Common use of SUBSTITUTION PROCEDURES Clause in Contracts

SUBSTITUTION PROCEDURES. If any of (x) a Defect Substitution Event, (y) a CC Substitution Event (as hereinafter defined) or (z) a Closing Condition Substitution Event (as hereinafter defined) occurs from time to time, Contributor may in its sole and absolute discretion elect (with respect to a Defect Substitution Event or a Closing Condition Substitution Event, at any time at or prior to the applicable Closing; with respect to a CC Substitution Event, within ten (10) Business Days of delivering notice of such CC Substitution Event) to retain its interests in such affected Property or Properties (individually or collectively, as the context may require, the "Affected Property") (for purposes of clarity, notwithstanding anything to the contrary, one Substitute Property may replace more than one Affected Property if the value of the Substitute Property is greater than or equal to such replaced Properties) and, in lieu of transferring such interests to the Company at the applicable Closing, as may be otherwise required by this Agreement, Contributor shall deliver to the Company fee simple title (or Contributed Interests, as applicable) with respect to a Substitute Property, pursuant to the same terms of this Agreement applicable to any other Property, provided that in the event that title to the Substitute Property is delivered to the Relevant Contributee in accordance with the foregoing, the Company shall obtain the prior approval of any lender of the Company to release any mortgage or other lien held by such lender on the Substitute Property in exchange for a lien on the Property originally required to be delivered at the applicable Closing Date once such Defect is cured. If the applicable lender does not agree to

SUBSTITUTION PROCEDURES. If any of (x) a Defect Substitution Event, (y) a CC Substitution Event (as hereinafter defined) or (z) a Closing Condition Substitution Event (as hereinafter defined) occurs from time to time, Contributor Seller may in its sole and absolute discretion elect (with respect to a Defect Substitution Event or a Closing Condition Substitution Event, at any time at or prior to the applicable Closing; with respect to a CC Substitution Event, within ten (10) Business Days of delivering notice of such CC Substitution Event) to retain its interests in such affected Property or Properties (individually individually, or collectively, as the context may require, the "Affected Property") (for purposes of clarity, notwithstanding anything to the contrary, one Substitute Property may replace more than one Affected Property if the value of the Substitute Property is greater than or equal to such replaced Properties) and, in lieu of transferring such interests to the Company at the applicable Closing, as may be otherwise required by this Agreement, Contributor Seller shall deliver to the Company fee simple title (or Contributed Sold Interests, as applicable) with respect to a such Substitute Property, pursuant to the same terms of this Agreement applicable to any other Property, provided that in the event that title to the Substitute Property is delivered to the Relevant Contributee Purchaser in accordance with the foregoing, the Company shall obtain the prior approval of any lender of the Company to release any mortgage or other lien held by such lender on the Substitute Property in exchange for a lien on the Property originally required to be delivered at the applicable Closing Date once such Defect is cured. If the applicable lender does not agree toto release such mortgage or other lien, such mortgage or lien shall, at the sole cost and expense of Seller, be prepaid in respect of such Substitute Property. For purposes of this Agreement, "Substitute Property" shall mean a property in the New York tri-state area (v) with a value (or aggregate value, as applicable), mutually agreed upon by Seller and the Relevant Purchasers, that is equal to or greater than that of the Affected Property affected or subject to the applicable Defect Substitution Event, CC Substitution Event or Closing Condition Event, (w) generally consistent with the Properties, (x) having income equal or greater to the amount set forth in the DYNA Model with respect to such Affected Property, (y) having leases that otherwise comply with the applicable DYNA Model, and (z) otherwise acceptable to any lender of the Company providing financing with respect to such Property. Seller shall bear the costs and expenses of all appraisals required by the foregoing. If such Substitute Property has a greater value than the value of the Affected Property, the Consideration (and appropriate components thereof) shall be increased accordingly. For purposes of this Agreement, the term "DYNA Models" shall mean those certain net operating income projections for each of the Properties prepared on behalf of the Company to value the Properties as of the date set forth in the DYNA Models. If Seller conveys a Substitute Property to the Company, in lieu of any Property identified on Exhibit B annexed hereto, Seller shall have the right to require the Company to acquire such Substitute Property at such time as the conditions set forth in this Agreement with respect to the acquisition of such Property and the Closing have been satisfied. Seller shall pay all actual out-of-pocket expenses incurred by the Company in connection with Seller's exercise of its rights pursuant to the immediately preceding sentence. It is acknowledged and agreed that upon substitution of such Substitute Property in accordance with the provisions of this Section 2.01(f), such substitution shall be deemed to cure the relevant Defect Substitution Event, CC Substitution Event and/or Closing Condition Substitution Event applicable to the Affected Property, and notwithstanding anything to the contrary herein, the Relevant Purchasers shall not be permitted to (x) exercise any termination right under this Agreement arising in connection with such Affected Property or (y) to bring any proceeding otherwise permitted under this Agreement in respect of breach of representations and warranties or covenants in respect of the Affected Property. Notwithstanding anything to the contrary in this Agreement, either party shall have the right, by written notice, to extend the Closing (and all subsequent Closings on a day for day basis) for up to fifteen (15) Business Days in order to effectuate the provisions of this Section 2.01(f). This Section 2.01(f) shall survive the Closing.