SECOND AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT

Exhibit 10.1

SECOND AMENDMENT TO SECOND AMENDED
AND RESTATED CREDIT AGREEMENT

THIS SECOND AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”) made as of this 31^st day of January, 2017, by and among XXXXXX/VALIDUS OPERATING PARTNERSHIP, LP, a Delaware limited partnership (the “Borrower”), XXXXXX VALIDUS MISSION CRITICAL REIT, INC., a Maryland corporation (“REIT”), THE ENTITIES LISTED ON THE SIGNATURE PAGES HEREOF AS SUBSIDIARY GUARANTORS (hereinafter referred to individually as a “Subsidiary Guarantor” and collectively, as “Subsidiary Guarantors”; REIT and the Subsidiary Guarantors are sometimes hereinafter referred to individually as a “Guarantor” and collectively as “Guarantors”), KEYBANK NATIONAL ASSOCIATION, a national banking association (“KeyBank”), THE OTHER LENDERS LISTED ON THE SIGNATURES PAGES HEREOF AS LENDERS (KeyBank and the other lenders are listed on the signatures pages hereof as Lenders, collectively, the “Lenders”), and KEYBANK NATIONAL ASSOCIATION, a national banking association, as Agent for the Lenders (the “Agent”).

W I T N E S S E T H:

WHEREAS, Borrower and KeyBank, individually and as Agent, and the Lenders entered into that certain Second Amended and Restated Credit Agreement dated as of May 28, 2014 (the “Original Credit Agreement”), as amended by that certain First Amendment to Second Amended and Restated Credit Agreement and Amendment to Other Loan Documents dated August 21, 2015 (the “First Amendment”) (the Original Credit Agreement, as amended by the First Amendment, is hereinafter referred to as the “Credit Agreement”); and

WHEREAS, each of the Guarantors are a party to that certain Unconditional Guaranty of Payment of Performance in favor of Agent and the Lenders dated as of May 28, 2014, as amended by the First Amendment (as modified or amended, the “Guaranty”);

WHEREAS, Borrower and Guarantors have requested that the Agent and the Lenders make certain modifications to the Credit Agreement; and

WHEREAS, the Agent and the Lenders have consented to such modifications, subject to the execution and delivery of this Amendment.

NOW, THEREFORE, for and in consideration of the sum of TEN and NO/100 DOLLARS ($10.00), and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto do hereby covenant and agree as follows:

1.Definitions. All terms used herein which are not otherwise defined herein shall have the meanings set forth in the Credit Agreement.

2. Modification of the Credit Agreement. The Agent, the Lenders and the Borrower hereby amend the Credit Agreement as follows:

(a) By modifying the definition of Revolving Credit Maturity Date in §1.1 of the Credit Agreement by deleting the words and figures “May 28, 2017”, and inserting in lieu thereof the words and figures “May 28, 2018.”

(b) By modifying §2.12(a) of the Credit Agreement by deleting the words and figures “the one-time right and option to extend the Revolving Credit Maturity Date to May 28, 2018”, and inserting in lieu thereof the words and figures “the one-time right and option to extend the Revolving Credit Maturity Date to May 28, 2019 (the “First Revolving Credit Maturity Date Extension Option”)

(c) By modifying §2.12(a) of the Credit Agreement by inserting the following paragraph after §2.12(a)(vi):

“Such extension of the Revolving Credit Maturity Date or Term Loan Maturity Date, as applicable, shall be effective upon the later of (i) the date such notice is given and (ii) the date the extension fee is paid; provided, that Borrower also certifies to Agent in writing that the conditions in §2.12(a)(i)-(vi) have also been satisfied. Agent shall promptly notify Borrower in writing when the extension is effective (provided no such acknowledgment shall constitute a waiver of any misrepresentation or other Default or Event of Default).”

(d) By inserting the following new subsection §2.12(b) in the Credit Agreement:

“(b)    Provided that Borrower has duly exercised the First Revolving Credit Maturity Date Extension Option in accordance with the terms and conditions set forth in §2.12(a) above, Borrower shall have the one-time right and option to further extend the Revolving Credit Maturity Date to May 28, 2020 (the “Second Revolving Credit Maturity Date Extension Option”), upon satisfaction of the following conditions precedent, which must be satisfied prior to the effectiveness of any additional extension of the Revolving Credit Maturity Date:

(i)    satisfaction of the conditions precedent set forth in §2.12(a)(i), (ii), (iv), (v) and (vi) above; and

(ii)    Payment of Second Extension Fee. The Borrower shall pay to the Agent for the pro rata accounts of the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments, an extension fee in an amount equal to thirty (30) basis points on the Total Revolving Credit Commitment in effect on the Revolving Credit Maturity Date, as extended pursuant to the First Revolving Credit Maturity Date Extension Option, which fee shall, when paid, be fully earned and non-refundable under any circumstances.

Such extension of the Revolving Credit Maturity Date shall be effective upon the later of (i) the date such notice is given and (ii) the date the extension fee is paid; provided, that Borrower also certifies to Agent in writing that the conditions in §2.12(b)(i)-(ii) have also been satisfied. Agent shall promptly notify Borrower in writing when the extension is effective (provided no such acknowledgment shall constitute a waiver of any misrepresentation or other Default or Event of Default).”

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3. References to Amended Documents. All references in the Loan Documents to the Credit Agreement amended in connection with this Amendment shall be deemed a reference to the Credit Agreement as modified and amended herein.

4. Consent of Borrower and Guarantors. By execution of this Amendment, Guarantors hereby expressly consent to the modifications and amendments relating to the Credit Agreement as set forth herein, and Borrower and Guarantors hereby acknowledge, represent and agree that the Loan Documents (including, without limitation, the Guaranty), remain in full force and effect and constitute the valid and legally binding obligation of Borrower and Guarantors, respectively, enforceable against such Persons in accordance with their respective terms, and that the Guaranty extends to and applies to the foregoing documents as modified and amended.

5. Representations. Borrower and Guarantors represent and warrant to Agent and the Lenders as follows:

(a) Authorization. The execution, delivery and performance of this Amendment and the transactions contemplated hereby (i) are within the authority of Borrower and Guarantors, (ii) have been duly authorized by all necessary proceedings on the part of such Persons, (iii) do not and will not conflict with or result in any breach or contravention of any provision of law, statute, rule or regulation to which any of such Persons is subject or any judgment, order, writ, injunction, license or permit applicable to such Persons, (iv) do not and will not conflict with or constitute a default (whether with the passage of time or the giving of notice, or both) under any provision of the partnership agreement or certificate, certificate of formation, operating agreement, articles of incorporation or other charter documents or bylaws of, or any mortgage, indenture, agreement, contract or other instrument binding upon, any of such Persons or any of its properties or to which any of such Persons is subject, and (v) do not and will not result in or require the imposition of any lien or other encumbrance on any of the properties, assets or rights of such Persons, other than the liens and encumbrances created by the Loan Documents.

(b) Enforceability. The execution and delivery of this Amendment are valid and legally binding obligations of Borrower and Guarantors enforceable in accordance with the respective terms and provisions hereof, except as enforceability is limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting generally the enforcement of creditors’ rights and the effect of general principles of equity.

(c) Approvals. The execution, delivery and performance of this Amendment and the transactions contemplated hereby do not require the approval or consent of or approval of any Person or the authorization, consent, approval of or any license or permit issued by, or any filing or registration with, or the giving of any notice to, any court, department, board, commission or other governmental agency or authority other than those already obtained.

(d) Reaffirmation. Borrower and Guarantors reaffirm and restate as of the date hereof each and every representation and warranty made by the Borrower, the Guarantors and their respective Subsidiaries in the Loan Documents or otherwise made by or on behalf of such Persons in connection therewith except for representations or warranties that expressly relate to an earlier date.

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6. No Default. By execution hereof, the Borrower and Guarantors certify that the Borrower and Guarantors are and will be in compliance with all covenants under the Loan Documents after the execution and delivery of this Amendment, and that no Default or Event of Default has occurred and is continuing.

7. Waiver of Claims. Borrower and Guarantors acknowledge, represent and agree that Borrower and Guarantors as of the date hereof have no defenses, setoffs, claims, counterclaims or causes of action of any kind or nature whatsoever with respect to the Loan Documents, the administration or funding of the Loans or with respect to any acts or omissions of Agent or any of the Lenders, or any past or present officers, agents or employees of Agent or any of the Lenders, and each of Borrower and Guarantors does hereby expressly waive, release and relinquish any and all such defenses, setoffs, claims, counterclaims and causes of action, if any.

8. Ratification. Except as hereinabove set forth or in any other document previously executed or executed in connection herewith, all terms, covenants and provisions of the Credit Agreement amended in connection herewith remain unaltered and in full force and effect, and the parties hereto do hereby expressly ratify and confirm the Credit Agreement, as modified and amended herein and therein. Guarantors hereby consent to the terms of this Amendment and ratify the Guaranty. Nothing in this Amendment or any other document delivered in connection herewith shall be deemed or construed to constitute, and there has not otherwise occurred, a novation, cancellation, satisfaction, release, extinguishment or substitution of the indebtedness evidenced by the Notes or the other obligations of Borrower and Guarantors under the Loan Documents (including without limitation the Guaranty).

9. Counterparts. This Amendment may be executed in any number of counterparts which shall together constitute but one and the same agreement.

10. Miscellaneous. THIS AMENDMENT SHALL, PURSUANT TO NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1401, BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. This Amendment shall be binding upon and shall inure to the benefit of the parties hereto and their respective permitted successors, successors-in-title and assigns as provided in the Credit Agreement.

11. Effective Date. The obligations of the undersigned parties under Section 2 of this Amendment shall be deemed effective and in full force and effect (the “Effective Date”) only upon confirmation by the Agent of the satisfaction of the following conditions:

(a) the execution and delivery of this Amendment by Borrower, Guarantors, Agent, and each Lender (and the delivery to the Borrower of a copy of such fully-executed Amendment by the Agent shall be evidence of satisfaction of this condition);

(b) the delivery to Agent of an opinion of counsel to the Borrower and the Guarantors addressed to the Agent and the Lenders dated as of the Effective Date covering such matters as the Agent may reasonably request;;

(c) receipt by Agent of evidence that the Borrower shall pay contemporaneously with the Effective Date all fees (including legal fees) due and payable with respect to this Amendment;

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(d) with respect to Borrower and each Guarantor, receipt by Agent of (i) such resolutions, secretary’s and incumbency certificates, and organizational documents, in each case as the Agent may reasonably request, and (ii) good standing certificates for their respective state of incorporation or formation issued not more than thirty (30) days prior to the Effective Date, in each case as the Agent may reasonably request;

(e) such other conditions as Agent may require in its reasonable discretion.

[Remainder of Page Intentionally Left Blank]

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IN WITNESS WHEREOF, the parties hereto have hereto set their hands and affixed their seals as of the day and year first above written.

BORROWER:

XXXXXX/VALIDUS OPERATING PARTNERSHIP, LP, a Delaware limited partnership

By: Xxxxxx Validus Mission Critical REIT, Inc.,
a Maryland corporation, its general partner

By: /s/ Xxxx X. Xxxxx    

Name: Xxxx X. Xxxxx

Title:     Chief Financial Officer

(CORPORATE SEAL)

REIT:

XXXXXX VALIDUS MISSION CRITICAL REIT, INC., a Maryland corporation

By: /s/ Xxxx X. Xxxxx    

Name:    Xxxx X. Xxxxx

Title:    Chief Financial Officer

(CORPORATE SEAL)

KeyBank/CV Reit I: Signature Page to Second Amendment to
Second Amended and Restated Credit Agreement

SUBSIDIARY GUARANTORS:

XX-0000 X XXXXXXX XXXXXX XX, XXX XX-00000 W. TEN MILE, LLC
DC-1221 XXXX ROAD, LLC
XX-0000 XXXXX XXXX, LLC
XX-0000 XXXXX XXXXXX, LLC
XX-0000 X. XXXXXXXX XXXXX, LLC
DC-2 CHRISTIE HEIGHTS, LLC
XX-0000 XXXXXX XXXXX, LLC
XX-000 X. XXXXXXXX XXXXXXXXX MANAGEMENT, LLC
DC-15 XXXXXXXX ROAD, LLC
DATA CENTER ‑ 0000 XXXXXXXXX XXXXXXX, LLC
XX-0000 XXXX XXXX XXXXXXXXX, LLC
XX-0000 XXXX XXXX XXXXXXXXX, LLC XX-00000 XXX XXX XXXXX, XXX XX-X00X00000 RIVERWOOD DRIVE, LLC
XX-00000 XXXXX XXXXXXX 000, LLC each a Delaware limited liability company

By: Xxxxxx/Validus Operating Partnership, LP, a Delaware limited partnership, their sole member

By: Xxxxxx Validus Mission Critical REIT, Inc., a Maryland corporation, its general partner

By: /s/ Xxxx X. Xxxxx         Name:    Xxxx X. Xxxxx

Title:    Chief Financial Officer

(CORPORATE SEAL)

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KeyBank/CV Reit I: Signature Page to Second Amendment to
Second Amended and Restated Credit Agreement

XX-0000 XXXXXXX XXXXX, LLC
XX-0000 X. XXXX 0000 XXXX, LLC
XX-0000 XXXXXXX XXXXX, LLC
XX-00000 XXXXX XXXXXXX XXXX, LLC
DATA CENTER ‑ 1805 CENTER PARK DRIVE, LLC
XX-000 XXXXX 00^XX XXXXXX, LLC XX-0000 XXXX XXXXXXXX XXXXX, LLC
HCP-SELECT MEDICAL, LLC
XX-0000 XXXXXXX XXXXXX XXXX, LLC
HC-116 XXXXX XXXXXXX HIGHWAY, LLC
DC-1099 WALNUT RIDGE DRIVE, LLC
HCP-DERMATOLOGY ASSOCIATES, LLC
DC-1001 WINDWARD CONCOURSE, LLC
XX-000 XXXX 00^XX XXXXXX, LLC
XX-0000 XXXXX XXXX XXXX, LLC
HCP-RTS, LLC, HCP-XXX WARM SPRINGS, LLC
DC-3300 ESSEX, LLC, each a Delaware limited liability company

By: Xxxxxx/Validus Operating Partnership, LP, a Delaware limited partnership, their sole member

By: Xxxxxx Validus Mission Critical REIT, Inc., a Maryland corporation, its general partner

By: /s/ Xxxx X. Xxxxx             Name:    Xxxx X. Xxxxx

Title:    Chief Financial Officer

(CORPORATE SEAL)

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KeyBank/CV Reit I: Signature Page to Second Amendment to
Second Amended and Restated Credit Agreement

HC-239 S. MOUNTAIN BOULEVARD, LP, a Delaware limited partnership

By: HC-239 S. Mountain Boulevard Management, LLC, a Delaware limited liability company, its sole general partner

By: Xxxxxx/Validus Operating Partnership, LP,
a Delaware limited partnership, its sole member

By: Xxxxxx Validus Mission Critical REIT,
Inc., a Maryland corporation, its General Partner

By: /s/ Xxxx X. Sakow________________

Name:    Xxxx X. Xxxxx

Title:    Chief Financial Officer

(CORPORATE SEAL)

XX-0000 XXXXXXXXX XXXXXXX, LP, a Delaware limited partnership

By: Data Center ‑ 5150 XxXxxxxxx, LLC, a Delaware limited liability company, its general partner

By: Xxxxxx/Validus Operating Partnership, LP,
a Delaware limited partnership, its sole member

By: Xxxxxx Validus Mission Critical REIT,
Inc., a Maryland corporation, its General Partner

By: /s/ Xxxx X. Sakow________________

Name:    Xxxx X. Xxxxx

Title:    Chief Financial Officer

(CORPORATE SEAL)

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KeyBank/CV Reit I: Signature Page to Second Amendment to
Second Amended and Restated Credit Agreement

DC-1805 CENTER PARK DRIVE, LP, a Delaware limited partnership

By: Data Center ‑ 1805 Center Park Drive, LLC, a Delaware limited liability company, its general partner

By: Xxxxxx/Validus Operating Partnership, LP,
a Delaware limited partnership, its sole member

By: Xxxxxx Validus Mission Critical REIT,
Inc., a Maryland corporation, its General Partner

By: /s/ Xxxx X. Sakow_________________

Name:    Xxxx X. Xxxxx

Title:    Chief Financial Officer

(CORPORATE SEAL)

GREEN MEDICAL INVESTORS, LLLP, a Florida limited liability limited partnership

By: XX-0000 Xxxx Xxxx Xxxxxxxxx, XXX, a Delaware limited liability company, its general partner

By: Xxxxxx/Validus Operating Partnership, LP, a Delaware limited partnership, its sole member

By: Xxxxxx Validus Mission Critical REIT, Inc., a Maryland corporation, its general partner

By: /s/ Xxxx X. Sakow_________________

Name:    Xxxx X. Xxxxx

Title:    Chief Financial Officer

(CORPORATE SEAL)

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KeyBank/CV Reit I: Signature Page to Second Amendment to
Second Amended and Restated Credit Agreement

GREEN WELLNESS INVESTORS, LLLP, a Florida limited liability limited partnership

By: XX-0000 Xxxx Xxxx Xxxxxxxxx, XXX, a Delaware limited liability company, its general partner

By: Xxxxxx/Validus Operating Partnership, LP, a Delaware limited partnership, its sole member

By: Xxxxxx Validus Mission Critical REIT, Inc., a Maryland corporation, its general partner

By: /s/ Xxxx X. Sakow_________________

Name:    Xxxx X. Xxxxx

Title:    Chief Financial Officer

(CORPORATE SEAL)

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KeyBank/CV Reit I: Signature Page to Second Amendment to
Second Amended and Restated Credit Agreement

XX-00-000 XXXXX XXXX, XXX
XX-00000 XXX XXXX DRIVE, LLC
HC-5829 29 PALMS HIGHWAY, LLC
XX-0000 XXXXXXXX XXXX, LLC
HC-6555 XXXXXX, LLC
XX-000 XXXXXXXX XXXXXX XXXX, LLC
XX-0000 XXXXXXXX XXXX, LLC
XX-0000 XXXXXXXX XXXX, LLC
XX-0000 XXX XXXX XXXXX, XX, LLC
XX-0000 XXXXXXXXXX XX. E., LLC
XX-0000 XXX XXXXXXXXX, LLC
XX-0000 XXXXXXX XXXX., LLC
XX-0000 XX XXXXXXX 00 XXXX, LLC
XX-0000 X. XXXXXXXXXX XXXXX, LLC
HC-#2 PHYSICIANS PARK DR., LLC
XX-00 XXXXX XXXXX XXXX, LLC
XX-0000 X. XXXX XXXXXX ROAD, LLC
HC-187 SKYLAR DRIVE, LLC
XX-000 XXXXXXXX XXXXX XXXXX, UNITS A&B, LLC
HC-6310 HEALTH PKWY., UNITS 100 & 200, LLC, each a Delaware limited liability company

By: HCP-RTS, LLC, a Delaware limited liability company, their sole
member

By: Xxxxxx/Validus Operating Partnership, LP, a Delaware limited partnership, its sole member

By: Xxxxxx Validus Mission Critical REIT, Inc., a Maryland corporation, its general partner

By: /s/ Xxxx X. Xxxxx    

Name:    Xxxx X. Xxxxx

Title:    Chief Financial Officer

(CORPORATE SEAL)

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KeyBank/CV Reit I: Signature Page to Second Amendment to
Second Amended and Restated Credit Agreement

XX-00000 XXXXXXXXX XXXX., XXX
XX-00000 VETERANS AVENUE, LLC
HC-101 XXXXX XXXXXXX DRIVE, LLC
HC-102 MEDICAL DRIVE, LLC, and HC-1445 HANZ DRIVE, LLC, each a Delaware limited liability company

By: HCP-XXX WARM SPRINGS, LLC, a Delaware limited liability company, their sole member

By: Xxxxxx/Validus Operating Partnership, LP, a Delaware limited partnership, its sole member

By: Xxxxxx Validus Mission Critical REIT, Inc., a Maryland corporation, its general partner

By: /s/ Xxxx X. Xxxxx    

Name:    Xxxx X. Xxxxx

Title:    Chief Financial Officer

(CORPORATE SEAL)

KeyBank/CV Reit I: Signature Page to Second Amendment to
Second Amended and Restated Credit Agreement

AGENT AND LENDERS:

KEYBANK NATIONAL ASSOCIATION, individually and as Agent

By: /s/ Xxxxxxx Xxxxxxxxxxx    
Name: Xxxxxxx Xxxxxxxxxxx
Title: Vice President

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KeyBank/CV Reit I: Signature Page to Second Amendment to
Second Amended and Restated Credit Agreement

BANK OF AMERICA, N.A., individually and as Co‑Syndication Agent

By: /s/ Xxxxxxx X. Xxxxxx    
Name: Xxxxxxx X. Xxxxxx    
Title: SVP    

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KeyBank/CV Reit I: Signature Page to Second Amendment to
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CAPITAL ONE, NATIONAL ASSOCIATION, individually and as Documentation Agent

By: /s/ Xxxxx Xxxxxxxx    

Name: Xxxxx Xxxxxxxx

Title: Authorized Signatory

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KeyBank/CV Reit I: Signature Page to Second Amendment to
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SUNTRUST BANK, individually and as Co-Syndication Agent

By: /s/ Xxxxx Xxxxxx    

Name: Xxxxx Xxxxxx

Title: Senior Vice President

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KeyBank/CV Reit I: Signature Page to Second Amendment to
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CITIZENS BANK, NATIONAL ASSOCIATION

By: /s/ Xxxxx Xxxxxxx    

Name: Xxxxx Xxxxxxx    

Title: Senior Vice President    

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KeyBank/CV Reit I: Signature Page to Second Amendment to
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SYNOVUS BANK

By: /s/ Xxxxx X. Xxxxxx    

Name: Xxxxx X. Xxxxxx    

Title: Director    

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CADENCE BANK, N.A.

By: /s/ Xxxx Xxxxx    

Name: Xxxx Xxxxx

Title: Senior Vice President

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KeyBank/CV Reit I: Signature Page to Second Amendment to
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TEXAS CAPITAL BANK, N.A.

By: /s/ Xxxxx Xxxxxx    

Name: Xxxxx Xxxxxx

Title: Senior Vice President

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FIFTH THIRD BANK, an Ohio corporation, individually and as Co-Syndication Agent

By: /s/ Xxxx Xxxxxxxx    
Name: Xxxx Xxxxxxxx
Title: Vice President

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KeyBank/CV Reit I: Signature Page to Second Amendment to
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EASTERN BANK

By: /s/ Xxxxx X. Xxxx    

Name: Xxxxx X. Xxxx    

Title: SVP    

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KeyBank/CV Reit I: Signature Page to Second Amendment to
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UNITED COMMUNITY BANK

By: /s/ Xxxx Xxxxxx    

Name: Xxxx Xxxxxx

Title: Vice President

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KeyBank/CV Reit I: Signature Page to Second Amendment to
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WHITNEY BANK dba XXXXXXX BANK,

By: /s/ Xxxxx Xxxxxxx    
Name: Xxxxx Xxxxxxx
Title: Senior Vice President

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WOODFOREST NATIONAL BANK

By: /s/ Xxxx Xxxxx    
Name: Xxxx Xxxxx
Title: Senior Vice President

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RENASANT BANK

By: /s/ Xxxxx Xxxxxxxx    
Name: Xxxxx Xxxxxxxx    
Title: EVP    

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KeyBank/CV Reit I: Signature Page to Second Amendment to
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MEGA INTERNATIONAL COMMERCIAL BANK CO., LTD. SILICON VALLEY BRANCH

By: /s/ Nian Tyz Yeh    
Name: Nian Tyz Yeh
Title: V.P. & G.M.

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AMERICAN MOMENTUM BANK

By: /s/ Xxxxxx Xxxxx    
Name: Xxxxxx Xxxxx    
Title: Tampa Bay Market President    

KeyBank/CV Reit I: Signature Page to Second Amendment to
Second Amended and Restated Credit Agreement