EX-10.15 8 gen-20180331ex101518b7e.htm EX-10.15 Ex1015

 

Exhibit 10.15

FOURTH AMENDED AND RESTATED CREDIT AGREEMENT

 

dated as of March 6, 2018

among

GENESIS HEALTHCARE, INC.
FC-GEN OPERATIONS INVESTMENT, LLC
SKILLED HEALTHCARE, LLC
GENESIS HOLDINGS, LLC
GENESIS HEALTHCARE LLC

and

THE OTHER ENTITIES LISTED ON ANNEX I-A,
as Borrowers,

THE OTHER ENTITIES LISTED ON ANNEX I-B,
as Guarantors

and

THE LENDERS AND L/C ISSUERS PARTY HERETO

MIDCAP FUNDING IV TRUST,
as Administrative Agent

♦ ♦ ♦ ♦

 

 


 

 

Table of Contents

 

 

 

 

 

 

 

 

 

 

Page

 

 

 

ARTICLE 1       DEFINITIONS, INTERPRETATION AND ACCOUNTING TERMS

2

 

 

 

Section 1.1

Defined Terms

2

 

 

 

 

Section 1.2

UCC Terms

45

 

 

 

 

Section 1.3

Accounting Terms and Principles

46

 

 

 

 

Section 1.4

Interpretation

46

 

 

 

ARTICLE 2       THE CREDIT FACILITIES

47

 

 

 

Section 2.1

The Commitments

47

 

 

 

 

Section 2.2

Borrowing Procedures

48

 

 

 

 

Section 2.3

Swing Loans

50

 

 

 

 

Section 2.4

Letters of Credit

52

 

 

 

 

Section 2.5

Reduction and Termination of the Commitments

54

 

 

 

 

Section 2.6

Repayment of Loans

55

 

 

 

 

Section 2.7

Optional Prepayments; Optional Revolving Credit Commitment Reductions

55

 

 

 

 

Section 2.8

Mandatory Prepayments

55

 

 

 

 

Section 2.9

Interest

56

 

 

 

 

Section 2.10

Reserved

57

 

 

 

 

Section 2.11

Fees

57

 

 

 

 

Section 2.12

Application of Payments

58

 

 

 

 

Section 2.13

Payments and Computations

59

 

 

 

 

Section 2.14

Evidence of Debt

60

 

 

 

 

Section 2.15

Suspension of LIBOR Rate Option

61

 

 

 

 

Section 2.16

Increased Costs; Capital Requirements.

62

 

 

 

 

Section 2.17

Taxes

63

 

 

 

 

Section 2.18

Substitution of Lenders

66

 

 

 

 

Section 2.19

Contribution

67

 

 

 

 

Section 2.20

Reserved

69

 

 

 

 

Section 2.21

HUD Revolving Credit Sub-Facility

69

 

 

 

 

Section 2.22

Defaulting Lenders

70

 

 

 

 

ARTICLE 3       CONDITIONS TO LOANS AND LETTERS OF CREDIT

71

 

 

 

 

Section 3.1

Conditions Precedent to Loans and Letters of Credit on the Original Closing Date

71

 

 

 

 

Section 3.2

Conditions Precedent to Each Loan and Letter of Credit

71

 

-i-


 

 

Table of Contents

(continued)

 

 

 

 

 

 

Page

 

 

 

Section 3.3

Conditions to Effectiveness

71

 

 

 

ARTICLE 4       REPRESENTATIONS AND WARRANTIES

72

 

 

 

Section 4.1

Corporate Existence; Financial Statements; Compliance with Law

72

 

 

 

Section 4.2

Loan and Related Documents

74

 

 

 

Section 4.3

Financial Statements

74

 

 

 

Section 4.4

[Reserved]

74

 

 

 

Section 4.5

Material Adverse Effect

75

 

 

 

Section 4.6

Solvency

75

 

 

 

Section 4.7

Litigation

75

 

 

 

Section 4.8

Taxes

75

 

 

 

Section 4.9

Margin Regulations

75

 

 

 

Section 4.10

No Burdensome Obligations; No Defaults

76

 

 

 

Section 4.11

Investment Company Act

76

 

 

 

Section 4.12

Labor Matters

76

 

 

 

Section 4.13

ERISA

76

 

 

 

Section 4.14

Environmental Matters

77

 

 

 

Section 4.15

Intellectual Property

77

 

 

 

Section 4.16

Title; Real Property

77

 

 

 

Section 4.17

Full Disclosure

78

 

 

 

Section 4.18

Patriot Act; OFAC

78

 

 

 

Section 4.19

Eligible Accounts

78

 

 

 

Section 4.20

Use of Proceeds

79

 

 

 

Section 4.21

Insurance

79

 

 

 

Section 4.22

Reportable Transactions

79

 

 

 

Section 4.23

Security Documents

79

 

 

 

Section 4.24

Schedules Deemed Updated

80

 

 

 

ARTICLE 5       FINANCIAL COVENANTS

80

 

 

 

Section 5.1

Reserved

80

 

 

 

Section 5.2

Minimum Consolidated Fixed Charge Coverage Ratio

80

 

 

 

Section 5.3

Reserved

80

 

 

 

Section 5.4

Maximum Leverage Ratio

80

 

 

 

Section 5.5

Reserved

81

 

-ii-


 

 

Table of Contents

(continued)

 

 

 

 

 

 

Page

 

 

 

Section 5.6

Minimum Liquidity

81

 

 

 

Section 5.7

Investments to Cure Financial Covenant Defaults

81

 

 

 

ARTICLE 6       REPORTING COVENANTS

82

 

 

 

Section 6.1

Financial Statements

82

 

 

 

Section 6.2

Other Events

85

 

 

 

Section 6.3

Copies of Notices and Reports

85

 

 

 

Section 6.4

Taxes

85

 

 

 

Section 6.5

Labor Matters

86

 

 

 

Section 6.6

ERISA Matters

86

 

 

 

Section 6.7

Environmental Matters

86

 

 

 

Section 6.8

Other Information

86

 

 

 

ARTICLE 7       AFFIRMATIVE COVENANTS

87

 

 

 

Section 7.1

Maintenance of Corporate Existence

87

 

 

 

Section 7.2

Compliance with Laws, Etc

87

 

 

 

Section 7.3

Payment of Obligations

88

 

 

 

Section 7.4

Maintenance of Property

88

 

 

 

Section 7.5

Maintenance of Insurance

89

 

 

 

Section 7.6

Keeping of Books

89

 

 

 

Section 7.7

Access to Books and Property

89

 

 

 

Section 7.8

Environmental

89

 

 

 

Section 7.9

Post-Closing Obligations

90

 

 

 

Section 7.10

Additional Borrowers and Collateral

90

 

 

 

Section 7.11

Deposit Accounts; Securities Accounts and Cash Collateral Accounts

93

 

 

 

Section 7.12

Cash Management; Agent Collection Account

94

 

 

 

Section 7.13

Further Assurances

97

 

 

 

Section 7.14

Use of Proceeds

97

 

 

 

Section 7.15

Annual Lenders Meeting

97

 

 

 

Section 7.16

Material Master Leases

98

 

 

 

Section 7.17

UPL Programs

98

 

 

 

ARTICLE 8       NEGATIVE COVENANTS

99

 

 

 

Section 8.1

Indebtedness

99

 

 

 

Section 8.2

Liens

102

 

-iii-


 

 

Table of Contents

(continued)

 

 

 

 

 

 

Page

 

 

 

Section 8.3

Sale and Lease-Back Transactions

105

 

 

 

Section 8.4

Investments

106

 

 

 

Section 8.5

Mergers, Consolidations, Sales of Assets and Acquisitions

108

 

 

 

Section 8.6

Restricted Payments; Restrictive Agreements

111

 

 

 

Section 8.7

Transactions with Affiliates

113

 

 

 

Section 8.8

Change in Nature of Business

114

 

 

 

Section 8.9

Other Indebtedness and Agreements

114

 

 

 

Section 8.10

Accounting Changes; Fiscal Year

115

 

 

 

Section 8.11

Margin Regulations

115

 

 

 

Section 8.12

Tax Receivable Agreement

115

 

 

 

ARTICLE 9       EVENTS OF DEFAULT

115

 

 

 

Section 9.1

Definition

115

 

 

 

Section 9.2

Remedies

117

 

 

 

Section 9.3

Actions in Respect of Letters of Credit

118

 

 

 

ARTICLE 10       ADMINISTRATIVE AGENT

118

 

 

 

Section 10.1

Appointment and Duties

118

 

 

 

Section 10.2

Binding Effect

119

 

 

 

Section 10.3

Use of Discretion

120

 

 

 

Section 10.4

Delegation of Rights and Duties

120

 

 

 

Section 10.5

Reliance and Liability

120

 

 

 

Section 10.6

Administrative Agent Individually

121

 

 

 

Section 10.7

Lender Credit Decision

121

 

 

 

Section 10.8

Expenses; Indemnities

122

 

 

 

Section 10.9

Resignation of Administrative Agent or L/C Issuer; Assignment by Administrative Agent

122

 

 

 

Section 10.10

Release of Collateral or Guarantors

123

 

 

 

Section 10.11

Additional Secured Parties

124

 

 

 

Section 10.12

Payments and Settlements; Return of Payments

124

 

 

 

ARTICLE 11       MISCELLANEOUS

126

 

 

 

Section 11.1

Amendments, Waivers, Etc

126

 

 

 

Section 11.2

Assignments and Participations; Binding Effect

128

 

 

 

Section 11.3

Costs and Expenses

131

 

 

 

Section 11.4

Indemnities

132

-iv-


 

 

Table of Contents

(continued)

 

 

 

 

 

 

Page

 

 

 

Section 11.5

Survival

133

 

 

 

Section 11.6

Limitation of Liability for Certain Damages

133

 

 

 

Section 11.7

Lender-Creditor Relationship

133

 

 

 

Section 11.8

Right of Setoff

134

 

 

 

Section 11.9

Sharing of Payments, Etc

134

 

 

 

Section 11.10

Marshaling; Payments Set Aside; Protective Advances

134

 

 

 

Section 11.11

Notices

135

 

 

 

Section 11.12

Electronic Transmissions

136

 

 

 

Section 11.13

Governing Law

137

 

 

 

Section 11.14

Jurisdiction

137

 

 

 

Section 11.15

WAIVER OF JURY TRIAL

138

 

 

 

Section 11.16

Severability

138

 

 

 

Section 11.17

Execution in Counterparts

138

 

 

 

Section 11.18

Entire Agreement

139

 

 

 

Section 11.19

Usury

139

 

 

 

Section 11.20

Use of Name

139

 

 

 

Section 11.21

Non-Public Information; Confidentiality

139

 

 

 

Section 11.22

Patriot Act Notice

140

 

 

 

Section 11.23

Agent for Loan Parties

140

 

 

 

Section 11.24

Existing Agreements Superseded; Exhibits and Schedules

141

 

 

 

Section 11.25

Acknowledgement and Consent to Bail-In of EEA Financial Institution

141

 

 

 

Section 11.26

Segregated Liability

142

 

Annexes

 

 

Annex I-A

Borrowers

Annex I-B

Guarantors

Annex II

Organizational Chart

 

Exhibits

 

 

Exhibit A

Assignment Agreement

Exhibit B

Form of Note

Exhibit C

Notice of Borrowing

 

-v-


 

 

Exhibit D

Swingline Request

Exhibit E

L/C Request

Exhibit F

Payment Notification

Exhibit G

Compliance Certificate

Exhibit H

[Reserved]

Exhibit I

Borrowing Base Certificate

Exhibit J

Solvency Certificate

Exhibit K

[Reserved]

Exhibit L

Non-U.S. Lender Tax Statement

Exhibit M

Intercompany Promissory Note

Exhibit N

Tax Receivable Agreement

 

Schedules

 

 

Schedule I

Commitments

Schedule 1.1A

Approved Insurers

Schedule II

Skilled RE Borrowers

Schedule III

MidCap RE Borrowers

Schedule IV

Existing Letters of Credit

Schedule  V

New Loan Parties

Schedule VI

Released Loan Parties

Schedule 4.1

Corporate Existence, Compliance with Law, Licensing Matters

Schedule 4.1(e)

Violations, Deficiencies, Enforcement Actions and Proceedings by Governmental Authorities

Schedule 4.2

Required Permits, Notices or Consents

Schedule 4.7

Litigation

Schedule 4.8

Taxes

Schedule 4.12

Collective Bargaining Agreements

Schedule 4.13(b)

Foreign Pension Plans

Schedule 4.16

Title; Real Property; Facility Type

Schedule 4.21

Insurance

Schedule 4.23

Security Documents

Schedule 7.9

Post-Closing Obligations

Schedule 7.10

Non-Borrower Subsidiaries

Schedule 7.11

Deposit Accounts

Schedule 7.12(a)

Facility Lockbox Accounts; Concentration Accounts

-vi-


 

 

Schedule 7.12(b)

Government Receivables Deposit Accounts

Schedule 8.1

Permitted Indebtedness

Schedule 8.2

Permitted Liens

Schedule 8.4

Permitted Existing Investments

Schedule 8.7

Agreement with Affiliates

 

 

 

-vii-


 

THIS FOURTH AMENDED AND RESTATED CREDIT AGREEMENT,  dated as of March 6, 2018, is entered into by and among GENESIS HEALTHCARE, INC. (formerly known as Skilled Healthcare Group, Inc., “Ultimate Parent”), FC-GEN OPERATIONS  INVESTMENT, LLC, a Delaware limited liability company (“LLC Parent”, as a Borrower and as agent for the Borrowers pursuant to Section 11.23), SKILLED HEALTHCARE, LLC, a Delaware limited liability company (“Skilled Holdings”), GENESIS HOLDINGS, LLC, a Delaware limited liability company (“Genesis Holdings”), GENESIS HEALTHCARE LLC and the entities listed with their jurisdiction of organization on Annex I-A hereto and each Person becoming a party hereto as a “Borrower” in accordance with Section 7.10 (collectively, “Borrowers”), the entities listed with their jurisdiction of organization on Annex I-B hereto and each Person becoming a party hereto as a “Guarantor” in accordance with Section 7.10 (collectively, “Guarantors”), certain financial institutions from time to time party hereto (as defined below, collectively, “Lenders”), L/C Issuers (as defined below) and MIDCAP FUNDING IV TRUST (“MCF”), as Administrative Agent for the Lenders and the L/C Issuers (in such capacity, and together with its successors and permitted assigns, “Administrative Agent”).

WHEREAS, certain subsidiaries of Ultimate Parent, as “Borrowers” or “Guarantors”, and Administrative Agent (as defined in the Original Credit Agreement) are parties, among others, to that certain Third Amended and Restated Credit Agreement, dated as of February 2, 2015, as amended (as so amended and otherwise amended and restated, supplemented or modified prior to the date hereof, the “Original Credit Agreement”), pursuant to which Administrative Agent and Lenders (as defined in the Original Credit Agreement) agreed to make certain advances and other financial accommodations to Borrowers;

WHEREAS, pursuant to the Original Credit Agreement, the Lenders (as defined in the Original Credit Agreement) extended credit in the form of (i) Revolving Credit Commitments – Tranche A-1 (as defined in the Original Credit Agreement) and related Revolving Loans – Tranche A-1 (as defined in the Original Credit Agreement) at any time and from time to time prior to the Scheduled Revolving Credit Termination Date (as defined in the Original Credit Agreement) in an aggregate principal amount at any time outstanding not in excess of $480,000,000; (ii) Revolving Credit Commitments – Tranche A-2 (as defined in the Original Credit Agreement) and related Revolving Loans – Tranche A-2 (as defined in the Original Credit Agreement) at any time and from time to time prior to the Scheduled Revolving Credit Termination Date (as defined in the Original Credit Agreement) in an aggregate principal amount at any time outstanding not in excess of $0; and (iii) Revolving Credit Commitments – FILO Tranche (as defined in the Original Credit Agreement) and related Revolving Loans – FILO Tranche (as defined in the Original Credit Agreement) at any time and from time to time prior to the Scheduled Revolving Credit Termination Date (as defined in the Original Credit Agreement) in an aggregate principal amount at any time outstanding not in excess of $0;

WHEREAS, pursuant to the Original Credit Agreement, the Swingline Lender (as defined in the Original Credit Agreement) agreed to make Swingline Loans (as defined in the Original Credit Agreement), at any time and from time to time prior to the applicable Scheduled Revolving Credit Termination Date (as defined in the Original Credit Agreement), in an aggregate principal amount at any time outstanding not in excess of $30,000,000;

WHEREAS, the L/C Issuer (as defined in the Original Credit Agreement) agreed to issue Letters of Credit (as defined in the Original Credit Agreement), in an aggregate face amount at any time outstanding not in excess of $150,000,000, to support payment obligations incurred by Ultimate Parent and its Subsidiaries;

WHEREAS, the requisite parties to the Original Credit Agreement have agreed to amend and restate the Original Credit Agreement as provided for in this Agreement, effective upon the satisfaction

 


 

 

of the conditions precedent set forth in the Tenth Amendment (as defined below) and to release the Released Loan Parties from their obligations under this Agreement and the other Loan Documents and to re-designate certain Borrowers as Guarantors under this Agreement and the other Loan Documents; and

WHEREAS, Administrative Agent and Lenders have agreed to the requests of Borrowers and the other Loan Parties on the terms and conditions set forth herein and in the other Loan Documents.

NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

Article 1

DEFINITIONS, INTERPRETATION AND ACCOUNTING TERMS

Section 1.1 Defined Terms.  As used in this Agreement, the following terms have the following meanings:

ABL Priority Collateral” has the meaning specified in the Intercreditor Agreement.

Acceleration Event” means the occurrence of an Event of Default (a) in respect of which all or any portion of the Obligations have been declared to be immediately due and payable pursuant to Section 9.2, (b) pursuant to Section 9.1(a), and in respect of which Administrative Agent has suspended or terminated the Revolving Loan Commitment pursuant to Section 9.2, and/or (c) pursuant to either Section 9.1(g) and/or Section 9.1(h).

Account” has the meaning specified in the Security Agreement.

Account Debtor” means any Person obligated on any Account of any Borrower, including an Account Debtor that is Medicaid, Medicare or TRICARE.

Acquired EBITDA” means, with respect to any Acquired Entity or Business or other property for any period, the amount for such period of Consolidated EBITDA of such Acquired Entity or Business or such property (determined as if references to the Ultimate Parent and its Subsidiaries in the definition of Consolidated EBITDA were references to such Acquired Entity or Business and its Subsidiaries or such property), all as determined on a consolidated basis for such Acquired Entity or Business or such property.

Acquired Entity or Business” has the meaning specified in the definition of “Consolidated EBITDA”.

Administrative Agent” has the meaning specified in the preamble to this Agreement.

Affected Lender” has the meaning specified in Section 2.18(a).

Affiliate” means, with respect to any Person, any other Person that directly or indirectly controls, is controlled by, or is under common control with, such Person.  No Secured Party shall be an Affiliate of any Borrower nor shall any Secured Party be deemed to be an “Affiliate” of any Loan Party solely by virtue of being a “Lender” or “Secured Party” under this Agreement.  For purpose of this definition, “control” means (i) the power, directly or indirectly, to direct or cause the direction of the management and policies of such Person, whether by contract or otherwise or (ii) beneficial ownership of 10% or more of the Voting Stock of such Person.

2


 

 

Agent Collection Account” has the meaning specified in Section 7.12(b).

Agreement” means this Fourth Amended and Restated Credit Agreement, as may be amended, restated, replaced or otherwise modified from time to time.

Allocable Share” means, with respect to each Borrower, the percentage obtained by multiplying (i) the aggregate Commitments as of any date of determination by (ii) the ratio of the revenue attributable to such Borrower to Consolidated revenue.

Anti-Terrorism Laws” has the meaning specified in Section 4.18.

Applicable Indebtedness” has the meaning specified in the definition of “Weighted Average Life to Maturity”.

Applicable Margin” means either the Applicable Margin –Revolving Loan, the Applicable Margin –Delayed Draw Term Loan or the Applicable Margin – Closing Date Term Loan.

Applicable Margin – Closing Date Term Loan” means, with respect to each Closing Date Term Loan, 6.00% per annum.

Applicable Margin –Revolving Loan” means, with respect to each Revolving Loan, 6.00% per annum.

Applicable Margin – Delayed Draw Term Loan” means, with respect to each Delayed Draw Term Loan, 11.00% per annum.

Approved Insurer” means each Person identified on Schedule 1.1A and any Insurer or other Person (other than Medicaid, Medicare or TRICARE) customarily contracted with by companies in the same or similar business as the Borrowers.

Asset Sale” means the Transfer (by way of merger, casualty, condemnation or otherwise) by any Loan Party to any Person other than any other Loan Party of (a) any Equity Interests or Equity Equivalents of any of the Subsidiaries (other than directors’ qualifying shares) or (b) any other assets of the Loan Parties (other than (i) inventory, damaged, no longer useful or needed, obsolete or worn out assets, scrap, cash and Cash Equivalents, in each case Transferred in the ordinary course of business, (ii) Transfers between or among Subsidiaries that are not Loan Parties, (iii) Transfer of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such Transfer are applied to the purchase price of such replacement property (which replacement property is actually promptly purchased), (iv) leases, subleases, licenses or sublicenses (including the provision of software under an open source license), in each case in the ordinary course of business and which do not materially interfere with the business of the Loan Parties, taken as a whole, (v) subject to the limitations set forth in Section 8.4, Transfers of accounts receivable in connection with the collection or compromise thereof in the ordinary course of business, (vi) Transfers of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements, (vii) Transfers constituting Investments permitted by Section 8.4, Transfers permitted by Section 8.5(a), Restricted Payments permitted by Section 8.6 and Liens permitted by Section 8.2, (viii) the unwinding of any Hedge Agreement, (ix) any Transfer or series of related Transfers having a value not in excess of $1,500,000, (x) the assignment, cancellation, abandonment or other disposition of Intellectual Property that is, in the reasonable judgment of the Loan Parties, no longer economically practicable to maintain or useful

3


 

 

in the conduct of the business of the Loan Parties taken as a whole, and (xi) subject to the limitations set forth in Section 7.17, Transfers of licenses in connection with the implementation of a UPL Program).

Assignment” means an assignment agreement entered into by a Lender, as assignor, and any Person, as assignee, pursuant to the terms and provisions of Section 11.2 (with the consent of any party whose consent is required by Section 11.2), accepted by Administrative Agent, in substantially the form of Exhibit A, or any other form approved by Administrative Agent.

Audited Financial Statements” means the Ultimate Parent’s audited Consolidated balance sheet as of December 31, 2016.

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 Federal Bankruptcy Reform Act of 1978 (11 U.S.C. § 101, et seq.), as amended and in effect from time to time and the regulations issued from time to time thereunder.

Base LIBOR Rate” means, for each Interest Period, the London interbank offered rate administered by the ICE Benchmark Administration (or any other person which takes over the administration of that rate) for the relevant currency and period displayed on the appropriate page of the Bloomberg screen, (rounded upwards, if necessary, to the next 1/100%), to be the rate at which Dollar deposits (for delivery on the first day of such Interest Period or, if such day is not a Business Day on the preceding Business Day) in the amount of $1,000,000 are offered to major banks in the London interbank market on or about 11:00 a.m. (Eastern time) two (2) Business Days prior to the commencement of such Interest Period, for a term comparable to such Interest Period, which determination shall be conclusive in the absence of manifest error.  For purposes of clarity, the Base LIBOR Rate shall be determined monthly, notwithstanding the fact the Interest Period may be longer than thirty (30) days.

Base Rate” means the per annum rate of interest announced, from time to time, within Wells Fargo at its principal office in San Francisco as its “prime rate,” with the understanding that the “prime rate” is one of Wells Fargo’s base rates (not necessarily the lowest of such rates) and serves as the basis upon which effective rates of interest are calculated for those loans making reference thereto and is evidenced by the recording thereof after its announcement in such internal publications as Wells Fargo may designate; provided, however, that Agent may, upon prior written notice to Borrower, choose an index or source reasonably comparable to the “prime rate” announced by Wells Fargo in consultation with Borrower to use as the basis for the Base Rate.

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

Benefit Plan” means any employee benefit plan as defined in Section 3(3) of ERISA (whether governed by the laws of the United States or otherwise), other than a Foreign Pension Plan or Multiemployer Plan, to which any Loan Party incurs or otherwise has any obligation or liability, contingent or otherwise.

Borrowers” has the meaning specified in the preamble to this Agreement.

4


 

 

Borrowing” means a borrowing consisting of Loans (other than Swing Loans and Loans deemed made pursuant to Section 2.3) made in the Revolving Credit Facility on the same day by the Lenders according to their respective Revolving Credit Commitments under the Revolving Credit Facility.

Borrowing Availability” means as of any date of determination the lesser of (i) the aggregate Revolving Credit Commitment of all Lenders and (ii) the Borrowing Base, in each case, less the Revolving Credit Outstandings.

Borrowing Base” means, as of any date of calculation, (a) eighty-five percent (85%) of the Eligible Accounts, as adjusted in accordance with this definition of the term “Borrowing Base” minus  (b) the outstanding principal balance of the Closing Date Term Loan; provided,  however, based on the analysis of facts or events first occurring or discovered by Administrative Agent after the Closing Date, Administrative Agent, in its reasonable credit judgment consistent with its underwriting and general business practices, may from time to time (i) adjust the Borrowing Base by applying percentages (known as “liquidity factors”) to the applicable Eligible Accounts by payor class based upon Borrowers’ actual recent collection history for each such payor class (i.e., Medicaid, Medicare, commercial insurance, etc.) in a manner consistent with Administrative Agent’s underwriting practices and procedures and (ii) further reduce the Borrowing Base by such reserves as Administrative Agent deems reasonably appropriate, including reserves for potential future exposure under Secured Hedge Agreements and to reflect historically recurring declines, or projected declines, in the amount of the applicable Eligible Accounts and reserves with respect to all recoupments and overpayments; provided,  further, that the Borrowing Base shall not include the applicable Eligible Accounts related to any Loan Party (i) that became a Borrower pursuant to Section 7.10 and which the Administrative Agent has determined in its sole discretion to exclude from the calculation of the Borrowing Base or (ii) against which a case or proceeding referred to in Section 9.1(g) or (h) have been instituted, nor shall any Account that is excluded from the Borrowing Base pursuant to Section 8.2 be included in the Borrowing Base.  In the event of any occurrence requiring notice under clause (e) of Section 6.2, Administrative Agent may immediately require the establishment of reserves that, in its sole credit judgment, are necessary to offset any loss of the applicable Eligible Accounts related to such closing in respect of such Facility.  Each such change shall become effective immediately following notice of such change; provided, however, to the extent that the establishment of such reserve will result in a Revolving Loan Overadvance, Borrower shall have two (2) Business Days following notice of such change to repay the Revolving Loan Overadvance.

Borrowing Base Certificate” means a certificate substantially in the form of Exhibit I.

Business” means the business and any services, activities or businesses incidental or directly related or similar or complementary to any business or line of business engaged in by the Loan Parties or any business or business activity that is a reasonable extension, development or expansion thereof or ancillary thereto.

Business Day” means any day of the year that is not a Saturday, Sunday or a day on which banks are required or authorized to close in New York City and, when determined in connection with determining the Base LIBOR Rate, that is also a day on which dealings in Dollar deposits are carried on in the London interbank market.

Capital Expenditures” means, with respect to any Person for any period, the additions to property, plant and equipment and other capital expenditures of such Person that are (or should be) set forth in a Consolidated statement of cash flows of Ultimate Parent for such period prepared in accordance with GAAP.

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Capital Lease Obligations” means, at any time, as to any Person, the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or tangible personal property, or a combination thereof, to the extent such obligations are required to be classified and accounted for as capital leases or similar lease financing obligations on a balance sheet of such Person under GAAP and, for the purposes of this Agreement, the amount of such obligations at any time shall be the capitalized amount thereof at such time determined in accordance with GAAP; provided that, notwithstanding the foregoing, all obligations of any Person that are or would have been treated as operating leases for purposes of GAAP prior to the issuance by the Financial Accounting Standards Board on February 25, 2016 of an Accounting Standards Update (the “ASU”) shall continue to be accounted for as operating leases for purposes of all financial definitions and calculations for purpose of this Agreement (whether or not such operating lease obligations were in effect on such date) notwithstanding the fact that such obligations are required in accordance with the ASU (on a prospective or retroactive basis or otherwise) to be treated as Capital Lease Obligations in the financial statements to be delivered pursuant to Section 6.1.

CapOne Letter of Credit Facility” means that certain letter of credit facility entered into on or about the date hereof by Capital One, National Association (“CapOne”), as the issuing bank, and the Ultimate Parent and one or more additional Borrowers, as the applicants, whereby CapOne will issue letters of credit for the account of one or more Borrowers from time to time, as such letter of credit facility may be amended, restated, replaced, refinanced, extended, renewed or otherwise modified from time to time with one or more issuers in whole or in part.   The Existing Letters of Credit shall be deemed to have been issued under the CapOne Letter of Credit Facility.

Cash Collateral Account” means a deposit account or securities account (including Controlled Deposit Accounts and Controlled Securities Accounts) in the name of a Borrower and under the sole control (as defined in the applicable UCC) of Administrative Agent and (a) in the case of a deposit account, from which such Borrower may not make withdrawals except as permitted by Administrative Agent and (b) in the case of a securities account, with respect to which Administrative Agent shall be the entitlement holder and the only Person authorized to give entitlement orders with respect thereto.

Cash Equivalents” means (a) any readily-marketable securities (i) issued by, or directly, unconditionally and fully guaranteed or insured by the United States federal government or (ii) issued by any agency or instrumentality of the United States federal government the obligations of which are fully backed by the full faith and credit of the United States federal government, (b) any readily-marketable direct obligations issued by any other agency of the United States federal government, any state of the United States or any political subdivision of any such state or any public instrumentality thereof, in each case having a rating of at least “A-2” from S&P or at least “P-2” from Moody’s, (c) any commercial paper rated at least “A-2” by S&P or “P-2” by Moody’s and issued by any Person organized under the laws of any state of the United States, (d) any Dollar-denominated time deposit, insured certificate of deposit, overnight bank deposit or bankers’ acceptance issued or accepted by (i) any Lender or (ii) any commercial bank that is (A) organized under the laws of the United States, any state thereof or the District of Columbia, (B) “adequately capitalized” (as defined in the regulations of its primary federal banking regulators) and (C) has Tier 1 capital (as defined in such regulations) in excess of $250,000,000 and (e) shares of any United States money market fund that (i) has substantially all of its assets invested continuously in the types of investments referred to in clause (a),  (b),  (c) or (d) above with maturities as set forth in the proviso below, (ii) has net assets in excess of $500,000,000 and (iii) has obtained from either S&P or Moody’s the highest rating obtainable for money market funds in the United States; provided,  however, that the maturities of all obligations specified in any of clauses (a),  (b),  (c) and (d) above shall not exceed 365 days.

Cash Management Document”  means any certificate, agreement or other document executed by the Loan Parties in respect of the Cash Management Obligations of the Loan Parties.

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Cash Management Obligation” means, with respect to the Loan Parties, any direct or indirect liability, contingent or otherwise, of any such Person in respect of cash management services (including treasury, depository, overdraft, credit or debit card, electronic funds transfer and other cash management arrangements) provided by the Administrative Agent, any Lender or any Affiliate of any of them, including obligations for the payment of fees, interest, charges, expenses, attorneys’ fees and disbursements in connection therewith.

Certificated Security” has the meaning specified in the Security Agreement.

Change of Control” means that (i) Ultimate Parent shall cease to own directly or indirectly (x) less than 50% of the Equity Interests of LLC Parent, (y) 100% of the Equity Interests of any other of the managing members of LLC Parent or (z) 100% of the Equity Interests of SGH Partnership, LLC or Genesis Partnership, LLC (except, in each case, to the extent expressly permitted by Section 8.5(a)(i)(A)), (ii) except to the extent expressly permitted by Section 8.5(a)(ii), Ultimate Parent and LLC Parent shall, collectively, cease to own, directly or indirectly, 100% of the Equity Interests of Parent, Holdings, Skilled Holdings, Genesis Holdings or GHLLC; (iii) Holdings (or, if Holdings is no longer in existence in accordance with Section 8.5(a)(ii), Parent or LLC Parent) shall cease to own, directly or indirectly, 100% of the Equity Interests of Skilled Holdings, Genesis Holdings or GHLLC; (iv) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act, but excluding any employee benefit plan of such person and its subsidiaries and any person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan), other than the Permitted Investors is or becomes the beneficial owner, directly or indirectly, of more than 35% of the Voting Stock of Ultimate Parent and such person or group is or becomes, directly or indirectly, the beneficial owner of a greater percentage of the Voting Stock of Ultimate Parent than the percentage of outstanding Voting Stock of Ultimate Parent owned by the Permitted Investors or (v) a “change of control” or similar concept under the Welltower Term Loan Documents, or any Material Master Leases shall have occurred.

Chattel Paper” has the meaning specified in the Security Agreement.

Closing Date” means March 6, 2018.

Closing Date Term Loan” has the meaning specified in Section 2.1(b).

Closing Date Term Loan Commitment” means, with respect to each Lender, the commitment of such Lender to make the Closing Date Term Loan, which commitment is in the amount set forth opposite such Lender’s name on Schedule I under the caption “Closing Date Term Loan Commitment”, as it may be amended to reflect Assignments.

Closing Date Term Loan Exit Fee” has the meaning specified in Section 2.11(c)(i).

Closing Date Transactions” means (i) the repayment in part of the aggregate principal amount of any Revolving Credit Loans (as defined in the Original Credit Agreement) outstanding immediately prior to the effectiveness of the Tenth Amendment with proceeds of Closing Date Term Loans and the termination of the associated commitments to make extensions of credit under the Revolving Credit Facility (as defined in the Original Credit Agreement) in effect immediately prior to the effectiveness of the Tenth Amendment in an amount equal to $319,493,702.04; (ii) the repayment of the aggregate principal amount of any Revolving Credit Loans (as defined in the Original Credit Agreement) outstanding immediately prior to the effectiveness of the Tenth Amendment (after giving effect to the prepayment described in clause (i)) and the termination of the associated commitments to make extensions of credit under the Revolving Credit Facility (as defined in the Original Credit Agreement) in effect immediately prior to the effectiveness of the Tenth Amendment with proceeds of Revolving Loans and the exchange of

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that portion of Revolving Credit Commitments (as defined in the Original Credit Agreement) associated with such outstanding Revolving Loans for a like principal amount of Revolving Credit Commitments and (iii) as of the Closing Date, the reduction of the L/C Sublimit to $0 and the cash collateralization of the Existing Letters of Credit.

CMS Bulletin” has the meaning specified in Section 7.12(a)(iii).

Code” means the U.S. Internal Revenue Code of 1986, as amended.

Collateral” has the meaning specified therefor in the Security Agreement.

Commitment” means, as of the date of any determination, with respect to each Lender, such Lender’s Revolving Credit Commitment, its Delayed Draw Term Loan Commitment and/or its Closing Date Term Loan Commitment.

Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.

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

Concentration Accounts” has the meaning specified in Section 7.12(a)(i)(B).

Concentration Account Collecting Bank” has the meaning specified in Section 7.12(a)(i)(B).

Consolidated” and “Consolidated Basis” means, with respect to any Person, the accounts or results of such Person and its Subsidiaries, consolidated in accordance with GAAP, excluding the revenues, expenses, assets and liabilities of variable interest entities having indebtedness that is non-recourse to such Person.

Consolidated EBITDA” means, with respect to any Person, for any measurement period, Consolidated Net Income for such period plus without duplication and to the extent deducted in determining such Consolidated Net Income, the sum of (i) Consolidated Interest Expense for such period, plus (ii) Consolidated income tax expense for such period, plus (iii) all amounts attributable to the amount of the provision for depreciation and amortization, plus (iv) the amount of any non-cash charges (other than the write-down of current assets), plus (v) the amount of any loss from unusual or extraordinary items in excess of $100,000, including any related management incentive or stay-pay plans in place as of the Original Closing Date, any restructuring charges and any other non-recurring loss not to exceed $20,000,000 in the aggregate for this clause (v) for any period, plus (vi) costs, fees and expenses for such period paid in connection with the Transactions and the Welltower Transactions, plus (vii) any non-recurring fees, costs or expenses for such period incurred in connection with a Permitted Acquisition or any Investment, Transfer, incurrence of (or amendments or modifications to) Indebtedness, issuance of Equity Interests or Equity Equivalents or entry into new (or amendments or modifications to) Material Master Leases, in each case, permitted under this Agreement (in each case, including any such transaction undertaken but not completed); provided that the costs, fees and expenses added pursuant to clause (vi) and this clause (vii), in the aggregate, shall not exceed 20% of Consolidated EBITDA in any period, plus (viii) the amount of cost savings and acquisition synergies projected by such Person in good faith to be realized within 12 months of the date such actions are first taken in connection with any other acquisition or Transfer or restructuring of the business by any of the Loan Parties or the HUD Sub-Facility Entities, in each case, calculated on a Pro Forma Basis as though such cost savings or acquisition synergies had been realized on the first day of such period, net of the amount of actual benefits realized during such period that are

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otherwise included in the calculation of Consolidated EBITDA from such actions; provided that (A) such cost savings and acquisition synergies are reasonably identifiable and factually supportable, and (B) the aggregate amount of cost savings and acquisition synergies added pursuant to this clause shall not exceed 15% of Consolidated EBITDA in any period, otherwise, plus (ix) the amount of cost savings and acquisition synergies projected by such Person in good faith to be realized within (x) 15 months of the date such actions are first taken in connection with the Transactions and the Welltower Transactions or (y) 12 months of the date such actions are first taken in connection with any other acquisition or Transfer or restructuring of the business by any of the Loan Parties or the HUD Sub-Facility Entities, in each case, calculated on a Pro Forma Basis as though such cost savings or acquisition synergies had been realized on the first day of such period, net of the amount of actual benefits realized during such period that are otherwise included in the calculation of Consolidated EBITDA from such actions; provided that (A) such cost savings and acquisition synergies are reasonably identifiable and factually supportable, and (B) the aggregate amount of cost savings and acquisition synergies added pursuant to this clause (ix) shall not exceed (x) $50,000,000 in the aggregate (and in no event shall the total amount of all cost savings and acquisition synergies with respect to the Transactions and the Welltower Transactions exceed $50,000,000), in the case of net cost savings and acquisition synergies with respect to the Transactions and the Welltower Transactions and (y) 15% of Consolidated EBITDA in any period, otherwise, plus (x) the amount of management, consulting, monitoring and advisory fees (including termination fees and transaction fees) and related indemnities and expenses paid or accrued in such period (and prior to the Closing Date) to the Sponsor pursuant to any management agreement permitted by Section 8.6(a)(vi) and deducted (and not added back) in such period in computing such Consolidated Net Income, in an aggregate amount not exceeding $3,000,000 in any Fiscal Year, plus (xi) solely in connection with calculating the Consolidated Fixed Charge Coverage Ratio, Consolidated Senior Leverage Ratio and Consolidated Total Leverage Ratio for any periods, the Customer Charge, minus (xii) the amount of any cash or non-cash unusual or extraordinary gains that are in excess of $100,000 and any other non-recurring gains.  Any non-cash expenses related to the management incentive or stay-pay plans in place as of the Original Closing Date will be included in clause (v) above.  In addition, (A) there shall be included on a Pro Forma Basis in determining Consolidated EBITDA for any period, without duplication, Acquired EBITDA of any Person, business or other property acquired by the Borrowers or the HUD Sub-Facility Entities during such period (but not the Acquired EBITDA of any related Person or business to the extent not so acquired) in accordance with the terms of this Agreement, to the extent not subsequently sold, Transferred or otherwise disposed of by the Borrowers or the HUD Sub-Facility Entities during such period (each such Person or business acquired and not subsequently so Transferred, an “Acquired Entity or Business”), based on the actual Acquired EBITDA of such Acquired Entity or Business for such period (including the portion thereof occurring prior to such acquisition); (B) there shall be excluded on a Pro Forma Basis in determining Consolidated EBITDA for any period the Disposed EBITDA of any Person, property, business Transferred or otherwise disposed of, closed or classified as discontinued operations as classified under GAAP by the Borrowers or the HUD Sub-Facility Entities during such period (each such Person, property, business so sold or Transferred, a “Sold Entity or Business”), based on the actual Disposed EBITDA of such Sold Entity or Business for such period (including the portion thereof occurring prior to such sale, Transfer or disposition); and (C) there shall be excluded on a Pro Forma Basis in determining Consolidated EBITDA for any measurement period the Consolidated EBITDA of any newly constructed Facilities for the twelve (12) month period following receipt of a certificate of occupancy for such Facilities, in an aggregate amount not exceeding $5,000,000 in any four consecutive Fiscal Quarters.  For purposes of determining the Consolidated Fixed Charge Coverage Ratio, Consolidated Senior Leverage Ratio and the Consolidated Total Leverage Ratio as of and for the periods ended March 31, 2017, June 30, 2017, September 30, 2017 and December 31, 2107, Consolidated EBITDA for the Fiscal Quarters ended on such dates shall be deemed to be equal to $50,800,000, $56,600,000, $30,500,000 and $23,700,000, respectively (as such amounts may be adjusted in accordance with the immediately preceding sentences).

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Consolidated EBITDAR” means, for any measurement period, Consolidated EBITDA for such period plus, to the extent deducted in determining Consolidated EBITDA for such period, without duplication, Consolidated Rental Expense.

Consolidated Fixed Charge Coverage Ratio” means, with respect to any Person, for any measurement period, the ratio of (a) Consolidated EBITDA for the measurement period minus Maintenance Capital Expenditures for such period to (b) the Consolidated Fixed Charges for such period.

Consolidated Fixed Charges” means, with respect to any Person, for any measurement period, the sum, determined on a Consolidated Basis without duplication, of (a) Consolidated Interest Expense of such Person and its Subsidiaries earned and paid in cash for such period, (b) the principal amount of Consolidated Total Debt of such Person and its Subsidiaries having a scheduled due date during such period (other than the payment of principal pursuant to Section 2.8(c)), (c) federal and state income taxes paid in cash for such period (including, for avoidance of doubt, tax attributes realized during such period in connection with the Tax Receivable Agreement) and payments paid in cash pursuant to the Tax Receivable Agreement for such period, if any and (d) equity distributions and dividends made during such period (other than Tax Distributions made in accordance with Section 8.6(a)(x)).  For purposes of determining the Consolidated Fixed Charge Coverage Ratio as of and for the periods ended March 31, 2017, June 30, 2017, September 30, 2017 and December 31, 2017, Consolidated Fixed Charges for the Fiscal Quarters ended on such dates shall be deemed to be equal to $19,400,000, $22,200,000, $20,800,000 and $18,800,000, respectively.

Consolidated Interest Expense” means, with respect to any Person, for any measurement period, the sum, determined on a Consolidated Basis without duplication, of (a) the interest expense (including imputed interest expense in respect of Capital Lease Obligations (other than Real Property Financing Obligations)) of such Person and its Subsidiaries for such period, plus (b) any interest accrued during such period in respect of Indebtedness of such Person and its Subsidiaries that is required to be capitalized rather than included in Consolidated Interest Expense for such period in accordance with GAAP; provided that Consolidated Interest Expense for any period ending on any day prior to the first anniversary of the Closing Date shall be deemed equal to the product of (i) Consolidated Interest Expense computed in accordance with the requirements of this definition for the period from and including the Closing Date to and including such day by (ii) a fraction, the numerator of which is the number of days from and including the Closing Date to and including such day and the denominator of which is 365.

Consolidated Net Income” means, with respect to any Person, for any measurement period, the Net Income or loss of such Person and its Subsidiaries for such period determined on a Consolidated Basis; provided that there shall be excluded, without duplication, (a) the income of such Person and its Subsidiaries to the extent that the declaration or payment of dividends or similar distributions by such Person and its Subsidiaries of that income is not at the time permitted by operation of the terms of its charter or any agreement, instrument, judgment, decree, statute, rule or governmental regulation applicable to such Person and its Subsidiaries, (b) the income or loss of such Person and its Subsidiaries accrued prior to the date such Person becomes a Loan Party or is merged into or consolidated with any of the Loan Parties or the date that such Person’s assets are acquired by any of the Loan Parties, (c) any gains or losses attributable to sales of assets outside of the ordinary course of business, (d) earnings (or losses) resulting from any reappraisal, revaluation or write-up (or write-down) of assets (other than current assets), (e) unrealized gains and losses with respect to Hedge Agreements or other derivative instruments for such period, and (f) any gains or losses relating to discontinued operations; provided further that the Net Income of any Person in which any other Person (other than the Loan Parties or the HUD Sub-Facility Entities or any director or foreign national holding qualifying shares in accordance with applicable law) has a joint interest shall be included in Consolidated Net Income only to the extent of the percentage interest of such Person owned by the Loan Parties and the HUD Sub-Facility Entities.  In addition, to the extent not already

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included in Consolidated Net Income, notwithstanding anything to the contrary in the foregoing, Consolidated Net Income shall include (i) any expenses and charges that are reimbursed by indemnification or other reimbursement provisions in connection with any Investment or any Transfer permitted hereunder and (ii) to the extent covered by insurance and actually reimbursed, expenses with respect to liability or casualty events or business interruption.

Consolidated Rental Expense” means, with respect to any Person, for any measurement period, the total rental expense for operating leases and Real Property Financing Obligations of such Person and its Subsidiaries (regardless of the accounting treatment thereof), determined on a Consolidated Basis for such period and adjusted, for avoidance of doubt, to exclude the non-cash impact resulting from the straight-lining of rents; provided that Consolidated Rental Expense shall be reduced by all rental income.

Consolidated Senior Debt” means, with respect to any Person, as at any date, the aggregate principal amount of Indebtedness of such Person arising under (a) this Agreement, (b) the HUD Sub-Facility Credit Agreement, (c) the MidCap RE Credit Agreement and (d) the HUD RE Loan Documents, less the sum of (aa) unrestricted cash and Cash Equivalents as shown on the balance sheet on a Consolidated Basis of the Loan Parties (it being understood that cash and Cash Equivalents on deposit in an account in which the Administrative Agent or, subject to the Intercreditor Agreement, the MidCap RE Agent, or, subject to any applicable intercreditor agreement, a lender party to the HUD RE Loan Documents has a perfected Lien constitutes unrestricted cash for purposes hereof, notwithstanding the fact that another creditor may have a subordinate Lien in any such account) and (bb) cash and Cash Equivalents pledged to cash collateralize letters of credit issued under the CapOne Letter of Credit Facility.

Consolidated Senior Leverage Ratio” means, with respect to any Person, as of any date of determination, the ratio of Consolidated Senior Debt as of such date to Consolidated EBITDA of such Person for the four Fiscal Quarter period ending on such date calculated on a Pro Forma Basis.

Consolidated Total Assets” means, with respect to any Person, as at any date, the total amount of all assets of such Person and its Subsidiaries determined on a Consolidated Basis as of the last day of the period for which the most recent financial statements were delivered prior to such date of determination.

Consolidated Total Debt” means, with respect to any Person, as at any date, the aggregate principal amount of Indebtedness of such Person less (a) Indebtedness of the type described in clause (e) of the definition of such term to the extent related to Real Property Financing Obligations, (b) Indebtedness of a type described in clauses (d) and (f) of the definition thereof, (c) any letters of credit, banker acceptances or similar instruments to the extent undrawn, (d) unrestricted cash and Cash Equivalents as shown on the balance sheet on a Consolidated Basis of the Loan Parties (it being understood that cash and Cash Equivalents on deposit in an account in which the Administrative Agent, the Welltower Term Loan Agent or, subject to the Intercreditor Agreement, Skilled RE Lender or the MidCap RE Agent has a perfected Lien constitutes unrestricted cash for purposes hereof, notwithstanding the fact that another creditor may have a subordinate Lien in any such account) and (e) cash and Cash Equivalents pledged to cash collateralize letters of credit issued under the CapOne Letter of Credit Facility.

Consolidated Total Leverage Ratio” means, with respect to any Person, as of any date of determination, the ratio of Consolidated Total Debt as of such date to Consolidated EBITDA of such Person for the four Fiscal Quarter period ending on such date calculated on a Pro Forma Basis.

Constituent Documents” means, with respect to any Person, collectively and, in each case, together with any modification of any term thereof, (a) the articles of incorporation, certificate of incorporation, constitution or certificate of formation of such Person, (b) the bylaws, operating agreement

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or joint venture agreement of such Person, (c) any other constitutive, organizational or governing document of such Person, whether or not equivalent, and (d) any other document setting forth the manner of election or duties of the directors, officers or managing members of such Person or the designation, amount or relative rights, limitations and preferences of any Equity Interests of such Person.

Contractual Obligation” means, with respect to any Person, any provision of any Security issued by such Person or of any agreement, instrument or other undertaking (other than a Loan Document) to which such Person is a party or by which it or any of its Property is bound.

Control Agreement” means, with respect to any deposit account, any securities account, commodity account, securities entitlement or commodity contract, an agreement, in form and substance satisfactory to Administrative Agent, among Administrative Agent, the financial institution or other Person at which such account is maintained or with which such entitlement or contract is carried and the Loan Party maintaining such account, effective to grant “control” (as defined under the applicable UCC) over such account to Administrative Agent.

Controlled Deposit Account”  means each deposit account (including all funds on deposit therein) that is the subject of an effective Control Agreement and that is maintained by any Loan Party with a financial institution approved by Administrative Agent.

Controlled Investment Affiliate” means, as applied to any Person, any other Person that directly or indirectly is in control of, is controlled by, or is under common control with, such Person and that is organized by such Person (or any Person controlling such Person) primarily for the purpose of making equity or debt investments in Ultimate Parent or other portfolio companies.  For purposes of this definition, “control” of a Person means the power, directly or indirectly to direct or cause the direction of the management and policies of such Person, in either case whether by contract or otherwise.

Controlled Securities Account” means each securities account or commodity account (including all financial assets held therein and all certificates and instruments, if any, representing or evidencing such financial assets) that is the subject of an effective Control Agreement and that is maintained by any Loan Party with a securities intermediary or commodity intermediary approved by Administrative Agent.

Curable Period” has the meaning specified in Section 5.7(a).

Cure Amount” has the meaning specified in Section 5.7(a).

Cure Right” has the meaning specified in Section 5.7(a).

Customer Charge” means, for any measurement period, without duplication, the amount of any cash or non-cash charge or write-down (net of any subsequent adjustment taken as income) recognized by the Borrowers and/or their respective Subsidiaries, in respect of receivables owing by Fortis Management Group, Consulate Healthcare LLC and any applicable Affiliate thereof to the Borrowers and/or their respective Subsidiaries.

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

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Default” means any Event of Default and any event that, with the passing of time or the giving of notice or both, would become an Event of Default.

Defaulting Borrower” has the meaning specified in Section 2.19(b).

Defaulting Lender” means, subject to Section 2.22(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and LLC Parent in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent or any Lender any other amount required to be paid by it hereunder within two Business Days of the date when due, (b) has notified the Administrative Agent and LLC Parent in writing that it does not intend to comply with such Lender’s funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lenders’ obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative Agent or LLC Parent, to confirm in writing to the Administrative Agent and LLC Parent that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and LLC Parent), or (d) after the Closing Date, has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, or (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other federal or state regulatory authority acting in such a capacity; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in such 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 clauses (a) through (d) above shall be conclusive absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.22(b)) upon delivery of written notice of such determination to LLC Parent and each Lender.

Deferred Note Interest” has the meaning specified in Section 8.1(aa).

Delayed Draw Term Lender” means each means each Lender having a Delayed Draw Term Loan Commitment in excess of $0 (or, in the event the Delayed Draw Term Loan Facility shall have expired or been terminated at any time, each Lender at such time having Delayed Draw Term Loans in excess of $0).

Delayed Draw Term Loan” shall have the meaning set forth in Section 2.1(b) hereof.

Delayed Draw Term Loan Availability” means as of any date of determination, the lesser of (i) the aggregate Delayed Draw Term Loan Commitment of all Lenders and (ii) the Borrowing Base, in each case, less the Delayed Draw Term Loan Outstandings.

Delayed Draw Term Loan Commitment” shall mean, as to each Delayed Draw Term Lender, its obligation to make a Delayed Draw Term Loan to Borrowers pursuant to Section 2.1(c) in an

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aggregate Dollar amount not to exceed the amount set forth opposite beside such Lender’s name under the caption “Delayed Draw Term Loan Commitment”, as it may be (i) amended to reflect Assignments and (ii) reduced pursuant to this Agreement.  The aggregate amount of the Delayed Draw Term Loan Commitments on the Closing Date is $30,000,000.

Delayed Draw Term Loan Facility” means the Delayed Draw Term Loan Commitments and the provisions herein related to the Delayed Draw Term Loans.

Delayed Draw Term Loan Outstandings” means, at any time, the aggregate principal amount of the Delayed Draw Term Loans.

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

Disbursement Operating Account” has the meaning specified in Section 7.12(a)(i)(C).

Disbursement Operating Account Collecting Bank” has the meaning specified in Section 7.12(a)(i)(C).

Disclosure Documents” means, collectively, (a) all confidential information memoranda and related materials prepared in connection with the syndication of the Revolving Credit Facilities and approved by Borrower, which approval shall not be unreasonably withheld, conditioned or delayed, and (b) all other documents filed by any Loan Party with the SEC.

Disposed EBITDA” means, with respect to any Sold Entity or Business or property for any period, the amount for such period of Consolidated EBITDA of such Sold Entity or Business or property, all as determined on a consolidated basis for such Sold Entity or Business or property.

Disqualified Capital Stock” means any Equity Interest or Equity Equivalent that, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, (a) matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable (other than solely for Equity Interests or Equity Equivalents that do not qualify as “Disqualified Capital Stock”), pursuant to a sinking fund obligation or otherwise (except as the result of a Change of Control or asset sale so long as any rights of the holders thereof upon the occurrence of a Change of Control or asset sale event shall be subject to the prior repayment in full of the Loans and all Obligations that are accrued and payable and the termination of the Commitments), or is redeemable at the option of the holder thereof, in whole or in part (other than solely for Equity Interests or Equity Equivalents that do not qualify as “Disqualified Capital Stock”), or requires the payment of any cash dividend or any other scheduled payment constituting a return of capital, in each case at any time on or prior to the date that is 91 days after the Scheduled Termination Date, or (b) is convertible into or exchangeable (unless at the sole option of the issuer thereof) for (i) debt securities or (ii) any Equity Interest or Equity Equivalent referred to in clause (a) above, in each case at any time prior to the date that is 91 days after the Scheduled Termination Date; provided that if such Equity Interest or Equity Equivalent is issued to any plan for the benefit of employees of the Loan Parties or by any such plan to such employees, such Equity Interest or Equity Equivalent shall not constitute Disqualified Capital Stock solely because it may be required to be repurchased by the Loan Parties in order to satisfy applicable statutory or regulatory obligations; provided,  further, that any Equity Interest or Equity Equivalent held by any present or former officers, consultants, directors or employees (and their spouses, former spouses, heirs, estates and assigns) of the Loan Parties upon the death, disability, engaging in competitive activity or termination of employment of such officer, director, consultant or employee or pursuant to any equity subscription,

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shareholder, employment or other agreement shall not constitute Disqualified Capital Stock solely because it may be required to be repurchased by the Loan Parties.

Dollars” and the sign “$” each mean the lawful money of the United States of America.

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.

Electronic Transmission” means each document, instruction, authorization, file, information and any other communication transmitted, posted or otherwise made or communicated by e-mail or E-Fax, or otherwise to or from an E-System or other equivalent service.

Eligible Account” means an Account of any applicable Borrower generated in the ordinary course of such Borrower’s business from the sale of goods or rendering of Medical Services to a Patient, that is due in its entirety by an Account Debtor that is Medicaid, Medicare, TRICARE or an Approved Insurer under a Third-Party Payor Program or certain individuals and that Administrative Agent, in its reasonable credit judgment, deems to be an Eligible Account.  The net amount of Eligible Accounts at any time shall be (a) the face amount of such Eligible Accounts as originally billed minus (b) all cash collections and other proceeds of such Account received from or on behalf of the Account Debtor thereunder as of such date and any and all returns, rebates, discounts (which may, at Administrative Agent’s option, be calculated on shortest terms), credits, allowances and excise taxes of any nature at any time issued, owing, claimed by Account Debtors, granted, outstanding or payable in connection with such Accounts at such time.  Without limiting the generality of the foregoing, no Account shall be an Eligible Account if:

(i) the Account or any portion of the Account is payable by an individual beneficiary, recipient or subscriber individually and not directly to the applicable Borrower by an Account Debtor that is Medicaid, Medicare, TRICARE or an Approved Insurer under a Third-Party Payor Program; provided, however, with respect to (A) an Account Debtor that is an individual, so long as (1) the Account arises solely from the rendering of Medical Services, and (2) the invoice for such Account has been delivered to the Account Debtor (or the Person that is responsible for the payment of such Account on behalf of such Account Debtor), then Accounts in an aggregate amount not to exceed $15,000,000, in each case, shall not become ineligible solely because of this clause (i), and (B) an Account Debtor that is a UPL Hospital, so long as the Account arises under the UPL Documents for managed services in connection with the rendering of Medical Services, then Accounts in an amount not to exceed $20,000,000 in the aggregate for all UPL Hospitals shall not become ineligible solely because of this clause (i);

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(ii) the Account remains unpaid (A) with respect to Accounts for which Medicaid approval is being sought, but for which Medicaid has not finally approved coverage, more than 90 days past the claim or invoice date (but in no event more than 105 days after the applicable Medical Services have been rendered), (B) with respect to Accounts for which the Account Debtor is a UPL Hospital, the Account of which is not otherwise ineligible hereunder, more than 90 days past the claim or invoice date under the applicable UPL Documents (but in no event more than 120 days after the end of the month in which the applicable Medical Services have been rendered), (C) with respect to Accounts for which the Account Debtor is an individual the Account of which is not otherwise ineligible hereunder, more than 120 days past the claim or invoice date (but in no event more than 135 days after the applicable Medical Services have been rendered), and  (D) with respect to all other Accounts, more than 150 days past the claim or invoice date (but in no event more than 165 days after the applicable Medical Services have been rendered);

(iii) the Account is subject to any defense, set-off (in respect of a liquidated amount), counterclaim, deduction, discount, credit, chargeback, freight claim, allowance, right of recoupment, or adjustment of any kind but only to the extent thereof;

(iv) if the Account arises from the performance of Medical Services (either directly or under a UPL Program or similar program), the Medical Services have not actually been performed, the Medical Services were undertaken in violation of any law, or the Medical Services were performed at a Facility (A) where  outstanding Medicare or Medicaid survey deficiencies at Level G, H, I, J, K, L or worse  have been outstanding for a period of greater than six (6) months or have resulted in the imposition by Centers for Medicare & Medicaid Services or the applicable state survey agency of sanctions in the form of a program termination, temporary management, denial of payment for new admissions as a result of Medicare or Medicaid survey deficiencies, (B) where any Primary License related to such Facility has been and remains revoked, or (C) which has been, or is expected to be within 30 days of the date on which the relevant Borrowing Base Certificate is to be delivered, closed;

(v) the Account is subject to a Lien (other than Liens in favor of the Administrative Agent or Liens that have been expressly subordinated to the Liens of the Administrative Agent);

(vi) the applicable Borrowers know or should have known of the bankruptcy, receivership, reorganization, or insolvency of the Account Debtor;

(vii) the Account is evidenced by chattel paper or an instrument of any kind, or has been reduced to judgment;

(viii) the Account Debtor has its principal place of business or executive office outside the United States or the Account is payable in a currency other than U.S. dollars;

(ix) the Account Debtor is an employee, agent, Affiliate or Subsidiary of a Borrower (excluding the HUD Sub-Facility Entities during all times the HUD Sub-Facility Credit Agreement is in effect);

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(x) more than 50% of the aggregate balance of all Accounts owing from the Account Debtor obligated on the Account are outstanding more than 150 days past the invoice date;

(xi) 50% or more of the aggregate unpaid Accounts from any Account Debtor and its Affiliates are not deemed Eligible Accounts under this Agreement;

(xii) any covenant, representation or warranty contained in the Loan Documents with respect to such Account has been breached (it being understood that, for purposes of this definition, the words “to the best of Borrowers’ knowledge” shall be deemed excised);

(xiii) the Account is not paid directly to or collected directly or indirectly in the Concentration Account;

(xiv) the Account is not subject to a valid and perfected first priority Lien in favor of Administrative Agent for the benefit of the Secured Parties;

(xv) the applicable Borrower is not able to bring suit or otherwise enforce its remedies against the Account Debtor with respect to the Account through the judicial process in the Account Debtor’s jurisdiction due to failure of such Borrower to be qualified to conduct business in such jurisdiction, failure to file any notice of business of activities report or otherwise;

(xvi) Accounts for which an invoice has not been sent to the applicable Account Debtor in respect of such Account, in the form otherwise required by such Account Debtor; provided, however, (A) to the extent that no more than 21 days have elapsed since the first calendar day in the month immediately following the month in which the Medical Services giving rise to such Account were performed and (B) such Account would otherwise constitute an Eligible Account but for the requirements of this clause (xvi), such Account shall not be deemed ineligible;

(xvii) Accounts owned by a Person acquired in connection with a Permitted Acquisition or implementation of a UPL Program, until such time as customary diligence investigations (which may include a field examination with respect to such Person or Accounts) are completed to the reasonable satisfaction of Administrative Agent;

(xviii) The Account Debtor is a UPL Hospital and a default shall occurred and is continuing under any UPL Document to which such UPL Hospital is a party, whether such default shall have occurred as a result of actions or inactions by such UPL Hospital or by the UPL Borrower; or

(xix) the Account fails to meet such other reasonable specifications and requirements which may from time to time be established by Administrative Agent consistent with its reasonable credit judgment and consistent with its underwriting and general business practices following Administrative Agent’s analysis or audit; provided, that Administrative Agent shall provide notice to Borrowers of any such other specifications and requirements prior to implementation thereof, and such change shall not be effective until the date of delivery of the next Borrowing Base Certificate due after such notice.

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Environmental Claims” means any and all actions, suits, orders, decrees, demands, demand letters, claims, liens, notices of noncompliance, violation or potential responsibility or investigation (other than internal reports prepared by any of the Loan Parties (a) in the ordinary course of such Person’s business or (b) as required in connection with a financing transaction or an acquisition or Transfer of real estate) or proceedings pursuant to or in connection with any Environmental Law or any permit issued, or any approval given, under any such Environmental Law (hereinafter, “Claims”), including, without limitation, (i) any and all Claims by governmental or regulatory authorities for enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to any applicable Environmental Law, (ii) any and all Claims by any third-party seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief relating to the presence, release or threatened release of Hazardous Materials or arising from alleged injury or threat of injury to health or safety (to the extent relating to human exposure to Hazardous Materials) or the environment including, without limitation, ambient air, surface water, groundwater, land surface and subsurface strata and natural resources such as wetlands, and (iii) any and all Claims by any third-party regarding environmental liabilities or obligations assumed or assigned by contract or operation of law.

Environmental Indemnity” means that certain Second Amended and Restated Environmental Indemnity Agreement, dated as of the date hereof, as it may been or may be further supplemented, amended, restated, replaced or otherwise modified from time to time, pursuant to which Loan Parties indemnify Administrative Agent and Lenders for any Environmental Liability.

Environmental Laws” means each applicable federal, state, foreign or local statute, law, rule, regulation, ordinance, code and rule of common law now or hereafter in effect and in each case as amended, and any binding judicial or administrative interpretation thereof, including any binding judicial or administrative order, consent decree or judgment, relating to pollution, the protection of the environment, including, without limitation, ambient air, surface water, groundwater, land surface and subsurface strata and natural resources such as wetlands, or human health or safety (to the extent relating to human exposure to Hazardous Materials).

Environmental Liabilities” means all Liabilities (including costs of Remedial Actions, natural resource damages and costs and expenses of investigation and feasibility studies) that may be imposed on, incurred by or asserted against any Loan Party as a result of, or related to, any Environmental Claim and resulting from the ownership, lease, sublease or other operation or occupation of property by any Loan Party, whether on, prior or after the Closing Date.

Equity Equivalents” means all securities convertible into or exchangeable for Equity Interests or any other Equity Equivalent and all warrants, options or other rights to purchase, subscribe for or otherwise acquire any Equity Interests or any other Equity Equivalent, whether or not presently convertible, exchangeable or exercisable.

Equity Interests” means all shares of capital stock (whether denominated as common stock or preferred stock), equity interests, beneficial, partnership or membership interests, joint venture interests, participations or other ownership or profit interests in or equivalents (regardless of how designated) of or in a Person (other than an individual), whether voting or non-voting, but excluding Indebtedness convertible or exchangeable into Equity Interests prior to the conversion or exchange thereof.

ERISA” means the United States Employee Retirement Income Security Act of 1974, as amended from time to time.

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ERISA Affiliate” means, collectively, any Loan Party, and any Person under common control, or treated as a single employer, with any Loan Party, within the meaning of Section 414(b), (c), (m) or (o) of the Code.

ERISA Event” means any of the following:  (a) a reportable event described in Section 4043(b) of ERISA or Section 4043(c) with respect to a Title IV Plan, other than an event for which the notice requirement has been duly waived under the applicable regulations, (b) the withdrawal of any ERISA Affiliate from a Title IV Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA, (c) the complete or partial withdrawal of any ERISA Affiliate from any Multiemployer Plan, (d) with respect to any Multiemployer Plan, the filing of a notice of insolvency or termination (or treatment of a plan amendment as termination) under Section 4041A of ERISA, (e) the filing of a notice of intent to terminate a Title IV Plan (or treatment of a plan amendment as termination) under Section 4041 of ERISA, (f) the institution of proceedings to terminate a Title IV Plan or Multiemployer Plan by the PBGC, (g) the failure to make any required contribution to any Title IV Plan or Multiemployer Plan when due, (h) the imposition of a lien under Section 412 of the Code or Section 302 or 4068 of ERISA on any property (or rights to property, whether real or personal) of any ERISA Affiliate, (i) the failure of a Multiemployer Plan, Benefit Plan or any trust thereunder intended to qualify for tax exempt status under Section 401 or 501 of the Code or other Requirements of Law to qualify thereunder, (j) any other event or condition that might reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Title IV Plan or Multiemployer Plan or for the imposition of any liability upon any ERISA Affiliate under Title IV of ERISA other than for PBGC premiums due but not delinquent and (k) the occurrence of a Foreign Benefit Event.

E-Fax” means any system used to receive or transmit faxes electronically.

E-Signature” means the process of attaching to or logically associating with an Electronic Transmission an electronic symbol, encryption, digital signature or process (including the name or an abbreviation of the name of the party transmitting the Electronic Transmission) with the intent to sign, authenticate or accept such Electronic Transmission.

E-System” means any electronic system, including Intralinks® and ClearPar® and any other Internet or extranet-based site, whether such electronic system is owned, operated or hosted by Administrative Agent, any of its Related Persons or any other Person, providing for access to data protected by passcodes or other security system.

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.

Event of Default” has the meaning specified in Section 9.1.

Exchange Act” means the Securities Exchange Act of 1934, as amended.

Excluded Issuance” means a Qualified Equity Issuance (other than Qualified Equity Issuances utilized in connection with an exercise of the Loan Parties’ Cure Right under Section 5.7(a)); provided that the Net Cash Proceeds therefrom shall be reduced to the extent previously expended pursuant to Section 8.4(k) and/or Section 8.9(b).

Excluded Swap Obligations”  means any obligation to pay or perform under any Swap Transaction if, and to the extent that, all or a portion of the guarantee of any Guarantor of, or the grant by any Guarantor of a security interest to secure, such Swap Transaction (or any guarantee thereof) is or

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becomes illegal under the Commodity Exchange Act or rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of any Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the guaranty or the grant of such security interest becomes effective with respect to such Swap Transactions.  If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Transaction that is attributable to swaps for which such guaranty or security interest is or becomes illegal.

Excluded Taxes” has the meaning specified in Section 2.17(a).

Existing Letters of Credit” means the collective reference to the existing letters of credit identified on Schedule IV, including extensions and renewals thereof.

Facilities” means, collectively, each hospital, clinic, skilled nursing facility, assisted living facility, independent living facility or mental health facility (or state equivalent of such licensure categories) or other healthcare facility owned, leased or managed by the Loan Parties or any of their Subsidiaries, as listed on Schedule 4.16 hereto.

Facility Cash Account” means a deposit account of a Borrower opened to hold certain cash of a particular Facility, the daily balance of which shall not exceed $100,000 individually or $5,000,000 in the aggregate for all such accounts for all Facilities.

Facility Depository Banks” has the meaning specified in Section 7.12(a)(i)(A).

Facility Lockbox Accounts” has the meaning specified in Section 7.12(a)(i)(A).

Facility Lockbox Agreement” has the meaning specified in Section 7.12(a)(v)(B).

FATCA” means Sections 1471 through 1474 of the Code (effective as of the Closing Date) (or any amended or successor version that is substantially 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 period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates on overnight federal funds transactions with members of the United States Federal Reserve System arranged by federal funds brokers, as determined by Administrative Agent in its sole discretion.

Federal Reserve Board” means the Board of Governors of the United States Federal Reserve System and any successor thereto.

Fee Letter” means each of (a) the Fee Letter, dated as of the Closing Date, by and among the Administrative Agent and Borrowers; and (b) each other letter agreement executed from time to time, as each may be amended, restated, revised, supplemented, replaced or otherwise modified from time to time, with respect to certain fees to be paid from time to time to Administrative Agent and its Related Persons.

Financial Condition Covenants” means each covenant set forth in Article 5.

Financial Cure Covenant” has the meaning specified in Section 5.7(a).

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Financial Statement” means each financial statement delivered pursuant to Section 6.1.

Fiscal Quarter” means each three (3) fiscal month period ending on March 31, June 30, September 30 or December 31.

Fiscal Year” means each 12 month period ending on December 31.

Foreign Benefit Event” means with respect to any Foreign Pension Plan, (a) the failure of any such Foreign Pension Plan or any trust thereunder intended to qualify for tax exempt status under any Requirements of Law, (b) the existence of unfunded liabilities in excess of the amount permitted under any applicable law, (c) the failure to make the required contributions or payments under any applicable law on or before the due date for such contributions or payments, (d) the receipt of a notice by a Governmental Authority relating to its intention to terminate any such Foreign Pension Plan or to appoint a trustee or similar official to administer any such Foreign Pension Plan, or alleging the insolvency of any such Foreign Pension Plan, (e) the incurrence of any liability in excess of $1,000,000 by any Loan Party under applicable law on account of the complete or partial termination of such Foreign Pension Plan or the complete or partial withdrawal of any participating employer therein, or (f) the occurrence of any transaction that is prohibited under any applicable law and that could reasonably be expected to result in the incurrence of any liability by any Loan Party, or the imposition on any Loan Party of any fine, excise tax or penalty resulting from any noncompliance with any applicable law, in each case in excess of $1,000,000.

Foreign Pension Plan” means any pension plan maintained outside the jurisdiction of the United States that under applicable law is required to be funded through a trust or other funding vehicle other than a trust or funding vehicle maintained exclusively by a Governmental Authority to which any Loan Party incurs or otherwise has any obligation or liability, contingent or otherwise.

GAAP” means generally accepted accounting principles in the United States of America, as in effect from time to time, set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants, in the statements and pronouncements of the Financial Accounting Standards Board and in such other statements by such other entity as may be in general use by significant segments of the accounting profession that are applicable to the circumstances as of the date of determination.  Subject to Section 1.3, all references to “GAAP” shall be to GAAP applied consistently with the principles used in the preparation of the Financial Statements.

Genesis Holdings” has the meaning specified in the preamble to this Agreement.

Genesis Subsidiary” means Genesis Holdings together with each of its direct or indirect Subsidiaries that is a Borrower.

GHLLC” means Genesis HealthCare LLC, a Delaware limited liability company.

Government Receivables Deposit Account” means any deposit account into which payments from Medicaid, Medicare, TRICARE or other state or federal healthcare payor programs are deposited, or in which funds are deposited to provide credit support, ACH support or other reserves for Borrowers, which accounts shall include all accounts listed on Schedule 7.12(b) (as such schedule may be updated from time to time by Borrowers as part of the Compliance Certificate delivered pursuant to Section 6.2(d)).

Governmental Authority” means any nation or government, any state, province or other political subdivision thereof and any governmental entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government and, as to any Lender, any securities

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exchange and any self-regulatory organization (including the National Association of Insurance Commissioners).

 “Guarantee Obligation” as to any Person (the “guaranteeing person”), any obligation of the guaranteeing person guaranteeing or by which such Person becomes contingently liable for any Indebtedness, net worth, working capital earnings, leases, dividends or other distributions upon the stock or equity interests (other than Real Property Financing Obligations) (the “primary obligations”) of any other third Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, any obligation of the guaranteeing person, whether or not contingent, (i) to purchase any such primary obligation or any Property constituting direct or indirect security therefor, (ii) to advance or supply funds (1) for the purchase or payment of any such primary obligation or (2) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase Property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the owner of any such primary obligation against loss in respect thereof; provided,  however, that the term Guarantee Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any acquisition or Transfer of assets or any Investment permitted under this Agreement.  The amount of any Guarantee Obligation of any guaranteeing Person shall be deemed to be such guaranteeing Person’s maximum reasonably anticipated liability in respect thereof as determined by Borrowers in good faith.

Guarantors” has the meaning specified in the preamble to this Agreement.

Hazardous Material” means (a) any petroleum or petroleum products, radioactive materials, asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls, radon gas, mold, toxic mold, lead and medical waste; (b) any chemicals, wastes, materials or substances defined as or included in the definition of “hazardous substances”, “hazardous waste”, “hazardous materials”, “extremely hazardous waste”, “restricted hazardous waste”, “toxic substances”, “toxic pollutants”, “contaminants”, or “pollutants”, or words of similar import, under any applicable Environmental Law; and (c) any other chemical, waste, material or substance which is prohibited, limited or regulated by or with respect to which liability is imposed under any Environmental Law.

Healthcare Laws” means all federal, state, county, municipal and other governmental statutes, laws, rules, orders, regulations, ordinances, judgments, decrees and injunctions or agreements, in each case, pertaining to  or concerned with the establishment, construction, ownership, operation, use or occupancy of a Facility or any part thereof and all material Permits and Primary Licenses, including those relating to the quality and adequacy of care, equipment, personnel, operating policies, additions to facilities and services, medical care, distribution of pharmaceuticals, rate setting, kickbacks, fee splitting, patient healthcare and/or patient healthcare information, including the Health Insurance Portability and Accountability Act of 1996, as amended, and the rules and regulations promulgated thereunder, and as amended by the Health Information Technology for Economic and Clinical Health Act provisions of the American Recovery and Reinvestment Act of 2009, and the rules and regulations promulgated thereunder (collectively “HIPAA”).

Hedge Agreements” means all Interest Rate Contract, foreign exchange, swap, option or forward contract, spot, cap, floor or collar transaction, any other derivative instrument and any other similar speculative transaction and any other similar agreement or arrangement designed to alter the risks of any Person arising from fluctuations in any underlying variable.

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Highest Lawful Rate” means the maximum lawful interest rate, if any, that at any time or from time to time may be contracted for, charged, or received under the laws applicable to any Lender that are presently in effect or, to the extent allowed by law, under such applicable laws that may hereafter be in effect and that allow a higher maximum nonusurious interest rate than applicable laws now allow.

HIPAA” has the meaning specified in the definition of “Healthcare Laws”.

Holdings” means GEN Operations II, LLC, a Delaware limited liability company.

HUD” means the U.S. Department of Housing and Urban Development.

HUD Guarantor” has the meaning specified in Section 8.1(k).

HUD RE Entities” means each of the subsidiaries of Ultimate Parent from time to time party to the HUD RE Loan Documents.

HUD RE Loan Documents” means one or more regulatory agreements and each note, mortgage and security agreement related thereto, by and among, in each case, the HUD RE Entities party thereto, and the HUD-approved lenders party thereto, as applicable.

HUD Sub-Facility” has the meaning specified in Section 2.21.

HUD Sub-Facility Credit Agreement” means that certain Second Amended and Restated Credit Agreement, dated as of March 31, 2016, by and among the HUD Sub-Facility Entities, as borrowers, GHLLC and GHC Holdings LLC, each as a guarantor, certain other Persons party thereto as guarantors, MCF, as administrative agent, and the lenders party thereto, as the same may be amended, restated, replaced or otherwise modified from time to time.

HUD Sub-Facility Entities” means each of the entities listed on Annex I-A and Annex I-B attached to the HUD Sub-Facility Credit Agreement and each other Person, if any, from time to time becoming a party to the HUD Sub-Facility Credit Agreement as a borrower.

Indebtedness” of any Person means at any date, without duplication, any of the following, whether or not matured:  (a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase price of Property or services (other than (i) trade payables, accrued expenses, current accounts and similar obligations incurred in the ordinary course of such Person’s business), (ii) deferred compensation accrued in the ordinary course of business and (iii) earn-outs and other contingent payments in respect of acquisitions except as and to the extent that the liability on account of any such earn-out or contingent payment appears in the liabilities section of the balance sheet of such Person in accordance with GAAP), (c) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (d) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to Property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such Property, in which case only the lesser of the amount of such obligation and the fair market value of such Property shall constitute Indebtedness), (e) all Capital Lease Obligations of such Person, (f) all obligations of such Person, contingent or otherwise, as an account party or applicant under acceptance, letter of credit or similar facilities, (g) all obligations of such Person in respect of Disqualified Capital Stock valued at, in the case of redeemable preferred Equity Interests, the greater of the voluntary liquidation preference and the involuntary liquidation preference of such Equity Interests plus accrued and unpaid dividends, (h) all payments that would be required to be made in respect of any Hedge Agreement with a counterparty other than the Administrative Agent in the event of a termination (including an early

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termination) on the date of determination and (i) all Guarantee Obligations of such Person in respect of obligations of the kind referred to in clauses (a) through (h) above.

Indemnified Matter” has the meaning specified in Section 11.4(a).

Indemnitee” has the meaning specified in Section 11.4(a).

Insurance Captives” means Liberty Health Corporation, Ltd., a Bermuda company, Fountain View Reinsurance, Ltd., a Cayman Islands company, or any other insurance captive or other self-insurance program established by a Loan Party.

Insurer” means a Person that insures a Patient against certain of the costs incurred in the receipt by such Patient of Medical Services, or that has an agreement with any Loan Party to compensate such Borrower for providing such goods or services to a Patient, including but not limited to Medicaid,  Medicare and TRICARE.

Intellectual Property” means the collective reference to all rights, priorities and privileges relating to intellectual property, whether arising under United States, multinational or foreign laws or otherwise, including, without limitation, copyrights and copyright applications, domain names, patents and patent applications, trademarks and trademark applications, trade names, rights in technology, trade secrets, know-how and processes.

Intercreditor Agreement” means (a) prior to the MidCap RE Closing Date, the Third Amended and Restated Intercreditor Agreement, dated as of December 22, 2016, by and among the Administrative Agent, the Welltower Term Loan Agent and Skilled RE Lender (in its capacity as a lender under each Skilled RE Credit Agreement) and acknowledged by the Borrowers and the other Loan Parties, and along with any joinders made a part thereof from time to time (or any amendment reasonably acceptable to the Administrative Agent and the Borrowers) and (b) from and after the MidCap RE Closing Date, the Fourth Amended and Restated Intercreditor Agreement, dated as of the MidCap RE Closing Date, by and among the Administrative Agent, the Welltower Term Loan Agent, Skilled RE Lender (in its capacity as a lender under each Skilled RE Credit Agreement) and MidCap RE Agent (in its capacity as administrative agent under each MidCap RE Credit Agreement) and acknowledged by the Borrowers and the other Loan Parties, and along with any joinders made a part thereof from time to time (or any amendment reasonably acceptable to the Administrative Agent and the Borrowers).

Interest Period” means any period commencing on the first day of a calendar month and ending three (3) months thereafter.

Interest Rate Contracts” means all interest rate swap agreements, interest rate cap agreements, interest rate collar agreements and interest rate insurance.

Investment” has the meaning specified in Section 8.4.

IRS” means the Internal Revenue Service of the United States and any successor thereto.

Issue” means, with respect to any Letter of Credit, to issue, extend the expiration date of, renew (including by failure to object to any automatic renewal on the last day such objection is permitted), increase the face amount of, or reduce or eliminate any scheduled decrease in the face amount of, such Letter of Credit, or to cause any Person to do any of the foregoing.  The terms “Issued” and “Issuance” have correlative meanings.

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L/C Cash Collateral Account” means any Cash Collateral Account (a) specifically designated as such by Borrowers in a notice to Administrative Agent and (b) from and after the effectiveness of such notice, not containing any funds other than those required under the Loan Documents to be placed therein.

L/C Issuer” means any Person that, after the Closing Date, becomes an L/C Issuer with the approval of, and pursuant to an agreement with and in form and substance satisfactory to, Administrative Agent and LLC Parent on behalf of the Borrowers, in each case in its capacity as L/C Issuers hereunder and together with their successors.

L/C Obligations” means, for any Letter of Credit at any time, the sum of (a) the L/C Reimbursement Obligations at such time for such Letter of Credit and (b) the aggregate maximum undrawn face amount of such Letter of Credit outstanding at such time.

L/C Reimbursement Agreement” has the meaning specified in Section 2.4(a)(iii).

L/C Reimbursement Date” has the meaning specified in Section 2.4(e).

L/C Reimbursement Obligation” means, for any Letter of Credit, the obligation of Borrowers to the L/C Issuer thereof, as and when matured, to pay all amounts drawn under such Letter of Credit.

L/C Request” has the meaning specified in Section 2.4(b).

L/C Sublimit” means $0 as of the Closing Date and thereafter, the aggregate amount agreed by any L/C Issuer and Administrative Agent from time to time in accordance with Section 2.4(a).

Lease Consent and Amendment Agreement” means each of the Welltower Lease Amendment Agreement, Omega Lease Amendment Agreement and Sabra Lease Amendment Agreement.

Leases” means all leases and subleases or any similar document affecting the use, enjoyment or occupancy of the real property, including resident care agreements, UPL Documents and service agreements that include an occupancy agreement, whether now existing or hereafter arising.

Lender” means, collectively, each Revolving Lender, Swingline Lender, Delayed Draw Term Lender and any other financial institution or other Person that (a) is listed on the signature pages hereof as a “Lender”, or (b) from time to time becomes a party hereto by execution of an Assignment, in each case together with its successors.

Letter of Credit” means any letter of credit Issued pursuant to Section 2.4.

Letter of Credit Obligations” means all outstanding obligations incurred by the Administrative Agent and the Lenders at the request of the Borrowers or LLC Parent, whether direct or indirect, contingent or otherwise, due or not due, in connection with the Issuance of Letters of Credit by L/C Issuers or the purchase of a participation as set forth in Section 2.4 with respect to any Letter of Credit.  The amount of such Letter of Credit Obligations shall equal the maximum amount that may be payable by the Administrative Agent and the Lenders thereupon or pursuant thereto.

LGO Intercreditor Agreement” means that certain Intercreditor Agreement, dated as of November 1, 2016, by and among the LGO Landlords party thereto, the Administrative Agent (as successor-by-assignment to Healthcare Financial Solutions, LLC) and the Welltower Term Loan Agent and

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acknowledged by certain Borrowers party thereto as tenants, as it may be amended, restated, replaced or otherwise modified from time to time.

LGO Landlords” means LG-OHI Seaford and certain of its affiliates as the landlords under the LGO Lease.

LGO Lease” means that certain Master Lease, dated as of November 1, 2016, among LG-OHI Seaford LLC and certain affiliates thereof, as landlords, and Genesis LGO Operations LLC as tenant, as it may be amended, restated, replaced or otherwise modified from time to time in accordance with the terms of the LGO Intercreditor Agreement and this Agreement.

Liabilities” means all claims, actions, suits, judgments, damages, losses, liability, obligations, responsibilities, fines, penalties, sanctions, costs, fees, taxes, commissions, charges, disbursements and expenses, in each case of any kind or nature (including interest accrued thereon or as a result thereto and fees, charges and disbursements of financial, legal and other advisors and consultants), whether joint or several, whether or not indirect, contingent, consequential, actual, punitive, treble or otherwise.

LIBOR Rate” means, for each Loan, a per annum rate of interest equal to the greater of (a) (i) with respect to the Closing Date Term Loan and Revolving Loans, 0.50% and (ii) with respect to Delayed Draw Term Loans, 1.00%  and (b) the rate determined by Administrative Agent (rounded upwards, if necessary, to the next 1/100%) by dividing (i) the Base LIBOR Rate for the Interest Period, by (ii) the sum of one minus the daily average during such Interest Period of the aggregate maximum Reserve Requirement (expressed as a decimal) then imposed under Regulation D of the Board of Governors of the Federal Reserve System (or any successor thereto) for “Eurocurrency Liabilities” (as defined therein).

LIBOR Rate Loan” means any Loan that bears interest based on the LIBOR Rate.

Lien” means any mortgage, pledge, hypothecation, collateral assignment, encumbrance, lien (statutory or other), charge or other security interest or any other security agreement of any kind or nature whatsoever (including any conditional sale or other title retention agreement and any capital lease having substantially the same economic effect as any of the foregoing).

Liquidity”  means, with respect to any Person, the sum of (a) unrestricted cash and Cash Equivalents held in a deposit account that is subject to a Control Agreement in favor of the Administrative Agent, plus (b) Borrowing Availability, plus (c) Delayed Draw Term Loan Availability, plus (d) any other sources of liquid capital agreed in writing by the Required Lenders and Borrowers.

LLC Parent” has the meaning specified in the recitals to this Agreement.

Loan Documents” means, collectively, this Agreement, any Notes, the Security Documents (including the Intercreditor Agreement, the Material Master Lease Intercreditor Agreements, and the Control Agreements), the L/C Reimbursement Agreements, each Fee Letter, the Secured Hedge Agreements and, when executed, each document executed by a Loan Party and delivered to Administrative Agent, any Lender or any L/C Issuer in connection with or pursuant to any of the foregoing or the Obligations, including Cash Management Documents, together with any modification of any term, or any waiver with respect to, any of the foregoing; provided,  however, that the Loan Documents shall not include any Environmental Indemnity.

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Loan Parties” means, collectively, Borrowers and Guarantors, including the New Loan Parties.  The relationships among the Loan Parties are shown on the organizational chart attached hereto as Annex II.

Loan Parties’ Accountants” means KPMG, LLP or other nationally-recognized independent registered certified public accountants acceptable to Administrative Agent.

Loans” means the Term Loans and the Revolving Loans, or any combination of the foregoing, as the context may require.

Maintenance Capital Expenditures” means, for each annual period, an aggregate amount equal to $800 for each weighted average licensed bed of the Loan Parties during such period.

Majority Controlled Affiliate” means, with respect to any Person, each officer, director, general partner or joint-venturer of such Person and any other Person that directly or indirectly controls, is controlled by, or is under common control with, such Person; provided,  however, that no Secured Party shall be a Majority Controlled Affiliate of the Borrowers.  For purpose of this definition, “control” means the possession of either (a) the power to vote, or the beneficial ownership of, 51% or more of the Voting Stock of such Person or (b) the power to direct or cause the direction of the management and policies of such Person, whether by contract or otherwise.

Master Lease Intercreditor Agreements” means the collective reference to the Welltower Intercreditor Agreement, the Sabra Intercreditor Agreement and the Omega Intercreditor Agreement.

Master Leases” means the collective reference to the Welltower Lease, the Sabra Lease and the Omega Lease, in each case as such Leases are amended, supplemented or otherwise modified from time to time in accordance with the terms of the applicable Master Lease Intercreditor Agreement and this Agreement.

Material Adverse Effect” means a material adverse effect on (a) the business, operations property or financial condition of the Loan Parties, taken as a whole, or (b) the validity or enforceability of the Loan Documents or the material rights and remedies of the Administrative Agent and the Lenders thereunder, in each case, taken as a whole.

Material Borrower” means at any date of determination, each of Parent Companies, SHG Partnership, LLC, Genesis Partnership LLC, GHLLC, Skilled Holdings, Genesis Holdings and any other Borrower that would account for more than 5%, individually, or 7.5%, with respect to any one or more Borrowers in the aggregate, of the Consolidated Total Assets or gross revenue (as shown on the most recent financial statements of Ultimate Parent delivered pursuant to Section 6.1(a),  6.1(b) or 6.1(c), as applicable) of the Borrowers on a Consolidated Basis for such period, determined in accordance with GAAP.

Material Indebtedness” means Indebtedness (other than the Loans and Real Property Financing Obligations), or obligations in respect of one or more Hedge Agreements, of any one or more of the Loan Parties in an aggregate principal amount exceeding $30,000,000.  For purposes of determining Material Indebtedness for all Sections, the “principal amount” of the obligations of any of the Loan Parties in respect of any Hedge Agreement at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that any of the Loan Parties would be required to pay if such Hedge Agreement were terminated at such time.

Material Master Lease” means each Master Lease and each other facility master lease agreement entered into by the Loan Parties after the Original Closing Date if such facility master lease

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agreement, individually or in the aggregate when taken together with each other facility master lease from the same landlord or an Affiliate of the landlord, represents greater than 5% of the licensed beds of the Loan Parties, taken as a whole, in each case, as amended, supplemented or otherwise modified from time to time in accordance with the terms of the applicable Material Master Lease Intercreditor Agreement and this Agreement.

Material Master Lease Intercreditor Agreement” means the collective reference to each of the Master Lease Intercreditor Agreements and any other intercreditor or similar agreement entered into pursuant to Section 7.16.

MCF” has the meaning specified in the preamble to this Agreement.

Medicaid” means (a) the United States of America acting under Title XIX of the Social Security Act, (b) any state or the District of Columbia acting pursuant to a health plan adopted pursuant to Title XIX of the Social Security Act, or (c) any agent, carrier, administrator or intermediary for any of the foregoing.

Medical Services” means medical and health care services, performed or provided by any Loan Party to a Patient, which services include, general medical and health care services, physician services, nurse and therapist services, dental services, hospital services, skilled nursing facility services, assisted living facility services, independent senior housing services, Alzheimer’s services, comprehensive inpatient and outpatient rehabilitation services, home health care services, hospice services, residential and outpatient behavioral healthcare services, and medical or health care equipment provided for a necessary or specifically requested valid and proper medical or health purpose and any other service approved by Administrative Agent in its sole discretion.

Medicare” means (a) the United States of America acting under the Medicare program established pursuant to Title XVIII of the Social Security Act, or (b) any agent, carrier, administrator or intermediary for any of the foregoing.

MidCap RE Agent” means MidCap Financial Trust and/or any of its Affiliates, in its capacity as administrative agent under each MidCap RE Credit Agreement together with its successors and assigns.

MidCap RE Borrowers” means, collectively, the subsidiaries of Skilled Holdings set forth in Schedule III that will become borrowers under the MidCap RE Credit Agreement on the MidCap RE Closing Date.

MidCap RE Closing Date” means the date after the Closing Date on which the MidCap RE Credit Facility closes.

MidCap RE Credit Agreement” means, collectively, the MidCap RE Credit Agreement (A-1) and the MidCap RE Credit Agreement (A-2).

MidCap RE Credit Agreement (A-1)” means the Credit and Security Agreement (A-1), dated as of the MidCap RE Closing Date between the MidCap RE Borrowers from time to time party thereto, MidCap RE Agent, and certain financial institutions from time to time party thereto as lenders, as it may be amended, restated, replaced or otherwise modified from time to time in accordance with the terms of this Agreement and the Intercreditor Agreement.

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MidCap RE Credit Agreement (A-2)” means the Credit and Security Agreement (A-2), dated as of the MidCap RE Closing Date between the MidCap RE Borrowers from time to time party thereto, MidCap RE Agent, and certain financial institutions from time to time party thereto as lenders, as it may be amended, restated, replaced or otherwise modified from time to time in accordance with the terms of this Agreement and the Intercreditor Agreement.

MidCap RE Credit Facility” means, collectively, the term loan credit facilities incurred pursuant to the MidCap RE Loan Documents.

MidCap RE Loan Documents” means, collectively, the Financing Documents (as defined in each MidCap RE Credit Agreement).

MidCap RE Priority Collateral” means the MidCap RE Priority Collateral (as defined in the Intercreditor Agreement); provided that, until the Midcap RE Closing Date, the collateral of the MidCap RE Borrowers shall be Skilled RE Priority Collateral to the extent such MidCap RE Borrower is a Skilled RE Borrower on the Closing Date.

Moody’s” means Moody’s Investors Service, Inc. or any successor to the rating agency business thereof.

Mortgage” means any mortgage, deed of trust, hypothec or other similar document made by any Loan Party in favor of, or for the benefit of, the Administrative Agent for the benefit of the Secured Parties, in form and substance reasonably satisfactory to the Administrative Agent and the Borrowers (taking into account the law of the jurisdiction in which such mortgage, deed of trust, hypothec or similar document is to be recorded).

Multiemployer Plan” means a pension plan that is a “multiemployer plan” (as defined in Section 4001(a)(3) of ERISA) subject to Title IV of ERISA to which any ERISA Affiliate incurs or otherwise has any obligation or liability, contingent or otherwise.

Net Cash Proceeds” (a) in connection with any Transfer or any Property Loss Event, the proceeds thereof in the form of cash and Cash Equivalents (including any such proceeds received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise, but only as and when received) of such Transfer or Property Loss Event received by any Loan Party, net of broker’s fees and commissions, attorneys’ fees, accountants’ fees, investment banking fees, consulting fees, amounts (including premiums or penalties, if any) required to be applied to the repayment of Indebtedness secured by a Lien expressly permitted hereunder on any asset which is the subject of such Transfer or Property Loss Event (other than any Lien pursuant to a Security Document) and other reasonable fees and expenses (including legal fees and expenses) actually incurred by any Loan Party in connection therewith and net of Taxes paid or reasonably estimated to be payable by such Loan Party as a result thereof (after taking into account any available tax credits or deductions and any tax sharing arrangements) and any escrow or reserve for any adjustment in respect of the sale price of such asset or assets and indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of the applicable Transfer undertaken by a Loan Party or other liabilities in connection with such Transfer (provided that upon release of any such escrow or reserve, the amount released shall be considered Net Cash Proceeds) and (b) in connection with any (i) Qualified Equity Issuance or (ii) issuance or sale of debt securities or instruments or the incurrence of Indebtedness, in each case, the cash proceeds received from such issuance or incurrence, net of transaction costs, attorneys’ fees, investment banking fees, accountants’ fees, consulting fees, underwriting discounts and commissions, placement fees and other reasonable fees and expenses (including legal fees and expenses) actually incurred in connection therewith.

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Net Income” has the meaning under and shall be determined in accordance with GAAP.

New Loan Parties” certain affiliates of GHLLC listed on Schedule V attached hereto, which are joining this Agreement and certain other Loan Documents as of the Closing Date.

Non-Borrower Subsidiaries” means (a) each Subsidiary of Ultimate Parent that (i) is not a Loan Party and (ii) is an Unrestricted Subsidiary (as such term is defined in the Welltower Term Loan Agreement).  Each Non-Borrower Subsidiary is set forth on Schedule 7.10, which schedule may be updated by written notice to the Administrative Agent; provided that the Borrowers shall only be permitted to (i) designate a Non-Borrower Subsidiary as a Borrower pursuant to Section 7.10 and (ii) designate a Subsidiary as a Non-Borrower Subsidiary so long as (aa) immediately before and after such designation, (1) no Event of Default shall have occurred and be continuing and (2) the Loan Parties shall be in compliance with each Financial Condition Covenant calculated on a Pro Forma Basis, (bb) no Subsidiary may be designated as a Non-Borrower Subsidiary if, after such designation, it would be a Borrower for the purpose of any other Indebtedness of any Loan Party, (cc) the designation of any Subsidiary as a Non-Borrower Subsidiary shall constitute an Investment by the Borrowers therein at the date of designation in an amount equal to the fair market value as determined by the Borrowers in good faith of the Borrowers’ and/or their Subsidiaries’ (as applicable) Investment therein, and (dd) the Borrowers shall have delivered to the Administrative Agent (1) a Borrowing Base Certificate prepared on a Pro Forma Basis as of the date of the re-designation of such Subsidiary giving effect thereto, which Borrowing Base Certificate demonstrates that, after giving effect to any prepayments of the Revolving Loans made at the time of any such re-designation, the Borrowing Availability is greater than $25,000,000 and (2) an officer’s certificate executed by a Responsible Officer of Ultimate Parent, certifying compliance with the requirements of preceding clauses (aa) through (dd), and (b) any Subsidiary of a Non-Borrower Subsidiary.

Non-Excluded Taxes” has the meaning specified in Section 2.17(a).

Non-U.S. Lender Party” has the meaning specified in Section 2.17(d).

Note” means a promissory note of Borrower, in substantially the form of Exhibit B, payable to a Lender and its assigns in a maximum principal amount equal to the amount of such Lender’s Revolving Credit Commitment, Delayed Draw Term Loan Commitment or Closing Date Term Loan Commitment, as applicable.

Notice of Borrowing” has the meaning specified in Section 2.2(a).

Notice of Intent to Cure” has the meaning specified in Section 5.7(b).

Obligations” means, with respect to any Loan Party, all amounts, obligations, liabilities, covenants and duties of every type and description owing by such Loan Party to Administrative Agent, any Lender, any L/C Issuer, any other Indemnitee, any participant, any SPV or any Secured Hedging Counterparty, other than any Environmental Indemnity and Excluded Swap Obligations, arising out of, under, or in connection with, any Loan Document, whether direct or indirect (regardless of whether acquired by assignment), absolute or contingent, due or to become due, whether liquidated or not, now existing or hereafter arising and however acquired, and whether or not evidenced by any instrument or for the payment of money, including, without duplication, (a) if such Loan Party is a Borrower, all Loans and L/C Obligations, (b) all interest, whether or not accruing after the filing of any petition in bankruptcy or after the commencement of any insolvency, reorganization or similar proceeding, and whether or not a claim for post-filing or post-petition interest is allowed in any such proceeding, (c) all obligations under Secured Hedge Agreements, (d) all Cash Management Obligations, and (e) all other fees, expenses (including fees, charges and disbursement of counsel), interest, commissions, charges, costs, disbursements,

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indemnities and reimbursement of amounts paid and other sums chargeable to such Loan Party under any Loan Document (including those payable to L/C Issuers as described in Section 2.11).

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

Omega Intercreditor Agreement” means that certain Amended and Restated Intercreditor Agreement, dated as of July 29, 2016, by and among the Administrative Agent (as successor-by-assignment to Healthcare Financial Solutions, LLC), the Welltower Term Loan Agent, and Omega Landlord, and acknowledged by certain Borrowers signatory thereto, as it may be amended, restated, replaced or otherwise modified from time to time.

Omega Landlord” means, collectively, Delta Investors I, LLC, a Maryland limited liability company, Delta Investors II, LLC, a Maryland limited liability company, OHI Asset, LLC, a Delaware limited liability company, and certain of their affiliates, party thereto as “Lessors”.

Omega Lease” means the Second Consolidated Amended and Restated Master Lease Agreement, dated January 30, 2015, by and among Omega Landlord and certain Borrowers party thereto as “Lessees”, as it may be amended, restated, replaced or otherwise modified from time to time in accordance with the terms of the Omega Intercreditor Agreement and this Agreement.

Omega Lease Amendment Agreement” means the Ninth Amendment to the Omega Lease, dated as of the Closing Date, by and among Omega Landlord and certain Borrowers party thereto as “Lessees”.

Original Closing Date” means February 2, 2015.

Original Credit Agreement” has the meaning specified in the Recitals hereto.

Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document.

Overpaying Borrower” has the meaning specified in Section 2.19(a).

Parent” means GEN Operations I, LLC, a Delaware limited liability company.

Parent Companies” means Ultimate Parent, LLC Parent, Parent, Holdings and Sun Borrower.

Patient” means any Person receiving Medical Services from any Loan Party and all Persons legally liable to pay a Loan Party for such Medical Services other than Insurers.

Patriot Act” has the meaning specified in Section 4.18(a).

Payment Notification” means a written notification substantially in the form of Exhibit F hereto.

PBGC” means the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA (or any successor).

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Permit” means, with respect to any Person, any permit, approval, authorization, license, registration, certificate (including certificates of occupancy), concession, grant, franchise, variance or permission from any Governmental Authority, in each case whether or not having the force of law and applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

Permitted Acquisition” has the meaning specified in Section 8.4(g).

Permitted Asset Sales” means the sale of real property securing any Real Property Financing Obligations and the related transfer of operations and/or management of such related Facilities by Borrowers; provided that if a Permitted Asset Sale involves real property securing the MidCap RE Credit Facility, such Transfer shall be permitted under the MidCap RE Credit Facility.

Permitted Investor” means, collectively, (i) any Person that is a member of LLC Parent as of the Closing Date to the extent such Person, directly or indirectly, owns or controls 10% or more of LLC Parent as of the Closing Date and to the extent such Person has satisfied the requirements regarding OFAC, Anti-Terrorism Laws, SEC, Healthcare Laws, and other similar regulations, (ii) GEN Management LLC or GEN Management Investors, LLC, and to the extent such entity has satisfied the requirements regarding OFAC, Anti-Terrorism Laws, SEC, Healthcare Laws, and other similar regulations, or (iii) any successor of the foregoing pursuant to a Permitted Investor Transfer (which successors, to the extent such successors will, directly or indirectly, own or control 10% or more of any Loan Party, must satisfy requirements regarding OFAC, Anti-Terrorism Laws, SEC, Healthcare Laws, and other similar regulations).

Permitted Investor Transfer” means one or more of the following, and, in the case of clauses (ii) and (iii) below, with the prior consent of Administrative Agent, which consent shall not be unreasonably withheld, conditioned or delayed (provided that Borrowers provide timely information reasonably requested by Administrative Agent with respect to such proposed transferee which approval shall consider criteria including, but not limited to, Administrative Agent’s standards with respect to (x) previous relationships between the Administrative Agent, Lenders and the proposed transferee and its principals, (y) the reputation for integrity, honesty and veracity of the proposed transferee and its principals, owners, officers and directors, and (z) OFAC, Anti-Terrorism Laws, SEC, Healthcare Laws and regulations, and other similar regulations and activities):

(i) any Transfer by a Permitted Investor to another Permitted Investor;

(ii) any Transfer of a direct or indirect interest in Ultimate Parent by a Permitted Investor to a family trust for estate planning purposes; provided that such Permitted Investor does not Transfer the power to direct or cause the direction of the management and policies of such Person, whether by contract or otherwise;

(iii) any Transfer from any Permitted Investor of any direct or indirect interest in Ultimate Parent to a Majority Controlled Affiliate, or the admission of a new member into a Permitted Investor, provided the Persons that had the power to direct or cause the direction of the management and policies of such Permitted Investor on the Closing Date retain such power over such Permitted Investor; or

(iv) the purchase by Welltower of certain ownership interests in Ultimate Parent pursuant to that certain Amended and Restated Call and Exchange Agreement, dated as of May 25, 2012 (as may be further amended, supplemented or otherwise modified from time to time).

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Permitted Lien” means any Lien on or with respect to the property of any Loan Party that is not prohibited by Section 8.2 or any other provision of any Loan Document.

Permitted Refinancing” means, with respect to any Person, any modification, refinancing, refunding, renewal or extension of any Indebtedness of such Person; provided that (a) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so modified, refinanced, refunded, renewed or extended except by an amount equal to any interest capitalized in connection with, any premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such modification, refinancing, refunding, renewal or extension and by an amount equal to any existing commitments unutilized and undrawn letters of credit thereunder or as otherwise permitted pursuant to Section 8.1, (b) such modification, refinancing, refunding, renewal or extension has a final maturity date equal to or later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or longer than the Weighted Average Life to Maturity of, the Indebtedness being modified, refinanced, refunded, renewed or extended, (c) if the Indebtedness being modified, refinanced, refunded, renewed or extended is subordinated in right of payment to the Obligations, such modification, refinancing, refunding, renewal or extension is subordinated in right of payment to the Obligations on terms at least as favorable on the whole to the Lenders as those contained in the documentation governing the Indebtedness being modified, refinanced, refunded, renewed or extended, (d) solely with respect to any Permitted Refinancing of the Welltower Term Loan Facility, the Skilled RE Credit Facility, the MidCap RE Credit Facility or any Material Master Lease, the financial covenants and events of default of any such modified, refinanced, refunded, renewed or extended Indebtedness are not, taken as a whole, materially more restrictive to the Loan Parties than the financial covenants and events of default of the Indebtedness being modified, refinanced, refunded, renewed or extended (it being understood and agreed that any such financial covenants or events of default that are substantially similar to those set forth herein shall be deemed not to be materially more restrictive to the Loan Parties) and (e) none of the Loan Parties shall be an obligor or guarantor of the Indebtedness being modified, refinanced, refunded, renewed or extended except to the extent that such Person was such an obligor or guarantor in respect of the Indebtedness being modified, refinanced, refunded, renewed or extended.

Person” means an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, Governmental Authority or other entity of whatever nature.

Primary License” means, with respect to any Facility or Person operating such Facility, as the case may be, the certificate of need, Permit or license to operate as an assisted living, skilled nursing or independent living facility.

Pro Forma Basis” means, for any period, with respect to any proposed acquisition, investment, distribution, incurrence or prepayment of Indebtedness or any other action which requires compliance with any test or covenant hereunder, compliance as of the transaction date will be determined giving the following pro forma effect to such proposed acquisition investment, distribution or any such other action:  (a) pro forma effect will be given to any Indebtedness incurred or repaid during or after the relevant period to the extent the Indebtedness is outstanding or is to be incurred or repaid on the transaction date as if the Indebtedness had been incurred or repaid on the first day of the relevant period; (b) pro forma calculations of interest on Indebtedness bearing a floating interest rate will be made as if the rate in effect on the transaction date (taking into account any Hedge Agreement applicable to the Indebtedness if the Hedge Agreement has a remaining term of at least 12 months) had been the applicable rate for the entire relevant period; (c) Consolidated Interest Expense related to any Indebtedness no longer outstanding or to be repaid or redeemed on the transaction date, except for Consolidated Interest Expense accrued during the relevant period under this Agreement to the extent of the Loans in effect on the transaction date, will be excluded; (d) pro forma effect will be given to any amendment or other modification of any Material Master

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Lease as if such amendment or other modification shall have occurred at the beginning of the relevant period; and (e) pro forma effect will be given to (i) the joinder or release of Loan Parties, and (ii) the acquisition or Transfer of companies, divisions or lines of businesses by the Loan Parties, including any acquisition or Transfer of a company, division or line of business since the beginning of the relevant period by a Person that became a Borrower after the beginning of the relevant period that have occurred since the beginning of the relevant period as if such events had occurred, and, in the case of any Transfer, the proceeds thereof applied, on the first day of the relevant period.  For purposes of determining Consolidated Interest Expense, Consolidated Fixed Charges, Consolidated Rental Expense, Consolidated EBITDA, Consolidated EBITDAR and Consolidated Net Income, any discontinuation of discontinued operations as defined under Financial Accounting Standards Board Accounting Standards Codification 205-20 occurring during the relevant period shall be given effect in accordance with that standard.  To the extent that pro forma effect is to be given to an acquisition or Transfer of a company, division or line of business, the pro forma calculation will be based upon the most recent four full Fiscal Quarters for which the relevant financial information is available (including cost savings to the extent such cost savings would be consistent with the definition of “Consolidated EBITDA”).

Pro Forma Transaction” means any transaction consummated in accordance with this Agreement and/or any Permitted Acquisition, together with each other transaction relating thereto and consummated in connection therewith, including any incurrence or repayment of Indebtedness.

Pro Rata Outstandings”, with respect to any Lender at any time, means the sum of (i) the outstanding principal amount of Revolving Loans owing to such Lender and (ii) the amount of the participation of such Lender in the L/C Obligations outstanding with respect to all Letters of Credit.

Pro Rata Share” means (i) with respect to the Closing Date Term Loan and any Lender’s right to receive payments of principal and interest with respect thereto, at any time, the percentage obtained by dividing (a) the principal amount of Closing Date Term Loans held by such Lender on such date by (b) the aggregate principal amount of Closing Date Term Loans on such date, (ii) with respect to a Lender’s obligation to make Delayed Draw Term Loans, such Lender’s right to receive payments of principal and interest with respect to Delayed Draw Term Loans, and such Delayed Draw Term Lender’s right to receive the unused line fee described in Section 2.11(a)(ii), the percentage obtained by dividing (a) the sum of the Delayed Draw Term Loan Commitment (or, if such Delayed Draw Term Loan Commitments are terminated, the principal amount of Delayed Draw Term Loans held by such Delayed Draw Term Lender on such date) of such Lender then in effect by (b) the sum of the Delayed Draw Term Loan Commitments (or, if such Delayed Draw Term Loan Commitments are terminated, the principal amount of Delayed Draw Term Loans held by such Lender on such date) of all participating Lenders thereunder then in effect; provided,  however, that, if there are no Delayed Draw Term Loan Commitments and no outstanding Delayed Draw Term Loans thereunder, such Lender’s Pro Rata Share shall be determined based on the Pro Rata Share most recently in effect, after giving effect to any subsequent assignment and any subsequent non-pro rata payments of any participating Lender pursuant to Section 2.18; (iii) with respect to a Lender’s obligation to make Revolving Loans, such Lender’s right to receive the unused line fee described in Section 2.11(a)(i), and such Lender’s obligation to share in L/C Obligations and to receive the related fees, and to receive payments of principal and interest with respect to Revolving Loans, the percentage obtained by dividing (a) the sum of the Revolving Credit Commitment (or, if such Revolving Credit Commitments are terminated, the respective Pro Rata Outstandings thereunder) of such Lender then in effect by (b) the sum of the Revolving Credit Commitments (or, if the Revolving Credit Commitments are terminated, the respective Pro Rata Outstandings thereunder) of all participating Lenders thereunder then in effect; provided,  however, that, if there are no Revolving Credit Commitments and no and no Pro Rata Outstandings thereunder, such Lender’s Pro Rata Share shall be determined based on the Pro Rata Share most recently in effect, after giving effect to any subsequent assignment and any subsequent non-pro rata payments of any participating Lender pursuant to Section 2.18 and (iv) for all other purposes (including

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without limitation the indemnification obligations arising under Section 11.4) with respect to any Lender, the percentage obtained by dividing (X) the sum of the Revolving Credit Commitment of such Lender (or, if such Revolving Credit Commitments are terminated, the respective Pro Rata Outstandings thereunder), plus such Lender’s unfunded Delayed Draw Term Loan Commitment (unless the Delayed Draw Term Loan Commitment shall have expired or been terminated), plus such Lender’s then outstanding principal amount of the Term Loans by (Y) the sum of the Revolving Loan Commitment (or, if such Revolving Credit Commitments are terminated, the respective Pro Rata Outstandings thereunder) of all Lenders, plus the aggregate unfunded Delayed Draw Term Loan Commitment (unless the Delayed Draw Term Loan Commitment shall have expired or been terminated) of all Lenders, plus the then outstanding principal amount of the Term Loans of all Lenders.

Projections” means any document delivered pursuant to Section 6.1(g).

Property” means any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, including, without limitation, Equity Interests or Equity Equivalents.

Property Loss Event” means, with respect to any property, any loss of or damage to such property or any taking of such property or condemnation thereof.

Protective Advance” has the meaning specified in Section 11.10.

Qualified Capital Stock” means any Equity Interest that is not Disqualified Capital Stock.

Qualified Equity Issuance” means any issuance by Ultimate Parent of its Equity Interests in a public or private offering or contribution to its capital (in each case, other than in the form of Disqualified Capital Stock).

Real Property” means the real property (including improvements thereon) subject to, and described in, the Master Leases, the other Material Master Leases, the Third-Party Leases or owned by a Loan Party.

Real Property Financing Obligations” means, with respect to any Person, financing obligations and Capital Lease Obligations of such Person, to the extent such financing obligations or Capital Lease Obligations are related to real property.

Register” has the meaning specified in Section 2.14(b).

Related Documents” means, collectively,

(i) the Master Leases and the other Material Master Leases,

(ii) the Master Lease Intercreditor Agreements and each other Material Master Lease Intercreditor Agreement,

(iii) the Welltower Term Loan Agreement,

(iv) the Welltower Term Loan Documents,

(v) the Skilled RE Credit Agreement,

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(vi) the Skilled RE Loan Documents,

(vii) the MidCap RE Credit Agreement,

(viii) the MidCap RE Loan Documents,

(ix) the UPL Documents, and

(x) the Intercreditor Agreement.

Related Person” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officer, employees, agents, attorneys-in-fact, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.  Solely with respect to MCF, “Related Person” shall include servicers and investment managers.

Release” means any release, threatened release, spill, emission, leaking, pumping, pouring, emitting, emptying, escape, injection, deposit, disposal, discharge, dispersal, dumping, leaching or migration of Hazardous Material into or through the environment.

Released Loan Parties” means certain affiliates of GHLLC listed on Schedule VI that were parties to the Original Credit Agreement and certain of the other Loan Documents and are released as of the Closing Date.

Remedial Action” means all actions required to (a) clean up, remove, treat or in any other way address any Hazardous Material Released into the indoor or outdoor environment, (b) prevent or minimize any Release so that a Hazardous Material does not migrate or endanger or threaten to endanger public health or welfare or the indoor or outdoor environment or (c) perform pre-remedial studies and investigations and post-remedial monitoring and care with respect to any Hazardous Material.

Required Lenders” means, at any time, Lenders having at such time in excess of 50% of the sum of (i) the aggregate Revolving Credit Commitments (or, if such Revolving Credit Commitments are terminated, the amounts of the participations in Swing Loans, the principal amount of unparticipated portions of the Swing Loans and the Pro Rata Outstandings in the Revolving Credit Facility), plus (ii) the sum of the unfunded Delayed Draw Term Loan Commitments (or, if such Delayed Draw Term Loan Commitments are terminated, the principal amount of Delayed Draw Term Loans held by such Delayed Draw Term Lender on such date) plus (iii) the aggregate outstanding principal balance of the Closing Date Term Loan, ignoring, throughout such calculation, the amounts held by any Restricted Person; provided,  however, at any time when there are two or more unaffiliated Lenders under this Agreement, “Required Lenders” shall include at least two unaffiliated Lenders.  Notwithstanding the foregoing, no Restricted Person shall be entitled to vote as a “Required Lender”.

Required Revolving Lenders” means, at any time, Lenders having at such time in excess of 50% of the aggregate Revolving Credit Commitments (or, if such Revolving Credit Commitments are terminated, the amounts of the participations in Swing Loans, the principal amount of unparticipated portions of the Swing Loans and the Pro Rata Outstandings in the Revolving Credit Facility) then in effect, ignoring, in such calculation, the amounts held by any Restricted Person; provided,  however, at any time when there are two or more unaffiliated Lenders under this Agreement, “Required Revolving Lenders” shall include at least two unaffiliated Lenders.  Notwithstanding the foregoing, no Restricted Person shall be entitled to vote as a “Required Revolving Lender”.

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 “Requirement of Law” means, with respect to any Person, the Constituent Documents of such Person, and any law, treaty, rule or regulation or determination, order or other similar action of a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

Reserve Requirements” means, with respect to any Interest Period and for any LIBOR Rate Loan, a rate per annum equal to the aggregate, without duplication, of the maximum rates (expressed as a decimal number) of reserve requirements in effect two (2) Business Days prior to the first day of such Interest Period (including basic, supplemental, marginal and emergency reserves) under any regulations of the Federal Reserve Board or other Governmental Authority having jurisdiction with respect thereto dealing with reserve requirements prescribed for eurocurrency funding (currently referred to as “eurocurrency liabilities” in Regulation D of the Federal Reserve Board) maintained by a member bank of the United States Federal Reserve System.

Resignation Effective Date” has the meaning specified in Section 10.9(a).

Responsible Officer” means, with respect to any Person, any of the chief executive officer, president, senior vice president, chief financial officer (or similar title), chief operating officer, controller or treasurer (or similar title), managing member or general partner of such Person but, in any event, with respect to financial matters, the chief financial officer (or similar title) or treasurer (or similar title) of Ultimate Parent.

Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property (other than Qualified Capital Stock)) with respect to any Equity Interests or Equity Equivalents of Loan Parties, or any payment (whether in cash, securities or other property (other than Qualified Capital Stock)), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Equity Interests or Equity Equivalents in any Loan Party.

Restricted Person” means (i) any Defaulting Lender, (ii) any Borrower, (iii) any Loan Party, (iv) any Permitted Investor, and (v) any officer, director or Affiliate of any of the foregoing.

Revera Borrowers” means, collectively, the subsidiaries of Ultimate Parent that are borrowers under the Revera Credit Agreement.

Revera Credit Agreement” means the Amended and Restated Loan Agreement (B-1), dated as of December 22, 2016, between Revera Borrowers, Revera Lender and certain financial institutions from time to time party thereto as lenders, as it may be amended, restated, replaced or otherwise modified from time to time in accordance with the terms of this Agreement.

Revera Credit Facility” means the term loan credit facility incurred pursuant to the Revera Loan Documents.

Revera Lender” means Welltower, in its capacity as lender under the Revera Credit Agreement together with its successors and assigns.

Revera Loan Documents” has the meaning assigned to the term “Loan Documents” in the Revera Credit Agreement.

Revolver Exit Fee” has the meaning specified in Section 2.11(c)(ii).

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Revolving Credit Commitment” means, with respect to each Revolving Lender, the commitment of such Lender to make Revolving Loans, which commitment is in the amount set forth opposite such Lender’s name on Schedule I under the caption “Revolving Credit Commitment”, as it may be (i) amended to reflect Assignments and (ii) reduced pursuant to this Agreement.

Revolving Credit Facility” means the Revolving Credit Commitments and the provisions herein related to the Revolving Loans, Swing Loans and Letters of Credit.

Revolving Credit Outstandings” means, at any time, the sum of, in each case to the extent outstanding at such time, (a) the aggregate principal amount of the Revolving Loans and Swing Loans and (b) the L/C Obligations for all Letters of Credit.

Revolving Lender” means each Lender that has a Revolving Credit Commitment in excess of $0, holds a Revolving Loan or participates in any Swing Loan or Letter of Credit.

Revolving Loan” has the meaning specified in Section 2.1(a).

Revolving Loan Overadvance” has the meaning specified in Section 2.1(a).

S&P” means Standard & Poor’s Rating Services.

Sabra Intercreditor Agreement” means the Amended and Restated Amendment to Lease and Intercreditor Agreement, dated as of July 29, 2016, by and among the Sabra Landlords party thereto, the Administrative Agent (as successor-by-assignment to Healthcare Financial Solutions, LLC) and the Welltower Term Loan Agent, and acknowledged by certain Borrowers party thereto as Tenants, as it may be amended, restated, replaced or otherwise modified from time to time.

Sabra Landlords” means Sabra Health Care REIT, Inc. and certain of its affiliates as “Landlord” under the Sabra Leases.

Sabra Lease” means, collectively, certain Leases, by and between one or more Sabra Landlords, as “Landlord”, and one or more Borrowers party thereto as “Tenants”, as they may each be amended, restated, replaced or otherwise modified from time to time in accordance with the terms of the Sabra Intercreditor Agreement and this Agreement.

Sabra Lease Amendment Agreement” means, collectively, certain amendments to the Sabra Leases, dated as of the Closing Date, by and among the Sabra Landlords and each Borrower party thereto as a “Tenant”.

Sale and Lease-Back Transaction” means any arrangement with any Person providing for the leasing by a Loan Party of real or personal property that has been or is to be Transferred by such Loan Party to such Person or from any other Person to whom funds have been or are to be advanced by such Person based on a Lien on, or an assignment of, such property and rental obligations of such Loan Party.

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

Scheduled Termination Date” means the earliest to occur of (i) the date that is 5 years from the Closing Date, (ii) if and so long as the Welltower Term Loan Facility or any Permitted Refinancing thereof has a maturity date prior to the date set forth in clause (i), the later of (x) the date that is 90 days

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prior to the maturity date of the Welltower Term Loan Facility or any such Permitted Refinancing (as applicable) and (y) to the extent the maturity date of the Welltower Term Loan Facility or such Permitted Refinancing has been shortened due to a springing maturity prong based upon the Skilled RE Credit Agreement or the Revera Credit Agreement or any Permitted Refinancing thereof, the maturity date of the Welltower Term Loan Facility (or such Permitted Refinancing) and (iii) the date that is 90 days prior to such then-applicable maturity date of the facility under the Skilled RE Credit Agreement,  Revera Credit Agreement or MidCap RE Credit Agreement or any Permitted Refinancing thereof, as applicable.

SEC” means the United States Securities and Exchange Commission.

Secondary Market Investors” has the meaning specified in Section 11.2(f).

Secondary Market Transaction” has the meaning specified in Section 11.2(f).

Secured Hedge Agreement” means any Hedge Agreement in respect of the Obligations that (a) has been entered into with a Secured Hedging Counterparty, (b) in the case of a Hedge Agreement not entered into with or provided or arranged by Administrative Agent or an Affiliate of Administrative Agent, is expressly identified as being a “Secured Hedge Agreement” hereunder in a joint notice from such Loan Party and such Person delivered to Administrative Agent reasonably promptly after the execution of such Hedge Agreement and (c) meets the requirements of Section 8.4(f).

Secured Hedging Counterparty” means (a) a Person who has entered into a Hedge Agreement with a Loan Party if such Hedge Agreement was provided or arranged by Administrative Agent or an Affiliate of Administrative Agent, and any assignee of such Person or (b) a Lender or an Affiliate of a Lender who has entered into a Hedge Agreement with a Loan Party (or a Person who was a Lender or an Affiliate of a Lender at the time of execution and delivery of the Hedge Agreement).

Secured Parties” means the Lenders, the L/C Issuers, the Administrative Agent, any Secured Hedging Counterparty, each other Indemnitee and any other holder of any Obligation of any Loan Party.

Security” means all Equity Interests, Equity Equivalents, voting trust certificates, bonds, debentures, instruments and other evidence of Indebtedness, whether or not secured, convertible or subordinated, all certificates of interest, share or participation in, all certificates for the acquisition of, and all warrants, options and other rights to acquire, any Security.

Security Agreement” means that certain Second Amended and Restated Security, Guarantee and Collateral Agreement, dated as of the February 2, 2015 and amended as of the Closing  Date, among Loan Parties and Administrative Agent and the other entities from time to time party thereto, as it may be amended, restated, replaced or otherwise modified from time to time.

Security Documents” means the collective reference to the Security Agreement, the Intercreditor Agreement, the Master Lease Intercreditor Agreements and the other Material Master Lease Intercreditor Agreements, the Mortgages and all other security documents hereafter delivered to the Administrative Agent purporting to grant or specify the priority of a Lien on any Property of any Loan Party to secure the Obligations.

Settlement Agreement” means that certain Settlement Agreement, dated June 9, 2017, entered into by and among, Ultimate Parent, the United States of America, and the relators party thereto.

Skilled Holdings” has the meaning specified in the preamble to this Agreement.

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Skilled RE Borrowers” means, collectively, the subsidiaries of Skilled Holdings set forth in Schedule II that are borrowers under the Skilled RE Credit Agreement.

Skilled RE Credit Agreement” means, collectively, the Skilled RE Credit Agreement (A-2) and the Skilled RE Credit Agreement (Consolidated).

Skilled RE Credit Agreement (A-2)” means the Amended and Restated Loan Agreement (A-2), dated as of December 22, 2016, between the Skilled RE Borrowers from time to time party thereto, Skilled RE Lender and certain financial institutions from time to time party thereto as lenders, as it may be amended, restated, replaced or otherwise modified from time to time in accordance with the terms of this Agreement and the Intercreditor Agreement.

Skilled RE Credit Agreement (Consolidated)” means the Consolidated, Amended and Restated Loan Agreement, dated as of December 22, 2016, between the Skilled RE Borrowers from time to time party thereto, the other Borrowers from time to time party thereto, Skilled RE Lender and certain financial institutions from time to time party thereto as lenders, as it may be amended, restated, replaced or otherwise modified from time to time in accordance with the terms of this Agreement and the Intercreditor Agreement.

Skilled RE Credit Facility” means, collectively, the term loan credit facilities incurred pursuant to the Skilled RE Loan Documents.

Skilled RE Lender” means Welltower Inc., in its capacity as lender under each Skilled RE Credit Agreement together with its successors and assigns.

Skilled RE Loan Documents” means, collectively, the Loan Documents (as defined in each Skilled RE Credit Agreement).

Skilled RE Priority Collateral” means the HCN Priority Collateral (as defined in the Intercreditor Agreement).

Skilled Subsidiary” means Skilled Holdings together with each of its direct or indirect Subsidiaries that is a Borrower.

Sold Entity or Business” has the meaning specified in the definition of the term “Consolidated EBITDA”.

Solvent” means, with respect to any Person, as of any date of determination, (a) the amount of the “present fair saleable value” of the assets of such Person will, as of such date, exceed the amount of all “liabilities of such Person, contingent or otherwise”, as of such date, as such quoted terms are determined in accordance with applicable federal and state laws governing determinations of the insolvency of debtors, (b) the present fair saleable value of the assets of such Person will, as of such date, be greater than the amount that will be required to pay the liability of such Person on its debts as such debts become absolute and matured, (c) such Person will not have, as of such date, an unreasonably small amount of capital with which to conduct its business and (d) such Person will be able to pay its debts as they mature.  For purposes of this definition, (i) “debt” means liability on a “claim”, (ii) “claim” means any (x) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured or unsecured and (iii) except as otherwise provided by applicable law, the amount of

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“contingent liabilities” at any time shall be the amount thereof which, in light of all the facts and circumstances existing at such time, can reasonably be expected to become actual or matured liabilities.

Sponsor” means Formation Capital LLC.

SPV” means any special purpose funding vehicle identified as such in a writing by any Lender to Administrative Agent.

Subordinated Debt” means any Indebtedness that is subordinated to the payment in full of the Obligations on terms and conditions reasonably satisfactory to Administrative Agent.

Subsidiary” means, with respect to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity are at the time owned, directly or indirectly through one or more intermediaries, or both, by such Person.  Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a direct or indirect Subsidiary or Subsidiaries of the Ultimate Parent; provided that in determining the percentage of ownership interests of any Person controlled by another Person, no ownership interest in the nature of a director’s “qualifying share” of the former Person shall be deemed to be outstanding.

Substitute Lender” has the meaning specified in Section 2.18(a).

Sun Borrower” means Sun Healthcare Group, Inc., a Delaware corporation.

Supermajority Lenders” means, at any time, Lenders having at such time in excess of 66 2/3% of the aggregate Revolving Credit Commitments (or, if such Revolving Credit Commitments are terminated, the amounts of the participations in Swing Loans, the principal amount of unparticipated portions of the Swing Loans and the Pro Rata Outstandings in the Revolving Credit Facility) then in effect, ignoring, in such calculation, the amounts held by any Restricted Person and, at any time when there are more than three (3) unaffiliated Lenders under this Agreement, “Supermajority Lenders” shall include at least three (3) unaffiliated Lenders, and at any time when there are two (2) or three (3) unaffiliated Lenders under this Agreement, “Supermajority Lenders” shall include at least two (2) unaffiliated Lenders.  Notwithstanding the foregoing, no Restricted Person shall be entitled to vote as a “Supermajority Lender”.

Swap Obligations”  means with respect to any Loan Party, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.

Swap Transaction”  means any agreement, contract or transaction between the Loan Parties and any Secured Party that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.

Sweep Event” means the occurrence of any of the following events, whether or not declared by Administrative Agent as an Event of Default:

(i) an Event of Default;

(ii) Borrowers’ failure to comply with any financial covenant pursuant to Article 5 (without giving effect to any cure period applicable thereto);

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(iii) Borrowers shall have (A) failed to maintain the Concentration Account, or any Facility Lockbox Account or Control Agreements or other similar agreements related thereto or (B) received, transferred, or applied payments of Account Debtors, in either case in contravention of Section 7.12;

(iv) Administrative Agent or any Lender shall have commenced foreclosure or execution on any of the Collateral as permitted under any Loan Document; or

(v) there shall have been a draw in an amount in excess of $5,000,000 on any Letter of Credit.

Swing Loan” has the meaning specified in Section 2.3(a).

Swingline Lender” means, each in its capacity as Swingline Lender hereunder, MCF or, upon the resignation of MCF as Administrative Agent hereunder or the assignment by MCF of its role as Administrative Agent hereunder, any Lender (or Affiliate of any Lender) that agrees, with the approval of Administrative Agent (or, if there is no such successor Administrative Agent, the Required Revolving Lenders) and Borrowers, to act as the Swingline Lender hereunder.

Swingline Request” has the meaning specified in Section 2.3(b).

Tax Affiliate” means (a) Borrowers and (b) any Affiliate of any Borrower with which such Borrower files or is eligible to file consolidated, combined or unitary Tax Returns.

Tax Distributions” has the meaning specified in Section 8.6(a)(x).

Tax Receivable Agreement” means that certain Tax Receivable Agreement, dated as of the Closing Date, among Ultimate Parent, LLC Parent and certain of the members of LLC Parent in the form attached hereto as Exhibit N.

Tax Returns” has the meaning specified in Section 4.8.

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.

Tenth Amendment” means that certain Limited Waiver and Amendment No. 10 to Third Amended and Restated Credit Agreement, entered into as of the Closing Date, by and among Borrowers, Guarantors, the Lenders, and Administrative Agent.

Term Loans” mean, collectively, the Closing Date Term Loan and Delayed Draw Term Loans.

Termination Date” means the earliest of (a) Scheduled Termination Date, (b) the date of termination of the Commitments pursuant to Section 2.5 or Section 9.2 and (c) the date on which the Obligations become due and payable pursuant to Section 9.2.

 “Termination Fee” means, as applicable:

(a) the fee payable upon prepayment of the Revolving Credit Facility pursuant to Sections 2.7, 2.8 and 9.2 in an amount equal to (i) if such prepayment is made prior to the first

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anniversary of the Closing Date, 2.0% of the portion of the Revolving Credit Commitment terminated, (ii) on or after the first anniversary of the Closing Date but prior to the second anniversary of the Closing Date, 1.0% of the portion of the Revolving Credit Commitment terminated and (iii) on or after the second anniversary of the Closing Date, 0.5% of the Revolving Credit Commitment terminated; and

(a) the fee payable upon prepayment of the Closing Date Term Loan pursuant to Sections 2.7, 2.8 and 9.2 in an amount equal to (i) if such prepayment is made prior to the first anniversary of the Closing Date, 2.0% of the Closing Date Term Loan prepaid, (ii) on or after the first anniversary of the Closing Date but prior to the second anniversary of the Closing Date, 1.0% of Closing Date Term Loan prepaid and (iii) on or after the second anniversary of the Closing Date, 0.5% of the Closing Date Term Loan prepaid;

provided, that following a refinancing of the Obligations in connection with which MCF serves as the administrative agent and a lender, MCF’s Pro Rata Share of the Termination Fee shall be waived.

Third-Party Leases” means, collectively, leases, other than the Master Leases and the other Material Master Leases, of long term care facilities, nursing homes, assisted living facilities, independent living facilities, hospice facilities or other healthcare facilities, but not including rehabilitation facilities or medical office buildings, leased and operated by any Borrower, including but not limited to those listed on Schedule 4.16 hereto.

Third-Party Payor Programs” means Medicare, Medicaid, TRICARE, Blue Cross/Blue Shield or any other public program or private commercial insurance, managed care, or employee assistance program providing reimbursement or coverage for Medical Services and with which a Borrower or any of its Subsidiaries has entered into a participation agreement, provider agreement, or similar arrangement for coverage of eligible Patients.

Title IV Plan” means a pension plan subject to Title IV of ERISA, other than a Multiemployer Plan, to which any ERISA Affiliate incurs or otherwise has any obligation or liability, contingent or otherwise.

Transactions” means, collectively, (a) Closing Date Transactions; (b) the execution of the Loan Documents and the incurrence of the obligations thereunder; (c) the amendment of the Material Master Leases and the related transactions intended to be consummated on or about the Closing Date and (d) the payment of all fees and expenses to be paid in connection with the foregoing.

Transfer” means, with respect to any Property, any sale, sale and leaseback, assignment, conveyance, transfer or other effectively complete disposition thereof.

TRICARE” means (a) the United States of America acting under TRICARE, or (b) any agent, carrier, administrator or intermediary for any of the foregoing.

UCC” means the Uniform Commercial Code of any applicable jurisdiction as now or hereafter in effect and, if the applicable jurisdiction shall not have any Uniform Commercial Code, the Uniform Commercial Code as now or hereafter in effect in the State of New York.

Ultimate Parent” has the meaning specified in the recitals to this Agreement.

United States” means the United States of America.

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Unrestricted Account Collecting Bank” has the meaning specified in Section 7.12(a)(i)(D).

Unrestricted Accounts” has the meaning specified in Section 7.12(a)(i)(D).

UPL Borrower” means each Borrower that leases or manages a UPL Facility.

UPL Documents” means the UPL Program implementing documents, instruments, and agreements entered into between a UPL Hospital and the respective UPL Borrower (and/or any of their Affiliates), including but not limited to each lease, sublease, management agreement, license agreement, operations transfer agreement, intellectual property transfer agreement and/or license agreement.

UPL Facility” means each Facility that is the subject of a UPL Program.

UPL Hospital” means each county hospital or other unit of government that is or becomes an operator of a UPL Facility.

UPL Program” means a program under which, in exchange for certain payment of fees, costs and other reimbursements from the UPL Hospital, a Borrower agrees to manage one or more Facilities, the possession and operation of which has been transferred to such UPL Hospital and, subsequent to such transfer, the accounts related to such Facility or Facilities qualify under a Medicaid “upper payment limit” program.

U.S. Lender Party” has the meaning specified in Section 2.17(e).

Voting Stock” means Equity Interests of any Person having ordinary power to vote in the election of members of the board of directors, managers, trustees or other controlling Persons, of such Person (irrespective of whether, at the time, Equity Interests of any other class or classes of such entity shall have or might have voting power by reason of the occurrence of any contingency).

Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing:  (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment by (b) the then outstanding principal amount of such Indebtedness; provided that for purposes of determining the Weighted Average Life to Maturity of any Indebtedness being refinanced or any Indebtedness that is being modified, refinanced, refunded, renewed, replaced or extended (the “Applicable Indebtedness”), the effects of any amortization or prepayments made on such Applicable Indebtedness prior to the date of the applicable modification, refinancing, refunding, renewal, replacement or extension shall be disregarded.

Welltower” means Welltower Inc., a Delaware corporation.

Welltower Intercreditor Agreement” means the Amended and Restated Amendment to Lease and Intercreditor Agreement, dated as of July 29, 2016, by and among Welltower Landlord, Welltower, in its capacity as a landlord under the Welltower Lease, the Landlord Parties (as defined therein), the Administrative Agent (as successor-by-assignment to Healthcare Financial Solutions, LLC), and the Welltower Term Loan Agent, and acknowledged by GHLLC, Genesis Operations, LLC, LLC Parent, Ultimate Parent and certain of their direct and indirect subsidiaries, as it may be amended, restated, replaced or otherwise modified from time to time in accordance with the terms of this Agreement.

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Welltower Landlord” means FC-Gen Real Estate, LLC, a Delaware limited liability company.

Welltower Lease” means the Twentieth Amended and Restated Master Lease Agreement, dated as of January 31, 2017, by and among Welltower Landlord, as landlord, and Genesis Operations, LLC,  as tenant, as it may be amended, restated, replaced or otherwise modified from time to time in accordance with the terms of the Welltower Intercreditor Agreement and this Agreement.

Welltower Lease Amendment Agreement” means the Third Amendment to the Welltower Lease, dated as of the Closing Date, by and among Welltower Landlord and Genesis Operations, LLC.

Welltower Term Loan Agent” means Welltower Inc., as administrative agent and collateral agent under the Welltower Term Loan Documents.

Welltower Term Loan Agreement” means the Amended and Restated Welltower Term Loan Agreement, dated as of the Closing Date, by and among the Parent Companies and certain direct and indirect subsidiaries thereof, as guarantors (collectively, the “Welltower Term Loan Guarantors”), LLC Parent, as borrower, the lenders from time to time party thereto and Welltower Term Loan Agent, as it may be amended, restated, replaced or otherwise modified from time to time in accordance with the terms of this Agreement and the Intercreditor Agreement.

Welltower Term Loan Collateral” means all property and interests in property and proceeds thereof now owned or hereafter acquired by any Loan Party in or upon which a first priority Lien is granted or purported to be granted pursuant to any Welltower Term Loan Document.

Welltower Term Loan Documents” means the “Loan Documents” as defined in the Welltower Term Loan Agreement.

Welltower Term Loan Facility” means the term loan credit facility incurred pursuant to the Welltower Term Loan Documents.

Welltower Transactions” means “Transactions” as defined in the Welltower Term Loan Agreement.

Withdrawal Liability” means, at any time, any liability incurred (whether or not assessed) by any ERISA Affiliate and not yet satisfied or paid in full at such time with respect to any Multiemployer Plan pursuant to Section 4201 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.

Section 1.2 UCC Terms.  The following terms have the meanings given to them in the applicable UCC:  “commodity account”, “commodity contract”, “commodity intermediary”, “deposit account”, “depository bank”, “entitlement holder”, “entitlement order”, “equipment”, “financial asset”, “general intangible”, “goods”, “instruments”, “inventory”, “securities account”, “securities intermediary” and “security entitlement”.

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Section 1.3 Accounting Terms and Principles.

(a) GAAP.  All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in accordance with GAAP.  No change in the accounting principles used in the preparation of any Financial Statement hereafter adopted by Ultimate Parent or any Loan Party shall be given effect if such change would affect a calculation that measures compliance with any provision of Article 5 or Article 8 unless Borrowers, Administrative Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all Financial Statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP.  Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to in Article 5 or Article 8 shall be made, without giving effect to any election under Statement of Financial Accounting Standards 159 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of any Loan Party or any Subsidiary of any Loan Party at “fair value.”

(b) Pro Forma.  All components of financial calculations made to determine compliance with Article 5 and calculation of Borrowing Base or other similar components, shall be adjusted on a Pro Forma Basis to include or exclude, as the case may be, without duplication, such components of such calculations attributable to any Pro Forma Transaction consummated after the first day of the applicable period of determination and prior to the end of such period, as determined in good faith by Borrowers based on assumptions expressed therein and that were reasonable based on the information available to Borrowers at the time of preparation of the Compliance Certificate setting forth such calculations.

Section 1.4 Interpretation.

(a) Certain Terms.  Except as set forth in any Loan Document, all accounting terms not specifically defined herein shall be construed in accordance with GAAP (except for the term “property”, which shall be interpreted as broadly as possible, including, in any case, cash, Securities, other assets, rights under Contractual Obligations and Permits and any right or interest in any property).  The terms “herein”, “hereof” and similar terms refer to this Agreement as a whole.  In the computation of periods of time from a specified date to a later specified date in any Loan Document, the terms “from” means “from and including” and the words “to” and “until” each mean “to but excluding” and the word “through” means “to and including.”  In any other case, the term “including” when used in any Loan Document means “including without limitation.”  The term “documents” means all writings, however evidenced and whether in physical or electronic form, including all documents, instruments, agreements, notices, demands, certificates, forms, financial statements, opinions and reports.  The term “incur” means incur, create, make, issue, assume or otherwise become directly or indirectly liable in respect of or responsible for, in each case whether directly or indirectly, and the terms “incurrence” and “incurred” and similar derivatives shall have correlative meanings.  The word “will” shall be construed to have the same meaning and effect as the word “shall”.  The term “indirect” Transfer shall include, without limitation, a Transfer of (including the grant of any Lien on) all or a portion of any Equity Interests in any Person that directly or indirectly through one or more Persons owns any Equity Interests in any Borrower.  If any clause or provision is qualified by “material” or “Material Adverse Effect” or other similar materiality threshold, such provision shall be deemed to be qualified only once by such threshold regardless of the number of times such term is used in any such clause or provision.  For the avoidance of doubt, there shall be no concept of “double materiality” applicable in this Agreement

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or in any other Loan Document.  To the extent that any provision of this Agreement requires or tests compliance with (or with respect to) the financial covenants set forth in Article 5 of this Agreement prior to the date that such covenants are first tested, such provision shall be deemed to refer to the first covenant level set forth in each applicable financial covenant.

(b) Certain References.  Unless otherwise expressly indicated, references (i) in this Agreement to an Exhibit, Schedule, Article, Section or clause refer to the appropriate Exhibit or Schedule to, or Article, Section or clause in, this Agreement and (ii) in any Loan Document, to (A) any agreement shall include, without limitation, all exhibits, schedules, appendixes and annexes to such agreement and, unless the prior consent of any Secured Party required therefor is not obtained, any modification to any term of such agreement, (B) any statute shall be to such statute as modified from time to time and to any successor legislation thereto, in each case as in effect at the time any such reference is operative and (C) any time of day shall be a reference to New York time.  Titles of articles, sections, clauses, exhibits, schedules and annexes contained in any Loan Document are without substantive meaning or content of any kind whatsoever and are not a part of the agreement between the parties hereto.  Unless otherwise expressly indicated, the meaning of any term defined (including by reference) in any Loan Document shall be equally applicable to both the singular and plural forms of such term and, whenever the context may require, any pronoun shall include the corresponding masculine feminine and neuter forms.

Article 2

The Credit Facilities

Section 2.1 The Commitments.

(a) Revolving Credit Commitments.  On the terms and subject to the conditions contained in this Agreement, each Revolving Lender severally, but not jointly, agrees to make certain additional loans in Dollars to Borrowers on any Business Day during the period from the Closing Date until the Termination Date in an aggregate principal amount at any time outstanding for all such loans not to exceed $155,000,000 and by such Lender not to exceed such Lender’s Revolving Credit Commitment (each such loan a “Revolving Loan”) provided,  however, that, at no time shall any Revolving Lender be obligated to make a Revolving Loan in excess of such Lender’s Pro Rata Share of the amount by which the Revolving Credit Commitments of all Revolving Lenders then in effect exceed the aggregate Revolving Credit Outstandings at such time; provided,  further, that no Revolving Loan to be made shall, at any time, exceed the Borrowing Availability.  If, at any time, the Revolving Credit Outstandings exceeds the lesser of (x) Borrowing Base  and (y) the Revolving Credit Commitments of all Revolving Lenders then in effect (any such excess is herein referred to as a “Revolving Loan Overadvance”), Revolving Lenders shall not be obligated to make any Revolving Loan, no additional Letters of Credit shall be issued and the Revolving Loans must be repaid immediately and Letters of Credit cash collateralized in an amount sufficient to eliminate any Revolving Loan Overadvance.  Within the limits set forth in the first sentence of this  clause (a), amounts of Revolving Loans repaid may be reborrowed under this Section 2.1.  Upon request of LLC Parent on behalf of Borrowers and upon satisfaction of the conditions precedent set forth in Section 3.2, each Revolving Lender shall make Revolving Loans pursuant to the applicable provisions set forth in this Article 2.

(b) Closing Date Term Loan.  On the terms and subject to the conditions set forth herein, the Lenders severally, but not jointly, hereby agree to make to Borrowers a term loan in Dollars in an original principal amount equal to $325,000,000 (“Closing Date Term Loan”).   Each Lender’s obligation to fund the Closing Date Term Loan shall be limited to such Lender’s Closing Date Term Loan Commitment, and no Lender shall have any obligation to fund any portion of any

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Closing Date Term Loan required to be funded by any other Lender, but not so funded.  No Borrower shall have any right to reborrow any portion of the Closing Date Term Loan that is repaid or prepaid from time to time.  The Closing Date Term Loan shall be funded in one advance on the Closing Date.  The Closing Date Term Commitments of each Lender shall be automatically and permanently reduced to $0 upon the funding of the Closing Date Term Loan on the Closing Date. 

(c) Delayed Draw Term Loan. On the terms and subject to the conditions set forth herein, each Delayed Draw Term Lender severally, but not jointly, hereby agrees to make to Borrowers on or more additional term loans in Dollars in an aggregate principal amount at any time outstanding of $30,000,000 (each such loan, a “Delayed Draw Term Loan”); provided,  however, that, at no time shall any Delayed Draw Term Lender be obligated to make a Delayed Draw Term Loan in excess of such Lender’s Pro Rata Share of the Delayed Draw Term Loan Availability at such time; provided,  further, that on each date set forth below (each, a “Delayed Draw Term Loan Reduction Date”), the aggregate Delayed Draw Term Loan Commitments of the Delayed Term Lenders automatically shall be reduced by the principal amount opposite such date (each such reduction applied proportionately among the Delayed Draw Term Lenders to maintain the same percentage of the aggregate Delayed Draw Term Loan Commitments as held immediately prior to such reduction):

Reduction Date

Reduction Amount

March 31, 2020

$2,500,000

June 30, 2020

$2,500,000

September 30, 2020

$2,500,000

December 31, 2020

$2,500,000

 

Within the limits set forth in the first sentence of this clause (c), amounts of Delayed Draw Term Loans repaid may be reborrowed under this Section 2.1.  Upon request of LLC Parent on behalf of Borrowers and upon satisfaction of the conditions precedent set forth in Section 3.2, each Delayed Draw Term Lender shall make Delayed Draw Term Loans pursuant to the applicable provisions set forth in this Article 2.

Section 2.2 Borrowing Procedures.

(a) Notice From Borrower.  Each Borrowing shall be made on notice given by LLC Parent on behalf of Borrowers to Administrative Agent not later than 3:00 p.m. on the date that is two (2) Business Day prior to the proposed Borrowing (provided that Borrowings made on the Closing Date may be made pursuant to a notice given on the Closing Date).  Each such notice may be made in a writing substantially in the form of Exhibit C (a “Notice of Borrowing”) duly completed and delivered prior to such Borrowing and shall designate whether Borrowers are requesting a Revolving Loan, a Closing Date Term Loan or a Delayed Draw Term Loan.  Loans shall be made as LIBOR Rate Loans unless, consistent with Section 2.15, Loans must be Base Rate Loans.  Each Borrowing of a Revolving Loan shall be in an aggregate amount that is an integral multiple of $250,000. Each Borrowing of a Delayed Draw Term Loan shall be in an aggregate amount that is an integral multiple of $1,000,000.   Each Notice of Borrowing for a Revolving Loan shall be accompanied by a Borrowing Base Certificate.  Each Borrower and each Revolving Lender hereby authorizes Administrative Agent to make Revolving Loans on behalf of Revolving Lenders, at any time in its sole discretion, to pay principal owing in respect of the Loans and interest, fees,

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expenses and other charges payable by any Loan Party from time to time arising under this Agreement or any other Loan Document. 

(b) Disbursements by Administrative Agent.  Administrative Agent shall have the right, on behalf of Lenders to disburse funds to Borrowers for all Loans requested or deemed requested by Borrowers pursuant to the terms of this Agreement.  Administrative Agent shall be conclusively entitled to assume, for purposes of the preceding sentence, that each Lender, other than any Defaulting Lenders, will fund its Pro Rata Share of all Loans requested by Borrowers.  Each Lender shall reimburse Administrative Agent on demand, in accordance with the provisions of Section 10.12, for all funds disbursed on its behalf by Administrative Agent  pursuant to the first sentence of this clause (b), or if Administrative Agent so requests, each Lender will remit to Administrative Agent its Pro Rata Share of any Loan before Administrative Agent disburses the same to a Borrower.  If Administrative Agent elects to require that each Lender make funds available to Administrative Agent, prior to a disbursement by Administrative Agent to a Borrower, Administrative Agent shall advise each Lender by telephone, facsimile or e-mail of the amount of such Lender’s Pro Rata Share of the Loan requested by such Borrower no later than noon (Eastern time) on the date of funding of such Loan, and each such Lender shall pay Administrative Agent on such date such Lender’s Pro Rata Share of such requested Loan, in same day funds, by wire transfer to the Agent Collection Account, or such other account as may be identified by Administrative Agent to Lenders from time to time.  If any Lender fails to pay the amount of its Pro Rata Share of any funds advanced by Agent pursuant to the first sentence of this clause (b) within one (1) Business Day after Administrative Agent’s demand, Administrative Agent shall promptly notify Borrower Representative, and Borrowers shall immediately repay such amount to Administrative Agent.  Any repayment required by Borrowers pursuant to this Section 2.2(b) shall be accompanied by accrued interest thereon from and including the date such amount is made available to a Borrower to but excluding the date of payment at the rate of interest then applicable to the tranche of Loan funded.  Nothing in this Section 2.2(b) or elsewhere in this Agreement or the other Loan Documents shall be deemed to require Administrative Agent to advance funds on behalf of any Lender or to relieve any Lender from its obligation to fulfill its commitments hereunder or to prejudice any rights that Administrative Agent or any Borrower may have against any Lender as a result of any default by such Lender hereunder.

(i) On the Closing Date, Administrative Agent, on behalf of Lenders, may elect to advance to Borrowers the full amount of the initial Loans to be made on the Closing Date prior to receiving funds from Lenders, in reliance upon each Lender’s commitment to make its Pro Rata Share of such Loans to Borrowers in a timely manner on such date.  If Administrative Agent elects to advance the initial Loans to Borrowers in such manner, Administrative Agent shall be entitled to receive all interest that accrues on the Closing Date on each Lender’s Pro Rata Share of such Loans unless Agent receives such Lender’s Pro Rata Share of such Loans before 3:00 p.m. (Eastern time) on the Closing Date.

(ii) It is understood that for purposes of advances to Borrowers made pursuant to this Section 2.2(b), Administrative Agent will be using the funds of Administrative Agent, and pending settlement, (A) all funds transferred from the Agent Collection Account to the outstanding Loans shall be applied first to advances made by Agent to Borrowers pursuant to this Section 2.2(b), and (B) all interest accruing on such advances shall be payable to Administrative Agent.

(iii) The provisions of this Section 2.2(b) shall be deemed to be binding upon Administrative Agent and Lenders notwithstanding the occurrence of any Default or Event

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of Default, or any insolvency or bankruptcy proceeding pertaining to any Borrower or any other Loan Party.

(c) Defaulting Lenders.  Unless Administrative Agent shall have received notice from any Lender prior to the date such Lender is required to make any payment hereunder with respect to any Loan or any participation in any Swing Loan or Letter of Credit that such Lender will not make such payment (or any portion thereof) available to Administrative Agent, Administrative Agent may assume that such Lender has made such payment available to Administrative Agent on the date such payment is required to be made in accordance with this Article 2 or Section 10.12 and Administrative Agent shall, in reliance upon such assumption, make available to Borrowers on such date a corresponding amount.  Borrowers agree to repay to Administrative Agent on demand such amount (until repaid by such Lender) with interest thereon for each day from the date such amount is made available to Borrowers until the date such amount is repaid to Administrative Agent, at the interest rate applicable to the Obligation that would have been created when Administrative Agent made available such amount to Borrowers had such Lender made a corresponding payment available; provided,  however, that such payment shall not relieve such Lender of any obligation it may have to Borrowers, Swingline Lender or any L/C Issuer.  In addition, any Defaulting Lender agrees to pay such amount to Administrative Agent on demand together with interest thereon, for each day from the date such amount is made available to Borrowers until the date such amount is repaid to Administrative Agent, at the Federal Funds Rate for the first Business Day and thereafter (i) in the case of a payment in respect of a Loan, at the interest rate applicable at the time to such Loan and (ii) otherwise, at the interest rate applicable to LIBOR Rate Loans under the Revolving Credit Facility.  Such repayment shall then constitute the funding of the corresponding Loan (including any Loan deemed to have been made hereunder with such payment) or participation.  If the Borrowers 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 Borrowers the amount of such interest paid by the Borrowers for such period.  The existence of any Defaulting Lender shall not relieve any other Lender of its obligations under any Loan Document, but no other Lender shall be responsible for the failure of any Defaulting Lender to make any payment required under any Loan Document.  Nothing herein shall be deemed to limit the rights of the Administrative Agent or the Borrowers against any Defaulting Lender.

Section 2.3 Swing Loans.

(a) Availability.  On the terms and subject to the conditions contained in this Agreement, the Swingline Lender may, in its sole discretion, make loans in Dollars (each a “Swing Loan”) available to Borrowers under the Revolving Credit Facility from time to time on any Business Day during the period from the Closing Date until the Termination Date in an aggregate principal amount at any time outstanding not to exceed $30,000,000; provided,  however, that the Swingline Lender may not make any Swing Loan (x) to the extent that after giving effect to such Swing Loan, the aggregate Revolving Credit Outstandings would exceed the Borrowing Availability and (y) in the period commencing on the first Business Day after it receives notice from Administrative Agent or the Required Lenders that one or more of the conditions precedent contained in Section 3.2 are not satisfied and ending when such conditions are satisfied or duly waived.  In connection with the making of any Swing Loan, the Swingline Lender may but shall not be required to determine that, or take notice whether, the conditions precedent set forth in Section 3.2 have been satisfied or waived.  Each Swing Loan must be repaid in full on the earliest of (i) the funding date of any Borrowing of Revolving Loans and (ii) the Termination Date.  Within the limits set forth in the first sentence of this clause (a), amounts of Swing Loans repaid may be reborrowed under this clause (a).

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(b) Borrowing Procedures.  In order to request a Swing Loan, LLC Parent on behalf of Borrowers shall give to Administrative Agent a notice to be received not later than 11:00 a.m. on the day of the proposed Borrowing, which may be made in a writing substantially in the form of Exhibit D duly completed (a “Swingline Request”) or by telephone if confirmed promptly but, in any event, prior to such Borrowing, with such a Swingline Request.  In addition, if any Notice of Borrowing requests a Borrowing of Revolving Loans, the Swingline Lender may, notwithstanding anything else to the contrary in Section 2.2, make a Swing Loan available to Borrower in an aggregate amount not to exceed such proposed Borrowing, and the aggregate amount of the corresponding proposed Borrowing shall be reduced accordingly by the principal amount of such Swing Loan.  Administrative Agent shall promptly notify the Swingline Lender of the details of the requested Swing Loan.  Upon receipt of such notice and subject to the terms of this Agreement, the Swingline Lender may make a Swing Loan available to Borrower by making the proceeds thereof available to Administrative Agent and, in turn, Administrative Agent shall make such proceeds available to Borrower on the date set forth in the relevant Swingline Request.

(c) Refinancing Swing Loans.  The Swingline Lender may at any time, and no less frequently than weekly, forward a demand to Administrative Agent (which Administrative Agent shall, upon receipt, forward to each Revolving Lender) that each Revolving Lender pay to Administrative Agent, for the account of the Swingline Lender, such Revolving Lender’s Pro Rata Share of all or a portion of the outstanding Swing Loans.  Each Revolving Lender shall pay such Pro Rata Share to Administrative Agent for the account of the Swingline Lender.  Upon receipt by Administrative Agent of such payment (other than during the continuation of any Event of Default under Section 9.1(g) or (h)), such Revolving Lender shall be deemed to have made a Revolving Loan to Borrowers, which, upon receipt of such payment by the Swingline Lender from Administrative Agent, Borrowers shall be deemed to have used in whole to refinance such Swing Loan.  In addition, regardless of whether any such demand is made, upon the occurrence of any Event of Default under Section 9.1(g) or (h), each Revolving Lender shall be deemed to have acquired, without recourse or warranty, an undivided interest and participation in each Swing Loan in an amount equal to such Lender’s Pro Rata Share of such Swing Loan.  If any payment made by any Revolving Lender as a result of any such demand is not deemed a Revolving Loan, such payment shall be deemed a funding by such Lender of such participation.  Such participation shall not be otherwise required to be funded.  Upon receipt by the Swingline Lender of any payment from any Revolving Lender pursuant to this clause (c) with respect to any portion of any Swing Loan, the Swingline Lender shall promptly pay over to such Revolving Lender all payments of principal (to the extent received after such payment by such Lender) and interest (to the extent accrued with respect to periods after such payment) received by the Swingline Lender with respect to such portion.

(d) Obligation to Fund Absolute.  Each Revolving Lender’s obligations pursuant to clause (c) above shall be absolute, unconditional and irrevocable and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever, including (A) the existence of any setoff, claim, abatement, recoupment, defense or other right that such Lender, any Affiliate thereof or any other Person may have against the Swingline Lender, any other Secured Party or any other Person, (B) the failure of any condition precedent set forth in Section 3.2 to be satisfied or the failure of Borrower to deliver any notice set forth in Section 2.2(a) (each of which requirements the Revolving Lenders hereby irrevocably waive) and (C) any adverse change in the condition (financial or otherwise) of any Loan Party.

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Section 2.4 Letters of Credit.

(a) Commitment and Conditions.  On the terms and subject to the conditions contained herein, each L/C Issuer agrees to Issue, at the request of LLC Parent on behalf of Borrowers, in accordance with such L/C Issuer’s usual and customary business practices, and for the account of Borrowers (or, as long as Borrowers remain responsible for the payment in full of all amounts drawn thereunder and related fees, costs and expenses, for the account of any Loan Party), Letters of Credit (denominated in Dollars and with face amounts that are multiples of $100,000) from time to time on any Business Day during the period from the Closing Date through the earlier of the Termination Date and seven (7) days prior to the Scheduled Termination Date; provided,  however, that such L/C Issuer shall not be under any obligation to Issue any Letter of Credit upon the occurrence of any of the following, after giving effect to such Issuance:

(i) (A) the aggregate Revolving Credit Outstandings would exceed the Borrowing Availability, or (B) the L/C Obligations for all Letters of Credit would exceed the L/C Sublimit;

(ii) the expiration date of such Letter of Credit (A) is not a Business Day, (B) is more than one (1) year after the date of issuance thereof or (C) is later than seven (7) days prior to the Scheduled Termination Date; provided,  however, that any Letter of Credit with a term not exceeding one (1) year may provide for its renewal for additional periods not exceeding one (1) year as long as (x) each Borrower and such L/C Issuer have the option to prevent such renewal before the expiration of such term or any such period and (y) neither such L/C Issuer nor Borrowers shall permit any such renewal to extend such expiration date beyond the date set forth in clause (C) above; or

(iii) (A) any fee due in connection with, and on or prior to, such Issuance has not been paid, (B) such Letter of Credit is requested to be Issued in a form that is not acceptable to such L/C Issuer or (C) such L/C Issuer shall not have received, each in form and substance reasonably acceptable to it and duly executed by LLC Parent on behalf of the requesting Borrowers (and, if such Letter of Credit is issued for the account of any other Loan Party, such Loan Party), the documents that such L/C Issuer generally uses in the ordinary course of its business for the Issuance of letters of credit of the type of such Letter of Credit (collectively, the “L/C Reimbursement Agreement”).

Notwithstanding anything to the contrary set forth herein, Borrowers agree and acknowledge that no part of the Revolving Credit Commitments will be available for the issuance of a Letter of Credit until such times as Administrative Agent notifies Borrowers that a Lender party to this Agreement is an L/C Issuer.

For each such Issuance, the applicable L/C Issuer may, but shall not be required to, (A) determine that, or take notice whether, the conditions precedent set forth in Section 3.2 have been satisfied or waived in connection with the Issuance of any Letter of Credit; provided,  however, that no Letter of Credit shall be Issued during the period starting on the first Business Day after the receipt by such L/C Issuer of notice from Administrative Agent or the Required Lenders that any condition precedent contained in Section 3.2 is not satisfied and ending on the date all such conditions are satisfied or duly waived, and/or (B) elect to issue Letters of Credit in its own name to the extent permitted by applicable law (which Letters of Credit may not be accepted by certain beneficiaries such as insurance companies).

Notwithstanding anything else to the contrary herein, if any Lender is a Defaulting Lender, no L/C Issuer shall be obligated to Issue any Letter of Credit unless (w) the Defaulting Lender has been replaced in accordance with Section 11.2, (x) the Letter of Credit Obligations of such Defaulting Lender have been

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reallocated to other Lenders, (y) the Revolving Credit Commitments of the other Revolving Lenders have been increased by an amount sufficient to satisfy the Administrative Agent that all future Letter of Credit Obligations will be covered by all Revolving Lenders that are not Defaulting Lenders, or (z) if the replacement described in clause (w) and the reallocations described in clauses (x) and (y) cannot, or can only partially, be effected, the Letter of Credit Obligations of such Defaulting Lender have been cash collateralized by such Defaulting Lender or the Borrowers.  All or a portion of the Letter of Credit Obligations of a Defaulting Lender (unless such Defaulting Lender is the L/C Issuer that Issued such Letter of Credit) and reimbursement obligations with respect to Swing Loans shall, at the Administrative Agent’s election at any time or upon any L/C Issuer’s or Swingline Lender’s, as applicable, written request delivered to the Administrative Agent (whether before or after the occurrence of any Default or Event of Default), be reallocated to and assumed by the Lenders that are not Defaulting Lenders pro rata in accordance with their percentage of the total Revolving Credit Commitment (calculated as if the Defaulting Lender’s Pro Rata Share in such tranche was reduced to zero and each other Lender’s Pro Rata Share in such tranche had been increased proportionately); provided that no Lender shall be reallocated any such amounts or be required to fund any amounts that would cause the sum of its outstanding Revolving Loans, outstanding Letter of Credit Obligations, amounts of its participations in Swing Loans and its pro rata share of unparticipated amounts in Swing Loans to exceed its Revolving Credit Commitment.

(b) Notice of Issuance.  LLC Parent on behalf of Borrowers shall give the relevant L/C Issuer and Administrative Agent a notice of any requested Issuance of any Letter of Credit, which shall be effective only if received by such L/C Issuer and Administrative Agent not later than 11:00 a.m. on the third Business Day prior to the date of such requested Issuance.  Such notice may be made in a writing substantially in the form of Exhibit E duly completed or in a writing in any other form acceptable to such L/C Issuer (an “L/C Request”) or by telephone if confirmed promptly, but in any event within one Business Day and prior to such Issuance, with such an L/C Request.

(c) Reporting Obligations of L/C Issuers.  Each L/C Issuer agrees to provide Administrative Agent (which, after receipt, Administrative Agent shall provide to each Revolving Lender), in form and substance satisfactory to Administrative Agent, each of the following on the following dates:  (i) on or prior to (A) any Issuance of any Letter of Credit by such L/C Issuer, (B) any drawing under any such Letter of Credit or (C) any payment (or failure to pay when due) by Borrowers of any related L/C Reimbursement Obligation, notice thereof, which shall contain a reasonably detailed description of such Issuance, drawing or payment, (ii) upon the request of Administrative Agent (or any Revolving Lender through Administrative Agent), copies of any Letter of Credit Issued by such L/C Issuer and any related L/C Reimbursement Agreement and such other documents and information as may reasonably be requested by Administrative Agent and (iii) on the first Business Day of each calendar month, a schedule of the Letters of Credit Issued by such L/C Issuer, in form and substance reasonably satisfactory to Administrative Agent, setting forth the L/C Obligations for such Letters of Credit outstanding on the last Business Day of the previous calendar month.

(d) Acquisition of Participations.  Upon any Issuance of a Letter of Credit in accordance with the terms of this Agreement resulting in any increase in the L/C Obligations, each Revolving Lender shall be deemed to have acquired, without recourse or warranty, an undivided interest and participation in such Letter of Credit and the related L/C Obligations in an amount equal to such Lender’s Pro Rata Share of such L/C Obligations.

(e) Reimbursement Obligations of Borrower.  Borrowers agree to pay to the L/C Issuer of any Letter of Credit each L/C Reimbursement Obligation owing with respect to such Letter of Credit no later than the first Business Day after LLC Parent receives notice from such L/C Issuer that payment has been made under such Letter of Credit or that such L/C Reimbursement

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Obligation is otherwise due (the “L/C Reimbursement Date”) with interest thereon computed as set forth in clause (i) below.  In the event that any L/C Issuer incurs any L/C Reimbursement Obligation not repaid by Borrowers as provided in this clause (e) (or any such payment by Borrowers is rescinded or set aside for any reason), such L/C Issuer shall promptly notify Administrative Agent of such failure (and, upon receipt of such notice, Administrative Agent shall forward a copy to each Revolving Lender) and, irrespective of whether such notice is given, such L/C Reimbursement Obligation shall be payable on demand by Borrowers with interest thereon computed (i) from the date on which such L/C Reimbursement Obligation arose to the L/C Reimbursement Date, at the interest rate applicable during such period to Revolving Loans and (ii) thereafter until payment in full, at the interest rate applicable during such period to past due Revolving Loans.

(f) Reimbursement Obligations of the Revolving Lenders.  Upon receipt of the notice described in clause (e) above from Administrative Agent, each Revolving Lender shall pay to Administrative Agent for the account of such L/C Issuer its Pro Rata Share of such L/C Reimbursement Obligation.  By making such payment (other than during the continuation of an Event of Default under Section 9.1(g) or (h)), such Lender shall be deemed to have made a Revolving Loan to Borrower, which, upon receipt thereof by such L/C Issuer, Borrowers shall be deemed to have used in whole to repay such L/C Reimbursement Obligation.  Any such payment that is not deemed a Revolving Loan shall be deemed a funding by such Lender of its participation in the applicable Letter of Credit and the related L/C Obligations.  Such participation shall not otherwise be required to be funded.  Upon receipt by an L/C Issuer of any payment from any Lender pursuant to this clause (f) with respect to any portion of any L/C Reimbursement Obligation, such L/C Issuer shall promptly pay over to such Lender all payments received after such payment by such L/C Issuer with respect to such portion.

(g) Obligations Absolute.  The obligations of Borrowers and the Revolving Lenders pursuant to clauses (d), (e) and (f) above shall be absolute, unconditional and irrevocable and performed strictly in accordance with the terms of this Agreement irrespective of (i) (A) the invalidity or unenforceability of any term or provision in any Letter of Credit, any document transferring or purporting to transfer a Letter of Credit, any Loan Document (including the sufficiency of any such instrument), or any modification to any provision of any of the foregoing, (B) any document presented under a Letter of Credit being forged, fraudulent, invalid, insufficient or inaccurate in any respect or failing to comply with the terms of such Letter of Credit or (C) any loss or delay, including in the transmission of any document, (ii) the existence of any setoff, claim, abatement, recoupment, defense or other right that any Person (including any Loan Party) may have against the beneficiary of any Letter of Credit or any other Person, whether in connection with any Loan Document or any other Contractual Obligation or transaction, or the existence of any other withholding, abatement or reduction, (iii) in the case of the obligations of any Revolving Lender, (A) the failure of any condition precedent set forth in Section 3.2 to be satisfied (each of which conditions precedent the Revolving Lenders hereby irrevocably waive) or (B) any adverse change in the condition (financial or otherwise) of any Loan Party and (iv) any other act or omission to act or delay of any kind of any Secured Party or any other Person or any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 2.4, constitute a legal or equitable discharge of any obligation of Borrowers or any Revolving Lender hereunder.

Section 2.5 Reduction and Termination of the Commitments.  All outstanding Commitments shall terminate (i) on the Scheduled Termination Date or (ii) in connection with an optional repayment pursuant to Section 2.7 in the amount of such prepayment.  The aggregate Delayed Draw Term Loan Commitment of all Delayed Draw Term Lenders shall reduce on each Delayed Draw Term Loan Reduction Date pursuant to Section 2.1(d)

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Section 2.6 Repayment of Loans.  Borrowers promise to repay the entire unpaid principal amount of the Loans on or before the Scheduled Termination Date. 

Section 2.7 Optional Prepayments; Optional Revolving Credit Commitment Reductions

(a) Upon 5 Business Days irrevocable prior written notice to Administrative Agent (provided that such notice may be conditioned on closing the applicable refinancing or Transfer for which such notice was given), Borrowers may (i) prepay the outstanding principal amount of the Revolving Credit Facility and the other Obligations related thereto and terminate the Revolving Credit Commitments of the Revolving Lenders in whole or (ii) permanently reduce the Revolving Credit Commitment, in part, and prepay the outstanding principal amount of the Revolving Credit Facility and the other Obligations related thereto, subject in each case to the payment of the applicable Termination Fee and Exit Fee; provided that the Revolving Credit Commitment may not be terminated in whole without concurrently terminating the Delayed Draw Term Loan Commitment and prepaying the outstanding Closing Date Term Loan and Delayed Draw Term Loans, together with all other Obligations.  For the avoidance of doubt, Borrowers shall have the right to prepay the outstanding principal amount of the Revolving Credit Facility (without any corresponding reduction of the Revolving Credit Commitments) in part at any time and from time to time without any Termination Fee or any other premium or penalty.

(b) Upon 5 Business Days irrevocable prior written notice to Administrative Agent in the form of an appropriately completed Payment Notification (provided that such notice may be conditioned on closing the applicable refinancing or Transfer for which such notice was given), Borrowers may prepay the Closing Date Term Loan in whole, but not in part, together with the other Obligations related thereto, subject to the payment of the applicable Termination Fee and Exit Fee.

(c) Borrowers may prepay the outstanding principal amount of the Delayed Draw Term Loan and the other Obligations related thereto, in whole or in part, and terminate the Delayed Draw Term Loan Facility in its entirety, without premium or penalty; provided that any such prepayment made (i) in part shall be in an aggregate amount not less than $1,000,000 and that is an integral multiple of $1,000,000 or (ii) in full shall be in an amount equal to the entire remaining balance of the Obligations; and provided further that any such prepayment shall be accompanied by an appropriately completed Payment Notification.

Section 2.8 Mandatory Prepayments.

(a) GHLLC Transfers and Property Loss Events.  Subject to clause (e) below, upon receipt on or after the Closing Date by any Loan Party or any of its Subsidiaries (excluding the HUD Sub-Facility Entities during all times the HUD Sub-Facility Credit Agreement is in effect) of Net Cash Proceeds arising from (i) any Transfer by any Borrower of any of its ABL Priority Collateral in reliance on Section 8.3(d) or Section 8.5 or (ii) any Property Loss Event with respect to any ABL Priority Collateral of any Loan Party to the extent resulting in the receipt by any Loan Party of Net Cash Proceeds in excess of $1,500,000, such Loan Party shall immediately pay or cause to be paid to the Administrative Agent an amount equal to 100% of the Net Cash Proceeds of such ABL Priority Collateral.

(b) Excess Outstandings.  On any date on which the aggregate principal amount of Revolving Credit Outstandings exceeds the lesser of the aggregate Revolving Credit Commitments

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and the Borrowing Base, Borrowers shall pay to Administrative Agent an amount equal to such excess, together with the other Obligations then due and payable directly related thereto.

(c) Delayed Draw Term Loan Repayment.  On each Delayed Draw Term Loan Reduction Date, Borrowers shall pay to Administrative Agent an amount equal to the amount by which the aggregate principal amount of Delayed Draw Term Loans exceeds the reduced Delayed Draw Term Loan Commitments of the Delayed Draw Term Lenders, which amount Administrative Agent shall apply to the outstanding principal balance of Delayed Draw Term Loans.

(d) Revolving Loans Repayment.  Upon receipt on or after the Closing Date by any Loan Party or any of its Subsidiaries (excluding the HUD Sub-Facility Entities during all times the HUD Sub-Facility Credit Agreement is in effect) of payments or  proceeds of any Accounts, Borrowers shall pay to Administrative Agent an amount equal to such payments or proceeds, as further described in Section 7.12 below, which amount Administrative Agent shall apply to the outstanding principal balance of Revolving Loans.  No Termination Fee shall be due on account of any payments made pursuant to this clause (d).

(e) Application of Payments.  Any payments made to Administrative Agent pursuant to this Section 2.8, unless specifically stated otherwise, shall be subject to the applicable Termination Fee, if any.  All payments pursuant to clauses (a) and (c) above shall be accompanied by an appropriately completed Payment Notification. All payments pursuant to this Section 2.8 shall be applied to the Obligations in accordance with Section 2.12(b).  Notwithstanding the foregoing, if any Lease, including the Master Leases, or Constituent Document of any joint venture (each as existing on the Closing Date and not amended, modified or entered into in violation of this Agreement) requires the application of proceeds paid pursuant to clause (a) above, in a manner inconsistent with clause (a) above, LLC Parent on behalf of Borrowers (1) shall provide notice to Administrative Agent as required pursuant to Section 6.2(b) hereof, and (2) after such notice, shall apply, or shall cause the applicable Borrower to apply, the proceeds of such insurance as directed in the respective Lease or Constituent Document; provided,  however, to the extent there are surplus proceeds after compliance with the requirements of the applicable Lease or Constituent Document, then such surplus proceeds shall be applied in accordance with Section 2.12(b).

Section 2.9 Interest.

(a) Rate.  Except as provided in Section 2.16(b), Loans shall accrue interest at the LIBOR Rate plus the Applicable Margin.  Anything to the contrary contained herein notwithstanding, however, neither Administrative Agent nor any Lender is required actually to acquire eurodollar deposits to fund or otherwise match fund any Obligation as to which interest accrues based on the LIBOR Rate.

(b) Payments.  From and following the Closing Date, except as expressly set forth in this Agreement, Loans and the other Obligations shall bear interest at the sum of the LIBOR Rate plus the Applicable Margin.  Interest on the Loans shall be paid in arrears on the first (1st) day of each month and on the maturity of such Loans, whether by acceleration or otherwise.  Interest on all other Obligations shall be payable upon demand.  For purposes of calculating interest, all funds transferred to the Agent Collection Account for application to the Revolving Loans shall be subject to a one Business Day clearance period and all interest accruing on such funds during such clearance period shall accrue for the benefit of Administrative Agent, and not for the benefit of the Lenders.

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(c) Default Interest.  Notwithstanding the rates of interest specified in clause (a) above or elsewhere in any Loan Document, effective immediately upon (i) the occurrence of any Event of Default under Section 9.1(a)(g) or (h) or (ii) the delivery of a notice by Administrative Agent or the Required Lenders to Borrowers during the continuance of any other Event of Default and, in each case, for as long as such Event of Default shall be continuing, the principal balance of all Obligations (including any Obligation that bears interest by reference to the rate applicable to any other Obligation then due and payable) shall bear interest at a rate that is 2.0% per annum in excess of the interest rate then applicable to such Obligations, payable on demand or, in the absence of demand, on the date that would otherwise be applicable.

Section 2.10 Reserved.

Section 2.11 Fees.

(a) Unused Commitment Fee

(i) Borrowers agree to pay to Administrative Agent, for the benefit of each Revolving Lender, a commitment fee on the actual daily amount by which the Revolving Credit Commitment exceeds the sum of the aggregate Revolving Credit Outstandings from the Closing Date through the Termination Date at a rate per annum equal to 0.50% in each case, payable in arrears (x) on the first day of each calendar month and (y) on the Termination Date.  For purposes of this Section 2.11(a), the Revolving Credit Commitment of any Defaulting Lender shall be deemed to be zero.

(ii) Borrowers agree to pay to Administrative Agent, for the benefit of each Delayed Draw Term Lender, a commitment fee on the actual daily amount by which the Delayed Draw Term Loan Commitment exceeds the sum of the aggregate principal balance of Delayed Draw Term Loans from the Closing Date through the Termination Date at a rate per annum equal to 2.00% in each case, payable in arrears (x) on the first day of each calendar month and (y) on the Termination Date.  For purposes of this Section 2.11(a), the Delayed Draw Term Loan Commitment of any Defaulting Lender shall be deemed to be zero.

(b) Letter of Credit Fees.  Borrowers agree to pay, with respect to all Letters of Credit issued by any L/C Issuer, (i) to such L/C Issuer, certain fees, documentary and processing charges as separately agreed between Borrowers and L/C Issuer or otherwise in accordance with such L/C Issuer’s standard schedule in effect at the time of determination thereof and (ii) to Administrative Agent, for the benefit of the Revolving Lenders according to their Pro Rata Shares, a fee accruing at a rate per annum equal to the Applicable Margin – Revolving Loan on the maximum undrawn face amount of such Letters of Credit, payable in arrears (A) on the first day of each calendar month, ending after the issuance of such Letter of Credit and (B) on the Termination Date; provided,  however, that the fee payable under this clause (ii) shall be increased by 2.0% per annum (which amounts are in lieu of and not in addition to amounts payable under Section 2.9(c)) and shall be payable (in addition to being payable on any date it is otherwise required to be paid hereunder) on demand effective immediately upon (x) the occurrence of any Event of Default under Section 9.1(a),  (g) or (h) or (y) the delivery of a notice by Administrative Agent or the Required Lenders to Borrowers during the continuance of any other Event of Default and, in each case, for as long as such Event of Default shall be continuing; provided,  further, that in the event that any reallocation of Letter of Credit Obligations occurs pursuant to Section 2.4, during the period of time that such reallocation remains in effect, the Letter of Credit fee payable with respect to such

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reallocated portion shall be payable to (A) all Lenders based on their pro rata share of such reallocation or (B) to the L/C Issuer for any remaining portion not reallocated to any other Lenders.

(c) Exit Fee

(i) Borrowers shall pay to Administrative Agent, for the benefit of all Lenders committed to make the Closing Date Term Loan, as compensation for the costs of making funds available to Borrowers under this Agreement an exit fee (the “Closing Date Term Loan Exit Fee”) calculated in accordance with this subsection and upon the date or dates required under this subsection.  The Closing Date Term Loan Exit Fee shall be equal to $1,625,000.  The Closing Date Term Loan Exit Fee shall be due and payable on the Scheduled Termination Date or, if earlier, the date on which the Closing Date Term Loan is paid in full (whether by voluntary prepayment by Borrowers, by reason of the occurrence of an Event of Default or the acceleration of the Closing Date Term Loan, or otherwise). 

(ii) Borrowers shall pay to Administrative Agent, for the benefit of all Revolving Lenders, as compensation for the costs of making funds available to Borrowers under this Agreement an exit fee (the “Revolver Exit Fee”) calculated in accordance with this subsection and upon the date or dates required under this subsection.  The Revolver Exit Fee shall be equal to $1,000,000.  The Revolver Exit Fee shall be due and payable on the Scheduled Termination Date or, if earlier, the date on which the Revolving Credit Commitment is terminated (whether by voluntary prepayment by Borrowers, by reason of the occurrence of an Event of Default or the acceleration of the Closing Date Term Loan, or otherwise).   

(iii) All fees payable pursuant to this paragraph shall be deemed fully accrued and earned as of the Closing Date.

(d) Additional Fees.  Borrowers shall pay to Administrative Agent and its Related Persons such other fees as described in the Fee Letter.

Section 2.12 Application of Payments.

(a) Application of Voluntary Prepayments.  Unless otherwise provided in this Section 2.12 or elsewhere in any Loan Document, all voluntary prepayments permitted pursuant to Section 2.7 and received by Administrative Agent shall be applied as designated by LLC Parent on behalf of Borrowers.

(b) Application of Mandatory Prepayments.  Subject to the provisions of clause (c) below with respect to the application of payments during the continuance of an Acceleration Event, any payment made by Borrowers to Administrative Agent pursuant to Section 2.8 or any other prepayment of the Obligations required to be applied in accordance with this clause (b) (other than in respect of any payment required pursuant to (i) Sections 2.1(a), 2.8(b) or 2.8(d), which shall be applied to repay the outstanding principal balance of the Revolving Loans and (ii) Section 2.8(c), which shall be applied to repay the outstanding principal balance of the Delayed Draw Term Loans and other Obligations related thereto) shall be applied first, to repay the outstanding principal balance of the Loans (in such order as Administrative Agent may from time to time elect), second, in the case of any payment required pursuant to Section 2.1(a)(ii), to provide cash collateral to the extent and in the manner required by Section 9.3, and then, any excess shall be retained by Borrower.

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(c) Application of Payments During an Event of Default.  Each Loan Party hereby irrevocably waives, and agrees to cause each Loan Party to waive, the right to direct the application during the continuance of an Event of Default of any and all payments in respect of any Obligation and any proceeds of Collateral and agrees that, notwithstanding the provisions of clause (a) above, absent the occurrence and continuance of an Acceleration Event, Administrative Agent may apply any and all payments received by Administrative Agent in respect of the Obligations, and any and all proceeds of Collateral received by Administrative Agent, in such order as Administrative Agent may from time to time elect. Also notwithstanding the provisions of clause (a), during the occurrence and continuance of an Acceleration Event, Administrative Agent shall apply all payments in respect of any Obligation and all proceeds of Collateral first, to pay Obligations in respect of any cost or expense reimbursements, fees or indemnities then due to Administrative Agent, second, to pay Obligations in respect of any cost or expense reimbursements, fees or indemnities then due to the Lenders (in their capacity as Lenders) and the L/C Issuers, third, to pay interest then due and payable in respect of the Loans and the L/C Reimbursement Obligations, fourth, to repay the outstanding principal amounts of the Swing Loans to the extent not reimbursed by Lenders or deemed to be Revolving Loans, fifth, to repay the outstanding principal amounts of Loans and the L/C Reimbursement Obligations and to provide cash collateral for Letters of Credit in the manner and to the extent described in Section 9.3, and to pay amounts owing with respect to Secured Hedge Agreements (but paid only to the extent and up to the amount of reserves against the Borrowing Base that have been established for “potential future exposure” as calculated by Administrative Agent in its sole credit judgment) and sixth, to the ratable payment of all other Obligations, including Cash Management Obligations; provided, that, notwithstanding anything to the contrary set forth above, in no event shall the proceeds of any Collateral owned, or any Guarantee Obligations provided, by any Loan Party under any Loan Document be applied to repay or cash collateralize any Excluded Swap Obligation with respect to such Loan Party.

(d) General Provisions  If sufficient amounts are not available to repay all outstanding Obligations described in any priority level set forth in this Section 2.12, the available amounts shall be applied, unless otherwise expressly specified herein, to such Obligations ratably based on the each Secured Parties’ interest in such Obligations.  Any priority level set forth in this Section 2.12 that includes interest shall include all such interest, whether or not accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or similar proceeding, and whether or not a claim for post-filing or post-petition interest is allowed in any such proceeding.

Section 2.13 Payments and Computations.

(a) Procedure.  LLC Parent on behalf of each Borrower shall make each payment under any Loan Document not later than 1:00 p.m. on the day when due to Administrative Agent by a single wire transfer to the Agent Collection Account (or at such other account or by such other means to such other address as Administrative Agent shall have notified LLC Parent for each Borrower in writing at least five (5) Business Days prior to such payment) in immediately available Dollars and without setoff or counterclaim.  Payments received by Administrative Agent after 1:00 p.m. shall be deemed to be received on the next Business Day.

(b) Computations of Interests and Fees.  All computations of interest and of fees shall be made by Administrative Agent on the basis of a year of 360 days (or, in the case of Base Rate Loans whose interest rate is calculated based on the rate set forth in clause (a) of the definition of “Base Rate,” 365/366 days), in each case for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest and fees are payable.  Each determination of an interest rate or the amount of a fee hereunder shall be made by Administrative

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Agent as set forth in the respective definition thereof and shall be conclusive, binding and final for all purposes, absent manifest error.

(c) Payment Dates.  Whenever any payment hereunder shall be stated to be due on a day other than a Business Day, the due date for such payment shall be extended to the next succeeding Business Day without any increase in such payment as a result of additional interest or fees; provided,  however, that such interest and fees shall continue accruing as a result of such extension of time.

(d) Advancing Payments.  Unless Administrative Agent shall have received notice from LLC Parent on behalf of each Borrower to the Lenders prior to the date on which any payment is due hereunder that Borrowers will not make such payment in full, Administrative Agent may assume that Borrowers have made such payment in full to Administrative Agent on such date and Administrative Agent may, in reliance upon such assumption, cause to be distributed to each Lender on such due date an amount equal to the amount then due such Lender.  If and to the extent that Borrowers shall not have made such payment in full to Administrative Agent, each Lender shall repay to Administrative Agent on demand such amount distributed to such Lender together with interest thereon (at the Federal Funds Rate for the first Business Day and thereafter, at the rate applicable to Base Rate Loans under the Revolving Credit Facility) for each day from the date such amount is distributed to such Lender until the date such Lender repays such amount to Administrative Agent.

Section 2.14 Evidence of Debt.

(a) Records of Lenders.  Each Lender shall maintain in accordance with its usual practice accounts evidencing Indebtedness of each Borrower to such Lender resulting from each Loan of such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time under this Agreement.  In addition, each Lender having sold a participation in any of its Obligations or having identified an SPV as such to Administrative Agent, acting as agent of each Borrower solely for this purpose and solely for tax purposes, shall establish and maintain at its address referred to in Section 11.11 (or at such other address as such Lender shall notify Borrower) a record of ownership, in which such Lender shall register by book entry (A) the name and address of each such participant and SPV (and each change thereto, whether by assignment or otherwise) and (B) the rights, interest or obligation of each such participant and SPV in any Obligation, in any Revolving Credit Commitment and in any right to receive any payment hereunder.

(b) Records of Administrative Agent.  Administrative Agent, acting as agent of each Borrower solely for tax purposes and solely with respect to the actions described in this Section 2.14, shall establish and maintain at the office of its servicer located at the address referred to in Section 11.11 (or at such other address as Administrative Agent may notify Borrower) (A) a record of ownership (the “Register”) in which Administrative Agent agrees to register by book entry the interests (including any rights to receive payment hereunder) of Administrative Agent, each Lender and each L/C Issuer, the Revolving Credit Outstandings, the Delayed Draw Term Loan Outstandings, the outstanding principal balance of the Closing Date Term Loan, each of their obligations under this Agreement to participate in each Loan, Letter of Credit and L/C Reimbursement Obligation, and any assignment of any such interest, obligation or right and (B) accounts in the Register in accordance with its usual practice in which it shall record (1) the names and addresses of the Lenders and the L/C Issuers (and each change thereto pursuant to Section 2.18 (Substitution of Lenders) and Section 11.2 (Assignments and Participations; Binding Effect)), (2) the Revolving Credit Commitments of each Lender, (3) the amount of each Loan and

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each funding of any participation described in clause (A) above,  (4) the amount of any principal or interest due and payable or paid, (5) the amount of the L/C Reimbursement Obligations due and payable or paid and (6) any other payment received by Administrative Agent from any Borrower and its application to the Obligations.

(c) Registered Obligations.  Notwithstanding anything to the contrary contained in this Agreement, the Loans (including any Notes evidencing such Loans and, in the case of Revolving Loans, the corresponding obligations to participate in L/C Obligations and Swing Loans) and the L/C Reimbursement Obligations are registered obligations, the right, title and interest of the Lenders and the L/C Issuers and their assignees in and to such Loans or L/C Reimbursement Obligations, as the case may be, shall be transferable only upon notation of such transfer in the Register and no assignment thereof shall be effective until recorded therein.  This Section 2.14 and Section 11.2 shall be construed so that the Loans and L/C Reimbursement Obligations are at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Code and any related regulations (and any successor provisions).

(d) Prima Facie Evidence.  The entries made in the Register and in the accounts maintained pursuant to clauses (a) and (b) above shall, to the extent permitted by applicable Requirements of Law, be prima facie evidence of the existence and amounts of the obligations recorded therein; provided,  however, that no error in such account and no failure of any Lender or Administrative Agent to maintain any such account shall affect the obligations of any Loan Party to repay the Loans in accordance with their terms.  In addition, the Loan Parties, Administrative Agent, the Lenders and the L/C Issuers shall treat each Person whose name is recorded in the Register as a Lender or L/C Issuer, as applicable, for all purposes of this Agreement.  Information contained in the Register with respect to any Lender or any L/C Issuer shall be available for access by Borrower, Administrative Agent, such Lender or such L/C Issuer at any reasonable time and from time to time upon reasonable prior notice.  No Lender or L/C Issuer shall, in such capacity, have access to or be otherwise permitted to review any information in the Register other than information with respect to such Lender or L/C Issuer unless otherwise agreed by Administrative Agent.

(e) Notes.  Upon any Lender’s request, Borrowers shall promptly execute and deliver Notes to such Lender evidencing the Loans of such Lender and substantially in the form of Exhibit B.  Each Note, if issued, shall only be issued as means to evidence the right, title or interest of a Lender or a registered assignee in and to the related Loan, as set forth in the Register, and in no event shall any Note be considered a bearer instrument or obligation.

Section 2.15 Suspension of LIBOR Rate Option.  Notwithstanding any provision to the contrary in this Article 2, but subject to the last sentence of Section 2.9, the following shall apply:

(a) Interest Rate Unascertainable, Inadequate or Unfair.  In the event that (A) Administrative Agent determines that adequate and fair means do not exist for ascertaining the Base LIBOR Rate in accordance with the definition thereof or (B) Required Lenders, as the case may be, notify Administrative Agent that the LIBOR Rate Loans, as the case may be, for any Interest Period will not adequately reflect the cost to such Lenders of making or maintaining such Loans for such Interest Period by reason of any changes arising after the Closing Date, Administrative Agent shall promptly so notify LLC Parent and such Lenders, whereupon the obligation of each such Lender to make or to continue LIBOR Rate Loans shall be suspended as provided in clause (c) below until Administrative Agent shall notify LLC Parent that the Required Lenders, as the case may be, have determined that the circumstances causing such suspension no

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longer exist.  Notwithstanding the foregoing, if at any time Administrative Agent determines (which determination shall be conclusive absent manifest error) that the circumstances set forth above in subclause (A) of this clause (a) have arisen and such circumstances are unlikely to be temporary, then Administrative Agent, in consultation with LLC Parent, shall select a comparable successor rate determined in good faith.

(b) Illegality.  If any Lender determines that the introduction of, or any change in or in the interpretation of, any Requirement of Law after the date of this Agreement shall make it unlawful, or any Governmental Authority shall assert that it is unlawful, for any Lender or its applicable lending office to make LIBOR Rate Loans or to continue to fund or maintain LIBOR Rate Loans, then, on notice thereof and demand therefor by such Lender to LLC Parent through Administrative Agent, the obligation of such Lender to make or to continue LIBOR Rate Loans shall be suspended as provided in clause (c) below until such Lender shall, through Administrative Agent, notify LLC Parent that it has determined that it may lawfully make LIBOR Rate Loans.

(c) Effect of Suspension.  If the obligation of any Lender to make or to continue LIBOR Rate Loans is suspended, (A) such Lender shall make a Base Rate Loan at any time such Lender would otherwise be obligated to make a LIBOR Rate Loan and (B) each LIBOR Rate Loan of such Lender shall automatically and immediately be converted into a Base Rate Loan

Section 2.16 Increased Costs; Capital Requirements..

(a) Reserved.

(b) Increased Costs.  If at any time any Lender or L/C Issuer determines that, after the Closing Date, the adoption of, or any change in or in the interpretation, application or administration of, or compliance with, any Requirement of Law (other than any imposition or increase of Reserve Requirements) from any Governmental Authority shall have the effect of (i) increasing the cost to such Lender of making, funding or maintaining any LIBOR Rate Loan or to agree to do so or of participating, or agreeing to participate, in extensions of credit, (ii) increasing the cost to such L/C Issuer of Issuing or maintaining any Letter of Credit or of agreeing to do so or (iii) imposing any other cost to such Lender or L/C Issuer with respect to compliance with its obligations under any Loan Document, then, upon demand by such Lender or L/C Issuer (with copy to Administrative Agent), Borrowers shall pay to Administrative Agent for the account of such Lender or L/C Issuer amounts sufficient to compensate such Lender or L/C Issuer for such increased cost.

(c) Increased Capital Requirements.  If at any time any Lender or L/C Issuer determines that, after the Closing Date, the adoption of, or any change in or in the interpretation, application or administration of, or compliance with, any Requirement of Law (other than any imposition or increase of Reserve Requirements) from any Governmental Authority regarding capital adequacy, reserves, liquidity requirements, special deposits, compulsory loans, insurance charges against property of, deposits with or for the account of, Obligations owing to, or other credit extended or participated in by, any Lender or L/C Issuer or any similar requirement (in each case other than any imposition or increase of Reserve Requirements) shall have the effect of reducing the rate of return on the capital of such Lender’s or L/C Issuer (or any corporation controlling such Lender or L/C Issuer) as a consequence of its obligations under or with respect to any Loan Document or Letter of Credit to a level below that which, taking into account the capital adequacy policies of such Lender, L/C Issuer or corporation, such Lender, L/C Issuer or corporation could have achieved but for such adoption or change, then, upon demand from time to time by such Lender or L/C Issuer (with a copy of such demand to Administrative Agent), Borrowers shall pay

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to Administrative Agent for the account of such Lender amounts sufficient to compensate such Lender for such reduction.

(d) Compensation Certificate.  Each demand for compensation under this Section 2.16 shall be accompanied by a certificate of the Lender or L/C Issuer claiming such compensation, setting forth the amounts to be paid hereunder, which certificate shall be prima facie evidence of such, absent manifest error.  In determining such amount, such Lender or L/C Issuer may use any reasonable averaging and attribution methods.  Notwithstanding anything to the contrary in this Section, the Borrowers shall not be required to compensate a Lender or L/C Issuer pursuant to this Section for any amounts incurred more than six months prior to the date such Lender or L/C Issuer notifies the Borrowers of such Lender’s or L/C Issuer’s intention to claim compensation therefore; provided that if the circumstances giving rise to such claim have retroactive effect, then such six month period shall be extended to include such period of retroactive effect.

(e) Certain Regulatory Developments.  Notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder, issued in connection therewith or in implementation thereof and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case, pursuant to Basel III, shall in each case be deemed to be a change in a Requirement of Law, regardless of the date enacted, adopted, issued or implemented.

Section 2.17 Taxes.

(a) All payments made by or on behalf of any Loan Party under any Loan Document  shall be made free and clear of, and without deduction or withholding for or on account of, any Taxes, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority responsible for administering taxes, excluding (i) net income Taxes (however determined) and franchise Taxes (in lieu of net income Taxes) imposed on the Administrative Agent or any Secured Party as a result of a present, former or future connection between the Administrative Agent or such Secured Party and the jurisdiction of the Governmental Authority imposing such Tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Secured Party having executed, delivered or performed its obligations or received a payment under, or enforced, any Loan Document), (ii) any branch profits Taxes imposed by the United States, (iii) any United States withholding Tax that (A) is imposed on amounts payable to a Secured Party at the time such Secured Party becomes a party to this Agreement or designates a new lending office, except to the extent that such Secured Party (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 Loan Party with respect to such withholding Tax pursuant to this Section or (B) or is attributable, in the case of a Non-U.S. Lender  Party (as defined below), to such Non-U.S. Lender Party’s failure to comply with Section 2.17(d) or is attributable, in the case of a U.S. Lender Party (as defined below) to such U.S. Lender Party’s failure to comply with Section 2.17(e), and (iv) any United States withholding Tax imposed under FATCA (together the amounts described in clauses (i) through (iv) are the “Excluded Taxes”).  If any such Taxes that are not Excluded Taxes (the “Non-Excluded Taxes”) or Other Taxes are required to be withheld from any amounts payable by or on behalf of any Loan Party, the amounts payable by the Loan Party shall be increased to the extent necessary to yield the Administrative Agent or such Secured Party (after deduction or withholding of all Non-Excluded Taxes and Other Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement.  For avoidance of doubt, payments made to any Secured Party

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arising under a document or agreement other than a Loan Document (but including any Secured Hedge Agreement or Cash Management Document) shall not be subject to adjustment under this Section 2.17.

(b) The Borrowers shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.

(c) Whenever any Non-Excluded Taxes or Other Taxes are payable by the Loan Parties, as promptly as possible thereafter the Loan Parties shall send to the Administrative Agent for the account of the Administrative Agent or the relevant Secured Party, as the case may be, a certified copy of an original official receipt received by the Loan Parties showing payment thereof if such receipt is obtainable, or, if not, other reasonable evidence of payment satisfactory to the Administrative Agent.

(d) Each Secured Party that is not a United States Person (as such term is defined in Section 7701(a)(30) of the Code) (a “Non-U.S. Lender Party”) shall deliver to LLC Parent and the Administrative Agent (or, in the case of a participant, to LLC Parent and to the Lender from which the related participation shall have been purchased) (i) two accurate and complete original, signed copies of IRS Form W-8ECI, W-8EXP, W-8BEN (claiming benefits under an applicable treaty) or W-8IMY (together with any applicable underlying forms), whichever is applicable, (ii) in the case of a Non-U.S. Lender Party claiming exemption from United States federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest,” a statement substantially in the form of Exhibit L and two accurate and complete original, signed copies of IRS Form W-8BEN, or any subsequent versions or successors to such forms, in each case properly completed and duly executed by such Non-U.S. Lender Party.  Such forms shall be delivered by each Non-U.S. Lender Party on or before the date it becomes a party to this Agreement (or, in the case of any participant, on or before the date such participant purchases the related participation).  In addition, each Non-U.S. Lender Party shall deliver such forms promptly upon the obsolescence or invalidity of any form previously delivered by such Non-U.S. Lender Party.  Notwithstanding any other provision of this paragraph, a Non-U.S. Lender Party shall not be required to deliver any form pursuant to this paragraph that such Non-U.S. Lender Party is not legally able to deliver.

(e) Each Secured Party that is a United States Person (as such term is defined in Section 7701(a)(30) of the Code) (a “U.S. Lender Party”) shall deliver to LLC Parent and the Administrative Agent two accurate and complete original, signed copies of IRS Form W-9, or any subsequent versions or successors to such form.  Such forms shall be delivered by each U.S. Lender Party on or before the date it becomes a party to this Agreement.  In addition, each U.S. Lender Party shall deliver such forms promptly upon the obsolescence or invalidity of any form previously delivered by such U.S. Lender Party.

(f) The Borrowers shall indemnify the Administrative Agent and any Secured Party, within 30 days after the written demand therefor, the full amount of any Non-Excluded Taxes or Other Taxes (including any Non-Excluded Taxes or Other Taxes imposed or asserted on amounts payable under this Section) payable or paid by the Administrative Agent or Secured Party whether or not such Taxes are correctly or legally asserted by the relevant Governmental Authority.  A certificate as to the amount of such amount or liability delivered to LLC Parent by a Secured Party (with a copy to the Administrative Agent) or by the Administrative Agent on its behalf of on behalf of a Secured Party, shall be conclusive absent manifest error.

(g) If any Secured Party determines, in good faith, that it has received a refund of any Non-Excluded Taxes or Other Taxes as to which it has been indemnified by the Borrowers or with

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respect to which a Loan Party has paid additional amounts pursuant to this Section, it shall promptly pay over such refund to the Borrowers (but only to the extent of indemnity payments made, or additional amounts paid, by the Loan Party under this Section with respect to the Non-Excluded Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or such Secured Party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the Borrowers, upon the request of the Administrative Agent or such Secured Party, agree to repay the amount paid over to the Borrowers (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Secured Party in the event the Administrative Agent or such Secured Party is required to repay such refund to such Governmental Authority.  Notwithstanding anything to the contrary in this paragraph (g), in no event will the Administrative Agent or Lender be required to pay any amount to the Borrowers pursuant to this paragraph (g) the payment of which would place the Secured Party in a less favorable net after-Tax position than the Secured Party would have been in if the indemnification payments or additional amounts giving rise to such refund had never been paid.  This paragraph shall not be construed to require the Administrative Agent or any Secured Party to make available its Tax Returns (or any other information relating to its Taxes which it deems confidential) to the Borrowers or any other Person.

(h) Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Non-Excluded Taxes attributable to such Lender (but only to the extent that the Borrowers have not already indemnified the Administrative Agent for such Non-Excluded Taxes and without limiting the obligation of the Borrowers to do so), and (ii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error.  Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this paragraph (h).  The agreements in this paragraph (h) shall survive the resignation and/or replacement of the Administrative Agent.

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

(j) The agreements in this Section shall survive the termination of this Agreement and the payment of the Obligations.

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Section 2.18 Substitution of Lenders.

(a) Substitution Right.  In the event that any Lender that is not an Affiliate of Administrative Agent (an “Affected Lender”), (i) makes a claim under clause (b) (Increased Costs) or (c) (Increased Capital Requirements) of Section 2.16, (ii) notifies LLC Parent pursuant to Section 2.15(b) (Illegality) that it becomes illegal for such Lender to continue to fund or make any LIBOR Rate Loan, (iii) makes a claim for payment pursuant to Section 2.17 (Taxes), (iv) becomes a Defaulting Lender or (v) does not consent to any request made by LLC Parent on behalf of Borrowers in good faith for an amendment, waiver or consent to any Loan Document for which the consent of Required Lenders or Required Revolving Lenders, as applicable, is obtained but that requires the consent of other Lenders in the particular tranche, Borrowers may substitute for such Affected Lender in the applicable Credit Facility any Lender or any Affiliate of any Lender or any other Person (other than a Restricted Person) reasonably acceptable (which acceptance shall not be unreasonably withheld or delayed) to Administrative Agent to the extent that an assignment to such replacement financial institution of the rights and obligations being acquired by it would otherwise require the consent of the Administrative Agent pursuant to Section 11.2(b) (in each case, a “Substitute Lender”).

(b) Procedure.  To substitute such Affected Lender under the Revolving Credit Facility, LLC Parent on behalf of Borrowers shall deliver a notice to Administrative Agent and such Affected Lender.  The effectiveness of such substitution shall be subject to the delivery to Administrative Agent by LLC Parent on behalf of Borrowers (or, as may be applicable in the case of a substitution, by the Substitute Lender) of (i) payment for the account of such Affected Lender, of, to the extent accrued through, and outstanding on, the effective date for such substitution, all Obligations owing to such Affected Lender with respect to the Revolving Credit Facility (including those that will be owed because of such payment and all Obligations that would be owed to such Lender if it was solely a Lender in the Revolving Credit Facility, but shall not include, and Borrowers shall not be assessed any Termination Fee), and (ii) in the case of a substitution, (A) payment of the assignment fee set forth in Section 11.2(c) and (B) an assumption agreement in form and substance satisfactory to Administrative Agent whereby the Substitute Lender shall, among other things, agree to be bound by the terms of the Loan Documents and assume the Revolving Credit Commitment of the Affected Lender under the Revolving Credit Facility; provided that (u) such replacement does not conflict with any Requirement of Law, (v) [reserved], (w) the replacement financial institution, if not already a Lender, shall be reasonably satisfactory to the Administrative Agent to the extent that an assignment to such replacement financial institution of the rights and obligations being acquired by it would otherwise require the consent of the Administrative Agent pursuant to Section 11.2(b), (x) the Borrowers shall pay all additional amounts (if any) required pursuant to Section 2.17 in respect of any period prior to the date on which such replacement shall be consummated, (y) if applicable, the replacement financial institution shall consent to such amendment or waiver and (z) any such replacement shall not be deemed to be a waiver of any rights that the Borrowers, the Administrative Agent or any other Lender shall have against the replaced Lender.

(c) Effectiveness.  Upon satisfaction of the conditions set forth in clause (b) above, Administrative Agent shall record such substitution or payment in the Register, whereupon (i) in the case of any payment in full in the Revolving Credit Facility, such Affected Lender’s Revolving Credit Commitments in the Revolving Credit Facility shall be terminated and (ii) in the case of any substitution in the Revolving Credit Facility, (A) the Affected Lender shall sell and be relieved of, and the Substitute Lender shall purchase and assume, all rights and claims of such Affected Lender under the Loan Documents with respect to the Revolving Credit Facility, except that the Affected Lender shall retain such rights expressly providing that they survive the repayment of the

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Obligations and the termination of the Revolving Credit Commitments, (B) the Substitute Lender shall become a “Lender” hereunder having a Revolving Credit Commitment in the Revolving Credit Facility in the amount of such Affected Lender’s Revolving Credit Commitment in the Revolving Credit Facility and (C) the Affected Lender shall execute and deliver to Administrative Agent an Assignment to evidence such substitution and deliver any Note in its possession with respect to the Revolving Credit Facility; provided,  however, that the failure of any Affected Lender to execute any such Assignment or deliver any such Note shall not render such sale and purchase (or the corresponding assignment) invalid.

Section 2.19 Contribution.

(a) Right of Contribution.  To satisfy obligations hereunder or otherwise for the benefit of one or more of the other Borrowers, if any Borrower (the “Overpaying Borrower”) (i) makes any payment in excess of its Allocable Share, or (ii) incurs a loss of its Collateral due to the foreclosure (or other realization by Lender) of, or the delivery of deeds in lieu of foreclosure relating to its Collateral and the value of such Collateral exceeded its Allocable Share, then such Overpaying Borrower shall be entitled, after indefeasible payment in full and the satisfaction of all obligations to Lender under the Loan Documents, to contribution from each of the benefited Borrowers, for the amounts so paid, advanced or benefited, up to such benefited Borrower’s then current Allocable Share, or both.  Any such contribution payments shall be made within 10 days after demand therefor.

(b) Right of Subrogation After Payment in Full.  If any Borrower (a “Defaulting Borrower”) shall have failed to make a contribution payment as hereinabove provided, after indefeasible payment in full and the satisfaction of all obligations under the Revolving Credit Facility, as the case may be, the Overpaying Borrower shall be subrogated to the rights of Lenders against such Defaulting Borrower, including the right to receive a portion of such Defaulting Borrower’s Collateral in an amount equal to the contribution payment required hereunder that such Defaulting Borrower failed to make; provided,  however, if Lenders return any payments in connection with a bankruptcy of a Borrower, all subrogated Borrowers shall jointly and severally repay Lenders all such amounts repaid, together with interest thereon at the then-current rate as set forth herein.  At the request of any Borrower or Borrowers, upon indefeasible payment in full and the satisfaction of all obligations under the Revolving Credit Facilities, Lenders shall assign the Collateral, without recourse, to such Borrower or Borrowers; provided, that, if Lenders shall have received conflicting requests from more than one Borrower to receive such Collateral and such requesting Borrowers cannot agree as to the disposition of such Collateral, Lenders shall have no obligation to deliver such Collateral to such requesting Borrowers unless and until such requesting Borrowers shall have agreed as to the disposition of such Collateral and so authorized Lenders jointly in writing.  Upon Lenders’ receipt of such authorization, Lenders shall assign the Collateral in question, without recourse, to Borrowers entitled to receive such Collateral within 90 days thereafter.  Prior to delivering such Collateral, Lenders shall be entitled to receive from the requesting Borrower or Borrowers such other assurances, indemnities and agreements as may be reasonably requested by Lenders.

(c) Deemed Guaranty, Waivers.  To the extent any of the obligations of any individual Borrower under this Agreement or the Loan Documents are deemed to constitute a guaranty, such individual Borrower unconditionally and irrevocably waives and agrees not to assert any claim, defense, setoff or counterclaim based on diligence, promptness, presentment, requirements for any demand or notice hereunder or under any Loan Document including:  (i) any demand for payment or performance and protest and notice of protest, (ii) any notice of acceptance, (iii) any presentment, demand, protest or further notice or other requirements of any kind with respect to

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any guaranteed obligation (including any accrued but unpaid interest thereon) becoming immediately due and payable, (iv) any other notice in respect of any guaranteed obligation or any part thereof, and (v) any defense arising by reason of any disability or other defense of any other Borrower.  While the Obligations are outstanding, such individual Borrower further unconditionally and irrevocably agrees not to (x) enforce or otherwise exercise any right of subrogation or any right of reimbursement or contribution or similar right against any other Borrower by reason of any Loan Document or any payment made thereunder or (y) assert any claim, defense, setoff or counterclaim it may have against any other Person or set off any of its obligations to such other Person against obligations of such other Person to any other Borrower.  No obligation of such individual Borrower shall be discharged other than by complete performance or express written waiver.

This is an unconditional and irrevocable waiver of any rights and defenses to which any individual Borrower may be entitled with respect to any of the obligations of such individual Borrower in the nature of a guaranty under the Revolving Credit Facilities, this Agreement or any other Loan Document arising from the fact that the obligations under the Revolving Credit Facilities are secured, in part, by real property.  Each individual Borrower hereby waives all rights and defenses arising out of an election of remedies by Lenders, even though any such election of remedies, such as a non-judicial foreclosure with respect to security for a guaranteed obligation, has destroyed such individual Borrower’s rights of subrogation and reimbursement against any other Person.

Such individual Borrower hereby waives and agrees not to assert any defense, whether arising in connection with or in respect of any of the following or otherwise, and hereby agrees that its obligations under this Agreement, even if deemed to be in the nature of a guaranty, are primary, irrevocable, absolute and unconditional and shall not be discharged as a result of or otherwise affected by any of the following (which may not be pleaded and evidence of which may not be introduced in any proceeding with respect to this Agreement, in each case except as otherwise agreed in writing by Administrative Agent):

(i) the invalidity or unenforceability of any obligation of Borrowers under any Loan Document or any other agreement or instrument relating thereto (including any amendment, consent or waiver thereto), or any security for, or other guaranty of, any obligation hereunder or any part thereof, or the lack of perfection or continuing perfection or failure of priority of any security for the Obligations or any part thereof;

(ii) (A) any delay in enforcing or the absence of any action to enforce Borrowers’ Obligations, or (B) any attempt or the absence of any attempt to collect any obligation hereunder or any part thereof from Borrowers or other action to enforce the same;

(iii) any sale, exchange, release, surrender or other disposition of, or realization upon, any collateral securing the Obligations, or any amendment, waiver, settlement or compromise of any guaranties of the Obligations, or any other obligation of any Person with respect to the Loan Documents;

(iv) the failure by any Person to take any steps to perfect and maintain any lien on, or to preserve any rights with respect to, any Collateral;

(v) any workout, insolvency, bankruptcy proceeding, reorganization, arrangement, liquidation, dissolution or similar event or proceeding by or against Borrowers or any of their respective properties or any procedure, agreement, order, stipulation, election, action or omission thereunder, including any discharge or

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disallowance of, or bar or stay against collecting, any guaranteed obligation (or any interest thereon) in or as a result of any such proceeding;

(vi) any foreclosure, whether or not through judicial sale, and any other Transfer of any Collateral or any election following the occurrence of an Event of Default by any Lender to proceed separately against any Collateral in accordance with such Lender’s rights under any applicable law;

(vii) any other defense, setoff, counterclaim or any other circumstance that might otherwise constitute a legal or equitable discharge of any Borrower, Subsidiary of any Borrower, in each case other than the payment in full of the Obligations;

(viii) the absence, impairment or loss of any right of reimbursement or subrogation or other right or remedy of any other Borrower;

(ix) receipt by any Borrower of any notice or directive given at any time that is inconsistent with this Section 2.19; or