Common use of Existing Debt Clause in Contracts

Existing Debt. During the period between Seller’s and Buyer’s execution of this Agreement and the Close of Escrow or termination of this Agreement, Seller shall perform all of its obligations under the Existing Debt Documents and shall not amend any of the Existing Debt Documents without Buyer’s prior written consent, which consent may be withheld in Buyer’s sole and absolute discretion. Notwithstanding the foregoing, if any amendment to the Existing Debt Documents is required by law or by the Existing Lender (a “Required HUD Amendment”), Buyer’s prior written consent thereto shall not be required and the execution of such amendment shall not constitute a breach of this Agreement. For an amendment to the Existing Debt Documents to be deemed required by the Existing Lender, the Existing Lender must have the legal right to require Seller to execute such amendment whether or not Seller consents to the same. Seller shall notify Buyer in writing of any Required HUD Amendment and shall provide Buyer with a copy thereof within five (5) days of the mutual execution thereof. If Buyer receives a copy of a Required HUD Amendment, Buyer shall have ten (10) business days (and if necessary, the Close of Escrow shall be extended to provide for such ten (10) business day period) to elect, in its sole and absolute discretion, to terminate this Agreement by written notice to Seller, in which case, neither party shall have any further rights or obligations hereunder (other than those obligations which expressly survive the termination of this Agreement) and any money or documents in Escrow shall be returned to the party depositing the same, except that Buyer and Seller shall each be responsible for one-half of any title or Escrow cancellation fee. Notwithstanding the foregoing, Buyer may only elect to terminate this Agreement following its receipt of a Required HUD Amendment if, in Buyer’s commercially reasonable judgment, the same (x) materially and adversely affects the underlying economics of the Existing Debt, including, without limitation, the interest rate, the principal amortization, prepayment terms or maturity date, (y) imposes any new, or augments any existing, materially adverse non-monetary obligations under the Existing Debt Documents whether or not the same can be wholly assumed by Facility Tenant under the Facility Lease or (z) materially and adversely affects the marketability, salability or value of the Property or any portion thereof.

Existing Debt. During the period between Seller’s and Buyer’s execution of this Agreement and the Close of Escrow or termination of this Agreement, Seller shall perform all of its obligations The lender(s) under the Existing Debt Documents and shall not amend any have approved Buyer’s or it Affiliate(s)’ assumption of the Existing Debt Documents without Buyer’s prior written consentin accordance with the provisions of Section 2.1(b) above, and such lender(s), Seller and Third-Party Transferor, as applicable, shall have executed or caused to be executed all necessary documents and instruments (including any legal opinions) to be executed to evidence such approval as required by such lender(s), which consent may documents and instruments shall be withheld in Buyer’s sole and absolute a form acceptable to Buyer in its reasonable discretion. Notwithstanding In no way limiting the generality of the foregoing, if any amendment in connection with its efforts to assume of the Existing Debt, Buyer shall have the right to request certain modifications to the Existing Debt Documents is required by law from the lender(s) thereunder as it deems necessary or by appropriate in its reasonable discretion. Without in any way limiting the Existing Lender (a “Required HUD Amendment”)generality of the foregoing, Buyer’s prior written consent thereto it shall not be required and the execution of such amendment shall not constitute a breach of this Agreement. For an amendment reasonable for Buyer to request modifications to the Existing Debt Documents (i) to be deemed required permit (without the prior consent of the lender(s) thereunder) transactions involving (a) the corporate reorganization of the borrower thereunder, so long as Buyer or HCP at all times controls, directly or indirectly, such borrower or (b) the issuance, sale, conveyance or transfer of any stock or assets of Buyer or HCP (including by the Existing Lendermerger, the Existing Lender must have the legal right to require Seller to execute such amendment consolidation, transfer of assets, stock or other equity interests whether or not Seller consents Buyer is the surviving or disappearing entity), (ii) to waive any requirements set forth therein for the funding and maintenance by the borrower thereunder of any impound, escrow or other reserve or similar accounts, (iii) to permit the lease of the Facilities by Lessor to Lessee pursuant to the same. Seller shall notify Buyer in writing of any Required HUD Amendment and shall provide Buyer with a copy thereof within five Lease, (5) days of the mutual execution thereof. If Buyer receives a copy of a Required HUD Amendment, Buyer shall have ten (10) business days (and if necessary, the Close of Escrow shall be extended to provide for such ten (10) business day periodiv) to elect, in its sole and absolute discretion, terminate any cross-collateralization or cross-default provisions relating to terminate this Agreement by written notice to Seller, in which case, neither party shall have any further rights or obligations hereunder (indebtedness other than those obligations which expressly survive the termination of this Agreement) and any money or documents in Escrow shall be returned to the party depositing the same, except that Buyer and Seller shall each be responsible for one-half of any title or Escrow cancellation fee. Notwithstanding the foregoing, Buyer may only elect to terminate this Agreement following its receipt of a Required HUD Amendment if, in Buyer’s commercially reasonable judgment, the same (x) materially and adversely affects the underlying economics of the Existing Debt, including, without limitation, (v) to terminate any financial reporting requirements imposed upon the interest rate, borrower thereunder to provide to the principal amortization, prepayment terms or maturity datelender(s) audited financial statements of such borrower, (yvi) imposes that have been previously agreed upon by the lender(s) thereunder in connection with prior debt assumptions consummated between such lender(s) and Buyer or HCP or their Affiliate(s), and (vii) to address and/or amend any newprovisions thereof that would have, in the reasonable opinion of Buyer, an adverse affect on the business or augments any existing, materially adverse non-monetary obligations under the Existing Debt Documents whether or not the same can be wholly assumed by Facility Tenant under the Facility Lease or (z) materially and adversely affects the marketability, salability or value operations of the Property borrower thereunder or any portion thereofof its Affiliates.

Existing Debt. During the period between Seller’s and Buyer’s execution of this Agreement and Prior to the Close of Escrow or termination of this AgreementEscrow, Seller Buyer shall perform all of its obligations under the Existing Debt Documents and shall not amend any of the Existing Debt Documents without Buyer’s prior written consent, which consent may be withheld in Buyer’s sole and absolute discretion. Notwithstanding the foregoing, if any amendment to the Existing Debt Documents is required by law or by the Existing Lender (a “Required HUD Amendment”), Buyer’s prior written consent thereto shall not be required and the execution of such amendment shall not constitute a breach of this Agreement. For an amendment to the Existing Debt Documents to be deemed required by receive from the Existing Lender, the Existing Lender must have Lender’s written and unconditional approval for the legal right to require Seller to execute such amendment whether or not Seller consents to the same. Seller shall notify Buyer in writing of any Required HUD Amendment and shall provide Buyer with a copy thereof within five (5) days assumption of the mutual execution thereof. If Existing Debt on terms acceptable to Buyer receives a copy of a Required HUD Amendment, Buyer shall have ten (10) business days (and if necessary, the Close of Escrow shall be extended to provide for such ten (10) business day period) to elect, in its sole but reasonable discretion (the “TPA Approval”). Seller agrees that, at its own cost and absolute discretionexpense, it shall take all actions reasonably necessary to terminate this Agreement permit Buyer to assume the Existing Debt, including providing such information concerning Seller and the operation of the Property and executing and delivering such documents as required by written notice the Existing Lender; provided however, nothing herein shall be construed as requiring Seller to Seller, pay Buyer’s legal fees or other expenses incurred by Buyer in which case, neither party shall have any further rights or obligations hereunder (connection with securing the TPA Approval other than those obligations which expressly survive the termination of this Agreement) Assumption Fees (as defined below). Seller acknowledges and any money or documents agrees that in Escrow shall be returned to the party depositing the same, except that Buyer and Seller shall each be responsible for one-half of any title or Escrow cancellation fee. Notwithstanding the foregoing, Buyer may only elect to terminate this Agreement following its receipt of a Required HUD Amendment if, in connection with Buyer’s commercially reasonable judgment, the same (x) materially and adversely affects the underlying economics assumption of the Existing Debt, (i) the form of the Facility Lease (as defined below) shall be modified as necessary to (A) incorporate the provisions and requirements generally imposed by HUD in connection with a facility lease relating to a skilled nursing facility encumbered with a HUD insured mortgage, including, without limitation, requirements that (x) Facility Tenant (as defined below) comply with the interest rate, operational requirements set forth in the principal amortization, prepayment terms or maturity dateapplicable Existing Debt Documents (including the obligations under the fee owner’s regulatory agreement), (y) imposes any newFacility Tenant enter into (or amend as needed, to the extent the Facility Tenant is already a party thereto) a tenant regulatory agreement with respect to the Facility, and (z) Facility Tenant and Facility Manager (as defined below) enter into (or augments any existingamend, materially adverse non-monetary as needed, to the extent the Facility Tenant and Facility Manager are already parties thereto) a subordination agreement with respect to the Facility Lease and the Management Agreement (as defined below); and (B) obligate Facility Tenant to fund reserves with the Existing Lender for taxes, insurance and/or capital improvement and repair obligations as may be required under the applicable Existing Debt Documents whether or (which reserve obligations shall be in lieu of and not the same can be wholly assumed by Facility Tenant in addition to such obligations under the Facility Lease or and which obligation shall be credited by any reserves already held by the Existing Lender and funded by Facility Tenant); and (zii) materially Seller shall cause Facility Tenant to deliver to Existing Lender such other instruments and adversely affects documents as may be reasonably required by the marketability, salability or value Existing Lender as a condition to granting its consent to the assumption of the Property Existing Debt by Buyer, including, without limitation, an estoppel certificate with respect to the Facility Lease and the operations at the Facility and a security agreement with respect to Facility Tenant’s tangible and intangible property (including accounts receivable) associated with the Facility (or an amendment, as needed, to any portion thereofsuch security agreement to which the Facility Tenant is already a party).

Existing Debt. During the period between Seller’s and Buyer’s execution of this Agreement and the Close of Escrow or termination of this Agreement, Seller shall perform all of its obligations The lender(s) under the Existing Debt Documents and shall not amend any have approved Buyer’s or it Affiliate(s)’ assumption of the Existing Debt Documents without Buyer’s prior written consentin accordance with the provisions of Section 2.1(b) above, and such lender(s), Seller and Third-Party Transferor, as applicable, shall have executed or caused to be executed all necessary documents and instruments (including any legal opinions) to be executed to evidence such approval as required by such lender(s), which consent may documents and instruments shall be withheld in Buyer’s sole and absolute a form acceptable to Buyer in its reasonable discretion. Notwithstanding In no way limiting the generality of the foregoing, if any amendment in connection with its efforts to assume of the Existing Debt, Buyer shall have the right to request certain modifications to the Existing Debt Documents is required by law from the lender(s) thereunder as it deems necessary or by appropriate in its reasonable discretion. Without in any way limiting the Existing Lender (a “Required HUD Amendment”)generality of the foregoing, Buyer’s prior written consent thereto it shall not be required and the execution of such amendment shall not constitute a breach of this Agreement. For an amendment reasonable for Buyer to request modifications to the Existing Debt Documents (i) to be deemed required permit (without the prior consent of the lender(s) thereunder) transactions involving (a) the corporate reorganization of the borrower thereunder, so long as Buyer at all times controls, directly or indirectly, such borrower or (b) the issuance, sale, conveyance or transfer of any stock or assets of Buyer (including by the Existing Lendermerger, the Existing Lender must have the legal right to require Seller to execute such amendment consolidation, transfer of assets, stock or other equity interests whether or not Seller consents Buyer is the surviving or disappearing entity), (ii) to waive any requirements set forth therein for the funding and maintenance by the borrower thereunder of any impound, escrow or other reserve or similar accounts, (iii) to permit the lease of the Facilities by Lessor to Lessee pursuant to the same. Seller shall notify Buyer in writing of any Required HUD Amendment and shall provide Buyer with a copy thereof within five Lease, (5) days of the mutual execution thereof. If Buyer receives a copy of a Required HUD Amendment, Buyer shall have ten (10) business days (and if necessary, the Close of Escrow shall be extended to provide for such ten (10) business day periodiv) to elect, in its sole and absolute discretion, terminate any cross-collateralization or cross-default provisions relating to terminate this Agreement by written notice to Seller, in which case, neither party shall have any further rights or obligations hereunder (indebtedness other than those obligations which expressly survive the termination of this Agreement) and any money or documents in Escrow shall be returned to the party depositing the same, except that Buyer and Seller shall each be responsible for one-half of any title or Escrow cancellation fee. Notwithstanding the foregoing, Buyer may only elect to terminate this Agreement following its receipt of a Required HUD Amendment if, in Buyer’s commercially reasonable judgment, the same (x) materially and adversely affects the underlying economics of the Existing Debt, including, without limitation, (v) to terminate any financial reporting requirements imposed upon the interest rate, borrower thereunder to provide to the principal amortization, prepayment terms or maturity datelender(s) audited financial statements of such borrower, (yvi) imposes that have been previously agreed upon by the lender(s) thereunder in connection with prior debt assumptions consummated between such lender(s) and Buyer or its Affiliate(s), and (vii) to address and/or amend any newprovisions thereof that would have, in the reasonable opinion of Buyer, an adverse affect on the business or augments any existing, materially adverse non-monetary obligations under the Existing Debt Documents whether or not the same can be wholly assumed by Facility Tenant under the Facility Lease or (z) materially and adversely affects the marketability, salability or value operations of the Property borrower thereunder or any portion thereofof its Affiliates.

Existing Debt. During (a) Between the period between Seller’s and Buyer’s execution date of this Agreement and the Close Effective Time, as soon as reasonably practicable after the receipt of Escrow any written request by Parent to do so, the Company shall commence offers to purchase, and related consent solicitations to amend, eliminate or termination of this Agreement, Seller shall perform all of its obligations under the Existing Debt Documents and shall not amend any waive certain sections of the Existing Debt Documents without Buyer’s prior written consent, which consent may be withheld in Buyer’s sole and absolute discretion. Notwithstanding applicable Indenture (defined below) as specified by Parent (the foregoing, if any amendment to the Existing Debt Documents is required by law or by the Existing Lender (a “Required HUD AmendmentConsent Solicitations”), Buyerwith respect to all of the outstanding aggregate principal amount of the Company’s prior written consent thereto 7.25% Notes due 2018 issued pursuant to the 7.25% Notes Indenture, the Company’s 4.25% Notes due 2022 issued pursuant to the 4.25% Notes Indenture and the Company’s 4.50% Notes due 2022 issued pursuant to the 4.50% Notes Indenture (collectively, the “Existing Notes” and “Indentures”, as applicable), on such terms and conditions, including pricing terms, that are proposed, from time to time by Parent and reasonably acceptable to the Company, to be consummated after the Effective Time) (each a “Debt Tender Offer” and collectively, including the Consent Solicitations, the “Debt Tender Offers”) and Parent shall assist the Company in connection therewith; provided that the Company shall not be required to commence any Debt Tender Offer until Parent shall have provided the Company with the necessary offer to purchase, related letter of transmittal, supplemental indenture and other related documents in connection with such Debt Tender Offer (the “Debt Tender Offer Documents”); provided further that Parent will consult with the Company regarding the timing and commencement of the Debt Tender Offers and any early tender or early consent deadlines for the Debt Tender Offers in light of the regular financial reporting schedule of the Company. Parent shall consult with the Company and afford the Company a reasonable opportunity to review the Debt Tender Offer Documents and the execution material terms and conditions of such amendment the Debt Tender Offers. The terms and conditions specified by Parent for the Debt Tender Offers shall be in compliance with applicable Law. The closing of each Debt Tender Offer shall be expressly conditioned on the occurrence of the Effective Time (and shall occur after the Effective Time), and the parties shall use their reasonable best efforts to cause each Debt Tender Offer to close after the Effective Time; provided that the consummation of any of the Debt Tender Offer shall not constitute be a breach condition to Closing. None of this Agreementthe Existing Notes shall be required to be purchased until after the Effective Time. For an amendment Concurrent with or immediately following the Effective Time, and in accordance with the terms of the Debt Tender Offer, the Surviving Corporation shall accept for purchase and purchase each series of Existing Notes properly tendered and not properly withdrawn in the Debt Tender Offer. The Company shall provide and shall use its reasonable best efforts to cause its respective Representatives to, provide all cooperation reasonably requested by Parent in connection with the Debt Tender Offers; provided that such cooperation does not unreasonably interfere with the ongoing operations of the Company. The Company shall not be required to consummate the Debt Tender Offers at or prior to the Existing Debt Documents Effective Time; provided, however, following a written request from Parent to be deemed required by the Existing Lenderdo so, the Existing Lender must have the legal right to require Seller to execute such amendment whether Company may at or not Seller consents prior to the same. Seller shall notify Buyer in writing of any Required HUD Amendment and shall provide Buyer with a copy thereof within five (5) days of the mutual execution thereof. If Buyer receives a copy of a Required HUD Amendment, Buyer shall have ten (10) business days (and if necessary, the Close of Escrow shall be extended to provide for such ten (10) business day period) to elect, Effective Time in its sole discretion consummate the Debt Tender Offers and, if the Company does consummate the Debt Tender Offers following such request from Parent, then all such amounts paid to consummate the Debt Tender Offers shall be added to the Available Funds for purposes of determining whether the condition specified in Section 6.3(d) has been satisfied. (b) The Debt Tender Offers shall comply with the requirements of Rule 14e-1 promulgated under the Exchange Act (“Rule 14e-1”), the Trust Indenture Act of 1939, as amended (the “TIA”), and absolute discretionany other applicable Law, it being understood that the Company shall not be required to terminate this Agreement by written notice to Sellertake any action that, in which casethe judgment of the Company, neither party does not comply with Rule 143-1, the TIA or other applicable Law. Promptly following the expiration of the Consent Solicitation, assuming the requisite consent from the holders of the Existing Notes (including from persons holding proxies from such holders) has been received, the Company shall cause appropriate supplemental indentures (the “Supplemental Indentures”) to become effective providing for the amendments of the applicable Indenture contemplated in the Debt Tender Offer Documents; provided, however, that notwithstanding the fact that a Supplemental Indenture may become effective earlier, the proposed amendments set forth therein shall not become operative unless and until the Effective Time has occurred and all conditions to the Debt Tender Offer have been satisfied or (subject to approval by Parent) waived by the Company in accordance with the terms hereof. The form and substance of the Supplemental Indentures shall be reasonably satisfactory to Parent and the Company. (c) The Company shall waive any further rights or obligations hereunder of the conditions to any Debt Tender Offer as may be reasonably requested by Parent (other than those obligations which expressly survive the termination conditions that any Debt Tender Offer is conditioned on the Effective Time occurring as provided in Section 5.17(a)), so long as such waivers would not cause any Debt Tender Offer to violate the Exchange Act, the TIA, or any other applicable Law, and shall not, without the prior written consent of this Agreement) and Parent, waive any money condition to any Debt Tender Offer or documents in Escrow shall be returned make any change, amendment or modification to the party depositing the same, except that Buyer terms and Seller shall each be responsible for one-half conditions of any title Debt Tender Offer (including any extension thereof) other than as agreed between Parent and the Company or Escrow cancellation fee. Notwithstanding as required in the foregoingreasonable judgment of the Company to comply with applicable Law. (d) With respect to any series of Existing Notes, Buyer may only elect if requested by Parent in writing, in lieu of commencing a Debt Tender Offer for such series (or in addition thereto), the Company shall (i)(A) promptly deliver a notice with respect to terminate this Agreement following its receipt a Change of Control Offer (as defined in the relevant Indenture) (“Change of Control Offer”) for the repurchase, on and subject to the occurrence of a Required HUD Amendment ifChange of Control Payment Date (as defined in the relevant Indenture) to be mutually agreed by Parent and Company, in Buyer’s commercially reasonable judgment, the same (x) materially and adversely affects the underlying economics all of the outstanding aggregate principal amount of Existing DebtNotes of any such series, includingpursuant to Section 4.2 of each such Indenture and the other provisions of each such Indenture applicable thereto, without limitation, and (B) otherwise comply with the interest rate, the principal amortization, prepayment terms or maturity date, (y) imposes any newrelevant Indenture with respect to each such Change of Control Offer, or augments (ii) take any existingactions reasonably requested by Parent to facilitate the satisfaction and/or discharge of such Existing Notes by the Surviving Corporation on or following the Effective Time pursuant to Article VIII of each Indenture and the other provisions of such Indentures (it being understood that in no event shall the Company be required to deliver any notices to redeem, materially adverse non-monetary obligations under repurchase, satisfy or discharge any Existing Notes which notice is not revocable or conditional on the Existing Debt Documents whether or not the same can be wholly assumed by Facility Tenant under the Facility Lease or (z) materially and adversely affects the marketability, salability or value occurrence of the Property or any portion thereofEffective Time).

Existing Debt. (a) During the period between SellerDue Diligence Period, Seller and Purchaser shall use good faith efforts to jointly determine whether (i) any or all of the Existing Loans will be repaid by Seller (or assigned to Purchaser’s lender, if requested by Purchaser) at Closing, or (ii) Purchaser will accept the Properties and/or Interests, as applicable, at Closing with any or all of the Existing Loans remaining in place. If Seller and BuyerPurchaser do not agree that an Existing Loan shall be repaid, then Seller and Purchaser shall seek such Existing Lender’s execution consent to the transactions set forth in this Agreement in accordance with the provisions of this Section 38. If Seller and Purchaser agree that an Existing Loan shall be repaid, then (y) such Existing Loan, the applicable Existing Loan Lender, and the applicable Existing Loan Documents shall cease to be an “Existing Loan”, an “Existing Loan Lender” and “Existing Loan Documents”, respectively, for purposes of this Agreement and (z) the Close liens of Escrow such Existing Loan Documents shall be removed and discharged of record at Closing, at Seller’s sole cost and expense. If Seller and Purchaser agree that New Joint Venture will accept any Property at Closing with one or termination more Existing Loans with respect to such Property remaining in place, then (A) the New Joint Venture (or the applicable subsidiary of the New Joint Venture) shall assume all obligations with respect to such Existing Loans first accruing from and after the Closing Date and (B) the applicable Seller shall be released from all liabilities and obligations with respect to such Existing Loans first accruing from and after the Closing Date. (b) Seller and Purchaser shall use commercially reasonable efforts to promptly obtain the Existing Lenders’ consent to the transactions contemplated by this Agreement (the “Existing Lender Consent”). In furtherance of, and not in limitation of, Seller’s and/or Purchaser’s obligations under the immediately preceding sentence, (i) Purchaser and Seller shall promptly and diligently: (A) deliver to each Existing Lender such information and items as are required to be delivered pursuant to the express provisions of the applicable Existing Loan Documents, and shall provide truthful, accurate and complete information in response to all such requirements; (B) execute such documents as shall be required by each of the Existing Lenders pursuant to the express provisions of the applicable Existing Loan Documents to facilitate the consummation of the transactions contemplated hereunder; and (C) comply with all other reasonable requests of each of the Existing Lenders in accordance with customary prevailing practices of institutional lenders in connection with loan assumption transactions similar to the loan assumptions that are the subject of the Existing Lender Consent, and (ii) Seller shall execute and deliver such releases of the Existing Lenders as may be requested by the Existing Lenders to obtain the Existing Lender Consent. Notwithstanding anything contained herein to the contrary, in no event shall either Seller or Purchaser be obligated to accept any Existing Lender Consent if the same imposes material obligations on either Seller, Purchaser or any guarantor of the Existing Loan not otherwise set expressly set forth in the Existing Loan Documents. (c) In connection with obtaining the Existing Lender Consent: (i) the New Joint Venture shall pay: (A) the Existing Lenders’ out-of-pocket costs and expenses, (B) the Existing Lenders’ administrative charges and (C) all other charges expressly required to be paid by the borrower under the Existing Loan Documents, including any “transfer fees” or “loan assumption fees” as mutually agreed by Seller and Purchaser in their sole discretion, and (ii) Seller shall pay all deposits, fees and other charges demanded by the Existing Lenders pre-Closing, subject to reimbursement at Closing by the New Joint Venture. (d) At the Closing, (i) any and all deposits, reserves and escrows being held as of the Closing Date by the Existing Lenders (or their servicers) under the applicable Existing Loan Documents for real estate taxes, insurance premiums, deferred maintenance, capital replacements, re-letting costs and/or tenant improvements and leasing commissions, and debt service, as applicable, shall be conveyed to Purchaser as part of consideration for the payment of the Purchase Price and without further adjustment and (ii) all other funds derived from the Property held by the Existing Lenders (or their services) in any lockbox or other account or sub-account, shall be conveyed to Purchaser subject to adjustment in accordance with proration provisions specified herein (the deposits, reserves and escrow referred to in clauses (i) and (ii) above are collectively, the “Existing Lender Reserves and Escrows”). At the Closing, Seller shall assign all of Seller’s right, title and interest in the Existing Lender Reserves and Escrows to Purchaser. (e) The following terms, as used in this Section 38 and elsewhere in this Agreement, Seller shall perform all of its obligations under the Existing Debt Documents and shall not amend any of the Existing Debt Documents without Buyer’s prior written consent, which consent may be withheld in Buyer’s sole and absolute discretion. Notwithstanding the foregoing, if any amendment to the Existing Debt Documents is required by law or by the Existing Lender (a “Required HUD Amendment”), Buyer’s prior written consent thereto shall not be required and the execution of such amendment shall not constitute a breach of this Agreement. For an amendment to the Existing Debt Documents to be deemed required by the Existing Lender, the Existing Lender must have the legal right to require Seller to execute such amendment whether or not Seller consents to the same. Seller shall notify Buyer in writing of any Required HUD Amendment and shall provide Buyer with a copy thereof within five (5) days of the mutual execution thereof. If Buyer receives a copy of a Required HUD Amendment, Buyer shall have ten (10) business days (and if necessary, the Close of Escrow shall be extended to provide for such ten (10) business day period) to elect, in its sole and absolute discretion, to terminate this Agreement by written notice to Seller, in which case, neither party shall have any further rights or obligations hereunder (other than those obligations which expressly survive the termination of this Agreement) and any money or documents in Escrow shall be returned to the party depositing the same, except that Buyer and Seller shall each be responsible for one-half of any title or Escrow cancellation fee. Notwithstanding the foregoing, Buyer may only elect to terminate this Agreement following its receipt of a Required HUD Amendment if, in Buyer’s commercially reasonable judgment, the same (x) materially and adversely affects the underlying economics of the Existing Debt, including, without limitation, the interest rate, the principal amortization, prepayment terms or maturity date, (y) imposes any new, or augments any existing, materially adverse non-monetary obligations under the Existing Debt Documents whether or not the same can be wholly assumed by Facility Tenant under the Facility Lease or (z) materially and adversely affects the marketability, salability or value of the Property or any portion thereof.meanings:

Existing Debt. During The following Debt is outstanding as of the period between Seller’s Reporting Date: TITAN MACHINERY INC., a Delaware corporation By Name: Title: Pursuant to the AMENDED AND RESTATED CREDIT AGREEMENT, dated as of March 30, 2012, among Titan Machinery Inc., a Delaware corporation (“Borrower”), the Subsidiary Guarantors party thereto, the several financial institutions thereto as Lenders, and Buyer’s execution XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as Administrative Agent, Swing Line Lender and L/C Issuer (as amended from time to time, the “Credit Agreement”), the undersigned certifies that as of the close of business on the date set forth below, the Floorplan Availability and Working Capital Availability are computed as set forth below. The undersigned represents and warrants that this Borrowing Base Certificate is a true and correct statement of, and that the information contained herein is true and correct in all material respects regarding, the status of Eligible Accounts, Eligible New Equipment Inventory, Eligible Used Equipment Inventory, Eligible Rental Equipment, and Eligible Parts and Attachments Inventory and that the amounts reflected herein are in compliance with the provisions of the Credit Agreement and the Close Exhibits thereto. The undersigned further represents and warrants that there is no continuing Event of Escrow or termination Default and all representations and warranties continued in the Credit Agreement and other Loan Documents are true and correct in all material respects. The undersigned understands that Xxxxx Fargo Bank, National Association, and the other Lenders will extend loans in reliance upon the information contained herein. In the event of this a conflict between the following summary of eligibility criteria and the criteria set forth in the definition of Eligible Accounts, Eligible New Equipment Inventory, Eligible Used Equipment Inventory, Eligible Rental Equipment, and Eligible Parts and Attachments Inventory indicated in the Credit Agreement, Seller the Credit Agreement shall perform all of its obligations under govern. Capitalized terms used herein and not otherwise defined herein shall have the Existing Debt Documents and shall not amend any of meanings specified in the Existing Debt Documents without Buyer’s prior written consent, which consent may be withheld in Buyer’s sole and absolute discretion. Notwithstanding the foregoing, if any amendment to the Existing Debt Documents is required by law or by the Existing Lender (a “Required HUD Amendment”), Buyer’s prior written consent thereto shall not be required and the execution of such amendment shall not constitute a breach of this Credit Agreement. For an amendment Calculation of Floorplan Borrowing Base as of ____________: New Equipment Inventory - NBV $____________ [a] Less: Ineligible New Equipment Inventory Encumbered/Other U.S. New Equipment Inventory $____________ New Equipment Inventory located outside the U.S. $____________ New Equipment on Hand > 3 years $____________ Total Ineligible New Equipment Inventory $____________ [b] Total Eligible New Equipment Inventory ([a]-[b]) $____________[c] Eligible New Equipment Inventory held one year or less $____________ [d] Available at 90% of net book value ([d]*0.90) $____________ [e] Eligible New Equipment Inventory held more than one year but less than or equal to two years $____________ [f] Available at 80% of net book value ([f]*0.80) $____________ [g] Eligible New Equipment Inventory held more than two years but less than or equal to three years $____________ [h] Available at 50% of net book value ([h]*0.50) $____________ [i] Used Equipment Inventory - NBV $____________ [j] Less: Ineligible Used Equipment Inventory Encumbered/Other U.S. Used Equipment Inventory $____________ Used Equipment on Hand > 3 years $____________ Used Equipment Inventory located outside the Existing Debt Documents U.S. $____________ Total Ineligible Used Equipment Inventory $____________ [k] Total Eligible Used Equipment Inventory ([e]-[f]) $____________ [l] Eligible Used Equipment Inventory held one year or less $____________ [m] Available at 75% of net book value ([m]*0.75) $____________ [n] Eligible Used Equipment Inventory held more than one year but less than or equal to be deemed required by the Existing Lender, the Existing Lender must have the legal right two years $____________ [o] Available at 65% of net book value ([o]*0.65) $____________ [p] Eligible Used Equipment Inventory held more than two years but less than or equal to require Seller three years $____________ [q] Available at 25% of net book value ([q]*0.25) $____________ [r] Floor Plan Borrowing Base ([e] + [g] + [i] + [n] + [p] + [r]) $____________ [s] Total Floorplan Loans $____________ [t] Total Swing Line Loans $____________ [u] L/C Credit Extension $____________ [v] Total Floorplan Outstandings ([t]+[u]+[v]) $____________ [w] Aggregate Floorplan Commitment $____________ [x] Floorplan Availability (lesser of [s] minus [w] or; [x] minus [w]) $____________ Calculation of WORKING CAPITAL Borrowing Base as of ____________: Gross Accounts Receivable $____________ [a] Less: Ineligible Accounts Receivable A/R Greater than 90 days Past Due $____________ Cross Agings > 20% $____________ Warranty Receivables $____________ Supplier Receivables $____________ Discount Receivables $____________ Other A/R Due From Suppliers $____________ Employee Receivables $____________ Encumbered A/R or Contracts in Transit $____________ Foreign Receivables $____________ Related Party/Intercompany Receivables $____________ Earned not billed rental Receivables $____________ A/R Eliminations $____________ Other Ineligible Receivables $____________ Total Ineligible Accounts Receivable $____________ [b] Total Eligible Accounts Receivable ([a]-[b]) $____________ [c] Available at 80% Advance Rate ([c]*0.80) $____________ [d] Rental Equipment Inventory - NBV $____________[e] Less: Ineligible Rental Equipment Inventory $____________[f] Total Eligible Used Rental Equipment Inventory ([e]-[f]) $____________[g] Available at 85% of net book value ([g]*0.85) $____________[h] Gross Parts and Attachments Inventory $____________[i] Less: Ineligible Parts and Attachments Inventory Trade/Notes Payables due to execute such amendment whether or not Seller consents CNH $____________ CNH Finance Reserve $25,000 CNH Parts Reserve 1 $____________ Parts on Hand > 3 years in excess of $1MM $____________ Parts Subject to the same. Seller shall notify Buyer First Lien of Others (Non CNH) $____________ Foreign Parts $____________ Total Ineligible Parts and Attachments $____________ [j] Total Eligible Parts and Attachments Inventory ([i]-[j]) $____________ [k] Available at 75% Advance Rate ([k]*0.75) $____________ [l] Work in writing Process Inventory $____________ [m] Available at 50% Advance Rate ([m]*.50) $____________ [n] Total Parts and Attachments Inventory ([l] + [n]) $____________ [o] Working Capital Borrowing Base ([d] + [h] + [o]) $____________ [p] Working Capital Loans $____________ [q] L/C Credit Extension $____________ [r] Total Working Capital Outstandings ([q]+[r]) $____________ [s] Aggregate Working Capital Commitment $____________ [t] Working Capital Availability (lesser of any Required HUD Amendment and shall provide Buyer with a copy thereof within five (5[p] minus [s] or; [t] minus [s]) days of the mutual execution thereof. If Buyer receives a copy of a Required HUD Amendment, Buyer shall have ten (10) business days (and if necessary, the Close of Escrow shall be extended to provide for such ten (10) business day period) to elect, in its sole and absolute discretion, to terminate this Agreement by written notice to Seller, in which case, neither party shall have any further rights or obligations hereunder (other than those obligations which expressly survive the termination of this Agreement) and any money or documents in Escrow shall be returned to the party depositing the same, except that Buyer and Seller shall each be responsible for one-half of any title or Escrow cancellation fee. Notwithstanding the foregoing, Buyer may only elect to terminate this Agreement following its receipt of a Required HUD Amendment if, in Buyer’s commercially reasonable judgment, the same (x) materially and adversely affects the underlying economics of the Existing Debt, including, without limitation, the interest rate, the principal amortization, prepayment terms or maturity date, (y) imposes any new, or augments any existing, materially adverse non-monetary obligations under the Existing Debt Documents whether or not the same can be wholly assumed by Facility Tenant under the Facility Lease or (z) materially and adversely affects the marketability, salability or value of the Property or any portion thereof.$____________