lmrk-8k_20170731.htm

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d)

OF THE SECURITIES EXCHANGE ACT OF 1934  

Date of Report (Date of earliest event reported): July 31, 2017  

 

Landmark Infrastructure Partners LP

(Exact name of registrant as specified in its charter)

 

 

Delaware

 

001-36735

 

61-1742322

(State or other jurisdiction

 

(Commission

 

(IRS Employer

of incorporation or organization)

 

File Number)

 

Identification No.)

2141 Rosecrans Avenue, Suite 2100

El Segundo, CA 90245

(Address of principal executive office) (Zip Code)

 

(310) 598-3173

(Registrants’ telephone number, including area code)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Indicate by check mark whether the registrant is an emerging growth company as defined in as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

Emerging growth company

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.

 

 

 

 


 

Item 1.01 – Entry into a Material Definitive Agreement.

 

On July 31, 2017, Landmark Infrastructure Partners LP (the “Partnership”), Landmark Infrastructure Operating Company LLC, Landmark Infrastructure Inc. and Landmark Infrastructure Asset OpCo II LLC entered into a Second Amended and Restated Credit Agreement (the “A&R Credit Agreement”), with SunTrust Bank as Administrative Agent,  SunTrust Robinson Humphrey, Inc., as Sole Lead Arranger and Sole Bookrunner, and a syndicate of lenders (the “Lenders”). The A&R Credit Agreement amended and restated that certain Amended and Restated Credit Agreement by and among the Partnership, Landmark Infrastructure Operating Company LLC, the Administrative Agent and the Lenders, dated as of November 19, 2014 (the “Existing Credit Agreement”), and as part of this amendment and restatement made the following changes, among others, to the Existing Credit Agreement:

 

Added two of the Partnership’s new subsidiaries, Landmark Infrastructure Inc. and Landmark Infrastructure Asset OpCo II LLC, as borrowers under the A&R Credit Agreement;  

 

Added the following subsidiaries of the Partnership as guarantors under the A&R Credit Agreement and the related loan documents: Landmark Infrastructure REIT LLC, Landmark Infrastructure REITCO I LLC, Landmark Infrastructure REITCO II LLC, Landmark Infrastructure REITCO III LLC, LD Tall Wall I LLC, RE Astoria LandCo LLC, RE Garland LandCo LLC, RE Garland A LandCo LLC, RE Mustang LandCo LLC, GWR Partners GP LLC and GWR Partners LP LLC; and

 

Added customary provisions to reflect European Union “bail-in” directive legislation.

The foregoing descriptions of the changes to the Existing Credit Agreement and of the A&R Credit Agreement do not purport to be complete and are qualified in their entirety by reference to the full text of the A&R Credit Agreement filed herewith as Exhibit 10.1 and incorporated herein by reference.

Item 5.03 – Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

On July 31, 2017, Landmark Infrastructure Partners GP LLC, the general partner of the Partnership, adopted Amendment No. 1 (the “LPA Amendment”) to the Third Amended and Restated Agreement of Limited Partnership of the Partnership (the “Partnership Agreement”). The LPA Amendment (i) imposes certain ownership limitations and transfer restrictions on partnership interests in the Partnership and amends certain provisions of the Partnership Agreement providing for the allocation of income, gain, loss and deduction (the “Ownership Limitations”) and (ii) made changes to better reflect the Partnership’s intention to treat distributions paid on the Partnership’s issued and outstanding preferred units as distributions to partners in their capacity as partners rather than as guaranteed payments for the use of capital for U.S. federal income tax purposes. Pursuant to the terms of the Partnership Agreement, the Partnership’s unitholders previously approved the Ownership Limitations included in the LPA Amendment at a special meeting held on July 20, 2017. The LPA Amendment was adopted to help facilitate the previously announced plan to reorganize the Partnership’s operating structure by moving substantially all of its operating assets to a controlled subsidiary that qualifies as a real estate investment trust, which also closed on July 31, 2017. The foregoing description of the LPA Amendment does not purport to be complete and is qualified in its entirety by reference to the full text of the LPA Amendment, which is filed as Exhibit 3.1 to this Current Report on Form 8-K and is incorporated herein by reference.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits

 

Exhibit

 

 

Number

 

Description

3.1

 

Amendment No. 1 to the Third Amended and Restated Agreement of Limited Partnership of Landmark Infrastructure Partners LP, dated July 31, 2017.

10.1

 

Second Amended and Restated Credit Agreement, dated as of July 31, 2017, by and among Landmark Infrastructure Asset OpCo II LLC, Landmark Infrastructure Inc., and Landmark Infrastructure Operating Company LLC as borrowers, Landmark Infrastructure Partners LP, the several banks, other financial institutions and lenders from time to time party thereto, and SunTrust Bank, as administrative agent, issuing bank and swingline lender.

 

 


 

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

 

 

Landmark Infrastructure Partners LP

 

 

 

 

 

By:

 

Landmark Infrastructure Partners GP LLC,  

 

 

 

its general partner 

 

 

 

 

Dated: August 2, 2017

By:

 

 /s/ George P. Doyle

 

Name:

 

George P. Doyle

 

Title:

 

Chief Financial Officer and Treasurer

 

 


 

EXHIBIT INDEX  

 

Exhibit

 

 

Number

 

Description

3.1

 

Amendment No. 1 to the Third Amended and Restated Agreement of Limited Partnership of Landmark Infrastructure Partners LP, dated July 31, 2017.

10.1

 

Second Amended and Restated Credit Agreement, dated as of July 31, 2017, by and among Landmark Infrastructure Asset OpCo II LLC, Landmark Infrastructure Inc., and Landmark Infrastructure Operating Company LLC as borrowers, Landmark Infrastructure Partners LP, the several banks, other financial institutions and lenders from time to time party thereto, and SunTrust Bank, as administrative agent, issuing bank and swingline lender.

 

 

 

 

 

lmrk-ex31_6.htm

Exhibit 3.1

 

AMENDMENT NO. 1 TO THE

THIRD AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP

OF

LANDMARK INFRASTRUCTURE PARTNERS LP

July 31, 2017

This First Amendment (this “Amendment”) to the Third Amended and Restated Agreement of Limited Partnership of Landmark Infrastructure Partners LP (the “Partnership”), dated as of August 8, 2016 (the “Partnership Agreement”), is hereby adopted, effective as of July 31, 2017, by Landmark Infrastructure Partners GP LLC, a Delaware limited liability company (the “General Partner”), as general partner of the Partnership. Capitalized terms used but not defined herein have the meaning given such terms in the Partnership Agreement.

RECITALS

WHEREAS, the General Partner, without the approval of any Partner, may amend any provision of the Partnership Agreement pursuant to Section 13.1(d)(i) of the Partnership Agreement to reflect a change that the General Partner determines does not adversely affect the Limited Partners considered as a whole or any particular class or series of the Partnership Interests as compared to other classes or series of Partnership Interests in any material respect;

WHEREAS, Section 13.2 of the Partnership Agreement provides that the General Partner may propose amendments which shall be effective upon approval by the General Partner and approval by the holders of common units and subordinated units of the Partnership (as more fully described below) at a Special Meeting called in accordance with Section 13.4 of the Partnership Agreement;

WHEREAS, the Board of Directors (the “Board”) of the General Partner has approved an internal reorganization of the Partnership’s organizational structure and intends to transfer substantially all of the Partnership’s operating assets to a new wholly owned subsidiary (the “REIT Subsidiary”) that qualifies as a real estate investment trust, as defined in Section 856 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”);

WHEREAS, this Amendment will (i) impose certain ownership limitations and transfer restrictions on Partnership Interests in order for the REIT Subsidiary to qualify as a real estate investment trust under the Code (the “Transfer Restrictions”) and (ii) reflect our intention to treat distributions paid on the issued and outstanding preferred units as distributions to partners in their capacity as partners rather than as guaranteed payments for the use of capital for U.S. federal income tax purposes;

WHEREAS, the Board has determined this Amendment is advisable and in the best interests of the Partnership and, by unanimous vote, approved this Amendment, subject to the approval of the Transfer Restriction provisions of this Amendment by a Unit Majority;

 

 

 


 

WHEREAS, at a Special Meeting of the Limited Partners called in accordance with Section 13.4 of the Partnership Agreement, the General Partner proposed the Transfer Restriction provisions of this Amendment and holders of (i) a majority of the Partnership’s Outstanding Common Units, excluding those Common Units held by the General Partner and its Affiliates, and (ii) a majority of the Partnership’s Outstanding Subordinated Units, each voting as a separate class, approved the Transfer Restriction provisions of this Amendment; and

WHEREAS, the General Partner is, pursuant to its authority under Sections 13.1 and 13.2 of the Partnership Agreement, adopting this Amendment and will notify all Record Holders upon final adoption of this Amendment.

NOW, THEREFORE, the General Partner does hereby amend the Partnership Agreement as follows:

Article I.
AMENDMENTS TO THE PARTNERSHIP AGREEMENT

Section 1.1Section 1.1 of the Partnership Agreement is hereby amended to add the following definitions in the appropriate alphabetical order:

Beneficial Tax Ownership” means ownership of a Partnership Interest by a Person, whether held directly or indirectly (including by a nominee), and shall include Partnership Interests that would be treated as owned through the application of Section 544 of the Code, as modified by Section 856(h)(1)(B) of the Code, if such Partnership Interests were stock of a corporation. The terms “Beneficial Tax Owner,” “Beneficially Owns for Tax Purposes,” “Beneficially Owning for Tax Purposes” and “Beneficially Owned for Tax Purposes” shall have the correlative meanings.

Charitable Beneficiary” means one or more beneficiaries of the Trust as determined pursuant to Section 4.11(i)(vi); provided that each such organization must be described in Section 501(c)(3) of the Code and contributions to each such organization must be eligible for deduction under each of Sections 170(b)(1)(A), 2055 and 2522 of the Code.

Constructive Tax Ownership” means ownership of a Partnership Interest by a Person, whether held directly or indirectly (including by a nominee), and shall include Partnership Interests that would be treated as owned through the application of Section 318(a) of the Code, as modified by Section 856(d)(5) of the Code. The terms “Constructive Tax Owner,” “Constructively Owns for Tax Purposes,” “Constructively Owning for Tax Purposes” and “Constructively Owned for Tax Purposes” shall have the correlative meanings.

Excepted Holder” means any Person for whom an Excepted Holder Limit is created by the General Partner pursuant to Section 4.11(g).

Excepted Holder Limit” means for each Excepted Holder the percentage limit established pursuant to Section 4.11(g), which limit is expressed as one or more percentages of the capital interest or profit interest in the Partnership or outstanding Partnership Interests, and may apply with respect to one or more outstanding classes or series of Partnership Interests or all classes or series of Partnership Interests in the aggregate.

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Fair Value” means, with respect to any Partnership Interest or other asset, the fair market value of such Partnership Interest or other asset that would be obtained in an arms’ length negotiated transaction between an informed and willing purchaser under no compulsion to purchase and an informed and willing seller under no compulsion to sell.  Without limiting the foregoing, except as otherwise provided in this Agreement, the Fair Value of any Partnership Interest will be determined the General Partner.

Ownership Limit” means a nine and eight-tenths percent (9.8%) interest in either (i) the capital or profits of the Partnership, or (ii) any class or series of outstanding Partnership Interests (determined based on the value or number of Units of such class or series, whichever is more restrictive), including Common Units and Preferred Units.  The number and value of outstanding Partnership Interests shall be determined by the General Partner in good faith, which determination shall be conclusive for all purposes hereof.

Preferred Distributions” means Series A Distributions and Series B Distributions.

Prohibited Owner” means, with respect to any purported transfer, any Person who, but for the provisions of Section 4.11(i), would Beneficially Own for Tax Purposes or Constructively Own for Tax Purposes Partnership Interests.

REIT” means a “real estate investment trust” under Sections 856 through 860 of the Code.

REIT Qualification Date” means the effective date of the REIT Subsidiary’s election to be taxed as a REIT.

REIT Subsidiary” has the meaning set forth in the preamble.

Restriction Termination Date” means the date on which the REIT Subsidiary’s board of directors and the Board determines that it is no longer in the best interest of the REIT Subsidiary and the Partnership for the REIT Subsidiary to qualify as a REIT or the Partnership ceases to own a REIT.

Trust” means any trust for the exclusive benefit of one or more Charitable Beneficiaries, as provided for in Section 4.11(a)(ii).

Trustee” means the Person unaffiliated with the Partnership and a Prohibited Owner, that is appointed by the Partnership to serve as trustee of the Trust.

Section 1.2The Partnership Agreement is hereby amended by adding the following Section 4.11 immediately following Section 4.10 of the Partnership Agreement:

“Section 4.11 REIT Ownership Restrictions.

(a)Ownership Limitations. During the period commencing on the REIT Qualification Date and prior to the Restriction Termination Date:

(i)Basic Restrictions.

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(A)

No Person, other than an Excepted Holder, shall Beneficially Own for Tax Purposes or Constructively Own for Tax Purposes Partnership Interests in excess of the Ownership Limit, and no Excepted Holder shall Beneficially Own for Tax Purposes or Constructively Own for Tax Purposes Partnership Interests in excess of the applicable Excepted Holder Limit for such Excepted Holder.

 

(B)

No Person shall Beneficially Own for Tax Purposes or Constructively Own for Tax Purposes Partnership Interests to the extent that such Beneficial Tax Ownership or Constructive Tax Ownership would result in the REIT Subsidiary being “closely held” within the meaning of Section 856(h) of the Code (without regard to whether the ownership interest is held during the last half of a taxable year) or otherwise failing to qualify as a REIT (including Beneficial Tax Ownership or Constructive Tax Ownership that would result in the REIT Subsidiary owning (actually or Constructively Owned for Tax Purposes) an interest in a tenant that is described in Section 856(d)(2)(B) of the Code if the income derived by the REIT Subsidiary from such tenant would cause the REIT Subsidiary to fail to satisfy any of the gross income requirements of Section 856(c) of the Code).

(ii)Transfer in Trust. If any transfer of Partnership Interests occurs which, if effective, would result in any Person Beneficially Owning for Tax Purposes or Constructively Owning for Tax Purposes Partnership Interests in violation of Section 4.11(a)(i)(A) or (B):

 

(A)

then the Partnership Interests, the Beneficial Tax Ownership or Constructive Tax Ownership of which otherwise would cause such Person to violate Section 4.11(a)(i)(A) or (B), shall be automatically transferred to a Trust for the exclusive benefit of one or more Charitable Beneficiaries, as described in Section 4.11(i), effective as of the close of business on the Business Day prior to the date of such purported transfer to the Prohibited Owner, and such Person shall acquire no rights in such Partnership Interests; and

 

(B)

if the transfer to the Trust described in Section 4.11(a)(ii)(A) would not be effective for any reason to prevent the violation of Section 4.11(a)(i)(A) or (B), then the transfer of the Partnership Interests that otherwise would cause any Person to violate Section 4.11(a)(i)(A) or (B) shall be void ab initio, and the intended transferee shall acquire no rights in such Partnership Interests.

 

(C)

In determining which Partnership Interests are to be transferred to a Trust in accordance with this Section 4.11(a)(ii) and Section

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4.11(i), Partnership Interests shall be so transferred to a Trust in such manner as minimizes the aggregate value of the Partnership Interests that are transferred to the Trust (except as provided in Section 4.11(f)) and, to the extent not inconsistent therewith, on a pro rata basis.

 

(D)

To the extent that, upon a transfer of Partnership Interests pursuant to this Section 4.11(a)(ii), a violation of any provision of Section 4.11(a)(i) would nonetheless be continuing, then Partnership Interests shall be transferred to that number of Trusts, each having a Trustee and a Charitable Beneficiary or Charitable Beneficiaries that are distinct from those of each other Trust, such that there is no violation of any provision of Section 4.11(a)(i).

(b)Remedies for Breach.  If the General Partner shall at any time determine in good faith that a transfer or other event has taken place that results in a violation of Section 4.11(a)(i) or that a Person intends to acquire or has attempted to acquire Beneficial Tax Ownership or Constructive Tax Ownership of any Partnership Interests in violation of Section 4.11(a)(i) (whether or not such violation is intended), the General Partner shall take such action as it deems advisable to refuse to give effect to or to prevent such transfer or other event, including refusing to give effect to such transfer pursuant to this Agreement or in the records of the Partnership, or instituting proceedings to enjoin such transfer or other event; provided, however, that any transfer or attempted transfer or other event in violation of Section 4.11(a)(i) shall automatically result in the transfer to the Trust described above, and, where applicable, such transfer (or other event) shall be void ab initio as provided above irrespective of any action (or non-action) by the General Partner.

(c)Notice of Restricted Transfer. Any Person who acquires or attempts or intends to acquire Beneficial Tax Ownership or Constructive Tax Ownership of Partnership Interests that will or may violate Section 4.11(a)(i) or any Person who would have owned Partnership Interests that resulted in a transfer to the Trust pursuant to the provisions of Section 4.11(a)(ii) shall immediately give written notice to the Partnership of such event or, in the case of such a proposed or attempted transaction, give at least fifteen (15) days prior written notice, and shall provide to the Partnership such other information as the Partnership may request in order to determine the effect, if any, of such transfer on the REIT Subsidiary’s status as a REIT.

(d)Owners Required to Provide Information. From the REIT Qualification Date and prior to the Restriction Termination Date, each Partner, each Beneficial Tax Owner, each Constructive Tax Owner and each Person (including the unitholder of record) who is holding Partnership Interests for an actual owner, Beneficial Tax Owner or Constructive Tax Owner, shall promptly provide to the Partnership such information as the General Partner may reasonably request in order to determine the REIT Subsidiary’s status as a REIT and to comply with the requirements of any taxing authority or governmental authority or to determine such compliance.

(e)Remedies Not Limited. Nothing contained in this Section 4.11 shall limit the authority of the General Partner to take such other action as it deems necessary or advisable to

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protect the REIT Subsidiary’s status as a REIT or to assist the Partnership, the REIT Subsidiary and their owners in preserving the REIT Subsidiary’s status as a REIT.

(f)Ambiguity.  In the case of an ambiguity in the application of any of the provisions of this Section 4.11, or any definition contained in this Agreement, the General Partner shall have the power to determine the application of the provisions of this Section 4.11 or any such definition with respect to any situation based on the facts known to it.  If a Person would have (but for the remedies set forth in this Section 4.11) acquired Beneficial Tax Ownership or Constructive Tax Ownership of Partnership Interests in violation of Section 4.11(a), such remedies (as applicable) shall apply first to the Partnership Interests which, but for such remedies, would have been actually owned by such Person, and second to Partnership Interests which, but for such remedies, would have been Beneficially Owned for Tax Purposes or Constructively Owned for Tax Purposes (but not actually owned) by such Person, pro rata among the Persons who actually own such Partnership Interests based upon the relative number of the Partnership Interests held by each such Person.

(g)Exceptions and Cooperation.  The General Partner, in its sole and absolute discretion, may exempt (prospectively or retroactively) a Person from the limits set forth in Section 4.11(a)(i)(A), or may establish or increase an Excepted Holder Limit for such Person, if the General Partner determines, based on such representations and undertakings from such Person to the extent required by the General Partner and as are reasonably necessary to ascertain, that such exemption will not cause such Person to violate Section 4.11(a)(i)(B).

(h)Legend.  Each certificate representing Partnership Interests shall bear substantially the following legend, in addition to any other legends required by this Agreement, applicable law or otherwise deemed appropriate by the General Partner in its sole discretion:

The Partnership Interests represented by this certificate are subject to restrictions on Beneficial Tax Ownership and Constructive Tax Ownership and transfer for the purpose of the REIT Subsidiary’s maintenance of its status as a Real Estate Investment Trust (“REIT”) under the Internal Revenue Code of 1986, as amended (the “Code”).  Subject to certain further restrictions and except as expressly provided in the Partnership’s THIRD AMENDED AND RESTATED Limited Partnership Agreement, AS THE SAME MAY BE AMENDED FROM TIME TO TIME (THE “partnership agreement”), (i) no Person may Beneficially Own for Tax Purposes or Constructively Own for Tax Purposes in excess of a 9.8% interest in the Partnership’s capital or profits or in any class or series of outstanding Partnership interests (determined based on the value or number of Units of such class or series, whichever is more restrictive)

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unless such Person is an Excepted Holder (in which case such Excepted Holder Limit shall be applicable) and (ii) no Person may Beneficially Own for Tax Purposes or Constructively Owns for Tax Purposes Partnership Interests that would result in the REIT Subsidiary being “closely held” under Section 856(h) of the Code or otherwise cause the REIT Subsidiary to fail to qualify as a REIT.  Any Person who Beneficially Owns for Tax Purposes or Constructively Owns for Tax Purposes or attempts to Beneficially Own for Tax Purposes or Constructively Own for Tax Purposes Partnership Interests which causes or will cause a Person to Beneficially Own for Tax Purposes or Constructively Own for Tax Purposes Partnership Interests in excess or in violation of the above limitations must immediately notify the Partnership.  If any of the restrictions on transfer or ownership are violated, the Partnership Interests, or a portion thereof, represented hereby will be automatically transferred to a Trustee of a Trust for the exclusive benefit of one or more Charitable Beneficiaries, and then sold by the trustee or redeemed by the partnership.  Furthermore, upon the occurrence of certain events, attempted transfers in violation of the restrictions described above may be void ab initio.  All capitalized terms in this legend have the meanings defined in Partnership Agreement, a copy of which, including the restrictions on transfer and ownership, will be furnished to each holder of Partnership Interests on request and without charge.  Requests for such a copy may be directed to the Partnership at its principal office.”

(i)Transfer of Partnership Interests in Trust.

(i)Ownership in Trust. Upon any purported transfer or other event described in Section 4.11(a)(ii) that would result in a transfer of Partnership Interests to a Trust, such Partnership Interests shall be deemed to have been transferred to the Trustee as trustee of a Trust for the exclusive benefit of one or more Charitable Beneficiaries.  Such transfer to the Trustee shall be deemed to be effective as of the close of business on the Business Day prior to the purported transfer or other event that results in the transfer to the Trust pursuant to Section 4.11(a)(ii). The General Partner shall establish the Trust,

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and the Trustee shall be appointed by the General Partner and shall be a Person unaffiliated with the Partnership and any Prohibited Owner. Each Charitable Beneficiary shall be designated by the General Partner as provided in Section 4.11(i)(vi).

(ii)Status of Partnership Interests Held by the Trustee. Partnership Interests held by the Trustee shall be issued and outstanding Partnership Interests.  The Prohibited Owner shall have no rights in Partnership Interests held by the Trustee. The Prohibited Owner shall not benefit economically from ownership of any Partnership Interests held in trust by the Trustee, shall have no rights to distributions and shall not possess any rights to vote or other rights attributable to the Partnership Interests held in the Trust.

(iii)Distribution and Voting Rights. The Trustee shall have all voting rights and rights to distributions with respect to Partnership Interests held in the Trust, which rights shall be exercised for the exclusive benefit of the Charitable Beneficiary. Any distribution paid prior to the discovery by the Partnership that the Partnership Interests have been transferred to the Trustee shall be paid by the recipient of such distribution to the Trustee upon demand and any distribution authorized but unpaid shall be paid when due to the Trustee.  Any distribution so paid to the Trustee shall be held in trust for the Charitable Beneficiary. The Prohibited Owner shall have no voting rights with respect to Partnership Interests held in the Trust and, subject to Delaware law, effective as of the date that the Partnership Interests have been transferred to the Trustee, the Trustee shall have the authority (at the Trustee’s sole discretion) (i) to rescind as void any vote cast by a Prohibited Owner prior to the discovery by the Partnership that the Partnership Interests have been transferred to the Trustee and (ii) to recast such vote in accordance with the desires of the Trustee acting for the benefit of the Charitable Beneficiary; provided, however, that if the Partnership has already taken irreversible limited partnership action in connection with such vote, then the Trustee shall not have the authority to rescind and recast such vote. Notwithstanding the provisions of this Section 4.11, until the Partnership has received notification that Partnership Interests have been transferred into a Trust, the Partnership shall be entitled to rely on its Partnership Interest transfer and other records for purposes of determining Partners entitled to vote at meetings, determining the validity and authority of proxies and otherwise conducting votes of Partners.

(iv)Sale of Partnership Interests by Trustee. Within twenty (20) days of receiving notice from the General Partner that Partnership Interests have been transferred to the Trust, and unless the General Partner first provides notice to the Trustee of its intention to cause the Partnership to purchase such Partnership Interests pursuant to Section 4.11(i)(v), the Trustee shall sell the Partnership Interests held in the Trust to a Person or Persons, designated by the Trustee, who is not a Prohibited Owner.  Such Partnership Interests shall be sold for such consideration and on such other terms as the General Partner determines in its sole discretion.  Upon such sale, the interest of the Charitable Beneficiary in the Partnership Interests sold shall terminate and the Trustee shall distribute the net proceeds of the sale to the Prohibited Owner and to the Charitable Beneficiary as provided in this Section 4.11(i)(iv).  The Prohibited Owner shall receive an amount equal to (1) the lesser of (x) the price paid by the Prohibited Owner for the Partnership Interests or, if the Prohibited Owner did not give value for the Partnership

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Interests in connection with the event causing the Partnership Interests to be held in the Trust (e.g., in the case of a gift, devise or other such transaction), the Fair Value of the Partnership Interests on the day of the event causing the Partnership Interests to be held in the Trust and (y) the price received by the Trustee (net of any commissions and other expenses of sale, including costs and expenses incurred by the Partnership) from the sale or other disposition of the Partnership Interests held in the Trust, less (2) the aggregate amount of all of the Partnership’s expenses in connection with each of the purported transfer to the Prohibited Owner and the transfer by the Trust (including in each case, but not limited to, the legal and accounting fees incurred by the Partnership and the General Partner), which the Trustee will pay to the Partnership prior to any distribution of funds to the Prohibited Owner.  The Trustee may also reduce the amount payable to the Prohibited Owner by the amount of distributions which have been paid to the Prohibited Owner and are owed by the Prohibited Owner to the Trustee pursuant to Section 4.11(i)(iii).  Any net sales proceeds in excess of the amount payable to the Prohibited Owner shall be immediately paid to the Charitable Beneficiary. If, prior to the discovery by the Partnership that Partnership Interests have been transferred to the Trustee, such Partnership Interests are transferred by a Prohibited Owner, then (i) such Partnership Interests shall be deemed to have been transferred on behalf of the Trust and (ii) to the extent that the Prohibited Owner received an amount for such Partnership Interests that exceeds the amount that such Prohibited Owner was entitled to receive pursuant to this Section 4.11(i)(iv), such excess shall be paid to the Trustee upon demand.

(v)Purchase Right in Partnership Interests Transferred to the Trustee. Partnership Interests transferred to the Trustee shall be deemed to have been offered for sale to the Partnership, or its designee, at a price equal to (1) the lesser of (x) the price in the transaction that resulted in such transfer to the Trust or, in the event value was not given in the transaction that resulted in such transfer (e.g., in the case of a gift, devise or other such transaction), the Fair Value of the Partnership Interests at the time of such transaction and (y) the Fair Value of the Partnership Interests on the date the Partnership, or its designee, accepts such offer, less (2) the aggregate amount of all of the Partnership’s expenses in connection with each of the purported transfer to the Prohibited Owner and the transfer by the Trust (including in each case, but not limited to, the legal and accounting fees incurred by the Partnership and the General Partner), which the Trustee will pay to the Partnership prior to any distribution of funds to the Prohibited Owner.  The Partnership may also reduce the amount payable to the Prohibited Owner by the amount of distributions which have been paid to the Prohibited Owner and are owed by the Prohibited Owner to the Trustee pursuant to Section 4.11(i)(iii).  The Partnership, or its designee, shall pay the amount of any such reduction to the Trustee for the benefit of the Charitable Beneficiary. The Partnership, or its designee, shall have the right to accept such offer until the Trustee has sold the Partnership Interests held in the Trust pursuant to Section 4.11(i)(iv). Upon such a sale to the Partnership or its designee, the interest of the Charitable Beneficiary in the Partnership Interests sold shall terminate and the Trustee shall distribute the net proceeds of the sale, after the deductions contemplated above, to the Prohibited Owner.

(vi)Designation of Charitable Beneficiaries. By written notice to the Trustee, the General Partner shall designate one or more nonprofit organizations to be the

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Charitable Beneficiary of the interest in the Trust such that (i) the Partnership Interests held in the Trust would not violate the restrictions set forth in Section 4.11(a)(i) in the hands of such Charitable Beneficiary and (ii) each such organization must be described in Section 501(c)(3) of the Code and contributions to each such organization must be eligible for deduction under each of Sections 170(b)(1)(A), 2055 and 2522 of the Code.

(vii)Facilitating Amendments at General Partner’s Discretion. Notwithstanding anything to the contrary in this Agreement, in the event of any transfers to or by a Trust in accordance with this Section 4.11(i), the General Partner shall be entitled, in its sole discretion and without the consent or agreement of any other Partner, to make such amendments to this Agreement as it deems necessary from time to time in order to reflect that the Trust(s) or any subsequent transferees may not assume all of the obligations attaching to the subject Partnership Interests.

(j)Enforcement. The Partnership is authorized specifically to seek equitable relief, including injunctive relief, to enforce the provisions of this Section 4.11.

(k)Stock Exchange Transactions.  Nothing in this Section 4.11 shall preclude the settlement of any transaction entered into through the facilities of the NASDAQ Global Market or any other applicable national securities exchange or automated inter-dealer quotation system.  The fact that the settlement of any transaction occurs shall not negate the effect of any other provision of this Section 4.11 and any transferee in such a transaction shall be subject to all of the provisions and limitations set forth in this Section 4.11.”

Section 1.3The Partnership Agreement is hereby amended by adding the following provision to the first sentence of Section 6.1(a)(i), after the word “Unitholders”:

“(other than Preferred Holders in respect of their Preferred Units)”.

Section 1.4The Partnership Agreement is hereby amended by adding the following provision to the first sentence of Section 6.1(d)(iii)(A), after the words “to Section 12.4”:

“or with respect to Preferred Units”.

Section 1.5The Partnership Agreement is hereby amended by replacing Section 6.1(d)(x)(B) in its entirety, and inserting new Sections 6.1(d)(x)(C) and 6.1(d)(x)(D), with the following:

“(B)Items of Partnership gross income or gain for the taxable period, if any, shall be allocated to each Preferred Holder with respect to his Preferred Units in proportion to, and to the extent of, an amount equal to the excess, if any, of (x) the cumulative amount of all Preferred Distributions made with respect to such Preferred Units from the date such Preferred Units were issued to a date 45 days after the end of the current taxable period, over (y) the aggregate amount of items of Partnership gross income and gain allocated with respect to such Preferred Units pursuant to this Section 6.1(d)(x)(B) for the current taxable period and all previous taxable periods.

10

 

 

 

 


 

(C)Items of Partnership gross income or gain for the taxable period, if any, shall be allocated to each Preferred Holder with respect to his Preferred Units in proportion to, and to the extent of, an amount equal to the excess, if any, of (x) the cumulative amount of all Net Loss allocated with respect to such Preferred Units pursuant to Section 6.1(b)(ii) for all previous taxable periods, over (y) the aggregate amount of items of Partnership gross income and gain allocated with respect to such Preferred Units pursuant to this Section 6.1(d)(x)(C) for the current taxable period and all previous taxable periods.

(D)After the application of Sections 6.1(d)(x)(B) and (C), Net Termination Gain, if any, for the taxable period (or, to the extent necessary, items of income and gain for the taxable period) shall be allocated to each Preferred Holder in proportion to, and to the extent of, an amount equal to the excess, if any, of (x) the Stated Preferred Unit Liquidation Preference with respect to such holder’s Preferred Units, over (y) such holder’s existing Capital Account balance in respect of its Preferred Units, until the Capital Account balance of each such holder in respect of its Preferred Units is equal to the Stated Preferred Unit Liquidation Preference in respect of such Preferred Units.”

Section 1.6The Partnership Agreement is hereby amended by replacing Section 6.2(f) in its entirety with the following:

“(f)

Each item of Partnership income, gain, loss and deduction, for federal income tax purposes, shall be determined for each taxable period and prorated on a monthly basis and shall be allocated to the Partners as of the opening of the National Securities Exchange on which the Partnership Interests are listed or admitted to trading on the first Business Day of each month; provided, however, that such items for the period beginning on the Closing Date and ending on the last day of the month in which the last Option Closing Date or the expiration of the Over-Allotment Option occurs shall be allocated to the Partners as of the opening of the National Securities Exchange on which the Partnership Interests are listed or admitted to trading on the first Business Day of the next succeeding month; provided further, that gain or loss on a sale or other disposition of any assets of the Partnership or any other extraordinary item of income or loss realized and recognized other than in the ordinary course of business, as determined by the General Partner, shall be allocated to the Partners as of the opening of the National Securities Exchange on which the Partnership Interests are listed or admitted to trading on the first Business Day of the month in which such gain or loss is recognized for federal income tax purposes. Partnership dividend income shall be treated as an extraordinary item pursuant to Treasury Regulation Section 1.706-4(e)(2)(ix) and shall be allocated to the Partners at the time of day on which such dividend income is recognized for federal income tax purposes. The General Partner may revise, alter or otherwise modify such methods of allocation to the extent permitted or required by Section 706 of the Code and the regulations or rulings promulgated thereunder or for the proper administration of the partnership.”

Section 1.7The Partnership Agreement is hereby amended by deleting the last sentence from Section 16.3(a).

Section 1.8The Partnership Agreement is hereby amended by deleting the last sentence from Section 17.3(a).

11

 

 

 

 


 

Article II.
MISCELLANEOUS

Section 2.1General.  Except as hereby amended, the Partnership Agreement shall remain in full force and effect.

Section 2.2Severability.  If any provision or part of a provision of this Amendment is or becomes for any reason, invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions and/or parts thereof contained herein shall not be affected thereby and this Amendment shall, to the fullest extent permitted by law, be reformed and construed as if such invalid, illegal or unenforceable provision, or part of a provision, had never been contained herein, and such provision or part reformed so that it would be valid, legal and enforceable to the maximum extent possible.

Section 2.3Governing Law.  This Amendment shall be governed by, and interpreted in accordance with, the laws of the State of Delaware, all rights and remedies being governed by such laws without regard to principles of conflicts of laws.

[Signature page follows]

 

12

 

 

 

 


 

 

IN WITNESS WHEREOF, this Amendment has been executed as of the date first above written.

 

 

GENERAL PARTNER:

 

LANDMARK INFRASTRUCTURE PARTNERS GP LLC

 

By: /s/ George Doyle                                    
Name: George Doyle
Title:  Chief Financial Officer

 

 

Signature Page to the Amendment to the Third Amended and Restated Agreement of

Limited Partnership of Landmark Infrastructure Partners LP

 

 

lmrk-ex101_7.htm

Exhibit 10.1

 

Execution Version

 

SECOND AMENDED AND RESTATED CREDIT AGREEMENT

dated as of
July 31, 2017


among

LANDMARK INFRASTRUCTURE ASSET OPCO II LLC

LANDMARK INFRASTRUCTURE INC.,

and

LANDMARK INFRASTRUCTURE OPERATING COMPANY LLC,

as the Borrowers,

 

LANDMARK INFRASTRUCTURE PARTNERS LP,

 

THE LENDERS FROM TIME TO TIME PARTY HERETO,

and

SUNTRUST BANK
as Administrative Agent




SUNTRUST ROBINSON HUMPHREY, INC.
as Sole Lead Arranger and Sole Bookrunner

 

 


 

TABLE OF CONTENTS

Page

ARTICLE I DEFINITIONS; CONSTRUCTION

1

 

Section 1.1.

Definitions1

 

 

Section 1.2.

Classifications of Loans and Borrowings37

 

 

Section 1.3.

Accounting Terms and Determination37

 

 

Section 1.4.

Terms Generally37

 

ARTICLE II AMOUNT AND TERMS OF THE COMMITMENTS

38

 

Section 2.1.

General Description of Facilities38

 

 

Section 2.2.

Revolving Loans38

 

 

Section 2.3.

Procedure for Revolving Borrowings38

 

 

Section 2.4.

Swingline Commitment38

 

 

Section 2.5.

Funding of Borrowings40

 

 

Section 2.6.

Interest Elections40

 

 

Section 2.7.

Optional Reduction and Termination of Commitments41

 

 

Section 2.8.

Repayment of Loans42

 

 

Section 2.9.

Evidence of Indebtedness42

 

 

Section 2.10.

Optional Prepayments42

 

 

Section 2.11.

Mandatory Prepayments43

 

 

Section 2.12.

Interest on Loans43

 

 

Section 2.13.

Fees44

 

 

Section 2.14.

Computation of Interest and Fees45

 

 

Section 2.15.

Inability to Determine Interest Rates45

 

 

Section 2.16.

Illegality45

 

 

Section 2.17.

Increased Costs46

 

 

Section 2.18.

Funding Indemnity47

 

 

Section 2.19.

Taxes47

 

 

Section 2.20.

Payments Generally; Pro Rata Treatment; Sharing of Set-offs51

 

 

Section 2.21.

Letters of Credit52

 

 

Section 2.22.

Increase of Commitments; Additional Lenders56

 

 

Section 2.23.

Mitigation of Obligations58

 

 

Section 2.24.

Replacement of Lenders59

 

 

Section 2.25.

Defaulting Lenders59

 

 

Section 2.26.

Administrative Borrower62

 

ARTICLE III CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT

63

 

Section 3.1.

Conditions to Effectiveness63

 

 

Section 3.2.

Conditions to Each Credit Event65

 

 

Section 3.3.

Delivery of Documents66

 

ARTICLE IV REPRESENTATIONS AND WARRANTIES

66

 

Section 4.1.

Existence; Power66

 

 

Section 4.2.

Organizational Power; Authorization66

 

 

Section 4.3.

Governmental Approvals; No Conflicts66

 

i

 


 

 

Section 4.4.

Financial Statements67

 

 

Section 4.5.

Litigation and Environmental Matters67

 

 

Section 4.6.

Compliance with Laws and Agreements67

 

 

Section 4.7.

Investment Company Act67

 

 

Section 4.8.

Taxes67

 

 

Section 4.9.

Margin Regulations68

 

 

Section 4.10.

ERISA68

 

 

Section 4.11.

Ownership of Property; Insurance69

 

 

Section 4.12.

Disclosure69

 

 

Section 4.13.

Labor Relations70

 

 

Section 4.14.

Subsidiaries70

 

 

Section 4.15.

Solvency70

 

 

Section 4.16.

Deposit and Disbursement Accounts70

 

 

Section 4.17.

Collateral Documents70

 

 

Section 4.18.

Material Agreements71

 

 

Section 4.19.

Anti-Corruption Laws and Sanctions71

 

 

Section 4.20.

Patriot Act71

 

ARTICLE V AFFIRMATIVE COVENANTS

72

 

Section 5.1.

Financial Statements and Other Information72

 

 

Section 5.2.

Notices of Material Events73

 

 

Section 5.3.

Existence; Conduct of Business74

 

 

Section 5.4.

Compliance with Laws75

 

 

Section 5.5.

Payment of Obligations75

 

 

Section 5.6.

Books and Records75

 

 

Section 5.7.

Visitation and Inspection75

 

 

Section 5.8.

Maintenance of Properties; Insurance76

 

 

Section 5.9.

Use of Proceeds; Margin Regulations76

 

 

Section 5.10.

Casualty and Condemnation76

 

 

Section 5.11.

Cash Management76

 

 

Section 5.12.

Additional Subsidiaries and Collateral77

 

 

Section 5.13.

MLP Guaranty79

 

 

Section 5.14.

Further Assurances79

 

 

Section 5.15.

Designation and Conversion of Restricted and Unrestricted Subsidiaries80

 

 

Section 5.16.

Interest Rate Protection81

 

 

Section 5.17.

Post-Closing Matters81

 

ARTICLE VI FINANCIAL COVENANTS

81

 

Section 6.1.

Leverage Ratio81

 

 

Section 6.2.

Interest Coverage Ratio81

 

ARTICLE VII NEGATIVE COVENANTS

81

 

Section 7.1.

Indebtedness and Preferred Equity81

 

 

Section 7.2.

Liens83

 

 

Section 7.3.

Fundamental Changes84

 

 

Section 7.4.

Investments, Loans84

 

 

Section 7.5.

Restricted Payments86

 

ii

 


 

 

Section 7.6.

Sale of Assets87

 

 

Section 7.7.

Transactions with Affiliates87

 

 

Section 7.8.

Restrictive Agreements88

 

 

Section 7.9.

Sale and Leaseback Transactions89

 

 

Section 7.10.

Hedging Transactions89

 

 

Section 7.11.

Amendment to Material Documents89

 

 

Section 7.12.

Activities of the MLP89

 

 

Section 7.13.

Accounting Changes89

 

 

Section 7.14.

Unrestricted Subsidiaries89

 

 

Section 7.15.

Government Regulation90

 

ARTICLE VIII EVENTS OF DEFAULT

90

 

Section 8.1.

Events of Default90

 

 

Section 8.2.

Application of Proceeds from Collateral93

 

ARTICLE IX THE ADMINISTRATIVE AGENT

94

 

Section 9.1.

Appointment of the Administrative Agent94

 

 

Section 9.2.

Nature of Duties of the Administrative Agent94

 

 

Section 9.3.

Lack of Reliance on the Administrative Agent95

 

 

Section 9.4.

Certain Rights of the Administrative Agent95

 

 

Section 9.5.

Reliance by the Administrative Agent95

 

 

Section 9.6.

The Administrative Agent in its Individual Capacity96

 

 

Section 9.7.

Successor Administrative Agent96

 

 

Section 9.8.

Withholding Tax96

 

 

Section 9.9.

The Administrative Agent May File Proofs of Claim97

 

 

Section 9.10.

Authorization to Execute Other Loan Documents97

 

 

Section 9.11.

Collateral and Guaranty Matters98

 

 

Section 9.12.

Documentation Agent; Syndication Agent98

 

 

Section 9.13.

Right to Realize on Collateral and Enforce Guarantee98

 

 

Section 9.14.

Secured Bank Product Obligations and Hedging Obligations99

 

ARTICLE X MISCELLANEOUS

99

 

Section 10.1.

Notices99

 

 

Section 10.2.

Waiver; Amendments101

 

 

Section 10.3.

Expenses; Indemnification103

 

 

Section 10.4.

Successors and Assigns104

 

 

Section 10.5.

Governing Law; Jurisdiction; Consent to Service of Process108

 

 

Section 10.6.

WAIVER OF JURY TRIAL109

 

 

Section 10.7.

Right of Set-off109

 

 

Section 10.8.

Counterparts; Integration110

 

 

Section 10.9.

Survival110

 

 

Section 10.10.

Severability110

 

 

Section 10.11.

Confidentiality110

 

 

Section 10.12.

Interest Rate Limitation111

 

 

Section 10.13.

Waiver of Effect of Corporate Seal111

 

 

Section 10.14.

Patriot Act111

 

 

Section 10.15.

No Advisory or Fiduciary Responsibility112

 

 

Section 10.16.

Amendment and Restatement112

 

iii

 


 

 

Section 10.17.

No General Partner’s Liability for Facility112

 

 

Section 10.18.

Acknowledgment and Consent to Bail-In of EEA Financial Institutions113

 


iv

 


 

Schedules

Schedule I-Applicable Margin and Applicable Percentage

Schedule II-Commitment Amounts

 

Schedule 1.1-Description of REIT Conversion Transactions

Schedule 4.14-Subsidiaries

Schedule 4.14(A)-Fund A Subsidiaries

Schedule 4.14(D)-Fund D Subsidiaries

Schedule 4.16-Deposit and Disbursement Accounts

Schedule 4.18-Material Agreements

Schedule 5.15-Unrestricted Subsidiaries

Schedule 7.1-Existing Indebtedness

Schedule 7.2-Existing Liens

Schedule 7.4-Existing Investments

Schedule 7.7-Affiliate Transactions

 

 

Exhibits

Exhibit A- Form of Assignment and Acceptance

Exhibit B-Form of Guaranty and Security Agreement

Exhibit C-Form of Amendment Agreement

Exhibit DForm of Omnibus Mortgage Amendment

 

Exhibit 2.3-Form of Notice of Revolving Borrowing

Exhibit 2.4-Form of Notice of Swingline Borrowing

Exhibit 2.6-Form of Notice of Conversion/Continuation

Exhibit 2.20-Tax Certificates

Exhibit 3.1(b)(v)-Form of Officer’s Certificate

Exhibit 5.1(c)-Form of Compliance Certificate

 

 

v

 


 

SECOND AMENDED AND RESTATED CREDIT AGREEMENT

THIS SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”) is made and entered into as of July 31, 2017, by and among LANDMARK INFRASTRUCTURE ASSET OPCO II LLC, a Delaware limited liability company (“Landmark Asset II OpCo”), LANDMARK INFRASTRUCTURE INC., a Delaware corporation (“Landmark REIT”), LANDMARK INFRASTRUCTURE OPERATING COMPANY LLC, a Delaware limited liability company (“Landmark Operating Company”, and together with Landmark Asset II OpCo and Landmark REIT, collectively, the “Borrowers”, and individually, a  “Borrower”), LANDMARK INFRASTRUCTURE PARTNERS LP, a Delaware limited partnership (the “MLP”), the several banks and other financial institutions and lenders from time to time party hereto (the “Lenders”), and SUNTRUST BANK, in its capacity as administrative agent for the Lenders (the “Administrative Agent”), as issuing bank (the “Issuing Bank”), and as swingline lender (the “Swingline Lender”).

W I T N E S S E T H:

WHEREAS, Landmark Operating Company, the several banks and other financial institutions and lenders from time to time party thereto (collectively, the “Existing Lenders”), and SunTrust Bank, in its capacity as the Administrative Agent, the Issuing Bank, and the Swingline Lender entered into that certain credit agreement dated as of November 19, 2014 (as amended prior to the date hereof, the “Existing Credit Agreement”), pursuant to which the Existing Lenders made certain loans and other extensions of credit to Landmark Operating Company, as borrower thereunder (the “Original Borrower”);

WHEREAS, the Original Borrower has requested that the Lenders and the Administrative Agent agree to amend and restate the Existing Credit Agreement and provide certain loans and other extensions of credit to the Borrowers pursuant to this Agreement;

WHEREAS, the parties hereto intend that (a) the loans under the Existing Credit Agreement outstanding as of the Closing Date (as defined below) shall continue to exist and shall be Loans under and as defined in this Agreement on the terms set forth herein and (b) except as specifically provided in this Agreement and in the other Loan Documents (as defined below), the “Collateral” (as such term is defined in the Existing Credit Agreement) in existence on the Closing Date and the “Loan Documents” (as defined in the Existing Credit Agreement) shall continue to secure, guarantee, support and otherwise benefit the Obligations of the Borrowers and the other Loan Parties (as defined below) under this Agreement and the other Loan Documents.

NOW, THEREFORE, the parties hereto hereby agree that the Existing Credit Agreement is hereby amended and restated in its entirety as follows:

ARTICLE I

DEFINITIONS; CONSTRUCTION

Section 1.1.Definitions

.  In addition to the other terms defined herein, the following terms used herein shall have the meanings herein specified (to be equally applicable to both the singular and plural forms of the terms defined):

Acquisition” shall mean (a) any Investment by any Borrower or any of their respective Subsidiaries in any other Person, whether through purchase, merger or other business combination or transaction, (b) any acquisition by any Borrower or any of their respective Subsidiaries of the assets of

US-DOCS\90400310.5


 

any Person (other than a Subsidiary of any Borrower) that constitute all or substantially all of the assets of such Person or a division or business unit of such Person, whether in one transaction or a series of related transactions, and whether through purchase, merger or other business combination or transaction (and substantially all of such assets, division or business unit are located in the United States) or (c) the purchase of any Other Asset, Easement or Fee Owned Property.  With respect to a determination of the amount of an Acquisition, such amount shall include all consideration (including any deferred payments) set forth in the applicable agreements governing such Acquisition as well as the assumption of any Indebtedness in connection therewith.

Additional Lender” and “Additional Lenders” shall have the meanings set forth in Section 2.22.

Adjusted Consolidated EBITDA” shall mean, for any period, Consolidated EBITDA calculated on a Pro Forma Basis.  

Adjusted LIBO Rate” shall mean, with respect to each Interest Period for a Eurodollar Loan, (a) the rate per annum equal to the London interbank offered rate for deposits in Dollars appearing on Reuters screen page LIBOR 01 (or on any successor or substitute page of such service or any successor to such service, or such other commercially available source providing such quotations as may reasonably be designated by the Administrative Agent from time to time) at approximately 11:00 A.M. (London time) two (2) Business Days prior to the first day of such Interest Period, with a maturity comparable to such Interest Period, divided by (b) a percentage equal to 100% minus the then-stated maximum rate of all reserve requirements (including any marginal, emergency, supplemental, special or other reserves and without benefit of credits for proration, exceptions or offsets that may be available from time to time) applicable to any member bank of the Federal Reserve System in respect of Eurocurrency liabilities as defined in Regulation D (or any successor category of liabilities under Regulation D); provided that if the rate referred to in clause (a) above shall be less than zero, the Adjusted LIBO Rate shall be deemed zero for purposes of this Agreement; provided further that if the rate referred to in clause (a) above is not available at any such time for any reason, then the rate referred to in clause (a) shall instead be the interest rate per annum, as determined by the Administrative Agent, to be the arithmetic average of the rates per annum at which deposits in Dollars in an amount equal to the amount of such Eurodollar Loan are offered by major banks in the London interbank market to the Administrative Agent at approximately 11:00 A.M. (London time), two (2) Business Days prior to the first day of such Interest Period.

Administrative Agent” shall have the meaning set forth in the introductory paragraph hereof, and shall include any successor administrative agent.

Administrative Borrower” shall have the meaning set forth in Section 2.26.

Administrative Questionnaire” shall mean, with respect to each Lender, an administrative questionnaire in the form provided by the Administrative Agent and submitted to the Administrative Agent duly completed by such Lender.

Affiliate” shall mean, as to any Person, any other Person that directly, or indirectly through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such Person.  For the purposes of this definition, “Control” shall mean the power, directly or indirectly, either to (i) vote 10% or more of the securities having ordinary voting power for the election of directors (or persons performing similar functions) of a Person or (ii) direct or cause the direction of the management and policies of a Person, whether through the ability to exercise voting power, by control or otherwise.  The terms “Controlled by” and “under common Control with” have the meanings correlative thereto.

2

 


 

Affiliate Funds” shall mean the Predecessor Funds and the Permitted Funds.

Agreement” shall have the meaning assigned to such term in the introductory paragraph hereto.

Aggregate Revolving Commitment Amount” shall mean the aggregate amount of the Aggregate Revolving Commitments from time to time.  On the Closing Date, the Aggregate Revolving Commitment Amount is $367,000,000.

Aggregate Revolving Commitments” shall mean, collectively, at any time all Revolving Commitments of all Lenders outstanding at such time.

Amendment Agreement” shall mean an Amendment Agreement executed by the Original Borrower and the Administrative Agent or the Borrowers and the Administrative Agent, as applicable, in substantially the form attached hereto as Exhibit C.

Annualized Adjusted Consolidated EBITDA” shall mean, with respect to any Fiscal Quarter, Adjusted Consolidated EBITDA for such Fiscal Quarter multiplied by four (4).

Anti-Corruption Laws” shall mean all laws, rules, and regulations of any jurisdiction applicable to any Borrower or any of their respective Affiliates from time to time concerning or relating to bribery or corruption.

Anti-Terrorism Order shall mean Executive Order 13224, signed by President George W. Bush on September 23, 2001.

Applicable Lending Office” shall mean, for each Lender and for each Type of Loan, the “Lending Office” of such Lender (or an Affiliate of such Lender) designated for such Type of Loan in the Administrative Questionnaire submitted by such Lender or such other office of such Lender (or such Affiliate of such Lender) as such Lender may from time to time specify to the Administrative Agent and the Administrative Borrower as the office by which its Loans of such Type are to be made and maintained.

Applicable Margin” shall mean, as of any date, with respect to interest on all Revolving Loans outstanding on such date or the letter of credit fee, as the case may be, the percentage per annum in effect on such date as set forth on Schedule I.  The provisions of this definition shall not limit the rights of the Administrative Agent and the Lenders with respect to Section 2.12(c) or Article VIII.

Applicable Percentage” shall mean, as of any date, with respect to the commitment fee as of such date, the percentage per annum in effect on such date as set forth on Schedule I.  The provisions of this definition shall not limit the rights of the Administrative Agent and the Lenders with respect to Section 2.12(c) or Article VIII.

Approved Fund” shall mean any Person (other than a natural Person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

Assigned Existing Mortgages” shall mean those Existing Mortgages (a)(i) assigned to the Administrative Agent for the benefit of the Secured Parties in connection with the Formation

3

 


 

Transactions or any subsequent Acquisition from an Affiliate Fund that was consummated prior to the Closing Date or (ii) being assigned to the Administrative Agent for the benefit of the Secured Parties in connection with a subsequent Acquisition from an Affiliate Fund and (b) which encumber Real Estate that does not constitute Excluded Assets.

Assigned Fund A Mortgages” shall mean each Fund A Mortgage which was assigned to the Administrative Agent for the benefit of the Secured Parties pursuant to a Fund A Mortgage Assignment, as amended by the Fund A Omnibus Mortgage Amendment.

Assigned Fund D Mortgage” shall mean each Fund D Mortgage which was assigned to the Administrative Agent for the benefit of the Secured Parties pursuant to a Fund D Mortgage Assignment, as amended by the Fund D Omnibus Mortgage Amendment.

Assignment and Acceptance” shall mean an assignment and acceptance entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 10.4(b)) and accepted by the Administrative Agent, in the form of Exhibit A attached hereto or any other form approved by the Administrative Agent.

Assignment Endorsement” shall mean an ALTA 10 endorsement, or equivalent.

Available Cash” has the meaning assigned to such term in the MLP Partnership Agreement.  

Availability Period” shall mean the period from the Original Closing Date to but excluding the Maturity Date.

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.

Bank Product Obligations” shall mean, collectively, all obligations and other liabilities of any Loan Party to any Bank Product Provider arising with respect to any Bank Products.

Bank Product Provider” shall mean any Person that, at the time it provides any Bank Product to any Loan Party, (a) is a Lender or an Affiliate of a Lender and (b) except when the Bank Product Provider is SunTrust Bank and its Affiliates, has provided prior written notice to the Administrative Agent which has been acknowledged by the Administrative Borrower of (i) the existence of such Bank Product, and (ii) the maximum dollar amount of obligations arising thereunder (the “Bank Product Amount”).  In no event shall any Bank Product Provider acting in such capacity be deemed a Lender for purposes hereof to the extent of and as to Bank Products except that each reference to the term “Lender” in Article IX shall be deemed to include such Bank Product Provider and in no event shall the approval of any such person in its capacity as Bank Product Provider be required in connection with the release or termination of any guaranty, security interest or Lien of the Administrative Agent under any Loan Document.  The Bank Product Amount may be changed from time to time upon written notice to the Administrative Agent by the applicable Bank Product Provider.  No Bank Product Amount may be established at any time that a Default or Event of Default exists.  

4

 


 

Bank Products” shall mean any of the following services provided to any Loan Party by any Bank Product Provider: (a) any treasury or other cash management services, including deposit accounts, automated clearing house (ACH) origination and other funds transfer, depository (including cash vault and check deposit), zero balance accounts and sweeps, return items processing, controlled disbursement accounts, positive pay, lockboxes and lockbox accounts, account reconciliation and information reporting, payables outsourcing, payroll processing, trade finance services, investment accounts and securities accounts, and (b) card services, including credit cards (including purchasing cards and commercial cards), prepaid cards, including payroll, stored value and gift cards, merchant services processing, and debit card services.

Base Rate” shall mean the highest of (a) the rate which the Administrative Agent announces from time to time as its prime lending rate, as in effect from time to time, (b) the Federal Funds Rate, as in effect from time to time, plus 0.50% per annum and (c) the Adjusted LIBO Rate determined on a daily basis for an Interest Period of one (1) month, plus 1.00% per annum (any changes in such rates to be effective as of the date of any change in such rate); provided, that if the Base Rate shall be less than zero, then such rate shall be zero for purposes of this Agreement.  The Administrative Agent’s prime lending rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer.  The Administrative Agent may make commercial loans or other loans at rates of interest at, above, or below the Administrative Agent’s prime lending rate.

Beneficial Owner” shall mean, with respect to any amount paid hereunder or under any other Loan Document, the Person that is the beneficial owner, for U.S. federal income tax purposes, of such payment.

Billboard Properties” shall mean any Other Asset, Easement or Fee Owned Property owned by a Borrower or a Restricted Subsidiary relating to the ownership or operation of billboards and all other property interests owned by or assigned to any Loan Party relating to the ownership or operation (excluding any operations that are not specifically related to billboards) of such billboards.

Borrower” and “Borrowers” shall have the meanings set forth in the introductory paragraph hereof.

Borrowing” shall mean a borrowing consisting of (a) Loans of the same Class and Type, made, converted or continued on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect, or (b) a Swingline Loan.

Building” shall have the meaning assigned to such term in the applicable Flood Insurance Laws.  

Business Day” shall mean any day other than (a) a Saturday, Sunday or other day on which commercial banks in Atlanta, Georgia, or New York, New York are authorized or required by law to close and (b) if such day relates to a Borrowing of, a payment or prepayment of principal or interest on, a conversion of or into, or an Interest Period for, a Eurodollar Loan or a notice with respect to any of the foregoing, any day on which banks are not open for dealings in Dollar deposits in the London interbank market.

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

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Capital Stock” shall mean all shares, options, warrants, general or limited partnership interests, membership interests or other equivalents (regardless of how designated) of or in a corporation, partnership, limited liability company or equivalent entity whether voting or non-voting, including common stock, preferred stock or any other “equity security” (as such term is defined in Rule 3a11-1 of the General Rules and Regulations promulgated by the Securities and Exchange Commission under the Exchange Act).

Cash Collateralize” shall mean, in respect of any obligations, to provide and pledge (as a first priority perfected security interest) cash collateral for such obligations in Dollars with the Administrative Agent pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent (and “Cash Collateralized” and “Cash Collateralization” have the corresponding meanings).

CFC” shall mean a “controlled foreign corporation” as defined in Section 957 of the Code.

Change in Control” shall mean the occurrence of one or more of the following events: (a) the MLP at any time ceases to own, directly or indirectly, (i) 100% of the Capital Stock of Landmark II Asset OpCo or (ii) 95% of the Capital Stock of Landmark REIT, (b) at any time prior to the contribution by the MLP of its interest in Landmark Operating Company to Landmark REIT, the MLP, and thereafter, Landmark REIT at any time ceases to own, directly or indirectly, 100% of the Capital Stock of Landmark Operating Company, or (c)(i) the Sponsor ceases to own, or have the power to vote or direct the voting of, a majority of the voting stock of the General Partner or (ii) the Sponsor ceases to own Capital Stock representing a majority of the total economic interests of the Capital Stock of the General Partner, (d) the General Partner shall cease to exercise Control over the MLP or (e) the MLP shall cease to exercise Control over Landmark REIT.

Change in Law” shall mean (a) the adoption of any applicable law, rule or regulation after the date of this Agreement, (b) any change in any applicable law, rule or regulation, or any change in the interpretation, implementation or application thereof, by any Governmental Authority after the date of this Agreement, or (c) compliance by any Lender (or its Applicable Lending Office) or any Issuing Bank (or, for purposes of Section 2.17(b), by the Parent Company of such Lender or such Issuing Bank, if applicable) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement; provided that for purposes of this Agreement, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives in connection therewith 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 Law”, regardless of the date enacted, adopted or issued.

Charges” shall have the meaning set forth in Section 10.12.

Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans or Swingline Loans and when used in reference to any Commitment, refers to whether such Commitment is a Revolving Commitment or a Swingline Commitment.

Closing Date” shall mean the date on which the conditions precedent set forth in Section 3.1 and Section 3.2 have been satisfied or waived in accordance with Section 10.2.

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Code” shall mean the Internal Revenue Code of 1986, as amended and in effect from time to time.

Collateral” shall mean all tangible and intangible property, real and personal, of any Loan Party that is or purports to be the subject of a Lien to the Administrative Agent to secure the whole or any part of the Obligations or any Guarantee thereof, and shall include, without limitation, all casualty insurance proceeds and condemnation awards with respect to any of the foregoing. Except to the extent expressly provided herein to the contrary, the Loan Parties shall not be required to grant a Lien on Excluded Assets or perfect a Lien pursuant to the Excluded Perfections.  

Collateral Documents” shall mean, collectively, the Guaranty and Security Agreement, all Mortgages, all Mortgage Assignments, all Copyright Security Agreements, all Patent Security Agreements, all Trademark Security Agreements and all other instruments and agreements now or hereafter securing or perfecting the Liens securing the whole or any part of the Obligations or any Guarantee thereof, all UCC-1 financing statements, fixture filings and stock powers, and all other documents, instruments, agreements and certificates executed and delivered by any Loan Party to the Administrative Agent and the Lenders in connection with the foregoing.

Commitment” shall mean a Revolving Commitment or a Swingline Commitment or any combination thereof (as the context shall permit or require).

Commitment Letter” shall mean that certain commitment letter, dated as of September 2, 2014, executed by SunTrust Robinson Humphrey, Inc. and SunTrust Bank and accepted by the MLP.

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

Compliance Certificate” shall mean a Quarterly Compliance Certificate or a Pro Forma Compliance Certificate, as applicable.

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

Conflicts Committee” shall have the meaning assigned to such term in the MLP Partnership Agreement.

Consolidated Cash Interest Expense” shall mean, for the Borrowers and their Restricted Subsidiaries for any period, determined on a consolidated basis in accordance with GAAP, Consolidated Interest Expense for such period, minus, in each case, to the extent included in Consolidated Interest Expense for such period and without duplication (a) pay in kind or other non-cash interest expense, including as a result of the effects of purchase accounting, (b) any debt discounts, one-time financing fees or the amortization thereof, including such fees paid in connection with this Agreement, the REIT Conversion Transactions, any amendment, consent or waiver to Loan Documents, any Indebtedness not otherwise prohibited under this Agreement, or any amendment to such Indebtedness (in each case, to the extent included in Consolidated Interest Expense for such period), (c) fees in respect of Hedging Transactions for interest rates, (d) non-cash interest expense attributable to the movement of mark-to-market valuation of obligations under Hedging Transactions for interest rates or other derivative instruments for interest rates pursuant to Financial Accounting Standards Board Statement No. 133, (e) any one-time cash costs associated with breakage in respect of Hedging Transactions for interest rates, and (f) any costs associated with payment premiums, breakage costs, make-whole fees or similar costs or expenses payable in connection with any refinancing, repurchase, repayment or other satisfaction of

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Indebtedness.  Notwithstanding the foregoing, for any amount of Consolidated Interest Expense that represents an accrual for cash payments in any future period, such amount shall be included as Consolidated Cash Interest Expense.

Consolidated EBITDA” shall mean, for the Borrowers and their Restricted Subsidiaries for any period, an amount equal to the sum of (a) Consolidated Net Income for such period plus (b) to the extent deducted in determining Consolidated Net Income for such period, and without duplication, (i) Consolidated Interest Expense, (ii) income tax expense determined on a consolidated basis in accordance with GAAP, (iii) depreciation and amortization determined on a consolidated basis in accordance with GAAP (whether or not included as such in the financial statements then being delivered), (iv) impairment charges, (v) losses on disposal of assets, (vi) non-cash expenses, charges or losses (provided that such expenses, charges or losses will be treated as cash expenses, charges or losses, as applicable, in any subsequent testing period during which any cash disbursements attributable thereto are made), (vii) one-time expenses associated with this Agreement and the REIT Conversion Transactions, (viii) fees and expenses incurred in connection with any proposed or actual issuance of Indebtedness or Capital Stock, or any proposed or actual Acquisitions, Investments, asset sales or other divestitures permitted under this Agreement, (ix) charges incurred in respect of restructurings or similar transactions, (x) any losses attributable to cash payments relating to early extinguishment of Indebtedness or Hedging Obligations, (xi) unrealized losses attributable to the application of “mark-to-market” accounting, (xii) general and administrative expenses reimbursed by the Sponsor in accordance with the terms of the Omnibus Agreement up to the amount actually deducted in determining Consolidated Net Income for such period, (xiii) foreign currency losses, and (xiv) equity-based compensation, minus (c) to the extent included in determining Consolidated Net Income for such period, and without duplication, (i) interest income (but excluding from interest income any interest income attributable to Investments in long-term receivables), (ii) any non-cash amounts included in revenue (provided that such amounts will be treated as cash income in any subsequent period during which such cash is received), (iii) gains on disposal of assets, (iv) gains attributable to early extinguishment of Indebtedness or Hedging Obligations, (v) unrealized gains attributable to the application of “mark-to-market” accounting, and (vi) foreign currency gains.  Notwithstanding the foregoing, for purposes of calculating Consolidated EBITDA for any testing period, Consolidated EBITDA shall be further adjusted such that (A) the Consolidated EBITDA attributable to assets located outside of the United States (or any state or district thereof) shall be excluded to the extent that such Consolidated EBITDA exceeds 25% of Consolidated Property EBITDA (as defined below) for such period; (B) if after giving effect to the exclusion in clause (A) the Consolidated EBITDA attributable to assets located outside of the United States, European Union (including the United Kingdom), Australia or Canada exceeds 5% of Consolidated Property EBITDA for such period, then such excess shall be excluded from Consolidated EBITDA; (C) the Consolidated EBITDA attributable to properties subject to Liens permitted by clause (h)(i)(B) of the definition of Permitted Encumbrances shall be excluded to the extent that such Consolidated EBITDA exceeds 15% of Consolidated Property EBITDA for such period, (D) the Consolidated EBITDA attributable to Billboard Properties shall be excluded to the extent that such Consolidated EBITDA exceeds 40% of Consolidated Property EBITDA for such period and (E) the Consolidated EBITDA attributable to distributions from Unrestricted Subsidiaries shall be excluded to the extent that such distributions exceed 5% of Consolidated Property EBITDA for such period.  For purposes of the previous sentence, “Consolidated Property EBITDA” shall mean, for Borrowers and their Restricted Subsidiaries for any period, an amount equal to the sum Consolidated EBITDA for such period (determined without giving effect to the previous sentence) plus general and administrative expenses of the Borrowers and their Restricted Subsidiaries for such period.

Consolidated Interest Expense” shall mean, for the Borrowers and their Restricted Subsidiaries for any period, determined on a consolidated basis in accordance with GAAP, total interest expense adjusted, to the extent not included, to include without duplication (a) interest expense

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attributable to Capital Lease Obligations; (b) the net amount payable (or minus the net amount receivable) with respect to the interest component of Hedging Transactions for interest rates during such period (whether or not actually paid or received during such period); (c) fees and costs related to letters of credit, bankers’ acceptance financings, surety bonds and similar financings, and (d) amortization or write-off of deferred financing fees, debt issuance costs, debt discount or premium, terminated Hedging Obligations for interest rates and other commissions, financing fees and expenses.  

Consolidated Net Income” shall mean, for the Borrowers and their Restricted Subsidiaries for any period, the net income (or loss) of the Borrowers and their Subsidiaries for such period determined on a consolidated basis in accordance with GAAP, plus cash distributions from any Unrestricted Subsidiary or Person that is not a Subsidiary, but excluding therefrom (to the extent otherwise included therein) (a) any extraordinary, unusual or non-recurring gains or losses, (b) any gains attributable to write-ups of assets or gains and losses attributable the sale of assets (other than the sale of inventory in the ordinary course of business), (c) any unremitted earnings of any Person that is not a Subsidiary and (d) any income (or loss) of any Person accrued prior to the date it becomes a Restricted Subsidiary or is merged into or consolidated with any Borrower or any Restricted Subsidiary or the date that such Person’s assets are acquired by any Borrower or any Restricted Subsidiary.

Consolidated Total Debt” shall mean, as of any date, the balance sheet amount of all Indebtedness of the Borrowers and their Restricted Subsidiaries measured on a consolidated basis in accordance with GAAP as of such date, but excluding Indebtedness of the type described in subsection (k) of the definition thereof.

Contractual Obligation” of any Person shall mean any provision of any security issued by such Person or of any agreement, instrument or undertaking under which such Person is obligated or by which it or any of the property in which it has an interest is bound.

Control” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through ownership of voting securities, by contract or otherwise, and the terms “Controlling” and “Controlled” shall have meanings correlative thereto.

Control Account Agreement” shall mean any tri-party agreement by and among a Loan Party, the Administrative Agent and a depositary bank or securities intermediary at which such Loan Party maintains a Controlled Account, in each case in form and substance reasonably satisfactory to the Administrative Agent.

Controlled Account” shall have the meaning set forth in Section 5.11.

Copyright” shall have the meaning assigned to such term in the Guaranty and Security Agreement.

Copyright Security Agreement” shall mean any Copyright Security Agreement executed by a Loan Party owning registered Copyrights or applications for Copyrights in favor of the Administrative Agent for the benefit of the Secured Parties, both on the Original Closing Date and thereafter.

Covered State” shall mean, as of any date, the State of Texas and any other state (or the District of Columbia) with respect to which the Administrative Agent shall have previously received an Assignment Endorsement and a Modification Endorsement.

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Debtor Relief Laws” means the Bankruptcy Code of the United States of America, 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.

Default” shall mean any condition or event that, with the giving of notice or the lapse of time or both, would constitute an Event of Default.

Default Interest” shall have the meaning set forth in Section 2.12(c).

Defaulting Lender” shall mean, subject to Section 2.25(c), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two (2) Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Administrative Borrower in writing that such failure is the result of such Lender’s good faith determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, any Issuing Bank, any Swingline Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swingline Loans) within two (2) Business Days of the date when due, (b) has notified the Administrative Borrower, the Administrative Agent or any Issuing Bank or Swingline Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s good faith determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after written request by the Administrative Agent or the Administrative Borrower, to confirm in writing to the Administrative Agent and the Administrative Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Administrative Borrower), or (d) has, or has a direct or indirect parent company that has, other than via an Undisclosed Administration (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity or (iii) become the subject of a Bail-in Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.  Any determination by the Administrative Agent that a Lender is a Defaulting Lender under clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.25(b)) upon delivery of written notice of such determination to the Administrative Borrower, each Issuing Bank, the Swingline Lender and each Lender.

Disposition” shall have the meanings set forth in Section 7.6.

Disqualified Capital Stock” shall mean, with respect to any Person, preferred Capital Stock of such Person that (a) matures or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise, (b) is or may become redeemable or repurchaseable by such Person or any Restricted

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Subsidiary such Person at the option of the holder thereof, in whole or in part, or (c) is convertible or exchangeable at the option of the holder thereof for Indebtedness or preferred Capital Stock described in this paragraph, on or prior to, in the case of clause (a), (b) or (c) hereof, one year after the Maturity Date

Dollar(s)” and the sign “$” shall mean lawful money of the United States.

Domestic CFC Holdco” shall mean any Subsidiary organized in or under the laws of the United States, any state thereof or the District of Columbia that has no material assets other the Capital Stock of one or more Foreign Subsidiaries that are CFCs, so long as such Subsidiary (a) does not conduct any business or other activities and (b) does not incur, and is not otherwise liable for, any Indebtedness or other liabilities.

Easement” shall mean an easement, lease, master lease, ground lease, sublease, lease assignment, assignment of rents or other equivalent ownership interest in Real Estate, excluding, for the avoidance of doubt, fee simple ownership.

EBITDA Threshold Period” shall mean any period beginning on the day of delivery of a Compliance Certificate to the Administrative Agent demonstrating Annualized Adjusted Consolidated EBITDA in an amount equal to or greater than $25,000,000 and ending on the day of delivery of a Compliance Certificate to the Administrative Agent demonstrating Annualized Adjusted Consolidated EBITDA in an amount less than $25,000,000.

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.

Environmental Laws” shall mean all laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into by or with any Governmental Authority relating in any way to the environment, preservation or reclamation of natural resources, the management, Release or threatened Release of any Hazardous Material or to health and safety matters.

Environmental Liability” shall mean any liability, contingent or otherwise (including any liability for damages, costs of environmental investigation and remediation, costs of administrative oversight, fines, natural resource damages, penalties or indemnities), of any Borrower or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a) any actual or alleged violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) any actual or alleged exposure to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

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ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor statute and the regulations promulgated and rulings issued thereunder.

ERISA Affiliate” shall mean any person that for purposes of Title I or Title IV of ERISA or Section 412 of the Code would be deemed at any relevant time to be a “single employer” or otherwise aggregated with any Borrower or any of their respective Subsidiaries under Section 414(b), (c), (m) or (o) of the Code or Section 4001 of ERISA.

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

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

Eurodollar”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, bears interest at a rate determined by reference to the Adjusted LIBO Rate.

Event of Default” shall have the meaning set forth in Section 8.1.

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Exchange Act” shall mean the Securities Exchange Act of 1934, as amended and in effect from time to time.

Excluded Assets” shall mean that, notwithstanding any other provision herein or in any of the other Loan Documents to the contrary:

(a)

the Collateral shall not include Real Estate (x) owned by an Affiliate Fund that is acquired by any Loan Party, (y) owned by a Subsidiary of an Affiliate Fund that is acquired by any Loan Party or (z) acquired directly by a Loan Party from an Affiliate Fund or a Subsidiary of an Affiliate Fund (i) to the extent such Real Estate is not covered by an Existing Mortgage or (ii) covered by an Existing Mortgage, but as to which the Administrative Agent and the Administrative Borrower shall determine in good faith that the burden or cost of obtaining the mortgage Lien and security interest on such Real Estate pursuant to an assignment of the relevant Existing Mortgage outweighs the benefit of such mortgage Lien and security interest; provided that (A) the total Annualized Adjusted Consolidated EBITDA attributable to Excluded Assets under this clause (a)(ii) shall not exceed ten percent (10%) of the Annualized Adjusted Consolidated EBITDA attributable to all Real Estate covered by such Existing Mortgages and transferred to any Borrower or any Subsidiary either directly or via transfer of the Capital Stock of the relevant Affiliate Fund or Subsidiary of an Affiliate Fund owning such Real Estate, and (B) the mortgage Liens and security interests granted pursuant to the Existing Mortgages subject to this clause (a)(ii) shall be released and terminated in full as a condition of the Acquisition of the Capital Stock of the relevant Affiliate Fund or Subsidiary of an Affiliate Fund or of such Real Estate from an Affiliate Fund or Subsidiary of an Affiliate Fund, as the case may be;

(b)

the Collateral shall not include Real Estate acquired after the Closing Date from Persons other than the Affiliate Funds or Subsidiaries of the Affiliate Funds;

(c)

the Collateral shall not include assets to the extent the grant of a security interest therein would (i) result in the contravention of any applicable Requirement of Law, unless such applicable Requirement of Law would be rendered ineffective with respect to the creation of such security interest by the provisions of Article 9 of the UCC, (ii) constitute a violation of a valid and enforceable restriction (after giving effect to applicable anti-assignment provisions of the UCC) in favor of a third party on such grant (unless and until any and all required consents have been obtained), (iii) give any other party to such contract, instrument, license or other document the right to terminate its obligations thereunder, (iv) require the consent of any governmental authority or third party to the extent such consent has not been obtained after the applicable Loan Party has used commercially reasonable efforts to do so, or (v) result in adverse tax consequences as determined in good faith by the Administrative Borrower;

(d)

any Collateral consisting of personal property shall not include those properties or assets as to which the Administrative Agent and the Administrative Borrower shall reasonably determine that the burden or cost of obtaining a security interest therein outweighs the benefit of the security to be afforded thereby (it being understood that none of the Excluded Assets specified in clauses (a) through (d) above shall be subject to any Liens other than Liens permitted by Section 7.2); provided, however, that no such determination may be made by the Administrative Agent and the Administrative Borrower with respect to the Capital Stock of any Borrower or any Restricted Subsidiary;

(e)

the Collateral shall not include voting Capital Stock of a Foreign Subsidiary that is a CFC or voting Capital Stock of a Domestic CFC Holdco in excess of 65% of such voting Capital Stock; and

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(f)

all Buildings and Manufactured (Mobile) Homes.

Excluded Perfections” shall mean, notwithstanding any other provision herein or in the other Loan Documents to the contrary, the Loan Parties shall have no obligation to perfect (or maintain the perfection of) any security interest in or Lien on motor vehicles, rail cars, vessels, airplanes and other assets subject to certificates of title, letter of credit rights (other than to the extent such rights can be perfected by the filing of a UCC-1 financing statement), or commercial tort claims.

Excluded Swap Obligation” shall mean, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act at the time the Guarantee of such Guarantor becomes effective with respect to such related Swap Obligation.  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 Obligation that is attributable to swaps for which such Guarantee or security interest is or becomes illegal.

Excluded Taxes” shall mean any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Foreign Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Foreign Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Foreign Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Administrative Borrower under Section 2.24) or (ii) such Foreign Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.19, amounts with respect to such Taxes were payable either to such Foreign Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 2.19(g) and (d) any U.S. federal withholding Taxes imposed under FATCA.

Existing Credit Agreement” shall have the meaning assigned such term in the recitals hereto.

Existing Lenders” shall have the meaning assigned such term in the recitals hereto.

Existing Mortgages” shall mean the mortgages or deeds of trust executed and delivered by an Affiliate Fund granting mortgage Liens on and security interests in the Real Estate held by such Affiliate Fund for the benefit of such Affiliate Fund’s lenders, including the Predecessor Fund Mortgages.

Existing Yield” shall have the meaning set forth in Section 2.22.

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

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entered into in connection with any of the foregoing and any laws, regulations or practices adopted under any such intergovernmental agreements.

Federal Funds Rate” shall mean, for any day, the rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal to the weighted average of the rates on overnight federal funds transactions with member banks of the Federal Reserve System, as published by the Federal Reserve Bank of New York on the next succeeding Business Day or, if such rate is not so published for any Business Day, the Federal Funds Rate for such day shall be the average (rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for such day on such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected by the Administrative Agent.

Fee Letters” shall mean, collectively, (a) the Original Fee Letter and (b) that certain fee letter, dated as of July 21, 2017, executed by SunTrust Robinson Humphrey, Inc. and SunTrust Bank and accepted by the Borrowers.

Fee Owned Property” shall mean a fee simple ownership interest in Real Estate.

Fiscal Quarter” shall mean any fiscal quarter of the Borrowers.

Fiscal Year” shall mean any fiscal year of the Borrowers.

Flood Insurance Laws” shall mean, collectively, (a) the National Flood Insurance Act of 1968 as now or hereafter in effect or any successor statute thereto, (b) the Flood Disaster Protection Act of 1973 as now or hereafter in effect or any successor statute thereto, (c) the National Flood Insurance Reform Act of 1994 as now or hereafter in effect or any successor statute thereto, and (d) the Flood Insurance Reform Act of 2004 and (e) The Biggert-Waters Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto, in each case, together with all statutory and regulatory provisions consolidating, amending, replacing, supplementing, implementing or interpreting any of the foregoing, as amended or modified from time to time.

Foreign Lender” shall mean (a) if any Borrower is a U.S. Person, with respect to such Borrower, a Lender that is not a U.S. Person, and (b) if any Borrower is not a U.S. Person, with respect to such Borrower a Lender that is resident or organized under the laws of a jurisdiction other than that in which such Borrower is resident for tax purposes.  

Foreign Subsidiary” shall mean any Subsidiary that is organized under the laws of a jurisdiction other than one of the fifty states of the United States or the District of Columbia.

Formation Transactions” shall mean the transfer by the Predecessor Funds to the Original Borrower of all of the Capital Stock of all of the Fund A Subsidiaries and the Fund D Subsidiaries.

Fund A” shall mean Landmark Dividend Growth Fund - A LLC, a Delaware limited liability company.

Fund A Administrative Agent” shall have the meaning assigned such term in the definition of the Fund A Credit Agreement.

Fund A Assignment” shall mean the sale and assignment by the Fund A Lenders to the “Lenders” under and as defined in the Existing Credit Agreement of their outstanding loans under the

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Fund A Credit Agreement owing to them and all of their other rights and obligations under the Fund A Credit Agreement and the other “Loan Documents” (as defined in the Fund A Credit Agreement).

Fund A Credit Agreement” shall mean that certain Credit Agreement dated as of April 16, 2012 (as amended prior to Original Closing Date) by and among Fund A, as administrative borrower, the Direct Subsidiaries (as defined in the Fund A Credit Agreement) in existence on the date thereof and each other Person executing a Joinder (as defined in the Fund A Credit Agreement) thereto as a borrower, as borrowers, the lenders from time to time party thereto (the “Fund A Lenders”), and Texas Capital Bank, N.A., as administrative agent (the “Fund A Administrative Agent”), pursuant to which the Fund A Lenders made certain loans and other extensions of credit to the borrowers thereunder.

Fund A Lenders” shall have the meaning assigned such term in the definition of the Fund A Credit Agreement.

Fund A Mortgage Assignment” shall mean an assignment of the Fund A Mortgages in appropriate form for recording in each applicable jurisdiction made by the Fund A Administrative Agent to the Administrative Agent for the benefit of the Secured Parties.  

Fund A Mortgages” shall mean the mortgages made by the Fund A Subsidiaries for the benefit of the Fund A Lenders pursuant to the Fund A Credit Agreement.

Fund A Omnibus Mortgage Amendment” shall mean, collectively, those certain Fund A Omnibus Mortgage Amendments, each dated as of the Original Closing Date, made by the Fund A Subsidiaries in favor of the Administrative Agent for the benefit of the Secured Parties, amending the Assigned Fund A Mortgages.

Fund A Subsidiaries” shall mean the “Direct Subsidiaries” as defined in the Fund A Credit Agreement and listed on Schedule 4.14(A) hereto.

Fund D” shall mean Landmark Dividend Growth Fund - D LLC, a Delaware limited liability company.

Fund D Administrative Agent” shall have the meaning assigned such term in the definition of the Fund D Credit Agreement.

Fund D Credit Agreement” shall mean that certain Credit Agreement dated as of June 21, 2012 (as amended prior to the Original Closing Date), by and amoung Fund D, as administrative borrower, the Direct Subsidiaries (as defined in the Fund D Credit Agreement) in existence on the date thereof and each other Person executing a Joinder (as defined in the Fund D Credit Agreement) thereto as a borrower, as borrowers, the lenders from time to time party thereto (the “Fund D Lenders”), and Bank of America, N.A., as administrative agent (the “Fund D Administrative Agent”), pursuant to which the Fund D Lenders made certain loans and other extensions of credit to the borrowers thereunder.

Fund D Lenders” shall have the meaning assigned such term in the definition of the Fund D Credit Agreement.

Fund D Mortgage Assignment” shall mean an assignment of the Fund D Mortgages in appropriate form for recording in each applicable jurisdiction made by the Fund D Administrative Agent to the Administrative Agent for the benefit of the Secured Parties.

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Fund D Mortgages” shall mean the mortgages made by Fund D Subsidiaries for the benefit of the Fund D Lenders pursuant to the Fund D Credit Agreement.  

Fund D Omnibus Mortgage Amendment” shall mean, collectively, those certain Fund D Omnibus Mortgage Amendments, each dated as of the Original Closing Date, made by the Fund D Subsidiaries in favor of the Administrative Agent for the benefit of the Secured Parties, amending the Assigned Fund D Mortgages.  

Fund D Subsidiaries” shall mean the “Direct Subsidiaries” as defined in the Fund D Credit Agreement and listed on Schedule 4.14(D) hereto.

GAAP” shall mean generally accepted accounting principles in the United States applied on a consistent basis, subject to the terms of Section 1.3.

General Partner” shall mean Landmark Infrastructure Partners GP LLC or any successor or replacement general partner, so long as such successor or replacement becoming the general partner does not result in a Change in Control.

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

Guarantee” of or by any Person (the “guarantor”) shall mean any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly and including any obligation, direct or indirect, of the guarantor (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued in support of such Indebtedness or obligation; provided that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business.  The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee is made or, if not so stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith.  The term “Guarantee” used as a verb has a corresponding meaning.

Guarantors” shall mean, collectively, the MLP and each Restricted Subsidiary that is not a Foreign Subsidiary or a Domestic CFC Holdco.

Guaranty and Security Agreement” shall mean the Amended and Restated Guaranty and Security Agreement, dated as of the date hereof and substantially in the form of Exhibit B, made by the Loan Parties in favor of the Administrative Agent for the benefit of the Secured Parties.

Hazardous Materials” shall mean all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates,

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asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.

Hedging Obligations” shall mean, with respect to any Person, any and all obligations of such Person, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired under (a) any and all Hedging Transactions, (b) any and all cancellations, buy backs, reversals, terminations or assignments of any Hedging Transactions and (c) any and all renewals, extensions and modifications of any Hedging Transactions and any and all substitutions for any Hedging Transactions.

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

Hedging Transaction” shall mean, with respect to any Person, (a) any transaction (including an agreement with respect to any such transaction) now existing or hereafter entered into by such Person that is a rate swap transaction, swap option, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap or option, bond option, interest rate option, foreign exchange transaction, cap transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate swap transaction, currency option, spot transaction, credit protection transaction, credit swap, credit default swap, credit default option, total return swap, credit spread transaction, repurchase transaction, reverse repurchase transaction, buy/sell-back transaction, securities lending transaction, or any other similar transaction (including any option with respect to any of these transactions) or any combination thereof, whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.

Increase Effective Date” shall have the meaning set forth in Section 2.22.

Increasing Lender” and “Increasing Lenders” shall have the meanings set forth in Section 2.22.  

Incremental Commitment” shall have the meaning set forth in Section 2.22.

Incremental Commitment Amount” shall have the meaning set forth in Section 2.22.  

Incurrence Test” shall mean compliance with Section 6.1 on a Pro Forma Basis.  

Incurrence Test Exception” shall mean, with respect to the condition set forth in Section 3.2(c), that (a) if the Leverage Ratio set forth in the most recently delivered Compliance Certificate was less than 8.0:1.0, then the Borrowers shall not be required to meet such condition for Borrowings or issuances, amendments, extensions or renewals of Letters of Credit up to (i) at a time occurring during a

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period that is not an EBITDA Threshold Period, $5,000,000 in the aggregate during the then-current Fiscal Quarter and (ii) at a time occurring during an EBITDA Threshold Period, $10,000,000 in the aggregate during the then-current Fiscal Quarter, and (b) if the Leverage Ratio set forth in the most recently delivered Compliance Certificate was less than or equal to 7.5:1.0, then the Borrowers shall not be required to meet such condition for Borrowings or issuances, amendments, extensions or renewals of Letters of Credit up to (i) at a time occurring during a period that is not an EBITDA Threshold Period, $10,000,000 in the aggregate during the then-current Fiscal Quarter and (ii) at a time occurring during an EBITDA Threshold Period, $20,000,000 in the aggregate during the then-current Fiscal Quarter; provided that in the case of both clauses (a) and (b) above, the Incurrence Test Exception shall be available only if at the time of such Borrowing or issuance, amendment, extension or renewal of a Letter of Credit none of the Borrowers nor any of their respective Restricted Subsidiaries has made any Triggering Disposition since the date of the most recently delivered Compliance Certificate, including any Compliance Certificate delivered at such time (and each Borrowing and each issuance, amendment, renewal or extension of any Letter of Credit shall be deemed to constitute a representation and warranty by the Borrowers to such effect on the date thereof).  Notwithstanding anything to the contrary set forth above, the Incurrence Test Exception shall not be available at any time when the most recently delivered Compliance Certificate demonstrates Annualized Adjusted Consolidated EBITDA of less than $10,000,000.

Indebtedness” shall mean, with respect to any Person, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (c) all obligations of such Person in respect of the deferred purchase price of property or services (other than trade payables incurred in the ordinary course of business; provided that for purposes of Section 8.1(f), trade payables overdue by more than 120 days shall be included in this definition except to the extent that any of such trade payables are being disputed in good faith and by appropriate measures), (d) all obligations of such Person under any conditional sale or other title retention agreement(s) relating to property acquired by such Person, (e) all Capital Lease Obligations of such Person, (f) all obligations, contingent or otherwise, of such Person in respect of letters of credit, acceptances or similar extensions of credit, (g) all Guarantees of such Person of the type of Indebtedness described in clauses (a) through (f) above, (h) all Indebtedness of a third party secured by any Lien on property owned by such Person, whether or not such Indebtedness has been assumed by such Person, (i) all obligations of such Person, contingent or otherwise, to purchase, redeem, retire or otherwise acquire for value any Capital Stock of such Person, (j) all Off-Balance Sheet Liabilities and (k) all Hedging Obligations of such Person.  The Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture in which such Person is a general partner or a joint venturer, except to the extent that the terms of such Indebtedness provide that such Person is not liable therefor.

Indemnified Taxes” shall mean (a) Taxes imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in clause (a) above, Other Taxes, other than, in each case, Excluded Taxes.

Indemnitee” shall have the meaning set forth in Section 10.3(b).

Initial Yield” shall have the meaning set forth in Section 2.22.

Interest Coverage Ratio” shall mean, as of any date, the ratio of (a) Consolidated EBITDA for the Fiscal Quarter ending on or immediately prior to such date for which financial statements are required to have been delivered pursuant to Section 5.1(a) or Section 5.1(b) of this Agreement to (b) Consolidated Cash Interest Expense for such Fiscal Quarter.

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Interest Period” shall mean with respect to any Eurodollar Borrowing, a period of one, two, three, six, or, if available to all Lenders, twelve months; provided that:

(a)

the initial Interest Period for such Borrowing shall commence on the date of such Borrowing (including the date of any conversion from a Borrowing of another Type), and each Interest Period occurring thereafter in respect of such Borrowing shall commence on the day on which the next preceding Interest Period expires;

(b)

if any Interest Period would otherwise end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day, unless such Business Day falls in another calendar month, in which case such Interest Period would end on the next preceding Business Day;

(c)

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

(d)

no Interest Period may extend beyond the Maturity Date.

Investments” shall have the meaning set forth in Section 7.4.

IRS” shall mean the United States Internal Revenue Service.

Issuing Bank” shall mean SunTrust Bank or another Lender requested by the Administrative Borrower and reasonably acceptable to the Administrative Agent, in each case, in its capacity as the issuer of Letters of Credit pursuant to Section 2.21.

Landmark Asset II OpCo” shall have the meaning set forth in the introductory paragraph hereof.

Landmark Operating Company” shall have the meaning set forth in the introductory paragraph hereof.

Landmark REIT” shall have the meaning set forth in the introductory paragraph hereof.

LC Commitment” shall mean that portion of the Aggregate Revolving Commitments that may be used by the Borrowers for the issuance of Letters of Credit in an aggregate face amount not to exceed $20,000,000.

LC Disbursement” shall mean a payment made by the Issuing Bank pursuant to a Letter of Credit.

LC Documents” shall mean all applications, agreements and instruments relating to the Letters of Credit but excluding the Letters of Credit.

LC Exposure” shall mean, at any time, the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time, plus (b) the aggregate amount of all LC Disbursements that have not been reimbursed by or on behalf of the Borrowers at such time.  The LC Exposure of any Lender shall be its Pro Rata Share of the total LC Exposure at such time.

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Lender-Related Hedge Provider” shall mean any Person that, at the time it enters into a Hedging Transaction with any Loan Party, (a) is a Lender or an Affiliate of a Lender and (b) except when the Lender-Related Hedge Provider is SunTrust Bank or any of its Affiliates, has provided prior written notice to the Administrative Agent which has been acknowledged by the Administrative Borrower of the existence of such Hedging Transaction.  In no event shall any Lender-Related Hedge Provider acting in such capacity be deemed a Lender for purposes hereof to the extent of and as to Hedging Obligations except that each reference to the term “Lender” in Article IX and Section 10.3(b) shall be deemed to include such Lender-Related Hedge Provider.  In no event shall the approval of any such Person in its capacity as Lender-Related Hedge Provider be required in connection with the release or termination of any guaranty, security interest or Lien of the Administrative Agent under any Loan Document.

Lenders” shall have the meaning set forth in the introductory paragraph hereof and shall include, where appropriate, the Swingline Lender and each Additional Lender that joins this Agreement pursuant to Section 2.22.

Letter of Credit” shall mean any letter of credit issued pursuant to Section 2.21 by the Issuing Bank for the account of the Borrowers pursuant to the LC Commitment.

Leverage Ratio” shall mean, as of any date, the ratio of (a) Consolidated Total Debt as of such date to (b) Annualized Adjusted Consolidated EBITDA for the most recent Fiscal Quarter for which financial statements are required to be delivered pursuant to Section 5.1(a) or Section 5.1(b).

Lien” shall mean any mortgage, pledge, security interest, lien (statutory or otherwise), charge, encumbrance, hypothecation, assignment, deposit arrangement, or other arrangement having the practical effect of any of the foregoing or any preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement and any capital lease having the same economic effect as any of the foregoing).

Loan Documents” shall mean, collectively, this Agreement, the Collateral Documents, the LC Documents, the Fee Letters, any Amendment Agreement, any promissory notes issued hereunder and any and all other instruments, agreements, documents and writings executed in connection with any of the foregoing.

Loan Parties” shall mean the Borrowers and the Guarantors.

Loans” shall mean all Revolving Loans and Swingline Loans in the aggregate or any of them, as the context shall require, and shall include, where appropriate, any loan made pursuant to Section 2.22.

Manufactured (Mobile) Home” shall have the meaning assigned to such term in the applicable Flood Insurance Laws.  

Material Adverse Effect” shall mean, with respect to any event, act, condition or occurrence of whatever nature (including any adverse determination in any litigation, arbitration, or governmental investigation or proceeding), whether singularly or in conjunction with any other event or events, act or acts, condition or conditions, occurrence or occurrences whether or not related, resulting in a material adverse change in, or a material adverse effect on, (a) the business, results of operations, financial condition, assets or liabilities of the Borrowers and their Subsidiaries taken as a whole, (b) the ability of the Loan Parties, taken as a whole, to perform any of their obligations under the Loan Documents, (c) the rights and remedies of the Administrative Agent, the Issuing Banks, the Swingline

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Lender or the Lenders under any of the Loan Documents or (d) the legality, validity or enforceability of any of the Loan Documents.

Material Agreements” shall mean (a) the MLP Partnership Agreement, (b) the Omnibus Agreement, and (c) all other agreements, documents, contracts, indentures and instruments pursuant to which (i) any Loan Party or any of its Subsidiaries are obligated to make payments in any twelve-month period of more than the greater of (A) $1,000,000 and (B) an amount equal to 5% of the revenue of the Borrowers and their Restricted Subsidiaries for the most recent Fiscal Year for which financial statements have been delivered pursuant to Section 5.1(a), (ii) any Loan Party or any of its Subsidiaries expects to receive revenue in any twelve-month period of more than the greater of (A) $1,000,000 and (B) an amount equal to 5% of the revenue of the Borrowers and their Restricted Subsidiaries for the most recent Fiscal Year for which financial statements have been delivered pursuant to Section 5.1(a) or (iii) a default, breach or termination thereof could reasonably be expected to result in a Material Adverse Effect.

Material Indebtedness” shall mean any Indebtedness (other than the Loans and the Letters of Credit) of any Borrower or any of their respective Subsidiaries individually or in an aggregate committed or outstanding principal amount exceeding the Threshold Amount.  For purposes of determining the amount of attributed Indebtedness from Hedging Obligations, the “principal amount” of any Hedging Obligations at any time shall be the Net Mark-to-Market Exposure of such Hedging Obligations.

Maturity Date” shall mean, with respect to the Loans, the earliest of (a) the date that is five years from the Original Closing Date, (b) the date on which the Revolving Commitments are terminated pursuant to Section 2.7 and (c) the date on which all amounts outstanding under this Agreement have been declared or automatically have become due and payable (whether by acceleration or otherwise).

Maximum Rate” shall have the meaning set forth in Section 10.12.

MLP” shall have the meaning assigned to such term in the introductory paragraph hereto.

MLP Partnership Agreement” shall mean the First Amended and Restated Agreement of Limited Partnership of the MLP, dated as of the Original Closing Date.  

Modification Endorsement” shall mean an ALTA 11 endorsement, or equivalent.

Moody’s” shall mean Moody’s Investors Service, Inc.

Mortgage Assignment” shall mean an assignment of an Existing Mortgage in appropriate form for recording in each applicable jurisdiction made by the applicable secured party to the Administrative Agent for the benefit of the Secured Parties in connection with (a) the Formation Transactions (and shall include each Fund A Mortgage Assignment and each Fund D Mortgage Assignment executed in connection with the Formation Transactions) or (b) a subsequent Acquisition of (i) the Capital Stock of an Affiliate Fund or a Subsidiary of an Affiliate Fund and/or (ii) Real Estate from an Affiliate Fund or a Subsidiary of an Affiliate Fund.

Mortgaged Property” shall mean, collectively, the Real Estate subject to the Mortgages.

Mortgages” shall mean each Existing Mortgage, as modified by a modification to such Existing Mortgage, including a modification pursuant to an Omnibus Mortgage Amendment, and each

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other real estate security document delivered by any Loan Party to the Administrative Agent from time to time, pursuant to Section 5.12 all in form and substance reasonably satisfactory to the Administrative Borrower and the Administrative Agent, in each case excluding any Existing Mortgage or other real estate security document that has been released in accordance with this Agreement.

Multiemployer Plan” shall mean any “multiemployer plan” as defined in Section 4001(a)(3) of ERISA, which is contributed to by (or to which there is or may be an obligation to contribute of) any Borrower, any of their respective Subsidiaries or any of their respective ERISA Affiliates, and each such plan for the five-year period immediately following the latest date on which any Borrower, any of their respective Subsidiaries or any of their respective ERISA Affiliates contributed to or had an obligation to contribute to such plan.

Net Mark-to-Market Exposure” of any Person shall mean, as of any date of determination with respect to any Hedging Obligation, the excess (if any) of all unrealized losses over all unrealized profits of such Person arising from such Hedging Obligation.  “Unrealized losses” shall mean the fair market value of the cost to such Person of replacing the Hedging Transaction giving rise to such Hedging Obligation as of the date of determination (assuming such Hedging Transaction were to be terminated as of that date), and “unrealized profits” shall mean the fair market value of the gain to such Person of replacing such Hedging Transaction as of the date of determination (assuming such Hedging Transaction were to be terminated as of that date).

Non-Consenting Lender” shall have the meaning set forth in Section 2.24.

Non-Defaulting Lender” shall mean, at any time, a Lender that is not a Defaulting Lender.

Non-Disturbance Agreement” shall mean a subordination, non-disturbance and attornment or similar agreement pursuant to which the lender with respect to the underlying fee interest in a particular parcel of Real Estate agrees with the Affiliate Fund or Subsidiary thereof that is the tenant or other holder of the Easement that it will not disturb the possession of such tenant or holder upon a foreclosure or other exercise of such lender's rights with respect to such lender’s Lien on the underlying fee interest in such parcel of Real Estate.  

Non-U.S. Plan” shall mean any plan, fund (including, without limitation, any superannuation fund) or other similar program established, contributed to (regardless of whether through direct contributions or through employee withholding) or maintained outside the United States by any Borrower or one or more of their respective Subsidiaries primarily for the benefit of employees of such Borrower or such Subsidiaries residing outside the United States, which plan, fund or other similar program provides, or results in, retirement income, a deferral of income in contemplation of retirement, or payments to be made upon termination of employment, and which plan is not subject to ERISA or the Code.

Notices of Borrowing” shall mean, collectively, the Notices of Revolving Borrowing and the Notices of Swingline Borrowing.

Notice of Conversion/Continuation” shall have the meaning set forth in Section 2.6(b).

Notice of Revolving Borrowing” shall have the meaning set forth in Section 2.3.

Notice of Swingline Borrowing” shall have the meaning set forth in Section 2.4.

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Obligations” shall mean (a) all amounts owing by the Loan Parties to the Administrative Agent, the Issuing Bank, any Lender (including the Swingline Lender) or the Sole Lead Arranger pursuant to or in connection with this Agreement or any other Loan Document or otherwise with respect to any Loan or Letter of Credit including, without limitation, all principal, interest (including any interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Borrowers, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), reimbursement obligations, fees, expenses, indemnification and reimbursement payments, costs and expenses (including all fees and expenses of counsel to the Administrative Agent, the Issuing Bank and any Lender (including the Swingline Lender) required to be reimbursed pursuant to this Agreement or any other Loan Document), whether direct or indirect, absolute or contingent, liquidated or unliquidated, now existing or hereafter arising hereunder or thereunder, (b) all Hedging Obligations owed by any Loan Party to any Lender-Related Hedge Provider, and (c) all Bank Product Obligations, together with all renewals, extensions or modifications of any of the foregoing; provided, however, that with respect to any Guarantor, the Obligations shall not include any Excluded Swap Obligations.

OFAC” shall mean the U.S. Department of the Treasury’s Office of Foreign Assets Control.

Off-Balance Sheet Liabilities” of any Person shall mean (a) any repurchase obligation or liability of such Person with respect to accounts or notes receivable sold by such Person, (b) any liability of such Person under any sale and leaseback transactions that do not create a liability on the balance sheet of such Person, (c) any Synthetic Lease Obligation or (d) any obligation arising with respect to any other transaction which is the functional equivalent of or takes the place of borrowing but which does not constitute a liability on the balance sheet of such Person.

Officer’s Certificate” shall mean a certificate executed by a Responsible Officer of the Administrative Borrower in his or her official (and not individual) capacity.

Omnibus Agreement” shall mean that certain Omnibus Agreement, dated as of the Original Closing Date, among the Sponsor, Landmark Dividend Growth Fund - C LLC, a Delaware limited liability company, Landmark Dividend Growth Fund - E LLC, a Delaware limited liability company, Landmark Dividend Growth Fund - F LLC, a Delaware limited liability company, Landmark Dividend Growth Fund - G LLC, a Delaware limited liability company, Landmark Dividend Growth Fund - H, LLC, a Delaware limited liability company, the MLP, and the General Partner, as such agreement may be amended, supplemented or restated from time to time.

Omnibus Mortgage Amendment” shall mean (a) the Fund A Omnibus Mortgage Amendment, (b) the Fund D Omnibus Mortgage Amendment or (c) another omnibus mortgage amendment in the form of the attached Exhibit D, as such form may be reasonably modified by the Administrative Agent, or in another form reasonably acceptable to the Administrative Agent.

Original Borrower” shall have the meaning assigned such term in the recitals hereto.

Original Closing Date” shall mean November 19, 2014.

Original Fee Letter” shall mean that certain fee letter, dated as of September 2, 2014, executed by SunTrust Robinson Humphrey, Inc. and SunTrust Bank and accepted by theMLP, and assumed by the Original Borrower pursuant to Section 2.13 of the Existing Credit Agreement.

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OSHA” shall mean the Occupational Safety and Health Act of 1970, as amended from time to time, and any successor statute.

Other Asset” shall mean any non Real Estate asset, including written management agreements, written management and fee receivables or other written agreements, in each case that (a) grant an interest in and to or the right to use property in the business of the Borrowers and their Restricted Subsidiaries as permitted by Section 7.3(b), (b) are enforceable, and (c) have economics and terms that are functionally substantially similar to the economics and terms of an Easement.

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

Other Taxes” shall mean 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, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.24).

Parent Company” shall mean, with respect to a Lender, the “bank holding company” as defined in Regulation Y, if any, of such Lender, and/or any Person owning, beneficially or of record, directly or indirectly, a majority of the shares of such Lender.

Participant” shall have the meaning set forth in Section 10.4(d).

Participant Register” shall have the meaning set forth in Section 10.4(d).  

Patent” shall have the meaning assigned to such term in the Guaranty and Security Agreement.

Patent Security Agreement” shall mean any Patent Security Agreement executed by a Loan Party owning Patents or licenses of Patents in favor of the Administrative Agent for the benefit of the Secured Parties, both on the Original Closing Date and thereafter.

Patriot Act” shall mean the USA PATRIOT Improvement and Reauthorization Act of 2005 (Pub. L. 109-177 (signed into law March 9, 2006)), as amended and in effect from time to time.

Payment in Full” and “Paid in Full” shall mean the termination of all Revolving Commitments and all other commitments of the Lenders to lend funds or extend financial accommodations to the Borrowers under the Loan Documents and the payment in full, in immediately available funds, of all of the Obligations (other than (a) contingent indemnification and expense reimbursement Obligations, in each case, to the extent no claim giving rise thereto has been asserted, (b) Hedging Obligations and Bank Product Obligations to the extent arrangements satisfactory to the Lender-Related Hedge Provider or Bank Product Provider, as applicable, shall have been made and (c) contingent Obligations with respect to which the deposit of Cash Collateral (in the case of LC Exposure, which shall not be less than 103% of the face amount of the relevant Letters of Credit and in the case of other Obligations, which shall not be less than 100% of the amount thereof) (or, as an alternative to Cash Collateral in the case of any LC Exposure, receipt by the Administrative Agent of a

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back-up letter of credit reasonably satisfactory to the Administrative Agent and the applicable Issuing Bank), in amounts and on terms and conditions and with parties reasonably satisfactory to the Administrative Agent, each Lender and each Indemnitee that is, or may be, owed such Obligations has been provided).

Payment Office” shall mean the office of the Administrative Agent located at 303 Peachtree Street, N.E., Atlanta, Georgia 30308, or such other location as to which the Administrative Agent shall have given written notice to the Administrative Borrower and the other Lenders.

PBGC” shall mean the U.S. Pension Benefit Guaranty Corporation referred to and defined in ERISA, and any successor entity performing similar functions.

Permitted Acquisition” shall mean any Acquisition in connection with which each of the following conditions is satisfied:

(i)

before and after giving effect to such Acquisition, no Default or Event of Default has occurred and is continuing or would result therefrom, and all representations and warranties of each Loan Party set forth in the Loan Documents shall be and remain true and correct in all material respects (other than those representations and warranties that are expressly qualified by “Material Adverse Effect” or other materiality, which representations and warranties shall be and remain true and correct in all respects);

(ii)

before and after giving effect to such Acquisition, (A) the Borrowers are in compliance with the Incurrence Test and (B) for any Acquisition in an amount in excess of (x) for any Acquisition occurring during a period that is not an EBITDA Threshold Period, $10,000,000 and (y) for any Acquisition occurring during an EBITDA Threshold Period, $20,000,000, the Administrative Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate certifying to the foregoing at least two (2) Business Days prior to the date of the consummation of such Acquisition;

(iii)

before and after giving effect to such Acquisition, the Borrowers are in compliance with the provisions of Section 7.3(b);

(iv)

if such Acquisition includes the acquisition of (A) the Capital Stock of an Affiliate Fund or a Subsidiary of an Affiliate Fund and/or (B) Real Estate from an Affiliate Fund or a Subsidiary of an Affiliate Fund, then the Borrowers and their Restricted Subsidiaries shall have complied with the provisions of Section 5.12 with respect to such Acquisition;

(v)

the Board of Directors of the person to be acquired (or whose assets are to be acquired) shall not have indicated publicly its opposition to the consummation of such Acquisition (which opposition has not been publicly withdrawn); and

(vi)

the Administrative Borrower has delivered to the Administrative Agent a certificate executed by a Responsible Officer certifying that each of the conditions set forth above has been satisfied.

Permitted Encumbrances” shall mean:

(a)

Liens imposed by law for taxes, assessments and other charges or levies imposed by any Governmental Authority (excluding any Lien imposed pursuant to any of the provisions of ERISA), in each case, which are not yet due (or, if due, for which penalties have not

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yet begun to accrue) or which are being contested in good faith by appropriate proceedings diligently conducted and with respect to which adequate reserves are being maintained in accordance with GAAP;

(b)

statutory Liens of landlords, vendors, carriers, warehousemen, mechanics, materialmen, repairmen and other similar Liens imposed by law in the ordinary course of business for amounts which are not more than 30 days past due or which are being contested in good faith by appropriate proceedings diligently conducted and with respect to which adequate reserves are being maintained in accordance with GAAP;

(c)

pledges and deposits made in the ordinary course of business in compliance with workers’ compensation, unemployment insurance, social security and other similar laws or regulations;

(d)

deposits to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business;

(e)

judgment and attachment liens not giving rise to an Event of Default or Liens created by or existing from any litigation or legal proceeding that are currently being contested in good faith by appropriate proceedings diligently conducted and with respect to which adequate reserves are being maintained in accordance with GAAP;

(f)

customary rights of set-off, revocation, refund or chargeback under deposit agreements or under the Uniform Commercial Code or common law of banks or other financial institutions where any Borrower or any of their respective Subsidiaries maintains deposits (other than deposits intended as cash collateral) in the ordinary course of business;

(g)

(i) minor encumbrances, ground leases, easements or reservations of, or rights of others for, licenses, rights-of-way, servitudes, sewers, electric lines, drains, telegraph, telephone and cable television lines and other similar purposes, zoning, building codes or other restrictions (including minor defects and irregularities in title and similar encumbrances (and with respect to easement and leasehold interests, mortgages, obligations, Liens and other encumbrances incurred, created, assumed or permitted to exist and arising by, through or under a landlord, ground lessor or owner of the leased property or owned property, with or without consent of any Loan Party)) and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or materially interfere with the ordinary conduct of business of the Borrowers and their Restricted Subsidiaries taken as a whole; and (ii) all matters shown on the title insurance policies with respect to each Assigned Existing Mortgage and Mortgage (if any);

(h)

with respect to any Easement of any Loan Party, (i) mortgage Liens granted by the fee owner of the underlying Real Estate, (A) which by law are junior to any Loan Party’s interest in such Easement; and (B) which are not covered by clause (A), and for which Non-Disturbance Agreements have not been obtained with respect to such Liens, and (ii) any other Liens on the interest of the fee owner of the underlying Real Estate;

(i)

with respect to any Easement of any Loan Party, mortgage Liens granted by the fee owner of the underlying Real Estate, for which Non-Disturbance Agreements have been obtained with respect to such Liens; and

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(j)

any Lien (x) existing on any asset of any Person at the time such Person becomes a Restricted Subsidiary of any Borrower, (y) existing on any asset of any Person at the time such Person is merged with or into any Borrower or any of their respective Restricted Subsidiaries, or (z) existing on any asset prior to the Acquisition thereof by any Borrower or any of their respective Restricted Subsidiaries; provided that (i) any such Lien was not created in the contemplation of any of the foregoing and (ii) any such Lien secures only those obligations which it secures on the date that such Person becomes a Restricted Subsidiary or the date of such merger or the date of such Acquisition and any Permitted Refinancing thereof;

provided that for purposes of clauses (a) through (i) above, the term “Permitted Encumbrances” shall not include any Lien securing Indebtedness.

Permitted Funds” shall mean Landmark Dividend Growth Fund-C, LLC, a Delaware limited liability company, Landmark Dividend Growth Fund-E, LLC, a Delaware limited liability company, Landmark Dividend Growth Fund-F, LLC, a Delaware limited liability company, Landmark Dividend Growth Fund-G, LLC, a Delaware limited liability company and Landmark Dividend Growth Fund-H, LLC, a Delaware limited liability company.

Permitted Investments” shall mean:

(a)

direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States), in each case maturing within one year from the date of acquisition thereof;

(b)

commercial paper having the highest rating, at the time of acquisition thereof, of S&P or Moody’s and in either case maturing within one year from the date of acquisition thereof;

(c)

certificates of deposit, bankers’ acceptances and time deposits maturing within 180 days of the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any domestic office of any commercial bank organized under the laws of the United States or any state thereof which has a combined capital and surplus and undivided profits of not less than $500,000,000;

(d)

fully collateralized repurchase agreements with a term of not more than thirty (30) days for securities described in clause (a) above and entered into with a financial institution satisfying the criteria described in clause (c) above; and

(e)

mutual funds investing primarily in any one or more of the Permitted Investments described in clauses (a) through (d) above.

Permitted Refinancing” shall mean, with respect to any obligation, any extensions, renewals, refinancings and replacements of such obligation or any Permitted Refinancing thereof; provided that

(a)

the principal amount (or accreted value, if applicable) of any such obligation is not increased at the time of such extension, renewal, refinancing or replacement except by an amount equal to the unpaid accrued interest and premium thereon plus other reasonable and customary amounts paid and fees and expenses reasonably charged in connection

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with such extension, renewal, refinancing or replacement, plus an amount equal to any existing commitment unutilized and letters of credit undrawn thereunder;

(b)

such extension, renewal, refinancing or replacement does not change the obligors with respect to the obligation being extended, renewed, refinanced or replaced;

(c)

such extension, renewal, refinancing or replacement has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of the obligation being extended, renewed, refinanced or replaced; and

(d)

such extension, renewal, refinancing or replacement has a final maturity date equal to or later than the final maturity date of the obligation being extended, renewed, refinanced or replaced.

Permitted Securitization Transaction” shall mean a Securitization Transaction in connection with which each of the following conditions is satisfied:

(a)

before and after giving effect to the consummation of such Securitization Transaction, no Default or Event of Default has occurred and is continuing or would result therefrom, and all representations and warranties of each Loan Party set forth in the Loan Documents shall be and remain true and correct in all material respects (other than those representations and warranties that are expressly qualified by “Material Adverse Effect” or other materiality, which representations and warranties shall be and remain true and correct in all respects);

(b)

before and after giving effect to the consummation of such Securitization Transaction, the Borrowers are in compliance with the Incurrence Test as if such Permitted Securitization Transaction had occurred on the first day of the relevant period for testing compliance, and the Administrative Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate signed by a Responsible Officer certifying to the foregoing at least ten (10) Business Days (or such shorter period as the Administrative Agent shall agree) prior to the date of the consummation of such Permitted Securitization Transaction;

(c)

the applicable Securitization Subsidiary or Securitization Subsidiaries shall (i) pay fair market value for all Real Estate and other assets conveyed to it by a Loan Party in such Securitization Transaction and (ii) assume or repay or cause to be repaid all Indebtedness (other than the Obligations hereunder) secured by the Real Estate being conveyed to such Subsidiary or Subsidiaries in such Securitization Transaction and all such Indebtedness that is assumed shall be or become non-recourse (other than with respect to customary recourse carve outs) to the Borrowers and their Restricted Subsidiaries; and

(d)

the Administrative Borrower has delivered to the Administrative Agent a certificate executed by a Responsible Officer certifying that each of the conditions set forth above has been satisfied.

Permitted Third Party Bank” shall mean any bank or other financial institution with whom any Loan Party maintains a Controlled Account and with whom a Control Account Agreement has been executed.

Person” shall mean any individual, partnership, firm, corporation, association, joint venture, limited liability company, trust or other entity, or any Governmental Authority.

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

Predecessor Funds” shall mean, collectively, Fund A and Fund D.

Predecessor Fund Mortgages” shall mean the Fund A Mortgages and the Fund D Mortgages.

Pro Forma Basis” shall mean, in connection with any calculation of compliance with Section 6.1 or the Incurrence Test, the determination of Consolidated EBITDA after giving effect on a pro forma basis to the change in such calculation required by the applicable provision hereof, and otherwise on a basis in accordance with GAAP as used in the preparation of the latest financial statements provided pursuant to Section 5.1 or otherwise reasonably satisfactory to the Administrative Agent.  Consolidated EBITDA shall be calculated on a Pro Forma Basis to give effect to each Permitted Acquisition (or other Acquisition or Investment permitted hereunder) and each Disposition, in each case, consummated at any time on or after the first day of the applicable period ended on or before the occurrence of such event as if such acquisition or disposition had been consummated on the first day of such applicable period.

Pro Forma Compliance Certificate” shall mean a certificate from a Responsible Officer in the form of, and containing the certifications set forth in, the certificate attached hereto as Exhibit 5.1(c) delivered to the Administrative Agent demonstrating compliance with the Incurrence Test on a Pro Forma Basis after giving effect to each applicable Permitted Acquisition (or other applicable Acquisition or Investment permitted hereunder) and each applicable Triggering Disposition.

Pro Rata Share” shall mean (a) with respect to any Class of Commitment or Loan of any Lender at any time, a percentage, the numerator of which shall be such Lender’s Commitment of such Class (or if such Commitment has been terminated or expired or the Loans have been declared to be due and payable, such Lender’s Revolving Credit Exposure), and the denominator of which shall be the sum of all Commitments of such Class of all Lenders (or if such Commitments have been terminated or expired or the Loans have been declared to be due and payable, all Revolving Credit Exposure of all Lenders) and (b) with respect to all Classes of Commitments and Loans of any Lender at any time, the numerator of which shall be the sum of such Lender’s Revolving Commitment (or if such Revolving Commitment has been terminated or expired or the Loans have been declared to be due and payable, such Lender’s Revolving Credit Exposure) and the denominator of which shall be the sum of all Lenders’ Revolving Commitments (or if such Revolving Commitments have been terminated or expired or the Loans have been declared to be due and payable, all Revolving Credit Exposure of all Lenders funded under such Commitments.

Quarterly Compliance Certificate” shall mean a certificate from a Responsible Officer in the form of, and containing the certifications set forth in, the certificate attached hereto as Exhibit 5.1(c) delivered to the Administrative Agent delivered pursuant to Section 5.1(c).

Real Estate” shall mean, collectively, all right, title and interest (including any leasehold, mineral or other estate) of any person in and to any and all parcels of or interests in real property, whether in fee, by lease, license or other means, together with, in each case, all easements,

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hereditaments and appurtenances relating thereto, all improvements and appurtenant fixtures and equipment, all general intangibles and contract rights and other property and rights incidental to the ownership, lease or operation thereof, including, without limitation, Easements and Fee Owned Properties.

Recipient” shall mean, as applicable, (a) the Administrative Agent, (b) any Lender and (c) any Issuing Bank.

Register” shall have the meanings set forth in Section 10.4(c).

Regulation D” shall mean Regulation D of the Board of Governors of the Federal Reserve System, as the same may be in effect from time to time, and any successor regulations.

Regulation T” shall mean Regulation T of the Board of Governors of the Federal Reserve System, as the same may be in effect from time to time, and any successor regulations.

Regulation U” shall mean Regulation U of the Board of Governors of the Federal Reserve System, as the same may be in effect from time to time, and any successor regulations.

Regulation X” shall mean Regulation X of the Board of Governors of the Federal Reserve System, as the same may be in effect from time to time, and any successor regulations.

Regulation Y” shall mean Regulation Y of the Board of Governors of the Federal Reserve System, as the same may be in effect from time to time, and any successor regulations.

REIT” shall mean means any Person that qualifies as a “real estate investment trust” under Sections 856 through 860 of the Code.

REIT Conversion Transactions” shall mean the transactions described on Schedule 1.1.

Related Parties” shall mean, with respect to any specified Person, such Person’s Affiliates and the respective managers, administrators, trustees, partners, directors, officers, employees, agents, advisors or other representatives of such Person and such Person’s Affiliates.

Release” shall mean any release, spill, emission, leaking, dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching or migration into the environment (including ambient air, surface water, groundwater, land surface or subsurface strata) or within any building, structure, facility or fixture.

Required Lenders” shall mean, at any time, Lenders holding more than 50% of the aggregate outstanding Revolving Commitments at such time or, if the Lenders have no Commitments outstanding, then Lenders holding more than 50% of the aggregate outstanding Revolving Credit Exposure of the Lenders at such time (and in each case, at least two Lenders if any one Lender holds more than 50% of the aggregate outstanding Revolving Commitments or aggregate outstanding Revolving Credit Exposure, as applicable); provided that to the extent that any Lender is a Defaulting Lender, such Defaulting Lender and all of its Revolving Commitments and Revolving Credit Exposure shall be excluded for purposes of determining Required Lenders.

Requirement of Law” for any Person shall mean the articles or certificate of incorporation, bylaws, partnership certificate and agreement, or limited liability company certificate of organization and agreement, as the case may be, and other organizational and governing documents of

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such Person, and any law, treaty, rule or regulation, or determination of a 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.

Responsible Officer” shall mean (a) with respect to certifying compliance with the financial covenants set forth in Article VI, the chief financial officer or other principal financial officer, treasurer, or chief executive officer or other principal executive officer of the General Partner and (b) with respect to all other provisions, any of the president, the chief executive officer or other principal executive officer, the chief operating officer, the chief financial officer or other principal financial officer, the treasurer or a vice president of the General Partner or such other representative of the Administrative Borrower or General Partner as may be designated in writing by any one of the foregoing with the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed).

Restricted Payment” shall mean, for any Person, any dividend or distribution on any class of its Capital Stock, or any payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, retirement, defeasance or other acquisition of any shares of its Capital Stock, any Indebtedness subordinated to the Obligations or any Guarantee thereof or any options, warrants or other rights to purchase such Capital Stock or such Indebtedness, whether now or hereafter outstanding, or any management fees payable to an Affiliate of any Borrower or any Subsidiary.

Restricted Subsidiary” shall mean (a) any Subsidiary of any Borrower that is not an Unrestricted Subsidiary and (b) with respect to any reference to “the MLP and its Restricted Subsidiaries”, any Borrower and any Subsidiary of any Borrower that is not an Unrestricted Subsidiary.

Revolving Commitment” shall mean, with respect to each Lender, the commitment of such Lender to make Revolving Loans to the Borrowers and to acquire participations in Letters of Credit and Swingline Loans in an aggregate principal amount not exceeding the amount set forth with respect to such Lender on Schedule II, as such schedule may be amended pursuant to Section 2.22, or, in the case of a Person becoming a Lender after the Closing Date, the amount of the assigned “Revolving Commitment” as provided in the Assignment and Acceptance executed by such Person as an assignee, or the joinder executed by such Person, in each case as such commitment may subsequently be increased or decreased pursuant to the terms hereof.

Revolving Credit Exposure” shall mean, with respect to any Lender at any time, the sum of the outstanding principal amount of such Lender’s Revolving Loans, such Lender’s LC Exposure and such Lender’s Swingline Exposure.

Revolving Loan” shall mean a loan made by a Lender (other than the Swingline Lender in its capacity as such) to the Borrowers under its Revolving Commitment, which may either be a Base Rate Loan or a Eurodollar Loan.

S&P” shall mean Standard & Poor’s, a division of The McGraw-Hill Companies, Inc.

Sanctions” shall mean economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by OFAC or the U.S. Department of State, or (b) the United Nations Security Council, the European Union or Her Majesty’s Treasury of the United Kingdom.

Sanctioned Country” shall mean, at any time, a country or territory which is itself the subject or target of any Sanctions (at the time of this Agreement, Cuba, Iran, North Korea, Sudan and Syria).

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Sanctioned Person” shall mean, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by OFAC, the U.S. Department of State, the or by the United Nations Security Council, the European Union or any EU member state, (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person owned or controlled by any such Person or Persons.

Secured Parties” shall mean the Administrative Agent, the Lenders, the Issuing Bank, the Lender-Related Hedge Providers and the Bank Product Providers.

Securitization Subsidiary” shall mean a Subsidiary of any Borrower (a) formed for the purpose of consummating a Securitization Transaction and (b) that the Administrative Borrower has designated in writing to the Administrative Agent to be an Unrestricted Subsidiary pursuant to Section 5.15.

Securitization Transaction” shall mean a transaction pursuant to which one or more Securitization Subsidiaries sells certain pooled Real Estate assets to investors or issues Indebtedness secured by certain pooled Real Estate, which Indebtedness is purchased or acquired by investors.

Sole Lead Arranger” shall mean SunTrust Robinson Humphrey, Inc., in its capacity as sole lead arranger in connection with this Agreement.

Solvent” shall mean, with respect to any Person on a particular date, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including subordinated and contingent liabilities, of such Person; (b) the present fair saleable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts and liabilities, including subordinated and contingent liabilities as they become absolute and matured; (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities mature; and (d) such Person is not engaged in a business or transaction, and is not about to engage in a business or transaction, for which such Person’s property would constitute an unreasonably small capital.  The amount of contingent liabilities (such as litigation, guaranties and pension plan liabilities) at any time shall be computed as the amount that, in light of all the facts and circumstances existing at the time, represents the amount that would reasonably be expected to become an actual or matured liability.

Specified Exception” shall mean a step-up in the Leverage Ratio the Borrowers are required to maintain at all times pursuant to Section 6.1 from a maximum of 8.5:1.0 to a maximum of 9.0:1.0.

Specified Exception Conditions” shall mean, with respect to any Specified Exception, the satisfaction of the following conditions: (a) in any four consecutive Fiscal Quarter period, there must be at least two Fiscal Quarters in which no Specified Exception is taken, (b) no Specified Exception can be taken in any two consecutive Fiscal Quarters, (c) no more than three Specified Exceptions in the aggregate may be taken, and (d) upon the taking of any Specified Exception, the Applicable Margin shall increase by 0.50% and shall remain at such increased rate through the applicable Specified Exception Effective Period.

Specified Exception Effective Period” shall mean, with respect to any Specified Exception, the period beginning on the date of the consummation of the relevant Permitted Acquisition to and including the earliest of (a) the last day of the first full Fiscal Quarter occurring thereafter, (b) the date 135 calendar days after the date of the consummation of the relevant Permitted Acquisition, and (c) the

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date on which the Borrowers terminate the Specified Exception Effective Period by delivering written notice thereof and a Compliance Certificate demonstrating a Leverage Ratio of not greater than 8.5:1.0.

Sponsor” shall mean Landmark Dividend LLC, a Delaware limited liability company.

Subsidiary” shall mean, with respect to any Person (the “parent”) at any date, any corporation, partnership, joint venture, limited liability company, association or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, partnership, joint venture, limited liability company, association or other entity (a) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or held, or (b) that is, as of such date, otherwise controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.  Unless otherwise indicated, all references to “Subsidiary” hereunder shall mean a Subsidiary of any Borrower.

Swap Obligation” shall mean, with respect to any Guarantor, 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.  

Swingline Commitment” shall mean the commitment of the Swingline Lender to make Swingline Loans in an aggregate principal amount at any time outstanding not to exceed $10,000,000.

Swingline Exposure” shall mean, with respect to each Lender, the principal amount of the Swingline Loans in which such Lender is legally obligated either to make a Base Rate Loan or to purchase a participation in accordance with Section 2.4, which shall equal such Lender’s Pro Rata Share of all outstanding Swingline Loans.

Swingline Lender” shall mean SunTrust Bank.

Swingline Loan” shall mean a loan made to the Borrowers by the Swingline Lender under the Swingline Commitment.

Synthetic Lease” shall mean a lease transaction under which the parties intend that (a) the lease will be treated as an “operating lease” by the lessee pursuant to Accounting Standards Codification Sections 840-10 and 840-20, as amended, and (b) the lessee will be entitled to various tax and other benefits ordinarily available to owners (as opposed to lessees) of like property.

Synthetic Lease Obligations” shall mean, with respect to any Person, the sum of (a) all remaining rental obligations of such Person as lessee under Synthetic Leases which are attributable to principal and, without duplication, (b) all rental and purchase price payment obligations of such Person under such Synthetic Leases assuming such Person exercises the option to purchase the lease property at the end of the lease term.

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

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Threshold Amount” shall mean (a) at a time occurring during a period that is not an EBITDA Threshold Period, $5,000,000 and (b) at a time occurring during an EBITDA Threshold Period, $10,000,000.  

Trademark” shall have the meaning assigned to such term in the Guaranty and Security Agreement.  

Trademark Security Agreement” shall mean any Trademark Security Agreement executed by a Loan Party owning registered Trademarks or applications for Trademarks in favor of the Administrative Agent for the benefit of the Secured Parties, both on the Original Closing Date and thereafter.

Trading with the Enemy Act” shall mean the Trading with the Enemy Act of the United States of America (50 U.S.C. App. §§ 1 et seq.), as amended and in effect from time to time.

Triggering Disposition” shall mean any conveyance, sale, lease, assignment, transfer or other disposition of any Other Asset, Easement or Fee Owned Property or, in the case of any Restricted Subsidiary, any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, to any Person other than a Borrower or a Restricted Subsidiary, in each case where the Annualized Adjusted Consolidated EBITDA associated therewith is in excess of one percent (1%) of the Annualized Adjusted Consolidated EBITDA for the most recent Fiscal Quarter prior to such date for which financial statements are required to have been delivered pursuant to Section 5.1(a) or Section 5.1(b) of this Agreement.

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

Undisclosed Administration” means, in relation to a Lender or its direct or indirect parent company, the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian, or other similar official by a supervisory authority or regulator under or based on the law in the country where such Lender or such parent company is subject to home jurisdiction, if applicable law requires that such appointment not be disclosed.

 

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

Uniform Commercial Code” or “UCC” shall mean the Uniform Commercial Code as in effect from time to time in the State of New York.

United States” or “U.S.” shall mean the United States of America.

Unrestricted Subsidiary” shall mean any Subsidiary of any Borrower designated as such on Schedule 5.15 or which the Administrative Borrower has designated in writing to the Administrative Agent to be an Unrestricted Subsidiary pursuant to and in accordance with the terms of Section 5.15.

Up-Front Fees” shall have the meaning set forth in Section 2.22.

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U.S. Borrower” shall mean any Borrower that is a U.S. Person.  

U.S. Person” shall mean any Person that is a “United States person” as defined in Section 7701(a)(30) of the Code.

U.S. Tax Compliance Certificate” shall have the meaning set forth in Section 2.19(g)(ii)(B)  (iii)  .

Weighted Average Life to Maturity” shall have the meaning set forth in Section 2.22.

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

Withholding Agent” shall mean any Borrower, any other Loan Party or the Administrative Agent, as applicable.

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.Classifications of Loans and Borrowings

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

Section 1.3.Accounting Terms and Determination

.  Unless otherwise defined or specified herein, all accounting terms used herein shall be interpreted, all accounting determinations hereunder shall be made, and all financial statements required to be delivered hereunder shall be prepared, in accordance with GAAP as in effect from time to time.  Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be (a) construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to any election under Accounting Standards Codification Section 825-10 (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”, as defined therein and (b) construed and interpreted in accordance with GAAP, as in effect on the Original Closing Date unless otherwise agreed to by the Borrowers and the Required Lenders.  If GAAP shall change after the date hereof, the parties hereto agree to negotiate in good faith to modify the covenants herein so that they may be construed and interpreted in accordance with GAAP as then in effect.  

Section 1.4.Terms Generally

.  The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.  The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”.  The word “will” shall be construed to have the same meaning and effect as the word “shall”.  In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including” and the word “to” means “to but excluding”.  Unless the context requires otherwise (i) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as it was originally executed or as it may from time to time be amended,

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restated, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (ii) any reference herein to any Person shall be construed to include such Person’s successors and permitted assigns, (iii) the words “hereof”, “herein” and “hereunder” and words of similar import shall be construed to refer to this Agreement as a whole and not to any particular provision hereof, (iv) all references to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles, Sections, Exhibits and Schedules to this Agreement and (v) all references to a specific time shall be construed to refer to the time in the city and state of the Administrative Agent’s principal office, unless otherwise indicated.

ARTICLE II

AMOUNT AND TERMS OF THE COMMITMENTS

Section 2.1.General Description of Facilities

.  Subject to and upon the terms and conditions herein set forth, (i) the Lenders hereby establish in favor of the Borrowers a revolving credit facility pursuant to which each Lender severally agrees (to the extent of such Lender’s Revolving Commitment) to make Revolving Loans to the Borrowers in accordance with Section 2.2; (ii) the Issuing Bank may issue Letters of Credit in accordance with Section 2.21; (iii) the Swingline Lender may make Swingline Loans in accordance with Section 2.4; and (iv) each Lender agrees to purchase a participation interest in the Letters of Credit and the Swingline Loans pursuant to the terms and conditions hereof; provided that in no event shall the aggregate principal amount of all outstanding Revolving Loans, Swingline Loans and outstanding LC Exposure exceed the Aggregate Revolving Commitment Amount in effect from time to time.

Section 2.2.Revolving Loans

.  Subject to the terms and conditions set forth herein, each Lender severally agrees to make Revolving Loans, ratably in proportion to its Pro Rata Share of the Aggregate Revolving Commitments, to the Borrowers, from time to time during the Availability Period, in an aggregate principal amount outstanding at any time that will not result in (a) such Lender’s Revolving Credit Exposure exceeding such Lender’s Revolving Commitment or (b) the aggregate Revolving Credit Exposures of all Lenders exceeding the Aggregate Revolving Commitment Amount.  During the Availability Period, the Borrowers shall be entitled to borrow, prepay and reborrow Revolving Loans in accordance with the terms and conditions of this Agreement.

Section 2.3.Procedure for Revolving Borrowings

.  The Administrative Borrower shall give the Administrative Agent written notice (or telephonic notice promptly confirmed in writing) of each Revolving Borrowing, substantially in the form of Exhibit 2.3 attached hereto (a “Notice of Revolving Borrowing”), (x) prior to 1:00 p.m. one (1) Business Day prior to the requested date of each Base Rate Borrowing and (y) prior to 1:00 p.m. three (3) Business Days prior to the requested date of each Eurodollar Borrowing.  Each Notice of Revolving Borrowing shall be irrevocable and shall specify (i) the aggregate principal amount of such Borrowing, (ii) the date of such Borrowing (which shall be a Business Day), (iii) the Type of such Revolving Loan comprising such Borrowing and (iv) in the case of a Eurodollar Borrowing, the duration of the initial Interest Period applicable thereto (subject to the provisions of the definition of Interest Period).  Each Revolving Borrowing shall consist entirely of Base Rate Loans or Eurodollar Loans, as the Administrative Borrower may request, but the Administrative Borrower may request more than one Borrowing on the same Business Day.  The aggregate principal amount of each Eurodollar Borrowing shall not be less than $5,000,000 or a larger multiple of $500,000, and the aggregate principal amount of each Base Rate Borrowing shall not be less than $1,000,000 or a larger multiple of $100,000; provided that Base Rate Loans made pursuant to Section 2.4 or Section 2.21(d) may be made in lesser amounts as provided therein.  At no time shall the total number of Eurodollar Borrowings outstanding at any time exceed eight (8).  Promptly following the receipt of a Notice of Revolving Borrowing in accordance herewith, the Administrative Agent shall advise each

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Lender of the details thereof and the amount of such Lender’s Revolving Loan to be made as part of the requested Revolving Borrowing.

Section 2.4.Swingline Commitment

.  

(a)Subject to the terms and conditions set forth herein, the Swingline Lender shall make Swingline Loans to the Borrowers, from time to time during the Availability Period, in an aggregate principal amount outstanding at any time not to exceed the lesser of (i) the Swingline Commitment then in effect and (ii) the difference between the Aggregate Revolving Commitment Amount and the aggregate Revolving Credit Exposures of all Lenders; provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan.  The Borrowers shall be entitled to borrow, repay and reborrow Swingline Loans in accordance with the terms and conditions of this Agreement.

(b)The Administrative Borrower shall give the Administrative Agent written notice (or telephonic notice promptly confirmed in writing) of each Swingline Borrowing, substantially in the form of Exhibit 2.4 attached hereto (a “Notice of Swingline Borrowing”), prior to 10:00 a.m. on the requested date of each Swingline Borrowing.  Each Notice of Swingline Borrowing shall be irrevocable and shall specify (i) the principal amount of such Swingline Borrowing, (ii) the date of such Swingline Borrowing (which shall be a Business Day) and (iii) the account of the Borrowers to which the proceeds of such Swingline Borrowing should be credited.  The Administrative Agent will promptly advise the Swingline Lender of each Notice of Swingline Borrowing.  The aggregate principal amount of each Swingline Loan shall not be less than $100,000 or a larger multiple of $50,000, or such other minimum amounts agreed to by the Swingline Lender and the Administrative Borrower.  The Swingline Lender will make the proceeds of each Swingline Loan available to the Borrowers in Dollars in immediately available funds at the account specified by the Administrative Borrower in the applicable Notice of Swingline Borrowing not later than 1:00 p.m. on the requested date of such Swingline Borrowing.  

(c)The Swingline Lender, at any time and from time to time in its sole discretion, may, but in no event no less frequently than once each calendar week shall, on behalf of the Borrowers (which hereby irrevocably authorizes and directs the Swingline Lender to act on its behalf), give a Notice of Revolving Borrowing to the Administrative Agent requesting the Lenders (including the Swingline Lender) to make Base Rate Loans in an amount equal to the unpaid principal amount of any Swingline Loan.  Each Lender will make the proceeds of its Base Rate Loan included in such Borrowing available to the Administrative Agent for the account of the Swingline Lender in accordance with Section 2.5, which will be used solely for the repayment of such Swingline Loan.

(d)If for any reason a Base Rate Borrowing may not be (as determined in the sole discretion of the Administrative Agent), or is not, made in accordance with the foregoing provisions, then each Lender (other than the Swingline Lender) shall purchase an undivided participating interest in such Swingline Loan in an amount equal to its Pro Rata Share thereof on the date that such Base Rate Borrowing should have occurred.  On the date of such required purchase, each Lender shall promptly transfer, in immediately available funds, the amount of its participating interest to the Administrative Agent for the account of the Swingline Lender.

(e)Each Lender’s obligation to make a Base Rate Loan pursuant to subsection (c) of this Section or to purchase participating interests pursuant to subsection (d) of this Section shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender or any other Person may have or claim against the Swingline Lender, any Borrower or any other Person for any reason whatsoever, (ii) the existence of a Default or an Event of Default or the termination of any Lender’s Revolving

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Commitment, (iii) the existence (or alleged existence) of any event or condition which has had or could reasonably be expected to have a Material Adverse Effect, (iv) any breach of this Agreement or any other Loan Document by any Loan Party, the Administrative Agent or any Lender or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.  If such amount is not in fact made available to the Swingline Lender by any Lender, the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with accrued interest thereon for each day from the date of demand thereof (x) at the Federal Funds Rate until the second Business Day after such demand and (y) at the Base Rate at all times thereafter.  Until such time as such Lender makes its required payment, the Swingline Lender shall be deemed to continue to have outstanding Swingline Loans in the amount of the unpaid participation for all purposes of the Loan Documents.  In addition, such Lender shall be deemed to have assigned any and all payments made of principal and interest on its Loans and any other amounts due to it hereunder to the Swingline Lender to fund the amount of such Lender’s participation interest in such Swingline Loans that such Lender failed to fund pursuant to this Section, until such amount has been purchased in full.

Section 2.5.Funding of Borrowings

.

(a)Each Lender will make available each Loan to be made by it hereunder on the proposed date thereof by wire transfer in immediately available funds by 2:00 p.m. to the Administrative Agent at the Payment Office; provided that the Swingline Loans will be made as set forth in Section 2.4.  The Administrative Agent will make such Loans available to the Borrowers by promptly crediting the amounts that it receives, in like funds by the close of business on such proposed date, to an account maintained by the Administrative Borrower with the Administrative Agent or, at the Borrowers’ option, by effecting a wire transfer of such amounts to an account designated by the Administrative Borrower to the Administrative Agent.

(b)Unless the Administrative Agent shall have been notified by any Lender prior to 5:00 p.m. one (1) Business Day prior to the date of a Borrowing in which such Lender is to participate that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such amount available to the Administrative Agent on such date, and the Administrative Agent, in reliance on such assumption, may make available to the Borrowers on such date a corresponding amount.  If such corresponding amount is not in fact made available to the Administrative Agent by such Lender on the date of such Borrowing, the Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest (x) at the Federal Funds Rate until the second Business Day after such demand and (y) at the Base Rate at all times thereafter.  If such Lender does not pay such corresponding amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent shall promptly notify the Borrowers, and the Borrowers shall immediately pay such corresponding amount to the Administrative Agent together with interest at the rate specified for such Borrowing.  Nothing in this subsection shall be deemed to relieve any Lender from its obligation to fund its Pro Rata Share of any Borrowing hereunder or to prejudice any rights which the Borrowers may have against any Lender as a result of any default by such Lender hereunder.

(c)All Revolving Borrowings shall be made by the Lenders on the basis of their respective Pro Rata Shares.  No Lender shall be responsible for any default by any other Lender in its obligations hereunder, and each Lender shall be obligated to make its Loans provided to be made by it hereunder, regardless of the failure of any other Lender to make its Loans hereunder.

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Section 2.6.Interest Elections

.

(a)Each Borrowing initially shall be of the Type specified in the applicable Notice of Borrowing.  Thereafter, the Borrowers may elect to convert such Borrowing into a different Type or to continue such Borrowing, all as provided in this Section.  The Borrowers may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing.

(b)To make an election pursuant to this Section, the Administrative Borrower shall give the Administrative Agent written notice (or telephonic notice promptly confirmed in writing) of each Borrowing that is to be converted or continued, as the case may be, substantially in the form of Exhibit 2.6 attached hereto (a “Notice of Conversion/Continuation”) (x) prior to 1:00 p.m. one (1) Business Day prior to the requested date of a conversion into a Base Rate Borrowing and (y) prior to 1:00 p.m. three (3) Business Days prior to a continuation of or conversion into a Eurodollar Borrowing.  Each such Notice of Conversion/Continuation shall be irrevocable and shall specify (i) the Borrowing to which such Notice of Conversion/Continuation applies and, if different options are being elected with respect to different portions thereof, the portions thereof that are to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and (iv) shall be specified for each resulting Borrowing), (ii) the effective date of the election made pursuant to such Notice of Conversion/Continuation, which shall be a Business Day, (iii) whether the resulting Borrowing is to be a Base Rate Borrowing or a Eurodollar Borrowing, and (iv) if the resulting Borrowing is to be a Eurodollar Borrowing, the Interest Period applicable thereto after giving effect to such election, which shall be a period contemplated by the definition of “Interest Period”.  If any such Notice of Conversion/Continuation requests a Eurodollar Borrowing but does not specify an Interest Period, the Borrowers shall be deemed to have selected an Interest Period of one month.  The principal amount of any resulting Borrowing shall satisfy the minimum borrowing amount for Eurodollar Borrowings and Base Rate Borrowings set forth in Section 2.3.

(c)If, on the expiration of any Interest Period in respect of any Eurodollar Borrowing, the Administrative Borrower shall have failed to deliver a Notice of Conversion/Continuation, then, unless such Borrowing is repaid as provided herein, the Borrowers shall be deemed to have elected to convert such Borrowing to a Eurodollar Borrowing with an Interest Period of one month.  No Borrowing may be converted into, or continued as, a Eurodollar Borrowing if an Event of Default exists, unless the Administrative Agent and the Required Lenders shall have otherwise consented in writing.  No conversion of any Eurodollar Loan shall be permitted except on the last day of the Interest Period in respect thereof.

(d)Upon receipt of any Notice of Conversion/Continuation, the Administrative Agent shall promptly notify each Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.

Section 2.7.Optional Reduction and Termination of Commitments

.

(a)Unless previously terminated, all Revolving Commitments, Swingline Commitments and LC Commitments shall terminate on the Maturity Date.  

(b)Upon at least three (3) Business Days’ prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent (which notice shall be irrevocable; provided the Borrowers shall be permitted to provide in such notice that it is conditional on the occurrence of another financing or transaction), the Borrowers may reduce the Aggregate Revolving Commitments in

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part or terminate the Aggregate Revolving Commitments in whole; provided that (i) any partial reduction shall apply to reduce proportionately and permanently the Revolving Commitment of each Lender, (ii) any partial reduction pursuant to this Section shall be in an amount of at least $5,000,000 and any larger multiple of $1,000,000, and (iii) no such reduction shall be permitted which would reduce the Aggregate Revolving Commitment Amount to an amount less than the aggregate outstanding Revolving Credit Exposure of all Lenders (after giving effect to any repayment of Revolving Loans occurring substantially contemporaneously with such reduction).  Any such reduction in the Aggregate Revolving Commitment Amount below the principal amount of the Swingline Commitment and the LC Commitment shall result in a Dollar-for-Dollar reduction in the Swingline Commitment and the LC Commitment.

(c)With the written approval of the Administrative Agent, the Borrowers may terminate (on a non-ratable basis) the unused amount of the Revolving Commitment of a Defaulting Lender, and in such event the provisions of Section 2.25 will apply to all amounts thereafter paid by the Borrowers for the account of any such Defaulting Lender under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts); provided that such termination will not be deemed to be a waiver or release of any claim that any Borrower, the Administrative Agent, the Issuing Bank, the Swingline Lender or any other Lender may have against such Defaulting Lender.

Section 2.8.Repayment of Loans

. The outstanding principal amount of all Revolving Loans and Swingline Loans shall be due and payable (together with accrued and unpaid interest thereon) on the Maturity Date. The Obligations of each Borrower shall be joint and several in nature.

Section 2.9.Evidence of Indebtedness

.  

(a)Each Lender shall maintain in accordance with its usual practice appropriate records evidencing the Indebtedness of the Borrowers to such Lender resulting from each Loan made by such Lender from time to time, including the amounts of principal and interest payable thereon and paid to such Lender from time to time under this Agreement.  The Administrative Agent shall maintain appropriate records in which shall be recorded (i) the Revolving Commitment of each Lender, (ii) the amount of each Loan made hereunder by each Lender, the Class and Type thereof and, in the case of each Eurodollar Loan, the Interest Period applicable thereto, (iii) the date of any continuation of any Loan pursuant to Section 2.6, (iv) the date of any conversion of all or a portion of any Loan to another Type pursuant to Section 2.6, (v) the date and amount of any principal or interest due and payable or to become due and payable from the Borrowers to each Lender hereunder in respect of the Loans and (vi) both the date and amount of any sum received by the Administrative Agent hereunder from the Borrowers in respect of the Loans and each Lender’s Pro Rata Share thereof.  The entries made in such records shall be prima facie evidence of the existence and amounts of the obligations of the Borrowers therein recorded; provided that the failure or delay of any Lender or the Administrative Agent in maintaining or making entries into any such record or any error therein shall not in any manner affect the obligation of the Borrowers to repay the Loans (both principal and unpaid accrued interest) of such Lender in accordance with the terms of this Agreement.

(b)This Agreement evidences the obligation of the Borrowers to repay the Loans and is being executed as a “noteless” credit agreement.  However, at the request of any Lender (including the Swingline Lender) at any time, the Borrowers agree that they will prepare, execute and deliver to such Lender a promissory note payable to the order of such Lender (or, if requested by such Lender, to such Lender and its registered assigns) and in a form approved by the Administrative Agent.  Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment permitted hereunder) be represented by one or more promissory notes in such form payable to

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the order of the payee named therein (or, if such promissory note is a registered note, to such payee and its registered assigns).

Section 2.10.Optional Prepayments

.  The Borrowers shall have the right at any time and from time to time to prepay any Borrowing, in whole or in part, without premium or penalty, by giving written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent no later than (i) in the case of any prepayment of any Eurodollar Borrowing, 1:00 p.m. not less than three (3) Business Days prior to the date of such prepayment, (ii) in the case of any prepayment of any Base Rate Borrowing, 1:00 p.m. not less than one (1) Business Day prior to the date of such prepayment, and (iii) in the case of any prepayment of any Swingline Borrowing, prior to 11:00 a.m. on the date of such prepayment.  Each such notice shall be irrevocable and shall specify the proposed date of such prepayment and the principal amount of each Borrowing or portion thereof to be prepaid; provided that any such notice in connection with the repayment of all Loans may be conditioned on the occurrence of another financing or transaction.  Upon receipt of any such notice, the Administrative Agent shall promptly notify each affected Lender of the contents thereof and of such Lender’s Pro Rata Share of any such prepayment.  If such notice is given, the aggregate amount specified in such notice shall be due and payable on the date designated in such notice (subject to the conditionality described above), together with accrued interest to such date on the amount so prepaid in accordance with Section 2.12(d); provided that if a Eurodollar Borrowing is prepaid on a date other than the last day of an Interest Period applicable thereto, the Borrowers shall also pay all amounts required pursuant to Section 2.18.  Each partial prepayment of any Loan shall be in an amount that would be permitted in the case of an advance of a Revolving Borrowing of the same Type pursuant to Section 2.2 or, in the case of a Swingline Loan, pursuant to Section 2.4¸ or the full amount of any Borrowing if less than such amounts.  Each prepayment of a Borrowing shall be applied ratably to the Loans comprising such Borrowing.

Section 2.11.Mandatory Prepayments

.  If at any time the aggregate Revolving Credit Exposure of all Lenders exceeds the Aggregate Revolving Commitment Amount, as reduced pursuant to Section 2.7 or otherwise, the Borrowers shall immediately repay the Swingline Loans and the Revolving Loans in an amount equal to such excess, together with all accrued and unpaid interest on such excess amount and any amounts due under Section 2.18.  Each such prepayment shall be applied as follows: first, to the Swingline Loans to the full extent thereof; second, to the Base Rate Loans to the full extent thereof; and third, to the Eurodollar Loans to the full extent thereof.  If, after giving effect to the prepayment of all Swingline Loans and Revolving Loans, the aggregate Revolving Credit Exposure of all Lenders exceeds the Aggregate Revolving Commitment Amount, the Borrowers shall Cash Collateralize its reimbursement obligations with respect to all Letters of Credit in an amount equal to such excess plus any accrued and unpaid fees thereon.  

Section 2.12.Interest on Loans

.

(a)The Borrowers shall pay interest on (i) each Base Rate Loan at the Base Rate plus the Applicable Margin in effect from time to time and (ii) each Eurodollar Loan at the Adjusted LIBO Rate for the applicable Interest Period in effect for such Loan plus the Applicable Margin in effect from time to time.

(b)The Borrowers shall pay interest on each Swingline Loan at the Base Rate plus the Applicable Margin in effect from time to time.

(c)Notwithstanding subsections (a) and (b) of this Section, (i) automatically upon the occurrence and during the continuance of an Event of Default specified in Section 8.1(a), (b), (g), (h) or (i), and (ii) at the option of the Required Lenders upon the occurrence and during the continuance of any other Event of Default, the Borrowers shall pay interest (“Default Interest”), with respect to all

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Eurodollar Loans at the rate per annum equal to 2.00% above the otherwise applicable interest rate for such Eurodollar Loans for the then-current Interest Period until the last day of such Interest Period, and thereafter, and with respect to all Base Rate Loans and all other Obligations hereunder (other than Loans), at the rate per annum equal to 2.00% above the otherwise applicable interest rate for Base Rate Loans.

(d)Interest on the principal amount of all Loans shall accrue from and including the date such Loans are made to but excluding the date of any repayment thereof.  Interest on all outstanding Base Rate Loans and Swingline Loans shall be payable quarterly in arrears on the last day of each March, June, September and December and on the Maturity Date, as the case may be.  Interest on all outstanding Eurodollar Loans shall be payable on the last day of each Interest Period applicable thereto, and, in the case of any Eurodollar Loans having an Interest Period in excess of three months, on each day which occurs every three months after the initial date of such Interest Period, and on the Maturity Date.  Interest on any Loan which is converted into a Loan of another Type or which is repaid or prepaid shall be payable on the date of such conversion or on the date of any such repayment or prepayment (on the amount repaid or prepaid) thereof.  All Default Interest shall be payable on demand.

(e)The Administrative Agent shall determine each interest rate applicable to the Loans hereunder and shall promptly notify the Administrative Borrower and the Lenders of such rate in writing (or by telephone, promptly confirmed in writing).  Any such determination shall be conclusive and binding for all purposes, absent manifest error.

Section 2.13.Fees

.

(a)The Borrowers shall pay to the Administrative Agent for its own account fees in the amounts and at the times previously agreed upon in writing by any Borrower and the Administrative Agent.

(b)The Borrowers agree to pay to the Administrative Agent for the account of each Lender a commitment fee, which shall accrue at the Applicable Percentage per annum (determined daily in accordance with Schedule I) on the daily amount of the unused Revolving Commitment of such Lender during the Availability Period.  For purposes of computing the commitment fee, the Revolving Commitment of each Lender shall be deemed used to the extent of the outstanding Revolving Loans and LC Exposure, but not Swingline Exposure, of such Lender.

(c)The Borrower agrees to pay (i) to the Administrative Agent, for the account of each Lender, a letter of credit fee with respect to its participation in each Letter of Credit, which shall accrue at a rate per annum equal to the Applicable Margin for Eurodollar Loans then in effect on the average daily amount of such Lender’s LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) attributable to such Letter of Credit during the period from and including the date of issuance of such Letter of Credit to but excluding the date on which such Letter of Credit expires or is drawn in full (including, without limitation, any LC Exposure that remains outstanding after the Maturity Date) and (ii) to each Issuing Bank for its own account a fronting fee, which shall accrue at the rate of 0.125% per annum on the average daily amount of the LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) with respect to each Letter of Credit issued by such Issuing Bank, in each case during the Availability Period (or until the date that such Letter of Credit is irrevocably cancelled, whichever is later), as well as the Issuing Bank’s standard fees with respect to issuance, amendment, renewal or extension of any Letter of Credit issued by such Issuing Bank or processing of drawings thereunder.  Notwithstanding the foregoing, if the Required Lenders elect to increase the interest rate on the Loans to the rate for Default Interest pursuant to Section 2.12(c), the rate per annum used to calculate the letter of credit fee pursuant to clause (i) above shall automatically be increased by 2.00%.

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(d)The Borrowers shall pay on or prior to the Closing Date to the Administrative Agent and its affiliates all fees in the Fee Letters that are due and payable on or prior to the Closing Date. On the Closing Date, the Borrowers also assumed all obligations of the MLP and the Original Borrower arising under the Original Fee Letter and each agrees to be bound by the terms of the Fee Letter from and after the date hereof as if the Original Fee Letter was originally executed by each of the Borrowers.

(e)Accrued fees under subsections (b) and (c) of this Section shall be payable quarterly in arrears on the last day of each March, June, September and December, commencing on September 30, 2017, and on the Maturity Date (and, if later, the date the Loans and LC Exposure shall be repaid in their entirety); provided that any such fees accruing after the Maturity Date shall be payable on demand.

Section 2.14.Computation of Interest and Fees

.  Interest hereunder based on the Administrative Agent’s prime lending rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year) and paid for the actual number of days elapsed (including the first day but excluding the last day).  All other interest and all fees hereunder shall be computed on the basis of a year of 360 days and paid for the actual number of days elapsed (including the first day but excluding the last day).  Each determination by the Administrative Agent of an interest rate or fee hereunder shall be made in good faith and, except for manifest error, shall be final, conclusive and binding for all purposes.

Section 2.15.Inability to Determine Interest Rates

.  If, prior to the commencement of any Interest Period for any Eurodollar Borrowing:

(i)the Administrative Agent shall have determined (which determination shall be conclusive and binding upon the Borrowers) that, by reason of circumstances affecting the relevant interbank market, adequate means do not exist for ascertaining the Adjusted LIBO Rate for such Interest Period, or

(ii)the Administrative Agent shall have received notice from the Required Lenders that the Adjusted LIBO Rate does not adequately and fairly reflect the cost to such Lenders of making, funding or maintaining their Eurodollar Loans for such Interest Period,

the Administrative Agent shall give written notice (or telephonic notice, promptly confirmed in writing) to the Administrative Borrower and to the Lenders as soon as practicable thereafter.  Until the Administrative Agent shall notify the Administrative Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) the obligations of the Lenders to make Eurodollar Revolving Loans or to continue or convert outstanding Loans as or into Eurodollar Loans shall be suspended and (ii) all such affected Loans shall be converted into Base Rate Loans on the last day of the then-current Interest Period applicable thereto unless the Borrowers prepay such Loans in accordance with this Agreement.  Unless the Administrative Borrower notifies the Administrative Agent at least one (1) Business Day before the date of any Eurodollar Borrowing for which a Notice of Revolving Borrowing or a Notice of Conversion/Continuation has previously been given that it elects not to borrow, continue or convert to a Eurodollar Borrowing on such date, then such Revolving Borrowing shall be made as, continued as or converted into a Base Rate Borrowing.

Section 2.16.Illegality

.  If any Change in Law shall make it unlawful or impossible for any Lender to make, maintain or fund any Eurodollar Loan and such Lender shall so notify the Administrative Agent, the Administrative Agent shall promptly give notice thereof to the Administrative Borrower and the other Lenders, whereupon until such Lender notifies the Administrative Agent and the Administrative Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of such Lender to make Eurodollar Revolving Loans, or to continue or convert outstanding

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Loans as or into Eurodollar Loans, shall be suspended.  In the case of the making of a Eurodollar Borrowing, such Lender’s Revolving Loan shall be made as a Base Rate Loan as part of the same Revolving Borrowing for the same Interest Period and, if the affected Eurodollar Loan is then outstanding, such Loan shall be converted to a Base Rate Loan either (i) on the last day of the then-current Interest Period applicable to such Eurodollar Loan if such Lender may lawfully continue to maintain such Loan to such date or (ii) immediately if such Lender shall determine that it may not lawfully continue to maintain such Eurodollar Loan to such date.  Notwithstanding the foregoing, the affected Lender shall, prior to giving such notice to the Administrative Agent, designate a different Applicable Lending Office if such designation would avoid the need for giving such notice and if such designation would not otherwise be disadvantageous to such Lender in the good faith exercise of its discretion.

Section 2.17.Increased Costs

.

(a)If any Change in Law shall:

(i)impose, modify or deem applicable any reserve, special deposit or similar requirement that is not otherwise included in the determination of the Adjusted LIBO Rate hereunder against assets of, deposits with or for the account of, or credit extended by, any Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate) or any Issuing Bank; or

(ii)impose on any Lender, any Issuing Bank or the eurodollar interbank market any other condition affecting this Agreement or any Eurodollar Loans made by such Lender or any Letter of Credit or any participation therein (other than Taxes); or

(iii)subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Other Connection Taxes) on its Loans, loan principal, Letters of Credit, Commitments or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto;

and the result of any of the foregoing is to increase the cost to such Lender or such other Recipient of making, converting into, continuing or maintaining a Loan or to increase the cost to such Lender, such Issuing Bank or such other Recipient of participating in or issuing any Letter of Credit or to reduce the amount received or receivable by such Lender, such Issuing Bank or such other Recipient hereunder (whether of principal, interest or any other amount),

then, from time to time, such Lender, such Issuing Bank or such other Recipient may provide the Administrative Borrower (with a copy thereof to the Administrative Agent) with written notice and demand with respect to such increased costs or reduced amounts, and within ten (10) Business Days after receipt of such notice and demand the Borrowers shall pay to such Lender, such Issuing Bank or such other Recipient, as the case may be, such additional amounts as will compensate such Lender, such Issuing Bank or such other Recipient for any such increased costs incurred or reduction suffered.

(b)If any Lender or any Issuing Bank shall have determined that on or after the date of this Agreement any Change in Law regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or such Issuing Bank’s capital (or on the capital of the Parent Company of such Lender or such Issuing Bank) as a consequence of its obligations hereunder or under or in respect of any Letter of Credit to a level below that which such Lender, such Issuing Bank or such Parent Company could have achieved but for such Change in Law (taking into consideration such Lender’s or such Issuing Bank’s policies or the policies of such Parent Company with respect to capital

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adequacy and liquidity), then, from time to time, such Lender or such Issuing Bank may provide the Administrative Borrower (with a copy thereof to the Administrative Agent) with written notice and demand with respect to such reduced amounts, and within ten (10) Business Days after receipt of such notice and demand the Borrowers shall pay to such Lender or such Issuing Bank, as the case may be, such additional amounts as will compensate such Lender, the Issuing Bank or such Parent Company for any such reduction suffered.  

(c)A certificate of such Lender or the Issuing Bank setting forth the amount or amounts necessary to compensate such Lender, such Issuing Bank or the Parent Company of such Lender or such Issuing Bank, as the case may be, specified in subsection (a) or (b) of this Section shall be delivered to the Administrative Borrower (with a copy to the Administrative Agent) and shall be conclusive, absent manifest error.

(d)Failure or delay on the part of any Lender or any Issuing Bank to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s or such Issuing Bank’s right to demand such compensation; provided that the Borrowers shall not be required to compensate any Lender or any Issuing Bank pursuant to this Section for any increased costs incurred or reductions suffered more than six (6) months prior to the date that such Lender or such Issuing Bank notifies the Administrative Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or such Issuing Bank’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the six (6)-month period referred to above shall be extended to include the period of retroactive effect thereof).

Section 2.18.Funding Indemnity

.  In the event of (a) the payment of any principal of a Eurodollar Loan other than on the last day of the Interest Period applicable thereto (including as a result of an Event of Default), (b) the conversion or continuation of a Eurodollar Loan other than on the last day of the Interest Period applicable thereto, or (c) the failure by the Borrowers to borrow, prepay, convert or continue any Eurodollar Loan on the date specified in any applicable notice (regardless of whether such notice is withdrawn or revoked but other than as a result of a notice pursuant to Section 2.15 or Section 2.16), then, in any such event, the Borrowers shall compensate each Lender, within ten (10) Business Days after written demand from such Lender, for any loss, cost or expense attributable to such event.  In the case of a Eurodollar Loan, such loss, cost or expense shall be deemed to include an amount determined by such Lender to be the excess, if any, of (A) the amount of interest that would have accrued on the principal amount of such Eurodollar Loan if such event had not occurred at the Adjusted LIBO Rate applicable to such Eurodollar Loan for the period from the date of such event to the last day of the then-current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the period that would have been the Interest Period for such Eurodollar Loan) over (B) the amount of interest that would accrue on the principal amount of such Eurodollar Loan for the same period if the Adjusted LIBO Rate were set on the date such Eurodollar Loan was prepaid or converted or the date on which the Borrowers failed to borrow, convert or continue such Eurodollar Loan.  A certificate as to any additional amount payable under this Section submitted to the Administrative Borrower by any Lender (with a copy to the Administrative Agent) shall be conclusive, absent manifest error.

Section 2.19.Taxes

.

(a)Defined Terms.  For purposes of this Section 2.19, the term “Lender” includes Issuing Bank and the term “applicable law” includes FATCA.

(b)Payments Free of Taxes.  Any and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable law.  If any applicable law (as determined in the good

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faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.

(c)Payment of Other Taxes by the Borrowers.  The Borrowers shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.

(d)Indemnification by the Borrowers.  The Borrowers shall indemnify each Recipient, within ten (10) Business Days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to the Administrative Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.

(e)Indemnification by the Lenders.  Each Lender shall severally indemnify the Administrative Agent within ten (10) days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that the Borrowers have not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Borrowers to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 10.4(d) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by 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 (e).

(f)Evidence of Payments.  As soon as practicable after any payment of Taxes by any Borrower or any other Loan Party to a Governmental Authority pursuant to this Section 2.19, such Borrower or other Loan Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

(g)Status of Lenders.  (i)  Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Administrative Borrower and the Administrative Agent, at the time or times reasonably requested by the Administrative Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Administrative Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding.  In addition, any Lender, if reasonably requested by the Administrative Borrower or the Administrative Agent, shall

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deliver such other documentation prescribed by applicable law or reasonably requested by the Administrative Borrower or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements.  Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 2.19(g)(ii)(A), Section 2.19(g)(ii)(B) and Section 2.19(g)(ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

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

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

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

(i)  in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, an executed IRS Form W-8BEN (if an individual) or IRS Form W-8BEN-E (if not an individual) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN (if an individual) or IRS Form W-8BEN-E (if not an individual) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

(ii)  an executed IRS Form W-8ECI;

(iii)  in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit 2.20A to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of such Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) an executed IRS Form W-8BEN (if an individual) or IRS Form W-8BEN-E (if not an individual); or

(iv)  to the extent a Foreign Lender is not the beneficial owner, an executed IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form

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W-8BEN (if an individual) or IRS Form W-8BEN-E (if not an individual), a U.S. Tax Compliance Certificate substantially in the form of Exhibit 2.20B or Exhibit 2.20C, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit 2.20D on behalf of each such direct and indirect partner;

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

(D)  if a payment made to a Lender under any 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 such Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by such Borrower 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 such Borrower or the Administrative Agent as may be necessary for such Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment.  Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

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

(h)Treatment of Certain Refunds.  If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.19 (including by the payment of additional amounts pursuant to this Section 2.19), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund).  Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (h) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority.  Notwithstanding anything to the contrary in this paragraph (h), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to

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this paragraph (h) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid.  This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.

(i)Survival.  Each party’s obligations under this Section 2.19 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.

Section 2.20.Payments Generally; Pro Rata Treatment; Sharing of Set-offs

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(a)The Borrowers shall make each payment required to be made by them hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.17, Section 2.19 or this Section 2.20, or otherwise) prior to 2:00 p.m. on the date when due, in immediately available funds, free and clear of any defenses, rights of set-off (except as expressly set forth in Section 2.25) or counterclaim.  Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon.  All such payments shall be made to the Administrative Agent at the Payment Office, except payments to be made directly to any Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Section 2.17, Section 2.19 or this Section 2.20 and Section 10.3 shall be made directly to the Persons entitled thereto.  The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof.  If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension.  All payments hereunder shall be made in Dollars.

(b)If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: first, to all fees and reimbursable expenses of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Banks then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Banks based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to the Lenders based on their respective Pro Rata Shares of such interest and fees; and fourth, to all principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to the parties entitled thereto based on their respective pro rata shares of such principal and unreimbursed LC Disbursements.

(c)If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements or Swingline Loans that would result in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit Exposure, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit Exposure; provided that (i) if any such

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participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure to any assignee or participant; provided the provisions of this subsection shall not apply to any assignment or sale of participation to any Borrower or any Subsidiary or Affiliate thereof unless the Required Lenders have consented to such assignment or sale of participation).  The Borrowers consent to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against any Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Borrower in the amount of such participation.

(d)Unless the Administrative Agent shall have received notice from the Administrative Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank hereunder that the Borrowers will not make such payment, the Administrative Agent may assume that the Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount or amounts due.  In such event, if the Borrowers have not in fact made such payment, then each of the Lenders or the Issuing Banks, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or such Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.

Section 2.21.Letters of Credit

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(a)During the Availability Period, each Issuing Bank, in reliance upon the agreements of the other Lenders pursuant to subsections (d) and (e) of this Section 2.21, shall issue, at the request of the Administrative Borrower, Letters of Credit for the account of a Borrower or a Subsidiary of any Borrower on the terms and conditions hereinafter set forth; provided that (i) each Letter of Credit shall expire on the earlier of (A) the date one year after the date of issuance of such Letter of Credit (or, in the case of any renewal or extension thereof, one year after such renewal or extension) and (B) the date that is five (5) Business Days prior to the Maturity Date; (ii) each Letter of Credit shall be in a stated amount of at least $100,000; and (iii) the Borrowers may not request any Letter of Credit if, after giving effect to such issuance, (A) the aggregate LC Exposure would exceed the LC Commitment or (B) the aggregate Revolving Credit Exposure of all Lenders would exceed the Aggregate Revolving Commitment Amount.  Each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the applicable Issuing Bank without recourse a participation in each Letter of Credit equal to such Lender’s Pro Rata Share of the aggregate amount available to be drawn under such Letter of Credit on the date of issuance thereof.  Each issuance of a Letter of Credit shall be deemed to utilize the Revolving Commitment of each Lender by an amount equal to the amount of such participation.

(b)To request the issuance of a Letter of Credit (or any amendment, renewal or extension of an outstanding Letter of Credit), the Administrative Borrower shall give the Issuing Bank and the Administrative Agent irrevocable written notice at least three (3) Business Days prior to the requested date of such issuance specifying the date (which shall be a Business Day) such Letter of Credit is to be issued (or amended, renewed or extended, as the case may be), the expiration date of such Letter of Credit, the amount of such Letter of Credit, the name and address of the beneficiary thereof and such

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other information as shall be necessary to prepare, amend, renew or extend such Letter of Credit.  In addition to the satisfaction of the conditions in Article III, the issuance of such Letter of Credit (or any amendment which increases the amount of such Letter of Credit) will be subject to the further conditions that such Letter of Credit shall be in such form and contain such terms as the applicable Issuing Bank reasonably shall approve and that the Administrative Borrower shall have executed and delivered any additional applications, agreements and instruments relating to such Letter of Credit as the Issuing Bank shall reasonably require; provided that in the event of any conflict between such applications, agreements or instruments and this Agreement, the terms of this Agreement shall control.

(c)At least two (2) Business Days prior to the issuance of any Letter of Credit, the applicable Issuing Bank will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received such notice, and, if not, such Issuing Bank will provide the Administrative Agent with a copy thereof.  Unless such Issuing Bank has received notice from the Administrative Agent, on or before the Business Day immediately preceding the date such Issuing Bank is to issue the requested Letter of Credit, directing such Issuing Bank not to issue the Letter of Credit because such issuance is not then permitted hereunder because of the limitations set forth in subsection (a) of this Section or that one or more conditions specified in Article III are not then satisfied, then, subject to the terms and conditions hereof, such Issuing Bank shall, on the requested date, issue such Letter of Credit in accordance with such Issuing Bank’s usual and customary business practices.

(d)Each Issuing Bank shall examine all documents purporting to represent a demand for payment under a Letter of Credit issued by such Issuing Bank promptly following its receipt thereof.  Such Issuing Bank shall notify the Administrative Borrower and the Administrative Agent of such demand for payment and whether such Issuing Bank has made or will make a LC Disbursement thereunder; provided that any failure to give or delay in giving such notice shall not relieve the Borrowers of their obligation to reimburse such Issuing Bank and the Lenders with respect to such LC Disbursement.  The Borrowers shall be irrevocably and unconditionally obligated to reimburse each Issuing Bank for any LC Disbursements paid by such Issuing Bank in respect of such drawing, without presentment, demand or other formalities of any kind.  Unless the Administrative Borrower shall have notified the applicable Issuing Bank and the Administrative Agent prior to 11:00 a.m. on the Business Day immediately prior to the date on which such drawing is honored that the Borrowers intend to reimburse such Issuing Bank for the amount of such drawing in funds other than from the proceeds of Revolving Loans, the Borrowers shall be deemed to have timely given a Notice of Revolving Borrowing to the Administrative Agent requesting the Lenders to make a Base Rate Borrowing on the date on which such drawing is honored in an exact amount due to such Issuing Bank; provided that for purposes solely of such Borrowing, the conditions precedent set forth in Section 3.2 hereof shall not be applicable.  The Administrative Agent shall notify the Lenders of such Borrowing in accordance with Section 2.3, and each Lender shall make the proceeds of its Base Rate Loan included in such Borrowing available to the Administrative Agent for the account of the applicable Issuing Bank in accordance with Section 2.5.  The proceeds of such Borrowing shall be applied directly by the Administrative Agent to reimburse such Issuing Bank for such LC Disbursement.

(e)If for any reason a Base Rate Borrowing may not be (as determined in the sole discretion of the Administrative Agent), or is not, made in accordance with the foregoing provisions, then each Lender (other than the applicable Issuing Bank) shall be obligated to fund the participation that such Lender purchased pursuant to subsection (a) of this Section in an amount equal to its Pro Rata Share of such LC Disbursement on and as of the date which such Base Rate Borrowing should have occurred.  Each Lender’s obligation to fund its participation shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender or any other Person may have against any Issuing Bank or any other Person for any reason whatsoever, (ii) the existence of a Default or an Event of Default or the

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termination of the Aggregate Revolving Commitments, (iii) any adverse change in the condition (financial or otherwise) of any Borrower or any of their respective Subsidiaries, (iv) any breach of this Agreement by any Borrower or any other Lender, (v) any amendment, renewal or extension of any Letter of Credit or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.  On the date that such participation is required to be funded, each Lender shall promptly transfer, in immediately available funds, the amount of its participation to the Administrative Agent for the account of the applicable Issuing Bank.  Whenever, at any time after any Issuing Bank has received from any such Lender the funds for its participation in a LC Disbursement, such Issuing Bank (or the Administrative Agent on its behalf) receives any payment on account thereof, the Administrative Agent or such Issuing Bank, as the case may be, will distribute to such Lender its Pro Rata Share of such payment; provided that if such payment is required to be returned for any reason to any Borrower or to a trustee, receiver, liquidator, custodian or similar official in any bankruptcy proceeding, such Lender will return to the Administrative Agent or such Issuing Bank any portion thereof previously distributed by the Administrative Agent or such Issuing Bank to it.

(f)To the extent that any Lender shall fail to pay any amount required to be paid pursuant to subsection (d) or (e) of this Section on the due date therefor, such Lender shall pay interest to the applicable Issuing Bank (through the Administrative Agent) on such amount from such due date to the date such payment is made at a rate per annum equal to the Federal Funds Rate; provided that if such Lender shall fail to make such payment to such Issuing Bank within three (3) Business Days of such due date, then, retroactively to the due date, such Lender shall be obligated to pay interest on such amount at the rate set forth in Section 2.12(c).

(g)If any Event of Default shall occur and be continuing, on the Business Day that the Administrative Borrower receives notice from the Administrative Agent or the Required Lenders demanding that its reimbursement obligations with respect to the Letters of Credit be Cash Collateralized pursuant to this subsection, the Borrowers shall deposit in an account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Issuing Banks and the Lenders, an amount in cash equal to 103% of the aggregate LC Exposure of all Lenders as of such date plus any accrued and unpaid fees thereon; provided that such obligation to Cash Collateralize the reimbursement obligations of the Borrowers with respect to the Letters of Credit shall become effective immediately, and such deposit shall become immediately due and payable, without demand or notice of any kind, upon the occurrence of any Event of Default with respect to any Borrower described in Section 8.1(g) or (h).  Such deposit shall be held by the Administrative Agent as collateral for the payment and performance of the obligations of the Borrowers under this Agreement.  The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account.  The Borrowers agree to execute any documents and/or certificates to effectuate the intent of this subsection.  Other than any interest earned on the investment of such deposits, which investments shall be made at the option and sole discretion of the Administrative Agent and at the Borrowers’ risk and expense, such deposits shall not bear interest.  Interest and profits, if any, on such investments shall accumulate in such account.  Moneys in such account shall be applied by the Administrative Agent to reimburse the Issuing Banks for LC Disbursements for which they have not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the Borrowers for the LC Exposure at such time or, if the maturity of the Loans has been accelerated, with the consent of the Required Lenders, be applied to satisfy other obligations of the Borrowers under this Agreement and the other Loan Documents.  If the Borrowers are required to Cash Collateralize its reimbursement obligations with respect to the Letters of Credit as a result of the occurrence of an Event of Default, such cash collateral so posted (to the extent not so applied as aforesaid) shall be returned to the Borrowers within three (3) Business Days after all Events of Default have been cured or waived.

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(h)Upon the request of any Lender, but no more frequently than quarterly, each Issuing Bank shall deliver (through the Administrative Agent) to each Lender and the Administrative Borrower a report describing the aggregate Letters of Credit then outstanding.  Upon the request of any Lender from time to time, each Issuing Bank shall deliver to such Lender any other information reasonably requested by such Lender with respect to each Letter of Credit issued by such Issuing Bank that is then outstanding.

(i)The Borrowers’ joint and several obligation to reimburse LC Disbursements hereunder shall be absolute, unconditional and irrevocable and shall be performed strictly in accordance with the terms of this Agreement under all circumstances whatsoever and irrespective of any of the following circumstances:

(i)any lack of validity or enforceability of any Letter of Credit or this Agreement;

(ii)the existence of any claim, set-off, defense or other right which any Borrower or any Subsidiary or Affiliate of any Borrower may have at any time against a beneficiary or any transferee of any Letter of Credit (or any Persons or entities for whom any such beneficiary or transferee may be acting), any Lender (including any Issuing Bank) or any other Person, whether in connection with this Agreement or the Letter of Credit or any document related hereto or thereto or any unrelated transaction;

(iii)any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect;

(iv)payment by any Issuing Bank under a Letter of Credit against presentation of a draft or other document to such Issuing Bank that does not comply with the terms of such Letter of Credit;

(v)any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section, constitute a legal or equitable discharge of, or provide a right of set-off against, any Borrower’s obligations hereunder; or

(vi)the existence of a Default or an Event of Default.

Neither the Administrative Agent, any Issuing Bank, any Lender nor any Related Party of any of the foregoing shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to above), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of any Issuing Bank; provided that the foregoing shall not be construed to excuse any Issuing Bank from liability to the Borrowers to the extent of any actual direct damages (as opposed to special, indirect (including claims for lost profits or other consequential damages), or punitive damages, claims in respect of which are hereby waived by the Borrowers to the extent permitted by applicable law) suffered by the Borrowers that are caused by such Issuing Bank’s failure to exercise due care when determining whether drafts or other documents presented under a Letter of Credit comply with the terms thereof.  The parties hereto expressly agree that, in the absence of gross negligence or willful misconduct on the part of any Issuing Bank (as finally determined

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by a court of competent jurisdiction), such Issuing Bank shall be deemed to have exercised due care in each such determination.  In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented that appear on their face to be in substantial compliance with the terms of a Letter of Credit, the applicable Issuing Bank may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.

(j)Unless otherwise expressly agreed by the applicable Issuing Bank and the Borrowers when a Letter of Credit is issued by such Issuing Bank and subject to applicable laws, (i) each standby Letter of Credit shall be governed by the “International Standby Practices 1998” (ISP98) (or such later revision as may be published by the Institute of International Banking Law & Practice on any date any Letter of Credit may be issued), (ii) each documentary Letter of Credit shall be governed by the Uniform Customs and Practices for Documentary Credits (2007 Revision), International Chamber of Commerce Publication No. 600 (or such later revision as may be published by the International Chamber of Commerce on any date any Letter of Credit may be issued) and (iii) the Administrative Borrower shall specify the foregoing in each letter of credit application submitted for the issuance of a Letter of Credit.

Section 2.22.Increase of Commitments; Additional Lenders

.  

(a)From time to time after the Closing Date and in accordance with this Section, the Borrowers and one or more Increasing Lenders or Additional Lenders may enter into an agreement to increase the aggregate Revolving Commitments hereunder (each such increase, an “Incremental Commitment”) so long as the following conditions are satisfied:

(i)each of the conditions set forth in Section 3.2 shall be satisfied;

(ii)no Event of Default shall have occurred and be continuing or would result from the borrowings to be made on the Increase Effective Date;

(iii)the aggregate principal amount of all such Incremental Commitments made pursuant to this Section shall not exceed $23,000,000 (the principal amount of each such Incremental Commitment, the “Incremental Commitment Amount”);

(iv)any Incremental Commitments provided pursuant to this Section shall have a termination date no earlier than the Maturity Date;

(v)the Borrowers and their Subsidiaries shall be in compliance with the Incurrence Test;

(vi)if the Initial Yield applicable to any such Incremental Commitment exceeds by more than 0.50% per annum the sum of the Applicable Margin then in effect for Eurodollar Revolving Loans plus one fourth of the Up-Front Fees paid in respect of the existing Revolving Commitments (the “Existing Yield”), then the Applicable Margin of the existing Revolving Loans shall increase by an amount equal to the difference between the Initial Yield and the Existing Yield minus 0.50% per annum;  and

(vii)any Collateral securing any such Incremental Commitment shall also secure all other Obligations on a pari passu basis.  

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(b)The Administrative Borrower shall provide at least ten (10) Business Days’ (or such shorter period as agreed by the Administrative Agent) written notice to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender) of any proposal to establish an Incremental Commitment.  Each such notice shall specify the date (each, an “Increase Effective Date”) on which the Borrowers propose that the Incremental Commitment shall be effective, which shall be a date not less than ten (10) Business Days (or such shorter period as agreed by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent.  The Borrowers may, but are not required to, specify any fees offered to those Lenders that agree to increase the principal amount of their Revolving Commitments (each, an “Increasing Lender”, and collectively, the “Increasing Lenders”), which fees may be variable based upon the amount by which any such Lender is willing to increase the principal amount of its Revolving Commitment.  No Lender shall have any obligation, express or implied, to offer to increase the aggregate principal amount of its Revolving Commitment, and any decision by a Lender to increase its Revolving Commitment shall be made in its sole discretion independently from any other Lender.  Only the consent of each Increasing Lender shall be required for an increase in the aggregate principal amount of the Revolving Commitments pursuant to this Section.  No Lender which declines to increase the principal amount of its Revolving Commitment may be replaced with respect to its existing Revolving Commitment as a result thereof without such Lender’s consent.  The Borrowers may accept some or all of the offered amounts or designate new lenders that are acceptable to the Administrative Agent and the Issuing Banks (such approval not to be unreasonably withheld or delayed) as additional Lenders hereunder in accordance with this Section (each, an “Additional Lender”, and collectively, the “Additional Lenders”), which Additional Lenders may assume all or a portion of such Incremental Commitments.  The Administrative Borrower and the Administrative Agent shall have discretion jointly to adjust the allocation of such Incremental Commitment among the Increasing Lenders and the Additional Lenders.  The sum of the increase in the Revolving Commitment of the Increasing Lenders plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Incremental Commitment Amount.

(c)Subject to subsections (a) and (b) of this Section, any increase requested by the Borrowers shall be effective upon delivery to the Administrative Agent of each of the following documents:  

(i)an originally executed copy of an instrument of joinder, in form and substance reasonably acceptable to the Administrative Agent, executed by each Borrower, by each Additional Lender and by each Increasing Lender, setting forth the new Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all of the terms and provisions hereof;

(ii)such evidence of appropriate corporate authorization on the part of the Borrowers with respect to such Incremental Commitment and such opinions of counsel for the Borrowers with respect to such Incremental Commitment as the Administrative Agent may reasonably request; provided, however, in no event shall the Borrowers be required to deliver (A) any modifications to Mortgages (unless such modification is required by applicable law to preserve the validity or priority of such Mortgage or in order to ensure that the Mortgages continue to fully secure the Obligations), or (B) any title insurance endorsements or new title insurance policies or local counsel opinions with respect to such Incremental Commitment;

(iii)a certificate of the Administrative Borrower signed by a Responsible Officer, in form and substance reasonably acceptable to the Administrative Agent, certifying that each of the conditions in subsection (a) of this Section has been satisfied;

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(iv)to the extent requested by any Additional Lender or any Increasing Lender, executed promissory notes evidencing such Lender’s Incremental Commitment, issued by the Borrowers in accordance with Section 2.9; and

(v)any other certificates or documents that the Administrative Agent shall reasonably request, in form and substance reasonably satisfactory to the Administrative Agent.  

Upon the effectiveness of any such Incremental Commitment, the Commitments and Pro Rata Share of each Lender will be adjusted to give effect to the Incremental Commitment and Schedule II shall be deemed amended accordingly.

(d)For purposes of this Section, the following terms shall have the meanings specified below:

(i)Initial Yield” shall mean, with respect to any Incremental Commitment, the amount (as determined by the Administrative Agent) equal to the sum of (A) the margin above the Eurodollar Rate on such Incremental Commitment, as applicable (including as margin the effect of any “LIBO rate floor” applicable on the date of the calculation), plus (B) (x) the amount of any Up-Front Fees on such Incremental Commitment (including any fee or discount received by the Lenders in connection with the initial extension thereof), divided by (y) the lesser of (1) the Weighted Average Life to Maturity of such Incremental Commitment, and (2) four.

(ii)Up-Front Fees” shall mean the amount of any fees or discounts received by the Lenders in connection with the making of Loans or extensions of credit, expressed as a percentage of such Loan or extension of credit.  For the avoidance of doubt, “Up-Front Fees” shall not include any arrangement fee paid to the Sole Lead Arranger or any other arranger with respect to any such Incremental Commitments.

(iii)Weighted Average Life to Maturity” shall mean, when applied to any Indebtedness at any date, the number of years obtained by dividing (i) the sum of the products obtained by multiplying (x) 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 (y) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment by (ii) the then-outstanding principal amount of such Indebtedness.

Section 2.23.Mitigation of Obligations

.  If any Lender requests compensation under Section 2.17 or the Borrowers are required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.19, then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the sole judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable under Section 2.17 or Section 2.19, as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender.  The Borrowers hereby agree to pay all costs and expenses incurred by any Lender in connection with such designation or assignment.

Section 2.24.Replacement of Lenders

.  If (a) any Lender gives notice under Section 2.16, (b) any Lender requests compensation under Section 2.17, (c) the Borrowers are required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.19, (d) any Lender is a Defaulting Lender, or (e) in connection with any proposed

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amendment, modification, termination, waiver or consent with respect to any of the provisions hereof as contemplated by Section 10.2(b), the consent of Required Lenders shall have been obtained but the consent of one or more of such other Lenders (each a “Non‑Consenting Lender”) whose consent is required shall not have been obtained, then the Borrowers may, at their sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions set forth in Section 10.4(b)), all of its interests, rights (other than its existing rights to payments pursuant to Section 2.17 or 2.19, as applicable) and obligations under this Agreement to an assignee that shall assume such obligations (which assignee may be another Lender) (a “Replacement Lender”); provided that (i) the Borrowers shall have received the prior written consent of the Administrative Agent and the Issuing Banks (to the extent such consent is required for an assignment to such Replacement Lender pursuant to Section 10.4(b)), which consent shall not be unreasonably withheld, (ii) such Lender shall have received payment of an amount equal to the outstanding principal amount of all Loans owed to it, accrued interest thereon, accrued fees and all other amounts payable to it hereunder from the assignee (in the case of such outstanding principal and accrued interest) and from the Borrowers (in the case of all other amounts), and (iii) in the case of a notice under Section 2.16, a claim for compensation under Section 2.17 or payments required to be made pursuant to Section 2.19, such assignment will result in elimination of the applicable illegality or a reduction in such compensation or payments.  A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrowers to require such assignment and delegation cease to apply. Upon receipt by the Lender being replaced of all amounts required to be paid by it pursuant to this Section 2.24, such Lender shall execute an Assignment and Acceptance within two Business Days of the date on which the Replacement Lender executes and delivers such Assignment and Assumption to the Lender (or such executed Assignment and Assumption is delivered by the Administrative Agent on behalf of the Replacement Lender). If the Lender does not execute such Assignment and Acceptance within such two Business Days, then such Lender shall be deemed to have executed and delivered the Assignment and Assumption without any action on the part of the Lender and the Assignment and Assumption so executed by the Replacement Lender shall be effective for the purposes of this Section 2.24 and Section 10.4.  Any Replacement Lender shall comply with the provisions of Section 10.4(b)(iv)(A), (C) and (D).

Section 2.25.Defaulting Lenders

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(a)Cash Collateral.

(i)At any time that there shall exist a Defaulting Lender, within one (1) Business Day following the written request of the Administrative Agent or the Issuing Banks (with a copy to the Administrative Agent) the Borrowers shall Cash Collateralize the Issuing Banks’ LC Exposure with respect to such Defaulting Lender (determined after giving effect to Section 2.25(b)(iv) and any Cash Collateral provided by such Defaulting Lender) in an amount not less than 103% of the Issuing Banks’ LC Exposure with respect to such Defaulting Lender.

(ii)Each Borrower, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grants to the Administrative Agent, for the benefit of the Issuing Banks, and agrees to maintain, a first priority security interest in all such Cash Collateral as security for the Defaulting Lenders’ obligation to fund participations in respect of Letters of Credit, to be applied pursuant to clause (iii) below.  If at any time the Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent and the Issuing Banks as herein provided, or that the total amount of such Cash Collateral is less than the minimum amount required pursuant to clause (i) above, the Borrowers will, promptly upon demand by the Administrative Agent, pay or provide to the

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Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency (after giving effect to any Cash Collateral provided by the Defaulting Lender).

(iii)Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under this Section 2.25(a) or Section 2.25(b) in respect of Letters of Credit shall be applied to the satisfaction of the Defaulting Lender’s obligation to fund participations in respect of Letters of Credit or LC Disbursements (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) for which the Cash Collateral was so provided, prior to any other application of such property as may otherwise be provided for herein.

(iv)Cash Collateral (or the appropriate portion thereof) provided to reduce any Issuing Bank’s LC Exposure shall no longer be required to be held as Cash Collateral pursuant to this Section 2.25(a) following (A) the elimination of the applicable LC Exposure (including by the termination of Defaulting Lender status of the applicable Lender), or (ii) the determination by the Administrative Agent and the Issuing Banks that there exists excess Cash Collateral; provided that, subject to Section 2.25(b) through (d) the Person providing Cash Collateral and each Issuing Bank may agree that Cash Collateral shall be held to support future anticipated LC Exposure or other obligations and provided, further, that to the extent that such Cash Collateral was provided by any Borrower, such Cash Collateral shall remain subject to the security interest granted pursuant to the Loan Documents.

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

(i)Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of Required Lenders and in Section 10.2.

(ii)Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.7 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to the Issuing Banks or Swingline Lender hereunder; third, to Cash Collateralize the Issuing Banks’ LC Exposure with respect to such Defaulting Lender in accordance with Section 2.25(a); fourth, as the Administrative Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Administrative Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize the Issuing Banks’ future LC Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 2.25(a); sixth, to the payment of any amounts owing to the Lenders, the Issuing Banks or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the Issuing Bank or Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists,

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to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or LC Disbursements in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 3.2 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and LC Disbursements owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or LC Disbursements owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in L/C Obligations and Swingline Loans are held by the Lenders pro rata in accordance with the Commitments under the applicable Facility without giving effect to sub-section (iv) below. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.25(b)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.

(iii)(A)  No Defaulting Lender shall be entitled to receive any commitment fee pursuant to Section 2.13(b) for any period during which that Lender is a Defaulting Lender (and the Borrowers shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender).  

(B)  Each Defaulting Lender shall be entitled to receive letter of credit fees pursuant to Section 2.13(c) for any period during which that Lender is a Defaulting Lender only to the extent allocable to that portion of its LC Exposure for which it has provided Cash Collateral pursuant to Section 2.25(a).  

(C)  With respect to any letter of credit fee not required to be paid to any Defaulting Lender pursuant to clause (B) above, the Borrowers shall (x) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in Letters of Credit or Swingline Loans that has been reallocated to such Non-Defaulting Lender pursuant to sub-section (iv) below, (y) pay to each Issuing Bank and Swingline Lender, as applicable, the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to the Issuing Bank’s LC Exposure or Swingline Lender’s Swingline Exposure with respect to such Defaulting Lender that has not been Cash Collateralized by the Borrowers in accordance with the procedures set forth in Section 2.25(a), and (z) not be required to pay the remaining amount of any such fee.

(iv)All or any part of such Defaulting Lender’s participation in Letters of Credit and Swingline Loans shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Shares of the Revolving Commitments (calculated without regard to such Defaulting Lender’s Revolving Commitment) but only to the extent that (x) the conditions set forth in Section 3.2 are satisfied at the time of such reallocation (and, unless the Administrative Borrower shall have otherwise notified the Administrative Agent at such time, the Borrowers shall be deemed to have represented and warranted that such conditions are satisfied at such time), and (y) such reallocation does not cause the aggregate Revolving Credit Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Revolving Commitment.  Subject to Section 10.18 (Acknowledgement and Consent to EEA Financial Institutional Bail-In), no reallocation hereunder shall constitute a waiver or release of any claim

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of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.

(v)If the reallocation described in sub-section (iv) above cannot, or can only partially, be effected, the Borrowers shall, without prejudice to any right or remedy available to them hereunder or under law, (x) first, prepay Swingline Loans in an amount equal to the Swingline Lender’s Swingline Exposure with respect to such Defaulting Lender and (y) second, Cash Collateralize the Issuing Banks’ LC Exposure with respect to such Defaulting Lender in accordance with the procedures set forth in Section 2.25(a).

(c)Defaulting Lender Cure.  If the Administrative Borrower, the Administrative Agent, the Swingline Lender and the Issuing Banks agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit and Swingline Loans to be held pro rata by the Lenders in accordance with the applicable Commitments (without giving effect to Section 2.25(b)(iv), whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.

(d)New Swingline Loans/Letters of Credit.  So long as any Lender is a Defaulting Lender, (i) the Swingline Lender shall not be required to fund any Swingline Loans unless it is satisfied that it will have no Swingline Exposure to such Defaulting Lender after giving effect to such Swingline Loan and (ii) no Issuing Bank shall be required to issue, extend, renew or increase any Letter of Credit unless it is satisfied that it will have no LC Exposure to such Defaulting Lender after giving effect thereto.

Section 2.26.Administrative Borrower

.  Each Borrower hereby designates and appoints Landmark Operating Company as its representative and agent on its behalf (the “Administrative Borrower”) for the purposes of issuing Notices of Borrowing, issuing Notices of Conversion/Continuation, delivering requests for Letters of Credit, delivering certificates including Compliance Certificates, giving instructions with respect to the disbursement of the proceeds of the Loans, selecting interest rate options, giving and receiving all other notices, consents and approvals hereunder or under any of the other Loan Documents and taking all other actions (including in respect of compliance with covenants) on behalf of any Borrower or the Borrowers under the Loan Documents.  The Administrative Borrower hereby accepts such appointment and agrees to act in such capacity.  The Administrative Agent and each Lender may regard any notice or other communication pursuant to any Loan Document from the Administrative Borrower as a notice or communication from all Borrowers, and the Administrative Agent and each Lender may deliver any notice or other communication required to be delivered to the Borrowers under or in respect of the Loan Documents to the Administrative Borrower on behalf of the Borrowers.  Each warranty, covenant, agreement and undertaking made on behalf of a Borrower by the Administrative Borrower shall be deemed for all purposes to have been made by such Borrower and shall be binding upon and enforceable against such Borrower to the same extent as if the same had been made directly by such Borrower.

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ARTICLE III

CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT

Section 3.1.Conditions to Effectiveness

.  The obligations of the Lenders (including the Swingline Lender) to make Loans and the obligation of the Issuing Banks to issue any Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 10.2):

(a)The Administrative Agent shall have received payment of all fees, expenses and other amounts due and payable on or prior to the Closing Date, including, without limitation, reimbursement or payment of all out-of-pocket expenses of the Administrative Agent, the Sole Lead Arranger and their respective Affiliates (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by or on behalf of the Borrowers hereunder, under any other Loan Document and under any agreement with the Administrative Agent or the Sole Lead Arranger.

(b)The Administrative Agent (or its counsel on its behalf) shall have received the following, each in form and substance reasonably satisfactory to the Administrative Agent:

(i)a counterpart of this Agreement duly executed and delivered by or on behalf of each party hereto (in each case including any counterpart delivered by facsimile transmission or by electronic mail in pdf format pursuant to Section 10.8);

(ii)the Guaranty and Security Agreement, duly executed and delivered by each of the Borrowers and each of the Guarantors, together with (A) UCC-1 financing statements and other applicable documents under the laws of all necessary or appropriate jurisdictions with respect to the perfection of the Liens granted under the Guaranty and Security Agreement, as requested by the Administrative Agent in order to perfect such Liens, duly authorized by the Loan Parties, (B) copies of UCC, tax and judgment lien search reports in all necessary or appropriate jurisdictions and under all legal and trade names of the Loan Parties as requested by the Administrative Agent, indicating that there are no prior Liens on any of the Collateral other than Permitted Encumbrances and Liens to be released on the Closing Date, (C) original certificates evidencing all issued and outstanding shares of Capital Stock of all Subsidiaries owned directly by any Loan Party (subject in all respects to the definition of Excluded Assets) and (D) stock or membership interest powers or other appropriate instruments of transfer executed in blank;

(iii)a certificate of a Responsible Officer of each Loan Party (or of the general partner or managing member of such Loan Party), attaching and certifying copies of its bylaws, partnership agreement or limited liability company agreement, as applicable, and of the resolutions of its board of directors or other equivalent governing body, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Loan Documents to which it is a party and certifying the name, title and true signature of each officer executing the Loan Documents to which it is a party on behalf of such Loan Party;

(iv)certified copies of the articles or certificate of incorporation, certificate of organization, formation or limited partnership, or other registered organizational documents of each Loan Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of such Loan Party and each other

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jurisdiction where such Loan Party’s failure to be qualified to do business as a foreign organization could reasonably be expected to have a Material Adverse Effect;

(v)a certificate in the form of Exhibit 3.1(b)(v), dated the Closing Date and signed by a Responsible Officer, certifying that after giving effect to the funding of any initial Revolving Borrowing, (x) no Default or Event of Default exists, (y) all representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects (other than those representations and warranties that are expressly qualified by “Material Adverse Effect” or other materiality, which representations and warranties shall be true and correct in all respects) and (z) since the date of the most recent audited financial statements of the Borrowers described in Section 4.4, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;

(vi)certified copies of all Material Agreements;

(vii)a favorable written opinion of Latham & Watkins LLP, counsel to the Loan Parties, addressed to the Administrative Agent, the Issuing Banks and each of the Lenders, and covering such matters relating to the Loan Parties, the Loan Documents and the transactions contemplated therein as the Administrative Agent shall reasonably request;

(viii)a duly executed and delivered Notice of Borrowing for any initial Revolving Borrowing;

(ix)a duly executed and delivered funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof and of the REIT Conversion Transactions that are described in Part A of Schedule 1.1;

(x)copies of (A) the audited annual financial statements for the MLP and its Subsidiaries for the Fiscal Years ended 2015 and 2016, (B) the unaudited quarterly financial statements of the MLP and its Subsidiaries for the Fiscal Quarter ended on March 31, 2017, and (C) a pro forma balance sheet of the Borrowers and their Restricted Subsidiaries as of the Closing Date;

(xi)a duly completed, duly executed and delivered Compliance Certificate, including calculations of the financial covenants set forth in Article VI hereof as of the Closing Date, calculated on a Pro Forma Basis and for the Fiscal Quarter ended on March 31, 2017, in each case, as if any initial Revolving Borrowing had been funded as of the first day of the relevant period for testing compliance (and setting forth in reasonable detail such calculations);

(xii)a certificate, dated the Closing Date and duly executed and delivered by a Responsible Officer, confirming that the Loan Parties, on a consolidated basis, are Solvent after giving effect to the funding of any initial Revolving Borrowing and the consummation of the transactions contemplated to occur on the Closing Date;

(xiii)certificates of insurance, in form and detail reasonably acceptable to the Administrative Agent, describing the types and amounts of insurance (property and liability) maintained by any of the Loan Parties, in each case naming the Administrative Agent as loss payee or additional insured, as the case may be, together with a lender’s loss payable endorsement in form and substance reasonably satisfactory to the Administrative Agent;

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(xiv)certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Material Agreement of any Loan Party, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents or any of the transactions contemplated thereby, including the REIT Conversion Transactions that are described in Part A of Schedule 1.1, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Commitments or any transaction being financed with the proceeds thereof shall be ongoing; and

(xv)the Administrative Agent and the Lenders shall have received, at least five (5) Business Days prior to the Closing Date (or such later date as approved by the Administrative Agent in its sole discretion) all documentation and other information required by regulatory authorities under the applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act.

(c)The REIT Conversion Transactions that are described in Part A of Schedule 1.1 shall be consummated prior to or substantially contemporaneously with the closing and funding of the Loans.  

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

Section 3.2.Conditions to Each Credit Event

.  The obligation of each Lender to make a Loan on the occasion of any Borrowing and of each Issuing Bank to issue, amend, renew or extend any Letter of Credit is subject to the satisfaction of the following conditions:

(a)at the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default or Event of Default shall exist;

(b)at the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by “Material Adverse Effect” or other materiality, which representations and warranties shall be true and correct in all respects);

(c)subject to the Incurrence Test Exception, the Borrowers shall be in compliance with the Incurrence Test; and

(d)the Administrative Borrower shall have delivered the required Notice of Borrowing.

Each Borrowing and each issuance, amendment, renewal or extension of any Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in subsections (a), (b) and (c) of this Section.

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Section 3.3.Delivery of Documents

.  All of the Loan Documents, certificates, legal opinions and other documents and papers referred to in this Article, unless otherwise specified, shall be delivered to the Administrative Agent for the account of the Lenders and in counterparts or copies as the Administrative Agent shall reasonably request, and shall be in form and substance reasonably satisfactory in all respects to the Administrative Agent.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES

Each of the MLP and each Borrower represents and warrants, after giving effect to the REIT Conversion Transactions, to the Administrative Agent, each Lender and each Issuing Bank with respect to itself and each of its Restricted Subsidiaries (except as otherwise noted below) as follows:

Section 4.1.Existence; Power

.  The MLP, each Borrower and each of their respective Restricted Subsidiaries (i) is duly organized, validly existing and in good standing as a corporation, partnership or limited liability company under the laws of the jurisdiction of its organization, (ii) has all requisite power and authority to carry on its business as now conducted, and (iii) is duly qualified to do business, and is in good standing, in each jurisdiction where such qualification is required, except where a failure to be so qualified could not reasonably be expected to result in a Material Adverse Effect.

Section 4.2.Organizational Power; Authorization

.  The execution, delivery and performance by each Loan Party of the Loan Documents to which it is a party are within such Loan Party’s organizational powers and have been duly authorized by all necessary organizational and, if required, shareholder, partner or member action.  This Agreement has been duly executed and delivered by each Borrower and constitutes, and each other Loan Document to which any Loan Party is a party, when executed and delivered by such Loan Party, will constitute, valid and binding obligations of such Borrower or such Loan Party (as the case may be), enforceable against it in accordance with their respective terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity.

Section 4.3.Governmental Approvals; No Conflicts

.  The execution, delivery and performance by each Loan Party of the Loan Documents to which it is a party (a) do not require any consent or approval of, registration or filing with, or any action by, any Governmental Authority, except those as have been obtained or made and are in full force and effect and except for filings necessary to perfect or maintain perfection of the Liens created under the Loan Documents, (b) will not violate any Requirement of Law applicable to the MLP, any Borrower or any of their respective Restricted Subsidiaries or any judgment, order or ruling of any Governmental Authority, (c) will not violate or result in a default under any Material Agreement of the MLP, any Borrower or any of their respective Restricted Subsidiaries or any of such Person’s assets or give rise to a right thereunder to require any payment to be made by the MLP, any Borrower or any of their respective Restricted Subsidiaries and (d) will not result in the creation or imposition of any Lien on any asset of the MLP, any Borrower or any of their respective Restricted Subsidiaries, except Liens (if any) created under the Loan Documents.

Section 4.4.Financial Statements

.  The Borrowers have furnished to each Lender (a) the audited balance sheet of the MLP and its Subsidiaries as of December 31, 2015 and December 31, 2016, and the related audited statements of income, shareholders’ equity and cash flows for the fiscal years then ended, audited by independent public accountants, (b) the unaudited balance sheet of the MLP and its Subsidiaries for the Fiscal Quarter ended on March 31, 2017 and the related unaudited

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consolidated statements of income and cash flows for the year-to-date period then ended, certified by a Responsible Officer.  Such financial statements fairly present the financial condition of the MLP and its Subsidiaries as of such dates and the results of operations for such periods in conformity with GAAP consistently applied, subject to year-end audit adjustments and the absence of footnotes in the case of the statements referred to in clause (b).  As of the Closing Date, since December 31, 2016, there have been no changes with respect to the MLP and its Subsidiaries that have had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.

Section 4.5.Litigation and Environmental Matters

.

(a)No litigation, investigation or proceeding of or before any arbitrator or Governmental Authority is pending against or, to the knowledge of the MLP or the Borrowers, threatened against or affecting the MLP, any Borrower or any of their respective Restricted Subsidiaries (i) as to which there is a reasonable possibility of an adverse determination that could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect or (ii) which in any manner draws into question the validity or enforceability of this Agreement or any other Loan Document.

(b)Except as could not reasonably be expected to have a Material Adverse Effect, none of the MLP, any Borrower, nor any of their respective Restricted Subsidiaries (i) has failed to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law, (ii) has become subject to any Environmental Liability, (iii) has received written notice of any claim against such entity with respect to any Environmental Liability, which notice has not been delivered to Administrative Agent or (iv) has knowledge of any facts or circumstances which could reasonably be expected to result in any Environmental Liability.

Section 4.6.Compliance with Laws and Agreements

.  The MLP, each Borrower and each of their respective Restricted Subsidiaries is in compliance with (a) all Requirements of Law and all judgments, decrees and orders of any Governmental Authority and (b) all indentures, agreements or other instruments binding upon it or its properties, except where non-compliance, either individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.

Section 4.7.Investment Company Act

.  None of the MLP, the Borrower nor any of their respective Restricted Subsidiaries is (a) an “investment company” or is “controlled” by an “investment company”, as such terms are defined in, or subject to regulation under, the Investment Company Act of 1940, as amended and in effect from time to time, or (b) otherwise subject to any other regulatory scheme limiting its ability to incur debt or requiring any approval or consent from, or registration or filing with, any Governmental Authority in connection therewith.

Section 4.8.Taxes

.  The MLP, the Borrowers and their respective Restricted Subsidiaries have timely filed or caused to be filed all federal income tax returns and all other material tax returns that are required to be filed by them, and have paid all taxes shown to be due and payable on such returns or on any assessments made against it or its property and all other material taxes, fees or other charges imposed on it or any of its property by any Governmental Authority, except where the same are currently being contested in good faith by appropriate proceedings and for which the MLP, such Borrower or such Restricted Subsidiary, as the case may be, has set aside on its books adequate reserves in accordance with GAAP.  The charges, accruals and reserves on the books of the MLP, the Borrowers and their respective Restricted Subsidiaries in respect of such taxes are adequate, and no tax liabilities that could be materially in excess of the amount so provided are anticipated.  

Section 4.9.Margin Regulations

.  None of the proceeds of any of the Loans or Letters of Credit will be used, directly or indirectly, for “purchasing” or “carrying” any “margin stock”

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within the respective meanings of each of such terms under Regulation U or for any purpose that violates the provisions of Regulation T, Regulation U or Regulation X.  None of the MLP, any Borrower nor any of their Restricted Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying “margin stock”.

Section 4.10.ERISA

.  Except as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, (i) each Plan is in substantial compliance in form and operation with its terms and with ERISA and the Code (including, without limitation, the Code provisions compliance with which is necessary for any intended favorable tax treatment) and all other applicable laws and regulations; (ii) each Plan (and each related trust, if any) which is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service to the effect that it meets the requirements of Sections 401(a) and 501(a) of the Code covering all applicable tax law changes, or is comprised of a master or prototype plan that has received a favorable opinion letter from the Internal Revenue Service, and nothing has occurred since the date of such determination that would adversely affect such determination (or, in the case of a Plan with no determination, nothing has occurred that would adversely affect the issuance of a favorable determination letter or otherwise adversely affect such qualification); (iii) no ERISA Event has occurred or is reasonably expected to occur; (iv) there exists no Unfunded Pension Liability with respect to any Plan; (v) none of the MLP, any Borrower, any of their respective Restricted Subsidiaries or any ERISA Affiliate is making or accruing an obligation to make contributions, or has, within any of the five calendar years immediately preceding the date this assurance is given or deemed given, made or accrued an obligation to make, contributions to any Multiemployer Plan; (vi) there are no actions, suits or claims pending against or involving a Plan (other than routine claims for benefits) or, to the knowledge of the MLP, any Borrower, any of their respective Restricted Subsidiaries or any ERISA Affiliate, threatened, which would be asserted successfully against any Plan and, if so asserted successfully, would result in liability to the MLP, any Borrower or any of their respective Restricted Subsidiaries; (vii) the MLP, each Borrower, each of their respective Restricted Subsidiaries and each ERISA Affiliate have made all contributions to or under each Plan and Multiemployer Plan required by law within the applicable time limits prescribed thereby, by the terms of such Plan or Multiemployer Plan, respectively, or by any contract or agreement requiring contributions to a Plan or Multiemployer Plan; (viii) no Plan which is subject to Section 412 of the Code or Section 302 of ERISA has applied for or received an extension of any amortization period within the meaning of Section 412 of the Code or Section 303 or 304 of ERISA; (ix) none of the MLP, any Borrower, nor any of their respective Restricted Subsidiaries, nor any ERISA Affiliate has ceased operations at a facility so as to become subject to the provisions of Section 4068(a) of ERISA, withdrawn as a substantial employer so as to become subject to the provisions of Section 4063 of ERISA or ceased making contributions to any Plan subject to Section 4064(a) of ERISA to which it made contributions; (x) each Non-U.S. Plan has been maintained in compliance with its terms and with the requirements of any and all applicable laws, statutes, rules, regulations and orders and has been maintained, where required, in good standing with applicable regulatory authorities; (xi) all contributions required to be made with respect to a Non-U.S. Plan have been timely made; (xii) neither the MLP, any Borrower nor any of their respective Restricted Subsidiaries has incurred any obligation in connection with the termination of, or withdrawal from, any Non-U.S. Plan; and (xiii) the present value of the accrued benefit liabilities (whether or not vested) under each Non-U.S. Plan, determined as of the end of the Borrowers’ most recently ended Fiscal Year on the basis of reasonable actuarial assumptions, did not exceed the current value of the assets of such Non-U.S. Plan allocable to such benefit liabilities.

Section 4.11.Ownership of Property; Insurance

.

(a)Each of the MLP, the Borrowers and their respective Restricted Subsidiaries has (i) good title to, or valid leasehold, Easement or other interests in all of its real property and (ii) good title to all of its personal property, including its Other Assets, in each case material to the operation of its

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business, including all such properties reflected in the most recent audited consolidated balance sheet referred to in Section 4.4 or purported to have been acquired by the MLP, any Borrower or any of their respective Restricted Subsidiaries after said date (except as sold or otherwise disposed of in the ordinary course of business or as otherwise permitted pursuant to this Agreement), in each case free and clear of Liens prohibited by this Agreement.

(b)Each of the MLP, the Borrowers and their respective Restricted Subsidiaries owns, or is licensed or otherwise has the right to use, all patents, trademarks, service marks, trade names, copyrights and other intellectual property material to its business, and the use thereof by the MLP, the Borrowers and their respective Restricted Subsidiaries does not infringe in any material respect on the rights of any other Person.

(c)The properties of the MLP, the Borrowers and their respective Restricted Subsidiaries are insured with financially sound and reputable insurance companies which are not Affiliates of any Borrower (other than captive insurance companies), in such amounts with such deductibles (including self insurance and captive insurance companies, to the extent applicable) and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the MLP, any applicable Borrower or any applicable Restricted Subsidiary operates.

(d)Except as disclosed to the Administrative Agent in writing, none of the MLP, any Borrower nor any of their respective Restricted Subsidiaries owns any Building or Manufactured (Mobile) Home on any of its Real Estate that is not Fee Owned Property of such Person.

Section 4.12.Disclosure

.  As of the Closing Date, the Borrowers have disclosed to the Lenders all agreements, instruments, and corporate or other restrictions to which the MLP, any Borrower or any of their respective Restricted Subsidiaries is subject, and all other matters known to any of them that, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.  The reports, financial statements, certificates or other information (in each case, other than projections and other forward-looking information and information of a general economic or industry-specific nature), furnished by or on behalf of the Borrowers to the Administrative Agent or any Lender in connection with the negotiation or syndication of this Agreement or any other Loan Document or delivered hereunder or thereunder (as modified or supplemented by any other information so furnished), taken as a whole, do not contain any material misstatement of fact or omits to state any material fact necessary to make the statements therein, taken as a whole in light of the circumstances under which they were made, not misleading; provided that, with respect to projected financial information, each of the MLP and the Borrowers represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time such projected financial information was prepared.

Section 4.13.Labor Relations

.  Except as could not reasonably be expected to have a Material Adverse Effect, there are no strikes, lockouts or other material labor disputes or grievances against the MLP, any Borrower or any of their respective Restricted Subsidiaries, or, to the MLP’s or any Borrower’s knowledge, threatened against or affecting the MLP, any Borrower or any of their respective Restricted Subsidiaries, and no significant unfair labor practice charges or grievances are pending against the MLP, any Borrower or any of their respective Restricted Subsidiaries, or, to the MLP’s or any Borrower’s knowledge, threatened against any of them before any Governmental Authority.  All payments due from the MLP, any Borrower or any of their respective Restricted Subsidiaries pursuant to the provisions of any collective bargaining agreement have been paid or accrued as a liability on the books of the MLP, any Borrower or any such Subsidiary, except where the failure to do so could not reasonably be expected to have a Material Adverse Effect.

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Section 4.14.Subsidiaries

.  Schedule 4.14 sets forth the name of, the ownership interest of the applicable Loan Party in, the jurisdiction of incorporation or organization of, and the entity type for each Subsidiary of the Borrowers and the other Loan Parties and identifies each Subsidiary as either a Restricted Subsidiary or Unrestricted Subsidiary, in each case as of the Closing Date.

Section 4.15.Solvency

.  After giving effect to the execution and delivery of the Loan Documents, the making of the Loans under this Agreement and the consummation of the REIT Conversion Transactions, the Loan Parties are Solvent.

Section 4.16.Deposit and Disbursement Accounts

.  Schedule 4.16 lists all banks and other financial institutions at which any Loan Party maintains deposit accounts, lockbox accounts, disbursement accounts, investment accounts or other similar accounts as of the Closing Date, and such Schedule correctly identifies the name, address and telephone number of each financial institution, the name in which the account is held, the type of the account, and the complete account number therefor.

Section 4.17.Collateral Documents

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(a)The Guaranty and Security Agreement is effective to create in favor of the Administrative Agent for the ratable benefit of the Secured Parties a legal, valid and enforceable security interest in the Collateral (as defined therein), and when UCC-1 financing statements in appropriate form are filed in the offices specified on Schedule 3 to the Guaranty and Security Agreement, the Guaranty and Security Agreement shall constitute a fully perfected Lien (to the extent that such Lien may be perfected by the filing of a UCC-1 financing statement) on, and security interest in, all right, title and interest of the grantors thereunder in such Collateral, in each case prior and superior in right to any other Person, other than with respect to Liens expressly permitted by Section 7.2.  When the certificates evidencing all Capital Stock pledged pursuant to the Guaranty and Security Agreement are delivered to the Administrative Agent, together with appropriate stock powers or other similar instruments of transfer duly executed in blank, the Liens in such Capital Stock shall be fully perfected first priority security interests, perfected by “control” as defined in the UCC.

(b)When the filings in subsection (a) of this Section are made and when, if applicable, the Patent Security Agreements and the Trademark Security Agreements are filed in the United States Patent and Trademark Office and the Copyright Security Agreements are filed in the United States Copyright Office, the Guaranty and Security Agreement shall constitute a fully perfected Lien on, and security interest in, all right, title and interest of the Loan Parties in the Patents, Trademarks and Copyrights, if any, in which a security interest may be perfected by filing, recording or registering a security agreement, financing statement or analogous document in the United States Patent and Trademark Office or the United States Copyright Office, as applicable, in each case prior and superior in right to any other Person, other than with respect to Liens expressly permitted by Section 7.2.

(c)Each Mortgage, when duly executed and delivered by the relevant Loan Party, will create in favor of the Administrative Agent for the ratable benefit of the Secured Parties a valid and enforceable Lien on all of such Loan Party’s right, title and interest in and to the Real Estate of such Loan Party described in such Mortgage, and when each of such Mortgage and the related Mortgage Assignment is filed in the real estate records where the respective Mortgaged Property is located, such Mortgage and the related Mortgage Assignment shall publish notice of and establish of record the rights of the parties thereto and the security interest in that portion of the Mortgaged Property, to the extent the UCC is applicable thereto, constituting fixtures shall be perfected (be it by the filing of such Mortgage or as effected by a separate fixture filing in the relevant jurisdiction), in each case prior and superior in right to any other Person, other than with respect to Liens expressly permitted by Section 7.2.

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Section 4.18.Material Agreements

.  As of the Closing Date, (a) all Material Agreements of the MLP, the Borrowers and their respective Restricted Subsidiaries are described on Schedule 4.18, and each such Material Agreement is in full force and effect, and (b) neither the MLP nor any Borrower has any knowledge of any pending amendments or threatened termination of any of the Material Agreements.  As of the Closing Date, the Borrowers have delivered to the Administrative Agent a true, complete and correct copy of each Material Agreement (including all schedules, exhibits, amendments, supplements, modifications, assignments and all other documents delivered pursuant thereto or in connection therewith).

Section 4.19.Anti-Corruption Laws and Sanctions

.  Each of the MLP and each Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the MLP, the Borrowers, their respective Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the MLP, the Borrowers, their respective Subsidiaries and their respective officers and employees and to the knowledge of the MLP and the Borrowers their directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects.  None of (a) the MLP, any Borrower, any of their respective Subsidiaries or any of their respective directors, officers or employees, or (b) to the knowledge of the MLP and the Borrowers, any agent of the MLP, any Borrower or any of their respective Subsidiaries that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person.  No Borrowing or Letter of Credit, use of proceeds or other transaction contemplated by the Credit Agreement will violate Anti-Corruption Laws or applicable Sanctions.

Section 4.20.Patriot Act

.  Neither any Loan Party nor any of its respective Subsidiaries is an “enemy” or an “ally of the enemy” within the meaning of Section 2 of the Trading with the Enemy Act or any enabling legislation or executive order relating thereto.  Neither any Loan Party nor any of its respective Subsidiaries is in violation of (a) the Trading with the Enemy Act, (b) any of the foreign assets control regulations of the United States Treasury Department (31 C.F.R., Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto or (c) the Patriot Act.  None of the Loan Parties (i) is a blocked person described in Section 1 of the Anti-Terrorism Order or (ii) to its knowledge, engages in any dealings or transactions, or is otherwise associated, with any such blocked person.

ARTICLE V

AFFIRMATIVE COVENANTS

The Borrowers covenant and agree that until Payment in Full of the Obligations:

Section 5.1.Financial Statements and Other Information

.  The Administrative Borrower will deliver to the Administrative Agent, for delivery to each Lender:

(a)as soon as available and in any event within one hundred five (105) days after the end of each Fiscal Year of the MLP, a copy of the annual audited report for such Fiscal Year for the MLP and its Subsidiaries, containing a consolidated balance sheet of the MLP and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the MLP and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by Ernst & Young LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial condition and the results of operations of the MLP and its

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Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;

(b)as soon as available and in any event within sixty (60) days after the end of each Fiscal Quarter (other than the last Fiscal Quarter in any Fiscal Year) of the MLP, an unaudited consolidated balance sheet of the MLP and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the MLP and its Subsidiaries for such Fiscal Quarter and the then-elapsed portion of such Fiscal Year, setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter and the corresponding portion of the MLP’s previous Fiscal Year;

(c)concurrently with the delivery of the financial statements referred to in subsections (a) and (b) of this Section, a Compliance Certificate signed by a Responsible Officer on behalf of the MLP  (i) certifying as to whether there exists a Default or Event of Default on the date of such certificate and, if a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrowers have taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, and (iii) specifying any change in the identity of the Restricted Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Restricted Subsidiaries identified to the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the MLP and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;

(d)as soon as available and in any event within sixty (60) days after the end of the calendar year, a budget for the succeeding Fiscal Year, containing an income statement, balance sheet and statement of cash flow;

(e)concurrently with the delivery of the financial statements referred to in subsections (a) and (b) of this Section, a report showing the following data on all assets of the Borrowers and their Restricted Subsidiaries:  asset identification numbers, states, tenants, industry/structure types, current rents, lease terms, easement terms and escalator details ;

(f)promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by the MLP to its shareholders generally, as the case may be; and

(g)promptly following any request therefor, such other information regarding the results of operations, business affairs and financial condition of the MLP or any of its Restricted Subsidiaries as the Administrative Agent or any Lender may reasonably request.

Notwithstanding anything herein to the contrary, each document required to be delivered pursuant to Sections 5.1(a), (b), (f) and (g) may be delivered by (x) electronic mail or (y) the Administrative Borrower providing a link to such document that Borrowers have publicly filed with the Securities and Exchange Commission via its Electronic Data Gathering, Analysis, and Retrieval system, and such document shall be deemed delivered in the case of clause (y) on the date on which the Administrative Agent receives written notification of such posting (which notification may be made by electronic mail).

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Section 5.2.Notices of Material Events

.  The Administrative Borrower will furnish to the Administrative Agent, for delivery to each Lender prompt written notice of the following:

(a)the occurrence of any Default or Event of Default;

(b)the filing or commencement of, or any material development in, any action, suit or proceeding by or before any arbitrator or Governmental Authority against or, to the knowledge of the Borrowers, affecting any Borrower or any of their respective Restricted Subsidiaries which, if adversely determined, could reasonably be expected to result in a Material Adverse Effect;

(c)the occurrence of any event or any other development by which any Borrower or any of their respective Subsidiaries (i) fails to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law, (ii) becomes subject to any Environmental Liability, (iii) receives notice of any claim with respect to any Environmental Liability, or (iv) becomes aware of any basis for any Environmental Liability, in each case which, either individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect;

(d)promptly and in any event within fifteen (15) days after (i) any Borrower, any of their respective Subsidiaries or any ERISA Affiliate knows or has reason to know that any ERISA Event has occurred, a certificate of a Responsible Officer describing such ERISA Event and the action, if any, proposed to be taken with respect to such ERISA Event and a copy of any notice filed with the PBGC or the IRS pertaining to such ERISA Event and any notices received by such Borrower, such Subsidiary or such ERISA Affiliate from the PBGC or any other governmental agency with respect thereto, and (ii) becoming aware (1) that there has been an increase in Unfunded Pension Liabilities (not taking into account Plans with negative Unfunded Pension Liabilities) since the date the representations hereunder are given or deemed given, or from any prior notice, as applicable, (2) of the existence of any Withdrawal Liability, (3) of the adoption of, or the commencement of contributions to, any Plan subject to Section 412 of the Code by any Borrower, any of their respective Subsidiaries or any ERISA Affiliate, or (4) of the adoption of any amendment to a Plan subject to Section 412 of the Code which results in a material increase in contribution obligations of any Borrower, any of their respective Subsidiaries or any ERISA Affiliate, a detailed written description thereof from a Responsible Officer, in each case of (i) and (ii) above, that would reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect;

(e)the occurrence of any default or event of default, or the receipt by any Borrower or any of their respective Subsidiaries of any written notice of an alleged default or event of default, with respect to any Material Indebtedness of any Borrower or any of their respective Subsidiaries;

(f)any material amendment or modification to any Material Agreement (together with a copy thereof), and prompt notice of any termination, expiration or loss of any Material Agreement that, individually or in the aggregate, could reasonably be expected to result in a reduction in Annualized Adjusted Consolidated EBITDA of the Loan Parties of 5% or more on a consolidated basis from the Annualized Adjusted Consolidated EBITDA for the most recent Fiscal Quarter for which financial statements are required to have been delivered pursuant to Section 5.1(a) or Section 5.1(b) of this Agreement; and

(g)any other development that results in, or could reasonably be expected to result in, a Material Adverse Effect.

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The Administrative Borrower will furnish to the Administrative Agent, for delivery to each Lender the following:

(x)

promptly and in any event at least ten (10) Business Days prior thereto (or such shorter period as the Administrative Agent shall agree), notice of any change (i) in any Loan Party’s legal name, (ii) in any Loan Party’s chief executive office, its principal place of business, any office in which it maintains books or records or any office or facility at which Collateral owned by it is located (including the establishment of any such new office or facility), (iii) in any Loan Party’s identity or legal structure, (iv) in any Loan Party’s federal taxpayer identification number or organizational number or (v) in any Loan Party’s jurisdiction of organization;

(y)

concurrently with the delivery of the financial statements pursuant to Section 5.1(a) or Section 5.1(b), a copy of any environmental report or site assessment obtained by or for any Borrower or any of their respective Restricted Subsidiaries during the Fiscal Quarter with respect to which such financial statements relate on any Real Estate held by any Loan Party; and

(z)  

concurrently with the delivery of the financial statements pursuant to Section 5.1(a) or Section 5.1(b), or in connection with any Permitted Acquisition from an Affiliate Fund, to the extent Borrowers have knowledge of the same, notice of any Change in Law that has occurred since the date of the last report made pursuant to this subsection (z) such that any Mortgages to be assigned pursuant to such Permitted Acquisition or otherwise, as modified by an applicable form of Omnibus Mortgage Amendment, might not be effective to grant a mortgage Lien to the Secured Parties securing the Obligations in the same amount as on the Closing Date.

Each notice or other document delivered under this Section shall be accompanied by a written statement of a Responsible Officer setting forth the details of the event or development requiring such notice or other document and any action taken or proposed to be taken with respect thereto.

Section 5.3.Existence; Conduct of Business

.

(a)Each Borrower will, and will cause each of its Restricted Subsidiaries to, do or cause to be done all things necessary to preserve, renew and maintain in full force and effect its legal existence and its respective rights, licenses, permits, privileges, franchises, patents, copyrights, trademarks and trade names material to the conduct of its business; provided that nothing in this Section shall prohibit any merger, consolidation, liquidation or dissolution permitted under Section 7.3 or any disposition permitted under Section 7.6.

(b)Landmark REIT shall elect to be taxed as a REIT for its taxable year ending December 31, 2017 and will at all times continue to operate in a manner to qualify for taxation as a REIT.

Section 5.4.Compliance with Laws

.  Each Borrower will, and will cause each of its Restricted Subsidiaries to, comply with all laws, rules, regulations and requirements of any Governmental Authority applicable to its business and properties, including, without limitation, all Environmental Laws, ERISA and OSHA, except where the failure to do so, either individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. The Borrowers will maintain in effect and enforce policies and procedures designed to ensure compliance by the Borrowers, their Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions.

Section 5.5.Payment of Obligations

.  Each Borrower will, and will cause each of its Restricted Subsidiaries to, pay and discharge at or before maturity all of its material obligations and

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liabilities (including, without limitation, all material taxes, assessments and other governmental charges, levies and all other material claims that could result in a statutory Lien) before the same shall become delinquent or in default, except where (a) the validity or amount thereof is being contested in good faith by appropriate proceedings, and (b) such Borrower or such Restricted Subsidiary has set aside on its books adequate reserves with respect thereto in accordance with GAAP.

Section 5.6.Books and Records

.  Each Borrower will, and will cause each of its Restricted Subsidiaries to, keep proper books of record and account in which full, true and correct entries in all material respects shall be made of all dealings and transactions in relation to its business and activities to the extent necessary to prepare the consolidated financial statements of the Borrowers in conformity with GAAP.

Section 5.7.Visitation and Inspection

.  Each Borrower will, and will cause each of its Restricted Subsidiaries to, permit any representative of the Administrative Agent or any Lender to visit and inspect its properties, to examine its books and records and to make copies and take extracts therefrom, and to discuss its affairs, finances and accounts with any of its officers and with its independent certified public accountants, all at such reasonable times and as often as the Administrative Agent or any Lender may reasonably request after reasonable prior notice to the Administrative Borrower; provided that (a) so long as no Event of Default shall have occurred and be continuing, the Administrative Agent and the Lenders shall not make more than one such visit and inspection in any Fiscal Year; (b) if an Event of Default has occurred and is continuing, no prior notice shall be required and the limitation on the number of visits and inspections shall no longer apply; (c) any such inspection and examination, copies and discussions shall not be permitted to the extent it would violate confidentiality agreements or result in a loss of attorney-client privilege or claim of attorney work product so long as the Administrative Borrower notifies the Administrative Agent of such limitation and the reason therefor; and (d) any such inspection and examination, copies and discussions shall be subject to the terms of any applicable lease.  Notwithstanding anything to the contrary contained in this Agreement, the Borrowers shall not be required to pay the expense of any Person other than the Administrative Agent in connection with any visits or inspections under this Section 5.7.

Section 5.8.Maintenance of Properties; Insurance

.  Each Borrower will, and will cause each of its Restricted Subsidiaries to, (a) keep and maintain all property material to the conduct of its business in good working order and condition, ordinary wear and tear excepted, (b) maintain with financially sound and reputable insurance companies which are not Affiliates of the Borrowers (other than captive insurance companies) insurance with respect to its properties and business, and the properties and business of its Restricted Subsidiaries, against loss or damage of the kinds customarily insured against by companies in the same or similar businesses operating in the same or similar locations (including, in any event, flood insurance to the extent required hereby), and will, upon request of the Administrative Agent, furnish to the Administrative Agent for delivery to each Lender at reasonable intervals a certificate of a Responsible Officer setting forth the nature and extent of all insurance maintained by the Borrowers and their Restricted Subsidiaries in accordance with this Section, and (c) at all times shall name the Administrative Agent as additional insured on all liability policies of the Borrowers and their Restricted Subsidiaries and as loss payee (pursuant to a loss payee endorsement approved by the Administrative Agent) on all casualty and property insurance policies of the Borrowers and their Restricted Subsidiaries.

Section 5.9.Use of Proceeds; Margin Regulations

.  The Borrowers will use the proceeds of all Loans to finance the REIT Conversion Transactions, to fund Permitted Acquisitions, for Restricted Payments permitted pursuant to Section 7.5, for the purchase of any Indebtedness assumed by the Lenders in connection with Permitted Acquisitions, to provide for working capital and capital expenditures and for other general corporate purposes of the MLP, the Borrowers and their Restricted Subsidiaries.  No part of the proceeds of any Loan will be used, whether directly or indirectly, for any

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purpose that would violate any rule or regulation of the Board of Governors of the Federal Reserve System, including Regulation T, Regulation U or Regulation X.  All Letters of Credit will be used for general corporate purposes.  The Borrowers will not request any Borrowing or Letter of Credit, and the Borrowers shall not use, and shall procure that their respective Subsidiaries and their respective directors, officers, employees and agents shall not use, the proceeds of any Borrowing or Letter of Credit (a) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (b) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, or (c) in any manner that would result in the violation of any Sanctions applicable to any party hereto.

Section 5.10.Casualty and Condemnation

.  The Borrowers (a) will furnish to the Administrative Agent and the Lenders prompt written notice of any casualty or other insured damage to any material portion of any Collateral or the commencement of any action or preceding for the taking of any material portion of any Collateral or any part thereof or interest therein under power of eminent domain or by condemnation or similar proceeding and (b) will ensure that the net cash proceeds of any such event (whether in the form of insurance proceeds, condemnation awards or otherwise) are collected and applied in accordance with the applicable provisions of this Agreement and the Collateral Documents.

Section 5.11.Cash Management

.  The Borrowers shall, and shall cause their respective Restricted Subsidiaries to:

(a)maintain its primary cash management and treasury business with SunTrust Bank or a Permitted Third Party Bank, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than (i) zero-balance accounts for the purpose of managing local disbursements, (ii) payroll, withholding and other fiduciary accounts, and (iii) petty cash account with aggregate balances not to exceed $250,000, all of which the Loan Parties may maintain without restriction) (each such deposit account, disbursement account, investment account and lockbox account, a “Controlled Account”); each Controlled Account shall be a cash collateral account, with all cash, checks and other similar items of payment in such account securing payment of the Obligations, and in which each Borrower and each of their respective Restricted Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject to Control Account Agreements;

(b)deposit promptly, and in any event no later than ten (10) Business Days after the date of receipt thereof, all cash, checks, drafts or other similar items of payment relating to or constituting payments made in respect of any and all accounts and other Collateral into Controlled Accounts, in each case except for cash and Permitted Investments the aggregate value of which does not exceed $500,000 at any time; and

(c)at any time after the occurrence and during the continuance of an Event of Default, at the request of the Required Lenders, each Borrower will, and will cause each other Loan Party to, cause all payments constituting proceeds of accounts or other Collateral to be directed into lockbox accounts under agreements in form and substance reasonably satisfactory to the Administrative Agent.

Section 5.12.Additional Subsidiaries and Collateral

.  Subject in all respects to the definition of Excluded Assets and Excluded Perfections,

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(a)in the event that, subsequent to the Closing Date, any Person becomes a Restricted Subsidiary, whether pursuant to formation, acquisition or otherwise, (i) the Administrative Borrower shall, not later than the date of the delivery of the financial statements pursuant to Section 5.1(a) or Section 5.1(b), as applicable, for the Fiscal Quarter in which such Person becomes a Restricted Subsidiary, notify the Administrative Agent and the Lenders thereof and (ii) on the date of such notice or such later date as the Administrative Agent shall agree in its sole discretion, (A) the Borrowers shall cause any such Restricted Subsidiary that is not a Foreign Subsidiary to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, executing and delivering a Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement, as applicable, and authorizing and delivering, at the request of the Administrative Agent, such UCC-1 financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents; and (B) the Borrowers shall, or shall cause the applicable Loan Party (I) to pledge all of the Capital Stock of such Restricted Subsidiary that is Collateral to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance satisfactory to the Administrative Agent, and (II) to deliver any original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank;

(b)in the event that, subsequent to the Closing Date, any Person becomes a Foreign Subsidiary, whether pursuant to formation, acquisition or otherwise, (i) the Administrative Borrower shall, not later than the date of the delivery of the financial statements pursuant to Section 5.1(a) or Section 5.1(b), as applicable, for the Fiscal Quarter in which such Person becomes a Foreign Subsidiary, notify the Administrative Agent and the Lenders thereof and (ii) to the extent such Foreign Subsidiary is owned directly by any Loan Party and the Capital Stock of such Foreign Subsidiary is Collateral, on the date of such notice or such later date as the Administrative Agent shall agree in its sole discretion, the applicable Borrower shall, or shall cause the applicable Loan Party, to (A) pledge all of the Capital Stock of such Foreign Subsidiary (or, if the Foreign Subsidiary is a CFC, 65% of the voting Capital Stock and 100% of the non-voting Capital Stock of such Foreign Subsidiary, as applicable) to the Administrative Agent as security for the Obligations pursuant to a pledge agreement in form and substance reasonably satisfactory to the Administrative Agent, (B) deliver any original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank and (C) deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches and legal opinions) and to take all such other actions as the Administrative Agent may reasonably request;

(c)in the event that, subsequent to the Closing Date, any Borrower or any Loan Party shall acquire (x) the Capital Stock of an Affiliate Fund or a Subsidiary of an Affiliate Fund or (y) any Real Estate from an Affiliate Fund or a Subsidiary of an Affiliate Fund, the relevant Borrower shall, or shall cause the relevant Loan Party to, substantially contemporaneously with the consummation of such Permitted Acquisition (or such later period as the Administrative Agent shall agree), deliver to the Administrative Agent, each of the following documents, each either substantially similar in form and substance to the form of documents delivered connection with the Formation Transactions, or reasonably satisfactory to the Administrative Agent:

(i)a counterpart of an Amendment Agreement duly executed by or on behalf of each party thereto;

(ii)an assignment agreement, in form and substance substantially similar to the Fund A Assignment or otherwise reasonably acceptable to the Administrative Agent,

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assigning any loans of such Affiliate Fund or Subsidiary of such Affiliate Fund to the Administrative Agent for the benefit of the Lenders, duly executed and delivered by or on behalf of the applicable parties thereto;

(iii)an Omnibus Mortgage Amendment with respect to the Assigned Existing Mortgages being assigned to the Administrative Agent in connection with the applicable Permitted Acquisition, duly executed and delivered by or on behalf of the applicable parties thereto;

(iv)Mortgage Assignments with respect to the Assigned Existing Mortgages being assigned to the Administrative Agent in connection with the applicable Permitted Acquisition in form and substance substantially similar to the Fund A Mortgage Assignment or otherwise reasonably acceptable to the Administrative Agent, duly executed and delivered by or on behalf of the applicable parties thereto;

(v)upon the request of the Administrative Agent, an Assignment Endorsement and a Modification Endorsement to one existing title insurance policy, selected by the Administrative Agent in its sole discretion, in each state in which any Mortgaged Property under the Assigned Existing Mortgages being assigned to the Administrative Agent in connection with the applicable Permitted Acquisition is located (including, at the request of the Administrative Agent, in any Covered State), insuring that the Assigned Existing Mortgage covered thereby, as amended by the applicable Omnibus Mortgage Amendment, grants valid and enforceable mortgage Liens in favor of the Administrative Agent on the Mortgaged Property covered by such Assigned Existing Mortgage; provided that with respect to any Mortgaged Property in any Covered State, the Administrative Agent shall not make any such requests if an Assignment Endorsement and Modification Endorsement has been delivered with respect to such Covered State during the twelve-month period prior to such Permitted Acquisition; provided further, that notwithstanding the foregoing proviso, the Administrative Agent may make any such requests if it reasonably believes that a Change in Law has occurred such that the Mortgages in such Covered State that are being assigned in connection with the applicable Acquisition, as modified by the existing form of Omnibus Mortgage Amendment, may not be effective to grant a mortgage Lien in such Covered State to the Secured Parties securing the Obligations in the amount of (A) $390,000,000 or (B) with respect to Covered States where a mortgage recording tax was paid based on the secured amount in an Existing Mortgage prior to the assignment of such Existing Mortgage to the Administrative Agent in connection with the applicable Permitted Acquisition, the secured amount in such applicable Existing Mortgage.  For the avoidance of doubt, with respect to any Existing Mortgage to which clause (B) above applies, once such Existing Mortgage is assigned to the Administrative Agent hereunder and modified by the existing form of Omnibus Mortgage Amendment, the secured amount therein will remain the same as in such Existing Mortgage prior to the assignment and modification thereof;

(vi)access to digital copies of any existing Phase I Environmental Site Assessment Reports that such Affiliate Fund or Subsidiary of an Affiliate Fund has and that cover properties subject to any Existing Mortgage with respect to the applicable Permitted Acquisition;

(vii)to the extent not covered by the assignment delivered pursuant to subsection (ii) above, copies of the duly executed payoff letters or assignments of existing debt in connection with the applicable Permitted Acquisition, executed by the administrative agent under the applicable existing credit agreement being assigned in connection with the applicable Permitted Acquisition, together with (A) UCC-3 assignments or other appropriate termination statements, either assigning or releasing all liens of the applicable existing lenders upon any of

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the personal property of the applicable Affiliate Fund or its Subsidiaries, (B) assignments, cancellations or releases, assigning or releasing all liens of the applicable existing lenders upon any of the real property of the applicable Affiliate Fund or its Subsidiaries, and (C) any other assignments, releases, terminations or other documents reasonably required by the Administrative Agent to evidence the assignment of the applicable existing debt; and

(d)the Borrowers agree that, following the delivery of any Collateral Documents required to be executed and delivered by this Section, the Administrative Agent shall have a valid and enforceable, first priority perfected Lien on the property required to be pledged pursuant to this Section (to the extent that such Lien can be perfected by execution, delivery and/or recording of the Collateral Documents or UCC-1 financing statements, or possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2.  All actions to be taken pursuant to this Section shall be at the expense of the Borrowers or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.

Section 5.13.MLP Guaranty

.  The MLP shall at all times (a) unconditionally guarantee the prompt payment and performance of the Obligations and (b) grant a perfected, first priority security interest in and Lien on all of its assets, including the Capital Stock of the Borrowers owned by the MLP to the Administrative Agent for the benefit of the Secured Parties as security for the Obligations, in each case pursuant to the Guaranty and Security Agreement; provided that recourse to the MLP under such Guaranty and Security Agreement shall extend solely to the assets of the MLP (including the Capital Stock of the Borrowers owned by the MLP) and shall in no case extend to the General Partner or to any assets of the General Partner.

Section 5.14.Further Assurances

.  Each Borrower will, and will cause each other Loan Party to, execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements, fixture filings, Mortgages and other documents), which may be required under any applicable law, or which the Administrative Agent or the Required Lenders may reasonably request, to effectuate the transactions contemplated by the Loan Documents or to grant, preserve, protect or perfect the Liens created by the Collateral Documents or the validity or priority of any such Lien, all at the expense of the Loan Parties.  The Borrowers also agree to provide to the Administrative Agent, from time to time upon request, evidence reasonably satisfactory to the Administrative Agent as to the perfection and priority of the Liens created or intended to be created by the Collateral Documents.

Section 5.15.Designation and Conversion of Restricted and Unrestricted Subsidiaries

(a).  

(a)Unless designated after the Closing Date in writing to the Administrative Agent pursuant to this Section 5.15, any Person that becomes a Subsidiary of any Borrower or any of their respective Restricted Subsidiaries after the Closing Date shall be classified as a Restricted Subsidiary.

(b)The Borrowers may designate any Subsidiary (including a newly formed or newly acquired Subsidiary) as an Unrestricted Subsidiary, provided that (i) any such designation shall be deemed to be an Investment on the date of such designation in an Unrestricted Subsidiary in an amount equal to the sum, without duplication, of (A) the fair market value of the outstanding Investments of the Borrowers and the Restricted Subsidiaries in such Unrestricted Subsidiary and (B) the aggregate principal amount of any Indebtedness owed by such Unrestricted Subsidiary to the Borrowers and their Restricted Subsidiaries immediately prior to such designation, all calculated, on a consolidated basis in accordance with GAAP, (ii) the representations and warranties of the Loan Parties contained in each of the Loan Documents shall be true and correct in all material respects on and as of the date of such designation as if

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made on and as of such date or, if stated to have been made expressly as of an earlier date, were true and correct all material respects as of such earlier date (except to the extent that any such representations are qualified as to “materiality”, “Material Adverse Effect” or similar language, in which case such representations and warranties shall be true and correct in all respects), (iii) after giving effect to such designation, no Default or Event of Default would exist, (iv) immediately after giving effect to such designation, the Borrowers and their Restricted Subsidiaries shall be in compliance with the Incurrence Test, (v) such Subsidiary shall be treated as an “Unrestricted Subsidiary” for purposes of any indenture or agreement governing notes which is permitted under the terms of this Agreement and to which any Loan Party is or becomes a party, (vi) other than with respect to (A) any designation of a Securitization Subsidiary or (B) any designation of an existing Restricted Subsidiary being contributed to a Securitization Subsidiary to the extent such contribution is permitted by Section 7.4(d) or Section 7.4(j), the Investment represented by such designation shall be permitted by Section 7.4 and (vii) the Administrative Borrower shall provide to the Administrative Agent an Officer’s Certificate in form reasonably satisfactory to the Administrative Agent to the effect that each of the foregoing conditions has been satisfied.  Except as provided in this Section, no Restricted Subsidiary may be designated as an Unrestricted Subsidiary.

(c)The Borrowers may designate any Unrestricted Subsidiary to be a Restricted Subsidiary if after giving effect to such designation, (i) the representations and warranties of the Loan Parties contained in each of the Loan Documents are true and correct all material respects on and as of the date of such designation as if made on and as of the date of such designation or, if stated to have been made expressly as of an earlier date, were true and correct in all material respects as of such earlier date (except to the extent that any such representations are qualified as to “materiality”, “Material Adverse Effect” or similar language, in which case such representations and warranties shall be true and correct in all respects), (ii) after giving effect to such designation, no Default or Event of Default would exist and (iii) immediately after giving effect to such designation, the Borrowers and their Restricted Subsidiaries shall be in compliance with the Incurrence Test.  

Section 5.16. Interest Rate Protection

.  Commencing as promptly as practicable, and in any event within 120 days after the Closing Date, the Borrowers will maintain in effect at all times one or more Hedging Transactions on such terms and with such parties as shall be reasonably satisfactory to the Administrative Agent, the effect of which shall be to fix or limit the interest cost to the Borrowers such that either as a result of such Hedging Transactions or fixed rate Indebtedness of the Borrower and its Restricted Subsidiaries, at no time will less than 50% of all Indebtedness of the Borrowers and their Restricted Subsidiaries effectively be fixed rate Indebtedness for any period of ninety (90) consecutive days.

Section 5.17.Post-Closing Matters

.  Within ten (10) days of the Closing Date, or such later date as the Administrative Agent shall agree in its sole discretion, the Administrative Agent shall have received all original certificates evidencing all issued and outstanding certificated shares of Capital Stock of the Subsidiaries owned by a Loan Party (subject in all respects to the definition of Excluded Assets) and not delivered to the Administrative Agent prior to the date hereof, together with stock or membership interest powers or other appropriate instruments of transfer executed in blank.

ARTICLE VI

FINANCIAL COVENANTS

The Borrowers covenant and agree that until Payment in Full of the Obligations:

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Section 6.1.Leverage Ratio

.  The Borrowers will maintain, as of the end of each Fiscal Quarter, commencing with the Fiscal Quarter ending on September 30, 2017, a Leverage Ratio of not greater than 8.5:1.0; provided that, upon the consummation of a Permitted Acquisition, subject to compliance with the Specified Exception Conditions, the Borrowers may elect to take a Specified Exception to the Leverage Ratio, with such Specified Exception to be effective only during the Specified Exception Effective Period.  

Section 6.2.Interest Coverage Ratio

.  The Borrowers will maintain, as of the end of each Fiscal Quarter, commencing with the Fiscal Quarter ending on September 30, 2017, an Interest Coverage Ratio of not less than 2.0:1.0.

ARTICLE VII

NEGATIVE COVENANTS

Each Borrower and, where applicable, the MLP, each covenant and agree that until Payment in Full of the Obligations:

Section 7.1.Indebtedness and Preferred Equity

.  Neither the MLP nor any Borrower will, and the Borrowers will not permit any of their respective Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness, except:

(a)Indebtedness created pursuant to the Loan Documents;

(b)Indebtedness of the MLP, the Borrowers and their Restricted Subsidiaries existing on the date hereof and set forth on Schedule 7.1 and any Permitted Refinancing thereof;

(c)Indebtedness of the MLP or any Borrower owing to any Restricted Subsidiary and of any Restricted Subsidiary owing to the MLP, any Borrower or any other Restricted Subsidiary;

(d)Guarantees by the MLP or any Borrower of Indebtedness of the MLP, any Borrower or any Subsidiary and by any Restricted Subsidiary of Indebtedness of the MLP, any Borrower or any other Subsidiary; provided that Guarantees by any Loan Party of Indebtedness of any Unrestricted Subsidiary shall be subject to Section 7.4;

(e)Hedging Obligations permitted by Section 7.10;

(f)Indebtedness of any Loan Party or Restricted Subsidiary to any Unrestricted Subsidiary that is permitted pursuant to Section 7.4;

(g)Indebtedness secured by a Lien permitted pursuant to Section 7.2(g) and any Permitted Refinancing thereof; provided that after giving effect to the incurrence or assumption of such Indebtedness, the Borrowers shall be in compliance with the Incurrence Test;

(h)Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business;

(i)Indebtedness consisting of the financing of insurance premiums in the ordinary course of business;

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(j)Indebtedness of the MLP, the Borrowers or their respective Restricted Subsidiaries in the form of senior unsecured notes in an aggregate amount not to exceed at any one time outstanding (i) at a time occurring during a period that is not an EBITDA Threshold Period, $10,000,000 and (ii) at a time occurring during an EBITDA Threshold Period, $20,000,000; provided that (A) after giving effect to the incurrence of such Indebtedness and the application of the proceeds thereof, the Borrowers shall be in compliance with the Incurrence Test and (B) the maturity date for and any amortization of such Indebtedness shall not be or begin earlier than the date that is one year after the Maturity Date;

(k)Indebtedness of the MLP, the Borrowers or their respective Restricted Subsidiaries in the form of subordinated unsecured notes in an aggregate amount not to exceed at any one time outstanding (i) at a time occurring during a period that is not an EBITDA Threshold Period, $10,000,000 and (ii) at a time occurring during an EBITDA Threshold Period, $20,000,000; provided that (A) after giving effect to the incurrence of such Indebtedness and the application of the proceeds thereof, the Borrowers shall be in compliance with the Incurrence Test and (B) the maturity date for and any amortization of such Indebtedness shall not be or begin earlier than the date that is one year after the Maturity Date; or

(l)other unsecured Indebtedness of the MLP, the Borrowers or their respective Restricted Subsidiaries in the form of senior or subordinated unsecured notes; provided that (i) after giving effect to the incurrence of such Indebtedness and the application of the proceeds thereof, the Borrowers shall be in compliance with the Incurrence Test, (ii) the maturity date for and any amortization of such Indebtedness shall not be or begin earlier than the date that is one year after the Maturity Date, (iii) any such Indebtedness whether in the form of either senior or subordinated unsecured notes shall otherwise be on terms and conditions no more restrictive than the terms and conditions contained herein and (iv) with respect to any subordinated Indebtedness issued pursuant to this subsection (l), such Indebtedness shall (A) be subordinated to the Obligations on terms reasonably acceptable to the Administrative Agent, (B) be on terms and conditions less restrictive than the terms and conditions contained herein, and (C) any financial covenants contained in such Indebtedness shall be less restrictive than those contained herein to the same degree as is customary based on market conditions at the time of the issuance of such Indebtedness.

The Borrowers will not, and will not permit any Restricted Subsidiary to, issue any Disqualified Capital Stock.

Section 7.2.Liens

.  The Borrowers will not, and will not permit any of their respective Restricted Subsidiaries to, create, incur, assume or suffer to exist any Lien on any of its assets or property now owned or hereafter acquired, except:

(a)Liens securing the Obligations; provided that no Liens may secure Hedging Obligations or Bank Product Obligations without securing all other Obligations on a basis at least pari passu with such Hedging Obligations or Bank Product Obligations and subject to the priority of payments set forth in Section 2.20 and Section 8.2;

(b)Permitted Encumbrances;

(c)Liens on any property or asset of any Borrower or any of their respective Restricted Subsidiaries existing on the date hereof and set forth on Schedule 7.2; and Permitted Refinancings with respect to such obligations; provided that such Liens shall not apply to any other property or asset of any Borrower or any Subsidiary;

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(d)Liens arising by virtue of deposits made in the ordinary course of business to secure liability for premiums to insurance carriers;

(e)Liens on cash and Permitted Investments deposited to discharge, redeem or defease Indebtedness that was permitted to so be repaid;

(f)(i) Liens solely on any cash earnest money deposits made by any Borrower or any of their respective Subsidiaries and (ii) restrictions on transfers of assets that are subject to sale or transfer pursuant to purchase and sale arrangements, in each case under this clause (f) in connection with any letter of intent or purchase agreement in respect of an Acquisition, Investment or disposition permitted by this Agreement;

(g)Liens on or in any equipment to secure the purchase price or the cost of such equipment or to secure Indebtedness incurred solely for the purpose of financing the acquisition, of such equipment (including Liens securing any Capital Lease Obligations); provided that (i) any such Lien secures Indebtedness permitted by Section 7.1(g), (ii) any such Lien attaches to such asset concurrently or within ninety (90) days after the acquisition thereof (or, in the case of a Permitted Refinancing, at the time of such Permitted Refinancing), (iii) any such Lien does not extend to any other asset other than accessions to such asset and reasonable extensions of such asset, and (iv) the Indebtedness secured thereby does not exceed the cost (including interest costs) of acquiring such fixed or capital assets;

(h)licenses and sub-licenses of Intellectual Property in the ordinary course of business;

(i)in the case of any joint ventures, any put and call arrangements or restrictions on Disposition related to its Capital Stock set forth in its organizational documents or any related joint venture or similar agreement; and

(j)Liens on insurance policies and proceeds and premiums thereof or related thereto, securing Indebtedness permitted under Section 7.1(i).

Section 7.3.Fundamental Changes

.

(a)The Borrowers will not, and will not permit any of their respective Restricted Subsidiaries to, merge into or consolidate into any other Person, or permit any other Person to merge into or consolidate with it, or sell, lease, transfer or otherwise dispose of (in a single transaction or a series of transactions) all or substantially all of its assets (in each case, whether now owned or hereafter acquired) or all or substantially all of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve; provided that if, at the time thereof and immediately after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (i) any Borrower may merge or consolidate with a Person if a Borrower is the surviving Person; (ii) a Restricted Subsidiary that is a Loan Party may merge or consolidate with a Person if the surviving Person is or becomes a Loan Party; (iii) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with a Person (other than a Loan Party) if the surviving Person is or becomes a Restricted Subsidiary; (iv) any Borrower may liquidate or dissolve into another Borrower; (v) any Restricted Subsidiary may liquidate or dissolve into a Loan Party; (vi) any Restricted Subsidiary that is not a Loan Party may liquidate or dissolve into another Restricted Subsidiary that is not a Loan Party; and (vii) any Borrower or any Restricted Subsidiary may sell, lease, transfer or otherwise dispose of all or substantially all of its assets or all or substantially all of the stock of any of its Subsidiaries in a transaction permitted pursuant to Section 7.6.

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(b)The Borrowers will not, and will not permit any of their respective Restricted Subsidiaries to, engage in any business other than businesses of the type conducted by the Borrowers and their Restricted Subsidiaries on the date hereof and businesses reasonably related thereto and reasonable extensions thereof.

Section 7.4.Investments, Loans

.  The Borrowers will not, and will not permit any of their respective Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any Capital Stock, evidence of Indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit (all of the foregoing being collectively called “Investments”), except:

(a)Investments (other than Permitted Investments) existing on the date hereof and set forth on Schedule 7.4 (including Investments in Subsidiaries);

(b)Permitted Investments;

(c)Guarantees by the Borrowers and their Restricted Subsidiaries constituting Indebtedness permitted by Section 7.1; provided that (i) the aggregate amount of Indebtedness of Unrestricted Subsidiaries that is Guaranteed by any Loan Party or any Restricted Subsidiary shall be subject to the proviso to subsection (d) of this Section and (ii) the aggregate amount of Indebtedness of Foreign Subsidiaries that is Guaranteed by any Loan Party shall be subject to the proviso to subsection (e) of this Section;

(d)Investments made by any Borrower or any Restricted Subsidiary in or to any Unrestricted Subsidiary; provided that both before and after giving effect to any Investment made pursuant to this subsection (d), the Borrowers shall be in compliance with the Incurrence Test;

(e)Investments made by any Borrower in or to any Restricted Subsidiary and by any Restricted Subsidiary to any Borrower or in or to another Restricted Subsidiary; provided that both before and after giving effect to any Investment made pursuant to this subsection (e), the Borrowers shall be in compliance with the Incurrence Test;

(f)loans or advances to employees, officers or directors of the MLP, any Borrower or any of their respective Restricted Subsidiaries in the ordinary course of business for travel, relocation and related expenses; provided that the aggregate amount of all such loans and advances does not exceed $1,000,000 at any time outstanding;

(g)Hedging Transactions permitted by Section 7.10;

(h)the REIT Conversion Transactions;

(i)Permitted Acquisitions;

(j)the sale or other disposition of assets to a Securitization Subsidiary in connection with a Permitted Securitization Transaction;

(k)(i) payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses in accordance with GAAP and (ii) moving,

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entertainment and travel expenses, drawing accounts and similar expenditures made to officers, directors and employees in the ordinary course of business, not to exceed $250,000 in the aggregate at any time outstanding;

(l)Investments received in satisfaction of judgments or in settlements of debt or compromises of obligations incurred in the ordinary course of business;

(m)any Investment consisting of prepaid expenses, negotiable instruments held for collection and lease, endorsements for deposit or collection in the ordinary course of business, utility or workers compensation, performance and similar deposits entered into as a result of the operations of the business in the ordinary course of business;

(n)licenses and sublicenses of Intellectual Property in the ordinary course of business; and

(o)other Investments not to exceed $5,000,000 in the aggregate at any time outstanding; provided that both before and after giving effect to any Investment made pursuant to this subsection (o), the Borrowers shall be in compliance with the Incurrence Test.

For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment but determined net of all payments received with respect to such Investment whether constituting sale proceeds thereof, dividends, distributions, interest, return of capital or otherwise, and the amount of any Investment constituting a Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith.

Section 7.5.Restricted Payments

.  The MLP and the Borrowers will not, and will not permit any of their Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:

(a)Restricted Payments by the MLP up to the amount of Available Cash; provided that both before and after giving effect to any Restricted Payment made pursuant to this subsection (a), (i) no Default or Event of Default shall have occurred or be continuing and (ii) the Borrowers shall be in compliance with the Incurrence Test, as demonstrated by a Pro Forma Compliance Certificate delivered to the Administrative Agent;

(b)Restricted Payments made by (i) any Borrower to the MLP or Landmark REIT, and (ii) any Restricted Subsidiary to any Borrower or to another Restricted Subsidiary that is a wholly-owned Subsidiary of any Borrower;

(c)Restricted Payments made by any Restricted Subsidiary to the owners of the Capital Stock of such Restricted Subsidiary, pro rata based on the ownership of Capital Stock of such Restricted Subsidiary;

(d)Restricted Payments payable by the MLP, any Borrower or any Restricted Subsidiary solely in interests of any of its Capital Stock other than Disqualified Capital Stock;

(e)repurchases, redemptions or other acquisitions or retirements for value of (or Restricted Payment to the MLP to permit the MLP to repurchase, redeem or otherwise acquire or retire)

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any Capital Stock of the MLP, any Borrower or any of their respective Restricted Subsidiaries held by any current or former officer, director, consultant, or employee of the MLP, any Borrower or any Subsidiary of any Borrower or, to the extent such Capital Stock was issued as compensation for services rendered on behalf of the MLP, any Borrower or any other Loan Party, any employee of the MLP, pursuant to any equity subscription agreement, stock option agreement, shareholders’, members’ or partnership agreement or similar agreement, plan or arrangement or any Plan and the Borrowers and the Restricted Subsidiaries may declare and pay Restricted Payments to the MLP, the Borrowers or any other Restricted Subsidiary of the Borrowers the proceeds of which are used for such purposes; provided, that the aggregate amount of such purchases or redemptions in cash under this Section 7.5(e) shall not exceed in any fiscal year $5,000,000 (plus the amount of net proceeds received by the MLP or the Borrowers during such calendar year from sales of Capital Stock of the MLP to directors, consultants, officers or employees of the MLP, any Borrower or any of their respective Affiliates in connection with permitted employee compensation and incentive arrangements); provided that both before and after giving effect to any Restricted Payment made pursuant to this this Section 7.5(e), (i) no Default or Event of Default shall have occurred or be continuing and (ii) the Borrowers shall be in compliance with the Incurrence Test;

(f)payment of management fees permitted to be paid pursuant to Section 7.7; provided that both before and after giving effect to any Restricted Payment made pursuant to this Section 7.5(f), (i) no Default or Event of Default shall have occurred or be continuing and (ii) the Borrowers shall be in compliance with the Incurrence Test;

(g)any payments of principal and interest with respect to Indebtedness subordinated in right of payment to the Obligations, but only to the extent that such payments are permitted pursuant to the applicable subordination agreement and payments of principal, interest, fees and premiums thereon funded with proceeds of a Permitted Refinancing permitted pursuant to Section 7.1; and

(h)the MLP, the Borrowers and the Restricted Subsidiaries may make Restricted Payments to allow the payment of cash in lieu of the issuance of fractional shares upon the exercise of options or, warrants or rights or upon the conversion or exchange of or into Capital Stock of the MLP.

Section 7.6.Sale of Assets

.  The Borrowers will not, and will not permit any of their respective Restricted Subsidiaries to, convey, sell, lease, assign, transfer or otherwise dispose of any of its assets, business or property or, in the case of any Restricted Subsidiary, any shares of such Restricted Subsidiary’s Capital Stock (each a “Disposition”), in each case whether now owned or hereafter acquired, to any Person other than a Borrower or a Restricted Subsidiary, except:

(a)the Disposition of obsolete or worn out property or other property not necessary for operations disposed of in the ordinary course of business;

(b)the Disposition of Permitted Investments in the ordinary course of business;

(c)the Disposition of Other Assets, Easements or Fee Owned Properties (or 100% of the Capital Stock of any Restricted Subsidiary that owns Other Assets, Easements or Fee Owned Properties) for fair market value; provided that before and after giving effect to such Disposition (i) no Default or Event of Default shall have occurred and be continuing and (ii) the Borrowers shall be in compliance with the Incurrence Test;

(d)Dispositions consisting of (i) Investments permitted pursuant to Section 7.4(d), Section 7.4(e), Section 7.4(j), or Section 7.4(o) and (ii) Restricted Payments permitted pursuant to Section 7.5(b), Section 7.5(c) or Section 7.5(d); and

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(e)the sale or other disposition of assets to a Securitization Subsidiary in connection with a Permitted Securitization Transaction.

Section 7.7.Transactions with Affiliates

.  The Borrowers will not, and will not permit any of their respective Restricted Subsidiaries to, sell, lease or otherwise transfer any property or assets to, or purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other transactions with, any of its Affiliates, except:

(a)at prices and on terms and conditions, taken as a whole, not less favorable to such Borrower or such Subsidiary than could be obtained on an arm’s-length basis from unrelated third parties;

(b)the REIT Conversion Transactions;

(c)the Permitted Acquisitions that are approved in accordance with the provisions of the MLP Partnership Agreement;

(d)transactions between or among any Borrower and any Restricted Subsidiary not involving any other Affiliates;

(e)any transaction in respect of which any Borrower delivers to the Administrative Agent (for delivery to the Lenders) a letter addressed to any Borrower from an accounting, appraisal or investment banking firm, in each case of nationally recognized standing, that is (i) in the good faith determination of such Borrower, qualified to render such letter and (ii) reasonably satisfactory to the Administrative Agent, which letter states that such transaction is on terms, taken as a whole, that are no less favorable to the applicable Borrower or the applicable Restricted Subsidiary than would be obtained in a comparable arm’s-length transaction with a Person that is an unrelated third party;

(f)employment and severance arrangements between any Borrower or any of their respective Subsidiaries and their respective officers and employees in the ordinary course of business and transactions pursuant to equity incentive plans and employee benefit plans and arrangements;

(g)the payment of customary fees and reasonable out of pocket costs to, and indemnities provided on behalf of, directors, managers, officers, employees and consultants of the MLP, the Borrowers and their Subsidiaries in the ordinary course of business to the extent attributable to the ownership, management or operation of the MLP, the Borrowers and their Subsidiaries;

(h)transactions approved by the Conflicts Committee;

(i)transactions contemplated by or otherwise authorized in accordance with the terms of the MLP Partnership Agreement or the Omnibus Agreement;

(j)transactions existing on the date hereof and set forth on Schedule 7.7;

(k)any Investment permitted by Section 7.4;

(l)any Restricted Payment permitted by Section 7.5; and

(m)the provision of cash management or other corporate services to an Unrestricted Subsidiary by a Borrower or a Restricted Subsidiary.

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Section 7.8.Restrictive Agreements

.  The Borrowers will not, and will not permit any of their respective Restricted Subsidiaries to, directly or indirectly, enter into, incur or permit to exist any agreement that prohibits, restricts or imposes any condition upon (a) the ability of any Borrower or any of their respective Restricted Subsidiaries to create, incur or permit any Lien as security for the Obligations upon any of its assets or properties, whether now owned or hereafter acquired, or (b) the ability of any of their Restricted Subsidiaries to pay dividends or other distributions with respect to its Capital Stock, to make or repay loans or advances to any Borrower or any other Restricted Subsidiary thereof, to Guarantee Indebtedness of any Borrower or any other Restricted Subsidiary thereof or to transfer any of its property or assets to any Borrower or any other Restricted Subsidiary thereof; provided that (i) the foregoing shall not apply to restrictions or conditions imposed by law or by this Agreement or any other Loan Document, (ii) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary (or the assets of a Borrower or a Restricted Subsidiary) pending such sale, provided such restrictions and conditions apply only to the Restricted Subsidiary that is (or the assets of a Borrower or a Restricted Subsidiary that are) sold and such sale is permitted hereunder, (iii) the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions and conditions apply only to the property or assets securing such Indebtedness and the obligors with respect to such Indebtedness, (iv) clause (a), and to the extent that it relates to a dividend or distribution of the lease or any interest therein, clause (b) above shall not apply to customary provisions in leases and other contracts restricting the assignment thereof, (v) the foregoing shall not apply to restrictions contained in any other Indebtedness permitted pursuant to Section 7.1(b), to the extent the restrictions thereunder are no more restrictive, in any material respect, than such restrictions contained in such Indebtedness on the Closing Date; (vi) the foregoing shall not apply to restrictions contained in any Indebtedness permitted pursuant to Section 7.1(j), (k) or (l), to the extent the restrictions thereunder are no more restrictive than such restrictions contained herein; (vii) the foregoing shall not apply to customary restrictions on the disposition of equity interests in a joint venture in the agreements governing such joint venture arrangement; and (viii) the foregoing shall not apply to customary non-assignment provisions in contracts or other customary restrictions arising under licenses and other contracts entered into in the ordinary course of business; provided that such restrictions are limited to assets subject to such licenses and contracts.

Section 7.9.Sale and Leaseback Transactions

.  The Borrowers will not, and will not permit any of their respective Restricted Subsidiaries to, enter into any arrangement, directly or indirectly, whereby it shall sell or transfer any property, real or personal, used or useful in its business, whether now owned or hereinafter acquired, and thereafter rent or lease such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred.

Section 7.10.Hedging Transactions

.  The Borrowers will not, and will not permit any of their respective Restricted Subsidiaries to, enter into any Hedging Transaction, other than (a) Hedging Transactions required by Section 5.16 and (b) Hedging Transactions entered into in the ordinary course of business to hedge or mitigate risks to which any Borrower or any of their respective Restricted Subsidiaries is exposed in the conduct of its business or the management of its liabilities.  Solely for the avoidance of doubt, the Borrowers acknowledge that a Hedging Transaction entered into for speculative purposes or of a speculative nature (which shall be deemed to include any Hedging Transaction under which any Borrower or any of their respective Restricted Subsidiaries is or may become obliged to make any payment (i) in connection with the purchase by any third party of any Capital Stock or any Indebtedness or (ii) as a result of changes in the market value of any Capital Stock or any Indebtedness) is not a Hedging Transaction entered into in the ordinary course of business to hedge or mitigate risks.

Section 7.11.Amendment to Material Documents

.  Neither the MLP nor any Borrower will, and the Borrowers will not permit any of their respective Restricted Subsidiaries to,

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