Merger, Consolidation and Certain Dispositions of Property. (a) Consolidate with, be acquired by, or merge into or with any Person, or sell, lease or otherwise dispose of all or substantially all of its Property (in one transaction or a series of transactions), or permit any Subsidiary Guarantor so to do, or liquidate or dissolve, except, subject to the last sentence of this Section 8.2(a), (i) the merger or consolidation of any Subsidiary Guarantor of the Borrower into or with the Borrower, (ii) the merger or consolidation of any two or more Subsidiary Guarantors (including any Subsidiaries that become Subsidiary Guarantors upon the consummation of such a transaction with a Subsidiary Guarantor), (iii) the merger or consolidation of the Borrower or a Subsidiary Guarantor with any other Person, provided that (A) the Borrower or such Subsidiary Guarantor is the surviving entity in such merger or consolidation, or contemporaneously with the consummation of such transaction the surviving entity becomes a Subsidiary Guarantor, (B) the total book value of the assets of the entity which is merged into or consolidated with the Borrower or such Subsidiary Guarantor is less than 35% of the total book value of the assets of the Borrower and its Subsidiaries determined on a Consolidated basis in accordance with GAAP immediately following such merger or consolidation, (C) immediately prior to such merger or consolidation the Borrower shall have provided to the Administrative Agent a Compliance Certificate prepared on a pro forma basis (and adjusted in the best good faith estimate of the Borrower, based on the advice of the Accountants, to give effect to such merger or consolidation) demonstrating that after giving effect to such merger or consolidation, no Default shall exist with respect to any of the covenants set forth in Sections 8.12, 8.13, 8.14, 8.15, 8.16, 8.17 and 8.18, and (D) after giving effect to such merger or consolidation, no Event of Default shall then exist, or (iv) the merger or consolidation of a Subsidiary Guarantor with any other Person in which such other Person shall be the surviving entity, the liquidation or dissolution of a Subsidiary Guarantor, or the sale, lease or other disposition by a Subsidiary Guarantor of all or substantially all of its Property, so long as, after giving effect to such transaction, (x) no Default or Event of Default shall then exist, (y) such transaction does not violate Section 8.2(b) and (z) Borrower and/or the Subsidiary Guarantors (including any new Subsidiary Guarantors provided by the Borrower pursuant to Section 7.11 in connection with such transaction) own Unencumbered Assets which contribute at least 80% of the Adjusted Net Operating Income for all Unencumbered Assets of the Borrower and its Subsidiaries determined on a Consolidated basis in accordance with GAAP. In the event that a Subsidiary Guarantor shall engage in a transaction permitted by Section 8.2(a)(iv) (other than a lease of all or substantially all of its assets), then such Subsidiary Guarantor shall be released by Administrative Agent from liability under the Subsidiary Guaranty, provided that the Borrower shall deliver to Administrative Agent evidence satisfactory to Administrative Agent that (X) the Borrower will be in compliance with all covenants of this Agreement after giving effect to such transaction, (Y) if such transaction involves the sale or disposition by a Subsidiary Guarantor of all or substantially all of its Property, such Subsidiary Guarantor shall be legally dissolved after its release from the Subsidiary Guaranty (provided further that a Subsidiary Guarantor that has transferred substantially all of its assets may be released from its liability under the Subsidiary Guaranty without dissolving upon the approval of the Administrative Agent, which approval may be withheld in its sole discretion) and (Z) the net cash proceeds from such sale or disposition are being distributed to Borrower as part of such dissolution. Except as set forth in the following sentence, nothing in this Section 8.2(a) shall in any way restrict the activities of a Subsidiary that is not a Subsidiary Guarantor. Notwithstanding anything contained herein to the contrary, the Borrower shall not, directly or indirectly, permit any merger or consolidation of any Subsidiary which owns any Unencumbered Assets with CA New Plan Fixed Rate Partnership, L.P., any DownREIT Partnership or any Subsidiary of a DownREIT Partnership. (b) Except as expressly permitted by Section 8.2(a), sell, transfer, contribute, master lease or dispose of any of its Property, either directly or indirectly, or permit any Subsidiary Guarantor so to do, except, subject to the last sentence of this Section 8.2(b), that if at the time thereof and immediately after giving effect thereto, no Default shall have occurred and be continuing, (i) any Subsidiary Guarantor may sell, transfer, contribute, master lease or otherwise dispose of its assets to the Borrower or to any other Subsidiary Guarantor, (ii) the Borrower may sell, transfer, contribute, master lease or otherwise dispose of its assets to any Subsidiary Guarantor, (iii) in connection with any transaction pursuant to which a Real Property asset of Borrower or any Subsidiary Guarantor is or will be encumbered with a mortgage (as permitted under Section 8.1(vii)), the Borrower or any Subsidiary Guarantor may transfer such asset to any Subsidiary, (iv) Borrower or any Subsidiary Guarantor of Borrower may sell, transfer, contribute or dispose of worn-out or obsolete Property, (v) Borrower or any Subsidiary Guarantor may sell, transfer, contribute, master lease or otherwise dispose of any of its assets to any Subsidiary, so long as, after giving effect to such transaction, Borrower and/or the Subsidiary Guarantors (including any new Subsidiary Guarantors provided by the Borrower pursuant to Section 7.11 in connection with such transaction) own Unencumbered Assets which contribute at least 80% of the Adjusted Net Operating Income for all Unencumbered Assets of the Borrower and its Subsidiaries determined on a Consolidated basis in accordance with GAAP, and (vi) the Borrower or any Subsidiary of the Borrower may sell, transfer, contribute, master lease or otherwise dispose of Property in an arm’s length transaction (or, if the transaction involves an Affiliate of the Borrower, if the transaction complies with Section 8.8), including, without limitation, a disposition of Property pursuant to a merger or consolidation (so long as such merger or consolidation is not prohibited by Section 8.2(a)), provided, however, that for any fiscal year of the Borrower, any sale, transfer, master lease, contribution or other disposition of Property in reliance on this clause (vi) which when combined with all other sales, transfers, master leases, contributions or dispositions of Property in reliance on this clause (vi) made in such fiscal year shall not exceed 25% of the total book value of all Property of the Borrower and its Subsidiaries determined as of the date of each such transaction. Except as set forth in the following sentence, nothing in this Section 8.2(b) (other than clause (vi)) shall in any way restrict the activities of a Subsidiary that is not a Subsidiary Guarantor. Notwithstanding anything contained herein to the contrary, neither the Borrower nor any Subsidiary of the Borrower shall, directly, or indirectly, sell, transfer, contribute, master lease or dispose of any Unencumbered Assets to CA New Plan Fixed Rate Partnership, L.P., any DownREIT Partnership or any Subsidiary of a DownREIT Partnership other than in connection with any transaction which is otherwise permitted pursuant to this Section 8.2(b) pursuant to which such Unencumbered Asset will no longer constitute an Unencumbered Asset as a result of such transaction.
Appears in 2 contracts
Samples: Term Loan Agreement (New Plan Excel Realty Trust Inc), Term Loan Agreement (New Plan Excel Realty Trust Inc)
Merger, Consolidation and Certain Dispositions of Property. (a) Consolidate with, be acquired by, or merge into or with any Person, or sell, lease or otherwise dispose of all or substantially all of its Property (in one transaction or a series of transactions), or permit any Subsidiary Guarantor so to do, or liquidate or dissolve, except, subject to the last sentence of this Section 8.2(a), except (i) the merger or consolidation of any Subsidiary Guarantor of the Borrower into or with the Borrower, (ii) the merger or consolidation of any two or more Subsidiary Guarantors (including any Subsidiaries that become Subsidiary Guarantors upon the consummation of such a transaction with a Subsidiary Guarantor), (iii) the merger or consolidation of the Borrower or a Subsidiary Guarantor with any other Person, provided that (A) the Borrower or such Subsidiary Guarantor is the surviving entity in such merger or consolidation, or contemporaneously with the consummation of such transaction the surviving entity becomes a Subsidiary Guarantor, (B) the total book value of the assets of the entity which is merged into or consolidated with the Borrower or such Subsidiary Guarantor is less than 35% of the total book value of the assets of the Borrower and its Subsidiaries determined on a Consolidated basis in accordance with GAAP immediately following such merger or consolidation, (C) immediately prior to such merger or consolidation the Borrower shall have provided to the Administrative Agent a Compliance Certificate prepared on a pro pro–forma basis (and adjusted in the best good faith estimate of the Borrower, based on the advice of the Accountants, to give effect to such merger or consolidation) demonstrating that after giving effect to such merger or consolidation, no Default shall exist with respect to any of the covenants set forth in Sections 8.12, 8.13, 8.14, 8.15, 8.16, 8.17 and 8.18, 8.18 and (D) after giving effect to such merger or consolidation, no Event of Default shall then exist, or (iv) the merger or consolidation of a Subsidiary Guarantor with any other Person in which such other Person shall be the surviving entity, the liquidation or dissolution of a Subsidiary Guarantor, or the sale, lease or other disposition by a Subsidiary Guarantor of all or substantially all of its Property, so long as, after giving effect to such transaction, (x) no Default or Event of Default shall then exist, (y) such transaction does not violate Section 8.2(b) and (z) Borrower and/or the Subsidiary Guarantors (including any new Subsidiary Guarantors provided by the Borrower pursuant to Section 7.11 in connection with such transaction) own Unencumbered Assets which contribute at least 80% of the Adjusted Net Operating Income for all Unencumbered Assets of the Borrower and its Subsidiaries determined on a Consolidated basis in accordance with GAAPbasis. In the event that a Subsidiary Guarantor shall engage in a transaction permitted by Section 8.2(a)(iv) (other than a lease of all or substantially all of its assets), then such Subsidiary Guarantor shall be released by Administrative Agent from liability under the Subsidiary Guaranty, provided that the Borrower shall deliver to Administrative Agent evidence satisfactory to Administrative Agent that (X) the Borrower will be in compliance with all covenants of this Agreement after giving effect to such transaction, (Y) if such transaction involves the sale or disposition by a Subsidiary Guarantor of all or substantially all of its Property, such Subsidiary Guarantor shall be legally dissolved after its release from the Subsidiary Guaranty (provided further that a Subsidiary Guarantor that has transferred substantially all of its assets may be released from its liability under the Subsidiary Guaranty without dissolving upon the approval of the Administrative Agent, which approval may be withheld in its sole discretion) and (Z) the net cash proceeds from such sale or disposition are being distributed to Borrower as part of such dissolution. Except as set forth in the following sentence, nothing Nothing in this Section 8.2(a) shall in any way restrict the activities of a Subsidiary that is not a Subsidiary Guarantor. Notwithstanding anything contained herein to the contrary, the Borrower shall not, directly or indirectly, permit any merger or consolidation of any Subsidiary which owns any Unencumbered Assets with CA New Plan Fixed Rate Partnership, L.P., any DownREIT Partnership or any Subsidiary of a DownREIT Partnership.
(b) Except as expressly permitted by Section 8.2(a), sell, transfer, contribute, master lease or dispose of any of its Property, either directly or indirectly, or permit any Subsidiary Guarantor so to do, except, subject to the last sentence of this Section 8.2(b), except that if at the time thereof and immediately after giving effect thereto, no Default shall have occurred and be continuing, (i) any Subsidiary Guarantor may sell, transfer, contribute, master lease or otherwise dispose of its assets to the Borrower or to any other Subsidiary Guarantor, (ii) the Borrower may sell, transfer, contribute, master lease or otherwise dispose of its assets to any Subsidiary Guarantor, (iii) in connection with any transaction pursuant to which a Real Property asset of Borrower or any Subsidiary Guarantor is or will be encumbered with a mortgage (as permitted under Section 8.1(vii)), the Borrower or any Subsidiary Guarantor may transfer such asset to any Subsidiary, (iv) Borrower or any Subsidiary Guarantor of Borrower may sell, transfer, contribute or dispose of worn-out or obsolete Property, (v) Borrower or any Subsidiary Guarantor may sell, transfer, contribute, master lease or otherwise dispose of any of its assets to any Subsidiary, so long as, after giving effect to such transaction, Borrower and/or the Subsidiary Guarantors (including any new Subsidiary Guarantors provided by the Borrower pursuant to Section 7.11 in connection with such transaction) own Unencumbered Assets which contribute at least 80% of the Adjusted Net Operating Income for all Unencumbered Assets of the Borrower and its Subsidiaries determined on a Consolidated basis in accordance with GAAPbasis, and (vi) the Borrower or any Subsidiary of the Borrower may sell, transfer, contribute, master lease or otherwise dispose of Property in an arm’s length transaction (or, if the transaction involves an Affiliate of the Borrower, if the transaction complies with Section 8.8), including, without limitation, a disposition of Property pursuant to a merger or consolidation (so long as such merger or consolidation is not prohibited by Section 8.2(a)), provided, however, that for any fiscal year of the Borrower, any sale, transfer, master lease, contribution or other disposition of Property in reliance on this clause (vi) which when combined with all other sales, transfers, master leases, contributions or dispositions of Property in reliance on this clause (vi) made in such fiscal year shall not exceed 25% of the total book value of all Property of the Borrower and its Subsidiaries determined as of the date of each such transaction. Except as set forth in the following sentence, nothing Nothing in this Section 8.2(b) (other than clause (vi)) shall in any way restrict the activities of a Subsidiary that is not a Subsidiary Guarantor. Notwithstanding anything contained herein to the contrary, neither the Borrower nor any Subsidiary of the Borrower shall, directly, or indirectly, sell, transfer, contribute, master lease or dispose of any Unencumbered Assets to CA New Plan Fixed Rate Partnership, L.P., any DownREIT Partnership or any Subsidiary of a DownREIT Partnership other than in connection with any transaction which is otherwise permitted pursuant to this Section 8.2(b) pursuant to which such Unencumbered Asset will no longer constitute an Unencumbered Asset as a result of such transaction.
Appears in 1 contract
Samples: Term Loan Agreement (New Plan Excel Realty Trust Inc)
Merger, Consolidation and Certain Dispositions of Property. (a) Consolidate with, be acquired by, or merge into or with any Person, or sell, lease or otherwise dispose of all or substantially all of its Property (in one transaction or a series of transactions), or permit any Subsidiary Guarantor so to do, or liquidate or dissolve, except, subject to the last sentence of this Section 8.2(a), except (i) the merger or consolidation of any Subsidiary Guarantor of the Borrower into or with the Borrower, (ii) the merger or consolidation of any two or more Subsidiary Guarantors (including any Subsidiaries that become Subsidiary Guarantors upon the consummation of such a transaction with a Subsidiary Guarantor), (iii) the merger or consolidation of the Borrower or a Subsidiary Guarantor with any other Person, provided that (A) the Borrower or such Subsidiary Guarantor is the surviving entity in such merger or consolidation, or contemporaneously with the consummation of such transaction the surviving entity becomes a Subsidiary Guarantor, (B) the total book value of the assets of the entity which is merged into or consolidated with the Borrower or such Subsidiary Guarantor is less than 35% of the total book value of the assets of the Borrower and its Subsidiaries determined on a Consolidated basis in accordance with GAAP immediately following such merger or consolidation, (C) immediately prior to such merger or consolidation the Borrower shall have provided to the Administrative Agent a Compliance Certificate prepared on a pro pro-forma basis (and adjusted in the best good faith estimate of the Borrower, based on the advice of the Accountants, to give effect to such merger or consolidation) demonstrating that after giving effect to such merger or consolidation, no Default shall exist with respect to any of the covenants set forth in Sections 8.12, 8.13, 8.14, 8.15, 8.16, 8.17 and 8.17, 8.18, 8.19 and 8.20 and (D) after giving effect to such merger or consolidation, no Event of Default shall then exist, or (iv) the merger or consolidation of a Subsidiary Guarantor with any other Person in which such other Person shall be the surviving entity, the liquidation or dissolution of a Subsidiary Guarantor, or the sale, lease or other disposition by a Subsidiary Guarantor of all or substantially all of its Property, so long as, after giving effect to such transaction, (x) no Default or Event of Default shall then exist, (y) such transaction does not violate Section 8.2(b8.2(c) and (z) Borrower and/or the Subsidiary Guarantors (including any new Subsidiary Guarantors provided by the Borrower pursuant to Section 7.11 in connection with such transaction) own Unencumbered Assets which contribute at least 80% of the Adjusted Net Operating Income for all Unencumbered Assets of the Borrower and its Subsidiaries determined on a Consolidated basis in accordance with GAAPbasis. In the event that a Subsidiary Guarantor shall engage in a transaction permitted by Section 8.2(a)(iv) (other than a lease of all or substantially all of its assets), then such Subsidiary Guarantor shall be released by Administrative Agent from liability under the Subsidiary Guaranty, provided that the Borrower shall deliver to Administrative Agent evidence satisfactory to Administrative Agent that (X) the Borrower will be in compliance with all covenants of this Agreement after giving effect to such transaction, (Y) if such transaction involves the sale or disposition by a Subsidiary Guarantor of all or substantially all of its Property, such Subsidiary Guarantor shall be legally dissolved after its release from the Subsidiary Guaranty (provided further that a Subsidiary Guarantor that has transferred substantially all of its assets may be released from its liability under the Subsidiary Guaranty without dissolving upon the approval of the Administrative Agent, which approval may be withheld in its sole discretion) and (Z) the net cash proceeds from such sale or disposition are being distributed to Borrower as part of such dissolution. Except as set forth in the following sentence, nothing Nothing in this Section 8.2(a) shall in any way restrict the activities of a Subsidiary that is not a Subsidiary Guarantor. Notwithstanding anything contained herein to the contrary, the Borrower shall not, directly or indirectly, permit .
(b) Permit any merger or consolidation of any Subsidiary which owns any Unencumbered Assets with CA New Plan Fixed Rate Partnership, L.P., any DownREIT Partnership Collateral Interests Owner or any Subsidiary of any Collateral Interests Owner (other than an Excluded Collateral Interests Subsidiary) or any direct or indirect owner of any Collateral Interests Owner (other than Borrower) to consolidate with, be acquired by, or merge into or with any Person, or sell, lease or otherwise dispose of all or substantially all of its Property (in one transaction or a DownREIT Partnershipseries of transactions), or liquidate or dissolve, unless (i) immediately prior to such transaction the Borrower shall have provided to the Administrative Agent a Compliance Certificate prepared on a pro-forma basis (and adjusted in the best good faith estimate of the Borrower, based on the advice of the Accountants, to give effect to such transaction) demonstrating that after giving effect to such transaction, no Default shall exist with respect to the covenants set forth in Section 8.19 and Section 8.20, (ii) after giving effect to such transaction, no Event of Default shall then exist, (iii) such transaction does not violate Section 8.2(d), and (iv) if in connection with such transaction additional Collateral Interests are proposed to be pledged to Administrative Agent or if Administrative Agent deems it reasonably necessary or desirable in order to maintain, obtain and/or perfect a first priority security interest in, or lien on, the Collateral Interests affected by such transaction which are intended to remain Collateral Interests following such transaction, Borrower and any applicable Subsidiary of Borrower shall have executed and delivered to the Administrative Agent all instruments, documents, or agreements, including an Assignment of Interests in substantially the same form as the Assignment of Interests delivered to Administrative Agent on the date hereof, Acknowledgments in substantially the same form as the Acknowledgments delivered to Administrative Agent on the date hereof and Uniform Commercial Code financing statements, as the Administrative Agent shall deem reasonably necessary or desirable to obtain and perfect a first priority security interest in, or lien on, such Collateral Interests, provided, however, that notwithstanding the foregoing, in no event shall Borrower permit CA New Plan to (x) consolidate with, be acquired by, or merge into or with any Subsidiary of Borrower that is not a Collateral Interests Owner or a Subsidiary of a Collateral Interests Owner (other than an Excluded Collateral Interests Subsidiary) or (y) sell, lease or otherwise dispose of all or substantially all of its Property (in one transaction or a series of transactions) to any Subsidiary of Borrower that is not a Collateral Interests Owner or a Subsidiary of a Collateral Interests Owner (other than an Excluded Collateral Interests Subsidiary). Nothing in this Section 8.2(b) shall in any way restrict (A) the activities of a Subsidiary that is not a Collateral Interests Owner, a Subsidiary of a Collateral Interests Owner or a direct or indirect owner of any Collateral Interests Owner or (B) the activities of an Excluded Collateral Interests Subsidiary.
(bc) Except as expressly permitted by Section 8.2(a), sell, transfer, contribute, master lease or dispose of any of its Property, either directly or indirectly, or permit any Subsidiary Guarantor so to do, except, subject to the last sentence of this Section 8.2(b), except that if at the time thereof and immediately after giving effect thereto, no Default shall have occurred and be continuing, (i) any Subsidiary Guarantor may sell, transfer, contribute, master lease or otherwise dispose of its assets to the Borrower or to any other Subsidiary Guarantor, (ii) the Borrower may sell, transfer, contribute, master lease or otherwise dispose of its assets (other than its direct or indirect interests in CA New Plan, except as permitted by Section 8.2(b)) to any Subsidiary, provided, however, that solely with respect to transactions involving Borrower’s direct or indirect interest in a Collateral Interests Owner, in the event that such sale, transfer, contribution, lease or other disposition is to a Subsidiary Guarantorother than a Collateral Interests Owner or a Subsidiary of a Collateral Interests Owner, immediately prior to such transaction the Borrower shall have provided to the Administrative Agent a Compliance Certificate prepared on a pro-forma basis (and adjusted in the best good faith estimate of the Borrower, based on the advice of the Accountants, to give effect to such transaction) demonstrating that after giving effect to such transaction, no Default shall exist with respect to the covenants set forth in Section 8.19 and Section 8.20, (iii) in connection with any transaction pursuant to which a Real Property asset of Borrower or any Subsidiary Guarantor (other than a Collateral Interests Property, except as permitted by Section 8.2(d)) is or will be encumbered with a mortgage (as permitted under Section 8.1(vii)), the Borrower or any Subsidiary Guarantor may transfer such asset to any Subsidiary, (iv) Borrower or any Subsidiary Guarantor of Borrower may sell, transfer, contribute or dispose of worn-out or obsolete Property, (v) Borrower or any Subsidiary Guarantor may sell, transfer, contribute, master lease or otherwise dispose of any of its assets (other than its direct or indirect interests in CA New Plan, except as permitted by Section 8.2(b)) to any SubsidiarySubsidiary Guarantor, so long as, after giving effect to such transaction, Borrower and/or the Subsidiary Guarantors (including any new Subsidiary Guarantors provided by the Borrower pursuant to Section 7.11 in connection with such transaction) own Unencumbered Assets which contribute at least 80% of the Adjusted Net Operating Income for all Unencumbered Assets of the Borrower and its Subsidiaries determined on a Consolidated basis in accordance with GAAPbasis, and (vi) the Borrower or any Subsidiary of the Borrower may sell, transfer, contribute, master lease or otherwise dispose of Property in an arm’s length transaction (or, if the transaction involves an Affiliate of the Borrower, if the transaction complies with Section 8.8), including, without limitation, a disposition of Property pursuant to a merger or consolidation (so long as such merger or consolidation is not prohibited by Section 8.2(a) or 8.2(b)), provided, that such transaction, as with respect to the Account, any of the Collateral, any Collateral Interests Property or any Collateral Interests, or any direct or indirect interests therein, is not prohibited by Section 8.2(d), and further provided, however, that for any fiscal year of the Borrower, any sale, transfer, master lease, contribution or other disposition of Property in reliance on this clause (vi) which when combined with all other sales, transfers, master leases, contributions or dispositions of Property in reliance on this clause (vi) made in such fiscal year shall not exceed 25% of the total book value of all Property of the Borrower and its Subsidiaries determined as of the date of each such transaction. Except as set forth in the following sentence, nothing Nothing in this Section 8.2(b8.2(c) (other than clause (vi)) shall in any way restrict the activities of a Subsidiary that is not a Subsidiary Guarantor. Notwithstanding anything contained herein to the contrary.
(d) Except as expressly permitted by Section 8.2(a), neither the Borrower nor any Subsidiary of the Borrower shall, directly, Section 8.2(b) or indirectlySection 8.2(c), sell, transfer, contribute, master lease or dispose of any Unencumbered Assets to CA New Plan Fixed Rate Partnership, L.P.the Account, any DownREIT Partnership of the Collateral, any Collateral Interests Property or any Collateral Interests, either directly or indirectly, or permit any Collateral Interests Owner, any Subsidiary of any Collateral Interests Owner or any direct or indirect owner of a DownREIT Partnership Collateral Interests Owner so to do, except that if at the time thereof and immediately after giving effect thereto, no Default shall have occurred and be continuing, (i) any Collateral Interests Owner, any Subsidiary of any Collateral Interests Owner or any direct or indirect owner of a Collateral Interests Owner any may sell, transfer, contribute or dispose of worn-out or obsolete Property, (ii) Borrower (as with respect to any Collateral Interests), any Collateral Interests Owner, any Subsidiary of any Collateral Interests Subsidiary or any direct or indirect owner of a Collateral Interests Owner may sell, transfer, contribute, master lease or otherwise dispose of its assets to any other than Collateral Interests Owner or any other Subsidiary of any Collateral Interests Subsidiary, provided, however, if in connection with such transaction Administrative Agent deems it reasonably necessary or desirable in order to maintain, obtain and/or perfect a first priority security interest in, or lien on, the Collateral Interests affected by such transaction which are intended to remain Collateral Interests following such transaction, Borrower and any applicable Subsidiary of Borrower shall have executed and delivered to the Administrative Agent all instruments, documents, or agreements, including an Assignment of Interests in substantially the same form as the Assignment of Interests delivered to Administrative Agent on the date hereof, Acknowledgments in substantially the same form as the Acknowledgments delivered to Administrative Agent on the date hereof and Uniform Commercial Code financing statements, as the Administrative Agent shall deem reasonably necessary or desirable to obtain and perfect a first priority security interest in, or lien on, such Collateral Interests, (iii) in connection with any transaction which is otherwise permitted pursuant to this Section 8.2(b) pursuant to which a Collateral Interests Property is or will be encumbered with a mortgage (as permitted under Section 8.1(viii)), any Collateral Interests Owner and/or any Subsidiary of any Collateral Interests Owner (other than CA New Plan), as applicable, may transfer such Unencumbered Asset will no longer constitute an Unencumbered Asset asset to a newly formed direct or indirect wholly owned Subsidiary of Borrower which is established as a result special purpose entity to own Real Property or equity interests related thereto in a bankruptcy remote manner, and (iv) Borrower, any Collateral Interests Owner, any Subsidiary of any Collateral Interests Owner or any direct or indirect owner of a Collateral Interests Owner may sell, transfer, contribute, master lease or otherwise dispose of a Collateral Interests Property or a direct or indirect interest in a Collateral Interests Property in an arm’s length transaction to a third party, including, without limitation, a disposition of such transactionProperty pursuant to a merger or consolidation (so long as such merger or consolidation is not prohibited by Section 8.2(a) or (b)), provided that such sale, transfer, master lease contribution or other disposition complies with Section 6.3 and Section 8.2(c)(vi). Nothing in this Section 8.2(d) shall in any way restrict the activities of (x) Borrower with respect to Borrower’s assets other than Borrower’s direct or indirect interests in the Account, any of the Collateral, any Collateral Interests Property or any Collateral Interests or (y) a Subsidiary that is not a Collateral Interests Owner, a Subsidiary of a Collateral Interests Owner or a direct or indirect owner of a Collateral Interests Owner, or (z) an Excluded Collateral Interests Subsidiary.
Appears in 1 contract
Samples: Secured Term Loan Agreement (New Plan Excel Realty Trust Inc)
Merger, Consolidation and Certain Dispositions of Property. (a) Consolidate with, be acquired by, or merge into or with any Person, or sell, lease or otherwise dispose of all or substantially all of its Property (in one transaction or a series of transactions), or permit any Subsidiary Guarantor so to do, or liquidate or dissolve, except, subject to the last sentence of this Section 8.2(a), (i) the merger or consolidation of any Subsidiary Guarantor of the Borrower into or with the Borrower, (ii) the merger or consolidation of any two or more Subsidiary Guarantors (including any Subsidiaries that become Subsidiary Guarantors upon the consummation of such a transaction with a Subsidiary Guarantor), (iii) the merger or consolidation of the Borrower or a Subsidiary Guarantor with any other Person, provided that (A) the Borrower or such Subsidiary Guarantor is the surviving entity in such merger or consolidation, or contemporaneously with the consummation of such transaction the surviving entity becomes a Subsidiary Guarantor, (B) the total book value of the assets of the entity which is merged into or consolidated with the Borrower or such Subsidiary Guarantor is less than 35% of the total book value of the assets of the Borrower and its Subsidiaries determined on a Consolidated basis in accordance with GAAP immediately following such merger or consolidation, (C) immediately prior to such merger or consolidation the Borrower shall have provided to the Administrative Agent a Compliance Certificate prepared on a pro pro-forma basis (and adjusted in the best good faith estimate of the Borrower, based on the advice of the Accountants, to give effect to such merger or consolidation) demonstrating that after giving effect to such merger or consolidation, no Default shall exist with respect to any of the covenants set forth in Sections 8.12, 8.13, 8.14, 8.15, 8.16, 8.17 and 8.18, 8.18 and (D) after giving effect to such merger or consolidation, no Event of Default shall then exist, or (iv) the merger or consolidation of a Subsidiary Guarantor with any other Person in which such other Person shall be the surviving entity, the liquidation or dissolution of a Subsidiary Guarantor, or the sale, lease or other disposition by a Subsidiary Guarantor of all or substantially all of its Property, so long as, after giving effect to such transaction, (x) no Default or Event of Default shall then exist, (y) such transaction does not violate Section 8.2(b) and (z) Borrower and/or the Subsidiary Guarantors (including any new Subsidiary Guarantors provided by the Borrower pursuant to Section 7.11 in connection with such transaction) own Unencumbered Assets which contribute at least 80% of the Adjusted Net Operating Income for all Unencumbered Assets of the Borrower and its Subsidiaries determined on a Consolidated basis in accordance with GAAP. In the event that a Subsidiary Guarantor shall engage in a transaction permitted by Section 8.2(a)(iv) (other than a lease of all or substantially all of its assets), then such Subsidiary Guarantor shall be released by Administrative Agent from liability under the Subsidiary Guaranty, provided that the Borrower shall deliver to Administrative Agent evidence satisfactory to Administrative Agent that (X) the Borrower will be in compliance with all covenants of this Agreement after giving effect to such transaction, (Y) if such transaction involves the sale or disposition by a Subsidiary Guarantor of all or substantially all of its Property, such Subsidiary Guarantor shall be legally dissolved after its release from the Subsidiary Guaranty (provided further that a Subsidiary Guarantor that has transferred substantially all of its assets may be released from its liability under the Subsidiary Guaranty without dissolving upon the approval of the Administrative Agent, which approval may be withheld in its sole discretion) and (Z) the net cash proceeds from such sale or disposition are being distributed to Borrower as part of such dissolution. Except as set forth in the following sentence, nothing in this Section 8.2(a) shall in any way restrict the activities of a Subsidiary that is not a Subsidiary Guarantor. Notwithstanding anything contained herein to the contrary, the Borrower shall not, directly or indirectly, permit any merger or consolidation of any Subsidiary which owns any Unencumbered Assets with CA New Plan Fixed Rate Partnership, L.P., any DownREIT Partnership or any Subsidiary of a DownREIT Partnership.
(b) Except as expressly permitted by Section 8.2(a), sell, transfer, contribute, master lease or dispose of any of its Property, either directly or indirectly, or permit any Subsidiary Guarantor so to do, except, subject to the last sentence of this Section 8.2(b), that if at the time thereof and immediately after giving effect thereto, no Default shall have occurred and be continuing, (i) any Subsidiary Guarantor may sell, transfer, contribute, master lease or otherwise dispose of its assets to the Borrower or to any other Subsidiary Guarantor, (ii) the Borrower may sell, transfer, contribute, master lease or otherwise dispose of its assets to any Subsidiary Guarantor, (iii) in connection with any transaction pursuant to which a Real Property asset of Borrower or any Subsidiary Guarantor is or will be encumbered with a mortgage (as permitted under Section 8.1(vii)), the Borrower or any Subsidiary Guarantor may transfer such asset to any Subsidiary, (iv) Borrower or any Subsidiary Guarantor of Borrower may sell, transfer, contribute or dispose of worn-out or obsolete Property, (v) Borrower or any Subsidiary Guarantor may sell, transfer, contribute, master lease or otherwise dispose of any of its assets to any Subsidiary, so long as, after giving effect to such transaction, Borrower and/or the Subsidiary Guarantors (including any new Subsidiary Guarantors provided by the Borrower pursuant to Section 7.11 in connection with such transaction) own Unencumbered Assets which contribute at least 80% of the Adjusted Net Operating Income for all Unencumbered Assets of the Borrower and its Subsidiaries determined on a Consolidated basis in accordance with GAAP, and (vi) the Borrower or any Subsidiary of the Borrower may sell, transfer, contribute, master lease or otherwise dispose of Property in an arm’s length transaction (or, if the transaction involves an Affiliate of the Borrower, if the transaction complies with Section 8.8), including, without limitation, a disposition of Property pursuant to a merger or consolidation (so long as such merger or consolidation is not prohibited by Section 8.2(a)), provided, however, that for any fiscal year of the Borrower, any sale, transfer, master lease, contribution or other disposition of Property in reliance on this clause (vi) which when combined with all other sales, transfers, master leases, contributions or dispositions of Property in reliance on this clause (vi) made in such fiscal year shall not exceed 25% of the total book value of all Property of the Borrower and its Subsidiaries determined as of the date of each such transaction. Except as set forth in the following sentence, nothing in this Section 8.2(b) (other than clause (vi)) shall in any way restrict the activities of a Subsidiary that is not a Subsidiary Guarantor. Notwithstanding anything contained herein to the contrary, neither the Borrower nor any Subsidiary of the Borrower shall, directly, or indirectly, sell, transfer, contribute, master lease or dispose of any Unencumbered Assets to CA New Plan Fixed Rate Partnership, L.P., any DownREIT Partnership or any Subsidiary of a DownREIT Partnership other than in connection with any transaction which is otherwise permitted pursuant to this Section 8.2(b) pursuant to which such Unencumbered Asset will no longer constitute an Unencumbered Asset as a result of such transaction.
Appears in 1 contract
Samples: Revolving Credit Agreement (New Plan Excel Realty Trust Inc)
Merger, Consolidation and Certain Dispositions of Property. (a) Consolidate with, be acquired by, or merge into or with any Person, or sell, lease or otherwise dispose of all or substantially all of its Property (in one transaction or a series of transactions), or permit any Subsidiary Guarantor so to do, or liquidate or dissolve, except, subject to the last sentence of this Section 8.2(a), except (i) the merger or consolidation of any Subsidiary Guarantor of the Borrower into or with the Borrower, (ii) the merger or consolidation of any two or more Subsidiary Guarantors (including any Subsidiaries that become Subsidiary Guarantors upon the consummation of such a transaction with a Subsidiary Guarantor), (iii) the merger or consolidation of the Borrower or a Subsidiary Guarantor with any other Person, provided that (A) the Borrower or such Subsidiary Guarantor is the surviving entity in such merger or consolidation, or contemporaneously with the consummation of such transaction the surviving entity becomes a Subsidiary Guarantor, (B) the total book value of the assets of the entity which is merged into or consolidated with the Borrower or such Subsidiary Guarantor is less than 35% of the total book value of the assets of the Borrower and its Subsidiaries determined on a Consolidated basis in accordance with GAAP immediately following such merger or consolidation, (C) immediately prior to such merger or consolidation the Borrower shall have provided to the Administrative Agent a Compliance Certificate prepared on a pro pro-forma basis (and adjusted in the best good faith estimate of the Borrower, based on the advice of the Accountants, to give effect to such merger or consolidation) demonstrating that after giving effect to such merger or consolidation, no Default shall exist with respect to any of the covenants set forth in Sections 8.12, 8.13, 8.14, 8.15, 8.16, 8.17 and 8.18, 8.18 and (D) after giving effect to such merger or consolidation, no Event of Default shall then exist, or (iv) the merger or consolidation of a Subsidiary Guarantor with any other Person in which such other Person shall be the surviving entity, the liquidation or dissolution of a Subsidiary Guarantor, or the sale, lease or other disposition by a Subsidiary Guarantor of all or substantially all of its Property, so long as, after giving effect to such transaction, (x) no Default or Event of Default shall then exist, (y) such transaction does not violate Section 8.2(b) and (z) Borrower and/or the Subsidiary Guarantors (including any new Subsidiary Guarantors provided by the Borrower pursuant to Section 7.11 7.11(a) in connection with such transaction) own Unencumbered Assets which contribute at least 80% of the Adjusted Net Operating Income for all Unencumbered Assets of the Borrower and its Subsidiaries determined on a Consolidated basis in accordance with GAAPbasis. In the event that a Subsidiary Guarantor shall engage in a transaction permitted by Section 8.2(a)(iv) (other than a lease of all or substantially all of its assets), then such Subsidiary Guarantor shall be released by Administrative Agent from liability under the Subsidiary Guaranty, provided that the Borrower shall deliver to Administrative Agent evidence satisfactory to Administrative Agent that (X) the Borrower will be in compliance with all covenants of this Agreement after giving effect to such transaction, (Y) if such transaction involves the sale or disposition by a Subsidiary Guarantor of all or substantially all of its Property, such Subsidiary Guarantor shall be legally dissolved after its release from the Subsidiary Guaranty (provided further that a Subsidiary Guarantor that has transferred substantially all of its assets may be released from its liability under the Subsidiary Guaranty without dissolving upon the approval of the Administrative Agent, which approval may be withheld in its sole discretion) and (Z) the net cash proceeds from such sale or disposition are being distributed to Borrower as part of such dissolution. Except as set forth in the following sentence, nothing Nothing in this Section 8.2(a) shall in any way restrict the activities of a Subsidiary that is not a Subsidiary Guarantor. Notwithstanding anything contained herein to the contrary, the Borrower shall not, directly or indirectly, permit any merger or consolidation of any Subsidiary which owns any Unencumbered Assets with CA New Plan Fixed Rate Partnership, L.P., any DownREIT Partnership or any Subsidiary of a DownREIT Partnership.
(b) Except as expressly permitted by Section 8.2(a), sell, transfer, contribute, master lease or dispose of any of its Property, either directly or indirectly, or permit any Subsidiary Guarantor so to do, except, subject to the last sentence of this Section 8.2(b), except that if at the time thereof and immediately after giving effect thereto, no Default shall have occurred and be continuing, (i) any Subsidiary Guarantor may sell, transfer, contribute, master lease or otherwise dispose of its assets to the Borrower or to any other Subsidiary Guarantor, (ii) the Borrower may sell, transfer, contribute, master lease or otherwise dispose of its assets to any Subsidiary Guarantor, (iii) in connection with any transaction pursuant to which a Real Property asset of Borrower or any Subsidiary Guarantor is or will be encumbered with a mortgage (as permitted under Section 8.1(vii)), the Borrower or any Subsidiary Guarantor may transfer such asset to any Subsidiary, (iv) Borrower or any Subsidiary Guarantor of Borrower may sell, transfer, contribute or dispose of worn-out or obsolete Property, (v) Borrower or any Subsidiary Guarantor may sell, transfer, contribute, master lease or otherwise dispose of any of its assets to any Subsidiary, so long as, after giving effect to such transaction, Borrower and/or the Subsidiary Guarantors (including any new Subsidiary Guarantors provided by the Borrower pursuant to Section 7.11 7.11(a) in connection with such transaction) own Unencumbered Assets which contribute at least 80% of the Adjusted Net Operating Income for all Unencumbered Assets of the Borrower and its Subsidiaries determined on a Consolidated basis in accordance with GAAPbasis, and (vi) the Borrower or any Subsidiary of the Borrower may sell, transfer, contribute, master lease or otherwise dispose of Property in an arm’s 's length transaction (or, if the transaction involves an Affiliate of the Borrower, if the transaction complies with Section 8.8), including, without limitation, a disposition of Property pursuant to a merger or consolidation (so long as such merger or consolidation is not prohibited by Section 8.2(a)), provided, however, that for any fiscal year of the Borrower, any sale, transfer, master lease, contribution or other disposition of Property in reliance on this clause (vi) which when combined with all other sales, transfers, master leases, contributions or dispositions of Property in reliance on this clause (vi) made in such fiscal year shall not exceed 25% of the total book value of all Property of the Borrower and its Subsidiaries determined as of the date of each such transaction. Except as set forth in the following sentence, nothing Nothing in this Section 8.2(b) (other than clause (vi)) shall in any way restrict the activities of a Subsidiary that is not a Subsidiary Guarantor. Notwithstanding anything contained herein to the contrary, neither the Borrower nor any Subsidiary of the Borrower shall, directly, or indirectly, sell, transfer, contribute, master lease or dispose of any Unencumbered Assets to CA New Plan Fixed Rate Partnership, L.P., any DownREIT Partnership or any Subsidiary of a DownREIT Partnership other than in connection with any transaction which is otherwise permitted pursuant to this Section 8.2(b) pursuant to which such Unencumbered Asset will no longer constitute an Unencumbered Asset as a result of such transaction.
Appears in 1 contract
Samples: Revolving Credit Agreement (New Plan Excel Realty Trust Inc)
Merger, Consolidation and Certain Dispositions of Property. (a) Consolidate with, be acquired by, or merge into or with any Person, or sell, lease or otherwise dispose of all or substantially all of its Property (in one transaction or a series of transactions), or permit any Subsidiary Guarantor or Other Guarantor so to do, or liquidate or dissolve, except, subject to the last sentence of this Section 8.2(a), except (i) the merger or consolidation of any Subsidiary Guarantor of the Borrower into or with the Borrower, (ii) the merger or consolidation of any two or more Subsidiary Guarantors (including any Subsidiaries that become Subsidiary Guarantors upon the consummation of such a transaction with a Subsidiary Guarantor)Guarantors, (iii) the merger or consolidation of the Borrower or a Subsidiary Guarantor with any other Person, provided that (A) the Borrower or such Subsidiary Guarantor is the surviving entity in such merger or consolidation, or contemporaneously with the consummation of such transaction the surviving entity becomes a Subsidiary Guarantor, (B) the total book value of the assets of the entity which is merged into or consolidated with the Borrower or such Subsidiary Guarantor is less than 3520% of the total book value of the assets of the Borrower and its Subsidiaries determined on a Consolidated basis in accordance with GAAP immediately following such merger or consolidation, (C) immediately prior to such merger or consolidation the Borrower shall have provided to the Administrative Agent and each of the Lenders a Compliance Certificate prepared on a pro pro-forma basis (and adjusted in the best good faith estimate of the Borrower, based on the advice of the Accountants, to give effect to such merger or consolidation) demonstrating that after giving effect to such merger or consolidation, no Default shall exist with respect to any of the covenants set forth in Sections 8.12, 8.13, 8.14, 8.15, 8.16, 8.17 and 8.18, and (D) after giving effect to such merger or consolidation, no Event of Default shall then exist, or (iv) the merger or consolidation of a Subsidiary Guarantor with any other Person in which such other Person shall be the surviving entity, the liquidation or dissolution of a Subsidiary Guarantor, or the sale, lease or other disposition by a Subsidiary Guarantor of all or substantially all of its Property, so long as, after giving effect to such transaction, (x) no Default or Event of Default shall then exist, (y) such transaction does not violate Section 8.2(b) and (z) Borrower and/or the Subsidiary Guarantors (including any new Subsidiary Guarantors provided by the Borrower pursuant to Section 7.11 in connection with such transaction) own Unencumbered Assets which contribute at least 80% of the Adjusted Net Operating Income for all Unencumbered Assets of the Borrower and its Subsidiaries determined on a Consolidated basis in accordance with GAAP. In the event that a Subsidiary Guarantor shall engage in a transaction permitted by Section 8.2(a)(iv) (other than a lease of all or substantially all of its assets), then such Subsidiary Guarantor shall be released by Administrative Agent from liability under the Subsidiary Guaranty, provided that the Borrower shall deliver to Administrative Agent evidence satisfactory to Administrative Agent that (X) the Borrower will be in compliance with all covenants of this Agreement after giving effect to such transaction, (Y) if such transaction involves the sale or disposition by a Subsidiary Guarantor of all or substantially all of its Property, such Subsidiary Guarantor shall be legally dissolved after its release from the Subsidiary Guaranty (provided further that a Subsidiary Guarantor that has transferred substantially all of its assets may be released from its liability under the Subsidiary Guaranty without dissolving upon the approval of the Administrative Agent, which approval may be withheld in its sole discretion) and (Z) the net cash proceeds from such sale or disposition are being distributed to Borrower as part of such dissolution. Except as set forth in the following sentence, nothing in this Section 8.2(a) shall in any way restrict the activities of a Subsidiary that is not a Subsidiary Guarantor. Notwithstanding anything contained herein to the contrary, the Borrower shall not, directly or indirectly, permit any merger or consolidation of any Subsidiary which owns any Unencumbered Assets with CA New Plan Fixed Rate Partnership, L.P., any DownREIT Partnership or any Subsidiary of a DownREIT Partnership.
(b) Except as expressly permitted by Section 8.2(a), sell, transfer, contribute, master lease or dispose of any of its Property, either directly or indirectly, or permit any Subsidiary Guarantor so to do, except, subject to the last sentence of this Section 8.2(b), that if at the time thereof and immediately after giving effect thereto, no Default shall have occurred and be continuing, (i) any Subsidiary Guarantor may sell, transfer, contribute, master lease or otherwise dispose of its assets to the Borrower or to any other Subsidiary Guarantor, (ii) the Borrower may sell, transfer, contribute, master lease or otherwise dispose of its assets to any Subsidiary Guarantor, (iii) in connection with any transaction pursuant to which a Real Property asset of Borrower or any Subsidiary Guarantor is or will be encumbered with a mortgage (as permitted under Section 8.1(vii)), the Borrower or any Subsidiary Guarantor may transfer such asset to any Subsidiary, (iv) Borrower or any Subsidiary Guarantor of Borrower may sell, transfer, contribute or dispose of worn-out or obsolete Property, (v) Borrower or any Subsidiary Guarantor may sell, transfer, contribute, master lease or otherwise dispose of any of its assets to any Subsidiary, so long as, after giving effect to such transaction, Borrower and/or the Subsidiary Guarantors (including any new Subsidiary Guarantors provided by the Borrower pursuant to Section 7.11 in connection with such transaction) own Unencumbered Assets which contribute at least 80% of the Adjusted Net Operating Income for all Unencumbered Assets of the Borrower and its Subsidiaries determined on a Consolidated basis in accordance with GAAP, and (vi) the Borrower or any Subsidiary of the Borrower may sell, transfer, contribute, master lease or otherwise dispose of Property in an arm’s length transaction (or, if the transaction involves an Affiliate of the Borrower, if the transaction complies with Section 8.8), including, without limitation, a disposition of Property pursuant to a merger or consolidation (so long as such merger or consolidation is not prohibited by Section 8.2(a)), provided, however, that for any fiscal year of the Borrower, any sale, transfer, master lease, contribution or other disposition of Property in reliance on this clause (vi) which when combined with all other sales, transfers, master leases, contributions or dispositions of Property in reliance on this clause (vi) made in such fiscal year shall not exceed 25% of the total book value of all Property of the Borrower and its Subsidiaries determined as of the date of each such transaction. Except as set forth in the following sentence, nothing in this Section 8.2(b) (other than clause (vi)) shall in any way restrict the activities of a Subsidiary that is not a Subsidiary Guarantor. Notwithstanding anything contained herein to the contrary, neither the Borrower nor any Subsidiary of the Borrower shall, directly, or indirectly, sell, transfer, contribute, master lease or dispose of any Unencumbered Assets to CA New Plan Fixed Rate Partnership, L.P., any DownREIT Partnership or any Subsidiary of a DownREIT Partnership other than in connection with any transaction which is otherwise permitted pursuant to this Section 8.2(b) pursuant to which such Unencumbered Asset will no longer constitute an Unencumbered Asset as a result of such transaction.Default
Appears in 1 contract
Samples: Term Loan Agreement (New Plan Excel Realty Trust Inc)
Merger, Consolidation and Certain Dispositions of Property. (a) Consolidate with, be acquired by, or merge into or with any Person, or sell, lease or otherwise dispose of all or substantially all of its Property (in one transaction or a series of transactions), or permit any Subsidiary Guarantor so to do, or liquidate or dissolve, except, subject to the last sentence of this Section 8.2(a), (i) the merger or consolidation of any Subsidiary Guarantor of the Borrower into or with the Borrower, (ii) the merger or consolidation of any two or more Subsidiary Guarantors (including any Subsidiaries that become Subsidiary Guarantors upon the consummation of such a transaction with a Subsidiary Guarantor), (iii) the merger or consolidation of the Borrower or a Subsidiary Guarantor with any other Person, provided that (A) the Borrower or such Subsidiary Guarantor is the surviving entity in such merger or consolidation, or contemporaneously with the consummation of such transaction the surviving entity becomes a Subsidiary Guarantor, (B) the total book value of the assets of the entity which is merged into or consolidated with the Borrower or such Subsidiary Guarantor is less than 35% of the total book value of the assets of the Borrower and its Subsidiaries determined on a Consolidated basis in accordance with GAAP immediately following such merger or consolidation, (C) immediately prior to such merger or consolidation the Borrower shall have provided to the Administrative Agent a Compliance Certificate prepared on a pro pro-forma basis (and adjusted in the best good faith estimate of the Borrower, based on the advice of the Accountants, to give effect to such merger or consolidation) demonstrating that after giving effect to such merger or consolidation, no Default shall exist with respect to any of the covenants set forth in Sections 8.12, 8.13, 8.14, 8.15, 8.16, 8.17 and 8.17, 8.18, 8.19 and 8.20 (and if requested by any Lender, Administrative Agent shall promptly forward a copy of such Compliance Certificate to such Lender) and (D) after giving effect to such merger or consolidation, no Event of Default shall then exist, or (iv) the merger or consolidation of a Subsidiary Guarantor with any other Person in which such other Person shall be the surviving entity, the liquidation or dissolution of a Subsidiary Guarantor, or the sale, lease or other disposition by a Subsidiary Guarantor of all or substantially all of its Property, so long as, after giving effect to such transaction, (x) no Default or Event of Default shall then exist, (y) such transaction does not violate Section 8.2(b8.2(c) and (z) Borrower and/or the Subsidiary Guarantors (including any new Subsidiary Guarantors provided by the Borrower pursuant to Section 7.11 in connection with such transaction) own Unencumbered Assets which contribute at least 80% of the Adjusted Net Operating Income for all Unencumbered Assets of the Borrower and its Subsidiaries determined on a Consolidated basis in accordance with GAAP. In the event that a Subsidiary Guarantor shall engage in a transaction permitted by Section 8.2(a)(iv) (other than a lease of all or substantially all of its assets), then such Subsidiary Guarantor shall be released by Administrative Agent from liability under the Subsidiary Guaranty, provided that the Borrower shall deliver to Administrative Agent evidence satisfactory to Administrative Agent that (X) the Borrower will be in compliance with all covenants of this Agreement after giving effect to such transaction, (Y) if such transaction involves the sale or disposition by a Subsidiary Guarantor of all or substantially all of its Property, such Subsidiary Guarantor shall be legally dissolved after its release from the Subsidiary Guaranty (provided further that a Subsidiary Guarantor that has transferred substantially all of its assets may be released from its liability under the Subsidiary Guaranty without dissolving upon the approval of the Administrative Agent, which approval may be withheld in its sole discretion) and (Z) the net cash proceeds from such sale or disposition are being distributed to Borrower as part of such dissolution. Except as set forth in the following sentence, nothing in this Section 8.2(a) shall in any way restrict the activities of a Subsidiary that is not a Subsidiary Guarantor. Notwithstanding anything contained herein to the contrary, the Borrower shall not, directly or indirectly, permit any merger or consolidation of any Subsidiary which owns any Unencumbered Assets with CA New Plan Fixed Rate Partnership, L.P., any DownREIT Partnership or any Subsidiary of a DownREIT Partnership.
(b) Permit any Collateral Interests Owner or any Subsidiary of any Collateral Interests Owner (other than an Excluded Collateral Interests Subsidiary) or any direct or indirect owner of any Collateral Interests Owner (other than Borrower) to consolidate with, be acquired by, or merge into or with any Person, or sell, lease or otherwise dispose of all or substantially all of its Property (in one transaction or a series of transactions), or liquidate or dissolve, unless, subject to the last sentence of this Section 8.2(b) (i) immediately prior to such transaction the Borrower shall have provided to the Administrative Agent a Compliance Certificate prepared on a pro-forma basis (and adjusted in the best good faith estimate of the Borrower, based on the advice of the Accountants, to give effect to such transaction) demonstrating that after giving effect to such transaction and any simultaneous transaction permitted by and in accordance with Section 6.2), no Default shall exist with respect to the covenants set forth in Section 8.19 and Section 8.20 (and if requested by any Lender, Administrative Agent shall promptly forward a copy of such Compliance Certificate to such Lender), (ii) after giving effect to such transaction, no Event of Default shall then exist, (iii) such transaction does not violate Section 8.2(d), and (iv) if in connection with such transaction additional Collateral Interests are proposed to be pledged to Administrative Agent or if Administrative Agent deems it reasonably necessary or desirable in order to maintain, obtain and/or perfect a first priority security interest in, or lien on, the Collateral Interests affected by such transaction which are intended to remain Collateral Interests following such transaction, Borrower and any applicable Subsidiary of Borrower shall have executed and delivered to the Administrative Agent all instruments, documents, or agreements, including an Assignment of Interests in substantially the same form as the Assignment of Interests delivered to Administrative Agent on the date hereof, Acknowledgments in substantially the same form as the Acknowledgments delivered to Administrative Agent on the date hereof and Uniform Commercial Code financing statements, as the Administrative Agent shall deem reasonably necessary or desirable to obtain and perfect a first priority security interest in, or lien on, such Collateral Interests, provided, however, that notwithstanding the foregoing, in no event shall Borrower permit CA New Plan to (x) consolidate with, be acquired by, or merge into or with any Subsidiary of Borrower that is not a Collateral Interests Owner or a Subsidiary of a Collateral Interests Owner (other than an Excluded Collateral Interests Subsidiary) or (y) sell, lease or otherwise dispose of all or substantially all of its Property (in one transaction or a series of transactions) to any Subsidiary of Borrower that is not a Collateral Interests Owner or a Subsidiary of a Collateral Interests Owner (other than an Excluded Collateral Interests Subsidiary). Except as set forth in the following sentence, nothing in this Section 8.2(b) shall in any way restrict (A) the activities of a Subsidiary that is not a Collateral Interests Owner, a Subsidiary of a Collateral Interests Owner or a direct or indirect owner of any Collateral Interests Owner or (B) the activities of an Excluded Collateral Interests Subsidiary. Notwithstanding anything contained herein to the contrary, the Borrower shall not, directly or indirectly, permit any merger or consolidation of any Subsidiary which owns any Unencumbered Assets with CA New Plan Fixed Rate Partnership, L.P., any DownREIT Partnership or any Subsidiary of a DownREIT Partnership.
(c) Except as expressly permitted by Section 8.2(a), sell, transfer, contribute, master lease or dispose of any of its Property, either directly or indirectly, or permit any Subsidiary Guarantor so to do, except, subject to the last sentence of this Section 8.2(b8.2(c), that if at the time thereof and immediately after giving effect thereto, no Default shall have occurred and be continuing, (i) any Subsidiary Guarantor may sell, transfer, contribute, master lease or otherwise dispose of its assets to the Borrower or to any other Subsidiary Guarantor, (ii) the Borrower may sell, transfer, contribute, master lease or otherwise dispose of its assets (other than its direct or indirect interests in CA New Plan, except as permitted by Section 8.2(b)) to any Subsidiary Guarantor, provided, however, that solely with respect to transactions involving Borrower’s direct or indirect interest in a Collateral Interests Owner, in the event that such sale, transfer, contribution, lease or other disposition is to a Subsidiary Guarantor other than a Collateral Interests Owner or a Subsidiary of a Collateral Interests Owner, immediately prior to such transaction the Borrower shall have provided to the Administrative Agent a Compliance Certificate prepared on a pro-forma basis (and adjusted in the best good faith estimate of the Borrower, based on the advice of the Accountants, to give effect to such transaction) demonstrating that after giving effect to such transaction, no Default shall exist with respect to the covenants set forth in Section 8.19 and Section 8.20 (and if requested by any Lender, Administrative Agent shall promptly forward a copy of such Compliance Certificate to such Lender), (iii) in connection with any transaction pursuant to which a Real Property asset of Borrower or any Subsidiary Guarantor (other than a Collateral Interests Property, except as permitted by Section 8.2(d)) is or will be encumbered with a mortgage (as permitted under Section 8.1(vii)), the Borrower or any Subsidiary Guarantor may transfer such asset to any Subsidiary, (iv) Borrower or any Subsidiary Guarantor of Borrower may sell, transfer, contribute or dispose of worn-out or obsolete Property, (v) Borrower or any Subsidiary Guarantor may sell, transfer, contribute, master lease or otherwise dispose of any of its assets (other than its direct or indirect interests in CA New Plan, except as permitted by Section 8.2(b)) to any Subsidiary, so long as, after giving effect to such transaction, Borrower and/or the Subsidiary Guarantors (including any new Subsidiary Guarantors provided by the Borrower pursuant to Section 7.11 in connection with such transaction) own Unencumbered Assets which contribute at least 80% of the Adjusted Net Operating Income for all Unencumbered Assets of the Borrower and its Subsidiaries determined on a Consolidated basis in accordance with GAAP, and (vi) the Borrower or any Subsidiary of the Borrower may sell, transfer, contribute, master lease or otherwise dispose of Property in an arm’s length transaction (or, if the transaction involves an Affiliate of the Borrower, if the transaction complies with Section 8.8), including, without limitation, a disposition of Property pursuant to a merger or consolidation (so long as such merger or consolidation is not prohibited by Section 8.2(a) or 8.2(b)), provided, that such transaction, as with respect to the Account, any of the Collateral, any Collateral Interests Property or any Collateral Interests, or any direct or indirect interests therein, is not prohibited by Section 8.2(d), and further provided, however, that for any fiscal year of the Borrower, any sale, transfer, master lease, contribution or other disposition of Property in reliance on this clause (vi) which when combined with all other sales, transfers, master leases, contributions or dispositions of Property in reliance on this clause (vi) made in such fiscal year shall not exceed 25% of the total book value of all Property of the Borrower and its Subsidiaries determined as of the date of each such transaction. Except as set forth in the following sentence, nothing in this Section 8.2(b8.2(c) (other than clause (vi)) shall in any way restrict the activities of a Subsidiary that is not a Subsidiary Guarantor. Notwithstanding anything contained herein to the contrary, neither the Borrower nor any Subsidiary of the Borrower shall, directly, directly or indirectly, sell, transfer, contribute, master lease or dispose of any Unencumbered Assets to CA New Plan Fixed Rate Partnership, L.P., any DownREIT Partnership or any Subsidiary of a DownREIT Partnership other than in connection with any transaction which is otherwise permitted pursuant to this Section 8.2(b8.2(c) pursuant to which such Unencumbered Asset will no longer constitute an Unencumbered Asset as a result of such transaction.
(d) Except as expressly permitted by Section 8.2(a), Section 8.2(b) or Section 8.2(c), sell, transfer, contribute, master lease or dispose of the Account, any of the Collateral, any Collateral Interests Property or any Collateral Interests, either directly or indirectly, or permit any Collateral Interests Owner, any Subsidiary of any Collateral Interests Owner or any direct or indirect owner of a Collateral Interests Owner so to do, except, subject to the last sentence of this
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Samples: Secured Term Loan Agreement (New Plan Excel Realty Trust Inc)
