AMENDMENT NO. 1 TO AMENDED AND RESTATED CREDIT AGREEMENT

Exhibit 10.4

EXECUTION VERSION

AMENDMENT NO. 1 TO AMENDED AND RESTATED CREDIT AGREEMENT

This AMENDMENT NO. 1 TO AMENDED AND RESTATED CREDIT AGREEMENT, dated as of June 16, 2011 (this “Amendment”), is made by and among XXXXXXX XXXXXXX XX, a Delaware limited partnership (the “Borrower”), XXXXXXX XXXXXXX INC., a Maryland corporation (“CSI”), EACH LENDER PARTY HERETO, EACH OF THE UNDERSIGNED GUARANTORS and BANK OF AMERICA, N.A., as Administrative Agent for the Lenders (in such capacity, the “Administrative Agent”), L/C Issuer and Swing Line Lender.

RECITALS:

WHEREAS, the Borrower, CSI, the Administrative Agent and the lenders party thereto (collectively, the “Lenders” and individually, a “Lender”) have entered into that certain Amended and Restated Credit Agreement dated as of March 1, 2011 (as hereby amended and as from time to time further amended, modified, supplemented, restated, or amended and restated, the “Credit Agreement”), pursuant to which the Lenders have made available to the Borrower a revolving credit facility with a letter of credit subfacility and a swing line subfacility; capitalized terms used in this Amendment not otherwise defined herein shall have the definitions set forth in the Credit Agreement; and

WHEREAS, the Guarantors and the Administrative Agent have entered into a Guaranty Agreement dated as of March 1, 2011 (the “Guaranty Agreement”); and

WHEREAS, the Borrower has requested that the Administrative Agent and the Lenders agree to amend certain terms of the Credit Agreement, and the Administrative Agent and the Lenders party hereto are willing to effect such amendments upon the terms and conditions contained in this Amendment; and

NOW, THEREFORE, in consideration of the premises and further valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:

1. Amendment to Credit Agreement. Subject to the conditions set forth in Section 2, the Credit Agreement is hereby amended, effective as of the date hereof, as follows:

(a) Section 8.01(j) is amended and restated in its entirety to read as follows:

“(j) Liens securing Recourse Indebtedness permitted under 8.03(f) and Liens securing Non-recourse Indebtedness permitted under Section 8.03(g); and”

(b) Section 8.09 is amended and restated in its entirety to read as follows:

“Enter into any Contractual Obligation (other than this Agreement or any other Loan Document) that (a) limits the ability (i) of any Subsidiary to make Restricted Payments to Borrower or any Guarantor or to otherwise transfer property to Borrower or any Guarantor (except for Contractual Obligations relating to Indebtedness permitted under Section 8.03), (ii) of any Subsidiary (other than an Excluded Subsidiary) or CSI to Guarantee the Indebtedness of Borrower, (iii) of the Borrower to prepay or refinance the Obligations hereunder or (iv) of CSI or any Subsidiary to create, incur, assume or suffer to exist Liens on property of such Person (except for Contractual Obligations relating to Liens permitted under Section 8.01); or (b) requires the grant of a Lien to secure an obligation of such Person (other than an Excluded Subsidiary) if a Lien is granted to secure another obligation of such Person.

2. Effectiveness; Conditions Precedent. Upon receipt by the Administrative Agent of counterparts of this Amendment, duly executed by the Borrower, the Guarantors, the Administrative Agent and the Required Lenders, this Amendment shall be effective as of the date hereof.

3. Representations and Warranties. In order to induce the Administrative Agent and the Lenders to enter into this Amendment, the Borrower represents and warrants to the Administrative Agent and the Lenders as follows:

(a) The representations and warranties made by it in Article VI of the Credit Agreement are true and correct on and as of the date hereof after giving effect to this Amendment, except to the extent that such representations and warranties expressly relate to an earlier date, in which case such representations and warranties are true and correct as of such earlier date;

(b) This Amendment has been duly authorized, executed and delivered by the Borrower and constitutes a legal, valid and binding obligation of such party, except as may be limited by general principles of equity or by the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors’ rights generally; and

(c) After giving effect hereto, no Default or Event of Default exists.

4. Entire Agreement. This Amendment, together with the Loan Documents (collectively, the “Relevant Documents”), sets forth the entire understanding and agreement of the parties hereto in relation to the subject matter hereof and supersedes any prior negotiations and agreements among the parties relating to such subject matter. No promise, condition, representation or warranty, express or implied, not set forth in the Relevant Documents shall bind any party hereto, and no such party has relied on any such promise, condition, representation or warranty. Each of the parties hereto acknowledges that, except as otherwise expressly stated in the Relevant Documents, no representations, warranties or commitments, express or implied, have been made by any party to the other. None of the terms or conditions of this Amendment may be changed, modified, waived or canceled orally or otherwise, except in writing and in accordance with Section 11.01 of the Credit Agreement.

5. Full Force and Effect of Agreement. Except as hereby specifically amended, modified or supplemented, the Borrower hereby acknowledges and agrees that the Credit Agreement and all of the other Loan Documents are hereby confirmed and ratified in all respects and shall remain in full force and effect according to their respective terms.

6. Counterparts. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Amendment by telecopy or electronic format (including .pdf) shall be effective as delivery of a manually executed original counterpart of this Amendment.

7. Governing Law. This Amendment shall in all respects be governed by, and construed in accordance with, the laws of the State of New York.

8. Enforceability. Should any one or more of the provisions of this Amendment be determined to be illegal or unenforceable as to one or more of the parties hereto, all other provisions nevertheless shall remain effective and binding on the parties hereto.

9. Successors and Assigns. This Amendment shall be binding upon and inure to the benefit of the Borrower, the Administrative Agent and each Lender and their respective successors and assignees to the extent such assignees are permitted assignees as provided in Section 11.06 of the Credit Agreement.

10. Expenses. Without limiting the provisions of Section 11.04 of the Credit Agreement, the Borrower agrees to pay all reasonable out of pocket costs and expenses (including without limitation reasonable legal fees and expenses) incurred before or after the date hereof by the Administrative Agent and its Affiliates in connection with the preparation, negotiation, execution, delivery and administration of this Amendment.

11. Consent of the Guarantors. Each Guarantor hereby consents, acknowledges and agrees to the amendments set forth herein and hereby confirms and ratifies in all respects the Loan Documents to which such Person is a party (including without limitation the continuation of such Person’s payment and performance obligations and the effectiveness and priority of any Liens granted thereunder, in each case upon and after the effectiveness of this Amendment and the amendments contemplated hereby) and the enforceability of such Loan Documents against such Person in accordance with its terms.

[Signature pages follow.]

IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to Credit Agreement to be made, executed and delivered by their duly authorized officers as of the day and year first above written.

		XXXXXXX XXXXXXX XX, a Delaware limited partnership
		By:		CS Business Trust I, a Maryland Statutory Trust, its General Partner
				By:
				Name:		Xxxxxxx X. Xxxxx
				Title:		Chief Financial Officer and Trustee
		XXXXXXX XXXXXXX INC., as Guarantor
		By:
		Name:		Xxxxxxx X. Xxxxx
		Title:		Chief Financial Officer

AMENDMENT NO. 1 TO CREDIT AGREEMENT
Signature Page

GUARANTORS:
XXXXXXX XXXXXXX INC., a Maryland corporation
XXXXXX COMPANY, a Wisconsin corporation
By:
		Name: Xxxxxxx X. Xxxxx
		Title: Chief Financial Officer
CS BUSINESS TRUST I, a Maryland Statutory Trust
CS BUSINESS TRUST II, a Maryland Statutory Trust
By:
		Name: Xxxxxxx X. Xxxxx
		Title: Chief Financial Officer and Trustee
XXXXXXX XXXXXXX ADVISORS MANAGEMENT, LLC, a Delaware limited liability company
By:
		Name: Xxxxxxx X. Xxxxx
		Title: Manager
AUGUSTA MEDICAL PARTNERS, LLC, a Georgia limited liability company
CAROLINA FOREST PLAZA, LLC, a South Carolina limited liability company
FRANCISCAN DEVELOPMENT COMPANY, LLC, a North Carolina limited liability company
200 XXXXXXX, LLC, a South Carolina limited liability company
By:		Xxxxxxx Xxxxxxx Advisors Management, LLC, a Delaware limited liability company, its Manager
By:
		Name: Xxxxxxx X. Xxxxx
		Title: Manager

AMENDMENT NO. 1 TO CREDIT AGREEMENT
Signature Page

CABARRUS POB, LP, a North Carolina limited partnership
XXXXXXX INVESTORS (BIRKDALE), LP, a North Carolina limited partnership
XXXXXXX INVESTORS (BIRKDALE II), LP, a North Carolina limited partnership
XXXXXXX INVESTORS (MALLARD), LP, a North Carolina limited partnership
XXXXXXXXXXX MOB, LP, a North Carolina limited partnership
EAST ROCK MOUNT KIDNEY CENTER ASSOCIATES, LP, a North Carolina limited partnership
XXXXXX MOB, LP, a North Carolina limited partnership
XXXX XXXXX WESTSIDE MEDICAL PARK I LIMITED PARTNERSHIP, a South Carolina limited partnership
MEDICAL INVESTORS III, LP, a South Carolina limited partnership
XXXX XXXXXXX XXXXXX X, XX, x Xxxxx Xxxxxxxx limited partnership
By:		Xxxxxxx Xxxxxxx Advisors Management, LLC, a Delaware limited liability company, its General Partner
By:
		Name: Xxxxxxx X. Xxxxx
		Title: Manager
XXXXXXX MOB, LP, a California limited partnership
By:		Xxxxxxx Management, LLC, a California limited liability company, its General Partner
By:
		Name: Xxxxxxx X. Xxxxx
		Title: Manager

AMENDMENT NO. 1 TO CREDIT AGREEMENT
Signature Page

BANK OF AMERICA, N.A., as
Administrative Agent

By:

Name:

Title:

AMENDMENT NO. 1 TO CREDIT AGREEMENT
Signature Page

LENDERS:

BANK OF AMERICA, N.A., as a Lender, L/C Issuer and Swing Line Lender

By:

Name:

Title:

AMENDMENT NO. 1 TO CREDIT AGREEMENT
Signature Page

KEYBANK NATIONAL ASSOCIATION, as a Lender

By:

Name:

Title:

AMENDMENT NO. 1 TO CREDIT AGREEMENT
Signature Page

CITIBANK, N.A., as a Lender

By:

Name:

Title:

AMENDMENT NO. 1 TO CREDIT AGREEMENT
Signature Page

BRANCH BANKING AND TRUST COMPANY, as a Lender

By:

Name:

Title:

AMENDMENT NO. 1 TO CREDIT AGREEMENT
Signature Page

XXXXX FARGO BANK, N.A., as a Lender

By:

Name:

Title:

AMENDMENT NO. 1 TO CREDIT AGREEMENT
Signature Page

REGIONS BANK

By:

Name:

Title:

AMENDMENT NO. 1 TO CREDIT AGREEMENT
Signature Page

XXXXXXX XXXXX BANK, FSB

By:

Name:

Title:

AMENDMENT NO. 1 TO CREDIT AGREEMENT
Signature Page

M&I XXXXXXXX & ILSLEY BANK

By:

Name:

Title:

AMENDMENT NO. 1 TO CREDIT AGREEMENT
Signature Page