Common use of Unencumbered Property Clause in Contracts

Unencumbered Property. (a) All of the Unencumbered Properties are in good condition and working order subject to ordinary wear and tear and casualty and condemnation permitted in the Loan Documents. All of the other Real Estate of the Borrower and its Subsidiaries is in good condition and working order subject to ordinary wear and tear and casualty and condemnation permitted in the Loan Documents, except where such failure would not have a Material Adverse Effect. Such Real Estate (including any property encumbered by an EPR Senior First Mortgage), and the use and operation thereof, is in material compliance with all applicable zoning, building codes and other applicable governmental regulations, except where such non-compliance would not have a Material Adverse Effect. There are no unpaid or outstanding real estate or other taxes or assessments on or against any of the Unencumbered Properties which are payable by the Borrower or its Subsidiaries or any mortgagor under any EPR Senior First Mortgage (except only real estate or other taxes or assessments, that are not yet delinquent or are being protested as permitted by this Agreement or the applicable Leases). There are no unpaid or outstanding real estate or other taxes or assessments on or against any other property of the Borrower or any of its Subsidiaries or on any property encumbered by an EPR Senior First Mortgage which are payable by any of such Persons in any material amount (except only real estate or other taxes or assessments, that are not yet delinquent or are being protested as permitted by this Agreement), except to the extent such non-payment would not have a Material Adverse Effect. There are no pending eminent domain proceedings against any property of the Borrower or any its Subsidiaries or any of the property encumbered by an EPR Senior First Mortgage or any part thereof, and, to the knowledge of the Borrower, no such proceedings are presently threatened by any taking authority which may individually or in the aggregate have any Material Adverse Effect. None of the property of the Borrower or its Subsidiaries or any of the property encumbered by an EPR Senior First Mortgage is now damaged as a result of any fire, explosion, accident, flood or other casualty in any manner which individually or in the aggregate would have any Material Adverse Effect; (b) If the Unencumbered Property and improvements are located in a special flood hazard area designated as such by the Director of the Federal Emergency Management Agency, such Unencumbered Property and improvements are and will continue to be covered by special flood insurance under the National Flood Insurance Program; (c) Neither the Borrower nor any Subsidiary is the mortgagor under any mortgage, deed of trust, or similar instrument encumbering (i) the Unencumbered Property or (ii) the Equity Interests in the Subsidiary which owns, leases or has a mortgage interest in such Unencumbered Property or the Equity Interests in any Person which owns any Equity Interests in such Subsidiary; (d) Except with respect to that encumbered by an EPR Senior First Mortgage, the Unencumbered Property has not been sold, mortgaged or underwritten to obtain financing (whether or not such financing constitutes Indebtedness) under any financing arrangement other than the financing evidenced by the Facility or, in the case of underwriting only, other financing permitted under this Agreement; (e) All material certificates of occupancy have been obtained and shall be maintained with respect to the Unencumbered Property; (f) The Unencumbered Property is a Real Estate asset for which the Borrower or its Subsidiaries have conducted their customary due diligence and review, including inspection of the Real Estate, and such customary due diligence and review have not revealed facts that would adversely affect the value of the Real Estate; (g) Except with respect to that encumbered by an EPR Senior First Mortgage, the Borrower or an Eligible Subsidiary, as applicable, holds good and marketable fee simple title to or a valid and subsisting leasehold interest in each parcel of Unencumbered Property, and has obtained a Title Policy with respect thereto, subject only to the Permitted Liens, a copy of which such Title Policy shall be made available to Agent upon request therefor; and (h) The Borrower has complied with all other applicable conditions set forth in this Agreement with respect to inclusion and retention of the Real Estate as an Unencumbered Property. (i) Notwithstanding anything in this Agreement to the contrary, so long as no Event of Default exists the Borrower or an Eligible Subsidiary, as applicable, may sell or otherwise dispose of, or permit the sale or other disposition of, portions of Unencumbered Property that consist of undeveloped land or other property which is non-income producing (including, in the case of an EPR Senior Property Loan, releasing the Borrower's or Eligible Subsidiary’s, as applicable, mortgage lien on such undeveloped land or other non-income-producing property) in each case provided that the Borrower is in compliance with the provisions of Section 9.1(f) and Section 9.1(g) at the time of, and after giving effect to, such sale or other disposition.

Unencumbered Property. Any Real Estate owned in fee simple or subject to a Ground Lease located in the contiguous United States that on any date of determination: (a) All is not subject to any Liens (including any such Lien imposed by the organizational documents of the Unencumbered Properties are owner of such asset, but excluding certain Permitted Liens as set forth in good condition and working order subject to ordinary wear and tear and casualty and condemnation permitted in the Loan Documents. All of the other Real Estate §9.2), as certified by an officer of the Borrower and its Subsidiaries Representative on the Restatement Date or such later date on which such Real Estate becomes an Unencumbered Property, (b) is in good condition and working order not the subject of any matter that could reasonably be expected to ordinary wear and tear and casualty and condemnation permitted in the Loan Documents, except where such failure would not have a Material Adverse Effect. Such Effect on the value of such Real Estate Estate, (including any property encumbered c) is not the subject of a Disqualifying Environmental Event, a Disqualifying Building Event or a Disqualifying Legal Event, in each case as certified by an EPR Senior First Mortgage), and the use and operation thereof, is in material compliance with all applicable zoning, building codes and other applicable governmental regulations, except where such non-compliance would not have a Material Adverse Effect. There are no unpaid or outstanding real estate or other taxes or assessments on or against any of the Unencumbered Properties which are payable by the Borrower or its Subsidiaries or any mortgagor under any EPR Senior First Mortgage (except only real estate or other taxes or assessments, that are not yet delinquent or are being protested as permitted by this Agreement or the applicable Leases). There are no unpaid or outstanding real estate or other taxes or assessments on or against any other property officer of the Borrower Representative on the Restatement Date or any such later date on which such Real Estate becomes an Unencumbered Property, (d) has been improved with a Building or Buildings which (1) have been issued a certificate of occupancy (where available) or is otherwise lawfully occupied for its intended use and (2) are fully operational, (e) is wholly owned by a Borrower or a Guarantor that is a wholly-owned Subsidiary and (f) has not been designated by the Borrowers in writing to the Administrative Agent as Real Estate that is not an Unencumbered Property because of a Disqualifying Environmental Event, a Disqualifying Building Event or a Disqualifying Legal Event or the Borrower's intention to subject such Unencumbered Property to an Indebtedness Lien or to Sell such Unencumbered Property, which designation shall not be permitted during the continuance of a Default (other than if such designation during a Default is made in conjunction with such Real Estate's being the subject of a Sale or Indebtedness Lien under §9.4(b)(ii) and in compliance therewith) or an Event of Default and shall be accompanied by a compliance certificate in the form of Exhibit D-6 attached hereto. Unhedged Variable Rate Debt. All Indebtedness of the Borrowers and their respective Subsidiaries for borrowed money or on any property encumbered by an EPR Senior First Mortgage which are payable by any in respect of such Persons in any material amount (except only real estate reimbursement obligations for letters of credit, guaranty obligations or other taxes Capitalized Leases, whether direct or assessmentscontingent, that are not yet delinquent or are being protested as permitted by this Agreement)including, except to the extent such non-payment would applicable, the Obligations, which bears interest at one or more variable rates and is not have subject to a Material Adverse Effect. There are no pending eminent domain proceedings against any property Hedge Agreement or other interest rate hedging arrangement having a minimum term of the Borrower or any its Subsidiaries or any of the property encumbered by an EPR Senior First Mortgage or any part thereof, and, one (1) year and having other terms reasonably acceptable to the knowledge of the Borrower, no such proceedings are presently threatened by any taking authority which may individually or in the aggregate have any Material Adverse Effect. None of the property of the Borrower or its Subsidiaries or any of the property encumbered by an EPR Senior First Mortgage is now damaged as a result of any fire, explosion, accident, flood or other casualty in any manner which individually or in the aggregate would have any Material Adverse Effect; (b) If the Unencumbered Property and improvements are located in a special flood hazard area designated as such by the Director of the Federal Emergency Management Agency, such Unencumbered Property and improvements are and will continue to be covered by special flood insurance under the National Flood Insurance Program; (c) Neither the Borrower nor any Subsidiary is the mortgagor under any mortgage, deed of trust, or similar instrument encumbering (i) the Unencumbered Property or (ii) the Equity Interests in the Subsidiary which owns, leases or has a mortgage interest in such Unencumbered Property or the Equity Interests in any Person which owns any Equity Interests in such Subsidiary; (d) Except with respect to that encumbered by an EPR Senior First Mortgage, the Unencumbered Property has not been sold, mortgaged or underwritten to obtain financing (whether or not such financing constitutes Indebtedness) under any financing arrangement other than the financing evidenced by the Facility or, in the case of underwriting only, other financing permitted under this Agreement; (e) All material certificates of occupancy have been obtained and shall be maintained with respect to the Unencumbered Property; (f) The Unencumbered Property is a Real Estate asset for which the Borrower or its Subsidiaries have conducted their customary due diligence and review, including inspection of the Real Estate, and such customary due diligence and review have not revealed facts that would adversely affect the value of the Real Estate; (g) Except with respect to that encumbered by an EPR Senior First Mortgage, the Borrower or an Eligible Subsidiary, as applicable, holds good and marketable fee simple title to or a valid and subsisting leasehold interest in each parcel of Unencumbered Property, and has obtained a Title Policy with respect thereto, subject only to the Permitted Liens, a copy of which such Title Policy shall be made available to Agent upon request therefor; and (h) The Borrower has complied with all other applicable conditions set forth in this Agreement with respect to inclusion and retention of the Real Estate as an Unencumbered PropertyAdministrative Agent. (i) Notwithstanding anything in this Agreement to the contrary, so long as no Event of Default exists the Borrower or an Eligible Subsidiary, as applicable, may sell or otherwise dispose of, or permit the sale or other disposition of, portions of Unencumbered Property that consist of undeveloped land or other property which is non-income producing (including, in the case of an EPR Senior Property Loan, releasing the Borrower's or Eligible Subsidiary’s, as applicable, mortgage lien on such undeveloped land or other non-income-producing property) in each case provided that the Borrower is in compliance with the provisions of Section 9.1(f) and Section 9.1(g) at the time of, and after giving effect to, such sale or other disposition.

Unencumbered Property. (a) All of the Unencumbered Properties are in good condition and working order subject to ordinary wear and tear and casualty and condemnation permitted in the Loan Documents. All of the other Real Estate of the Borrower EPR and its Subsidiaries is in good condition and working order subject to ordinary wear and tear and casualty and condemnation permitted in the Loan Documents, except where such failure would not have a Material Adverse Effect. Such Real Estate (including any property encumbered by an EPR Senior First Mortgage), and the use and operation thereof, is in material compliance with all applicable zoning, building codes and other applicable governmental regulations, except where such non-compliance would not have a Material Adverse Effect. There are no unpaid or outstanding real estate or other taxes or assessments on or against any of the Unencumbered Properties which are payable by the a Subsidiary Borrower or its Subsidiaries (or, as applicable, an Eligible Canadian Subsidiary) or any mortgagor under any EPR Senior First Mortgage (except only real estate or other taxes or assessments, that are not yet delinquent or are being protested as permitted by this Agreement or the applicable Leases). There are no unpaid or outstanding real estate or other taxes or assessments on or against any other property of the Borrower EPR or any of its Subsidiaries or on any property encumbered by an EPR Senior First Mortgage which are payable by any of such Persons in any material amount (except only real estate or other taxes or assessments, that are not yet delinquent or are being protested as permitted by this Agreement), except to the extent such non-payment would not have a Material Adverse Effect. There are no pending eminent domain proceedings against any property of the Borrower EPR or any its Subsidiaries or any of the property encumbered by an EPR Senior First Mortgage or any part thereof, and, to the knowledge of the BorrowerBorrowers, no such proceedings are presently threatened by any taking authority which may individually or in the aggregate have any Material Adverse Effect. None of the property of the Borrower EPR or its Subsidiaries or any of the property encumbered by an EPR Senior First Mortgage is now damaged as a result of any fire, explosion, accident, flood or other casualty in any manner which individually or in the aggregate would have any Material Adverse Effect; (b) If the Unencumbered Property and improvements are located in a special flood hazard area designated as such by the Director of the Federal Emergency Management Agency, such Unencumbered Property and improvements are and will continue to be covered by special flood insurance under the National Flood Insurance Program; (c) Neither None of the Borrower nor Subsidiary Borrower, EPR or any other Subsidiary is the mortgagor under any mortgage, deed of trust, or similar instrument encumbering (i) the Unencumbered Property or (ii) the Equity Interests in the Subsidiary Borrower which owns, leases or has a mortgage interest in such Unencumbered Property (or, as to any Eligible Canadian Subsidiary which owns, leases or has a mortgage interest in any Unencumbered Property, the Equity Interests in such Eligible Canadian Subsidiary or the Equity Interests in any Person which owns any Equity Interests in such Eligible Canadian Subsidiary); (d) Except with respect to that encumbered by an EPR Senior First Mortgage, the Unencumbered Property has not been sold, mortgaged or underwritten to obtain financing (whether or not such financing constitutes Indebtedness) under any financing arrangement other than the financing evidenced by the Facility or, in the case of underwriting only, other financing permitted under this Agreement; (e) All material certificates of occupancy have been obtained and shall be maintained with respect to the Unencumbered Property; (f) The Unencumbered Property is a Real Estate asset for which the Borrower or its Subsidiaries Borrowers have conducted their customary due diligence and review, including inspection of the Real Estate, and such customary due diligence and review have not revealed facts that would adversely affect the value of the Real Estate; (g) Except with respect to that encumbered by an EPR Senior First Mortgage, the a Subsidiary Borrower (or an Eligible Canadian Subsidiary, as applicable, ) holds good and marketable fee simple title to or a valid and subsisting leasehold interest in each parcel of Unencumbered Property, and has obtained a Title Policy with respect thereto, subject only to the Permitted Liens, a copy of which such Title Policy shall be made available to Agent upon request therefor; and; (h) The Borrower has Borrowers have complied with all other applicable conditions set forth in this Agreement with respect to inclusion and retention of the Real Estate as an Unencumbered Property.; and (i) Notwithstanding anything in this Agreement to the contrary, so long as no Event of Default exists the a Subsidiary Borrower or an Eligible Subsidiary(or, as applicable, an Eligible Canadian Subsidiary) may sell or otherwise dispose of, or permit the sale or other disposition of, portions of Unencumbered Property that consist of undeveloped land or other property which is non-income producing (including, in the case of an EPR Senior Property Loan, releasing the Subsidiary Borrower's or Eligible Subsidiary’s’s (or, as applicable, Eligible Canadian Subsidiary’s) mortgage lien on such undeveloped land or other non-income-producing property) in each case provided that the Borrower is Borrowers are in compliance with the provisions of Section 9.1(f) and Section 9.1(g9.1(a) at the time of, and after giving effect to, such sale or other disposition.

Unencumbered Property. (a) All of the Unencumbered Properties are in good condition and working order subject to ordinary wear and tear and casualty and condemnation permitted in the Loan Documents. All of the other Real Estate of the Borrower EPR and its Subsidiaries is in good condition and working order subject to ordinary wear and tear and casualty and condemnation permitted in the Loan Documents, except where such failure would not have a Material Adverse Effect. Such Real Estate (including any property encumbered by an EPR Senior First Mortgage), and the use and operation thereof, is in material compliance with all applicable zoning, building codes and other applicable governmental regulations, except where such non-compliance would not have a Material Adverse Effect. There are no unpaid or outstanding real estate or other taxes or assessments on or against any of the Unencumbered Properties which are payable by the a Subsidiary Borrower or its Subsidiaries (or, as applicable, an Eligible Canadian Subsidiary) or any mortgagor under any EPR Senior First Mortgage (except only real estate or other taxes or assessments, that are not yet delinquent or are being protested as permitted by this Agreement or the applicable Leases). There are no unpaid or outstanding real estate or other taxes or assessments on or against any other property of the Borrower EPR or any of its Subsidiaries or on any property encumbered by an EPR Senior First Mortgage which are payable by any of such Persons in any material amount (except only real estate or other taxes or assessments, that are not yet delinquent or are being protested as permitted by this Agreement), except to the extent such non-payment would not have a Material Adverse Effect. There are no pending eminent domain proceedings against any property of the Borrower EPR or any its Subsidiaries or any of the property encumbered by an EPR Senior First Mortgage or any part thereof, and, to the knowledge of the BorrowerBorrowers, no such proceedings are presently threatened by any taking authority which may individually or in the aggregate have any Material Adverse Effect. None of the property of the Borrower EPR or its Subsidiaries or any of the property encumbered by an EPR Senior First Mortgage is now damaged as a result of any fire, explosion, accident, flood or other casualty in any manner which individually or in the aggregate would have any Material Adverse Effect; (b) If the Unencumbered Property and improvements are located in a special flood hazard area designated as such by the Director of the Federal Emergency Management Agency, such Unencumbered Property and improvements are and will continue to be covered by special flood insurance under the National Flood Insurance Program; (c) Neither None of the Borrower nor Subsidiary Borrower, EPR or any other Subsidiary is the mortgagor under any mortgage, deed of trust, or similar instrument encumbering (i) the Unencumbered Property or (ii) the Equity Interests in the Subsidiary Borrower which owns, leases or has a mortgage interest in such Unencumbered Property (or, as to any Eligible Canadian Subsidiary which owns, leases or has a mortgage interest in any Unencumbered Property, the Equity Interests in such Eligible Canadian Subsidiary or the Equity Interests in any Person which owns any Equity Interests in such Eligible Canadian Subsidiary); (d) Except with respect to that encumbered by an EPR Senior First Mortgage, the Unencumbered Property has not been sold, mortgaged or underwritten to obtain financing (whether or not such financing constitutes Indebtedness) under any financing arrangement other than the financing evidenced by the Facility or, in the case of underwriting only, other financing permitted under this Agreement; (e) All material necessary certificates of occupancy have been obtained and shall be maintained with respect to the Unencumbered Property; (f) The Unencumbered Property is a Real Estate asset for which the Borrower or its Subsidiaries Borrowers have conducted their customary due diligence and review, including inspection of the Real Estate, and such customary due diligence and review have not revealed facts that would adversely affect the value of the Real Estate; (g) Except with respect to that encumbered by an EPR Senior First Mortgage, the a Subsidiary Borrower (or an Eligible Canadian Subsidiary, as applicable, ) holds good and marketable fee simple title to or a valid and subsisting leasehold interest in each parcel of Unencumbered Property, and has obtained a Title Policy with respect thereto, subject only to the Permitted Liens, a copy of which such Title Policy shall be made available to Agent upon request therefor; and; (h) The Borrower has Borrowers have complied with all other applicable conditions set forth in this Agreement with respect to inclusion and retention of the Real Estate as an Unencumbered Property.; and (i) Notwithstanding anything in this Agreement to the contrary, so long as no Event of Default exists the a Subsidiary Borrower or an Eligible Subsidiary(or, as applicable, an Eligible Canadian Subsidiary) may sell or otherwise dispose of, or permit the sale or other disposition of, portions of Unencumbered Property that consist of undeveloped land or other property which is non-income producing (including, in the case of an EPR Senior Property Loan, releasing the Subsidiary Borrower's or Eligible Subsidiary’s’s (or, as applicable, Eligible Canadian Subsidiary's) mortgage lien on such undeveloped land or other non-income-producing property) in each case provided that the Borrower is Borrowers are in compliance with the provisions of Section 9.1(f) and Section 9.1(g9.1(a) at the time of, and after giving effect to, such sale or other disposition.

Unencumbered Property. (a) All of the Unencumbered Properties are in good condition and working order subject to ordinary wear and tear and casualty and condemnation permitted in the Loan Documents. All of the other Real Estate of the Borrower EPR and its Subsidiaries is in good condition and working order subject to ordinary wear and tear and casualty and condemnation permitted in the Loan Documents, except where such failure would not have a Material Adverse Effect. Such Real Estate (including any property encumbered by an EPR Senior First Mortgage), and the use and operation thereof, is in material compliance with all applicable zoning, building codes and other applicable governmental regulations, except where such non-compliance would not have a Material Adverse Effect. There are no unpaid or outstanding real estate or other taxes or assessments on or against any of the Unencumbered Properties which are payable by the a Subsidiary Borrower or its Subsidiaries (or, as applicable, an Eligible Canadian Subsidiary) or any mortgagor under any EPR Senior First Mortgage (except only real estate or other taxes or assessments, that are not yet delinquent or are being protested as permitted by this Agreement or the applicable Leases). There are no unpaid or outstanding real estate or other taxes or assessments on or against any other property of the Borrower EPR or any of its Subsidiaries or on any property encumbered by an EPR Senior First Mortgage which are payable by any of such Persons in any material amount (except only real estate or other taxes or assessments, that are not yet delinquent or are being protested as permitted by this Agreement), except to the extent such non-payment would not have a Material Adverse Effect. There are no pending eminent domain proceedings against any property of the Borrower EPR or any its Subsidiaries or any of the property encumbered by an EPR Senior First Mortgage or any part thereof, and, to the knowledge of the BorrowerBorrowers, no such proceedings are presently threatened by any taking authority which may individually or in the aggregate have any Material Adverse Effect. None of the property of the Borrower EPR or its Subsidiaries or any of the property encumbered by an EPR Senior First Mortgage is now damaged as a result of any fire, explosion, accident, flood or other casualty in any manner which individually or in the aggregate would have any Material Adverse Effect; (b) If the Unencumbered Property and improvements are located in a special flood hazard area designated as such by the Director of the Federal Emergency Management Agency, such Unencumbered Property and improvements are and will continue to be covered by special flood insurance under the National Flood Insurance Program; (c) Neither None of the Borrower nor Subsidiary Borrower, EPR or any other Subsidiary is the mortgagor under any mortgage, deed of trust, or similar instrument encumbering (i) the Unencumbered Property or (ii) the Equity Interests in the Subsidiary Borrower which owns, leases or has a mortgage interest in such Unencumbered Property (or, as to any Eligible Canadian Subsidiary which owns, leases or has a mortgage interest in any Unencumbered Property, the Equity Interests in such Eligible Canadian Subsidiary or the Equity Interests in any Person which owns any Equity Interests in such Eligible Canadian Subsidiary); (d) Except with respect to that encumbered by an EPR Senior First Mortgage, the Unencumbered Property has not been sold, mortgaged or underwritten to obtain financing (whether or not such financing constitutes Indebtedness) under any financing arrangement other than the financing evidenced by the Facility or, in the case of underwriting only, other financing permitted under this Agreement; (e) All material necessary certificates of occupancy have been obtained and shall be maintained with respect to the Unencumbered Property; (f) The Unencumbered Property is a Real Estate asset for which the Borrower or its Subsidiaries Borrowers have conducted their customary due diligence and review, including inspection of the Real Estate, and such customary due diligence and review have not revealed facts that would adversely affect the value of the Real Estate; (g) Except with respect to that encumbered by an EPR Senior First Mortgage, the a Subsidiary Borrower (or an Eligible Canadian Subsidiary, as applicable, ) holds good and marketable fee simple title to or a valid and subsisting leasehold interest in each parcel of Unencumbered Property, and has obtained a Title Policy with respect thereto, subject only to the Permitted Liens, a copy of which such Title Policy shall be made available to Agent upon request therefor; and; (h) The Borrower has Borrowers have complied with all other applicable conditions set forth in this Agreement with respect to inclusion and retention of the Real Estate as an Unencumbered Property.; and (i) Notwithstanding anything in this Agreement to the contrary, so long as no Event of Default exists the a Subsidiary Borrower or an Eligible Subsidiary(or, as applicable, an Eligible Canadian Subsidiary) may sell or otherwise dispose of, or permit the sale or other disposition of, portions of Unencumbered Property that consist of undeveloped land or other property which is non-income producing (including, in the case of an EPR Senior Property Loan, releasing the Subsidiary Borrower's or Eligible Subsidiary’s’s (or, as applicable, an Eligible Canadian Subsidiary’s) mortgage lien on such undeveloped land or other non-income-producing property) in each case provided that the Borrower is Borrowers are in compliance with the provisions of Section 9.1(f) and Section 9.1(g9.1(a) at the time of, and after giving effect to, such sale or other disposition.

Unencumbered Property. Any Real Estate owned in fee simple or subject to a Ground Lease located in the contiguous United States that on any date of determination: (a) All is not subject to any Liens (including any such Lien imposed by the organizational documents of the Unencumbered Properties are owner of such asset, but excluding certain Permitted Liens as set forth in good condition and working order subject to ordinary wear and tear and casualty and condemnation permitted in the Loan Documents. All of the other Real Estate §9.2), as certified by an officer of the Borrower and its Subsidiaries Representative on the Restatement Date or such later date on which such Real Estate becomes an Unencumbered Property, (b) is in good condition and working order not the subject of any matter that could reasonably be expected to ordinary wear and tear and casualty and condemnation permitted in the Loan Documents, except where such failure would not have a Material Adverse Effect. Such Effect on the value of such Real Estate Estate, (including any property encumbered c) is not the subject of a Disqualifying Environmental Event, a Disqualifying Building Event or a Disqualifying Legal Event, in each case as certified by an EPR Senior First Mortgage), and the use and operation thereof, is in material compliance with all applicable zoning, building codes and other applicable governmental regulations, except where such non-compliance would not have a Material Adverse Effect. There are no unpaid or outstanding real estate or other taxes or assessments on or against any of the Unencumbered Properties which are payable by the Borrower or its Subsidiaries or any mortgagor under any EPR Senior First Mortgage (except only real estate or other taxes or assessments, that are not yet delinquent or are being protested as permitted by this Agreement or the applicable Leases). There are no unpaid or outstanding real estate or other taxes or assessments on or against any other property officer of the Borrower Representative on the Restatement Date or any such later date on which such Real Estate becomes an Unencumbered Property, (d) has been improved with a Building or Buildings which (1) have been issued a certificate of occupancy (where available) or is otherwise lawfully occupied for its Subsidiaries intended use and (2) are fully operational, (e) is wholly owned by a Borrower or on any property encumbered a Guarantor that is a wholly-owned Subsidiary and (f) has not been designated by an EPR Senior First Mortgage which are payable by any of such Persons the Borrowers in any material amount (except only real estate or other taxes or assessments, that are not yet delinquent or are being protested as permitted by this Agreement), except writing to the extent such non-payment would Administrative Agent as Real Estate that is not have an Unencumbered Property because of a Material Adverse Effect. There are no pending eminent domain proceedings against any property of the Borrower Disqualifying Environmental Event, a Disqualifying Building Event or any its Subsidiaries a Disqualifying Legal Event or any of the property encumbered by an EPR Senior First Mortgage or any part thereof, and, to the knowledge of the Borrower, no such proceedings are presently threatened by any taking authority which may individually or in the aggregate have any Material Adverse Effect. None of the property of the Borrower or its Subsidiaries or any of the property encumbered by an EPR Senior First Mortgage is now damaged as a result of any fire, explosion, accident, flood or other casualty in any manner which individually or in the aggregate would have any Material Adverse Effect; (b) If the Unencumbered Property and improvements are located in a special flood hazard area designated as such by the Director of the Federal Emergency Management Agency, ’s intention to subject such Unencumbered Property and improvements are and will continue to be covered by special flood insurance under the National Flood Insurance Program; (c) Neither the Borrower nor any Subsidiary is the mortgagor under any mortgage, deed of trust, an Indebtedness Lien or similar instrument encumbering (i) the Unencumbered Property or (ii) the Equity Interests in the Subsidiary which owns, leases or has a mortgage interest in to Sell such Unencumbered Property or Property, which designation shall not be permitted during the Equity Interests in any Person which owns any Equity Interests in such Subsidiary; continuance of a Default (d) Except with respect to that encumbered by an EPR Senior First Mortgage, the Unencumbered Property has not been sold, mortgaged or underwritten to obtain financing (whether or not such financing constitutes Indebtedness) under any financing arrangement other than if such designation during a Default is made in conjunction with such Real Estate’s being the financing evidenced by the Facility or, subject of a Sale or Indebtedness Lien under §9.4(b)(ii) and in the case compliance therewith) or an Event of underwriting only, other financing permitted under this Agreement; (e) All material certificates of occupancy have been obtained Default and shall be maintained with respect to the Unencumbered Property; (f) The Unencumbered Property is accompanied by a Real Estate asset for which the Borrower or its Subsidiaries have conducted their customary due diligence and review, including inspection of the Real Estate, and such customary due diligence and review have not revealed facts that would adversely affect the value of the Real Estate; (g) Except with respect to that encumbered by an EPR Senior First Mortgage, the Borrower or an Eligible Subsidiary, as applicable, holds good and marketable fee simple title to or a valid and subsisting leasehold interest in each parcel of Unencumbered Property, and has obtained a Title Policy with respect thereto, subject only to the Permitted Liens, a copy of which such Title Policy shall be made available to Agent upon request therefor; and (h) The Borrower has complied with all other applicable conditions set forth in this Agreement with respect to inclusion and retention of the Real Estate as an Unencumbered Property. (i) Notwithstanding anything in this Agreement to the contrary, so long as no Event of Default exists the Borrower or an Eligible Subsidiary, as applicable, may sell or otherwise dispose of, or permit the sale or other disposition of, portions of Unencumbered Property that consist of undeveloped land or other property which is non-income producing (including, compliance certificate in the case form of an EPR Senior Property Loan, releasing the Borrower's or Eligible Subsidiary’s, as applicable, mortgage lien on such undeveloped land or other non-income-producing property) in each case provided that the Borrower is in compliance with the provisions of Section 9.1(f) and Section 9.1(g) at the time of, and after giving effect to, such sale or other dispositionExhibit D-6 attached hereto.

Unencumbered Property. (a) All of the Unencumbered Properties are in good condition and working order subject to ordinary wear and tear and casualty and condemnation permitted in the Loan Documents. All of the other Real Estate of the Borrower and its Subsidiaries is in good condition and working order subject to ordinary wear and tear and casualty and condemnation permitted in the Loan Documents, except where such failure would not have a Material Adverse Effect. Such Real Estate (including any property encumbered by an EPR Senior First Mortgage), and the use and operation thereof, is in material compliance with all applicable zoning, building codes and other applicable governmental regulations, except where such non-compliance would not have a Material Adverse Effect. There are no unpaid or outstanding real estate or other taxes or assessments on or against any of the Unencumbered Properties which are payable by the Borrower or its Subsidiaries or any mortgagor under any EPR Senior First Mortgage (except only real estate or other taxes or assessments, that are not yet delinquent or are being protested as permitted by this Agreement or the applicable Leases). There are no unpaid or outstanding real estate or other taxes or assessments on or against any other property of the Borrower or any of its Subsidiaries or on any property encumbered by an EPR Senior First Mortgage which are payable by any of such Persons in any material amount (except only real estate or other taxes or assessments, that are not yet delinquent or are being protested as permitted by this Agreement), except to the extent such non-payment would not have a Material Adverse Effect. There are no pending eminent domain proceedings against any property of the Borrower or any its Subsidiaries or any of the property encumbered by an EPR Senior First Mortgage or any part thereof, and, to the knowledge of the Borrower, no such proceedings are presently threatened by any taking authority which may individually or in the aggregate have any Material Adverse Effect. None of the property of the Borrower or its Subsidiaries or any of the property encumbered by an EPR Senior First Mortgage is now damaged as a result of any fire, explosion, accident, flood or other casualty in any manner which individually or in the aggregate would have any Material Adverse Effect; (b) If the Unencumbered Property and improvements are located in a special flood hazard area designated as such by the Director of the Federal Emergency Management Agency, such Unencumbered Property and improvements are and will continue to be covered by special flood insurance under the National Flood Insurance Program; (c) Neither the Borrower nor any Subsidiary is the mortgagor under any mortgage, deed of trust, or similar instrument encumbering (i) the Unencumbered Property or (ii) the Equity Interests in the Subsidiary which owns, leases or has a mortgage interest in such Unencumbered Property or the Equity Interests in any Person which owns any Equity Interests in such Subsidiary; (d) Except with respect to that encumbered by an EPR Senior First Mortgage, the Unencumbered Property has not been sold, mortgaged or underwritten to obtain financing (whether or not such financing constitutes Indebtedness) under any financing arrangement other than the financing evidenced by the Facility or, in the case of underwriting only, other financing permitted under this Agreement; (e) All material certificates of occupancy have been obtained and shall be maintained with respect to the Unencumbered Property; (f) The Unencumbered Property is a Real Estate asset for which the Borrower or its Subsidiaries have conducted their customary due diligence and review, including inspection of the Real Estate, and such customary due diligence and review have not revealed facts that would adversely affect the value of the Real Estate; (g) Except with respect to that encumbered by an EPR Senior First Mortgage, the Borrower or an Eligible Subsidiary, as applicable, holds good and marketable fee simple title to or a valid and subsisting leasehold interest in each parcel of Unencumbered Property, and has obtained a Title Policy with respect thereto, subject only to the Permitted Liens, a copy of which such Title Policy shall be made available to Agent upon request therefor; and (h) The Borrower has complied with all other applicable conditions set forth in this Agreement with respect to inclusion and retention of the Real Estate as an Unencumbered Property. (i) Notwithstanding anything in this Agreement to the contrary, so long as no Event of Default exists the Borrower or an Eligible Subsidiary, as applicable, may sell or otherwise dispose of, or permit the sale or other disposition of, portions of Unencumbered Property that consist of undeveloped land or other property which is non-income producing (including, in the case of an EPR Senior Property Loan, releasing the Borrower's ’s or Eligible Subsidiary’s, as applicable, mortgage lien on such undeveloped land or other non-income-producing property) in each case provided that the Borrower is in compliance with the provisions of Section Sections; 9.1(f) and Section 9.1(g(g) at the time of, and after giving effect to, such sale or other disposition.