lenders, appoint a successor Administrative Agent meeting the qualifications
set forth above; provided that if the Administrative Agent shall notify the Borrower and the Lenders that no qualifying
Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice
and (1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other
Loan Documents and (2) all payments, communications and determinations provided to be made by, to or through the Administrative
Agent shall instead be made by or to each Lender directly, until such time as the Required Lenders appoint a successor Administrative
Agent as provided for above in this Section. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder,
such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired)
Administrative Agent, and the retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder
or under the other Loan Documents (if not already discharged therefrom as provided above in this Section). The fees payable by
the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After the retiring Administrative Agent’s resignation hereunder and under the other
Loan Documents, the provisions of this Article and Section 11.04 shall continue in effect for the benefit of such
retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted
to be taken by any of them while the retiring Administrative Agent was acting as Administrative Agent.


 




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10.07      Non-Reliance
on Administrative Agent and Other Lenders. Each
Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of
their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall
from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this
Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. Each Lender expressly
acknowledges that the Administrative Agent has not made any representations or warranties to it and that no act by the Administrative
Agent hereafter taken, including any review of the affairs of any of the Loan Parties, shall be deemed to constitute any representation
or warranty by the Administrative Agent to any Lender.


 


10.08      No
Other Duties, Etc. Anything herein to the contrary
notwithstanding, the Arranger shall have no powers, duties or responsibilities under this Agreement or any of the other Loan Documents,
except in its capacity, as applicable, as the Administrative Agent or a Lender hereunder.


 


10.09      Administrative
Agent May File Proofs of Claim. In case of the pendency
of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the Administrative Agent
(irrespective of whether the principal of any Term 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 Borrower) shall be entitled and
empowered, by intervention in such proceeding or otherwise:


 


(a)          to
file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Term Loans and all
other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have
the claims of the Lenders and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements
and advances of the Lenders and the Administrative Agent and their respective agents and counsel and all other amounts due the
Lenders and the Administrative Agent under Sections 2.10 and 11.04) allowed in such judicial proceeding; and


 


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


 


and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each
Lender to make such payments to 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 2.10 and 11.04.


 


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 to authorize
the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.


 


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


 


(a)          to
release any Lien on any property granted to or held by the Administrative Agent under any Loan Document (i) upon termination of
the Term Loan Commitments and payment in full of all Obligations (other than contingent indemnification obligations), (ii) that
is sold or to be sold as part of or in connection with any sale permitted hereunder or under any other Loan Document, or (iii)
subject to Section 11.01(a), if approved, authorized or ratified in writing by all Lenders;


 




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(b)          [intentionally
omitted]; and


 


(c)          to
release any Subsidiary Guarantor from its obligations under the Guaranty if such release is permitted under Section 7.14(b).


 


Upon request by the
Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release
its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty pursuant
to this Section 10.10.


 


10.11      No
Reliance on Administrative Agent’s Customer Identification Program. Each
of the Lenders acknowledges and agrees that neither such Person, nor any of its Affiliates, participants or assignees, may rely
on the Administrative Agent to carry out such ’Person’s, Affiliate’s, participant’s or assignee’s
customer identification program, or other obligations required or imposed under or pursuant to the PATRIOT Act or the regulations
thereunder, including the regulations contained in 31 CFR 1020.220 (as hereafter amended or replaced, the “CIP Regulations”),
or any other Anti-Terrorism Law, including any programs involving any of the following items relating to or in connection with
any of the Loan Parties, their Affiliates or their agents, the Loan Documents or the transactions hereunder or contemplated hereby:
(i) any identity verification procedures, (ii) any recordkeeping, (iii) comparisons with government lists, (iv) customer notices
or (v) other procedures required under the CIP Regulations or such other Anti-Terrorism Law.


 


10.12      Consents
and Approvals. All communications from the Administrative
Agent to all of the Lenders requesting such Lenders’ determination, consent, approval or disapproval (a) shall be given
in the form of a written notice to each applicable Lender, (b) shall be accompanied by a description of the matter or time
as to which such determination, approval, consent or disapproval is requested, or shall advise each such Lender where such matter
or item may be inspected, or shall otherwise describe the matter or issue to be resolved, (c) shall include, if reasonably
requested by a Lender and to the extent not previously provided to such Lender, written materials and an overview of any other
information provided to the Administrative Agent by the Loan Parties in respect of the matter or issue to be resolved, and (d) shall
include the Administrative Agent’s recommended course of action or determination in respect thereof. Each Lender shall reply
promptly, but in any event within 10 Business Days after receipt of any such request from the Administrative Agent (the “Lender
Reply Period”). Unless a Lender shall give written notice to the Administrative Agent that it objects to the recommendation
or determination of the Administrative Agent (together with a written explanation of the reasons behind such objection) within
the Lender Reply Period, such Lender shall be deemed to have approved of or consented to such recommendation or determination;
provided, that such deemed consent shall not apply to the amendments, waivers and consents set forth in clauses
(i) through (viii) of the proviso included in the first sentence of Section 11.01(a). With respect to decisions
requiring the approval of the Required Lenders or all Lenders, the Administrative Agent shall submit its recommendation or determination
for approval of or consent to such recommendation or determination to all applicable Lenders and upon receiving the required approval
or consent shall follow the course of action or determination of the Required Lenders (and each nonresponding Lender shall be deemed
to have concurred with such recommended course of action) or all Lenders, as the case may be.


 




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ARTICLE XI. MISCELLANEOUS


 


11.01      Amendments,
Etc.


 


(a)          No
amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by the Borrower
or any other Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders and the Borrower or the
applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent, and each such waiver or consent shall
be effective only in the specific instance and for the specific purpose for which given; provided, however, that
no such amendment, waiver or consent shall:


 


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


 


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


 


(iii)        postpone
any date fixed by this Agreement or any other Loan Document for any payment or mandatory prepayment of principal, interest, fees
or other amounts due to the Lenders (or any of them) hereunder or under any other Loan Document without the written consent of
each Lender directly affected thereby;


 


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


 


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


 


(vi)        change
any provision of this Section or the definition of “Required Lenders” or any other provision hereof specifying the
number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or
grant any consent hereunder, without the written consent of each Lender;


 


(vii)       release
any collateral without the written consent of each Lender, except to the extent the release of such collateral is permitted pursuant
to Section 10.10 or otherwise permitted pursuant to the terms of this Agreement (in which case such release may be
made by Administrative Agent acting alone); or


 


(viii)      release
any Guarantor without the written consent of each Lender, except to the extent the release of any Guarantor is permitted pursuant
to Section 10.10 or otherwise permitted pursuant to the terms of this Agreement (in which case such release may be made
by the Administrative Agent acting alone); and


 




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


 


(b)          Modifications
to Existing Credit Agreement.


 


(i)          Notwithstanding
anything to the contrary contained in this Agreement but subject to the provisos contained in Section 11.01(a), if
(x) (A) any of the representations and warranties, covenants, events of default or other material terms contained in Section 1.03
or Article VI. through Article IX. of the Existing Credit Agreement (including any related definitions for such provisions)
are hereafter amended, waived, restated or otherwise modified in a manner that is less restrictive and more favorable to the Loan
Parties or compliance therewith is waived (including any consent or approval which includes a waiver of an existing or potential
default or event of default that is intended to be eliminated by such modification, restatement or waiver), or (B) a Property is
included as an Eligible Unencumbered Property (as defined in the Existing Credit Agreement) for purposes of the calculation of
Unencumbered Asset Value (as defined in the Existing Credit Agreement) which Property does not meet one or more of the criteria
for inclusion set forth in the Existing Credit Agreement (each of the deviations from the Existing Credit Agreement in the immediately
preceding clauses (A) and (B), a “Modification”; the written amendment, modification, supplement or waiver enacting
such Modification to the Existing Credit Agreement, a “Modification Document”), and (y) the Lenders hereunder
constituting the Required Lenders that are also Lenders under the Existing Credit Agreement (an “Existing Credit Agreement
Lender”) expressly approved the applicable Modification Document (a “Consenting Lender”), then the
substantive terms contained in such Modification shall be deemed incorporated and given effect in this Agreement to the same extent
as though set forth in full herein, so as to have the provisions of this Agreement consistent with such Modification of the Existing
Credit Agreement. Any Corresponding Modification shall be effective only in the specific instance and for the specific purpose
for which given. For purposes hereof, “Corresponding Modification” shall mean any deemed or written amendment, modification,
supplement or waiver to this Agreement that enacts the terms of a Modification to the Existing Credit Agreement that correspond
to terms contained in this Agreement.


 


(ii)         At
any time that the Administrative Agent is not an Existing Credit Agreement Lender, the Borrower agrees to provide the Administrative
Agent with (x) a copy of all draft Modification Documents with respect to the Existing Credit Agreement within 10 days (or such
shorter period as may be acceptable to the Administrative Agent) prior to the execution thereof, and (y) a final, executed copy
of each Modification Document. The Borrower, each Consenting Lender and any other Lender that has approved a Corresponding Modification
each agrees to execute and deliver promptly after the Administrative Agent’s or the Required Lenders’ request an amendment,
modification, supplement or waiver to this Agreement (in form and substance satisfactory to the Administrative Agent or the Required
Lenders, as applicable, and the Borrower) to reflect the intent of this subsection (b) provided, that the execution and
delivery thereof shall not be a condition to the effectiveness of such amendment, modification, supplement or waiver. At any time
that the Administrative Agent is an Existing Credit Agreement Lender, Borrower shall be deemed to have provided the notice required
to the Administrative Agent hereunder upon execution of any Modification Documents.


 




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(iii)        Notwithstanding
anything to contrary in this Agreement, including Section 11.01(b)(i), if any financial covenant contained in the Existing
Credit Agreement (including any related definitions for such provision) is amended or otherwise modified in a manner that is more
restrictive to the Loan Parties or more favorable to the Existing Credit Agreement Lenders than the financial covenants (and related
definitions for such provision) then set forth in the Existing Credit Agreement or any additional financial covenant not set forth
in this Agreement is included in the Existing Credit Agreement and such financial covenant is more restrictive to the Loan Parties
or more favorable to the Existing Credit Agreement Lenders than the financial covenants then set forth in the Existing Credit Agreement,
then and in such event the Borrower shall provide notice thereof to the Administrative Agent and the corresponding financial covenant
set forth in this Agreement shall automatically be deemed to be amended, modified or incorporated herein by reference, as applicable,
with the same effect as in the Existing Credit Agreement unless the Required Lenders agree otherwise in writing, in their sole
discretion.


 


11.02      Notices;
Effectiveness; Electronic Communication.


 


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


 


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


 


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


 


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


 


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


 




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


 


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


 


(d)          Change
of Address, Etc. Each of the Borrower 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 written notice to the Borrower 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 address to which notices
and other communications may be sent and (ii) accurate wire instructions for such Lender. Furthermore, each Public Lender agrees
to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information”
or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate,
in accordance with such Public Lender’s compliance procedures and applicable Law, including United States federal and state
securities Laws, to make reference to Borrower Materials that are not made available through the “Public Side Information”
portion of the Platform and that may contain material non-public information with respect to the Borrower or its securities for
purposes of United States federal or state securities laws.


 


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


 




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11.03      No
Waiver; Cumulative Remedies; Enforcement. 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 Loan Document, the authority to enforce rights and remedies hereunder and under
the other Loan Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings
at law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance
with Section 9.02 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 Loan Documents, (b) any Lender from exercising setoff rights in
accordance with Section 11.08 (subject to the terms of Section 2.14), or (c) any Lender from filing proofs of claim
or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any Debtor
Relief Law; and provided, further, that if at any time there is no Person acting as Administrative Agent hereunder
and under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative
Agent pursuant to Section 9.02 and (ii) in addition to the matters set forth in clauses (b) and (c) of the
preceding proviso and subject to Section 2.14, 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.


 


11.04      Expenses;
Indemnity; Damage Waiver.


 


(a)          Costs
and Expenses. The Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by the Administrative Agent and
its Affiliates (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent), in connection
with the syndication of the credit facilities provided for herein, the preparation, negotiation, execution, delivery and administration
of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be consummated), and (ii) all out-of-pocket expenses incurred
by the Administrative Agent or any Lender (including the fees, charges and disbursements of any counsel for the Administrative
Agent or any Lender in connection with the enforcement or protection of its rights (A) in connection with this Agreement
and the other Loan Documents, including its rights under this Section, or (B) in connection with the Term Loans made hereunder,
including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Term Loans).


 




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(b)          Indemnification
by the Borrower. The Borrower shall indemnify the Administrative Agent (and any sub-agent thereof) and each Lender, and each
Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold
each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the fees, charges
and disbursements of any counsel for any Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by any third
party or by the Borrower or any other Loan Party arising out of, in connection with, or as a result of (i) the execution or
delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance
by the parties hereto of their respective obligations hereunder or thereunder, the consummation of the transactions contemplated
hereby or thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration
of this Agreement and the other Loan Documents (including in respect of any matters addressed in Section 3.01), (ii) any
Term Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by the Borrower or any of its Subsidiaries, or any Environmental Liability
related in any way to the Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation
or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third
party or by the Borrower or any other Loan Party, and regardless of whether any Indemnitee is a party thereto; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities
or related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted
from the gross negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by the Borrower or any
other Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or under any other
Loan Document, if the Borrower or such other Loan Party has obtained a final and nonappealable judgment in its favor on such claim
as determined by a court of competent jurisdiction.


 


(c)          Reimbursement
by Lenders. To the extent that the Borrower for any reason fails to indefeasibly pay any amount required under subsection (a)
or (b) of this Section to be paid by it to the Administrative Agent (or any sub-agent thereof) or any Related Party
of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent) or such Related
Party, as the case may be, such Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed
expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or
any such sub-agent) or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent).
The obligations of the Lenders under this subsection (c) are subject to the provisions of Section 2.13(d).


 


(d)          Waiver
of Consequential Damages, Etc. To the fullest extent permitted by applicable law, the Borrower shall not assert, and hereby
waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan
Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Term Loan or
the use of the proceeds thereof. No Indemnitee referred to in subsection (b) above shall be liable for any damages arising
from the use by unintended recipients of any information or other materials distributed to such unintended recipients by such Indemnitee
through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other
Loan Documents or the transactions contemplated hereby or thereby other than for direct or actual damages resulting from the gross
negligence or willful misconduct of such Indemnitee as determined by a final and nonappealable judgment of a court of competent
jurisdiction.


 


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


 


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


 




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11.05      Payments
Set Aside. To the extent that any payment by
or on behalf of the Borrower is made to the Administrative Agent or any Lender, or the Administrative Agent or any Lender exercises
its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared
to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by 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 setoff had
not occurred, and (b) each Lender severally agrees to pay to the Administrative Agent upon demand its applicable share (without
duplication) 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 Overnight Rate from time to time in effect. The obligations
of the Lenders under clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the
termination of this Agreement.


 


11.06         Successors
and Assigns.


 


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


 


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


 


(i)          Minimum
Amounts.


 


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


 


(B)         in
any case not described in subsection (b)(i)(A) of this Section, the amount of a Term Loan Commitment, together with the
principal outstanding balance of the Term Loans of the assigning Lender subject to each such assignment, determined as of the date
the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date”
is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $5,000,000 unless each of the Administrative
Agent and, so long as no Event of Default has occurred and is continuing, the Borrower otherwise consents (each such consent not
to be unreasonably withheld or delayed); 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.


 




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


 


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


 


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


 


(B)         the
consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required if such assignment
is to a Person that is not a Lender, an Affiliate of a Lender or an Approved Fund with respect to a Lender.


 


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


 


(v)         No
Assignment to Certain Persons. No such assignment shall be made (A) to the Borrower or any of the Borrower’s Affiliates
or Subsidiaries, or (B) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder,
would constitute any of the foregoing Persons described in this clause (B), or (C) to a natural person.


 


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


 




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Subject to acceptance
and recording thereof by the Administrative Agent pursuant to subsection (c) of this Section, from and after the effective
date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent
of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and
the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from
its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to
the benefits of Sections 3.01, 3.04, 3.05, and 11.04 with respect to facts and circumstances occurring
prior to the effective date of such assignment. Upon request, the Borrower (at its expense) shall execute and deliver a Term Note
to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply
with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights
and obligations in accordance with subsection (d) of this Section.


 


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


 


(d)          Participations.
Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations
to any Person (other than a natural person, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries)
(each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement
(including all or a portion of its Term Loan Commitment and/or the Term Loans owing to it; provided that (i) such Lender’s
obligations under this 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 Borrower, the Administrative Agent and the Lenders shall continue
to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this 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
Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement
or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or
other modification described in the first proviso to Section 11.01(a) that affects such Participant. Subject to subsection
(e) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04
and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection
(b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 11.08
as though it were a Lender; provided such Participant agrees to be subject to Section 2.14 as though it were
a Lender.


 




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(e)          Limitations
upon Participant Rights. 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,
unless the sale of the participation to such Participant is made with the Borrower’s prior written consent. 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 is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower,
to comply with Section 3.01(e) as though it were a Lender.


 


(f)          Certain
Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement
(including under its Term 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.


 


11.07      Treatment
of Certain Information; Confidentiality. Each
of the Administrative Agent and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except
that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’ respective partners, directors, officers,
employees, agents, trustees, advisors and representatives (it being understood that the Persons to whom such disclosure is made
will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to
the extent requested by any regulatory authority purporting to have jurisdiction over it (including any self-regulatory authority,
such as the National Association of Insurance Commissioners), (c) to the extent required by applicable laws or regulations or
by any subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder
or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement
of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section,
to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under
this Agreement or any Eligible Assignee invited to be a Lender pursuant to Section 2.16 or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating to the Borrower and its obligations, (g) with the
consent of the Borrower or (h) to the extent such Information (x) becomes publicly available other than as a result of a breach
of this Section or (y) becomes available to the Administrative Agent, any Lender or any of their respective Affiliates on a nonconfidential
basis from a source other than the Borrower. For purposes of this Section, “Information” means all information received
from the Borrower or any Subsidiary relating to the Borrower or any Subsidiary or any of their respective businesses, other than
any such information that is available to the Administrative Agent or any Lender on a nonconfidential basis prior to disclosure
by the Borrower or any Subsidiary, provided that, in the case of information received from the Borrower or any Subsidiary after
the date hereof, such information is clearly identified at the time of delivery as confidential. Any Person required to maintain
the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do
so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information.


 


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


 




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11.08      Right
of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender and each of its respective Affiliates is hereby authorized at any time and from time to
time, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time
owing by such Lender or any such Affiliate to or for the credit or the account of the Borrower or any other Loan Party against
any and all of the obligations of the Borrower or such Loan Party now or hereafter existing under this Agreement or any other
Loan Document to such Lender, irrespective of whether or not such Lender shall have made any demand under this Agreement or any
other Loan Document and although such obligations of the Borrower or such Loan Party may be contingent or unmatured or are owed
to a branch or office of such Lender different from the branch or office holding such deposit or obligated on such indebtedness;
provided, that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall
be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.18
and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for
the benefit of the Administrative Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative
Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such
right of setoff. The rights of each Lender and their respective Affiliates under this Section are in addition to other rights
and remedies (including other rights of setoff) that such Lender or their respective Affiliates may have. Each Lender agrees to
notify the Borrower and the Administrative Agent promptly after any such setoff and application; provided that the failure
to give such notice shall not affect the validity of such setoff and application.


 


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


 


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


 


11.11      Survival
of Representations and Warranties. All representations
and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection
herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been
or will be relied upon by 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 at the time of any Borrowing, and shall continue in full force and effect as long as any Term Loan or any other
Obligation hereunder shall remain unpaid or unsatisfied.


 




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11.12      Severability.
If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality,
validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or
impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable
provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable
provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision
in any other jurisdiction. Without limiting the foregoing provisions of this Section 11.12, if and to the extent that the
enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined
in good faith by the Administrative Agent, then such provisions shall be deemed to be in effect only to the extent not so limited.


 


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


 


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


 


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


 


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


 


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


 


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


 


11.14      Governing
Law; Jurisdiction; Etc.


 


(a)          GOVERNING
LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK OTHER THAN THE
CHOICE OF LAWS PROVISIONS THEREOF (OTHER THAN SECTION 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).


 




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


 


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


 


(d)          SERVICE
OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 11.01(b).
NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE
LAW.


 


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


 




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


 


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


 


11.18      USA
PATRIOT Act. Each Lender that is subject to the Patriot
Act and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the
requirements of the Patriot Act, it is required to obtain, verify and record information that identifies the Loan Parties, which
information includes the names, addresses and taxpayer identification numbers of the Loan Parties and other information that will
allow such Lender or the Administrative Agent, as applicable, to identify the Loan Parties in accordance with the Patriot Act.
The Borrower shall, promptly following a request by the Administrative Agent or any Lender, provide all documentation and other
information that the Administrative Agent or such Lender requests in order to comply with its ongoing obligations under applicable
“know your customer” and anti-money laundering rules and regulations, including the Patriot Act.


 


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


 




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11.20     Promotional
Materials. The Borrower authorizes the Administrative Agent and each of the Lenders to issue press releases, advertisements,
other promotional materials and other disclosures (including disclosures to league tables and similar services) in connection
with the Administrative Agent’s or such Lender’s own promotional and marketing activities, and describing the basic
terms of the Loans consistent with information found on a “tombstone” and the Administrative Agent’s or such
Lender’s participation in the Loans subject in each case to the prior review and consent of the Borrower. All references
to the Administrative Agent or any Lender contained in any press release, advertisement, promotional material or other public
disclosures issued by the Borrower shall be approved in writing by the Administrative Agent or such Lender, as applicable, in
advance of issuance.


 


11.21     Acknowledgement
and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in
any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of
any EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the
Write-Down and Conversion Powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be
bound by:


 


(a)          the
application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which
may be payable to it by any party hereto that is an EEA Financial Institution; and


 


(b)          the
effects of any Bail-in Action on any such liability, including, if applicable:


 


(i)          a
reduction in full or in part or cancellation of any such liability;


 


(ii)         a
conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution,
its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or
other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement
or any other Loan Document; or


 


(iii)        the
variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of any EEA Resolution
Authority.


 


To the extent not prohibited
by Applicable Law, each Lender shall notify the Borrower and the Administrative Agent if it has become the subject of a Bail-In
Action (or any case or other proceeding in which a Bail-In Action could be reasonably be expected to be asserted against such Lender).


 


[remainder of page intentionally
left blank]


 




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IN WITNESS WHEREOF,
the parties hereto have caused this Term Loan Agreement to be executed by their authorized officers all as of the date first above
written.


 


	 	AGREE LIMITED PARTNERSHIP,
	 	a Delaware limited partnership
	 	 	 	 
	 	By:	Agree Realty Corporation, 
	 	 	a Maryland corporation, its sole general partner
	 	 	 	 
	 	 	By:	 /s/ Joel N. Agree
	 	 	Name: Joel N. Agree
	 	 	Title:   President and Chief Executive Officer


 


[Signatures Continued
on Next Page]


 




     


     


    

 


[Signature Page to
Term Loan Agreement with Agree Limited Partnership]


 


	 	CAPITAL ONE, NATIONAL ASSOCIATION, 
	 	as Administrative Agent and as a Lender
	 	 	 
	 	By:	 /s/ Barbara Heubner
	 	Name: Barbara Heubner
	 	Title:   Vice President


 


[Signatures Continued
on Next Page]


 




     


     


    

 


[Signature Page to
Term Loan Agreement with Agree Limited Partnership]


 


	 	RAYMOND JAMES BANK, N.A., as a Lender
	 	 	 
	 	By:	 /s/ James M. Armstrong
	 	Name: James M. Armstrong
	 	Title:   Senior Vice President


 




     


     


    

 


SCHEDULE 1.01(A)


 


Term Loan Commitments


 


	Lender	 	Term Loan
 Commitment	 
	Capital One, National Association	 	$	30,000,000	 
	Raymond James Bank, N.A.	 	$	10,000,000	 
	Total	 	$	40,000,000	 



 




     


     


    

 


SCHEDULE 11.02


 


Administrative Agent’s
Office; Certain Addresses for Notices


 


Administrative Agent:


 


Administrative Agent’s
Office




Capital One, National Association, as Administrative Agent

1680 Capital One Drive, 10th Floor


McLean, Virginia 22102


Attention: Jessica Schneickert


Phone:(703) 720-6526


Fax:     (703) 730-2032


E-mail:Jessica.Schneickert@capitalone.com


 


with a copy to:


 


Capital One, National Association,
as Administrative Agent

299 Park Ave., 31st Floor


New York, NY 10170


Attention: Thomas Kornobis,
Commercial Loan Operations


Phone:(646) 836-5268


Fax:     (888) 246-3710


E-mail:Thoms.Kornobis@capitalone.com


 




     


     


    

 


Borrower:


 


Agree Limited Partnership


70 East Long Lake Road


Bloomfield Hills, MI
48304


Attention: Matthew Partridge


Phone:(248) 419-6335


Fax:      (248) 737-9110


E-mail: mpartridge@agreerealty.com


 


With a copy to:


 


Honigman Miller Schwartz
and Cohn LLP


39400 Woodward Avenue


Suite 101


Bloomfield Hills, MI
48304-5151


Attention: Lowell D.
Salesin


Phone:248-566-8540


Fax:     248-566-8541


Email:lsalesin@honigman.com


 




     


     


    

 


SCHEDULE 1.01(B)


 


GUARANTORS


 


		1.	Agree Realty Corporation, a Maryland corporation



 


and


 


		2.	Subsidiary Guarantors:



 


	Subsidiary	 	State of Formation
	1.     Agree Limited Partnership	 	Delaware limited partnership
	2.     Agree 17-92, LLC	 	Florida limited liability company
	3.     Agree Alcoa TN LLC	 	Tennessee limited liability company
	4.     Agree Allentown PA LLC	 	Pennsylvania limited liability company
	5.     Agree Altoona PA, LLC	 	Delaware limited liability company
	6.     Agree Anderson SC LLC	 	Delaware limited liability company
	7.     Agree Ann Arbor Jackson, LLC	 	Delaware limited liability company
	8.     Agree Ann Arbor State Street, LLC	 	Michigan limited liability company
	9.     Agree Apopka FL, LLC	 	Delaware limited liability company
	10.   Agree Arlington TX LLC	 	Texas limited liability company
	11.   Agree Atchison, LLC	 	Kansas limited liability company
	12.   Agree Baton Rouge LA LLC	 	Louisiana limited liability company
	13.   Agree Belton MO LLC	 	Delaware limited liability company
	14.   Agree Belvidere IL LLC	 	Illinois limited liability company
	15.   Agree Berwyn IL LLC	 	Illinois limited liability company
	16.   Agree Brenham TX, LLC	 	Delaware limited liability company
	17.   Agree Brighton, LLC	 	Delaware limited liability company
	18.   Agree Brooklyn OH LLC	 	Ohio limited liability company
	19.   Agree Buffalo Center IA, LLC	 	Delaware limited liability company
	20.   Agree Cannon Station LLC	 	Delaware limited liability company
	21.   Agree Cedar Park TX, LLC	 	Delaware limited liability company
	22.   Agree Center Point Birmingham AL LLC	 	Alabama limited liability company
	23.   Agree Charlotte Poplar, LLC	 	North Carolina limited liability company
	24.   Agree Chicago Kedzie, LLC	 	Illinois limited liability company
	25.   Agree Cochran GA, LLC	 	Georgia limited liability company
	26.   Agree Columbia SC LLC	 	Delaware limited liability company
	27.   Agree Concord, LLC	 	North Carolina limited liability company
	28.   Agree Daniel Morgan Ave Spartanburg LLC	 	South Carolina limited liability company
	29.   Agree Davenport IA, LLC	 	Delaware limited liability company
	30.   Agree Des Moines IA, LLC	 	Delaware limited liability company


 


 




     


     


    

  


	Subsidiary	 	State of Formation
	31.   Agree Evergreen CO, LLC	 	Delaware limited liability company
	32.   Agree Facility No. 1, LLC	 	Delaware limited liability company
	33.   Agree Forest MS LLC	 	Mississippi limited liability company
	34.   Agree Forest VA LLC	 	Virginia limited liability company
	35.   Agree Fort Mill SC, LLC	 	South Carolina limited liability company
	36.   Agree Fort Worth TX, LLC	 	Delaware limited liability company
	37.   Agree Fuquay Varina LLC	 	North Carolina limited liability company
	38.   Agree Grand Chute WI LLC	 	Delaware limited liability company
	39.   Agree Grand Forks LLC	 	North Dakota limited liability company
	40.   Agree Harlingen LLC	 	Texas limited liability company
	41.   Agree Hazard KY, LLC	 	Delaware limited liability company
	42.   Agree Holly Springs MS, LLC	 	Delaware limited liability company
	43.   Agree Indianapolis Glendale LLC	 	Delaware limited liability company
	44.   Agree Indianapolis IN II, LLC	 	Delaware limited liability company
	45.   Agree Jackson MS, LLC	 	Delaware limited liability company
	46.   Agree Jacksonville NC, LLC	 	North Carolina limited liability company
	47.   Agree Joplin MO LLC	 	Missouri limited liability company
	48.   Agree Junction City KS LLC	 	Delaware limited liability company
	49.   Agree Kirkland WA, LLC	 	Delaware limited liability company
	50.   Agree Lake in the Hills, LLC	 	Illinois limited liability company
	51.   Agree Lake Zurich IL, LLC	 	Illinois limited liability company
	52.   Agree Lebanon VA LLC	 	Virginia limited liability company
	53.   Agree Lejune Springfield IL, LLC	 	Illinois limited liability company
	54.   Agree Ligonier PA, LLC	 	Pennsylvania limited liability company
	55.   Agree Lowell, LLC	 	Delaware limited liability company
	56.   Agree Lyons GA LLC	 	Georgia limited liability company
	57.   Agree Madisonville TX LLC	 	Texas limited liability company
	58.   Agree Magnolia Knoxville TN LLC	 	Tennessee limited liability company
	59.   Agree Manchester, LLC	 	Connecticut limited liability company
	60.   Agree Marshall MI Outlot, LLC	 	Delaware limited liability company
	61.   Agree McKinney TX, LLC	 	Texas limited liability company
	62.   Agree Memphis Getwell, LLC	 	Tennessee limited liability company
	63.   Agree Minneapolis Clinton Ave, LLC	 	Minnesota limited liability company
	64.   Agree Montgomery AL LLC	 	Alabama limited liability company
	65.   Agree Morrow GA, LLC	 	Georgia limited liability company
	66.   Agree Mt. Dora FL, LLC	 	Delaware limited liability company
	67.   Agree North Las Vegas, LLC	 	Nevada limited liability company
	68.   Agree Novi MI LLC	 	Michigan limited liability company
	69.   Agree Orange & McCoy, LLC	 	Florida limited liability company


  




     


     


    

  


	Subsidiary	 	State of Formation
	70.   Agree Palafox Pensacola FL, LLC	 	Delaware limited liability company
	71.   Agree Pensacola LLC	 	Florida limited liability company
	72.   Agree Pensacola Nine Mile LLC	 	Florida limited liability company
	73.   Agree Pinellas Park, LLC	 	Michigan limited liability company
	74.   Agree Plainfield, LLC	 	Michigan limited liability company
	75.   Agree Poinciana LLC	 	Florida limited liability company
	76.   Agree Port Orange FL, LLC	 	Delaware limited liability company
	77.   Agree Port St. John LLC	 	Delaware limited liability company
	78.   Agree Portland ME, LLC	 	Delaware limited liability company
	79.   Agree Portland OR LLC	 	Oregon limited liability company
	80.   Agree Rancho Cordova I LLC	 	California limited liability company
	81.   Agree Rapid City SD, LLC	 	South Dakota limited liability company
	82.   Agree Richmond VA LLC	 	Delaware limited liability company
	83.   Agree Rochester NY LLC	 	New York limited liability company
	84.   Agree Salem OR, LLC	 	Delaware limited liability company
	85.   Agree Sarasota FL, LLC	 	Delaware limited liability company
	86.   Agree Southfield LLC	 	Michigan limited liability company
	87.   Agree Spartanburg SC LLC	 	South Carolina limited liability company
	88.   Agree Springfield IL LLC	 	Illinois limited liability company
	89.   Agree St Petersburg LLC	 	Florida limited liability company
	90.   Agree St. Augustine Shores, LLC	 	Delaware limited liability company
	91.   Agree St. Joseph MO, LLC	 	Missouri limited liability company
	92.   Agree Statham GA, LLC	 	Georgia limited liability company
	93.   Agree Sun Valley NV LLC	 	Nevada limited liability company
	94.   Agree Sunnyvale CA, LLC	 	Delaware limited liability company
	95.   Agree Terre Haute IN LLC	 	Delaware limited liability company
	96.   Agree Topeka KS, LLC	 	Delaware limited liability company
	97.   Agree Tri-State Lease, LLC	 	Delaware limited liability company
	98.   Agree Upland CA, LLC	 	Delaware limited liability company
	99.   Agree Venice, LLC	 	Florida limited liability company
	100. Agree Vero Beach FL, LLC	 	Delaware limited liability company
	101. Agree Whittier CA, LLC	 	Delaware limited liability company
	102. Agree Wichita Falls TX LLC	 	Texas limited liability company
	103. Indianapolis Store No. 16, LLC	 	Delaware limited liability company
	104. Lawrence Store No. 203, LLC	 	Delaware limited liability company
	105. Lunacorp LLC	 	Delaware limited liability company
	106. Mt Pleasant Outlot I, LLC	 	Michigan limited liability company
	107. Mt Pleasant Shopping Center LLC	 	Michigan limited liability company


 




     


     


    

 


SCHEDULE 6.05


 


MATERIAL INDEBTEDNESS


 


	Mortgages and Notes Payable	 	Amount Outstanding at March 31, 2016	 
	 	 	 	 
	Revolving Credit Facility	 		 	$	60,000,000	 
	 	 	 	 	 	 	 
	PNC Secured Term Loan	 	 	 	$	25,000,000	 
	 	 	 	 	 	 	 
	Secured by eleven locations:	 	Walgreens - Atlantic Beach, FL	 	 	 	 
	 	 	Rite Aid - Mt. Pleasant, MI	 	 	 	 
	 	 	PNC - Antioch, IL	 	 	 	 
	 	 	Natural Grocers - Wichita, KS	 	 	 	 
	 	 	CVS - Mansfield, CT	 	 	 	 
	 	 	CVS - Johnstown, OH	 	 	 	 
	 	 	Big O Tires - Chandler, AZ	 	 	 	 
	 	 	Aldi - New Lenox, IL	 	 	 	 
	 	 	Jared - Baton Rouge, LA	 	 	 	 
	 	 	Kohls - Salt Lake City, UT	 	 	 	 
	 	 	Walgreens - St. Augustine Shores, FL	 	 	 	 
	 	 	 	 	 	 	 
	MS CMBS	 	 	 	$	23,640,000	 
	 	 	 	 	 	 	 
	Secured by twelve locations:	 	Advance Auto - Marietta, GA	 	 	 	 
	 	 	Advance Auto - Walker, MI	 	 	 	 
	 	 	ATT - Wilmington, NC	 	 	 	 
	 	 	Chase - Southfield, MI	 	 	 	 
	 	 	Chase - Spring Grove, IL	 	 	 	 
	 	 	Chase - Macomb Township, MI	 	 	 	 
	 	 	CVS - Roseville, CA	 	 	 	 
	 	 	Kohls - Tallahassee, FL	 	 	 	 
	 	 	NTB - Dallas, TX	 	 	 	 
	 	 	NTB - Madison, AL	 	 	 	 
	 	 	Wawa - Baltimore, MD	 	 	 	 
	 	 	Walgreens - Fort Walton Beach, FL	 	 	 	 
	 	 	 	 	 	 	 
	BOA/RJ Secured Term Loan	 	 	 	$	20,571,698	 
	 	 	 	 	 	 	 
	Secured by seven locations:	 	Rite Aid - Roseville, MI	 	 	 	 
	 	 	Rite Aid - Summit Township, MI	 	 	 	 
	 	 	Walgreens - Delta Township, MI	 	 	 	 
	 	 	Walgreens - Grand Rapids, MI	 	 	 	 
	 	 	Walgreens, Qdoba and Spanga’s - Livonia, MI	 	 	 	 
	 	 	Walgreens and Chase Bank - Macomb, MI	 	 	 	 
	 	 	Walgreens - Shelby Township, MI	 	 	 	 



 




     


     


    

 


	Nationwide WAG 6	 		 	$	6,202,425	 
	 	 	 	 	 	 	 
	Secured by six locations:	 	Walgreens - Rochester, MI	 	 	 	 
	 	 	Walgreens - Ypsilanti, MI	 	 	 	 
	 	 	Walgreens - Petoskey, MI	 	 	 	 
	 	 	Walgreens - Flint, MI	 	 	 	 
	 	 	Walgreens - Flint, MI	 	 	 	 
	 	 	Walgreens - New Baltimore, MI	 	 	 	 
	 	 	 	 	 	 	 
	Nationwide WAG 6	 	 	 	$	3,109,049	 
	 	 	 	 	 	 	 
	Secured by one location:	 	CVS - Leawood, KS	 	 	 	 
	 	 	 	 	 	 	 
	Littleton 24 HR Fitness	 	 	 	$	5,409,882	 
	 	 	 	 	 	 	 
	Secured by one location:	 	24 Hour Fitness - Littleton, CO	 	 	 	 
	 	 	 	 	 	 	 
	Unsecured Term Loan due 2020	 	 	 	$	35,000,000	 
	 	 	 	 	 	 	 
	Unsecured Term Loan due 2021	 	 	 	$	65,000,000	 
	 	 	 	 	 	 	 
	Senior Notes due 2025	 	 	 	$	50,000,000	 
	 	 	 	 	 	 	 
	Senior Notes due 2027	 	 	 	$	50,000,000	 



 


In addition to the above
liabilities, the Company had the following outstanding liabilities as of March 31, 2016:


 


	Dividends and Distributions Payable	 	$	9,812,376	 
	 	 	 	 	 
	Deferred Revenue	 	$	424,798	 
	 	 	 	 	 
	Accrued Interest Payable	 	$	1,977,551	 
	 	 	 	 	 
	Accounts Payable and Accrued Expenses	 	$	6,280,215	 
	 	 	 	 	 
	Interest Rate Swap	 	$	6,138,222	 
	 	 	 	 	 
	Deferred Income Taxes	 	$	705,000	 
	 	 	 	 	 
	Tenant Deposits	 	$	38,608	 



 




     


     


    

 


SCHEDULE 6.06


 


LITIGATION


 


None.


 




     


     


    

 


SCHEDULE 6.08


 


EXISTING LIENS


 





	Mortgages and Notes Payable	 	Amount Outstanding at March 31, 2016
	 	 	 	 	 	 
	Revolving Credit Facility	 	 	 	$	60,000,000	 
	 	 	 	 	 	 	 
	PNC Secured Term Loan	 	$25,000,000	 	 	 	 
	 	 	 	 	 	 	 
	Secured by eleven locations:	 	Walgreens - Atlantic Beach, FL	 	 	 	 
	 	 	Rite Aid - Mt. Pleasant, MI	 	 	 	 
	 	 	PNC - Antioch, IL	 	 	 	 
	 	 	Natural Grocers - Wichita, KS	 	 	 	 
	 	 	CVS - Mansfield, CT	 	 	 	 
	 	 	CVS - Johnstown, OH	 	 	 	 
	 	 	Big O Tires - Chandler, AZ	 	 	 	 
	 	 	Aldi - New Lenox, IL	 	 	 	 
	 	 	Jared - Baton Rouge, LA	 	 	 	 
	 	 	Kohls - Salt Lake City, UT	 	 	 	 
	 	 	Walgreens - St. Augustine Shores, FL	 	 	 	 
	 	 	 	 	 	 	 
	MS CMBS	 	 	 	$	23,640,000	 
	 	 	 	 	 	 	 
	Secured by twelve locations:	 	Advance Auto - Marietta, GA	 	 	 	 
	 	 	Advance Auto - Walker, MI	 	 	 	 
	 	 	ATT - Wilmington, NC	 	 	 	 
	 	 	Chase - Southfield, MI	 	 	 	 
	 	 	Chase - Spring Grove, IL	 	 	 	 
	 	 	Chase - Macomb Township, MI	 	 	 	 
	 	 	CVS - Roseville, CA	 	 	 	 
	 	 	Kohls - Tallahassee, FL	 	 	 	 
	 	 	NTB - Dallas, TX	 	 	 	 
	 	 	NTB - Madison, AL	 	 	 	 
	 	 	Wawa - Baltimore, MD	 	 	 	 
	 	 	Walgreens - Fort Walton Beach, FL	 	 	 	 
	 	 	 	 	 	 	 
	BOA/RJ Secured Term Loan	 	 	 	$	20,571,698	 
	 	 	 	 	 	 	 
	Secured by seven locations:	 	Rite Aid - Roseville, MI	 	 	 	 
	 	 	Rite Aid - Summit Township, MI	 	 	 	 
	 	 	Walgreens - Delta Township, MI	 	 	 	 
	 	 	Walgreens - Grand Rapids, MI	 	 	 	 
	 	 	Walgreens, Qdoba and Spanga’s - Livonia, MI	 	 	 	 
	 	 	Walgreens and Chase Bank - Macomb, MI	 	 	 	 
	 	 	Walgreens - Shelby Township, MI	 	 	 	 


  









     


     


    

 


	Nationwide WAG 6	 		 	$	6,202,425	 
	 	 	 	 	 	 	 
	Secured by six locations:	 	Walgreens - Rochester, MI	 	 	 	 
	 	 	Walgreens - Ypsilanti, MI	 	 	 	 
	 	 	Walgreens - Petoskey, MI	 	 	 	 
	 	 	Walgreens - Flint, MI	 	 	 	 
	 	 	Walgreens - Flint, MI	 	 	 	 
	 	 	Walgreens - New Baltimore, MI	 	 	 	 
	 	 	 	 	 	 	 
	Nationwide WAG 6	 	 	 	$	3,109,049	 
	 	 	 	 	 	 	 
	Secured by one location:	 	CVS - Leawood, KS	 	 	 	 
	 	 	 	 	 	 	 
	Littleton 24 HR Fitness	 	 	 	$	5,409,882	 
	 	 	 	 	 	 	 
	Secured by one location:	 	24 Hour Fitness - Littleton, CO	 	 	 	 
	 	 	 	 	 	 	 
	Unsecured Term Loan due 2020	 	 	 	$	35,000,000	 
	 	 	 	 	 	 	 
	Unsecured Term Loan due 2021	 	 	 	$	65,000,000	 
	 	 	 	 	 	 	 
	Senior Notes due 2025	 	 	 	$	50,000,000	 
	 	 	 	 	 	 	 
	Senior Notes due 2027	 	 	 	$	50,000,000	 



 




     


     


    

 


SCHEDULE 6.09


 


ENVIRONMENTAL MATTERS


 


None.


 




     


     


    

 


SCHEDULE 6.13


 


SUBSIDIARIES; OTHER EQUITY
INVESTMENTS; EQUITY INTERESTS


 


	Part (a) Outstanding Equity Interests
	 
	Entity Name	 	Ownership %
	Agree Realty Corporation	 	Public Company
	Agree Limited Partnership	 	98.3% by Agree Realty Corporation 

1.7% by Limited Partner, Richard Agree


 


Entities owned 100%
by Agree Limited Partnership:


± - Subsidiary
Guarantor


2355 Jackson
Avenue, LLC ACCP Maryland, LLC *


Agree –
Columbia Crossing Project, LLC *


Agree –
Milestone Center Project, LLC *


Agree 103-Middleburg
Jacksonville, LLC *


Agree 117
Mission, LLC


± Agree
17-92, LLC


± Agree
Alcoa TN LLC


± Agree
Allentown PA LLC


±Agree
Altoona PA, LLC


± Agree
Anderson SC LLC


± Agree
Ann Arbor Jackson, LLC


± Agree
Ann Arbor State Street, LLC


Agree Antioch,
LLC


± Agree
Apopka FL, LLC


± Agree
Arlington TX LLC


± Agree
Atchison, LLC


Agree Atlantic
Beach, LLC


±Agree
Baton Rouge LA LLC


Agree Beecher
LLC


±Agree
Belton MO LLC


±Agree
Belvidere IL LLC


Agree Berkeley
Solano, LLC


± Agree
Berwyn IL LLC


Agree Boynton,
LLC


± Agree
Brenham TX, LLC


± Agree
Brighton, LLC


Agree Bristol
& Fenton Project, LLC


± Agree
Brooklyn OH LLC


± Agree
Buffalo Center IA, LLC


Agree Burlington
LLC


± Agree
Cannon Station LLC (Ft Oglethorpe)


± Agree
Cedar Park TX, LLC


± Agree
Center Point Birmingham AL LLC


Agree Chandler,
LLC


Agree Charlotte
County, LLC


± Agree
Charlotte Poplar, LLC


± Agree Chicago
Kedzie, LLC


 




     


     


    

 


± Agree Cochran
GA, LLC


± Agree Columbia
SC LLC


± Agree Concord,
LLC


Agree Construction Management,
LLC *


Agree Corunna LLC


Agree Dallas Forest Drive,
LLC


± Agree Daniel
Morgan Ave Spartanburg LLC


± Agree Davenport
IA, LLC


± Agree Des Moines
IA, LLC


Agree Development, LLC


Agree East Palatka, LLC


Agree Elkhart, LLC


± Agree Evergreen
CO, LLC


± Agree Facility
No. 1, LLC


± Agree Forest
MS LLC


± Agree Forest
VA LLC


± Agree Fort Mill
SC, LLC


Agree Fort Walton Beach,
LLC


± Agree Fort Worth
TX, LLC


± Agree Fuquay
Varina LLC


± Agree Grand
Chute WI LLC


± Agree Grand
Forks LLC


± Agree Harlingen
LLC


± Agree Hazard
KY, LLC


Agree Holdings I, LLC


± Agree Indianapolis
Glendale LLC


± Agree Indianapolis
IN II, LLC


Agree Indianapolis, LLC


± Agree Jackson
MS, LLC


± Agree Jacksonville
NC, LLC


Agree Johnstown, LLC


± Agree Joplin
MO LLC


± Agree Junction
City KS LLC


± Agree Kirkland
WA, LLC


± Agree Lake in
the Hills, LLC


± Agree Lake Zurich
IL, LLC


Agree Leawood, LLC


± Agree Lebanon
VA LLC


± Agree Lejune
Springfield IL, LLC


± Agree Ligonier
PA LLC


± Agree Littleton
CO LLC


± Agree Lowell,
LLC


± Agree Lyons
GA LLC


Agree M-59 LLC


Agree Madison AL LLC


± Agree Madisonville
TX LLC


± Agree Magnolia
Knoxville TN LLC


Agree Mall of Louisiana,
LLC


± Agree Manchester,
LLC


 




     


     


    

 


Agree Mansfield, LLC


Agree Marietta, LLC


± Agree Marshall
MI Outlot, LLC


± Agree McKinney
TX LLC


± Agree Memphis
Getwell, LLC


± Agree Minneapolis
Clinton Ave, LLC


± Agree Montgomery
AL LLC


Agree Montgomeryville
PA LLC


± Agree Morrow
GA, LLC


± Agree Mt. Dora
FL, LLC


Agree New Lenox 2 LLC


Agree New Lenox, LLC


± Agree North
Las Vegas, LLC


± Agree Novi MI
LLC


± Agree Orange
& McCoy, LLC


± Agree Palafox
Pensacola FL, LLC


± Agree Pensacola
LLC


± Agree Pensacola
Nine Mile LLC


± Agree Pinellas
Park, LLC


± Agree Plainfield,
LLC


± Agree Poinciana
LLC


± Agree Port Orange
FL, LLC


± Agree Port St.
John LLC


± Agree Portland
ME, LLC


± Agree Portland
OR LLC


± Agree Rancho
Cordova I LLC


Agree Rancho Cordova
II LLC


± Agree Rapid
City SD, LLC


Agree Realty Services,
LLC


Agree Realty South-East,
LLC *


± Agree Richmond
VA LLC


± Agree Rochester
NY LLC


Agree Roseville CA, LLC


± Agree Salem
OR, LLC


± Agree Sarasota
FL, LLC


Agree Shelby, LLC


Agree Silver Springs
Shores, LLC


Agree Southfield &
Webster, LLC


± Agree Southfield
LLC


± Agree Spartanburg
SC LLC


Agree Spring Grove, LLC


± Agree Springfield
IL LLC


Agree Springfield OH,
LLC


± Agree St Petersburg
LLC


± Agree St. Augustine
Shores, LLC


± Agree St. Joseph
MO, LLC


± Agree Statham
GA, LLC


± Agree Sun Valley
NV LLC


± Agree Sunnyvale
CA, LLC


 




     


     


    

 


Agree Tallahassee, LLC


± Agree Terre Haute
IN LLC


± Agree Topeka KS,
LLC


± Agree Tri-State
Lease, LLC


± Agree Upland CA,
LLC


± Agree Venice, LLC


± Agree Vero Beach
FL, LLC


Agree Walker, LLC


Agree Wawa Baltimore, LLC


Agree Wheaton IL, LLC


± Agree Whittier
CA, LLC


± Agree Wichita Falls
TX LLC


Agree Wichita, LLC


Agree Wilmington, LLC


AMCP Germantown, LLC *


Ann Arbor Store No 1, LLC
*


Boynton Beach Store No.
150, LLC


± Indianapolis Store
No. 16, LLC


± Lawrence Store
No. 203, L.L.C.*


± Lunacorp LLC


± Mt Pleasant Shopping
Center LLC


± Mt. Pleasant Outlot
I, LLC


Oklahoma City Store No.
151, LLC *


Omaha Store No. 166, LLC
*


Phoenix Drive, LLC *


 


* Denotes Immaterial Subsidiaries


± Denotes Subsidiary
Guarantors


 


Part (b) Additional Direct
or Indirect Equity Interests


 


None


 


Part (c) Outstanding
Equity Interests of Property Owners


 


100% by Agree Limited
Partnership:


 


Mt Pleasant Shopping Center
LLC


Agree Plainfield, LLC


Agree Charlotte County,
LLC


Agree Silver Springs Shores,
LLC


Agree St. Augustine Shores,
LLC


Agree Brighton, LLC


Agree Lowell, LLC


Agree Atlantic Beach, LLC


Agree Ann Arbor Jackson,
LLC


Agree Atchison, LLC


Agree Lake in the Hills,
LLC


Agree Concord, LLC


 




     


     


    

 


Agree Portland OR LLC


Agree Rancho Cordova I LLC


Agree Rancho Cordova II
LLC


Agree Southfield LLC


Agree Poinciana LLC


Agree Venice, LLC Agree
17-92, LLC


Agree Pinellas Park, LLC


Agree Cochran GA, LLC


Agree Tri-State Lease, LLC


Agree Fort Mill SC, LLC


Agree Spartanburg SC LLC


Agree Springfield IL LLC


Agree Jacksonville NC, LLC


Agree Morrow GA, LLC


Agree Charlotte Poplar,
LLC


Agree East Palatka, LLC


Agree Lyons GA LLC


Agree Fuquay Varina LLC


Agree Minneapolis Clinton
Ave, LLC


Agree Lebanon VA LLC


Agree Harlingen LLC


Agree Wichita Falls TX LLC


Agree Pensacola LLC


Agree Pensacola Nine Mile
LLC


Agree Statham GA, LLC


Agree North Las Vegas, LLC


Agree St. Joseph MO, LLC


Agree Memphis Getwell, LLC


Agree Chicago Kedzie, LLC


Agree Sun Valley NV LLC


Agree Rapid City SD, LLC


Agree Manchester, LLC


Agree Grand Forks LLC


Agree Madisonville TX LLC


Agree Brooklyn OH LLC


Agree Baton Rouge LA LLC


Agree St Petersburg LLC


Agree Berkeley Solano, LLC


Agree Rochester NY LLC


Agree New Lenox 2 LLC


Agree Allentown PA LLC


Agree Joplin MO LLC


Agree Berwyn IL LLC


Agree Anderson SC LLC


Agree Cannon Station LLC
(Ft Oglethorpe)


Agree Forest VA LLC


Agree Indianapolis Glendale
LLC


Agree Burlington LLC


Agree McKinney TX LLC


 




     


     


    

 


Agree Littleton CO LLC


Agree Ligonier PA LLC


Agree Columbia SC LLC


Agree Richmond VA LLC


Lunacorp LLC


Agree Center Point Birmingham
AL LLC


Agree Montgomery AL LLC


Agree Daniel Morgan Ave
Spartanburg LLC


Agree Magnolia Knoxville
TN LLC


Agree Alcoa TN LLC


Agree Belton MO LLC


Agree Terre Haute IN LLC


Agree Junction City KS LLC


Agree Novi MI LLC


Agree Palafox Pensacola
FL, LLC


Agree Arlington TX LLC


Agree Grand Chute WI LLC


Agree Belvidere IL LLC


Agree Lejune Springfield
IL, LLC


Agree Fort Worth TX, LLC


Agree Topeka KS, LLC


Agree Brenham TX, LLC


Agree Salem OR, LLC


Agree Davenport IA, LLC


Agree Buffalo Center IA,
LLC


Agree Springfield OH, LLC


Agree Altoona PA, LLC


Agree Orange & McCoy,
LLC


Agree Hazard KY, LLC


Agree Marshall MI Outlot,
LLC


Agree Indianapolis IN II,
LLC


Mt. Pleasant Outlot I, LLC


Agree Wheaton IL, LLC


Agree Jackson MS, LLC


Agree Des Moines IA, LLC


Agree Apopka FL, LLC


Agree Cedar Park TX, LLC


Agree Evergreen CO, LLC


Agree Kirkland WA, LLC


Agree Mt. Dora FL, LLC


Agree Port Orange FL, LLC


Agree Sarasota FL, LLC


Agree Sunnyvale CA, LLC


Agree Upland CA, LLC


Agree Vero Beach FL, LLC


Agree Whittier CA, LLC


 






     


     


    

 


SCHEDULE 6.17


 


LOAN PARTIES’ TAXPAYER
IDENTIFICATION NUMBERS


 


	Agree Limited Partnership	[**]
	Agree Realty Corporation	[**]
	Agree 17-92, LLC	[**]
	Agree Alcoa TN LLC	[**]
	Agree Allentown PA LLC	[**]
	Agree Altoona PA, LLC	[**]
	Agree Anderson SC LLC	[**]
	Agree Ann Arbor Jackson, LLC	[**]
	Agree Apopka FL, LLC	[**]
	Agree Arlington TX LLC	[**]
	Agree Atchison, LLC	[**]
	Agree Atlantic Beach, LLC	[**]
	Agree Baton Rouge LA LLC	[**]
	Agree Belton MO LLC	[**]
	Agree Belvidere IL LLC	[**]
	Agree Berkeley Solano, LLC	[**]
	Agree Berwyn IL LLC	[**]
	Agree Brenham TX, LLC	[**]
	Agree Brighton, LLC	[**]
	Agree Brooklyn OH LLC	[**]
	Agree Buffalo Center IA, LLC	[**]
	Agree Burlington LLC	[**]
	Agree Cannon Station LLC  (Ft Oglethorpe)	[**]
	Agree Cedar Park TX, LLC	[**]
	Agree Center Point Birmingham AL LLC	[**]
	Agree Charlotte County, LLC	[**]
	Agree Charlotte Poplar, LLC	[**]
	Agree Chicago Kedzie, LLC	[**]
	Agree Cochran GA, LLC	[**]
	Agree Columbia SC LLC	[**]
	Agree Concord, LLC	[**]
	Agree Daniel Morgan Ave Spartanburg LLC	[**]
	Agree Davenport IA, LLC	[**]
	Agree Des Moines IA, LLC	[**]
	Agree East Palatka, LLC	[**]
	Agree Evergreen CO, LLC	[**]
	Agree Facility No. 1, LLC	[**]
	Agree Forest VA LLC	[**]
	Agree Fort Mill SC, LLC	[**]
	Agree Fort Worth TX, LLC	[**]
	Agree Fuquay Varina LLC	[**]
	Agree Grand Chute WI LLC	[**]
	Agree Grand Forks LLC	[**]
	Agree Harlingen LLC	[**]
	Agree Hazard KY, LLC	[**]
	Agree Indianapolis Glendale LLC	[**]


 


 




     


     


    

 





	Agree Indianapolis IN II, LLC	[**]
	Agree Jackson MS, LLC	[**]
	Agree Jacksonville NC, LLC	[**]
	Agree Joplin MO LLC	[**]
	Agree Junction City KS LLC	[**]
	Agree Kirkland WA, LLC	[**]
	Agree Lake in the Hills, LLC	[**]
	Agree Lake Zurich IL, LLC	[**]
	Agree Lebanon VA LLC	[**]
	Agree Lejune Springfield IL, LLC	[**]
	Agree Ligonier PA LLC	[**]
	Agree Lowell, LLC	[**]
	Agree Lyons GA LLC	[**]
	Agree Madisonville TX LLC	[**]
	Agree Magnolia Knoxville TN LLC	[**]
	Agree Manchester, LLC	[**]
	Agree Marshall MI Outlot, LLC	[**]
	Agree McKinney TX LLC	[**]
	Agree Memphis Getwell, LLC	[**]
	Agree Minneapolis Clinton Ave, LLC	[**]
	Agree Montgomery AL LLC	[**]
	Agree Morrow GA, LLC	[**]
	Agree Mt. Dora FL, LLC	[**]
	Agree New Lenox 2 LLC	[**]
	Agree North Las Vegas, LLC	[**]
	Agree Novi MI LLC	[**]
	Agree Orange & McCoy, LLC	[**]
	Agree Palafox Pensacola FL, LLC	[**]
	Agree Pensacola LLC	[**]
	Agree Pensacola Nine Mile LLC	[**]
	Agree Pinellas Park, LLC	[**]
	Agree Plainfield, LLC	[**]
	Agree Poinciana LLC	[**]
	Agree Port Orange FL, LLC	[**]
	Agree Portland OR LLC	[**]
	Agree Rancho Cordova I LLC	[**]
	Agree Rancho Cordova II LLC	[**]
	Agree Rapid City SD, LLC	[**]
	Agree Realty Corporation	[**]
	Agree Richmond VA LLC	[**]
	Agree Rochester NY LLC	[**]
	Agree Salem OR, LLC	[**]
	Agree Sarasota FL, LLC	[**]
	Agree Silver Springs Shores, LLC	[**]
	Agree Southfield LLC	[**]
	Agree Spartanburg SC LLC	[**]
	Agree Springfield  IL LLC	[**]
	Agree Springfield OH, LLC	[**]
	Agree St Petersburg LLC	[**]
	Agree St. Augustine Shores, LLC	[**]
	Agree St. Joseph MO, LLC	[**]
	Agree Statham GA, LLC	[**]







 




     


     


    

  


	Agree Sun Valley NV LLC	[**]
	Agree Sunnyvale CA, LLC	[**]
	Agree Terre Haute IN LLC	[**]
	Agree Topeka KS, LLC	[**]
	Agree Tri-State Lease, LLC	[**]
	Agree Upland CA, LLC	[**]
	Agree Venice, LLC	[**]
	Agree Vero Beach FL, LLC	[**]
	Agree Wheaton IL, LLC	[**]
	Agree Whittier CA, LLC	[**]
	Agree Wichita Falls TX LLC	[**]
	Indianapolis Store No. 16, LLC	[**]
	Lunacorp LLC	[**]
	Mt Pleasant Shopping Center LLC	[**]
	Mt. Pleasant Outlot I, LLC	[**]
	 	 
	[Agree Littleton
CO, LLC removed]	 


  




     


     


    

 


SCHEDULE 6.19


 


INITIAL UNENCUMBERED POOL
PROPERTIES


 


	1	24 Hour Fitness	Fort Worth	TX
	2	Aaron's Rents	Elk City	OK
	3	Aaron's Rents	St. George	UT
	4	Aaron's Rents	Bullhead City	AZ
	5	Aaron's Rents	Page	AZ
	6	Academy Sports	McKinney	TX
	7	Academy Sports	Belton	MO
	8	Academy Sports/Jo Ann Fabrics/Orscheln Farm & Home	Topeka	KS
	9	Advance Auto Parts	Lebanon	VA
	10	Advance Auto Parts	Freeport	FL
	11	Advance Auto Parts	Lorain	OH
	12	Advance Auto Parts	Tallassee	AL
	13	Advance Auto Parts	Grindstone	PA
	14	Advance Auto Parts	Jackson	TN
	15	Advance Auto Parts	Lima	OH
	16	Advance Auto Parts	Martinsburg	WV
	17	American Mattress	Wheaton	IL
	18	Applebee's	Pensacola	FL
	19	Applebee's	Pensacola	FL
	20	Applebee's	Harlingen	TX
	21	Applebee's	Wichita Falls	TX
	22	Aspen Dental	Branson	MO
	23	AT&T / Mattress Firm	Peru	IL
	24	AutoZone	Chicago	IL
	25	AutoZone	Springfield	IL
	26	AutoZone	Minneapolis	MN
	27	AutoZone	N. Las Vegas	NV
	28	AutoZone	Sun Valley	NV
	29	AutoZone	Montgomery	AL
	30	AutoZone	Birmingham (32nd Ave)	AL
	31	AutoZone	Birmingham (Huffman)	AL
	32	AutoZone	Birmingham (Center Point Pkwy)	AL
	33	AutoZone	Birmingham (3rd Ave)	AL
	34	AutoZone	Spartanburg (Daniel Morgan)	SC
	35	AutoZone	Spartanburg (Asheville)	SC
	36	AutoZone	Easley	SC
	37	AutoZone	Baton Rouge	LA
	38	AutoZone	Red Bank	TN
	39	AutoZone	Alcoa	TN
	40	AutoZone	Knoxville	TN
	41	AutoZone	Jackson	MS
	42	AutoZone	Pensacola	FL
	42	Barnes & Noble/Bed Bath & Beyond/Dress Barn/Old Navy	Grand Chute	WI
	44	Big Lots	Fuquay-Varina	NC
	45	Big Lots	Lorain	OH
	46	Big Lots / Office Depot	Cedar Park	TX
	47	Big R	Evergreen	CO
	48	BJ's Wholesale	Allentown	PA
	49	Buffalo Wild Wings	St. Augustine	FL
	50	Buffalo Wild Wings	Indianapolis	IN


 


 




     


     


    

  


	51	Burger King	Fargo	ND
	52	Burger King	Jamestown	ND
	53	Burger King	Moorehead	MN
	54	Burger King	Grand Forks	ND
	55	Burger King	Fargo	ND
	56	Burger King	East Grand Forks	MN
	57	Burger King	Grand Forks	ND
	58	Burger King	Fergus Falls	MN
	59	Burger King	Grand Forks	ND
	60	Burger King	Fergus Falls	MN
	61	Burger King	Park Rapids	MN
	62	Burlington Coat Factory	Tuscon	AZ
	63	Capital Plaza	Frankfort	KY
	64	Carmike	Altoona	PA
	65	Cash & Carry - Salem	Burlington	WA
	66	Central Michigan Commons	Mt. Pleasant	MI
	67	Chase Bank	Venice	FL
	68	Christian Brothers Automotive	Bentonville	AR
	69	CVS	Lake in the Hills	IL
	70	CVS	Atchison	KS
	71	Dave & Busters	Austin	TX
	72	David's Bridal	Toledo	OH
	73	DaVita	New Tazewell	TN
	74	DaVita	Morristown	TN
	75	DaVita	Maryville	TN
	76	DaVita	Knoxville	TN
	77	DaVita	Clinton	TN
	78	DaVita	Sweetwater	TN
	79	Dick's Sporting Goods	St. Joseph	MO
	80	Dick's Sporting Goods/Off Broadway Shoes	Boynton Beach	FL
	81	Dollar General	Cochran	GA
	82	Dollar General	Lyons	GA
	83	Dollar General	Statham	GA
	84	Dollar General	Irvington	NJ
	85	Dollar General	Red Bay	AL
	86	Dollar General	Liberty	SC
	87	Dollar General	Franklin	OH
	88	Dollar General	Blacksburg	SC
	89	Dollar General	Easley	SC
	90	Dollar General	Fountain Inn	SC
	91	Dollar General	Walterboro	SC
	92	Dollar General	Buffalo Center	IA
	93	Dollar General	Sheffield	IA
	94	Dollar General	Lowry City	MO
	95	Dollar Tree	Spartanburg	SC
	96	Dollar Tree	Memphis	TN
	97	Dollar Tree	Columbia	SC
	98	Dollar Tree	Harrisburg	PA
	99	Dollar Tree	Enfield	NH
	100	Dollar Tree	Westfield	PA
	101	DSW	Flint	MI
	102	Fajita Factory	Lansing	MI
	103	Family Dollar	Bedford Heights	OH
	104	Family Dollar	Newburgh Heights	OH
	105	Family Dollar	Warrenville Heights	OH


 


 




     


     


    

  


	106	Family Dollar	Harlingen	TX
	107	Family Fare Quick Stop	Marshall	MI
	108	Famous Dave's	Omaha	NE
	109	Fidelity Investments	Novi	MI
	110	Floor & Décor	Sarasota	FL
	111	Fred's, Inc.	DeQunicy	LA
	112	Fred's, Inc.	Eutaw	AL
	113	Fred's, Inc.	Glenwood	GA
	114	Fred's, Inc.	Sulligent	AL
	115	Fred's, Inc.	Tompkinsville	KY
	116	Fresenius Medical Care	Junction City	KS
	117	Fresenius Medical Care	Terre Haute	IN
	118	Giant Eagle	Ligonier	PA
	119	Giant Gas	Limerick	PA
	120	Golden Corral	Rockford	IL
	121	Golden Corral	Springfield	IL
	122	Goodwill	Morris	IL
	123	Goodwill	Ardmore	OK
	124	Goodyear Tire & Rubber Co	Berwyn	IL
	125	Goodyear Tire & Rubber Co	Fort Mill	SC
	126	Goodyear Tire & Rubber Co	Forest	VA
	127	Harbor Freight	Dillion	SC
	128	Harris Teeter	Charlotte	NC
	129	H-E-B Grocery	Brenham	TX
	130	Hobby Lobby	Grand Forks	ND
	131	Hobby Lobby	Springfield	OH
	132	Hobby Lobby	Apopka	FL
	133	Hobby Lobby	Mt. Dora	FL
	134	HomeGoods	Monroeville	PA
	135	IHOP	Elyria	OH
	136	Jiffy Lube	Jacksonville	FL
	137	Jiffy Lube	Jacksonville	FL
	138	Jiffy Lube	Jacksonville Beach	FL
	139	Jiffy Lube	Orange Park	FL
	140	KeyBank	Elyria	OH
	141	KFC / Long John Silvers	Belvidere	IL
	142	Kmart	Grayling	MI
	143	Kmart	Oscoda	MI
	144	LA Fitness	Lake Zurich	IL
	145	LA Fitness	Rochester	NY
	146	Lowe's	Concord	NC
	147	Lowe's	Portland	OR
	148	Lowe's	Sunnyvale	CA
	149	Mattress Firm	Morrow	GA
	150	Mattress Firm	Baton Rouge	LA
	151	Mattress Firm	Joplin	MO
	152	Mattress Firm	Branson	MO
	153	Mattress Firm / Aspen Dental	Cambridge	MN
	154	Mattress Firm / ULTA	Columbus	OH
	155	Maurices	New Richmond	WI
	156	Maurices	Le Mars	IA
	157	Maurice's	Hutchinson	MN
	158	Maurice's	Ashland	WI
	159	Maurice's	Baraboo	WI
	160	McDonalds	East Palatka	FL


  




     


     


    

  


	161	McDonalds	Southfield	MI
	162	Meijer	Plainfield	IN
	163	Michaels	Wausau	WI
	164	Michael's / Bed Bath & Beyond	Midland	TX
	165	Michaels/Dollar Tree/Ald /Petsense	Fort Oglethorpe	GA
	166	Michaels/PetSmart	Anderson	SC
	167	Mister Car Wash	Aurora	CO
	168	Mister Car Wash	Brandon	MS
	169	Mister Car Wash	Clinton	MS
	170	Mister Car Wash	Jackson	MS
	171	Mister Car Wash	Flowood	MS
	172	Mister Car Wash	Merdian	MS
	173	Mister Car Wash	Ridgeland	MS
	174	Mister Car Wash	Des Moines	IA
	175	NTB	Reynoldsburg	OH
	176	NTB	Columbus	OH
	177	O'Reilly/Dollar Tree	Lincoln Park	MI
	178	Petco/TJX/Ross Dress for Less	New Lenox	IL
	179	PetSmart	St. Joseph	MO
	180	PetSmart	Rapid City	SD
	181	Pier 1	Fort Wayne	IN
	182	Porter Paints	Dalton	GA
	183	ProBuild	Tappahannock	VA
	184	Rite Aid	Canton Twp	MI
	185	Rite Aid	N Cape May	NJ
	186	Rite Aid	Albion	NY
	187	Rite Aid	Webster	NY
	188	Ross / Walgreens	Port Orange	FL
	189	Sam's Club	Roseville	MI
	190	Sherwin Williams	Tulsa	OK
	191	Sherwin Williams	Foley	AL
	192	Sherwin Williams	Pace	FL
	193	Sherwin Williams	Pensacola	FL
	194	Sherwin Williams / Office Max	Oak Creek	WI
	195	Shopko	Mauston	WI
	196	Shopko	Stanley	SD
	197	Simply Amish	Indianapolis	IN
	198	Sleepy's	Bloomsburg	PA
	199	Smart & Final	Salem	OR
	200	Smart & Final	Whittier	CA
	201	Smart & Final	Upland	CA
	202	Sonic	Colonial Heights	VA
	203	Sonic	Chester	VA
	204	Sonic	Midlothian	VA
	205	Sonic	Ashland	VA
	206	Sonic	Mechanicsville	VA
	207	Sonic	Glen Allen	VA
	208	Sonic	Great Falls	MT
	209	Staples / PetSmart / Party City	Davenport	IA
	210	Starbucks	Manchester	CT
	211	Starbucks	Grove City	OH
	212	Starbucks / Old National Bank	Indianapolis	IN
	213	Sunbelt	Lenexa	KS
	214	Sunbelt	Rockwall	TX
	215	Sunbelt Rentals	Cambridge	OH


  




     


     


    

  


	216	Taco Bell	Toledo	OH
	217	Taco Bell	Toledo	OH
	218	Taco Bell	Toledo	OH
	219	Taco Bell	Port Clinton	OH
	220	Taco Bell	Mansfield	OH
	221	Taco Bell	Orrville	OH
	222	Taco Bell	Akron	OH
	223	Taco Bell	Akron	OH
	224	Taco Bell	Hubbard	OH
	225	Taco Bell	Youngstown	OH
	226	Taco Bell	Calcutta	OH
	227	Taco Bell	Clarion	PA
	228	Taco Bell	Mercer	PA
	229	Taco Bell	Princeton	WV
	230	Taco Bell	Beckley	WV
	231	Taco Bell	Marietta	OH
	232	Taco Bell	Bluefield	VA
	233	TGI Fridays	Monroeville	PA
	234	Tractor Supply	Madisonville	TX
	235	Tractor Supply	Carthage	TX
	236	Tractor Supply	DeRidder	LA
	237	Tractor Supply	Granbury	TX
	238	Tractor Supply	Lubbock	TX
	239	Tractor Supply	Odessa	TX
	240	Tractor Supply	Shreveport	LA
	241	U.S. Bank	Kirkland	WA
	242	USAA/US Cellular	Jacksonville	NC
	243	Verizon	Heath	OH
	244	Walgreens	Rancho Cordova	CA
	245	Walgreens	St. Augustine Shores	FL
	246	Walgreens	Barnesville	GA
	247	Walgreens	Ann Arbor	MI
	248	Walgreens	Big Rapids	MI
	249	Walgreens	Brighton	MI
	250	Walgreens	Lowell	MI
	251	Walgreens	Midland	MI
	252	Walgreens	Chesterfield	MI
	253	Walgreens	Grand Blanc	MI
	254	Walgreens	Pontiac	MI
	255	Walgreens	Waterford	MI
	256	Walgreens	Silver Spring Shores	FL
	257	Walgreens	Atlantic Beach	FL
	258	Walmart	Brooklyn	OH
	259	Walmart	Hazard	KY
	260	Walmart	Vero Beach	FL
	261	Wawa	Kissimmee	FL
	262	Wawa	Pinellas	FL
	263	Wawa	Casselberry	FL
	264	Wawa	St. Petersburg	FL
	265	Wawa	Newark	DE
	266	Wawa	Vineland	NJ
	267	Wawa	Clifton Heights	PA
	268	Wendy's	Albany	GA
	269	Wendy's	Blythewood	SC
	270	Wendy's	Columbia	SC


  




     


     


    

  


	271	Wendy's	Arlington	TX
	272	Wendy's	Sweetwater	TX
	273	West Frankfort Plaza	West Frankfort	IL
	274	West Marine	Orange Beach	AL
	275	West Marine	Corpus Christi	TX


 




     


     


    

 


EXHIBIT A


 


FORM OF TERM LOAN NOTICE


 


[DATE]


 


To:


 


	
        Capital One, National Association

        1680 Capital One Drive,
        10th Floor

        McLean, Virginia 22102

        Attention: Jessica Schneickert

        Telephone: 703-720-6526

        Telecopier: 703-730-2032

        E-mail: Jessica.Schnickert@capitalone.com
	 	
        Capital One, National
        Association

        299 Park Ave., 31st
        Floor

        New York, New York 10170

        Attention: Thomas Kornobis,
        Commercial Loan Operations

        Telephone: 646-836-5268

        Telecopier: 888-246-3710

        E-mail: Thomas.Kornobis@capitalone.com



 


Ladies and Gentlemen:


 


Reference is made to that
certain Term Loan Agreement dated as of July 1, 2016 (as amended, restated, extended, supplemented or otherwise modified in writing
from time to time, the “Agreement”; capitalized terms used but not defined herein shall have the meanings given
to them in the Agreement), among Agree Limited Partnership, a Delaware limited partnership (the “Borrower”),
the Lenders from time to time party thereto and Capital One, National Association, as Administrative Agent.


Pursuant to Section 2.02
of the Agreement, the undersigned hereby requests:


		1.	[Select One]



		 ̈	Term Loan Borrowing.



		 ̈	A conversion of Term Loans from __________ Rate Loans
to _________ Rate Loans.



		 ̈	A continuation of Eurodollar Rate Loans.



		2.	On ______________. (a Business Day)



		3.	In the principal amount of $ _____________________.



		4.	Comprised of [Base Rate Loans][Eurodollar Rate Loans].



		5.	With an Interest Period of ___ months [For Eurodollar
Rate Loans only].



 


[remainder of page intentionally
left blank]


 




     


     


    

 


AGREE LIMITED PARTNERSHIP,
a Delaware limited partnership


 


	 	By:	Agree Realty Corporation, a Maryland corporation, its general partner
	 	 	 
	 	By:	 
	 	Name:  	 
	 	Title:  	 


 


[Signature Page to Term
Loan Notice]


 




     


     


    

 


EXHIBIT B


 


FORM OF TERM NOTE


 


FOR VALUE RECEIVED, the
undersigned (the “Borrower”) hereby promises to pay to ______________________ or registered assigns (the “Lender”)
in accordance with the provisions of the Agreement (as hereinafter defined), the principal amount of the Term Loan made by the
Lender to the Borrower under that certain Term Loan Agreement dated as of July 1, 2016 (as amended, restated, extended, supplemented
or otherwise modified in writing from time to time, the “Agreement”; capitalized terms used but not defined
herein shall have the meanings given to them in the Agreement), among the Borrower, the Lenders from time to time party thereto
and Capital One, National Association, as Administrative Agent (the “Administrative Agent”).


 


The Borrower promises to
pay interest on the unpaid principal amount of each Term Loan from the date of such Term Loan until such principal amount is paid
in full, at such interest rates and at such times as provided in the Agreement. All payments of principal and interest shall be
made to the Administrative Agent for the account of the Lender in Dollars in immediately available funds at the Administrative
Agent’s Office. If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid
upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the
per annum rate set forth in the Agreement.


 


This Term Note (this “Note”)
is one of the Term Notes referred to in the Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part
subject to the terms and conditions provided therein. This Note is also entitled to the benefits of the Guaranty. Upon the occurrence
and continuation of one or more of the Events of Default specified in the Agreement, all amounts then remaining unpaid on this
Note shall become, or may be declared to be, immediately due and payable all as provided in the Agreement. Term Loans made by the
Lender shall be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary course of business.
The Lender may also attach schedules to this Note and endorse thereon the date, amount and maturity of its Term Loans and payments
with respect thereto.


 


The Borrower, for itself,
its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and
non-payment of this Note.


 


THIS NOTE SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK OTHER THAN THE CHOICE OF LAWS PROVISIONS THEREOF (OTHER THAN
SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW).


 


[Signature Page Follows]


 




     


     


    

 


AGREE LIMITED PARTNERSHIP,
a Delaware limited partnership


 


	 	By:	Agree Realty Corporation, a Maryland corporation, its general partner
	 	 	 
	 	By:	 
	 	Name:  	 
	 	Title:  	 


 


[Signature Page to Term
Note]


 




     


     


    

 


EXHIBIT C


 


FORM OF COMPLIANCE CERTIFICATE


 


Financial Statement Date:
____________


 


		To:	Capital One, National Association, as Administrative
Agent



 


Ladies and Gentlemen:


 


Reference is made to that
certain Term Loan Agreement dated as of July 1, 2016 (as amended, restated, extended, supplemented or otherwise modified in writing
from time to time, the “Agreement”; capitalized terms used but not defined herein shall have the meanings given
to them in the Agreement), among Agree Limited Partnership, a Delaware limited partnership (the “Borrower”),
the Lenders from time to time party thereto and Capital One, National Association, as Administrative Agent (the “Administrative
Agent”).


 


The undersigned [chief executive
officer][chief financial officer][treasurer][controller] of the Parent hereby certifies as of the date hereof that he/she is the
[chief executive officer][chief financial officer][treasurer][controller] of the Parent, and that, he/she is authorized to execute
and deliver this Compliance Certificate to the Administrative Agent on the behalf of the Parent. In such capacity, and not individually,
the undersigned further certifies that:


 


[Use following paragraph
1 for fiscal year-end financial statements]


1.          The
Parent has delivered the year-end audited financial statements required by Section 7.01(a) of the Agreement for the fiscal year
of the Parent ended as of the above date, together with the report and opinion of an independent certified public accountant required
by such Section.


 


[Use following paragraph
1 for fiscal quarter-end financial statements]


1.          The
Parent has delivered the unaudited financial statements required by Section 7.01(b) of the Agreement for the fiscal quarter of
the Parent ended as of the above date. Such financial statements fairly present the financial condition, results of operations
and cash flows of the Parent and its Subsidiaries in accordance with GAAP as at such date and for such period, subject only to
normal year-end audit adjustments and the absence of footnotes.


 


2.          The
undersigned has reviewed and is familiar with the terms of the Agreement and has made, or has caused to be made under his/her supervision,
a detailed review of the transactions and condition (financial or otherwise) of the Parent and its Subsidiaries during the accounting
period covered by such financial statements.


 


3.          A
review of the activities of the Parent and its Subsidiaries during such fiscal period has been made under the supervision of the
undersigned with a view to determining whether during such fiscal period each Loan Party performed and observed all its Obligations
under the Loan Documents, and


 




     


     


    

 


[Select One]


[to the best of the undersigned’s
knowledge, in such capacity as [chief executive officer][chief financial officer][treasurer][controller] of the Parent, and not
individually, that during such fiscal period, each Loan Party performed and observed each covenant and condition of the Loan Documents
applicable to it, and no Default has occurred and is continuing.]


—or—


[to the best of the undersigned’s
knowledge, in such capacity as [chief executive officer][chief financial officer][treasurer][controller] of the Parent, and not
individually, that during such fiscal period, the following covenants or conditions have not been performed or observed and the
following is a list of each such Default and its nature and status:]


 


4.          The
representations and warranties of the Borrower contained in Article VI of the Agreement, and any representations and warranties
of any Loan Party that are contained in any document furnished at any time under or in connection with the Loan Documents, are
true and correct on and as of the date hereof, except to the extent that such representations and warranties specifically refer
to an earlier date, in which case they are true and correct as of such earlier date, and except that for purposes of this Compliance
Certificate, the representations and warranties contained in subsections (a) and (b) of Section 6.05 of the Agreement shall be
deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 7.01 of the Agreement,
including the statements in connection with which this Compliance Certificate is delivered.


 


5.          The
financial covenant analyses and information set forth on Schedule 1 attached hereto are true and accurate on and as of the
date of this Compliance Certificate.


 


IN WITNESS WHEREOF, the
undersigned has executed this Compliance Certificate as of ______________________.


 


	 	By: _____________________________
	 	Name:  __________________________
	 	Title:  [chief executive officer][chief financial officer][treasurer][controller] of Agree Realty Corporation


 




     


     


    

 


SCHEDULE 1


to the Compliance Certificate


 


For the fiscal [quarter][year]
ended _______________________


 


Capitalized terms used
but not defined herein shall have the meanings given to them in the Agreement. Attached hereto as Exhibit A are detailed calculations
with respect to the below covenant compliance representations.


 


	Covenant	 	Requirement	 	Actual
	Maximum Leverage Ratio	 	Not to exceed 60% of Total Asset Value	 	 
	Maximum Secured Leverage Ratio	 	Not to exceed 40% of Total Asset Value	 	 
	Minimum Tangible Net Worth	 	Not to be less than the sum of (i) $240,998,541 plus (ii) an amount equal to 75% of net equity proceeds received by the Parent after March 31, 2014 (other than proceeds received in connection with any dividend reinvestment program)	 	 
	Minimum Fixed Charge Coverage Ratio	 	The ratio of Adjusted EBITDA to Fixed Charges at the end of any quarter not to be less than 1.50 to 1.0	 	 
	Maximum Secured Recourse Indebtedness	 	Not to exceed 15% of Total Asset Value	 	 
	Maximum Unencumbered Leverage Ratio	 	Not to exceed 60% of Unencumbered Asset Value	 	 
	Minimum Unsecured Interest Expense Ratio	 	The ratio of Unencumbered Pool NOI to Unsecured Interest Expense not to be less than 2.0 to 1.0	 	 
	Industry Concentration	 	Not more than 20% (or 40% in the case of retail drug stores and pharmacies) of annualized base rents of the Loan Parties and their Subsidiaries for any 12 month period may be attributable to any one industry type	 	 
	
        Minimum Number of Unencumbered
        Pool Properties

         
	 	Not less than 20 Unencumbered Pool Properties	 	 


 


 




     


     


    

  


	Covenant	 	Requirement	 	Actual
	Permitted Investments	 	(f) Investments in unimproved land holdings not to at any time exceed 5% of Total Asset Value	 	 
	 	 	(g) Investments in mortgages, mezzanine loans and notes receivable not to at any time exceed 10% of Total Asset Value	 	 
	 	 	(h) Investments in Construction in Progress not to at any time exceed 15% of Total Asset Value	 	 
	 	 	(i) Investments in non-wholly owned Subsidiaries and Unconsolidated Affiliates not to at any time exceed 10% of Total Asset Value	 	 
	 	 	(j) Investments in Real Property assets that are not retail Properties not to at any time exceed 10% of Total Asset Value	 	 
	 	 	Investments pursuant to clauses (f) through (j) above in the aggregate will not exceed 25% of Total Asset Value	 	 
	Permitted Distributions of Parent for any fiscal year	 	Restricted Payments in an amount not to exceed in the aggregate the greater of (i) 95% of Funds From Operations, calculated on a trailing twelve month basis, and (ii) the amount of Restricted Payments required to be paid by the Parent in order for it to (x) maintain its REIT status for federal or state income tax purposes and (y) avoid the payment of federal or state income or excise tax	 	 


 




     


     


    

 


EXHIBIT D


 


FORM OF ASSIGNMENT AND
ASSUMPTION


 


This Assignment and Assumption
(this “Assignment and Assumption”) is dated as of the Effective Date set forth below and is entered into by
and between [the] [each]1
Assignor identified in item 1 below ([the][each, an] “Assignor”) and [the][each]2
Assignee identified in item 2 below ([the][each, an] “Assignee”). [It is understood and agreed that the rights
and obligations of [the Assignors][the Assignees]3
hereunder are several and not joint.]4
Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as
amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Credit Agreement”),
receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached
hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth
herein in full.


 


For an agreed consideration,
[the][each] Assignor hereby irrevocably sells and assigns to [the Assignee] [the respective Assignees], and [the] [each] Assignee
hereby irrevocably purchases and assumes from [the Assignor][the respective Assignors], subject to and in accordance with the Standard
Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below
(i) all of [the Assignor’s][the respective Assignors’] rights and obligations in [its capacity as a Lender] [their
respective capacities as Lenders] under the Credit Agreement and any other documents or instruments delivered pursuant thereto
to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations
of [the Assignor][the respective Assignors] under the term loan facility identified below (including without limitation any guarantees
included in such facility) and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action
and any other right of [the Assignor (in its capacity as a Lender)] [the respective Assignors (in their respective capacities as
Lenders)] against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents
or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of
the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other
claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and
obligations sold and assigned by [the][any] Assignor to [the] [any] Assignee pursuant to clauses (i) and (ii) above being referred
to herein collectively as [the][an] “Assigned Interest”). Each such sale and assignment is without recourse
to [the][any] Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty
by [the][any] Assignor.


 





 






1
For bracketed language here and elsewhere in this form relating to the Assignor(s), if the assignment is from
a single Assignor, choose the first bracketed language. If the assignment is from multiple Assignors, choose the second bracketed
language.


2
For bracketed language here and elsewhere in this form relating to the Assignee(s), if the assignment is to a
single Assignee, choose the first bracketed language. If the assignment is to multiple Assignees, choose the second bracketed
language.


3
Select as appropriate.


4
Include bracketed language if there are either multiple Assignors or multiple Assignees.


  




     


     


    

 


		1.	Assignor[s]:                       ________________________________



 


______________________________


[Assignor [is] [is
not] a Defaulting Lender]


 


		2.	Assignee[s]:                     ______________________________



 


______________________________


[for each Assignee,
indicate [Affiliate][Approved Fund] of [identify Lender]


 


		3.	Borrower(s):                     Agree Limited Partnership, a Delaware
limited partnership



 


		4.	Administrative Agent: Capital One, National Association,
as the administrative agent under the Credit Agreement



 


		5.	Credit Agreement:The Term Loan Agreement dated as
of July 1, 2016 by and among the Borrower, the Lenders from time to time party thereto and Capital One, National Association,
as Administrative Agent.



 


		6.	Assigned Interest[s]:



 


	Assignor[s]5	 	Assignee[s]6	 	Aggregate
 Amount of the
 Term Loan
 Commitment/
 Term Loans
 Assigned for all
 Lenders7	 	 	Amount of the
 Term Loan
 Commitment/

Term Loans
 Assigned	 	 	Percentage
 Assigned
 of the
 Term Loan
 Commitment/

Term
 Loans8	 	 	CUSIP
 Number	 
		 		 	$		 	 	$		 	 	 		%	 	 		 
	 	 	 	 	$		 	 	$		 	 	 		%	 	 	 	 
	 	 	 	 	$		 	 	$		 	 	 		%	 	 	 	 



 


		[7.	Trade Date:______________]9



 


[Page break]


 





 






5
List each Assignor, as appropriate.


6
List each Assignee, as appropriate.


7
Amount to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the
Effective Date.


8
Set forth, to at least 9 decimals, as a percentage of the Term Loan Commitment/Term Loans of all Lenders thereunder.


9
To be completed if the Assignor(s) and the Assignee(s) intend that the minimum assignment amount is to be determined as of the
Trade Date.



  




     


     


    

 


Effective Date: _____________
___, 20___ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]


 


The terms set forth in
this Assignment and Assumption are hereby agreed to:


 


	 	ASSIGNOR[S]10
	 	[NAME OF ASSIGNOR]
	 	 
	 	By:______________________________
	 	Name:  _________________________
	 	Title:  __________________________
	 	 
	 	[NAME OF ASSIGNOR]
	 	 
	 	By:______________________________
	 	Name:  _________________________
	 	Title:  __________________________
	 	 
	 	ASSIGNEE[S]11
	 	[NAME OF ASSIGNEE]
	 	 
	 	By:______________________________
	 	Name:  _________________________
	 	Title:  __________________________
	 	 
	 	[NAME OF ASSIGNEE]
	 	 
	 	By:______________________________
	 	Name:  _________________________
	 	Title:  __________________________


 





 



10
Add additional signature blocks as needed. Include both Approved Fund and manager making the trade (if applicable).


11
Add additional signature blocks as needed. Include both Approved Fund and manager making the trade (if applicable).



 




     


     


    

 





	[Consented to and]12 Accepted:	 
	 	 
	CAPITAL ONE, NATIONAL ASSOCIATION, as 	 
	Administrative Agent	 
	 	 	 
	By: _________________________________	 
	  Name:  _____________________________	 
	  Title:  ______________________________	 
	 	 	 
	[Consented to:]13 	 
	 	 
	AGREE LIMITED PARTNERSHIP, a Delaware limited partnership	 
	 	 	 
	By:	Agree Realty Corporation, 	 
	 	a Maryland corporation, its general partner	 
	 	 	 
	By: _____________________________	 
	Name:  __________________________	 
	Title:  ___________________________	 







 





 






12
To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement.


13
To be added only if the consent of the Borrower is required by the terms of the Credit Agreement.




 




     


     


    

 


ANNEX 1


 


STANDARD TERMS AND CONDITIONS
FOR


ASSIGNMENT AND ASSUMPTION


 


1.            Representations
and Warranties.


 


1.1           Assignor[s].
[The][Each] Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of [the][the relevant] Assigned
Interest, (ii) [the][such] Assigned Interest is free and clear of any lien, encumbrance or other adverse claim, (iii) it has full
power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate
the transactions contemplated hereby and (iv) it is [not] a Defaulting Lender; and (b) assumes no responsibility with respect to
(i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document,
(ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral
thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated
in respect of any Loan Document or (iv) the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or
any other Person of any of their respective obligations under any Loan Document.


 


1.2.          Assignee[s].
[The][Each] Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary,
to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender
under the Credit Agreement, (ii) it meets all the requirements to be an Eligible Assignee as defined in the Credit Agreement (subject
to such consents, if any, as may be required under Section 11.06(b)(iii) of the Credit Agreement), (iii) from and after the Effective
Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of [the][the relevant]
Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire
assets of the type represented by [the][such] Assigned Interest and either it, or the Person exercising discretion in making its
decision to acquire [the][such] Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy
of the Credit Agreement, and has received or has been accorded the opportunity to receive copies of the financial statements referenced
in Section 6.05 thereof or of the most recent financial statements delivered pursuant to Section 7.01(a) or Section 7.01(b)
thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision
to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, (vi) it has, independently and without
reliance upon the Administrative Agent, the Assignor or any other Lender and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such]
Assigned Interest, and (vii) if it is a Foreign Lender, attached hereto is any documentation required to be delivered by it pursuant
to the terms of the Credit Agreement, duly completed and executed by [the][such] Assignee; and (b) agrees that (i) it will, independently
and without reliance upon the Administrative Agent, [the][any] Assignor or any other Lender, and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan
Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents
are required to be performed by it as a Lender.


 




     


     


    

 


2.         Payments.
From and after the Effective Date, the Administrative Agent shall make all payments in respect of [the][each] Assigned Interest
(including payments of principal, interest, fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued
to but excluding the Effective Date and to [the][the relevant] Assignee for amounts which have accrued from and after the Effective
Date.


 


3.          General Provisions.
This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors
and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page of this Assignment and Assumption by telecopy shall be effective
as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of New York.


 




     


     


    

 


EXHIBIT E


 


FORM OF UNENCUMBERED POOL
REPORT


 


		To:	Capital One, National Association, as Administrative
Agent



 


Ladies and Gentlemen:


 


Reference is made to
that certain Term Loan Agreement dated as of July 1, 2016 (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the “Agreement”; capitalized terms used but not defined herein shall have the meanings
given to them in the Agreement), among Agree Limited Partnership, a Delaware limited partnership (the “Borrower”),
the Lenders from time to time party thereto and Capital One, National Association, as Administrative Agent (the “Administrative
Agent”). This Unencumbered Pool Report, together with supporting calculations attached hereto, is delivered to you pursuant
to the terms of the Agreement.


 


The Borrower hereby certifies
and warrants to the Administrative Agent and the Lenders that at the close of business on __________________ (the “Calculation
Date”), the Unencumbered Pool Amount was $_______________ computed as set forth on Schedule I attached hereto.


 


The Borrower has caused
this Unencumbered Pool Report to be executed and delivered by its duly authorized officer on _______________________.


 


	 	By: _____________________________
	 	Name:  __________________________
	 	Title:  [chief executive officer][chief financial officer][treasurer][controller] of Agree Limited Partnership


 




     


     


    

 


SCHEDULE I


to the Unencumbered Pool
Report


 


For the fiscal [quarter][year]
ended _______________________


 


Capitalized terms used
but not defined herein shall have the meanings given to them in the Agreement. Attached hereto as Exhibit A are detailed calculations
with respect to the below elements of Unencumbered Pool NOI.


 


	Covenant	 	Requirement	 	Actual
	Unencumbered Pool NOI	 	No single Property may account for greater than 15% of the aggregate Unencumbered Pool NOI	 	 
	 	 	No more than 25% of the aggregate Unencumbered Pool NOI may be in respect of Unencumbered Pool Properties that are located in any one Metropolitan Statistical Area	 	 
	 	 	No more than 75% of the aggregate Unencumbered Pool NOI may be in respect of single tenant facilities that have a tenant without an Investment Grade Rating	 	 
	 	 	No more than (i) 10% of the aggregate Unencumbered Pool NOI may be from a single tenant without an Investment Grade Rating and (ii) 25% of the aggregate Unencumbered Pool NOI may be from a single tenant with an Investment Grade Rating	 	 
	 	 	No more than 10% of the aggregate Unencumbered Pool NOI may be attributable to any rental or other income received from tenants in any proceedings under any Debtor Relief Laws	 	 
	 	 	Aggregate occupancy rate of all Properties included as Unencumbered Pool Properties may not to be less than 85%	 	 
	 	 	No more than 15% of the aggregate Unencumbered Pool NOI may be attributable to Properties leased under Eligible Ground Leases