Common use of Post-Closing Deliveries Clause in Contracts

Post-Closing Deliveries. (a) On each of the 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 the Merger Consideration Payment Schedule, 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 forfeit to Buyer; provided, however, that notwithstanding anything herein to the contrary no shares of Buyer Common Stock representing NuCel Equity Consideration shall be subject to forfeiture as a result of a NuCel Removal Event after the earlier of: (i) the one year anniversary of the Closing Date and (ii) the NuCel FDA Clearance. (d) 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 forfeit to Buyer; provided, however, that notwithstanding anything herein to the contrary no shares of Buyer Common Stock representing XxXx Equity Consideration shall be subject to forfeiture as a result of a NuCel Removal Event after the earlier of: (i) the one year anniversary of the Closing Date and (ii) the XxXx FDA Clearance.

Post-Closing Deliveries. (a) On each of the first four quarterly anniversaries of the Closing Date Within 15 Business Days following the New Closing Date, Buyer Borrower shall deliver 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 Quarterly Cash Consideration 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 wire transfer of immediately available funds 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 Shareholder enforceability of each Mortgage Amendment under the laws of the state in which the applicable individual Property is located, and each Company Payee, each 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 payment equal opinions shall be subject to the Quarterly Cash Consideration multiplied policies of the counsel providing such opinions and qualifications required by the applicable percentage set forth on various jurisdictions in which the Merger Consideration Payment Schedule, as such amount may be adjusted pursuant to ARTICLE XIIProperties are located). (b) On If Lender shall receive comments from the fifteen-month anniversary 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 DateDate and on the New Closing Date pursuant to the terms hereof, Buyer Borrower shall deliver cooperate with Lender in the 15-Month Cash Consideration preparation, execution and recording of amendments to such Mortgages (and/or other instruments reasonably required) necessitated by such comments and the Interest Payment by wire transfer delivery of immediately available funds an appropriate mortgage modification endorsement to the Shareholder applicable Title Insurance Policy, all at Borrower’s sole cost 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 XIIexpense. (c) Upon As a material inducement to Lender making the occurrence Loan, Borrower agrees that it (x) shall deliver Title Insurance Policies acceptable to Lender for each of the Additional Properties and (y) shall use commercially reasonable efforts to deliver a NuCel Removal Event prior legal opinion as to the one year anniversary enforceability of each Mortgage securing an Additional Property under the laws of the Closing Datestate in which the applicable individual Additional Property is located, Buyer and certain other matters covered by local counsel opinions previously delivered to Lender in connection with 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 Loan (it being understood that the Shareholder shall forfeit to Buyer; provided, however, that notwithstanding anything herein to the contrary no shares formulation of Buyer Common Stock representing NuCel Equity Consideration such opinions shall be subject to forfeiture as a result of a NuCel Removal Event after the earlier of: (i) the one year anniversary 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 Date and or such later date as to which Lender may grant its consent, not to be unreasonably withheld, delayed or conditioned (ii) so long as Borrower is diligently pursuing the NuCel FDA Clearancesatisfaction of such items). (d) Upon If Lender shall receive comments to any Mortgage from local counsel in connection with the occurrence delivery of a NuCel Removal Event prior the opinions delivered pursuant to Section 2.1(c), or from the 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 amendments to such Mortgages necessitated by such comments and the delivery of an appropriate mortgage modification endorsement to the one year anniversary of the Closing Dateapplicable Title Insurance Policy, Buyer all at Borrower’s sole cost 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 forfeit to Buyer; provided, however, that notwithstanding anything herein to the contrary no shares of Buyer Common Stock representing XxXx Equity Consideration shall be subject to forfeiture as a result of a NuCel Removal Event after the earlier of: (i) the one year anniversary of the Closing Date and (ii) the XxXx FDA Clearanceexpense.

Post-Closing Deliveries. (a) On 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 first four quarterly anniversaries of the Properties on or before April 30, 2016 and shall use commercially reasonable efforts to satisfy all other Post-Closing Date following the Closing DateItems to Lender’s reasonable satisfaction by April 30, 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 the Merger Consideration Payment Schedule, 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 forfeit to Buyer2016; 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 anything herein 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 contrary no shares 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 Buyer Common Stock representing NuCel Equity Consideration shall be subject to forfeiture as a result the Loan and/or the making of a NuCel Removal Event after Delayed Advance, as the earlier of: 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 one year anniversary 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 (iiy) 30 days following full satisfaction by Borrower of the NuCel FDA Clearance. 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 (dwhich final Appraisals, for the avoidance of doubt, shall reflect matters contained in the Title Insurance Policies as reasonably requested by Lender) Upon pursuant to this Agreement is less than $700,000,000 following the occurrence 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 NuCel Removal Event prior Property by a Substitution Property pursuant to the one year anniversary 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 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 forfeit to BuyerException Report); provided, however, this clause (w) shall not be deemed satisfied if Lender shall reasonably determine that notwithstanding 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 herein 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 shares of Buyer Common Stock representing XxXx Equity Consideration shall be subject to forfeiture as a result of a NuCel Removal Event after less than the earlier of: (i) the one year anniversary value of the Closing Date individual Property so replaced (in each case, based on the Appraisals delivered to Lender pursuant to this Agreement) and (iiB) up to two Properties may be replaced by a single Substitution Property, so long as the XxXx FDA Clearancevalue 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) On Seller agrees that it will use commercially reasonable efforts to forward or remit to Buyer each Business Day any payment or the amount of any payment, as the first four quarterly anniversaries of case may be, on a Purchased Account received by Seller after the Closing Date following (in the Closing Datecase of a remittance, Buyer 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 deliver forward or remit such payment or amount and any accompanying documentation or information provided by the Quarterly Cash Consideration 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 of immediately available funds or overnight delivery 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 Buyer pursuant to ARTICLE XIIwritten instructions provided by Buyer to Seller (or such other method as the parties shall mutually agree). (b) On Seller hereby appoints and empowers Buyer as its true and lawful attorney-in-fact, with full power of substitution, for the fifteen-month anniversary limited purpose of endorsing any check or other instrument made payable to Seller and submitted by an Account Debtor on or after the Closing Date, Date as payment on any Purchased Account for which Buyer is entitled. This power of attorney shall deliver the 15-Month Cash Consideration be deemed to be a power coupled with an interest and the Interest Payment by wire transfer of immediately available funds to the Shareholder and each Company Payee, each shall be irrevocable so long as any 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 XIIinterest is due Buyer. (c) Upon Buyer agrees that it will use commercially reasonable efforts to forward or remit to Seller any payment or the occurrence amount of any payment, as the case may be, on any Excluded Account (in the case of a NuCel Removal Event prior 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 one year anniversary of 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 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 forfeit to Buyer; provided, however, that notwithstanding anything herein to the contrary no shares of Buyer Common Stock representing NuCel Equity Consideration shall be subject to forfeiture as a result of a NuCel Removal Event after the earlier offorward or remit such payment or amount: (i) the one year anniversary of the Closing Date 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 NuCel FDA Clearanceparties shall mutually agree if at any time the volume of remittances no longer justifies use of wire transfer), and including the date, amount and Account number to which such payment is to be applied (to the extent Buyer is able to determine such information). (d) Upon To the occurrence extent that Account Documentation relating to Purchased Accounts may be in the possession of a NuCel Removal Event prior to the one year anniversary of Seller, Seller will, within seven (7) days after 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 forfeit deliver to Buyer; provided, however, that notwithstanding anything herein and to the contrary no shares 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 Account Documentation to Buyer Common Stock representing XxXx Equity Consideration shall be subject to forfeiture as a result of a NuCel Removal Event after at Buyer's address set forth in Section 9.6 in the earlier of: (i) the one year anniversary of the Closing Date format and (ii) the XxXx FDA Clearancemedia on which Seller or any third party responsible for such storage currently stores such materials.

Post-Closing Deliveries. (a) On each of the first four quarterly anniversaries of the Closing Date Within 30 days following the Closing Restatement Effective Date, Buyer Borrower shall deliver cause to be delivered to Lender, at Borrower’s sole cost and expense, with respect to each Mortgage securing the Quarterly Cash Consideration by wire transfer of immediately available funds Original Properties (i) an amendment to such Mortgage increasing the Shareholder and each Company Payeeamount secured thereby to $600,000,000 (or, each if such payment Mortgage is in a state in which mortgage recording tax is payable, an amount equal to the Quarterly Cash Consideration multiplied sum of the appraised values of the Properties encumbered by the applicable percentage set forth such Mortgage, based on the Merger Consideration Payment Schedule, as appraisal most recently received by Lender with respect to such amount may be adjusted pursuant Properties) and (ii) a date down and modification endorsement to ARTICLE XIIeach Title Insurance Policy covering the Original Properties insuring the continued priority of the related Mortgage. (b) On To the fifteen-month anniversary 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 Closing DateSecondary Properties, Buyer which second lien mortgage shall deliver secure only Note Component A-2 and Note B and shall be substantially in the 15-Month Cash Consideration 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 Interest Payment making of the Delayed Advance will not adversely affect the coverage afforded by wire transfer such Title Insurance Policy or the priority of immediately available funds the related first-lien Mortgage and (iii) a legal opinion, in form and substance reasonably satisfactory to Lender, as to the Shareholder 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 each Company Payee, each 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 payment equal opinions shall be subject to the Quarterly Cash Consideration multiplied policies of the counsel providing such opinions and qualifications required by the applicable percentage set forth on various jurisdictions in which the Merger Consideration Payment Schedule, as such amount may be adjusted pursuant to ARTICLE XIIProperties are located). (c) Upon If Lender shall receive comments from the occurrence title company that issued the Title Insurance Policies, regarding the enforceability, validity, effectiveness or insurability of a NuCel Removal Event prior 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 one year anniversary First Amended Loan Agreement, the making of the Closing Dateadvance on the Restatement Effective Date pursuant to the terms hereof, Buyer 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 Shareholder covenant delivery of an appropriate mortgage modification endorsement to the applicable Title Insurance Policy, all at Borrower’s sole cost and agree 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 negotiate require that a second mortgage be recorded against the applicable Property, and Borrower shall cooperate with Lender in good faith executing and recording each such second mortgage. (d) As a material inducement to determine a number Lender making the Loan, Borrower agrees that it shall deliver Title Insurance Policies and Surveys, in each case acceptable to Lender, for each of outstanding shares of Buyer Common Stock representing the Restricted Equity Consideration that the Shareholder Restatement Effective Date Properties on or before November 17, 2017 and shall forfeit use commercially reasonable efforts to Buyersatisfy all other Post-Closing Items (as set forth in Section 2.2) to Lender’s reasonable satisfaction by November 30, 2017; provided, however, that in any event Borrower shall satisfy all such Post-Closing Items to Lender’s reasonable satisfaction by December 15, 2017, 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 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 Initial Second Lien Advance and/or the making of the Delayed Advance, as the case may be. (e) Notwithstanding anything herein to the contrary no shares of Buyer Common Stock representing NuCel Equity Consideration 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 subject deemed to forfeiture as have been a result of a NuCel Removal Event after the earlier of: (i) the one year anniversary part of the Closing Date and (ii) Exception Report as in effect on the NuCel FDA ClearanceRestatement Effective Date. (df) Upon If Lender shall receive comments to any Mortgage from local counsel in connection with the occurrence delivery of the opinions delivered pursuant to Section 2.2(b), or from the 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 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 NuCel Removal Event prior Phase II Environmental Report other than by virtue of the existence of SAC Conditions, at Lender’s request, Borrower shall promptly obtain such assessment with respect to the one year anniversary of applicable Restatement Date Property if Lender has requested a Phase II Environmental Report with respect to 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 forfeit to Buyerapplicable Restatement Date Property; provided, however, that notwithstanding anything herein if Lender shall have the right to require the delivery of a Phase II Environmental Report with respect to any Restatement Date Property pursuant to this sentence, to the contrary no shares extent practicable based on the recommendations of Buyer Common Stock representing XxXx Equity Consideration a reputable environmental engineer, any investigation of the applicable Restatement Date Property in connection with the creation of such report shall be subject limited only to forfeiture the portions of such Restatement Date Property as a result of a NuCel Removal Event after may be reasonably necessary to address the earlier of: (i) recommendations contained in the one year anniversary of the Closing Date and (ii) the XxXx FDA Clearancerelated Phase I Environmental Report, other than recommendations related to SAC Conditions.

Post-Closing Deliveries. (a) On 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 first four quarterly anniversaries of the Properties on or before January 31, 2017 and shall use commercially reasonable efforts to satisfy all other Post-Closing Date following the Closing DateItems to Lender’s reasonable satisfaction by February 15, 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 the Merger Consideration Payment Schedule, 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 forfeit to Buyer2017; provided, however, that in any event Borrower shall satisfy all such Post-Closing Items to Lender’s reasonable satisfaction by February 28, 2017, 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) Notwithstanding anything herein to the contrary no shares of Buyer Common Stock representing NuCel Equity Consideration in 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 subject deemed to forfeiture as have been a result of a NuCel Removal Event after the earlier of: (i) the one year anniversary part of the Closing Date and (ii) the NuCel FDA Clearance. (d) Upon the occurrence of a NuCel Removal Event prior to the one year anniversary of Exception Report as in effect on the Closing Date, Buyer and provided that, following the Shareholder covenant and agree delivery of any such Supplemental Exception Report, Lender shall have the right (in its sole but reasonable discretion) to negotiate in good faith require Borrower to determine a number of outstanding shares of Buyer Common Stock representing the Restricted Equity Consideration that the Shareholder shall forfeit to Buyer; provided, however, that notwithstanding anything herein to the contrary no shares of Buyer Common Stock representing XxXx Equity Consideration shall be subject to forfeiture as a result of a NuCel Removal Event after the earlier of: (i) the substitute one year anniversary or more of the Closing Date and (ii) Properties pursuant to Section 2.2 on the XxXx FDA Clearancebasis of the information contained in any such Supplemental Exception Report or the Exception Report. For the avoidance of doubt, the disclosure of any fact or state of affairs on the Exception Report or any Supplemental Exception Report shall not in any way limit Lender’s right to require Borrower to substitute one or more Properties with one or more Substitution Properties pursuant to this Section 2.2.

Post-Closing Deliveries. (a) On each of The Borrowers shall deliver to the first four quarterly anniversaries of the Closing Date following Agent as soon as possible and in any event within 30 days after 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 (a) a schedule setting forth on the Merger Consideration Payment Schedule, Cemetery Properties 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 ; (b) a schedule setting forth on the Merger Consideration Payment Schedule, Funeral Home Properties 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; (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, Buyer and 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 Shareholder covenant and 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 negotiate in good faith to determine a number of outstanding shares of Buyer Common Stock representing the Restricted Equity Consideration that the Shareholder shall forfeit to Buyer; provided, however, that notwithstanding anything herein to the contrary no shares of Buyer Common Stock representing NuCel Equity Consideration shall be subject to forfeiture as a result of a NuCel Removal Event after the earlier of: (i) deliver to the one year anniversary Agent as soon as possible and in any event no later than 10 Business Days after the Closing Date, (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, (ii) order, (x) as soon as possible and in 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 for each real property asset of the Borrowers for which such items have not been ordered on or prior to the Closing Date, and to deliver to the Agent no later than such applicable date a list of such ordered items, and (iii) deliver to the Agent a copy of each such title report, personal property Lien search, judgement Lien search promptly after it is received by the Borrowers or retrieved from their records. Upon receipt of 45% of the title reports and 66-2/3% 69 of the personal property Lien and judgment Lien searches identified on all schedules received pursuant to clauses (i) and (ii) of the NuCel FDA Clearance. (d) Upon preceding sentence, the occurrence results of a NuCel Removal Event prior which shall be reasonably satisfactory to the one year anniversary of Agent, the Closing Date, Buyer Agent shall be deemed to have received "REQUISITE COLLATERAL INFORMATION". TLGI and the Shareholder covenant Borrowers shall also cause each document, certificate or other item set forth on SCHEDULE 7.36 annexed hereto to be delivered within the time period specified on such SCHEDULE 7.36 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 forfeit to Buyer; provided, however, that notwithstanding anything herein form and substance reasonably satisfactory to the contrary no shares of Buyer Common Stock representing XxXx Equity Consideration shall be subject to forfeiture as a result of a NuCel Removal Event after the earlier of: (i) the one year anniversary of the Closing Date and (ii) the XxXx FDA ClearanceAgent.

Post-Closing Deliveries. (a) On each The Borrower hereby agrees to deliver, or cause to be delivered, to the Administrative Agent, in form and substance reasonably satisfactory to the Administrative Agent, the items described on Schedule 5,15 hereof, if any, on or before the dates specified with respect to such items, or such later dates as may be agreed to by, or as may be waived by, the Administrative Agent in its sole discretion. (b) All representations and warranties contained in this Agreement and the other Loan Documents shall be deemed modified to the extent necessary to effect the foregoing (and to permit the taking of the first four quarterly anniversaries of actions described above within the time periods required above and in Schedule 5,15, rather than as elsewhere provided in the Loan Documents); provided that (x) to the extent any representation and warranty would not be true because the foregoing actions were not taken on the Closing Date or, following the Closing Date, Buyer shall deliver the Quarterly Cash Consideration by wire transfer of immediately available funds prior to the Shareholder date by which such action is required to be taken by Section 5.15(a), the respective representation and each Company Payee, each such payment equal warranty shall be required to be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) at the time the respective action is taken (or was required to be taken) in accordance with the foregoing provisions of this Section 5.15 (and Schedule 5,15) and (y) all representations and warranties relating to the Quarterly Cash Consideration multiplied by the applicable percentage assets set forth on the Merger Consideration Payment Schedule, as such amount may be adjusted Schedule 5,15 pursuant to ARTICLE XII. the Security Documents shall be required to be true and correct in all material respects (bexcept that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) On immediately after the fifteen-month anniversary of the Closing Dateactions required to be taken under this Section 5.15 (and Schedule 5,15) have been taken (or were required to be taken), Buyer shall deliver the 15-Month Cash Consideration and the Interest Payment by wire transfer of immediately available funds except to the Shareholder extent any such representations and each Company Payeewarranties expressly relate to an earlier date, each in which case 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 representations 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 forfeit to Buyer; provided, however, that notwithstanding anything herein to the contrary no shares of Buyer Common Stock representing NuCel Equity Consideration warranties shall be subject true and correct in all material respects (except that any representation and warranty that is qualified as to forfeiture as a result of a NuCel Removal Event after the earlier of: (i) the one year anniversary of the Closing Date and (ii) the NuCel FDA Clearance. (d) 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 forfeit to Buyer; provided, however, that notwithstanding anything herein to the contrary no shares of Buyer Common Stock representing XxXx Equity Consideration “materiality” or “Material Adverse Effect” shall be subject to forfeiture true and correct in all respects) as a result of a NuCel Removal Event after the such earlier of: (i) the one year anniversary of the Closing Date and (ii) the XxXx FDA Clearancedate.

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) On each If Lender determines that a landlord agreement is desirable to obtain regarding the leased property where PacketSmart maintains any Collateral, Borrower shall comply with Section 4.9 of the 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 the Merger Consideration Payment Schedule, as such amount may be adjusted pursuant to ARTICLE XII.Loan Agreement with respect thereto; (b) On Within ten (10) days after the fifteen-month anniversary date hereof, PacketSmart shall cause New Borrower to execute and deliver to Lender an intellectual property security agreement in substantially the same form of the Closing Date, Buyer shall deliver the 15-Month Cash Consideration agreement as other Borrowers have executed and the Interest Payment by wire transfer of immediately available funds delivered 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.ORIX previously; (c) Upon Within thirty (30) days after the occurrence of a NuCel Removal Event prior date hereof, Borrowers shall deliver to the one year anniversary of the Closing DateLender evidence, Buyer in form and the Shareholder covenant and agree substance satisfactory 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 forfeit to Buyer; provided, howeverLender, that notwithstanding anything herein to the contrary no shares of Buyer Common Stock representing NuCel Equity Consideration shall be subject to forfeiture as a result of a NuCel Removal Event after the earlier of: (i) the one year anniversary PacketSmart has insured all of the Closing Date 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 form and substance satisfactory to Lender, or (ii) the NuCel FDA Clearance.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 (d) Upon the occurrence of a NuCel Removal Event prior to the one year anniversary Immediately after effectiveness of the Closing DateMerger, Buyer New Borrower shall enter into 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 forfeit to Buyer; providedexecute an assumption agreement, however, that notwithstanding anything herein to the contrary no shares of Buyer Common Stock representing XxXx Equity Consideration which shall be subject in form and substance acceptable to forfeiture as a result Lender. In connection therewith, New Borrower shall covenant, in favor of a NuCel Removal Event after Lender, not to maintain more than $50,000 at any and all bank accounts at Comerica Bank while the earlier of: (i) the one year anniversary of the Closing Date Loan Agreement remains in force and (ii) the XxXx FDA Clearanceeffect or there otherwise remain outstanding any Obligations thereunder.

Post-Closing Deliveries. (a) On 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 Initial Properties, a date down and/or priority endorsement to each Title Insurance Policy covering the Initial Properties insuring the continued priority of the 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 the Merger Consideration Payment Schedule, as such amount may be adjusted pursuant to ARTICLE XIIrelated Mortgage. (b) On To the fifteen-month anniversary 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 Closing DateSecondary Properties and, Buyer shall deliver if requested by Lender in connection with a reallocation of the 15-Month Cash Consideration Principal Indebtedness evidenced by Note Component A-2 to Note B pursuant to Section 1.1(a), each of the Initial Properties, in each case, substantially in the form of the mortgage recorded against such Properties as of the date hereof, and (ii) an endorsement to each Title Insurance Policy insuring that the recording of such mortgage and the Interest Payment making of the Delayed Advance will not adversely affect the coverage afforded by wire transfer such Title Insurance Policy or the priority 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 XIIrelated first-lien Mortgage. (c) Upon If Lender shall receive comments from the occurrence title company that issued the Title Insurance Policies, regarding the enforceability, validity, effectiveness or insurability of a NuCel Removal Event prior 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 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 one year anniversary of 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 Closing Dateright, Buyer in its sole discretion and at Borrower’s sole expense, to require that a second mortgage be recorded against the Shareholder covenant applicable Property, and agree to negotiate Borrower shall cooperate with Lender in good faith to determine a number of outstanding shares of Buyer Common Stock representing the Restricted Equity Consideration that the Shareholder shall forfeit to Buyer; provided, however, that notwithstanding anything herein to the contrary no shares of Buyer Common Stock representing NuCel Equity Consideration shall be subject to forfeiture as a result of a NuCel Removal Event after the earlier of: (i) the one year anniversary of the Closing Date executing and (ii) the NuCel FDA Clearancerecording each such second mortgage. (d) 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 forfeit to Buyer; provided, however, that notwithstanding anything herein to the contrary no shares of Buyer Common Stock representing XxXx Equity Consideration shall be subject to forfeiture as a result of a NuCel Removal Event after the earlier of: (i) the one year anniversary of the Closing Date and (ii) the XxXx FDA Clearance.

Post-Closing Deliveries. (a) On As a material inducement to Lender making the Loan, Borrower agrees that it shall deliver Title Insurance Policies for each of the first four quarterly anniversaries of the Properties on or before September 30, 2014 and use commercially reasonable efforts to satisfy all other Post-Closing Date following the Closing DateItems to Lender’s reasonable satisfaction by October 15, 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 the Merger Consideration Payment Schedule, 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 forfeit to Buyer2014; provided, however, that notwithstanding anything herein in any event Borrower shall satisfy all such Post-Closing Items to Lender’s reasonable satisfaction by October 30, 2014, 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 contrary no shares satisfaction of Buyer Common Stock representing NuCel Equity Consideration the applicable Post-Closing Items). Post-Closing Items with respect to any Substitution Property shall be subject delivered no later than the date that is 45 days following the selection of the Substitution Property, or such later date as to forfeiture 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 the Delayed Advance shall be conditioned on Lender’s receipt of reasonably acceptable Title Insurance Policies for each of the Properties. (b) In the event that information received by Lender in connection with the satisfaction of any Post-Closing Item (whether with respect to a Property or a Substitution Property) shall result of a NuCel Removal Event after in the earlier of: 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, provided that, solely for the one year anniversary purposes of this clause (i), any reference to the Closing Date and 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 NuCel FDA Clearance. Loan (d) Upon other than solely by virtue of the occurrence existence of a NuCel Removal Event prior SAC Conditions), including by reason of anything contained in any Lease or Material Agreement heretofore delivered to Lender or the results of any searches with respect to the one year anniversary Borrower or the Properties received by Lender, or (iii) subject to clause (A) of the Closing Datelast sentence of Section 2.1(c), Buyer and 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 Shareholder covenant and agree existence of SAC Conditions), then, in each such case, Lender shall have the right, in its sole discretion, to negotiate in good faith to determine a number of outstanding shares of Buyer Common Stock representing the Restricted Equity Consideration require that the Shareholder 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 Valuations and (2) Borrower shall forfeit certify that each of the representations in Article III hereof are true with respect to Buyerthe 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 notwithstanding such exceptions to such representations are not acceptable. 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 by a Substitution Property, (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 herein 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 shares of Buyer Common Stock representing XxXx Equity Consideration shall be subject to forfeiture as a result of a NuCel Removal Event after less than the earlier of: (i) the one year anniversary value of the Closing Date individual Property so replaced (in each case, based on the Valuations) and (iiB) up to two Properties may be replaced by a single Substitution Property, so long as the XxXx FDA Clearancevalue of such Substitution Properties is no less than the aggregate value of the Properties so replaced (in each case, based on the Valuations).

Post-Closing Deliveries. (a) On each of the first four quarterly anniversaries of the Closing Date following Borrower shall, within fifteen (15) Business Days after the Closing Date, Buyer shall deliver to Lender a fully-executed and acknowledged subordination, nondisturbance and attornment agreement, in form and content satisfactory to Lender, for each of the Quarterly Cash Consideration by wire transfer of immediately available funds to the Shareholder leases with Capital Primary Care, Midwest Retina/300, Grant Riverside Lab, Children’s Hospital 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 XIIDesign Group. (b) On the fifteen-month anniversary of Borrower shall, within fifteen (15) Business Days after the Closing Date, Buyer shall deliver to Lender fully-executed estoppel certificates, in form and content satisfactory to Lender, for leases representing at least seventy-five (75%) of the 15-Month Cash Consideration and total square footage of the Interest Payment by wire transfer of immediately available funds Improvements (except to the Shareholder extent a subordination, nondisturbance and each Company Payee, each attornment agreement delivered to Lender for such payment equal leases contained estoppel language satisfactory 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 XIILender). (c) Upon the occurrence of a NuCel Removal Event prior to the one year anniversary of Borrower shall, within thirty (30) days after the Closing Date, Buyer deliver to Lender an updated survey for the Project, certified to Lender and its successors and assigns in accordance with the Shareholder covenant survey requirements and agree certification Lender provided 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 forfeit to Buyer; provided, however, that notwithstanding anything herein Borrower prior to the contrary no shares Closing Date. Borrower previously delivered to Lender a survey of Buyer Common Stock representing NuCel Equity Consideration shall be subject the Project completed prior to forfeiture as a result of a NuCel Removal Event after the earlier of: (i) the one year anniversary of the Closing Date and referenced in the Title Insurance Policy (iithe “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 determined by Lender) the NuCel FDA Clearancevalue or ability to finance or market for sale the Project (“Adverse Survey Matters”), Borrower shall promptly (and in any event within (90) days) take such corrective measures as Lender reasonably requires (including, if required by Lender, obtaining endorsements to the Title Insurance Policy) to eliminate, insure over or otherwise correct the Adverse Survey Matters. (d) Upon the occurrence of a NuCel Removal Event prior to the one year anniversary of Borrower shall use commercially reasonably efforts to, within fifteen (15) Business Days after the Closing Date, Buyer and the Shareholder covenant and agree deliver 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 forfeit to Buyer; provided, however, that notwithstanding anything herein to the contrary no shares of Buyer Common Stock representing XxXx Equity Consideration shall be subject to forfeiture as a result of a NuCel Removal Event after the earlier of: Lender (i) the one year anniversary of the Closing Date 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 XxXx FDA Clearanceaccuracy and completeness of the copy of the Ground Lease previously delivered to Lender.

Post-Closing Deliveries. (a) On As a material inducement to Lender making the Loan, Borrower agrees that it shall deliver Title Insurance Policies for each of the first four quarterly anniversaries of the Properties on or before September 30, 2014 and use commercially reasonable efforts to satisfy all other Post-Closing Date following the Closing DateItems to Lender’s reasonable satisfaction by October 15, 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 the Merger Consideration Payment Schedule, 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 forfeit to Buyer2014; provided, however, that notwithstanding anything herein in any event Borrower shall satisfy all such Post-Closing Items to Lender’s reasonable satisfaction by October 30, 2014, 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 contrary no shares satisfaction of Buyer Common Stock representing NuCel Equity Consideration the applicable Post-Closing Items). Post-Closing Items with respect to any Substitution Property shall be subject delivered no later than the date that is 45 days following the selection of the Substitution Property, or such later date as to forfeiture 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 the Delayed Advance shall be conditioned on Lender’s receipt of reasonably acceptable Title Insurance Policies for each of the Properties. (b) In the event that information received by Lender in connection with the satisfaction of any Post-Closing Item (whether with respect to a Property or a Substitution Property) shall result of a NuCel Removal Event after in the earlier of: 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, provided that, solely for the one year anniversary purposes of this clause (i), any reference to the Closing Date and 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 NuCel FDA Clearance. Loan (d) Upon other than solely by virtue of the occurrence existence of a NuCel Removal Event prior SAC Conditions), including by reason of anything contained in any Lease or Material Agreement heretofore delivered to Lender or the results of any searches with respect to the one year anniversary Borrower or the Properties received by Lender, or (iii) subject to clause (A) of the Closing Datelast sentence of Section 2.1(c), Buyer and 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 Shareholder covenant and agree existence of SAC Conditions), then, in each such case, Lender shall have the right, in its sole discretion, to negotiate in good faith to determine a number of outstanding shares of Buyer Common Stock representing the Restricted Equity Consideration require that the Shareholder 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 Valuations and (2) Borrower shall forfeit certify that each of the representations in Article III hereof are true with respect to Buyerthe 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 notwithstanding such exceptions to such representations are not acceptable. 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 by a Substitution Property, (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 herein 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 shares of Buyer Common Stock representing XxXx Equity Consideration shall be subject to forfeiture as a result of a NuCel Removal Event after less than the earlier of: (i) the one year anniversary value of the Closing Date individual Property so replaced (in each case, based on the Valuations) and (iiB) up to two Properties may be replaced by a single Substitution Property, so long as the XxXx FDA Clearancevalue of such Substitution Properties is no less than the aggregate value of the Properties so replaced (in each case, based on the Valuations).

Post-Closing Deliveries. (a) On each of the first four quarterly anniversaries of the Closing Date No later than sixty (60) days following the Closing Date, Buyer or at such later date as Agent in its sole discretion may elect, Real Estate Borrowers shall deliver deliver, or Xxxx-Xxxxx, X-X Xxxxxxxxxx, X-X Xxxxxxx or X-X Logistics (as applicable) shall cause Real Estate Borrowers to deliver, to Agent the Quarterly Cash Consideration following: (i) a valid and perfected first priority Leasehold Mortgage (subject to Permitted Liens) in favor of Agent upon each Leasehold Property to which no value has been given under the Initial 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, the lease of which is subject to a valid and enforceable prohibition on the granting of a leasehold mortgage by wire transfer the lessee), whether pursuant to a modification agreement as to Leasehold Property subject to a leasehold mortgage in favor of immediately available funds 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 in a form suitable for recording or filing, duly authorized, executed and delivered by Stores Leasing, Raleigh Leasing, Xxxxxxxxxx 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 an existing fixture filing naming Agent, as secured party, and the applicable Borrower or Guarantor, as debtor, to reflect Stores Leasing, Raleigh Leasing, Xxxxxxxxxx Leasing or Warehouse Leasing, as applicable, as the debtor, or (B) a fixture filing naming Agent, as secured party, and Stores Leasing, Raleigh Leasing, Xxxxxxxxxx Leasing or Warehouse Leasing, as applicable, as debtor, have been filed with respect to such Leasehold Property; (iii) either (A) leasehold title insurance policies or (B) an endorsement to the Shareholder 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 each Company Payeethat 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, each 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 reasonably request and accompanied by evidence of the payment equal in full of all premiums thereon, (iv) to the Quarterly Cash Consideration multiplied extent 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 percentage set forth on real estate records for such Leasehold Property, a title search for such Leasehold Property showing that the Merger Consideration Payment Scheduleapplicable mortgagor is the current record title holder of the leasehold interest; and (v) all consents, as 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 Leasehold Mortgage of Agent in any such amount may be adjusted pursuant Leasehold Property and related assets subject to ARTICLE XIIthe Leasehold Mortgage with respect thereto. (b) On the fifteen-month anniversary of No later than one hundred twenty (120) days following the Closing Date, Buyer or at such later date as Agent in its sole discretion may elect, Xxxx-Xxxxx shall deliver to Agent, in form and substance satisfactory to Agent in good faith, evidence that each of Xxxxx Stores, Xxxxx Realty and Sundown Sales has been liquidated and dissolved or consolidated or merged with and into Xxxx-Xxxxx 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 15-Month Cash Consideration and foregoing, 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 final tax return for Xxxxx Stores may be adjusted pursuant to ARTICLE XIIfiled in the ordinary course of business. (c) Upon the occurrence of a NuCel Removal Event prior to the one year anniversary of No later than sixty (60) days following the Closing Date, Buyer or at such later date as Agent in its sole discretion may elect, Xxxx-Xxxxx shall deliver to Agent, in form and the Shareholder covenant and agree substance satisfactory to negotiate Agent in good faith to determine a number of outstanding shares of Buyer Common Stock representing the Restricted Equity Consideration that the Shareholder shall forfeit to Buyer; provided, however, that notwithstanding anything herein to the contrary no shares of Buyer Common Stock representing NuCel Equity Consideration shall be subject to forfeiture as a result of a NuCel Removal Event after the earlier of: (i) lien and judgment search results from each parish or other applicable filing office in the one year anniversary State of the Closing Date and Louisiana in which any Borrower conducts business, owns Real Property or maintains Leasehold Property, (ii) a certified copy of an Order in Aid of Plan Consummation, as duly entered by the NuCel FDA ClearanceBankruptcy Court, with respect to the liens of record in the State of Louisiana that require discharging pursuant to the Confirmation Order, and (iii) evidence that a 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) Upon Except as otherwise set forth herein, upon the occurrence request of a NuCel Removal Event prior Agent, Xxxx-Xxxxx will deliver, or cause its Subsidiaries to the one year anniversary of the Closing Datedeliver, Buyer in form and the Shareholder covenant substance satisfactory to Agent in good faith, all consents, waivers, acknowledgments and agree to negotiate other agreements from third persons which Agent in good faith may deem necessary or desirable in order to determine a number permit, protect and perfect its Liens upon the Collateral or to effectuate the provisions or purposes of outstanding shares of Buyer Common Stock representing this Agreement and the Restricted Equity Consideration that the Shareholder shall forfeit to Buyer; provided, however, that notwithstanding anything herein to the contrary no shares of Buyer Common Stock representing XxXx Equity Consideration shall be subject to forfeiture as a result of a NuCel Removal Event after the earlier of: (i) the one year anniversary of the Closing Date and (ii) the XxXx FDA Clearanceother Loan Documents.