Common use of Post-Closing Deliveries Clause in Contracts

Post-Closing Deliveries. (a) As a material inducement to Lender making the Loan, Borrower agrees that it shall deliver Appraisals, Title Insurance Policies and Surveys, in each case acceptable to Lender, for each of the Properties on or before April 30, 2016 and shall use commercially reasonable efforts to satisfy all other Post-Closing Items to Lender’s reasonable satisfaction by April 30, 2016; provided, however, that in any event Borrower shall satisfy all such Post-Closing Items to Lender’s reasonable satisfaction by May 15, 2016, or such later date as to which Lender may grant its consent, not to be unreasonably withheld, delayed or conditioned (so long as Borrower is diligently pursuing the satisfaction of the applicable Post-Closing Items). Post-Closing Items with respect to any Substitution Property shall be delivered no later than the date that is 45 days following the selection of the Substitution Property, or such later date as to which Lender may grant its consent, not to be unreasonably withheld, delayed or conditioned (so long as Borrower is diligently pursuing the satisfaction of the applicable Post-Closing Items). For the avoidance of doubt, notwithstanding the foregoing, the making of any Delayed Advance shall be conditioned on Lender’s receipt of reasonably acceptable Title Insurance Policies for each of the Properties and the payment of all title costs (to the extent any amounts reserved by the title company, if any, are insufficient for paying the premiums for the Title Insurance Policies and other title costs and fees) and Lender’s reasonable out-of-pocket costs (including attorney’s fees) incurred in connection with the origination of the Loan and/or the making of a Delayed Advance, as the case may be. (b) In the event that information received by Lender in connection with the Exception Report, delivery of any Supplemental Exception Report or the satisfaction of any Post-Closing Item (whether with respect to a Property or a Substitution Property) shall result in the determination by Lender in its sole but reasonable discretion that (i) any material representation in this Agreement with respect to any Property or Substitution Property is untrue (notwithstanding the inclusion of any fact or state of affairs on the Exception Report), provided that, solely for the purposes of this clause (i), any reference to the term “Material Adverse Effect” in any representation in this Agreement shall be deemed to be replaced with “Property Material Adverse Effect”, (ii) any Property or Substitution Property does not constitute acceptable Collateral for the Loan (other than solely by virtue of the existence of SAC Conditions), including by reason of anything contained in any Lease or Material Agreement delivered to Lender (either prior to or after the Closing Date), the results of any searches with respect to the Borrower or the Properties received by Lender or any exception contained in the Exception Report or any Supplemental Exception Report or (iii) if Borrower does not provide a Phase II Environmental Report with respect to any Property or Substitution Property following a request by Lender to provide such Phase II Environmental Report (if obtaining such a Phase II Environmental Report is indicated by a Phase I Environmental Report with respect to such Property or Substitution Property for any reason other than the existence of SAC Conditions), then, in each such case, Lender shall have the right, in its sole discretion, to require that the applicable Property or Substitution Property be replaced by a Substitution Property, which Substitution Property may be selected by Borrower (but subject to Lender’s reasonable approval under the circumstances set forth in the last sentence of Section 2.1(c)) so long as (1) such Substitution Property has a value no less than the value of the Property being replaced, as determined by reference to the Appraisals delivered to Lender pursuant to this Agreement and (2) Borrower shall certify that each of the representations in Article III hereof are true with respect to the applicable Substitution Property (collectively, the “Replacement Qualifications”), subject to any exceptions to such representations contained in any such certification (which exceptions shall be deemed to be a part of the Exception Report); provided, however, the Replacement Qualifications shall not be deemed satisfied if Lender shall reasonably determine that such exceptions to such representations are not acceptable and provided, further that Lender may exercise its rights to require that a Property or Substitution Property be replaced by a Substitution Property pursuant to this Section 2.1(b)(i) or Section 2.1(b)(ii) only until the later of (x) 70 days following the Closing Date and (y) 30 days following full satisfaction by Borrower of the Post-Closing Items with respect to such Property or Substitution Property. In addition, if the aggregate valuation of the Properties constituting Collateral based on final Appraisals delivered to Lender (which final Appraisals, for the avoidance of doubt, shall reflect matters contained in the Title Insurance Policies as reasonably requested by Lender) pursuant to this Agreement is less than $700,000,000 following the first Delayed Advance, if so requested by Lender, Borrower shall (at its option) either replace one or more Properties or Substitution Properties with one or more Substitution Properties or add one or more Substitution Properties, selected by Borrower, in each case, in accordance with the requirements of the preceding sentence, such that the aggregate valuation of the Properties constituting Collateral based on the Appraisals delivered to Lender pursuant to this Agreement (which final Appraisals, for the avoidance of doubt, shall reflect matters contained in the Title Insurance Policies as reasonably requested by Lender) is at least $700,000,000. In addition, in connection with the disposition of any Property by Borrower to a Person that is not an affiliate of Borrower or Guarantor, the Property so disposed shall be replaced with a Substitution Property selected by Lender. In connection with any replacement of a Property by a Substitution Property pursuant to the terms of this Agreement, (w) Borrower shall certify that the representations contained in Article III hereof are true and correct with respect to such Substitution Property, subject to any exceptions to such representations contained in any such certification (which exceptions shall be deemed to be a part of the Exception Report); provided, however, this clause (w) shall not be deemed satisfied if Lender shall reasonably determine that such exceptions to such representations are not acceptable, (x) Borrower shall cooperate with Lender in executing and recording a Mortgage securing the applicable Substitution Property and shall provide to Lender such other then-existing information and documentation in Borrower’s possession or control with respect to such Substitution Property as was provided to Lender in connection with the other Properties, together with all documentation and information necessary to satisfy each of the items in Section 2.2 and (y) upon the recordation of a Mortgage securing such Substitution Property, Lender shall fully release of record the Property being so replaced from the Lien of the applicable Mortgage in accordance with Section 1.5. In the case of clause (i) of the first sentence of this paragraph, such replacement shall constitute the sole remedy of Lender for such misrepresentation, so long as Borrower did not intentionally cause such misrepresentation to occur. Notwithstanding anything to the contrary contained herein, if Borrower is required to replace one or more Properties pursuant to this Section 2.1 (A) any individual Property may be replaced by multiple Substitution Properties, so long as the aggregate value of such Substitution Properties is no less than the value of the individual Property so replaced (in each case, based on the Appraisals delivered to Lender pursuant to this Agreement) and (B) up to two Properties may be replaced by a single Substitution Property, so long as the value of such Substitution Properties is no less than the aggregate value of the Properties so replaced (in each case, based on the Appraisals delivered to Lender pursuant to this Agreement).

Post-Closing Deliveries. (a) Within 15 Business Days following the New Closing Date, Borrower shall cause to be delivered to Lender, at Borrower’s sole cost and expense, a date down and modification endorsement to each Title Insurance Policy covering the Original Properties insuring the continued priority of the related Mortgage following the delivery of an amendment to such Mortgage (each, a “Mortgage Amendment”). Within 30 days following request by Lender, Borrower shall cause to be delivered to Lender, at Borrower’s sole cost and expense, a legal opinion, in form and substance reasonably satisfactory to Lender, as to the enforceability of each Mortgage Amendment under the laws of the state in which the applicable individual Property is located, and certain other matters covered by local counsel opinions previously delivered to Lender in connection with the Loan (it being understood that the formulation of such opinions shall be subject to the policies of the counsel providing such opinions and qualifications required by the various jurisdictions in which the Properties are located). (b) If Lender shall receive comments from the title company that issued the Title Insurance Policies, regarding the enforceability, validity, effectiveness or insurability of each Mortgage for the Original Properties in light of the advances made prior to the New Closing Date and on the New Closing Date pursuant to the terms hereof, Borrower shall cooperate with Lender in the preparation, execution and recording of amendments to such Mortgages (and/or other instruments reasonably required) necessitated by such comments and the delivery of an appropriate mortgage modification endorsement to the applicable Title Insurance Policy, all at Borrower’s sole cost and expense. (c) As a material inducement to Lender making the Loan, Borrower agrees that it (x) shall deliver Appraisals, Title Insurance Policies and Surveys, in each case acceptable to Lender, Lender for each of the Additional Properties on or before April 30, 2016 and (y) shall use commercially reasonable efforts to satisfy all deliver a legal opinion as to the enforceability of each Mortgage securing an Additional Property under the laws of the state in which the applicable individual Additional Property is located, and certain other Post-matters covered by local counsel opinions previously delivered to Lender in connection with the Loan (it being understood that the formulation of such opinions shall be subject to the policies of the counsel providing such opinions and qualifications required by the various jurisdictions in which the Properties are located), in each case, on or before the 15th Business Day following the New Closing Items to Lender’s reasonable satisfaction by April 30, 2016; provided, however, that in any event Borrower shall satisfy all such Post-Closing Items to Lender’s reasonable satisfaction by May 15, 2016, Date or such later date as to which Lender may grant its consent, not to be unreasonably withheld, delayed or conditioned (so long as Borrower is diligently pursuing the satisfaction of the applicable Post-Closing Itemssuch items). Post-Closing Items with respect . (d) If Lender shall receive comments to any Substitution Property shall be delivered no later than the date that is 45 days following the selection of the Substitution Property, or such later date as to which Lender may grant its consent, not to be unreasonably withheld, delayed or conditioned (so long as Borrower is diligently pursuing the satisfaction of the applicable Post-Closing Items). For the avoidance of doubt, notwithstanding the foregoing, the making of any Delayed Advance shall be conditioned on Lender’s receipt of reasonably acceptable Title Insurance Policies for each of the Properties and the payment of all title costs (to the extent any amounts reserved by the title company, if any, are insufficient for paying the premiums for the Title Insurance Policies and other title costs and fees) and Lender’s reasonable out-of-pocket costs (including attorney’s fees) incurred Mortgage from local counsel in connection with the origination delivery of the Loan and/or the making of a Delayed Advance, as the case may be. (b) In the event that information received by Lender in connection with the Exception Report, delivery of any Supplemental Exception Report or the satisfaction of any Post-Closing Item (whether with respect opinions delivered pursuant to a Property or a Substitution Property) shall result in the determination by Lender in its sole but reasonable discretion that (i) any material representation in this Agreement with respect to any Property or Substitution Property is untrue (notwithstanding the inclusion of any fact or state of affairs on the Exception Report), provided that, solely for the purposes of this clause (i), any reference to the term “Material Adverse Effect” in any representation in this Agreement shall be deemed to be replaced with “Property Material Adverse Effect”, (ii) any Property or Substitution Property does not constitute acceptable Collateral for the Loan (other than solely by virtue of the existence of SAC Conditions), including by reason of anything contained in any Lease or Material Agreement delivered to Lender (either prior to or after the Closing Date), the results of any searches with respect to the Borrower or the Properties received by Lender or any exception contained in the Exception Report or any Supplemental Exception Report or (iii) if Borrower does not provide a Phase II Environmental Report with respect to any Property or Substitution Property following a request by Lender to provide such Phase II Environmental Report (if obtaining such a Phase II Environmental Report is indicated by a Phase I Environmental Report with respect to such Property or Substitution Property for any reason other than the existence of SAC Conditions), then, in each such case, Lender shall have the right, in its sole discretion, to require that the applicable Property or Substitution Property be replaced by a Substitution Property, which Substitution Property may be selected by Borrower (but subject to Lender’s reasonable approval under the circumstances set forth in the last sentence of Section 2.1(c)) so long as (1) such Substitution Property has a value no less than , or from the value of the Property being replaced, as determined by reference to the Appraisals delivered to Lender pursuant to this Agreement and (2) Borrower shall certify that each of the representations in Article III hereof are true with respect to the applicable Substitution Property (collectively, the “Replacement Qualifications”), subject to any exceptions to such representations contained in any such certification (which exceptions shall be deemed to be a part of the Exception Report); provided, however, the Replacement Qualifications shall not be deemed satisfied if Lender shall reasonably determine that such exceptions to such representations are not acceptable and provided, further that Lender may exercise its rights to require that a Property or Substitution Property be replaced by a Substitution Property pursuant to this Section 2.1(b)(i) or Section 2.1(b)(ii) only until the later of (x) 70 days following the Closing Date and (y) 30 days following full satisfaction by Borrower of the Post-Closing Items with respect to such Property or Substitution Property. In addition, if the aggregate valuation of the Properties constituting Collateral based on final Appraisals delivered to Lender (which final Appraisals, for the avoidance of doubt, shall reflect matters contained in title company issuing the Title Insurance Policies as reasonably requested by Lender) pursuant to this Agreement is less than $700,000,000 following the first Delayed Advance, if so requested by Lender, Borrower shall (at its option) either replace one or more Properties or Substitution Properties with one or more Substitution Properties or add one or more Substitution Properties, selected by BorrowerPolicies, in each case, in accordance with regarding the requirements enforceability, validity, effectiveness or insurability of the preceding sentencesuch Mortgage, such that the aggregate valuation of the Properties constituting Collateral based on the Appraisals delivered to Lender pursuant to this Agreement (which final Appraisals, for the avoidance of doubt, shall reflect matters contained in the Title Insurance Policies as reasonably requested by Lender) is at least $700,000,000. In addition, in connection with the disposition of any Property by Borrower to a Person that is not an affiliate of Borrower or Guarantor, the Property so disposed shall be replaced with a Substitution Property selected by Lender. In connection with any replacement of a Property by a Substitution Property pursuant to the terms of this Agreement, (w) Borrower shall certify that the representations contained in Article III hereof are true and correct with respect to such Substitution Property, subject to any exceptions to such representations contained in any such certification (which exceptions shall be deemed to be a part of the Exception Report); provided, however, this clause (w) shall not be deemed satisfied if Lender shall reasonably determine that such exceptions to such representations are not acceptable, (x) Borrower shall cooperate with Lender in executing the preparation, execution and recording a Mortgage securing of any amendments to such Mortgages necessitated by such comments and the delivery of an appropriate mortgage modification endorsement to the applicable Substitution Property and shall provide to Lender such other then-existing information and documentation in Title Insurance Policy, all at Borrower’s possession or control with respect to such Substitution Property as was provided to Lender in connection with the other Properties, together with all documentation sole cost and information necessary to satisfy each of the items in Section 2.2 and (y) upon the recordation of a Mortgage securing such Substitution Property, Lender shall fully release of record the Property being so replaced from the Lien of the applicable Mortgage in accordance with Section 1.5. In the case of clause (i) of the first sentence of this paragraph, such replacement shall constitute the sole remedy of Lender for such misrepresentation, so long as Borrower did not intentionally cause such misrepresentation to occur. Notwithstanding anything to the contrary contained herein, if Borrower is required to replace one or more Properties pursuant to this Section 2.1 (A) any individual Property may be replaced by multiple Substitution Properties, so long as the aggregate value of such Substitution Properties is no less than the value of the individual Property so replaced (in each case, based on the Appraisals delivered to Lender pursuant to this Agreement) and (B) up to two Properties may be replaced by a single Substitution Property, so long as the value of such Substitution Properties is no less than the aggregate value of the Properties so replaced (in each case, based on the Appraisals delivered to Lender pursuant to this Agreement)expense.

Post-Closing Deliveries. (a) As a material inducement to Lender making the Loan, Borrower agrees that it shall deliver Appraisals, Title Insurance Policies and Surveys, in each case acceptable to Lender, for On each of the Properties first four quarterly anniversaries of the Closing Date following the Closing Date, Buyer shall deliver the Quarterly Cash Consideration by wire transfer of immediately available funds to the Shareholder and each Company Payee, each such payment equal to the Quarterly Cash Consideration multiplied by the applicable percentage set forth on or before April 30the Merger Consideration Payment Schedule, 2016 as such amount may be adjusted pursuant to ARTICLE XII. (b) On the fifteen-month anniversary of the Closing Date, Buyer shall deliver the 15-Month Cash Consideration and the Interest Payment by wire transfer of immediately available funds to the Shareholder and each Company Payee, each such payment equal to the Quarterly Cash Consideration multiplied by the applicable percentage set forth on the Merger Consideration Payment Schedule, as such amount may be adjusted pursuant to ARTICLE XII. (c) Upon the occurrence of a NuCel Removal Event prior to the one year anniversary of the Closing Date, Buyer and the Shareholder covenant and agree to negotiate in good faith to determine a number of outstanding shares of Buyer Common Stock representing the Restricted Equity Consideration that the Shareholder shall use commercially reasonable efforts forfeit to satisfy all other Post-Closing Items to Lender’s reasonable satisfaction by April 30, 2016Buyer; provided, however, that in any event Borrower notwithstanding anything herein to the contrary no shares of Buyer Common Stock representing NuCel Equity Consideration shall satisfy all such Post-Closing Items be subject to Lender’s reasonable satisfaction by May 15, 2016, or such later date forfeiture as to which Lender may grant its consent, not to be unreasonably withheld, delayed or conditioned a result of a NuCel Removal Event after the earlier of: (so long as Borrower is diligently pursuing i) the satisfaction one year anniversary of the applicable Post-Closing Items). Post-Closing Items with respect to any Substitution Property shall be delivered no later than Date and (ii) the date that is 45 days following the selection of the Substitution Property, or such later date as to which Lender may grant its consent, not to be unreasonably withheld, delayed or conditioned (so long as Borrower is diligently pursuing the satisfaction of the applicable Post-Closing Items). For the avoidance of doubt, notwithstanding the foregoing, the making of any Delayed Advance shall be conditioned on Lender’s receipt of reasonably acceptable Title Insurance Policies for each of the Properties and the payment of all title costs (to the extent any amounts reserved by the title company, if any, are insufficient for paying the premiums for the Title Insurance Policies and other title costs and fees) and Lender’s reasonable out-of-pocket costs (including attorney’s fees) incurred in connection with the origination of the Loan and/or the making of a Delayed Advance, as the case may beNuCel FDA Clearance. (bd) In Upon the event that information received by Lender in connection with the Exception Report, delivery occurrence of any Supplemental Exception Report or the satisfaction of any Post-Closing Item (whether with respect to a Property or a Substitution Property) shall result in the determination by Lender in its sole but reasonable discretion that (i) any material representation in this Agreement with respect to any Property or Substitution Property is untrue (notwithstanding the inclusion of any fact or state of affairs on the Exception Report), provided that, solely for the purposes of this clause (i), any reference NuCel Removal Event prior to the term “Material Adverse Effect” in any representation in this Agreement shall be deemed to be replaced with “Property Material Adverse Effect”, (ii) any Property or Substitution Property does not constitute acceptable Collateral for the Loan (other than solely by virtue one year anniversary of the existence of SAC Conditions), including by reason of anything contained in any Lease or Material Agreement delivered to Lender (either prior to or after the Closing Date), Buyer and the results Shareholder covenant and agree to negotiate in good faith to determine a number of any searches with respect to outstanding shares of Buyer Common Stock representing the Borrower or the Properties received by Lender or any exception contained in the Exception Report or any Supplemental Exception Report or (iii) if Borrower does not provide a Phase II Environmental Report with respect to any Property or Substitution Property following a request by Lender to provide such Phase II Environmental Report (if obtaining such a Phase II Environmental Report is indicated by a Phase I Environmental Report with respect to such Property or Substitution Property for any reason other than the existence of SAC Conditions), then, in each such case, Lender shall have the right, in its sole discretion, to require Restricted Equity Consideration that the applicable Property or Substitution Property be replaced by a Substitution Property, which Substitution Property may be selected by Borrower (but subject Shareholder shall forfeit to Lender’s reasonable approval under the circumstances set forth in the last sentence of Section 2.1(c)) so long as (1) such Substitution Property has a value no less than the value of the Property being replaced, as determined by reference to the Appraisals delivered to Lender pursuant to this Agreement and (2) Borrower shall certify that each of the representations in Article III hereof are true with respect to the applicable Substitution Property (collectively, the “Replacement Qualifications”), subject to any exceptions to such representations contained in any such certification (which exceptions shall be deemed to be a part of the Exception Report)Buyer; provided, however, that notwithstanding anything herein to the Replacement Qualifications contrary no shares of Buyer Common Stock representing ▇▇▇▇ Equity Consideration shall not be deemed satisfied if Lender shall reasonably determine that such exceptions subject to such representations are not acceptable and provided, further that Lender may exercise its rights to require that forfeiture as a Property or Substitution Property be replaced by result of a Substitution Property pursuant to this Section 2.1(b)(iNuCel Removal Event after the earlier of: (i) or Section 2.1(b)(ii) only until the later one year anniversary of (x) 70 days following the Closing Date and (yii) 30 days following full satisfaction by Borrower of the Post-Closing Items with respect to such Property or Substitution Property. In addition, if the aggregate valuation of the Properties constituting Collateral based on final Appraisals delivered to Lender (which final Appraisals, for the avoidance of doubt, shall reflect matters contained in the Title Insurance Policies as reasonably requested by Lender) pursuant to this Agreement is less than $700,000,000 following the first Delayed Advance, if so requested by Lender, Borrower shall (at its option) either replace one or more Properties or Substitution Properties with one or more Substitution Properties or add one or more Substitution Properties, selected by Borrower, in each case, in accordance with the requirements of the preceding sentence, such that the aggregate valuation of the Properties constituting Collateral based on the Appraisals delivered to Lender pursuant to this Agreement (which final Appraisals, for the avoidance of doubt, shall reflect matters contained in the Title Insurance Policies as reasonably requested by Lender) is at least $700,000,000. In addition, in connection with the disposition of any Property by Borrower to a Person that is not an affiliate of Borrower or Guarantor, the Property so disposed shall be replaced with a Substitution Property selected by Lender. In connection with any replacement of a Property by a Substitution Property pursuant to the terms of this Agreement, (w) Borrower shall certify that the representations contained in Article III hereof are true and correct with respect to such Substitution Property, subject to any exceptions to such representations contained in any such certification (which exceptions shall be deemed to be a part of the Exception Report); provided, however, this clause (w) shall not be deemed satisfied if Lender shall reasonably determine that such exceptions to such representations are not acceptable, (x) Borrower shall cooperate with Lender in executing and recording a Mortgage securing the applicable Substitution Property and shall provide to Lender such other then-existing information and documentation in Borrower’s possession or control with respect to such Substitution Property as was provided to Lender in connection with the other Properties, together with all documentation and information necessary to satisfy each of the items in Section 2.2 and (y) upon the recordation of a Mortgage securing such Substitution Property, Lender shall fully release of record the Property being so replaced from the Lien of the applicable Mortgage in accordance with Section 1.5. In the case of clause (i) of the first sentence of this paragraph, such replacement shall constitute the sole remedy of Lender for such misrepresentation, so long as Borrower did not intentionally cause such misrepresentation to occur. Notwithstanding anything to the contrary contained herein, if Borrower is required to replace one or more Properties pursuant to this Section 2.1 (A) any individual Property may be replaced by multiple Substitution Properties, so long as the aggregate value of such Substitution Properties is no less than the value of the individual Property so replaced (in each case, based on the Appraisals delivered to Lender pursuant to this Agreement) and (B) up to two Properties may be replaced by a single Substitution Property, so long as the value of such Substitution Properties is no less than the aggregate value of the Properties so replaced (in each case, based on the Appraisals delivered to Lender pursuant to this Agreement)▇▇▇▇ FDA Clearance.

Post-Closing Deliveries. (a) As a material inducement to Lender making the Loan, Borrower agrees that it shall deliver Appraisals, Title Insurance Policies and Surveys, in each case acceptable to Lender, for each of the Properties on or before April September 30, 2016 2014 and shall use commercially reasonable efforts to satisfy all other Post-Closing Items to Lender’s reasonable satisfaction by April 30October 15, 20162014; provided, however, that in any event Borrower shall satisfy all such Post-Closing Items to Lender’s reasonable satisfaction by May 15October 30, 20162014, or such later date as to which Lender may grant its consent, not to be unreasonably withheld, delayed or conditioned (so long as Borrower is diligently pursuing the satisfaction of the applicable Post-Closing Items). Post-Closing Items with respect to any Substitution Property shall be delivered no later than the date that is 45 days following the selection of the Substitution Property, or such later date as to which Lender may grant its consent, not to be unreasonably Table of Contents withheld, delayed or conditioned (so long as Borrower is diligently pursuing the satisfaction of the applicable Post-Closing Items). For the avoidance of doubt, notwithstanding the foregoing, the making of any the Delayed Advance shall be conditioned on Lender’s receipt of reasonably acceptable Title Insurance Policies for each of the Properties and the payment of all title costs (to the extent any amounts reserved by the title company, if any, are insufficient for paying the premiums for the Title Insurance Policies and other title costs and fees) and Lender’s reasonable out-of-pocket costs (including attorney’s fees) incurred in connection with the origination of the Loan and/or the making of a Delayed Advance, as the case may beProperties. (b) In the event that information received by Lender in connection with the Exception Report, delivery of any Supplemental Exception Report or the satisfaction of any Post-Closing Item (whether with respect to a Property or a Substitution Property) shall result in the determination by Lender in its sole but reasonable discretion that (i) any material representation in this Agreement with respect to any Property or Substitution Property is untrue (notwithstanding the inclusion of any fact or state of affairs on the Exception Report)untrue, provided that, solely for the purposes of this clause (i), any reference to the term “Material Adverse Effect” in any representation in this Agreement shall be deemed to be replaced with “Property Material Adverse Effect”, (ii) any Property or Substitution Property does not constitute acceptable Collateral for the Loan (other than solely by virtue of the existence of SAC Conditions), including by reason of anything contained in any Lease or Material Agreement heretofore delivered to Lender (either prior to or after the Closing Date), the results of any searches with respect to the Borrower or the Properties received by Lender or any exception contained in the Exception Report or any Supplemental Exception Report Lender, or (iii) subject to clause (A) of the last sentence of Section 2.1(c), if Borrower does not provide a Phase II Environmental Report with respect to any Property or Substitution Property following a request by Lender to provide such Phase II Environmental Report (if obtaining such a Phase II Environmental Report is indicated by a Phase I Environmental Report with respect to such Property or Substitution Property for any reason other than the existence of SAC Conditions), then, in each such case, Lender shall have the right, in its sole discretion, to require that the applicable Property or Substitution Property be replaced by a Substitution Property, which Substitution Property may be selected by Borrower (but subject to Lender’s reasonable approval under the circumstances set forth in the last sentence of Section 2.1(c)) so long as (1) such Substitution Property has a value no less than the value of the Property being replaced, as determined by reference to the Appraisals delivered to Lender pursuant to this Agreement Valuations and (2) Borrower shall certify that each of the representations in Article III hereof are true with respect to the applicable Substitution Property (collectively, the “Replacement Qualifications”), subject to any exceptions to such representations contained in any such certification (which exceptions shall be deemed to be a part of the Exception Report); provided, however, the Replacement Qualifications shall not be deemed satisfied if Lender shall reasonably determine that such exceptions to such representations are not acceptable and provided, further that Lender may exercise its rights to require that a Property or Substitution Property be replaced by a Substitution Property pursuant to this Section 2.1(b)(i) or Section 2.1(b)(ii) only until the later of (x) 70 days following the Closing Date and (y) 30 days following full satisfaction by Borrower of the Post-Closing Items with respect to such Property or Substitution Property. In addition, if the aggregate valuation of the Properties constituting Collateral based on final Appraisals delivered to Lender (which final Appraisals, for the avoidance of doubt, shall reflect matters contained in the Title Insurance Policies as reasonably requested by Lender) pursuant to this Agreement is less than $700,000,000 following the first Delayed Advance, if so requested by Lender, Borrower shall (at its option) either replace one or more Properties or Substitution Properties with one or more Substitution Properties or add one or more Substitution Properties, selected by Borrower, in each case, in accordance with the requirements of the preceding sentence, such that the aggregate valuation of the Properties constituting Collateral based on the Appraisals delivered to Lender pursuant to this Agreement (which final Appraisals, for the avoidance of doubt, shall reflect matters contained in the Title Insurance Policies as reasonably requested by Lender) is at least $700,000,000acceptable. In addition, in connection with the disposition of any Property by Borrower to a Person that is not an affiliate of Borrower or Guarantor, the Property so disposed shall be replaced with a Substitution Property selected by Lender. In connection with any such replacement of a Property by a Substitution Property pursuant to the terms of this AgreementProperty, (w) Borrower shall certify that the representations contained in Article III hereof are true and correct with respect to such Substitution Property, subject to any exceptions to such representations contained in any such certification (which exceptions shall be deemed to be a part of the Exception Report); provided, however, this clause (w) shall not be deemed satisfied if Lender shall reasonably determine that such exceptions to such representations are not acceptable, (x) Borrower shall cooperate with Lender in executing and recording a Mortgage securing the applicable Substitution Property and shall provide to Lender such other then-existing information and documentation in Borrower’s possession or control with respect to such Substitution Property as was provided to Lender in connection with the other Properties, together with all documentation and information necessary to satisfy each of the items in Section 2.2 and (y) upon the recordation of a Mortgage securing such Substitution Property, Lender shall fully release of record the Property being so replaced from the Lien of the applicable Mortgage in accordance with Section 1.5. In the case of clause Table of Contents (i) of the first sentence of this paragraph, such replacement shall constitute the sole remedy of Lender for such misrepresentation, so long as Borrower did not intentionally cause such misrepresentation to occur. Notwithstanding anything to the contrary contained herein, if Borrower is required to replace one or more Properties pursuant to this Section 2.1 (A) any individual Property may be replaced by multiple Substitution Properties, so long as the aggregate value of such Substitution Properties is no less than the value of the individual Property so replaced (in each case, based on the Appraisals delivered to Lender pursuant to this AgreementValuations) and (B) up to two Properties may be replaced by a single Substitution Property, so long as the value of such Substitution Properties is no less than the aggregate value of the Properties so replaced (in each case, based on the Appraisals delivered to Lender pursuant to this AgreementValuations).

Post-Closing Deliveries. (a) As a material inducement to Lender making the Loan, Borrower agrees that it shall deliver Appraisals, Title Insurance Policies and Surveys, in each case acceptable to Lender, for each of the Properties on or before April September 30, 2016 2014 and shall use commercially reasonable efforts to satisfy all other Post-Closing Items to Lender’s reasonable satisfaction by April 30October 15, 20162014; provided, however, that in any event Borrower shall satisfy all such Post-Closing Items to Lender’s reasonable satisfaction by May 15October 30, 20162014, or such later date as to which Lender may grant its consent, not to be unreasonably withheld, delayed or conditioned (so long as Borrower is diligently pursuing the satisfaction of the applicable Post-Closing Items). Post-Closing Items with respect to any Substitution Property shall be delivered no later than the date that is 45 days following the selection of the Substitution Property, or such later date as to which Lender may grant its consent, not to be unreasonably withheld, delayed or conditioned (so long as Borrower is diligently pursuing the satisfaction of the applicable Post-Closing Items). For the avoidance of doubt, notwithstanding the foregoing, the making of any the Delayed Advance shall be conditioned on Lender’s receipt of reasonably acceptable Title Insurance Policies for each of the Properties and the payment of all title costs (to the extent any amounts reserved by the title company, if any, are insufficient for paying the premiums for the Title Insurance Policies and other title costs and fees) and Lender’s reasonable out-of-pocket costs (including attorney’s fees) incurred in connection with the origination of the Loan and/or the making of a Delayed Advance, as the case may beProperties. (b) In the event that information received by Lender in connection with the Exception Report, delivery of any Supplemental Exception Report or the satisfaction of any Post-Closing Item (whether with respect to a Property or a Substitution Property) shall result in the determination by Lender in its sole but reasonable discretion that (i) any material representation in this Agreement with respect to any Property or Substitution Property is untrue (notwithstanding the inclusion of any fact or state of affairs on the Exception Report)untrue, provided that, solely for the purposes of this clause (i), any reference to the term “Material Adverse Effect” in any representation in this Agreement shall be deemed to be replaced with “Property Material Adverse Effect”, (ii) any Property or Substitution Property does not constitute acceptable Collateral for the Loan (other than solely by virtue of the existence of SAC Conditions), including by reason of anything contained in any Lease or Material Agreement heretofore delivered to Lender (either prior to or after the Closing Date), the results of any searches with respect to the Borrower or the Properties received by Lender or any exception contained in the Exception Report or any Supplemental Exception Report Lender, or (iii) subject to clause (A) of the last sentence of Section 2.1(c), if Borrower does not provide a Phase II Environmental Report with respect to any Property or Substitution Property following a request by Lender to provide such Phase II Environmental Report (if obtaining such a Phase II Environmental Report is indicated by a Phase I Environmental Report with respect to such Property or Substitution Property for any reason other than the existence of SAC Conditions), then, in each such case, Lender shall have the right, in its sole discretion, to require that the applicable Property or Substitution Property be replaced by a Substitution Property, which Substitution Property may be selected by Borrower (but subject to Lender’s reasonable approval under the circumstances set forth in the last sentence of Section 2.1(c)) so long as (1) such Substitution Property has a value no less than the value of the Property being replaced, as determined by reference to the Appraisals delivered to Lender pursuant to this Agreement Valuations and (2) Borrower shall certify that each of the representations in Article III hereof are true with respect to the applicable Substitution Property (collectively, the “Replacement Qualifications”), subject to any exceptions to such representations contained in any such certification (which exceptions shall be deemed to be a part of the Exception Report); provided, however, the Replacement Qualifications shall not be deemed satisfied if Lender shall reasonably determine that such exceptions to such representations are not acceptable and provided, further that Lender may exercise its rights to require that a Property or Substitution Property be replaced by a Substitution Property pursuant to this Section 2.1(b)(i) or Section 2.1(b)(ii) only until the later of (x) 70 days following the Closing Date and (y) 30 days following full satisfaction by Borrower of the Post-Closing Items with respect to such Property or Substitution Property. In addition, if the aggregate valuation of the Properties constituting Collateral based on final Appraisals delivered to Lender (which final Appraisals, for the avoidance of doubt, shall reflect matters contained in the Title Insurance Policies as reasonably requested by Lender) pursuant to this Agreement is less than $700,000,000 following the first Delayed Advance, if so requested by Lender, Borrower shall (at its option) either replace one or more Properties or Substitution Properties with one or more Substitution Properties or add one or more Substitution Properties, selected by Borrower, in each case, in accordance with the requirements of the preceding sentence, such that the aggregate valuation of the Properties constituting Collateral based on the Appraisals delivered to Lender pursuant to this Agreement (which final Appraisals, for the avoidance of doubt, shall reflect matters contained in the Title Insurance Policies as reasonably requested by Lender) is at least $700,000,000acceptable. In addition, in connection with the disposition of any Property by Borrower to a Person that is not an affiliate of Borrower or Guarantor, the Property so disposed shall be replaced with a Substitution Property selected by Lender. In connection with any such replacement of a Property by a Substitution Property pursuant to the terms of this AgreementProperty, (w) Borrower shall certify that the representations contained in Article III hereof are true and correct with respect to such Substitution Property, subject to any exceptions to such representations contained in any such certification (which exceptions shall be deemed to be a part of the Exception Report); provided, however, this clause (w) shall not be deemed satisfied if Lender shall reasonably determine that such exceptions to such representations are not acceptable, (x) Borrower shall cooperate with Lender in executing and recording a Mortgage securing the applicable Substitution Property and shall provide to Lender such other then-existing information and documentation in Borrower’s possession or control with respect to such Substitution Property as was provided to Lender in connection with the other Properties, together with all documentation and information necessary to satisfy each of the items in Section 2.2 and (y) upon the recordation of a Mortgage securing such Substitution Property, Lender shall fully release of record the Property being so replaced from the Lien of the applicable Mortgage in accordance with Section 1.5. In the case of clause (i) of the first sentence of this paragraph, such replacement shall constitute the sole remedy of Lender for such misrepresentation, so long as Borrower did not intentionally cause such misrepresentation to occur. Notwithstanding anything to the contrary contained herein, if Borrower is required to replace one or more Properties pursuant to this Section 2.1 (A) any individual Property may be replaced by multiple Substitution Properties, so long as the aggregate value of such Substitution Properties is no less than the value of the individual Property so replaced (in each case, based on the Appraisals delivered to Lender pursuant to this AgreementValuations) and (B) up to two Properties may be replaced by a single Substitution Property, so long as the value of such Substitution Properties is no less than the aggregate value of the Properties so replaced (in each case, based on the Appraisals delivered to Lender pursuant to this AgreementValuations).

Post-Closing Deliveries. As a condition of Lender’s agreements hereunder, the following terms and provisions shall apply (it being agreed that the violation by Borrowers of any of the following provisions shall constitute an immediate Event of Default): (a) As If Lender determines that a material inducement landlord agreement is desirable to obtain regarding the leased property where PacketSmart maintains any Collateral, Borrower shall comply with Section 4.9 of the Loan Agreement with respect thereto; (b) Within ten (10) days after the date hereof, PacketSmart shall cause New Borrower to execute and deliver to Lender making an intellectual property security agreement in substantially the Loansame form of agreement as other Borrowers have executed and delivered to ORIX previously; (c) Within thirty (30) days after the date hereof, Borrower agrees that it Borrowers shall deliver Appraisals, Title Insurance Policies and Surveysto Lender evidence, in each case form and substance satisfactory to Lender, that (i) PacketSmart has insured all of its tangible Collateral, and carries such other business insurance, with an insurer reasonably acceptable to Lender, for each of the Properties on or before April 30, 2016 and shall use commercially reasonable efforts to satisfy all other Post-Closing Items that such insurance policies name Lender as an additional loss payee thereunder and contain a lenders loss payee endorsement in form and substance satisfactory to Lender’s reasonable satisfaction by April 30, 2016; provided, however, that in any event Borrower shall satisfy all such Post-Closing Items to Lender’s reasonable satisfaction by May 15, 2016, or such later date as to which Lender may grant its consent, not to be unreasonably withheld, delayed or conditioned (so long as Borrower is diligently pursuing the satisfaction of the applicable Post-Closing Items). Post-Closing Items with respect to any Substitution Property shall be delivered no later than the date that is 45 days following the selection of the Substitution Property, or such later date as to which Lender may grant its consent, not to be unreasonably withheld, delayed or conditioned (so long as Borrower is diligently pursuing the satisfaction of the applicable Post-Closing Items). For the avoidance of doubt, notwithstanding the foregoing, the making of any Delayed Advance shall be conditioned on Lender’s receipt of reasonably acceptable Title Insurance Policies for each of the Properties and the payment of all title costs (to the extent any amounts reserved by the title company, if any, are insufficient for paying the premiums for the Title Insurance Policies and other title costs and fees) and Lender’s reasonable out-of-pocket costs (including attorney’s fees) incurred in connection with the origination of the Loan and/or the making of a Delayed Advance, as the case may be. (b) In the event that information received by Lender in connection with the Exception Report, delivery of any Supplemental Exception Report or the satisfaction of any Post-Closing Item (whether with respect to a Property or a Substitution Property) shall result in the determination by Lender in its sole but reasonable discretion that (i) any material representation in this Agreement with respect to any Property or Substitution Property is untrue (notwithstanding the inclusion of any fact or state of affairs on the Exception Report), provided that, solely for the purposes of this clause (i), any reference to the term “Material Adverse Effect” in any representation in this Agreement shall be deemed to be replaced with “Property Material Adverse Effect”, (ii) any Property or Substitution Property does not constitute acceptable Collateral for the Loan Existing Borrowers’ current insurance policies, including without limitation business interruption insurance, have been revised to provide coverage of PacketSmart and all of its tangible Collateral, in form and amounts reasonably satisfactory to Lender; and (other than solely by virtue d) Immediately after effectiveness of the existence of SAC Conditions)Merger, including by reason of anything contained in any Lease or Material Agreement delivered to Lender (either prior to or after the Closing Date), the results of any searches with respect to the New Borrower or the Properties received by Lender or any exception contained in the Exception Report or any Supplemental Exception Report or (iii) if Borrower does not provide a Phase II Environmental Report with respect to any Property or Substitution Property following a request by Lender to provide such Phase II Environmental Report (if obtaining such a Phase II Environmental Report is indicated by a Phase I Environmental Report with respect to such Property or Substitution Property for any reason other than the existence of SAC Conditions), then, in each such case, Lender shall have the right, in its sole discretion, to require that the applicable Property or Substitution Property be replaced by a Substitution Propertyenter into and execute an assumption agreement, which Substitution Property may be selected by Borrower (but subject to Lender’s reasonable approval under the circumstances set forth in the last sentence of Section 2.1(c)) so long as (1) such Substitution Property has a value no less than the value of the Property being replaced, as determined by reference to the Appraisals delivered to Lender pursuant to this Agreement and (2) Borrower shall certify that each of the representations in Article III hereof are true with respect to the applicable Substitution Property (collectively, the “Replacement Qualifications”), subject to any exceptions to such representations contained in any such certification (which exceptions shall be deemed in form and substance acceptable to be a part of the Exception Report); provided, however, the Replacement Qualifications shall not be deemed satisfied if Lender shall reasonably determine that such exceptions to such representations are not acceptable and provided, further that Lender may exercise its rights to require that a Property or Substitution Property be replaced by a Substitution Property pursuant to this Section 2.1(b)(i) or Section 2.1(b)(ii) only until the later of (x) 70 days following the Closing Date and (y) 30 days following full satisfaction by Borrower of the Post-Closing Items with respect to such Property or Substitution Property. In addition, if the aggregate valuation of the Properties constituting Collateral based on final Appraisals delivered to Lender (which final Appraisals, for the avoidance of doubt, shall reflect matters contained in the Title Insurance Policies as reasonably requested by Lender) pursuant to this Agreement is less than $700,000,000 following the first Delayed Advance, if so requested by Lender, Borrower shall (at its option) either replace one or more Properties or Substitution Properties with one or more Substitution Properties or add one or more Substitution Properties, selected by Borrower, in each case, in accordance with the requirements of the preceding sentence, such that the aggregate valuation of the Properties constituting Collateral based on the Appraisals delivered to Lender pursuant to this Agreement (which final Appraisals, for the avoidance of doubt, shall reflect matters contained in the Title Insurance Policies as reasonably requested by Lender) is at least $700,000,000. In addition, in connection with the disposition of any Property by Borrower to a Person that is not an affiliate of Borrower or Guarantor, the Property so disposed shall be replaced with a Substitution Property selected by Lender. In connection with any replacement of a Property by a Substitution Property pursuant to the terms of this Agreementtherewith, (w) New Borrower shall certify that covenant, in favor of Lender, not to maintain more than $50,000 at any and all bank accounts at Comerica Bank while the representations contained Loan Agreement remains in Article III hereof are true force and correct with respect to such Substitution Property, subject to effect or there otherwise remain outstanding any exceptions to such representations contained in any such certification (which exceptions shall be deemed to be a part of the Exception Report); provided, however, this clause (w) shall not be deemed satisfied if Lender shall reasonably determine that such exceptions to such representations are not acceptable, (x) Borrower shall cooperate with Lender in executing and recording a Mortgage securing the applicable Substitution Property and shall provide to Lender such other then-existing information and documentation in Borrower’s possession or control with respect to such Substitution Property as was provided to Lender in connection with the other Properties, together with all documentation and information necessary to satisfy each of the items in Section 2.2 and (y) upon the recordation of a Mortgage securing such Substitution Property, Lender shall fully release of record the Property being so replaced from the Lien of the applicable Mortgage in accordance with Section 1.5. In the case of clause (i) of the first sentence of this paragraph, such replacement shall constitute the sole remedy of Lender for such misrepresentation, so long as Borrower did not intentionally cause such misrepresentation to occur. Notwithstanding anything to the contrary contained herein, if Borrower is required to replace one or more Properties pursuant to this Section 2.1 (A) any individual Property may be replaced by multiple Substitution Properties, so long as the aggregate value of such Substitution Properties is no less than the value of the individual Property so replaced (in each case, based on the Appraisals delivered to Lender pursuant to this Agreement) and (B) up to two Properties may be replaced by a single Substitution Property, so long as the value of such Substitution Properties is no less than the aggregate value of the Properties so replaced (in each case, based on the Appraisals delivered to Lender pursuant to this Agreement)Obligations thereunder.

Post-Closing Deliveries. (a) As a material inducement Borrower shall, within fifteen (15) Business Days after the Closing Date, deliver to Lender making the Loana fully-executed and acknowledged subordination, Borrower agrees that it shall deliver Appraisals, Title Insurance Policies nondisturbance and Surveysattornment agreement, in each case acceptable form and content satisfactory to Lender, for each of the Properties on or before April 30leases with Capital Primary Care, 2016 Midwest Retina/300, Grant Riverside Lab, Children’s Hospital and shall use commercially reasonable efforts to satisfy all other Post-Closing Items to Lender’s reasonable satisfaction by April 30, 2016; provided, however, that in any event Borrower shall satisfy all such Post-Closing Items to Lender’s reasonable satisfaction by May 15, 2016, or such later date as to which Lender may grant its consent, not to be unreasonably withheld, delayed or conditioned (so long as Borrower is diligently pursuing the satisfaction of the applicable Post-Closing Items). Post-Closing Items with respect to any Substitution Property shall be delivered no later than the date that is 45 days following the selection of the Substitution Property, or such later date as to which Lender may grant its consent, not to be unreasonably withheld, delayed or conditioned (so long as Borrower is diligently pursuing the satisfaction of the applicable Post-Closing Items). For the avoidance of doubt, notwithstanding the foregoing, the making of any Delayed Advance shall be conditioned on Lender’s receipt of reasonably acceptable Title Insurance Policies for each of the Properties and the payment of all title costs (to the extent any amounts reserved by the title company, if any, are insufficient for paying the premiums for the Title Insurance Policies and other title costs and fees) and Lender’s reasonable out-of-pocket costs (including attorney’s fees) incurred in connection with the origination of the Loan and/or the making of a Delayed Advance, as the case may beDesign Group. (b) In the event that information received by Lender in connection with the Exception ReportBorrower shall, delivery of any Supplemental Exception Report or the satisfaction of any Post-Closing Item within fifteen (whether with respect to a Property or a Substitution Property15) shall result in the determination by Lender in its sole but reasonable discretion that (i) any material representation in this Agreement with respect to any Property or Substitution Property is untrue (notwithstanding the inclusion of any fact or state of affairs on the Exception Report), provided that, solely for the purposes of this clause (i), any reference to the term “Material Adverse Effect” in any representation in this Agreement shall be deemed to be replaced with “Property Material Adverse Effect”, (ii) any Property or Substitution Property does not constitute acceptable Collateral for the Loan (other than solely by virtue of the existence of SAC Conditions), including by reason of anything contained in any Lease or Material Agreement delivered to Lender (either prior to or Business Days after the Closing Date), deliver to Lender fully-executed estoppel certificates, in form and content satisfactory to Lender, for leases representing at least seventy-five (75%) of the results total square footage of any searches with respect the Improvements (except to the Borrower or the Properties received by Lender or any exception contained in the Exception Report or any Supplemental Exception Report or (iii) if Borrower does not provide extent a Phase II Environmental Report with respect to any Property or Substitution Property following a request by Lender to provide such Phase II Environmental Report (if obtaining such a Phase II Environmental Report is indicated by a Phase I Environmental Report with respect to such Property or Substitution Property for any reason other than the existence of SAC Conditions)subordination, then, in each such case, Lender shall have the right, in its sole discretion, to require that the applicable Property or Substitution Property be replaced by a Substitution Property, which Substitution Property may be selected by Borrower (but subject to Lender’s reasonable approval under the circumstances set forth in the last sentence of Section 2.1(c)) so long as (1) such Substitution Property has a value no less than the value of the Property being replaced, as determined by reference to the Appraisals nondisturbance and attornment agreement delivered to Lender pursuant for such leases contained estoppel language satisfactory to this Agreement and Lender). (2c) Borrower shall certify that each shall, within thirty (30) days after the Closing Date, deliver to Lender an updated survey for the Project, certified to Lender and its successors and assigns in accordance with the survey requirements and certification Lender provided to Borrower prior to the Closing Date. Borrower previously delivered to Lender a survey of the representations in Article III hereof are true with respect Project completed prior to the applicable Substitution Property (collectively, the “Replacement Qualifications”), subject to any exceptions to such representations contained in any such certification (which exceptions shall be deemed to be a part of the Exception Report); provided, however, the Replacement Qualifications shall not be deemed satisfied if Lender shall reasonably determine that such exceptions to such representations are not acceptable and provided, further that Lender may exercise its rights to require that a Property or Substitution Property be replaced by a Substitution Property pursuant to this Section 2.1(b)(i) or Section 2.1(b)(ii) only until the later of (x) 70 days following the Closing Date and (y) 30 days following full satisfaction by Borrower of the Post-Closing Items with respect to such Property or Substitution Property. In addition, if the aggregate valuation of the Properties constituting Collateral based on final Appraisals delivered to Lender (which final Appraisals, for the avoidance of doubt, shall reflect matters contained referenced in the Title Insurance Policies Policy (the “Prior Survey”). If the updated survey identifies any encroachments or other matters not disclosed in the Prior Survey and such encroachments or other matters constitute violations of law or otherwise adversely affect in any material way (as reasonably requested determined by Lender) pursuant the value or ability to this Agreement is less than $700,000,000 following finance or market for sale the first Delayed AdvanceProject (“Adverse Survey Matters”), Borrower shall promptly (and in any event within (90) days) take such corrective measures as Lender reasonably requires (including, if so requested required by Lender, Borrower shall (at its option) either replace one or more Properties or Substitution Properties with one or more Substitution Properties or add one or more Substitution Properties, selected by Borrower, in each case, in accordance with the requirements of the preceding sentence, such that the aggregate valuation of the Properties constituting Collateral based on the Appraisals delivered obtaining endorsements to Lender pursuant to this Agreement (which final Appraisals, for the avoidance of doubt, shall reflect matters contained in the Title Insurance Policies as reasonably requested by LenderPolicy) is at least $700,000,000. In additionto eliminate, in connection with insure over or otherwise correct the disposition of any Property by Borrower to a Person that is not an affiliate of Borrower or Guarantor, the Property so disposed shall be replaced with a Substitution Property selected by Lender. In connection with any replacement of a Property by a Substitution Property pursuant to the terms of this Agreement, Adverse Survey Matters. (wd) Borrower shall certify that use commercially reasonably efforts to, within fifteen (15) Business Days after the representations contained in Article III hereof are true and correct with respect to such Substitution PropertyClosing Date, subject to any exceptions to such representations contained in any such certification (which exceptions shall be deemed to be a part of the Exception Report); provided, however, this clause (w) shall not be deemed satisfied if Lender shall reasonably determine that such exceptions to such representations are not acceptable, (x) Borrower shall cooperate with Lender in executing and recording a Mortgage securing the applicable Substitution Property and shall provide deliver to Lender such other then-existing information and documentation in Borrower’s possession or control with respect to such Substitution Property as was provided to Lender in connection with the other Properties, together with all documentation and information necessary to satisfy each of the items in Section 2.2 and (y) upon the recordation of a Mortgage securing such Substitution Property, Lender shall fully release of record the Property being so replaced from the Lien of the applicable Mortgage in accordance with Section 1.5. In the case of clause (i) the fully-executed and acknowledged Consent to Encumbrance, in form and content reasonably satisfactory to Lender and (ii) a certification from Ground Lessor as to the accuracy and completeness of the first sentence of this paragraph, such replacement shall constitute the sole remedy of Lender for such misrepresentation, so long as Borrower did not intentionally cause such misrepresentation to occur. Notwithstanding anything to the contrary contained herein, if Borrower is required to replace one or more Properties pursuant to this Section 2.1 (A) any individual Property may be replaced by multiple Substitution Properties, so long as the aggregate value of such Substitution Properties is no less than the value copy of the individual Property so replaced (in each case, based on the Appraisals Ground Lease previously delivered to Lender pursuant to this Agreement) and (B) up to two Properties may be replaced by a single Substitution Property, so long as the value of such Substitution Properties is no less than the aggregate value of the Properties so replaced (in each case, based on the Appraisals delivered to Lender pursuant to this Agreement)Lender.

Post-Closing Deliveries. As a condition of Lender’s agreements hereunder, the following terms and provisions shall apply (it being agreed that the violation by Borrowers of any of the following provisions shall constitute an immediate Event of Default): (a) As a material inducement to Lender making the Loan, Borrower agrees that it shall deliver Appraisals, Title Insurance Policies and Surveys, in each case acceptable to Lender, for each of the Properties on or before April 30, 2016 and Borrowers shall use commercially reasonable efforts to satisfy all other Post-Closing Items deliver to Lender, within sixty (60) days after the date hereof, a written landlord agreement from Sylantro’s reasonable satisfaction by April 30, 2016; provided, however, that in any event Borrower shall satisfy all such Post-Closing Items to Lender’s reasonable satisfaction by May 15, 2016, or such later date as to which Lender may grant its consent, not to be unreasonably withheld, delayed or conditioned (so long as Borrower is diligently pursuing the satisfaction of the applicable Post-Closing Items). Post-Closing Items landlord with respect to any Substitution Property Sylantro’s leased premises in Campbell, California, on such form and containing such provisions as Lender shall be delivered no later than the date that is 45 days following the selection of the Substitution Property, or such later date as to which Lender may grant its consent, not to be unreasonably withheld, delayed or conditioned (so long as Borrower is diligently pursuing the satisfaction of the applicable Post-Closing Items). For the avoidance of doubt, notwithstanding the foregoing, the making of any Delayed Advance shall be conditioned on Lender’s receipt of reasonably acceptable Title Insurance Policies for each of the Properties and the payment of all title costs (to the extent any amounts reserved by the title company, if any, are insufficient for paying the premiums for the Title Insurance Policies and other title costs and fees) and Lender’s reasonable out-of-pocket costs (including attorney’s fees) incurred in connection with the origination of the Loan and/or the making of a Delayed Advance, as the case may bespecify. (b) In Within thirty (30) days after the event that information received by date hereof, Borrowers shall deliver to Lender evidence, in connection with the Exception Reportform and substance satisfactory to Lender, delivery of any Supplemental Exception Report or the satisfaction of any Post-Closing Item (whether with respect to a Property or a Substitution Property) shall result in the determination by Lender in its sole but reasonable discretion that (i) any material representation Sylantro has insured all of its tangible Collateral, and carries such other business insurance, with an insurer reasonably acceptable to Lender, and that such insurance policies name Lender as an additional loss payee thereunder and contain a lenders loss payee endorsement in this Agreement with respect form and substance satisfactory to any Property Lender, or Substitution Property is untrue (notwithstanding the inclusion of any fact or state of affairs on the Exception Report), provided that, solely for the purposes of this clause (i), any reference to the term “Material Adverse Effect” in any representation in this Agreement shall be deemed to be replaced with “Property Material Adverse Effect”, (ii) any Property or Substitution Property does not constitute acceptable Collateral for the Loan (other than solely by virtue of the existence of SAC Conditions)Existing Borrowers’ current insurance policies, including by reason without limitation business interruption insurance, have been revised to provide coverage of anything contained Sylantro and all of its tangible Collateral, in any Lease or Material Agreement delivered form and amounts reasonably satisfactory to Lender Lender. (either prior to or c) Within five (5) Business Days after the Closing Date), the results of any searches with respect to the Borrower or the Properties received by Lender or any exception contained in the Exception Report or any Supplemental Exception Report or (iii) if Borrower does not provide a Phase II Environmental Report with respect to any Property or Substitution Property following a request by Lender to provide such Phase II Environmental Report (if obtaining such a Phase II Environmental Report is indicated by a Phase I Environmental Report with respect to such Property or Substitution Property for any reason other than the existence of SAC Conditions), then, in each such casedate hereof, Lender shall have the rightreceived, in its sole discretion, to require that the applicable Property or Substitution Property be replaced by a Substitution Property, which Substitution Property may be selected by Borrower (but subject form and substance reasonably satisfactory to Lender’s reasonable approval under , an opinion of counsel to BroadSoft Sylantro, Inc. (fka Sylantro Systems Corporation), a Delaware corporation, with respect to this Amendment and the circumstances set forth in other Loan Documents and such other matters as Lender may reasonably request. (d) Within five (5) Business Days after the last sentence of Section 2.1(c)) so long as (1) such Substitution Property has a value no less than the value of the Property being replaceddate hereof, as determined by reference to the Appraisals Borrowers shall have delivered to Lender pursuant tri-party agreements (or amendments to this Agreement and (2any such existing agreements) Borrower shall certify that each of the representations in Article III hereof are true with respect to the applicable Substitution Property (collectively, the “Replacement Qualifications”), subject to any exceptions to such representations contained in any such certification (which exceptions shall be deemed to be a part each of the Exception Report); provided, however, the Replacement Qualifications shall not be deemed satisfied if Lender shall reasonably determine that such exceptions to such representations are not acceptable and provided, further that Lender may exercise its rights to require that a Property or Substitution Property be replaced by a Substitution Property Sylantro’s Deposit Accounts maintained at SVB Subordinated Creditor pursuant to this Section 2.1(b)(i) or Section 2.1(b)(ii) only until which SVB Subordinated Creditor acknowledges the later security interest and control of (x) 70 days following the Closing Date Lender in such Deposit Accounts and (y) 30 days following full satisfaction by Borrower of the Postagrees to limit its set-Closing Items with respect off rights on terms satisfactory to such Property or Substitution Property. In addition, if the aggregate valuation of the Properties constituting Collateral based on final Appraisals delivered to Lender (which final Appraisals, for the avoidance of doubt, shall reflect matters contained in the Title Insurance Policies as reasonably requested by Lender) pursuant to this Agreement is less than $700,000,000 following the first Delayed Advance, if so requested by Lender, Borrower shall (at its option) either replace one or more Properties or Substitution Properties with one or more Substitution Properties or add one or more Substitution Properties, selected fully executed by Borrower, in each case, in accordance with the requirements of the preceding sentence, such that the aggregate valuation of the Properties constituting Collateral based on the Appraisals delivered to Lender pursuant to this Agreement (which final Appraisals, for the avoidance of doubt, shall reflect matters contained in the Title Insurance Policies as reasonably requested by Lender) is at least $700,000,000. In addition, in connection with the disposition of any Property by Borrower to a Person that is not an affiliate of Borrower or Guarantor, the Property so disposed shall be replaced with a Substitution Property selected by Lender. In connection with any replacement of a Property by a Substitution Property pursuant to the terms of this Agreement, (w) Borrower shall certify that the representations contained in Article III hereof are true and correct with respect to such Substitution Property, subject to any exceptions to such representations contained in any such certification (which exceptions shall be deemed to be a part of the Exception Report); provided, however, this clause (w) shall not be deemed satisfied if Lender shall reasonably determine that such exceptions to such representations are not acceptable, (x) Borrower shall cooperate with Lender in executing and recording a Mortgage securing the applicable Substitution Property and shall provide to Lender such other then-existing information and documentation in Borrower’s possession or control with respect to such Substitution Property as was provided to Lender in connection with the other Properties, together with all documentation and information necessary to satisfy each of the items in Section 2.2 and (y) upon the recordation of a Mortgage securing such Substitution Property, Lender shall fully release of record the Property being so replaced from the Lien of the applicable Mortgage in accordance with Section 1.5. In the case of clause (i) of the first sentence of this paragraph, such replacement shall constitute the sole remedy of Lender for such misrepresentation, so long as Borrower did not intentionally cause such misrepresentation to occur. Notwithstanding anything to the contrary contained herein, if Borrower is required to replace one or more Properties pursuant to this Section 2.1 (A) any individual Property may be replaced by multiple Substitution Properties, so long as the aggregate value of such Substitution Properties is no less than the value of the individual Property so replaced (in each case, based on the Appraisals delivered to Lender pursuant to this Agreement) and (B) up to two Properties may be replaced by a single Substitution Property, so long as the value of such Substitution Properties is no less than the aggregate value of the Properties so replaced (in each case, based on the Appraisals delivered to Lender pursuant to this Agreement)party thereto.

Post-Closing Deliveries. (a) Within 30 days following the Restatement Effective Date, Borrower shall cause to be delivered to Lender, at Borrower’s sole cost and expense, with respect to each Mortgage securing the Original Properties (i) an amendment to such Mortgage increasing the amount secured thereby to $600,000,000 (or, if such Mortgage is in a state in which mortgage recording tax is payable, an amount equal to the sum of the appraised values of the Properties encumbered by such Mortgage, based on the appraisal most recently received by Lender with respect to such Properties) and (ii) a date down and modification endorsement to each Title Insurance Policy covering the Original Properties insuring the continued priority of the related Mortgage. (b) To the extent a Delayed Advance is made, within 30 days following the date of Borrower’s receipt of such Delayed Advance, Borrower shall cause to be delivered to Lender, at Borrower’s sole cost and expense (i) a second lien mortgage for each of the Secondary Properties, which second lien mortgage shall secure only Note Component A-2 and Note B and shall be substantially in the form of the mortgage recorded against such Properties as of the date hereof (for the avoidance of doubt, no such second lien mortgage recorded against any Secondary Property shall secure Note Component A-1), (ii) an endorsement to each Title Insurance Policy insuring that the recording of such mortgage and the making of the Delayed Advance will not adversely affect the coverage afforded by such Title Insurance Policy or the priority of the related first-lien Mortgage and (iii) a legal opinion, in form and substance reasonably satisfactory to Lender, as to the enforceability of each second lien Mortgage securing a Secondary Property under the laws of the state in which the applicable individual Secondary Property is located, and certain other matters covered by local counsel opinions previously delivered to Lender in connection with the Loan (it being understood that the formulation of such opinions shall be subject to the policies of the counsel providing such opinions and qualifications required by the various jurisdictions in which the Properties are located). (c) If Lender shall receive comments from the title company that issued the Title Insurance Policies, regarding the enforceability, validity, effectiveness or insurability of such Mortgage in light of the creation of Note Component A-1, the creation of Note Component A-2, the making of the advance on the Initial Second Lien Advance Date pursuant to the First Amended Loan Agreement, the making of the advance on the Restatement Effective Date pursuant to the terms hereof, the delivery of Note B or the recording of any Mortgage pursuant to this Agreement, Borrower shall cooperate with Lender in the preparation, execution and recording of amendments to such Mortgages (and/or other instruments reasonably required) necessitated by such comments and the delivery of an appropriate mortgage modification endorsement to the applicable Title Insurance Policy, all at Borrower’s sole cost and expense. In addition, if Lender shall determine that any Mortgage on an Initial Property does not provide adequate security for Note Component A-2, Lender shall have the right, in its sole discretion and at Borrower’s sole expense, to require that a second mortgage be recorded against the applicable Property, and Borrower shall cooperate with Lender in executing and recording each such second mortgage. (d) As a material inducement to Lender making the Loan, Borrower agrees that it shall deliver Appraisals, Title Insurance Policies and Surveys, in each case acceptable to Lender, for each of the Restatement Effective Date Properties on or before April 30November 17, 2016 2017 and shall use commercially reasonable efforts to satisfy all other Post-Closing Items (as set forth in Section 2.2) to Lender’s reasonable satisfaction by April November 30, 20162017; provided, however, that in any event Borrower shall satisfy all such Post-Closing Items to Lender’s reasonable satisfaction by May December 15, 20162017, or such later date as to which Lender may grant its consent, not to be unreasonably withheld, delayed or conditioned (so long as Borrower is diligently pursuing the satisfaction of the applicable Post-Closing Items). Post-Closing Items with respect to any Substitution Property shall be delivered no later than the date that is 45 days following the selection of the Substitution Property, or such later date as to which Lender may grant its consent, not to be unreasonably withheld, delayed or conditioned (so long as Borrower is diligently pursuing the satisfaction of the applicable Post-Closing Items). For the avoidance of doubt, notwithstanding the foregoing, the making of any Delayed Advance shall be conditioned on Lender’s receipt of reasonably acceptable Title Insurance Policies for each of the Properties and the payment of all title costs (to the extent any amounts reserved by the title company, if any, are insufficient for paying the premiums for the Title Insurance Policies and other title costs and fees) and Lender’s reasonable out-of-pocket costs (including attorney’s fees) incurred in connection with the origination of the Loan Initial Second Lien Advance and/or the making of a the Delayed Advance, as the case may be. (be) In Notwithstanding anything to the event that information received by contrary in this Agreement, on or prior to November 17, 2017, Borrower may deliver one or more supplements to the Exception Report which may supplement, modify or correct the Exception Report, and each such supplement to the Exception Report shall be deemed to have been a part of the Exception Report as in effect on the Restatement Effective Date. (f) If Lender shall receive comments to any Mortgage from local counsel in connection with the Exception Report, delivery of any Supplemental Exception Report the opinions delivered pursuant to Section 2.2(b), or from the satisfaction title company issuing the Title Insurance Policies, in each case, regarding the enforceability, validity, effectiveness or insurability of such Mortgage, Borrower shall cooperate with Lender in the preparation, execution and recording of any Post-Closing Item (whether amendments to such Mortgages necessitated by such comments and the delivery of an appropriate mortgage modification endorsement to the applicable Title Insurance Policy, all at Borrower’s sole cost and expense. In addition, Lender and Borrower acknowledge and agree that the legal descriptions attached to the Mortgages securing the Restatement Date Properties delivered as of the Restatement Effective Date may not be up to date, and such legal descriptions shall be amended as necessary to conform to the legal descriptions in the Title Insurance Policies as and when delivered. In such event, an amendment or modification of the respective affected Mortgages shall be executed, acknowledged and recorded by the parties to substitute the amended legal description as contained in the Title Insurance Policies and an appropriate mortgage modification endorsement to the applicable Title Insurance Policy shall be obtained, all at the sole cost and expense of Borrower. In addition, if any Environmental Report delivered to Lender with respect to the Restatement Date Properties shall recommend the performance of a Property or a Substitution Property) shall result in the determination by Lender in its sole but reasonable discretion that (i) any material representation in this Agreement with respect to any Property or Substitution Property is untrue (notwithstanding the inclusion of any fact or state of affairs on the Exception Report), provided that, solely for the purposes of this clause (i), any reference to the term “Material Adverse Effect” in any representation in this Agreement shall be deemed to be replaced with “Property Material Adverse Effect”, (ii) any Property or Substitution Property does not constitute acceptable Collateral for the Loan (Phase II Environmental Report other than solely by virtue of the existence of SAC Conditions), including by reason of anything contained in any Lease or Material Agreement delivered to Lender (either prior to or after the Closing Date)at Lender’s request, the results of any searches Borrower shall promptly obtain such assessment with respect to the Borrower or applicable Restatement Date Property if Lender has requested a Phase II Environmental Report with respect to the Properties received by applicable Restatement Date Property; provided, however, if Lender or any exception contained in shall have the Exception Report or any Supplemental Exception Report or (iii) if Borrower does not provide right to require the delivery of a Phase II Environmental Report with respect to any Property or Substitution Property following a request by Lender to provide such Phase II Environmental Report (if obtaining such a Phase II Environmental Report is indicated by a Phase I Environmental Report with respect to such Property or Substitution Property for any reason other than the existence of SAC Conditions), then, in each such case, Lender shall have the right, in its sole discretion, to require that the applicable Property or Substitution Property be replaced by a Substitution Property, which Substitution Property may be selected by Borrower (but subject to Lender’s reasonable approval under the circumstances set forth in the last sentence of Section 2.1(c)) so long as (1) such Substitution Property has a value no less than the value of the Property being replaced, as determined by reference to the Appraisals delivered to Lender pursuant to this Agreement and (2) Borrower shall certify that each of the representations in Article III hereof are true with respect to the applicable Substitution Property (collectively, the “Replacement Qualifications”), subject to any exceptions to such representations contained in any such certification (which exceptions shall be deemed to be a part of the Exception Report); provided, however, the Replacement Qualifications shall not be deemed satisfied if Lender shall reasonably determine that such exceptions to such representations are not acceptable and provided, further that Lender may exercise its rights to require that a Property or Substitution Property be replaced by a Substitution Restatement Date Property pursuant to this Section 2.1(b)(i) or Section 2.1(b)(ii) only until the later of (x) 70 days following the Closing Date and (y) 30 days following full satisfaction by Borrower of the Post-Closing Items with respect to such Property or Substitution Property. In addition, if the aggregate valuation of the Properties constituting Collateral based on final Appraisals delivered to Lender (which final Appraisals, for the avoidance of doubt, shall reflect matters contained in the Title Insurance Policies as reasonably requested by Lender) pursuant to this Agreement is less than $700,000,000 following the first Delayed Advance, if so requested by Lender, Borrower shall (at its option) either replace one or more Properties or Substitution Properties with one or more Substitution Properties or add one or more Substitution Properties, selected by Borrower, in each case, in accordance with the requirements of the preceding sentence, such that to the aggregate valuation of the Properties constituting Collateral extent practicable based on the Appraisals delivered to Lender pursuant to this Agreement (which final Appraisalsrecommendations of a reputable environmental engineer, for any investigation of the avoidance of doubt, shall reflect matters contained in the Title Insurance Policies as reasonably requested by Lender) is at least $700,000,000. In addition, applicable Restatement Date Property in connection with the disposition creation of any Property by Borrower to a Person that is not an affiliate of Borrower or Guarantor, the Property so disposed such report shall be replaced with a Substitution Property selected by Lender. In connection with any replacement of a Property by a Substitution Property pursuant limited only to the terms portions of this Agreement, (w) Borrower shall certify that such Restatement Date Property as may be reasonably necessary to address the representations recommendations contained in Article III hereof are true and correct with respect the related Phase I Environmental Report, other than recommendations related to such Substitution Property, subject to any exceptions to such representations contained in any such certification (which exceptions shall be deemed to be a part of the Exception Report); provided, however, this clause (w) shall not be deemed satisfied if Lender shall reasonably determine that such exceptions to such representations are not acceptable, (x) Borrower shall cooperate with Lender in executing and recording a Mortgage securing the applicable Substitution Property and shall provide to Lender such other then-existing information and documentation in Borrower’s possession or control with respect to such Substitution Property as was provided to Lender in connection with the other Properties, together with all documentation and information necessary to satisfy each of the items in Section 2.2 and (y) upon the recordation of a Mortgage securing such Substitution Property, Lender shall fully release of record the Property being so replaced from the Lien of the applicable Mortgage in accordance with Section 1.5. In the case of clause (i) of the first sentence of this paragraph, such replacement shall constitute the sole remedy of Lender for such misrepresentation, so long as Borrower did not intentionally cause such misrepresentation to occur. Notwithstanding anything to the contrary contained herein, if Borrower is required to replace one or more Properties pursuant to this Section 2.1 (A) any individual Property may be replaced by multiple Substitution Properties, so long as the aggregate value of such Substitution Properties is no less than the value of the individual Property so replaced (in each case, based on the Appraisals delivered to Lender pursuant to this Agreement) and (B) up to two Properties may be replaced by a single Substitution Property, so long as the value of such Substitution Properties is no less than the aggregate value of the Properties so replaced (in each case, based on the Appraisals delivered to Lender pursuant to this Agreement)SAC Conditions.

Post-Closing Deliveries. (a) As a material inducement to Lender making the Loan, Borrower Seller agrees that it shall deliver Appraisals, Title Insurance Policies and Surveys, in each case acceptable to Lender, for each of the Properties on or before April 30, 2016 and shall will use commercially reasonable efforts to satisfy all other Post-Closing Items forward or remit to Lender’s reasonable satisfaction by April 30, 2016; provided, however, that in Buyer each Business Day any event Borrower shall satisfy all such Post-Closing Items to Lender’s reasonable satisfaction by May 15, 2016, payment or such later date as to which Lender may grant its consent, not to be unreasonably withheld, delayed or conditioned (so long as Borrower is diligently pursuing the satisfaction of the applicable Post-Closing Items). Post-Closing Items with respect to any Substitution Property shall be delivered no later than the date that is 45 days following the selection of the Substitution Property, or such later date as to which Lender may grant its consent, not to be unreasonably withheld, delayed or conditioned (so long as Borrower is diligently pursuing the satisfaction of the applicable Post-Closing Items). For the avoidance of doubt, notwithstanding the foregoing, the making amount of any Delayed Advance shall be conditioned on Lender’s receipt of reasonably acceptable Title Insurance Policies for each of the Properties and the payment of all title costs (to the extent any amounts reserved by the title company, if any, are insufficient for paying the premiums for the Title Insurance Policies and other title costs and fees) and Lender’s reasonable out-of-pocket costs (including attorney’s fees) incurred in connection with the origination of the Loan and/or the making of a Delayed Advancepayment, as the case may be, on a Purchased Account received by Seller after the Closing Date (in the case of a remittance, net of any amount previously remitted representing a check returned for insufficient funds, a stop-payment or any amount required to be refunded by Seller to or on behalf of the Account Debtor on such Purchased Account, to the extent such amount has not been previously remitted or refunded). Seller shall forward or remit such payment or amount and any accompanying documentation or information provided by the Account Holder and, if reasonably available to Seller, a means of identifying the Account to which such amount or payment is to be applied within three (3) Business Days after Seller's receipt thereof, by wire transfer or overnight delivery to Buyer pursuant to written instructions provided by Buyer to Seller (or such other method as the parties shall mutually agree). (b) In the event that information received by Lender in connection Seller hereby appoints and empowers Buyer as its true and lawful attorney-in-fact, with the Exception Reportfull power of substitution, delivery of any Supplemental Exception Report or the satisfaction of any Post-Closing Item (whether with respect to a Property or a Substitution Property) shall result in the determination by Lender in its sole but reasonable discretion that (i) any material representation in this Agreement with respect to any Property or Substitution Property is untrue (notwithstanding the inclusion of any fact or state of affairs on the Exception Report), provided that, solely for the purposes limited purpose of this clause (i), endorsing any reference check or other instrument made payable to the term “Material Adverse Effect” in any representation in this Agreement shall be deemed to be replaced with “Property Material Adverse Effect”, (ii) any Property or Substitution Property does not constitute acceptable Collateral for the Loan (other than solely Seller and submitted by virtue of the existence of SAC Conditions), including by reason of anything contained in any Lease or Material Agreement delivered to Lender (either prior to an Account Debtor on or after the Closing Date), the results Date as payment on any Purchased Account for which Buyer is entitled. This power of any searches with respect to the Borrower or the Properties received by Lender or any exception contained in the Exception Report or any Supplemental Exception Report or (iii) if Borrower does not provide a Phase II Environmental Report with respect to any Property or Substitution Property following a request by Lender to provide such Phase II Environmental Report (if obtaining such a Phase II Environmental Report is indicated by a Phase I Environmental Report with respect to such Property or Substitution Property for any reason other than the existence of SAC Conditions), then, in each such case, Lender shall have the right, in its sole discretion, to require that the applicable Property or Substitution Property be replaced by a Substitution Property, which Substitution Property may be selected by Borrower (but subject to Lender’s reasonable approval under the circumstances set forth in the last sentence of Section 2.1(c)) so long as (1) such Substitution Property has a value no less than the value of the Property being replaced, as determined by reference to the Appraisals delivered to Lender pursuant to this Agreement and (2) Borrower shall certify that each of the representations in Article III hereof are true with respect to the applicable Substitution Property (collectively, the “Replacement Qualifications”), subject to any exceptions to such representations contained in any such certification (which exceptions attorney shall be deemed to be a part of power coupled with an interest and shall be irrevocable so long as any such interest is due Buyer. (c) Buyer agrees that it will use commercially reasonable efforts to forward or remit to Seller any payment or the Exception Report); provided, however, the Replacement Qualifications shall not be deemed satisfied if Lender shall reasonably determine that such exceptions to such representations are not acceptable and provided, further that Lender may exercise its rights to require that a Property or Substitution Property be replaced by a Substitution Property pursuant to this Section 2.1(b)(i) or Section 2.1(b)(ii) only until the later of (x) 70 days following the Closing Date and (y) 30 days following full satisfaction by Borrower of the Post-Closing Items with respect to such Property or Substitution Property. In addition, if the aggregate valuation of the Properties constituting Collateral based on final Appraisals delivered to Lender (which final Appraisals, for the avoidance of doubt, shall reflect matters contained in the Title Insurance Policies as reasonably requested by Lender) pursuant to this Agreement is less than $700,000,000 following the first Delayed Advance, if so requested by Lender, Borrower shall (at its option) either replace one or more Properties or Substitution Properties with one or more Substitution Properties or add one or more Substitution Properties, selected by Borrower, in each case, in accordance with the requirements of the preceding sentence, such that the aggregate valuation of the Properties constituting Collateral based on the Appraisals delivered to Lender pursuant to this Agreement (which final Appraisals, for the avoidance of doubt, shall reflect matters contained in the Title Insurance Policies as reasonably requested by Lender) is at least $700,000,000. In addition, in connection with the disposition amount of any Property by Borrower to a Person that is not an affiliate of Borrower or Guarantorpayment, as the Property so disposed shall be replaced with a Substitution Property selected by Lender. In connection with case may be, on any replacement of a Property by a Substitution Property pursuant to the terms of this Agreement, Excluded Account (w) Borrower shall certify that the representations contained in Article III hereof are true and correct with respect to such Substitution Property, subject to any exceptions to such representations contained in any such certification (which exceptions shall be deemed to be a part of the Exception Report); provided, however, this clause (w) shall not be deemed satisfied if Lender shall reasonably determine that such exceptions to such representations are not acceptable, (x) Borrower shall cooperate with Lender in executing and recording a Mortgage securing the applicable Substitution Property and shall provide to Lender such other then-existing information and documentation in Borrower’s possession or control with respect to such Substitution Property as was provided to Lender in connection with the other Properties, together with all documentation and information necessary to satisfy each of the items in Section 2.2 and (y) upon the recordation of a Mortgage securing such Substitution Property, Lender shall fully release of record the Property being so replaced from the Lien of the applicable Mortgage in accordance with Section 1.5. In the case of clause a remittance, net of any amount previously remitted representing a check returned for insufficient funds, a stop-payment or any amount required to be refunded by Buyer to or on behalf of the Account Debtor on any such Excluded Account, to the extent such amount has not been previously remitted or refunded), and will promptly forward any other document pertaining to any Excluded Account received after the Closing Date. Buyer shall forward or remit such payment or amount: (i) within fifteen (15) days if research is required before it can be posted to an Account, and (ii) in all other cases, within three (3) Business Days after Buyer's receipt thereof each by wire transfer pursuant to written instructions provided by Seller to Buyer (or such other method as the parties shall mutually agree if at any time the volume of remittances no longer justifies use of wire transfer), and including the first sentence date, amount and Account number to which such payment is to be applied (to the extent Buyer is able to determine such information). (d) To the extent that Account Documentation relating to Purchased Accounts may be in the possession of this paragraphSeller, Seller will, within seven (7) days after the Closing Date, deliver to Buyer, and to the extent that Account Documentation relating to Purchased Accounts may be in the possession of any third party, Seller will use commercially reasonable efforts to cause such third party to deliver to Buyer, such replacement shall constitute Account Documentation to Buyer at Buyer's address set forth in Section 9.6 in the sole remedy of Lender format and media on which Seller or any third party responsible for such misrepresentation, so long as Borrower did not intentionally cause storage currently stores such misrepresentation to occur. Notwithstanding anything to the contrary contained herein, if Borrower is required to replace one or more Properties pursuant to this Section 2.1 (A) any individual Property may be replaced by multiple Substitution Properties, so long as the aggregate value of such Substitution Properties is no less than the value of the individual Property so replaced (in each case, based on the Appraisals delivered to Lender pursuant to this Agreement) and (B) up to two Properties may be replaced by a single Substitution Property, so long as the value of such Substitution Properties is no less than the aggregate value of the Properties so replaced (in each case, based on the Appraisals delivered to Lender pursuant to this Agreement)materials.

Post-Closing Deliveries. (a) As a material inducement to Lender making Within 30 days following the LoanRestatement Effective Date, Borrower agrees that it shall deliver Appraisals, Title Insurance Policies and Surveys, in each case acceptable cause to be delivered to Lender, for each of the Properties on or before April 30at Borrower’s sole cost and expense, 2016 and shall use commercially reasonable efforts to satisfy all other Post-Closing Items to Lender’s reasonable satisfaction by April 30, 2016; provided, however, that in any event Borrower shall satisfy all such Post-Closing Items to Lender’s reasonable satisfaction by May 15, 2016, or such later date as to which Lender may grant its consent, not to be unreasonably withheld, delayed or conditioned (so long as Borrower is diligently pursuing the satisfaction of the applicable Post-Closing Items). Post-Closing Items with respect to any Substitution Property shall be delivered no later than each Mortgage securing the Initial Properties, a date that is 45 days following down and/or priority endorsement to each Title Insurance Policy covering the selection Initial Properties insuring the continued priority of the Substitution Property, or such later date as to which Lender may grant its consent, not to be unreasonably withheld, delayed or conditioned (so long as Borrower is diligently pursuing the satisfaction of the applicable Post-Closing Items). For the avoidance of doubt, notwithstanding the foregoing, the making of any Delayed Advance shall be conditioned on Lender’s receipt of reasonably acceptable Title Insurance Policies for each of the Properties and the payment of all title costs (to the extent any amounts reserved by the title company, if any, are insufficient for paying the premiums for the Title Insurance Policies and other title costs and fees) and Lender’s reasonable out-of-pocket costs (including attorney’s fees) incurred in connection with the origination of the Loan and/or the making of a Delayed Advance, as the case may berelated Mortgage. (b) In To the event that information received extent a Delayed Advance is made, within 30 days following the date of Borrower’s receipt of such Delayed Advance, Borrower shall cause to be delivered to Lender, at Borrower’s sole cost and expense (i) a second lien mortgage securing only Note B for each of the Secondary Properties and, if requested by Lender in connection with a reallocation of the Exception ReportPrincipal Indebtedness evidenced by Note Component A-2 to Note B pursuant to Section 1.1(a), delivery each of any Supplemental Exception Report or the satisfaction of any Post-Closing Item (whether with respect to a Property or a Substitution Property) shall result Initial Properties, in each case, substantially in the determination by Lender in its sole but reasonable discretion that (i) any material representation in this Agreement with respect to any Property or Substitution Property is untrue (notwithstanding form of the inclusion mortgage recorded against such Properties as of any fact or state of affairs on the Exception Report)date hereof, provided that, solely for the purposes of this clause (i), any reference to the term “Material Adverse Effect” in any representation in this Agreement shall be deemed to be replaced with “Property Material Adverse Effect”, and (ii) an endorsement to each Title Insurance Policy insuring that the recording of such mortgage and the making of the Delayed Advance will not adversely affect the coverage afforded by such Title Insurance Policy or the priority of the related first-lien Mortgage. (c) If Lender shall receive comments from the title company that issued the Title Insurance Policies, regarding the enforceability, validity, effectiveness or insurability of such Mortgage in light of the creation of the making of the Restatement Date Advance, the creation of Note Component A-2, the delivery of Note B or the recording of any Property or Substitution second lien mortgage pursuant to this Agreement, Borrower shall cooperate with Lender in the preparation, execution and recording of amendments to such Mortgages (and/or other instruments reasonably required) necessitated by such comments and the delivery of an appropriate mortgage modification endorsement to the applicable Title Insurance Policy, all at Borrower’s sole cost and expense. In addition, if Lender shall determine that any Mortgage on an Initial Property does not constitute acceptable Collateral provide adequate security for the Loan (other than solely by virtue of the existence of SAC Conditions), including by reason of anything contained in any Lease or Material Agreement delivered to Lender (either prior to or after the Closing Date), the results of any searches with respect to the Borrower or the Properties received by Lender or any exception contained in the Exception Report or any Supplemental Exception Report or (iii) if Borrower does not provide a Phase II Environmental Report with respect to any Property or Substitution Property following a request by Lender to provide such Phase II Environmental Report (if obtaining such a Phase II Environmental Report is indicated by a Phase I Environmental Report with respect to such Property or Substitution Property for any reason other than the existence of SAC Conditions), then, in each such caseNote Component A-2, Lender shall have the right, in its sole discretiondiscretion and at Borrower’s sole expense, to require that a second mortgage be recorded against the applicable Property or Substitution Property be replaced by a Substitution Property, which Substitution Property may be selected by Borrower (but subject to Lender’s reasonable approval under the circumstances set forth in the last sentence of Section 2.1(c)) so long as (1) such Substitution Property has a value no less than the value of the Property being replaced, as determined by reference to the Appraisals delivered to Lender pursuant to this Agreement and (2) Borrower shall certify that each of the representations in Article III hereof are true with respect to the applicable Substitution Property (collectively, the “Replacement Qualifications”), subject to any exceptions to such representations contained in any such certification (which exceptions shall be deemed to be a part of the Exception Report); provided, however, the Replacement Qualifications shall not be deemed satisfied if Lender shall reasonably determine that such exceptions to such representations are not acceptable and provided, further that Lender may exercise its rights to require that a Property or Substitution Property be replaced by a Substitution Property pursuant to this Section 2.1(b)(i) or Section 2.1(b)(ii) only until the later of (x) 70 days following the Closing Date and (y) 30 days following full satisfaction by Borrower of the Post-Closing Items with respect to such Property or Substitution Property. In addition, if the aggregate valuation of the Properties constituting Collateral based on final Appraisals delivered to Lender (which final Appraisals, for the avoidance of doubt, shall reflect matters contained in the Title Insurance Policies as reasonably requested by Lender) pursuant to this Agreement is less than $700,000,000 following the first Delayed Advance, if so requested by Lender, Borrower shall (at its option) either replace one or more Properties or Substitution Properties with one or more Substitution Properties or add one or more Substitution Properties, selected by Borrower, in each case, in accordance with the requirements of the preceding sentence, such that the aggregate valuation of the Properties constituting Collateral based on the Appraisals delivered to Lender pursuant to this Agreement (which final Appraisals, for the avoidance of doubt, shall reflect matters contained in the Title Insurance Policies as reasonably requested by Lender) is at least $700,000,000. In addition, in connection with the disposition of any Property by Borrower to a Person that is not an affiliate of Borrower or Guarantor, the Property so disposed shall be replaced with a Substitution Property selected by Lender. In connection with any replacement of a Property by a Substitution Property pursuant to the terms of this Agreement, (w) Borrower shall certify that the representations contained in Article III hereof are true and correct with respect to such Substitution Property, subject to any exceptions to such representations contained in any such certification (which exceptions shall be deemed to be a part of the Exception Report); provided, however, this clause (w) shall not be deemed satisfied if Lender shall reasonably determine that such exceptions to such representations are not acceptable, (x) Borrower shall cooperate with Lender in executing and recording a Mortgage securing the applicable Substitution Property and shall provide to Lender each such other then-existing information and documentation in Borrower’s possession or control with respect to such Substitution Property as was provided to Lender in connection with the other Properties, together with all documentation and information necessary to satisfy each of the items in Section 2.2 and (y) upon the recordation of a Mortgage securing such Substitution Property, Lender shall fully release of record the Property being so replaced from the Lien of the applicable Mortgage in accordance with Section 1.5. In the case of clause (i) of the first sentence of this paragraph, such replacement shall constitute the sole remedy of Lender for such misrepresentation, so long as Borrower did not intentionally cause such misrepresentation to occur. Notwithstanding anything to the contrary contained herein, if Borrower is required to replace one or more Properties pursuant to this Section 2.1 (A) any individual Property may be replaced by multiple Substitution Properties, so long as the aggregate value of such Substitution Properties is no less than the value of the individual Property so replaced (in each case, based on the Appraisals delivered to Lender pursuant to this Agreement) and (B) up to two Properties may be replaced by a single Substitution Property, so long as the value of such Substitution Properties is no less than the aggregate value of the Properties so replaced (in each case, based on the Appraisals delivered to Lender pursuant to this Agreement)second mortgage.

Post-Closing Deliveries. (a) As a material inducement to Lender making the Loan, Borrower agrees that it shall deliver Appraisals, Title Insurance Policies and Surveys, in each case acceptable to Lender, for each of the Properties on or before April 30January 31, 2016 2017 and shall use commercially reasonable efforts to satisfy all other Post-Closing Items to Lender’s reasonable satisfaction by April 30February 15, 20162017; provided, however, that in any event Borrower shall satisfy all such Post-Closing Items to Lender’s reasonable satisfaction by May 15February 28, 20162017, or such later date as to which Lender may grant its consent, not to be unreasonably withheld, delayed or conditioned (so long as Borrower is diligently pursuing the satisfaction of the applicable Post-Closing Items). Post-Closing Items with respect to any Substitution Property shall be delivered no later than the date that is 45 days following the selection of the Substitution Property, or such later date as to which Lender may grant its consent, not to be unreasonably withheld, delayed or conditioned (so long as Borrower is diligently pursuing the satisfaction of the applicable Post-Closing Items). For the avoidance of doubt, notwithstanding the foregoing, the making of any Delayed Advance shall be conditioned on Lender’s receipt of reasonably acceptable Title Insurance Policies for each of the Properties and the payment of all title costs (to the extent any amounts reserved by the title company, if any, are insufficient for paying the premiums for the Title Insurance Policies and other title costs and fees) and Lender’s reasonable out-of-pocket costs (including attorney’s fees) incurred in connection with the origination of the Loan and/or the making of a Delayed Advance, as the case may be. (b) In Notwithstanding anything to the event that information received by Lender contrary in connection with this Agreement, on or prior to March 31, 2016, Borrower may deliver one or more supplements to the Exception Report (collectively, the “Supplemental Exception Report”) which may supplement, modify or correct the Exception Report and each such Supplemental Exception Report shall be deemed to have been a part of the Exception Report as in effect on the Closing Date, provided that, following the delivery of any such Supplemental Exception Report, delivery Lender shall have the right (in its sole but reasonable discretion) to require Borrower to substitute one or more of the Properties pursuant to Section 2.2 on the basis of the information contained in any such Supplemental Exception Report or the satisfaction Exception Report. For the avoidance of any Post-Closing Item (whether with respect to a Property or a Substitution Property) shall result in doubt, the determination by Lender in its sole but reasonable discretion that (i) any material representation in this Agreement with respect to any Property or Substitution Property is untrue (notwithstanding the inclusion disclosure of any fact or state of affairs on the Exception Report), provided that, solely for the purposes of this clause (i), any reference to the term “Material Adverse Effect” in any representation in this Agreement shall be deemed to be replaced with “Property Material Adverse Effect”, (ii) any Property or Substitution Property does not constitute acceptable Collateral for the Loan (other than solely by virtue of the existence of SAC Conditions), including by reason of anything contained in any Lease or Material Agreement delivered to Lender (either prior to or after the Closing Date), the results of any searches with respect to the Borrower or the Properties received by Lender or any exception contained in the Exception Report or any Supplemental Exception Report or (iii) if Borrower does shall not provide a Phase II Environmental Report with respect to in any Property or Substitution Property following a request by Lender to provide such Phase II Environmental Report (if obtaining such a Phase II Environmental Report is indicated by a Phase I Environmental Report with respect to such Property or Substitution Property for any reason other than the existence of SAC Conditions), then, in each such case, Lender shall have the right, in its sole discretion, way limit Lender’s right to require that the applicable Property or Substitution Property be replaced by a Substitution Property, which Substitution Property may be selected by Borrower (but subject to Lender’s reasonable approval under the circumstances set forth in the last sentence of Section 2.1(c)) so long as (1) such Substitution Property has a value no less than the value of the Property being replaced, as determined by reference to the Appraisals delivered to Lender pursuant to this Agreement and (2) Borrower shall certify that each of the representations in Article III hereof are true with respect to the applicable Substitution Property (collectively, the “Replacement Qualifications”), subject to any exceptions to such representations contained in any such certification (which exceptions shall be deemed to be a part of the Exception Report); provided, however, the Replacement Qualifications shall not be deemed satisfied if Lender shall reasonably determine that such exceptions to such representations are not acceptable and provided, further that Lender may exercise its rights to require that a Property or Substitution Property be replaced by a Substitution Property pursuant to this Section 2.1(b)(i) or Section 2.1(b)(ii) only until the later of (x) 70 days following the Closing Date and (y) 30 days following full satisfaction by Borrower of the Post-Closing Items with respect to such Property or Substitution Property. In addition, if the aggregate valuation of the Properties constituting Collateral based on final Appraisals delivered to Lender (which final Appraisals, for the avoidance of doubt, shall reflect matters contained in the Title Insurance Policies as reasonably requested by Lender) pursuant to this Agreement is less than $700,000,000 following the first Delayed Advance, if so requested by Lender, Borrower shall (at its option) either replace substitute one or more Properties or Substitution Properties with one or more Substitution Properties or add one or more Substitution Properties, selected by Borrower, in each case, in accordance with the requirements of the preceding sentence, such that the aggregate valuation of the Properties constituting Collateral based on the Appraisals delivered to Lender pursuant to this Agreement (which final Appraisals, for the avoidance of doubt, shall reflect matters contained in the Title Insurance Policies as reasonably requested by Lender) is at least $700,000,000. In addition, in connection with the disposition of any Property by Borrower to a Person that is not an affiliate of Borrower or Guarantor, the Property so disposed shall be replaced with a Substitution Property selected by Lender. In connection with any replacement of a Property by a Substitution Property pursuant to the terms of this Agreement, (w) Borrower shall certify that the representations contained in Article III hereof are true and correct with respect to such Substitution Property, subject to any exceptions to such representations contained in any such certification (which exceptions shall be deemed to be a part of the Exception Report); provided, however, this clause (w) shall not be deemed satisfied if Lender shall reasonably determine that such exceptions to such representations are not acceptable, (x) Borrower shall cooperate with Lender in executing and recording a Mortgage securing the applicable Substitution Property and shall provide to Lender such other then-existing information and documentation in Borrower’s possession or control with respect to such Substitution Property as was provided to Lender in connection with the other Properties, together with all documentation and information necessary to satisfy each of the items in Section 2.2 and (y) upon the recordation of a Mortgage securing such Substitution Property, Lender shall fully release of record the Property being so replaced from the Lien of the applicable Mortgage in accordance with Section 1.5. In the case of clause (i) of the first sentence of this paragraph, such replacement shall constitute the sole remedy of Lender for such misrepresentation, so long as Borrower did not intentionally cause such misrepresentation to occur. Notwithstanding anything to the contrary contained herein, if Borrower is required to replace one or more Properties pursuant to this Section 2.1 (A) any individual Property may be replaced by multiple Substitution Properties, so long as the aggregate value of such Substitution Properties is no less than the value of the individual Property so replaced (in each case, based on the Appraisals delivered to Lender pursuant to this Agreement) and (B) up to two Properties may be replaced by a single Substitution Property, so long as the value of such Substitution Properties is no less than the aggregate value of the Properties so replaced (in each case, based on the Appraisals delivered to Lender pursuant to this Agreement)2.2.

Post-Closing Deliveries. The Borrowers shall deliver to the Agent as soon as possible and in any event within 30 days after the Closing Date, (a) As a material inducement schedule setting forth Cemetery Properties as of the Closing Date; (b) a schedule setting forth Funeral Home Properties as of the Closing Date; (c) a schedule setting forth all Liens on property or assets of the Borrowers in existence as of the Petition Date; and (d) a schedule listing all leases, subleases or assignments of leases (together with all amendments, modifications, supplements, renewals or extensions of any thereof) affecting each real property asset of any Borrower, regardless of whether such Borrower is the landlord or tenant (whether directly or as an assignee or successor in interest) under such lease, sublease or assignment. The Borrowers hereby also agree to Lender making (i) deliver to the LoanAgent as soon as possible and in any event no later than 10 Business Days after the Closing Date, Borrower agrees that it shall deliver Appraisals(A) a schedule listing each real property asset of the Borrowers for which personal property Lien and judgement Lien searches and title reports were ordered on or prior to the Closing Date by the Borrowers and (B) all appraisals of real property assets of the Borrowers which are readily available and a schedule of those real property assets for which appraisals are retained in the records of the Borrowers, Title Insurance Policies (ii) order, (x) as soon as possible and Surveysin any event no later than 30 days after the Closing Date, personal property Lien and judgement Lien searches, and (y) as soon as possible and in any event no later than 45 days after the Closing Date, title reports, in each case acceptable to Lender, for each real property asset of the Properties Borrowers for which such items have not been ordered on or before April 30prior to the Closing Date, 2016 and shall use commercially reasonable efforts to satisfy all other Post-Closing Items deliver to Lender’s reasonable satisfaction by April 30, 2016; provided, however, that in any event Borrower shall satisfy all such Post-Closing Items to Lender’s reasonable satisfaction by May 15, 2016, or such later date as to which Lender may grant its consent, not to be unreasonably withheld, delayed or conditioned (so long as Borrower is diligently pursuing the satisfaction of the applicable Post-Closing Items). Post-Closing Items with respect to any Substitution Property shall be delivered Agent no later than such applicable date a list of such ordered items, and (iii) deliver to the date that Agent a copy of each such title report, personal property Lien search, judgement Lien search promptly after it is 45 days following received by the selection Borrowers or retrieved from their records. Upon receipt of 45% of the Substitution Property, or such later date as to which Lender may grant its consent, not to be unreasonably withheld, delayed or conditioned (so long as Borrower is diligently pursuing the satisfaction title reports and 66-2/3% 69 of the applicable Post-Closing Items). For the avoidance of doubt, notwithstanding the foregoing, the making of any Delayed Advance shall be conditioned personal property Lien and judgment Lien searches identified on Lender’s receipt of reasonably acceptable Title Insurance Policies for each of the Properties and the payment of all title costs (schedules received pursuant to the extent any amounts reserved by the title company, if any, are insufficient for paying the premiums for the Title Insurance Policies and other title costs and fees) and Lender’s reasonable out-of-pocket costs (including attorney’s fees) incurred in connection with the origination of the Loan and/or the making of a Delayed Advance, as the case may be. (b) In the event that information received by Lender in connection with the Exception Report, delivery of any Supplemental Exception Report or the satisfaction of any Post-Closing Item (whether with respect to a Property or a Substitution Property) shall result in the determination by Lender in its sole but reasonable discretion that clauses (i) any material representation in this Agreement with respect to any Property or Substitution Property is untrue (notwithstanding the inclusion of any fact or state of affairs on the Exception Report), provided that, solely for the purposes of this clause (i), any reference to the term “Material Adverse Effect” in any representation in this Agreement shall be deemed to be replaced with “Property Material Adverse Effect”, and (ii) any Property or Substitution Property does not constitute acceptable Collateral for the Loan (other than solely by virtue of the existence of SAC Conditions), including by reason of anything contained in any Lease or Material Agreement delivered to Lender (either prior to or after the Closing Date), the results of any searches with respect to the Borrower or the Properties received by Lender or any exception contained in the Exception Report or any Supplemental Exception Report or (iii) if Borrower does not provide a Phase II Environmental Report with respect to any Property or Substitution Property following a request by Lender to provide such Phase II Environmental Report (if obtaining such a Phase II Environmental Report is indicated by a Phase I Environmental Report with respect to such Property or Substitution Property for any reason other than the existence of SAC Conditions), then, in each such case, Lender shall have the right, in its sole discretion, to require that the applicable Property or Substitution Property be replaced by a Substitution Property, which Substitution Property may be selected by Borrower (but subject to Lender’s reasonable approval under the circumstances set forth in the last sentence of Section 2.1(c)) so long as (1) such Substitution Property has a value no less than the value of the Property being replaced, as determined by reference to the Appraisals delivered to Lender pursuant to this Agreement and (2) Borrower shall certify that each of the representations in Article III hereof are true with respect to the applicable Substitution Property (collectively, the “Replacement Qualifications”), subject to any exceptions to such representations contained in any such certification (which exceptions shall be deemed to be a part of the Exception Report); provided, however, the Replacement Qualifications shall not be deemed satisfied if Lender shall reasonably determine that such exceptions to such representations are not acceptable and provided, further that Lender may exercise its rights to require that a Property or Substitution Property be replaced by a Substitution Property pursuant to this Section 2.1(b)(i) or Section 2.1(b)(ii) only until the later of (x) 70 days following the Closing Date and (y) 30 days following full satisfaction by Borrower of the Post-Closing Items with respect to such Property or Substitution Property. In addition, if the aggregate valuation of the Properties constituting Collateral based on final Appraisals delivered to Lender (which final Appraisals, for the avoidance of doubt, shall reflect matters contained in the Title Insurance Policies as reasonably requested by Lender) pursuant to this Agreement is less than $700,000,000 following the first Delayed Advance, if so requested by Lender, Borrower shall (at its option) either replace one or more Properties or Substitution Properties with one or more Substitution Properties or add one or more Substitution Properties, selected by Borrower, in each case, in accordance with the requirements of the preceding sentence, such that the aggregate valuation results of which shall be reasonably satisfactory to the Properties constituting Collateral based on the Appraisals delivered to Lender pursuant to this Agreement (which final Appraisals, for the avoidance of doubt, shall reflect matters contained in the Title Insurance Policies as reasonably requested by Lender) is at least $700,000,000. In addition, in connection with the disposition of any Property by Borrower to a Person that is not an affiliate of Borrower or GuarantorAgent, the Property so disposed shall be replaced with a Substitution Property selected by Lender. In connection with any replacement of a Property by a Substitution Property pursuant to the terms of this Agreement, (w) Borrower shall certify that the representations contained in Article III hereof are true and correct with respect to such Substitution Property, subject to any exceptions to such representations contained in any such certification (which exceptions Agent shall be deemed to have received "REQUISITE COLLATERAL INFORMATION". TLGI and the Borrowers shall also cause each document, certificate or other item set forth on SCHEDULE 7.36 annexed hereto to be a part of delivered within the Exception Report); provided, however, this clause (w) shall not be deemed satisfied if Lender shall time period specified on such SCHEDULE 7.36 and in form and substance reasonably determine that such exceptions to such representations are not acceptable, (x) Borrower shall cooperate with Lender in executing and recording a Mortgage securing the applicable Substitution Property and shall provide to Lender such other then-existing information and documentation in Borrower’s possession or control with respect to such Substitution Property as was provided to Lender in connection with the other Properties, together with all documentation and information necessary to satisfy each of the items in Section 2.2 and (y) upon the recordation of a Mortgage securing such Substitution Property, Lender shall fully release of record the Property being so replaced from the Lien of the applicable Mortgage in accordance with Section 1.5. In the case of clause (i) of the first sentence of this paragraph, such replacement shall constitute the sole remedy of Lender for such misrepresentation, so long as Borrower did not intentionally cause such misrepresentation to occur. Notwithstanding anything satisfactory to the contrary contained herein, if Borrower is required to replace one or more Properties pursuant to this Section 2.1 (A) any individual Property may be replaced by multiple Substitution Properties, so long as the aggregate value of such Substitution Properties is no less than the value of the individual Property so replaced (in each case, based on the Appraisals delivered to Lender pursuant to this Agreement) and (B) up to two Properties may be replaced by a single Substitution Property, so long as the value of such Substitution Properties is no less than the aggregate value of the Properties so replaced (in each case, based on the Appraisals delivered to Lender pursuant to this Agreement)Agent.

Post-Closing Deliveries. (a) As No later than sixty (60) days following the Closing Date, or at such later date as Agent in its sole discretion may elect, Real Estate Borrowers shall deliver, or ▇▇▇▇-▇▇▇▇▇, ▇-▇ ▇▇▇▇▇▇▇▇▇▇, ▇-▇ ▇▇▇▇▇▇▇ or ▇-▇ Logistics (as applicable) shall cause Real Estate Borrowers to deliver, to Agent the following: (i) a material inducement valid and perfected first priority Leasehold Mortgage (subject to Lender making Permitted Liens) in favor of Agent upon each Leasehold Property to which no value has been given under the LoanInitial Leasehold Report and not delivered to Agent on the Closing Date in accordance with Section 5.1.15(a) hereof (other than the Leasehold Property identified on Item 5.1.15(a) of the Disclosure Schedule and the Leasehold Property, Borrower agrees that it shall deliver Appraisalsthe lease of which is subject to a valid and enforceable prohibition on the granting of a leasehold mortgage by the lessee), Title Insurance Policies and Surveyswhether pursuant to a modification agreement as to Leasehold Property subject to a leasehold mortgage in favor of Agent in connection with the Existing Credit Agreement or a new Leasehold Mortgage as to Leasehold Property not subject to a leasehold mortgage in favor of Agent in connection with the Existing Credit Agreement, in each case acceptable in a form suitable for recording or filing, duly authorized, executed and delivered by Stores Leasing, Raleigh Leasing, ▇▇▇▇▇▇▇▇▇▇ Leasing or Warehouse Leasing, as applicable; (ii) if required in the jurisdiction in which the Leasehold Property is located, evidence that (A) an amendment to Lenderan existing fixture filing naming Agent, for each of as secured party, and the Properties on applicable Borrower or before April 30Guarantor, 2016 and shall use commercially reasonable efforts as debtor, to satisfy all other Post-Closing Items to Lender’s reasonable satisfaction by April 30reflect Stores Leasing, 2016; providedRaleigh Leasing, however▇▇▇▇▇▇▇▇▇▇ Leasing or Warehouse Leasing, that in any event Borrower shall satisfy all such Post-Closing Items to Lender’s reasonable satisfaction by May 15as applicable, 2016as the debtor, or such later date (B) a fixture filing naming Agent, as to which Lender may grant its consentsecured party, not to be unreasonably withheldand Stores Leasing, delayed Raleigh Leasing, ▇▇▇▇▇▇▇▇▇▇ Leasing or conditioned (so long Warehouse Leasing, as Borrower is diligently pursuing the satisfaction of the applicable Post-Closing Items). Post-Closing Items applicable, as debtor, have been filed with respect to any Substitution such Leasehold Property; (iii) either (A) leasehold title insurance policies or (B) an endorsement to the existing leasehold title insurance policies, in each case in favor of Agent issued by insurers satisfactory to Agent, insuring that title to such Leasehold Property (together with all other Leasehold Property having an aggregate appraised value of not less than $100,000,000) is marketable and that the interests created by such Leasehold Mortgage constitutes a valid first Lien (subject to Permitted Liens) thereon free and clear of all material defects and encumbrances (other than Permitted Liens) other than as approved by Agent, and, if required by Agent and if available under then applicable state law, revolving credit endorsement, comprehensive endorsement, variable rate endorsement, access and utilities endorsements, mechanic’s lien endorsement and such other endorsements as Agent shall be delivered no later than the date that is 45 days following the selection reasonably request and accompanied by evidence of the Substitution Property, or such later date as to which Lender may grant its consent, not to be unreasonably withheld, delayed or conditioned (so long as Borrower is diligently pursuing the satisfaction of the applicable Post-Closing Items). For the avoidance of doubt, notwithstanding the foregoing, the making of any Delayed Advance shall be conditioned on Lender’s receipt of reasonably acceptable Title Insurance Policies for each of the Properties and the payment in full of all title costs premiums thereon, (iv) to the extent any amounts reserved that a leasehold title insurance policy is not requested by Agent for such Leasehold Property and Agent has not received evidence of a lease or memorandum of lease with respect to such Leasehold Property appearing in the applicable real estate records for such Leasehold Property, a title company, if any, are insufficient search for paying such Leasehold Property showing that the premiums for applicable mortgagor is the Title Insurance Policies and other current record title costs and fees) and Lender’s reasonable out-of-pocket costs (including attorney’s fees) incurred in connection with the origination holder of the Loan and/or leasehold interest; and (v) all consents, waivers, acknowledgments, agreements and approvals from other third parties which Agent in good faith may deem necessary or desirable in order to permit, protect and perfect the making Leasehold Mortgage of a Delayed Advance, as Agent in any such Leasehold Property and related assets subject to the case may beLeasehold Mortgage with respect thereto. (b) In No later than one hundred twenty (120) days following the event that information received by Lender in connection with the Exception ReportClosing Date, delivery of any Supplemental Exception Report or the satisfaction of any Post-Closing Item (whether with respect to a Property or a Substitution Property) shall result in the determination by Lender at such later date as Agent in its sole but reasonable discretion may elect, ▇▇▇▇-▇▇▇▇▇ shall deliver to Agent, in form and substance satisfactory to Agent in good faith, evidence that each of ▇▇▇▇▇ Stores, ▇▇▇▇▇ Realty and Sundown Sales has been liquidated and dissolved or consolidated or merged with and into ▇▇▇▇-▇▇▇▇▇ or any other Borrower (other than a Real Estate Borrower) or a Guarantor, in each case in accordance with applicable law, including all agreements, documents and instruments filed with any Governmental Authority or as are otherwise required to effectuate such liquidation, dissolution, consolidation or merger. Notwithstanding the foregoing, the final tax return for ▇▇▇▇▇ Stores may be filed in the ordinary course of business. (c) No later than sixty (60) days following the Closing Date, or at such later date as Agent in its sole discretion may elect, ▇▇▇▇-▇▇▇▇▇ shall deliver to Agent, in form and substance satisfactory to Agent in good faith (i) lien and judgment search results from each parish or other applicable filing office in the State of Louisiana in which any material representation in this Agreement with respect to any Borrower conducts business, owns Real Property or Substitution Property is untrue (notwithstanding the inclusion of any fact or state of affairs on the Exception Report), provided that, solely for the purposes of this clause (i), any reference to the term “Material Adverse Effect” in any representation in this Agreement shall be deemed to be replaced with “Property Material Adverse Effect”maintains Leasehold Property, (ii) any Property or Substitution Property does not constitute acceptable Collateral for a certified copy of an Order in Aid of Plan Consummation, as duly entered by the Loan (other than solely by virtue of the existence of SAC Conditions)Bankruptcy Court, including by reason of anything contained in any Lease or Material Agreement delivered to Lender (either prior to or after the Closing Date), the results of any searches with respect to the Borrower or the Properties received by Lender or any exception contained liens of record in the Exception Report or any Supplemental Exception Report or State of Louisiana that require discharging pursuant to the Confirmation Order, and (iii) if Borrower does not provide evidence that a Phase II Environmental Report with respect certified copy of such Order in Aid of Plan Consummation has been filed in each parish in the State of Louisiana in which such liens are of record. (d) Except as otherwise set forth herein, upon the request of Agent, ▇▇▇▇-▇▇▇▇▇ will deliver, or cause its Subsidiaries to any Property or Substitution Property following a request by Lender to provide such Phase II Environmental Report (if obtaining such a Phase II Environmental Report is indicated by a Phase I Environmental Report with respect to such Property or Substitution Property for any reason other than the existence of SAC Conditions), thendeliver, in each such caseform and substance satisfactory to Agent in good faith, Lender shall have all consents, waivers, acknowledgments and other agreements from third persons which Agent in good faith may deem necessary or desirable in order to permit, protect and perfect its Liens upon the right, in its sole discretion, Collateral or to require that effectuate the applicable Property provisions or Substitution Property be replaced by a Substitution Property, which Substitution Property may be selected by Borrower (but subject to Lender’s reasonable approval under the circumstances set forth in the last sentence purposes of Section 2.1(c)) so long as (1) such Substitution Property has a value no less than the value of the Property being replaced, as determined by reference to the Appraisals delivered to Lender pursuant to this Agreement and (2) Borrower shall certify that each of the representations in Article III hereof are true with respect to the applicable Substitution Property (collectively, the “Replacement Qualifications”), subject to any exceptions to such representations contained in any such certification (which exceptions shall be deemed to be a part of the Exception Report); provided, however, the Replacement Qualifications shall not be deemed satisfied if Lender shall reasonably determine that such exceptions to such representations are not acceptable and provided, further that Lender may exercise its rights to require that a Property or Substitution Property be replaced by a Substitution Property pursuant to this Section 2.1(b)(i) or Section 2.1(b)(ii) only until the later of (x) 70 days following the Closing Date and (y) 30 days following full satisfaction by Borrower of the Post-Closing Items with respect to such Property or Substitution Property. In addition, if the aggregate valuation of the Properties constituting Collateral based on final Appraisals delivered to Lender (which final Appraisals, for the avoidance of doubt, shall reflect matters contained in the Title Insurance Policies as reasonably requested by Lender) pursuant to this Agreement is less than $700,000,000 following the first Delayed Advance, if so requested by Lender, Borrower shall (at its option) either replace one or more Properties or Substitution Properties with one or more Substitution Properties or add one or more Substitution Properties, selected by Borrower, in each case, in accordance with the requirements of the preceding sentence, such that the aggregate valuation of the Properties constituting Collateral based on the Appraisals delivered to Lender pursuant to this Agreement (which final Appraisals, for the avoidance of doubt, shall reflect matters contained in the Title Insurance Policies as reasonably requested by Lender) is at least $700,000,000. In addition, in connection with the disposition of any Property by Borrower to a Person that is not an affiliate of Borrower or Guarantor, the Property so disposed shall be replaced with a Substitution Property selected by Lender. In connection with any replacement of a Property by a Substitution Property pursuant to the terms of this Agreement, (w) Borrower shall certify that the representations contained in Article III hereof are true and correct with respect to such Substitution Property, subject to any exceptions to such representations contained in any such certification (which exceptions shall be deemed to be a part of the Exception Report); provided, however, this clause (w) shall not be deemed satisfied if Lender shall reasonably determine that such exceptions to such representations are not acceptable, (x) Borrower shall cooperate with Lender in executing and recording a Mortgage securing the applicable Substitution Property and shall provide to Lender such other then-existing information and documentation in Borrower’s possession or control with respect to such Substitution Property as was provided to Lender in connection with the other Properties, together with all documentation and information necessary to satisfy each of the items in Section 2.2 and (y) upon the recordation of a Mortgage securing such Substitution Property, Lender shall fully release of record the Property being so replaced from the Lien of the applicable Mortgage in accordance with Section 1.5. In the case of clause (i) of the first sentence of this paragraph, such replacement shall constitute the sole remedy of Lender for such misrepresentation, so long as Borrower did not intentionally cause such misrepresentation to occur. Notwithstanding anything to the contrary contained herein, if Borrower is required to replace one or more Properties pursuant to this Section 2.1 (A) any individual Property may be replaced by multiple Substitution Properties, so long as the aggregate value of such Substitution Properties is no less than the value of the individual Property so replaced (in each case, based on the Appraisals delivered to Lender pursuant to this Agreement) and (B) up to two Properties may be replaced by a single Substitution Property, so long as the value of such Substitution Properties is no less than the aggregate value of the Properties so replaced (in each case, based on the Appraisals delivered to Lender pursuant to this Agreement)Loan Documents.