Common use of Deferred Assets Clause in Contracts

Deferred Assets. (a) Notwithstanding anything to the contrary herein, unless otherwise determined by Buyer, this Agreement shall not constitute an agreement to assign or transfer any Contract, or any claim, right or benefit arising thereunder or resulting therefrom (any such Contract, claim, right or benefit, a “Deferred Item”), if an attempted assignment or transfer thereof, without the consent of a third party thereto or of the issuing Governmental Authority, as the case may be, would constitute a breach thereof or would give the other party thereto a right to cancel or unilaterally amend an Assumed Contract or to adjust the terms of performance thereof (any such required consent, a “Deferred Consent”). From and after the Closing, Sellers will use commercially reasonable efforts to obtain such Deferred Consent as soon as practicable after the Closing. Until such Deferred Consent is obtained, Sellers will use commercially reasonable efforts to provide to Buyer, upon the written request of Buyer, benefits under the Deferred Item to which such Deferred Consent relates (with Buyer entitled to all the benefits and responsible for all of the related and proportional obligations and Liabilities thereunder that it would have incurred if such Deferred Item had been transferred at Closing, in each case to the extent Buyer is receiving the benefit of the Deferred Item). In the event that any such Deferred Consent is not obtained prior to the Closing, then, at Buyer’s request with respect to any particular Deferred Item or group of Deferred Items (and without imposing any corresponding obligation on Buyer or limiting any other rights Buyer may have hereunder), Buyer and Sellers will enter into such arrangements (including subleasing or subcontracting if permitted) as Buyer deems reasonably necessary to provide to Buyer the economic and operational equivalent of obtaining such Deferred Consent and assigning or transferring such Deferred Item, including enforcement for the benefit of Buyer of all claims or rights arising thereunder on a prompt and punctual basis. Upon receipt of any Deferred Consent after the Closing Date, at Buyer’s request, such Deferred Item shall be transferred and assigned to Buyer. (b) Nothing in this Section 2.8 should alter, modify, supersede or otherwise limit any of the representations or warranties of the Sellers in this Agreement.

Deferred Assets. (aa. A new Section 7.1(a)(iii) Notwithstanding anything is hereby added to the contrary hereinPurchase Agreement as follows: “In the event at any applicable Closing of a Purchased Interest with Underlying Properties located in the United States, unless otherwise determined by Buyera Purchased Entity owns an Excluded Asset and one or more other Underlying Properties, this Agreement then, in such case, the applicable Purchased Interest shall not constitute an agreement to assign or transfer any Contractbe deemed a Deferred Asset until the earlier of (1) such time as the Purchased Entity no longer owns the Excluded Asset, or (2) the Seller Parties and the Purchaser Parties have agreed to an alternative manner of Transferring the Purchased Interests or Underlying Properties that are not Excluded Assets to the applicable Purchaser Parties (subject to any claim, right or benefit arising thereunder or resulting therefrom required consent of the Operating Partner) (any such Contract, claim, right or benefit, a the “Deferred ItemAlternative Purchased Interest Structure”), if an attempted assignment or transfer thereof, without .” b. A new Section 7.1(b)(iii) is hereby added to the consent of a third party thereto or of Purchase Agreement as follows: “With respect to any Purchased Entity that owns Underlying Property located in the issuing Governmental Authority, as the case may be, would constitute a breach thereof or would give the other party thereto a right to cancel or unilaterally amend an Assumed Contract or to adjust the terms of performance thereof (any such required consent, a “Deferred Consent”). From and after the Closing, Sellers will use commercially reasonable efforts to obtain such Deferred Consent as soon as practicable after the Closing. Until such Deferred Consent is obtained, Sellers will use commercially reasonable efforts to provide to Buyer, upon the written request of Buyer, benefits under the Deferred Item to which such Deferred Consent relates (with Buyer entitled to all the benefits and responsible for all of the related and proportional obligations and Liabilities thereunder that it would have incurred if such Deferred Item had been transferred at ClosingUnited States, in each case the event an Alternative Purchased Interest Structure is agreed to prior to the extent Buyer is receiving Closing Notice Date or the benefit of Seller Parties have notified the Deferred Item)Purchaser Parties in writing on the Closing Notice Date that a Purchased Interest in a Purchased Entity can be Transferred and such Purchased Entity does not own any Excluded Assets, the applicable Deferral Condition shall be deemed satisfied. In the event that any such Deferred Consent is the applicable Excluded Assets have not obtained been Transferred from the applicable Purchased Entity on or prior to the ClosingClosing Notice Date or an Alternative Purchased Interest Structure has not been agreed to, thenbut the applicable Excluded Assets have been transferred from the applicable Purchased Entity prior to the Closing Date to which the Closing Notice Date relates or an Alternative Purchased Interest Structure has been agreed to, at Buyer’s request the Purchaser Parties shall have the option to, but will not be required to, close the Transfer of the applicable Purchased Interest on such Closing Date. If the Purchaser Parties do not elect to close the Transfer on such Closing Date, subject to the terms and conditions of this Agreement, the Closing with respect to such Purchased Interest shall be deferred until the next occurring Deferred Closing Date. With respect to any particular Deferred Item such deferred Purchased Interest with respect to which an Operating Partner has executed a consent, the Buy-Sell Discussion Period shall be delayed and in the event a Closing with respect to such Purchased Interest has not occurred or group an Alternative Purchased Interest Structure is not agreed to on or before October 31, 2015 (except to the extent that the applicable Operating Partner is in breach or default of Deferred Items (and without imposing any corresponding obligation on Buyer its obligations under the applicable consent related to the Transactions, in which case, the applicable date shall be the date of such breach or limiting any other rights Buyer may have hereunderdefault), Buyer the Buy-Sell Discussion Period shall begin on October 31, 2015 and Sellers will enter into the provisions of Section 7.1(c) shall be applicable (except to the extent that the applicable Operating Partner is in breach or default of its obligations under the applicable consent related to the Transactions, in which case, the applicable date shall be the date of such arrangements (including subleasing breach or subcontracting if permitteddefault).” c. Section 2.3(f)(i) of the Purchase Agreement shall be amended and restated as Buyer deems reasonably necessary to provide to Buyer the economic and operational equivalent of obtaining such Deferred Consent and assigning or transferring such Deferred Item, including enforcement for the benefit of Buyer of all claims or rights arising thereunder on a prompt and punctual basis. follows: “Upon receipt of any Deferred Consent the notice described in Section 2.3(c), the Seller Parties shall have the right, by the date that is ten (10) Business Days after receipt of notice of such Title Objection (or no later than five (5) Business Days prior to the applicable Closing Date, at Buyer’s requestunless the applicable notice of such Title Objection is provided within five (5) Business Days of the applicable Closing Date) or such other date as expressly provided herein, by written notice to the Purchaser Parties with respect to each Property affected by any such Deferred Item Material Title Exceptions, to elect to cure such Material Title Exception in accordance with Section 2.3(h). If the Seller Parties (x) do not elect to cure any Material Title Exception, or (y) in the event the Seller Parties have elected to cure any Material Title Exception and fail to cure in accordance with Section 2.3(h) by the applicable Closing Date, the Purchaser Parties shall have the election to either (A) terminate this Agreement with respect to such Purchased Commercial Loan, Transferred Property, Purchased Entity (if such Purchased Entity owns Underlying Property located outside of the United States) or Underlying Property (if such Underlying Property is located in the United States), in which case such Purchased Commercial Loan, Transferred Property, Purchased Entity or Underlying Property shall be transferred and assigned deemed an Excluded Asset, or (B) proceed to BuyerClosing with respect to the affected Transferred Property, Purchased Commercial Loan or Purchased Interest; provided, however, that, in the event that the Seller Parties have elected to cure any such Material Title Exception, then the Purchaser Parties shall not be entitled to terminate this Agreement with respect the applicable Purchased Commercial Loan, Transferred Property or Purchased Interests for so long as the Seller Parties shall be using their Commercially Reasonable Efforts to cure such Material Title Exception or any Debt Removal Exception.” (bd. Section 1.1(d) Nothing in this Section 2.8 should alter, modify, supersede or otherwise limit any of the representations or warranties of Purchase Agreement is hereby amended by adding the Sellers words “Underlying Property,” after the words “Transferred Property,” in this Agreementthe first line thereof.

Deferred Assets. (a) Notwithstanding anything The following shall be applicable to the contrary hereinDeferred Assets: (i) the closing upon the Deferred Assets shall be on or prior to September 30, unless otherwise determined by Buyer, 1998 ("Deferred Assets Closing"); (ii) all the provisions of this Agreement shall not constitute an agreement to assign or transfer any Contract, or any claim, right or benefit arising thereunder or resulting therefrom (any such Contract, claim, right or benefit, a “Deferred Item”), if an attempted assignment or transfer thereofincluding, without limitation, those relating to the consent conditions precedent shall also be applicable to the Deferred Assets; (iii) in the event the Deferred Assets are not purchased by the Deferred Assets Closing (other than by virtue of a third party thereto or material breach of the issuing Governmental Authority, as Seller [whereupon Buyer shall have all remedies available at law and in equity including the case may be, would constitute a breach thereof or would give the other party thereto a right to cancel or unilaterally amend an Assumed Contract or to adjust the terms of performance thereof (any such required consent, a “Deferred Consent”). From and after the Closing, Sellers will use commercially reasonable efforts to obtain such Deferred Consent as soon as practicable after the Closing. Until such Deferred Consent is obtained, Sellers will use commercially reasonable efforts to provide to Buyer, upon the written request of Buyer, benefits under the Deferred Item to which such Deferred Consent relates (with Buyer entitled to all the benefits and responsible for all of the related and proportional obligations and Liabilities thereunder that it would have incurred if such Deferred Item had been transferred at Closing, in each case to the extent Buyer is receiving the benefit return of the Deferred Item). In Assets Escrow] or the Buyer [for which Seller shall have the right to retain the Deferred Assets Escrow]) then the Buyer shall receive the return of the Deferred Assets Escrow and all parties shall be released from all further obligations relating to the Deferred Assets; (iv) in the event that any such the Buyer can only buy one (1) of the two (2) centers constituting the Deferred Consent is not obtained prior Assets, then the purchase price for the Deferred Assets shall be split equally between the Deferred Assets and Buyer shall receive the return of Two Hundred Fifty Thousand Dollars ($250,000) from the Deferred Assets Escrow and the remaining Two Hundred Fifty Thousand Dollars ($250,000) shall be paid to the Seller in consideration for the Deferred Assets actually conveyed; (v) in the event there are reasonable partnership obligations due in connection with the operation of the two (2) centers constituting the Deferred Assets between the Closing Date and the Deferred Assets Closing, then, at Buyer’s request with respect then Buyer agrees to any particular Deferred Item or group of Deferred Items (and without imposing any corresponding obligation on Buyer or limiting any other rights Buyer may have hereunder), reimburse the Seller for Seller's pro rata contribution relating to that time period; provided such amount does not exceed $100,000.00 in the aggregate. Seller acknowledges that Escrow Agent represents Buyer and Sellers will enter into such arrangements (including subleasing or subcontracting if permitted) as may represent Buyer deems reasonably necessary to provide to Buyer in the economic and operational equivalent event of obtaining such Deferred Consent and assigning or transferring such Deferred Item, including enforcement for the benefit of Buyer of all claims or rights arising thereunder on a prompt and punctual basis. Upon receipt of any Deferred Consent after the Closing Date, at Buyer’s request, such Deferred Item shall be transferred and assigned to Buyerconflict hereunder. (b) Nothing in this Section 2.8 should alter, modify, supersede or otherwise limit any of the representations or warranties of the Sellers in this Agreement.

Deferred Assets. (a) Notwithstanding anything to the contrary herein, unless otherwise determined by the Buyer, this Agreement shall not constitute an agreement to assign or transfer any Contractof the Purchased Assets or any Contractual Obligation, or any claim, right or benefit arising thereunder or resulting therefrom (any such ContractPurchased Asset, Contractual Obligation, claim, right or benefit, a “Deferred Item”), if an attempted assignment or transfer thereof, without the consent of a third party [***] Certain information in this agreement has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. thereto or of the issuing Governmental Authoritygovernmental authority, as the case may be, would constitute a breach thereof or would give the other party thereto a right to take possession of, prevent the transfer of, or otherwise inhibit the Buyer’s control and enjoyment of a Purchased Asset, or to cancel or unilaterally amend an Assumed Contract Contractual Obligation or to adjust the terms of performance thereof (any such required consent, a “Deferred Consent”). From and after the Closing, Sellers (a) the Seller will use commercially reasonable efforts to obtain such Deferred Consent with respect to the Purchased Assets other than the Purchased Domain Names as soon as practicable after the ClosingClosing at no cost and expense to Seller or Parent and (b) the Seller will use reasonable best efforts to obtain such Deferred Consent with respect to the Purchased Domain Names as soon as practicable after the Closing at its own cost and expense. Until such Deferred Consent is obtained, Sellers the Seller will use use, reasonable efforts with respect to Purchased Assets other than the Purchased Domain Names, and commercially reasonable best efforts with respect to the Purchased Domain Names, to provide to the Buyer, upon the written request of the Buyer, benefits under the Deferred Item to which such Deferred Consent relates (with the Buyer entitled to all the benefits and responsible for all of the related and proportional obligations and Liabilities thereunder that it would have incurred if such Deferred Item had been transferred at Closing, in each case to the extent the Buyer is receiving the benefit of the Deferred Item). In the event that any such Deferred Consent is not obtained prior to the Closing, then, at the Buyer’s request with respect to any particular Deferred Item or group of Deferred Items (and without imposing any corresponding obligation on the Buyer or limiting any other rights the Buyer may have hereunder), the Buyer and Sellers the Seller will enter into such arrangements (including subleasing or subcontracting if permitted) as Buyer deems reasonably necessary to provide to the Buyer the economic and operational equivalent of obtaining such Deferred Consent and assigning or transferring such Deferred Item, including enforcement for the benefit of the Buyer of all claims or rights arising thereunder on a prompt and punctual basis. Upon receipt of any Deferred Consent after the Closing Date, at the Buyer’s request, such Deferred Item shall be transferred and assigned to the Buyer. (b) . Nothing in this Section 2.8 2.5 should alter, modify, supersede or otherwise limit any of the representations or warranties of the Sellers Seller in this Agreement.

Deferred Assets. (a) Notwithstanding anything to As provided in the contrary hereinTransition Services Agreement, unless otherwise determined by Buyerfollowing the Closing, this Agreement Seller shall not assist the Buyer in replacing the Shared Contracts. As of the Closing Date, the [***] Equipment shall constitute an agreement to assign or transfer any ContractExcluded Asset and the [***] Agreements shall constitute Shared Contracts. The Parties acknowledge and agree that, or any claim, right or benefit arising thereunder or resulting therefrom (any such Contract, claim, right or benefit, a “Deferred Item”), if an attempted assignment or transfer thereof, without the consent of a third party thereto or of the issuing Governmental Authority, as the case may be, would constitute a breach thereof or would give the other party thereto a right to cancel or unilaterally amend an Assumed Contract or to adjust the terms of performance thereof (any such required consent, a “Deferred Consent”). From from and after the Closing, Sellers Seller will use commercially reasonable efforts to obtain maintain in effect, and (subject to compliance with the [***] Agreements) provide Buyer the benefits under, the [***] Agreements until such Deferred Consent time as soon as practicable after Buyer has either assumed the Closing. Until such Deferred Consent is obtained[***] Agreements or entered into replacement agreements directly with [***], Sellers will and the Parties shall reasonably cooperate and use commercially reasonable efforts to provide obtain consent from [***] to assign the [***] Agreements to Buyer, upon including any amendments thereto on which the written request Parties mutually agree; provided, that (a) in no event shall the foregoing require the payment of Buyermoney by Seller to [***] or otherwise except as specifically set forth in this Agreement, benefits and (b) Seller shall retain the right to use the [***] Equipment until (i) such consent has been obtained and (ii) Buyer is fully authorized and able to operate and use the [***] Equipment. Notwithstanding anything to the contrary in this Agreement, following the Closing, Seller shall be responsible for paying, and shall pay, to [***] only those Milestone Payments under the Deferred Item to which such Deferred Consent relates [***] License (with Buyer as in effect on the date hereof) that become payable for the first Indication of “[***]” (i.e., the $[***], and the $[***]). Seller will be entitled to use all credits that have accrued under the benefits [***] License prior to the Closing Date when making any such payment, and the Buyer Parties will not use any credit that accrued under the [***] License prior to the Closing Date, including the credits described on Section 2.7(c) of the Disclosure Schedule. Buyer shall be responsible for all of other payments that become payable to [***] under or in connection with the related and proportional obligations and Liabilities thereunder that it would have incurred if such Deferred Item had been transferred at Closing, in each case to the extent Buyer is receiving the benefit of the Deferred Item). In the event that any such Deferred Consent is not obtained prior to the Closing, then, at Buyer’s request with respect to any particular Deferred Item or group of Deferred Items (and without imposing any corresponding obligation on Buyer or limiting any other rights Buyer may have hereunder), Buyer and Sellers will enter into such arrangements (including subleasing or subcontracting if permitted) as Buyer deems reasonably necessary to provide to Buyer the economic and operational equivalent of obtaining such Deferred Consent and assigning or transferring such Deferred Item, including enforcement for the benefit of Buyer of all claims or rights arising thereunder on a prompt and punctual basis. Upon receipt of any Deferred Consent [***] License after the Closing Date, at Buyer’s request, and all such Deferred Item amounts shall be transferred and assigned to Buyer. (b) Nothing constitute Assumed Liabilities hereunder. Capitalized terms used in this Section 2.8 should alter, modify, supersede or otherwise limit any of the representations or warranties of the Sellers 6.6 but not defined in this AgreementAgreement have the meaning given to them in the [***] License.

Deferred Assets. (aa. A new Section 7.1(a)(iii) Notwithstanding anything is hereby added to the contrary hereinPurchase Agreement as follows: “In the event at any applicable Closing of a Purchased Interest with Underlying Properties located in the United States, unless otherwise determined by Buyera Purchased Entity owns an Excluded Asset and one or more other Underlying Properties, this Agreement then, in such case, the applicable Purchased Interest shall not constitute an agreement to assign or transfer any Contractbe deemed a Deferred Asset until the earlier of (1) such time as the Purchased Entity no longer owns the Excluded Asset, or (2) the Seller Parties and the Purchaser Parties have agreed to an alternative manner of Transferring the Purchased Interests or Underlying Properties that are not Excluded Assets to the applicable Purchaser Parties (subject to any claim, right or benefit arising thereunder or resulting therefrom required consent of the Operating Partner) (any such Contract, claim, right or benefit, a the “Deferred ItemAlternative Purchased Interest Structure”), if an attempted assignment or transfer thereof, without .” b. A new Section 7.1(b)(iii) is hereby added to the consent of a third party thereto or of Purchase Agreement as follows: “With respect to any Purchased Entity that owns Underlying Property located in the issuing Governmental Authority, as the case may be, would constitute a breach thereof or would give the other party thereto a right to cancel or unilaterally amend an Assumed Contract or to adjust the terms of performance thereof (any such required consent, a “Deferred Consent”). From and after the Closing, Sellers will use commercially reasonable efforts to obtain such Deferred Consent as soon as practicable after the Closing. Until such Deferred Consent is obtained, Sellers will use commercially reasonable efforts to provide to Buyer, upon the written request of Buyer, benefits under the Deferred Item to which such Deferred Consent relates (with Buyer entitled to all the benefits and responsible for all of the related and proportional obligations and Liabilities thereunder that it would have incurred if such Deferred Item had been transferred at ClosingUnited States, in each case the event an Alternative Purchased Interest Structure is agreed to prior to the extent Buyer is receiving Closing Notice Date or the benefit of Seller Parties have notified the Deferred Item)Purchaser Parties in writing on the Closing Notice Date that a Purchased Interest in a Purchased Entity can be Transferred and such Purchased Entity does not own any Excluded Assets, the applicable Deferral Condition shall be deemed satisfied. In the event that any such Deferred Consent is the applicable Excluded Assets have not obtained been Transferred from the applicable Purchased Entity on or prior to the ClosingClosing Notice Date or an Alternative Purchased Interest Structure has not been agreed to, thenbut the applicable Excluded Assets have been transferred from the applicable Purchased Entity prior to the Closing Date to which the Closing Notice Date relates or an Alternative Purchased Interest Structure has been agreed to, at Buyer’s request the Purchaser Parties shall have the option to, but will not be required to, close the Transfer of the applicable Purchased Interest on such Closing Date. If the Purchaser Parties do not elect to close the Transfer on such Closing Date, subject to the terms and conditions of this Agreement, the Closing with respect to such Purchased Interest shall be deferred until the next occurring Deferred Closing Date. With respect to any particular Deferred Item such deferred Purchased Interest with respect to which an Operating Partner has executed a consent, the Buy-Sell Discussion Period shall be delayed and in the event a Closing with respect to such Purchased Interest has not occurred or group an Alternative Purchased Interest Structure is not agreed to on or before October 31, 2015 (except to the extent that the applicable Operating Partner is in breach or default of Deferred Items (and without imposing any corresponding obligation on Buyer its obligations under the applicable consent related to the Transactions, in which case, the applicable date shall be the date of such breach or limiting any other rights Buyer may have hereunderdefault), Buyer the Buy-Sell Discussion Period shall begin on October 31, 2015 and Sellers will enter into such arrangements (including subleasing or subcontracting if permittedthe provisions of Section 7.1(c) as Buyer deems reasonably necessary to provide to Buyer the economic and operational equivalent of obtaining such Deferred Consent and assigning or transferring such Deferred Item, including enforcement for the benefit of Buyer of all claims or rights arising thereunder on a prompt and punctual basis. Upon receipt of any Deferred Consent after the Closing Date, at Buyer’s request, such Deferred Item shall be transferred and assigned applicable (except to Buyerthe extent that the applicable Operating Partner is in breach or default of its obligations under the applicable consent related to the Transactions, in which case, the applicable date shall be the date of such breach or default). (b) Nothing in this Section 2.8 should alter, modify, supersede or otherwise limit any of the representations or warranties of the Sellers in this Agreement.”

Deferred Assets. (aa. A new Section 7.1(a)(iii) Notwithstanding anything is hereby added to the contrary hereinPurchase Agreement as follows: "In the event at any applicable Closing of a Purchased Interest with Underlying Properties located in the United States, unless otherwise determined by Buyera Purchased Entity owns an Excluded Asset and one or more other Underlying Properties, this Agreement then, in such case, the applicable Purchased Interest shall not constitute an agreement to assign or transfer any Contractbe deemed a Deferred Asset until the earlier of (1) such time as the Purchased Entity no longer owns the Excluded Asset, or (2) the Seller Parties and the Purchaser Parties have agreed to an alternative manner of Transferring the Purchased Interests or Underlying Properties that are not Excluded Assets to the applicable Purchaser Parties (subject to any claim, right or benefit arising thereunder or resulting therefrom (any such Contract, claim, right or benefit, a “Deferred Item”), if an attempted assignment or transfer thereof, without the required consent of a third party thereto or of the issuing Governmental Authority, Operating Partner) (the "Alternative Purchased Interest Structure")." b. A new Section 7.1(b)(iii) is hereby added to the Purchase Agreement as follows: "With respect to any Purchased Entity that owns Underlying Property located in the case may be, would constitute a breach thereof or would give the other party thereto a right to cancel or unilaterally amend an Assumed Contract or to adjust the terms of performance thereof (any such required consent, a “Deferred Consent”). From and after the Closing, Sellers will use commercially reasonable efforts to obtain such Deferred Consent as soon as practicable after the Closing. Until such Deferred Consent is obtained, Sellers will use commercially reasonable efforts to provide to Buyer, upon the written request of Buyer, benefits under the Deferred Item to which such Deferred Consent relates (with Buyer entitled to all the benefits and responsible for all of the related and proportional obligations and Liabilities thereunder that it would have incurred if such Deferred Item had been transferred at ClosingUnited States, in each case the event an Alternative Purchased Interest Structure is agreed to prior to the extent Buyer is receiving Closing Notice Date or the benefit of Seller Parties have notified the Deferred Item)Purchaser Parties in writing on the Closing Notice Date that a Purchased Interest in a Purchased Entity can be Transferred and such Purchased Entity does not own any Excluded Assets, the applicable Deferral Condition shall be deemed satisfied. In the event that any such Deferred Consent is the applicable Excluded Assets have not obtained been Transferred from the applicable Purchased Entity on or prior to the ClosingClosing Notice Date or an Alternative Purchased Interest Structure has not been agreed to, thenbut the applicable Excluded Assets have been transferred from the applicable Purchased Entity prior to the Closing Date to which the Closing Notice Date relates or an Alternative Purchased Interest Structure has been agreed to, at Buyer’s request the Purchaser Parties shall have the option to, but will not be required to, close the Transfer of the applicable Purchased Interest on such Closing Date. If the Purchaser Parties do not elect to close the Transfer on such Closing Date, subject to the terms and conditions of this Agreement, the Closing with respect to such Purchased Interest shall be deferred until the next occurring Deferred Closing Date. With respect to any particular Deferred Item such deferred Purchased Interest with respect to which an Operating Partner has executed a consent, the Buy-Sell Discussion Period shall be delayed and in the event a Closing with respect to such Purchased Interest has not occurred or group an Alternative Purchased Interest Structure is not agreed to on or before October 31, 2015 (except to the extent that the applicable Operating Partner is in breach or default of Deferred Items (and without imposing any corresponding obligation on Buyer its obligations under the applicable consent related to the Transactions, in which case, the applicable date shall be the date of such breach or limiting any other rights Buyer may have hereunderdefault), Buyer the Buy-Sell Discussion Period shall begin on October 31, 2015 and Sellers will enter into such arrangements (including subleasing or subcontracting if permittedthe provisions of Section 7.1(c) as Buyer deems reasonably necessary to provide to Buyer the economic and operational equivalent of obtaining such Deferred Consent and assigning or transferring such Deferred Item, including enforcement for the benefit of Buyer of all claims or rights arising thereunder on a prompt and punctual basis. Upon receipt of any Deferred Consent after the Closing Date, at Buyer’s request, such Deferred Item shall be transferred and assigned applicable (except to Buyerthe extent that the applicable Operating Partner is in breach or default of its obligations under the applicable consent related to the Transactions, in which case, the applicable date shall be the date of such breach or default). (b) Nothing in this Section 2.8 should alter, modify, supersede or otherwise limit any of the representations or warranties of the Sellers in this Agreement."

Deferred Assets. (a) Notwithstanding anything in this Agreement to the contrary hereincontrary, unless otherwise determined by Buyerand until such consent, waiver, approval or other authorization is obtained, this Agreement shall not constitute an agreement to assign assignment or transfer of any Contract, Purchased Asset (including any Contract or Business Permit or any claim, right or benefit arising thereunder or resulting therefrom therefrom, in each case, included in the Purchased Assets) if (i) any such Contract, claim, right or benefit, a “Deferred Item”), if an attempted assignment or transfer thereofthereof (whether by operation of law or otherwise), without the consent consent, waiver, approval or other authorization of a third party thereto any Person other than Seller or of the issuing Governmental Authority, as the case may beits Affiliates, would constitute a breach or other contravention thereof or would give the other be ineffective with respect to any party thereto a right or would violate any applicable Law and (ii) such consent, waiver, approval or other authorization has not been obtained at or prior to cancel the Closing (each such asset, other than those referred to on Exhibit B of the Letter Agreement that are retained by Parent (or unilaterally amend an Assumed Contract or to adjust its nominee) in accordance with the terms and conditions of performance thereof (any such required consentthe Letter Agreement, a “Deferred ConsentAsset”). (b) With respect to any such Deferred Asset, Seller shall (and shall cause its Affiliates to) cooperate with Purchaser and (i) use its commercially reasonable efforts to obtain, or cause to be obtained, all consents, waivers, approvals or other authorizations required to assign or transfer such Deferred Asset to Purchaser (or its designee) and (ii) upon obtaining the requisite consents, waivers, approvals, other authorizations or amendments thereto, assign all rights associated with such Deferred Asset to Purchaser (or its designee), in each case, without the payment of any consideration by Purchaser or any of its Affiliates or agreement by any such Person to any adverse amendments, modifications or waivers of any material terms of any Purchased Assets in order to obtain such consents. From Purchaser shall (and after the Closing, Sellers will shall cause it Subsidiaries to) cooperate with Seller and use its commercially reasonable efforts to obtain such consents, waivers, approvals or other authorizations and approvals only to the extent that the corresponding benefit is actually received by Purchaser or its Subsidiaries. (c) If any consent or approval required to assign or transfer any Deferred Consent as soon as practicable after Asset is not obtained at or prior to Closing, then, for a period of up to thirty-six (36) months following the Closing. Until such Deferred Consent is obtainedClosing Date, Sellers will (x) Seller and Purchaser shall each use commercially reasonable efforts to provide to Buyer, upon Purchaser and its Affiliates the written request maximum allowable use of Buyer, benefits under the Deferred Item to Assets (which shall include, at a minimum, the economic benefits and burdens of such Deferred Consent relates (with Buyer entitled Assets), including by establishing an agency type or other similar arrangement reasonably satisfactory to all Purchaser under which Purchaser would obtain, to the fullest extent practicable, the claims, rights and benefits and responsible for all assume the corresponding liabilities and obligations thereunder from and after the Closing in accordance with this Agreement (including by means of the related any subcontracting, sublicensing or subleasing arrangement) and proportional obligations and Liabilities thereunder that it would have incurred if such Deferred Item had been transferred at Closing, in each case (y) to the extent Buyer is receiving the benefit of the Deferred Item). In the event that any such Deferred Consent is not obtained prior to the Closingpermitted by Law, then, at Buyer’s request with respect to any particular Deferred Item or group of Deferred Items Seller shall (and without imposing any corresponding obligation on Buyer or limiting any other rights Buyer may have hereunder)shall cause its Affiliates to) exercise, Buyer enforce and Sellers will enter into such arrangements (including subleasing or subcontracting if permitted) as Buyer deems reasonably necessary to provide to Buyer exploit, only at the economic direction of and operational equivalent of obtaining such Deferred Consent and assigning or transferring such Deferred Item, including enforcement for the benefit of Buyer Purchaser, any and all claims, rights and benefits of Seller or its applicable Affiliate arising in connection with such Deferred Asset. During such period and without further consideration, (i) Seller will (or will cause its applicable Affiliates to) promptly pay, assign and remit to Purchaser when received all claims monies and other consideration relating to the period after the Closing Date received by it under any Contract or rights any claim, right or benefit arising thereunder on a prompt not transferred pursuant to this Section 5.15 and punctual basis. Upon receipt of (ii) Purchaser will promptly pay, perform or discharge when due any Deferred Consent Liability (including any Tax Liability) arising thereunder after the Closing Date, at Buyer’s request, such Deferred Item shall be transferred and assigned to Buyer. (bd) Nothing in The Parties agree that nothing under this Section 2.8 should alter5.15 shall be interpreted to require Purchaser, modifyParent, supersede Seller or otherwise limit any of the representations their respective Affiliates to pay any amount, incur any obligation in favor of or warranties of the Sellers offer or grant any accommodation (financial or otherwise) in this Agreementorder to obtain any such consents, waivers, approvals or other authorizations.

Deferred Assets. (aa. A new Section 7.1(a)(iii) Notwithstanding anything is hereby added to the contrary hereinPurchase Agreement as follows: “In the event at any applicable Closing of a Purchased Interest with Underlying Properties located in the United States, unless otherwise determined by Buyera Purchased Entity owns an Excluded Asset and one or more other Underlying Properties, this Agreement then, in such case, the applicable Purchased Interest shall not constitute an agreement to assign or transfer any Contractbe deemed a Deferred Asset until the earlier of (1) such time as the Purchased Entity no longer owns the Excluded Asset, or (2) the Seller Parties and the Purchaser Parties have agreed to an alternative manner of Transferring the Purchased Interests or Underlying Properties that are not Excluded Assets to the applicable Purchaser Parties (subject to any claim, right or benefit arising thereunder or resulting therefrom required consent of the Operating Partner) (any such Contract, claim, right or benefit, a the “Deferred ItemAlternative Purchased Interest Structure”), if an attempted assignment or transfer thereof, without .” b. A new Section 7.1(b)(iii) is hereby added to the consent of a third party thereto or of Purchase Agreement as follows: “With respect to any Purchased Entity that owns Underlying Property located in the issuing Governmental Authority, as the case may be, would constitute a breach thereof or would give the other party thereto a right to cancel or unilaterally amend an Assumed Contract or to adjust the terms of performance thereof (any such required consent, a “Deferred Consent”). From and after the Closing, Sellers will use commercially reasonable efforts to obtain such Deferred Consent as soon as practicable after the Closing. Until such Deferred Consent is obtained, Sellers will use commercially reasonable efforts to provide to Buyer, upon the written request of Buyer, benefits under the Deferred Item to which such Deferred Consent relates (with Buyer entitled to all the benefits and responsible for all of the related and proportional obligations and Liabilities thereunder that it would have incurred if such Deferred Item had been transferred at ClosingUnited States, in each case the event an Alternative Purchased Interest Structure is agreed to prior to the extent Buyer is receiving Closing Notice Date or the benefit of Seller Parties have notified the Deferred Item)Purchaser Parties in writing on the Closing Notice Date that a Purchased Interest in a Purchased Entity can be Transferred and such Purchased Entity does not own any Excluded Assets, the applicable Deferral Condition shall be deemed satisfied. In the event that any such Deferred Consent is the applicable Excluded Assets have not obtained been Transferred from the applicable Purchased Entity on or prior to the ClosingClosing Notice Date or an Alternative Purchased Interest Structure has not been agreed to, thenbut the applicable Excluded Assets have been transferred from the applicable Purchased Entity prior to the Closing Date to which the Closing Notice Date relates or an Alternative Purchased Interest Structure has been agreed to, at Buyer’s request the Purchaser Parties shall have the option to, but will not be required to, close the Transfer of the applicable Purchased Interest on such Closing Date. If the Purchaser Parties do not elect to close the Transfer on such Closing Date, subject to the terms and conditions of this Agreement, the Closing with respect to such Purchased Interest shall be deferred until the next occurring Deferred Closing Date. With respect to any particular Deferred Item such deferred Purchased Interest with respect to which an Operating Partner has executed a consent, the Buy-Sell Discussion Period shall be delayed and in the event a Closing with respect to such Purchased Interest has not occurred or group an Alternative Purchased Interest Structure is not agreed to on or before October 31, 2015 (except to the extent that the applicable Operating Partner is in breach or default of Deferred Items (and without imposing any corresponding obligation on Buyer its obligations under the applicable consent related to the Transactions, in which case, the applicable date shall be the date of such breach or limiting any other rights Buyer may have hereunderdefault), Buyer the Buy-Sell Discussion Period shall begin on October 31, 2015 and Sellers will enter into the provisions of Section 7.1(c) shall be applicable (except to the extent that the applicable Operating Partner is in breach or default of its obligations under the applicable consent related to the Transactions, in which case, the applicable date shall be the date of such arrangements (including subleasing breach or subcontracting if permitteddefault).” d. Section 2.3(f)(i) of the Purchase Agreement shall be amended and restated as Buyer deems reasonably necessary to provide to Buyer the economic and operational equivalent of obtaining such Deferred Consent and assigning or transferring such Deferred Item, including enforcement for the benefit of Buyer of all claims or rights arising thereunder on a prompt and punctual basis. follows: “Upon receipt of any Deferred Consent the notice described in Section 2.3(c), the Seller Parties shall have the right, by the date that is ten (10) Business Days after receipt of notice of such Title Objection (or no later than five (5) Business Days prior to the applicable Closing Date, at Buyer’s requestunless the applicable notice of such Title Objection is provided within five (5) Business Days of the applicable Closing Date) or such other date as expressly provided herein, by written notice to the Purchaser Parties with respect to each Property affected by any such Deferred Item Material Title Exceptions, to elect to cure such Material Title Exception in accordance with Section 2.3(h). If the Seller Parties (x) do not elect to cure any Material Title Exception, or (y) in the event the Seller Parties have elected to cure any Material Title Exception and fail to cure in accordance with Section 2.3(h) by the applicable Closing Date, the Purchaser Parties shall have the election to either (A) terminate this Agreement with respect to such Purchased Commercial Loan, Transferred Property, Purchased Entity (if such Purchased Entity owns Underlying Property located outside of the United States) or Underlying Property (if such Underlying Property is located in the United States), in which case such Purchased Commercial Loan, Transferred Property, Purchased Entity or Underlying Property shall be transferred and assigned deemed an Excluded Asset, or (B) proceed to BuyerClosing with respect to the affected Transferred Property, Purchased Commercial Loan or Purchased Interest; provided, however, that, in the event that the Seller Parties have elected to cure any such Material Title Exception, then the Purchaser Parties shall not be entitled to terminate this Agreement with respect the applicable Purchased Commercial Loan, Transferred Property or Purchased Interests for so long as the Seller Parties shall be using their Commercially Reasonable Efforts to cure such Material Title Exception or any Debt Removal Exception.” (be. Section 1.1(d) Nothing in this Section 2.8 should alter, modify, supersede or otherwise limit any of the representations or warranties of Purchase Agreement is hereby amended by adding the Sellers words “Underlying Property,” after the words “Transferred Property,” in this Agreementthe first line thereof.