Sales, Etc. of Assets. (i) In the case of the Parent Guarantor, sell, lease, transfer or otherwise dispose of, or grant any option or other right to purchase, lease or otherwise acquire any assets and (ii) in the case of the Loan Parties (other than the Parent Guarantor), sell, lease (other than enter into Tenancy Leases), transfer or otherwise dispose of, or grant any option or other right to purchase, lease (other than any option or other right to enter into Tenancy Leases) or otherwise acquire, or permit any of its Subsidiaries to sell, lease (other than pursuant to a Tenancy Lease), transfer or otherwise dispose of, or grant any option or other right to purchase, lease (other than an option or other right to enter into a Tenancy Lease) or otherwise acquire (each action described in clause (ii) of this subsection (e) being a “Transfer”), any Unencumbered Asset or Unencumbered Assets (or any direct or indirect Equity Interests in the owner thereof) other than the following Transfers, which shall be permitted hereunder only so long as no Default or Event of Default shall exist or would result therefrom: (A) the Transfer of any Unencumbered Asset or Unencumbered Assets from any Loan Party to another Loan Party or from a Subsidiary of a Loan Party to another Subsidiary of such Loan Party or any other Loan Party, and (B) the Transfer of any Unencumbered Asset or Unencumbered Assets to any Person, or the designation of an Unencumbered Asset or Unencumbered Assets as a non-Unencumbered Asset or non-Unencumbered Assets, in each case with the intention that such Unencumbered Asset or Unencumbered Assets, upon consummation of such Transfer or upon such designation, shall no longer constitute an Unencumbered Asset or Unencumbered Assets for purposes of this Agreement, provided that (x) the remaining Unencumbered Assets continue to satisfy all Unencumbered Asset Conditions and (y) the Loan Parties shall be in compliance with the covenants contained in Section 5.04 both immediately before and on a pro forma basis immediately after giving effect to such Transfer, provided further that compliance with the foregoing proviso shall be evidenced by a certificate of the Chief Financial Officer (or other Responsible Officer performing similar functions) of the Borrower delivered to the Administrative Agent prior to the date of such Transfer demonstrating such compliance, together with supporting information in detail reasonably satisfactory to the Administrative Agent. If, at any time after the designation in accordance with the foregoing clause (B) of all Unencumbered Assets of any Property-Level Subsidiary as non-Unencumbered Assets, such Subsidiary shall incur any Debt not prohibited by Section 5.02(b) pursuant to an agreement that could qualify as an Excluded Subsidiary Agreement hereunder, (i) the Administrative Agent shall, upon the request of the Borrower, release such Subsidiary (and any other Subsidiary related thereto to the extent reasonably requested by the Borrower) from the Guaranty, (ii) such Subsidiary or Subsidiaries shall constitute Excluded Subsidiaries hereunder and such agreement shall constitute an Excluded Subsidiary Agreement hereunder, and (iii) the Borrower shall, or cause such Excluded Subsidiaries to, promptly deliver to the Administrative Agent (x) a copy of such Excluded Subsidiary Agreement in respect of such Debt and (y) an amended Schedule 4.01(y) that sets forth such Excluded Subsidiary Agreement opposite the name of such Excluded Subsidiaries.
Appears in 3 contracts
Samples: Revolving Credit Agreement (Digital Realty Trust, L.P.), Revolving Credit Agreement (Digital Realty Trust, L.P.), Revolving Credit Agreement (Digital Realty Trust, Inc.)
Sales, Etc. of Assets. (i) In the case of the Parent Guarantor, sell, lease, transfer or otherwise dispose of, or grant any option or other right to purchase, lease or otherwise acquire any assets and (ii) in the case of the Loan Parties (other than the Parent Guarantor), sell, lease (other than enter by entering into Tenancy Leases), transfer or otherwise dispose of, or grant any option or other right to purchase, lease (other than any option or other right to enter into Tenancy Leases) or otherwise acquire, or permit any of its Subsidiaries to sell, lease (other than pursuant to a Tenancy Lease)lease, transfer or otherwise dispose of, or grant any option or other right to purchase, lease (other than an option or other right to enter into a Tenancy Lease) or otherwise acquire (each action described in clause clauses (i) and (ii) of this subsection (e) ), including, without limitation, any Sale and Leaseback Transaction, being a “Transfer”), any Unencumbered Asset or Unencumbered Assets (or any direct or indirect Equity Interests in the owner thereof) ), in each case other than the following Transfers, which shall be permitted hereunder only so long as no Default or Event of Default shall exist or would result therefrom:
(A) the Transfer of any Unencumbered Asset or Assets, including unimproved land, that are not Unencumbered Assets from any Loan Party to another Loan Party (other than the Parent Guarantor) or from a Subsidiary of a Loan Party to another Subsidiary of such Loan Party or any other Loan Party, andParty (other than the Parent Guarantor),
(B) the Transfer of any Asset or Assets that are not Unencumbered Assets to any Person that is not a Loan Party, provided that the Loan Parties shall be in compliance with the covenants contained in Section 5.04 both immediately prior to and on a pro forma basis immediately after giving effect to such Transfer, on or prior to the date of such Transfer or designation, as the case may be,
(C) the Transfer of any Unencumbered Asset or Unencumbered Assets to any Person, or the designation of an Unencumbered Asset or Unencumbered Assets as a non-Unencumbered Asset or non-Unencumbered Assets, in each case with the intention that such Unencumbered Asset or Unencumbered Assets, upon consummation of such Transfer or upon such designation, shall no longer constitute an Unencumbered Asset or Unencumbered Assets for purposes of this AgreementAssets, provided that that:
(x1) immediately after giving effect to such Transfer or designation, as the case may be, the remaining Unencumbered Assets shall continue to satisfy all the requirements set forth in clauses (a) through (k) of the definition of Unencumbered Asset Conditions and Pool Conditions,
(y2) the Loan Parties shall be in compliance with the covenants contained in Section 5.04 both immediately before and on a pro forma basis immediately after giving effect to such TransferTransfer or designation, provided further and
(3) on or prior to the date of such Transfer or designation, as the case may be, the Borrower shall have delivered to the Administrative Agent (A) a certificate signed by a Responsible Officer of the Borrower, stating that before and after giving effect to such Transfer or designation, as the case may be, the Parent Guarantor shall be in compliance with the foregoing proviso shall be evidenced by covenants contained in Section 5.04(b), together with supporting information in form satisfactory to the Administrative Agent showing the computations used in determining compliance with such covenants, and (B) a certificate of the Chief Financial Officer (or other Responsible Officer performing similar functions) of the Borrower delivered to demonstrating compliance with the Administrative Agent prior to foregoing clauses (1) through (3) and confirming that no Default or Event of Default shall exist on the date of such Transfer demonstrating such complianceor will result therefrom, together with supporting information in detail reasonably satisfactory to the Administrative Agent, or
(D) the Transfer of (1) obsolete or worn out FF&E in the ordinary course of business or (2) inventory in the ordinary course of business, which FF&E or inventory, as the case may be, is used or held in connection with an Unencumbered Asset. If, at any time after the designation in accordance with the foregoing clause Following (Bx) a Transfer of all Unencumbered Assets owned or leased by a Subsidiary Guarantor in accordance with Section 5.02(e)(ii)(C) or (y) the designation by a Subsidiary Guarantor of any Property-Level Subsidiary all Unencumbered Assets owned or leased by it as non-Unencumbered Assets, such Subsidiary shall incur any Debt not prohibited by Section 5.02(b) Assets pursuant to an agreement that could qualify as an Excluded Subsidiary Agreement hereunderSection 5.02(e)(ii)(C), (i) the Administrative Agent shall, upon the request of the Borrower and at the Borrower’s expense, promptly release such Subsidiary (and any other Subsidiary related thereto to the extent reasonably requested by the Borrower) Guarantor from the Guaranty, (ii) such Subsidiary or Subsidiaries shall constitute Excluded Subsidiaries hereunder and such agreement shall constitute an Excluded Subsidiary Agreement hereunder, and (iii) the Borrower shall, or cause such Excluded Subsidiaries to, promptly deliver to the Administrative Agent (x) a copy of such Excluded Subsidiary Agreement in respect of such Debt and (y) an amended Schedule 4.01(y) that sets forth such Excluded Subsidiary Agreement opposite the name of such Excluded Subsidiaries.
Appears in 2 contracts
Samples: Credit Agreement (Summit Hotel Properties, Inc.), Credit Agreement (Summit Hotel OP, LP)
Sales, Etc. of Assets. (i) In the case of the Parent Guarantor, sell, lease, transfer or otherwise dispose of, or grant any option or other right to purchase, lease or otherwise acquire any assets and (ii) in the case of the Loan Parties (other than the Parent Guarantor), sell, lease (other than enter into Tenancy Leases), transfer or otherwise dispose of, or grant any option or other right to purchase, lease (other than any option or other right to enter into Tenancy Leases) or otherwise acquire, or permit any of its Subsidiaries to sell, lease (other than pursuant to a Tenancy Lease)lease, transfer or otherwise dispose of, or grant any option or other right to purchase, lease (other than an option or other right to enter into a Tenancy Lease) or otherwise acquire (each action described in clause (ii) of this subsection (e) being a “Transfer”), any Unencumbered Asset or Unencumbered Assets (or any direct or indirect Equity Interests in the owner thereof) other than the following Transfers, which shall be permitted hereunder only so long as no Default or Event of Default shall exist or would result therefrom:
(A) the Transfer of any Unencumbered Asset or Unencumbered Assets from any Loan Party to another Loan Party or from a Subsidiary of a Loan Party to another Subsidiary of such Loan Party or any other Loan Party, and
(B) the Transfer of any Unencumbered Asset or Unencumbered Assets to any Person, or the designation of an Unencumbered Asset or Unencumbered Assets as a non-Unencumbered Asset or non-Unencumbered Assets, in each case with the intention that such Unencumbered Asset or Unencumbered Assets, upon consummation of such Transfer or upon such designation, shall no longer constitute an Unencumbered Asset or Unencumbered Assets for purposes of this Agreement, provided provided, that (x) the remaining Unencumbered Assets continue to satisfy all Unencumbered Asset Conditions and (y) the Loan Parties shall be in compliance with the covenants contained in Section 5.04 both immediately before and on a pro forma basis immediately after giving effect to such Transfer, provided further provided, further, that compliance with the foregoing proviso shall be evidenced by a certificate of the Chief Financial Officer (or other Responsible Officer performing similar functions) of the Borrower delivered to the Administrative Agent prior to the date of such Transfer demonstrating such compliance, together with supporting information in detail reasonably satisfactory to the Administrative Agent. If, at any time after the designation in accordance with the foregoing clause (B) of all Unencumbered Assets of any Property-Level Subsidiary as non-Unencumbered Assets, such Subsidiary shall incur any Debt not prohibited by Section 5.02(b) pursuant to an agreement that could qualify as an Excluded Subsidiary Agreement hereunder, (i) the Administrative Agent shall, upon the request of the Borrower, release such Subsidiary (and any other Subsidiary related thereto to the extent reasonably requested by the Borrower) from the Guaranty, (ii) such Subsidiary or Subsidiaries shall constitute Excluded Subsidiaries hereunder and such agreement shall constitute an Excluded Subsidiary Agreement hereunder, and (iii) the Borrower shall, or cause such Excluded Subsidiaries to, promptly deliver to the Administrative Agent (x) a copy of such Excluded Subsidiary Agreement in respect of such Debt and (y) an amended Schedule 4.01(y) that sets forth such Excluded Subsidiary Agreement opposite the name of such Excluded Subsidiaries.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Digital Realty Trust, Inc.), Revolving Credit Agreement (Digital Realty Trust, Inc.)
Sales, Etc. of Assets. (i) In the case of the Parent Guarantor, sell, lease, transfer or otherwise dispose of, or grant any option or other right to purchase, lease or otherwise acquire any assets and (ii) in the case of the Loan Parties (other than the Parent Guarantor), sell, lease (other than enter by entering into Tenancy Leases), transfer or otherwise dispose of, or grant any option or other right to purchase, lease (other than any option or other right to enter into Tenancy Leases) or otherwise acquire, or permit any of its Subsidiaries to sell, lease (other than pursuant to a Tenancy Lease)lease, transfer or otherwise dispose of, or grant any option or other right to purchase, lease (other than an option or other right to enter into a Tenancy Lease) or otherwise acquire (each action described in clause clauses (i) and (ii) of this subsection (e) ), including, without limitation, any Sale and Leaseback Transaction, being a “Transfer”), any Unencumbered Asset or Unencumbered Assets (or any direct or indirect Equity Interests in the owner thereof) ), or remove a Borrowing Base Asset from the Borrowing Base Assets in each case other than the following TransfersTransfers and removals, which shall be permitted hereunder only so long as no Default or Event of Default shall exist or would result therefrom:
(A) the Transfer of any Unencumbered Asset or Unencumbered Assets that are not Borrowing Base Assets from any Loan Party to another Loan Party (other than the Parent Guarantor) or from a Subsidiary of a Loan Party to another Subsidiary of such Loan Party or any other Loan Party, andParty (other than the Parent Guarantor),
(B) the Transfer of any Unencumbered Asset or Unencumbered Assets that are not Borrowing Base Assets to any Person, or the designation of an Unencumbered Asset or Unencumbered Assets as Person that is not a non-Unencumbered Asset or non-Unencumbered Assets, in each case with the intention that such Unencumbered Asset or Unencumbered Assets, upon consummation of such Transfer or upon such designation, shall no longer constitute an Unencumbered Asset or Unencumbered Assets for purposes of this AgreementLoan Party, provided that (x) the remaining Unencumbered Assets continue to satisfy all Unencumbered Asset Conditions and (y1) the Loan Parties shall be in compliance with the covenants contained in Section 5.04 both immediately before prior to and on a pro forma basis immediately after giving effect to such Transfer, provided further and (2) in the case of any such Transfer which shall result in the aggregate purchase price paid to the Loan Parties (or any of them) to exceed $50,000,000 in any 12-month period and any such Transfer thereafter consummated during such 12-month period, prior to the date of such Transfer, the Borrower shall have delivered to the Administrative Agent (x) a Borrowing Base Certificate demonstrating that compliance with the foregoing proviso shall Total Borrowing Base Value (calculated on a pro forma basis after giving effect to such Transfer and to any repayment of Advances made at the time thereof) will be evidenced by greater than or equal to the Facility Exposure, and (y) a certificate of the Chief Financial Officer (or other Responsible Officer performing similar functions) of the Borrower delivered to demonstrating compliance with the Administrative Agent prior to foregoing clause (1) and confirming that no Default or Event of Default shall exist on the date of such Transfer demonstrating such complianceor will result therefrom, together with supporting information in detail reasonably satisfactory to the Administrative Agent,
(C) the Transfer of any Borrowing Base Asset or Borrowing Base Assets to any Person, or removal of a Borrowing Base Asset or Borrowing Base Assets from the Borrowing Base Assets, in each case with the intention that such Borrowing Base Asset or Borrowing Base Assets, upon consummation of such Transfer or removal, shall no longer constitute a Borrowing Base Asset or Borrowing Base Assets, provided that:
(1) immediately after giving effect to such Transfer or removal, as the case may be, the remaining Borrowing Base Assets shall continue to satisfy the requirements set forth in clauses (a) through (h) of the definition of Borrowing Base Conditions,
(2) immediately after giving effect to such Transfer or removal, as the case may be, no Default or Event of Default shall exist or result therefrom,
(3) the Loan Parties shall be in compliance with the covenants contained in Section 5.04 both immediately prior to and on a pro forma basis immediately after giving effect to such Transfer or removal, as the case may be, and
(4) on or prior to the date of such Transfer or removal, as the case may be, the Borrower shall have delivered to the Administrative Agent a certificate of the Chief Financial Officer (or other Responsible Officer performing similar functions) of the Borrower demonstrating compliance with the foregoing clauses (1) through (3), together with supporting information in detail reasonably satisfactory to the Administrative Agent, or
(D) the Transfer of (1) obsolete or worn out personal property in the ordinary course of business or (2) inventory in the ordinary course of business, which personal property or inventory, as the case may be, is used or held in connection with an Asset. If, at any time after the designation Following (x) a Transfer of all Borrowing Base Assets owned or leased by a Subsidiary Guarantor in accordance with Section 5.02(e)(ii)(C) or (y) the foregoing clause (B) removal by a Subsidiary Guarantor of all Unencumbered Borrowing Base Assets of any Property-Level Subsidiary as owned or leased by it such that such Borrowing Base Assets become non-Unencumbered Assets, such Subsidiary shall incur any Debt not prohibited by Section 5.02(b) Borrowing Base Assets pursuant to an agreement that could qualify as an Excluded Subsidiary Agreement hereunderSection 5.02(e)(ii)(C), (i) the Administrative Agent shall, upon the request of the Borrower and at the Borrower’s expense, promptly release such Subsidiary (and any other Subsidiary related thereto to the extent reasonably requested by the Borrower) Guarantor from the Guaranty, (ii) such Subsidiary or Subsidiaries shall constitute Excluded Subsidiaries hereunder and such agreement shall constitute an Excluded Subsidiary Agreement hereunder, and (iii) the Borrower shall, or cause such Excluded Subsidiaries to, promptly deliver to the Administrative Agent (x) a copy of such Excluded Subsidiary Agreement in respect of such Debt and (y) an amended Schedule 4.01(y) that sets forth such Excluded Subsidiary Agreement opposite the name of such Excluded Subsidiaries.
Appears in 2 contracts
Samples: Credit Agreement (Campus Crest Communities, Inc.), Credit Agreement (Campus Crest Communities, Inc.)
Sales, Etc. of Assets. (i) In the case of the Parent Guarantor, sell, lease, transfer or otherwise dispose of, or grant any option or other right to purchase, lease or otherwise acquire any assets assets, and (ii) in the case of the Loan Credit Parties (other than the Parent Guarantor), sell, lease (other than enter into Tenancy Leases), transfer or otherwise dispose of, or grant any option or other right to purchase, lease (other than any option or other right to enter into Tenancy Leases) or otherwise acquire, or permit any of its Subsidiaries to sell, lease (other than pursuant to a Tenancy Lease), transfer or otherwise dispose of, or grant any option or other right to purchase, lease (other than an option or other right to enter into a Tenancy Lease) or otherwise acquire (each action described in clause (ii) of this subsection (e) Section 10.5 being a “Transfer”), any Unencumbered Asset or Unencumbered Assets (or any direct or indirect Equity Interests in the owner thereof) other than the following Transfers, which shall be permitted hereunder only so long as no Default or Event of Default shall exist or would result therefrom:
(A) the Transfer of any Unencumbered Asset or Unencumbered Assets from any Loan Credit Party to another Loan Credit Party or from a Subsidiary of a Loan Credit Party to another Subsidiary of such Loan Credit Party or any other Loan Credit Party, andor
(B) the Transfer of any Unencumbered Asset or Unencumbered Assets to any Person, or the designation of an Unencumbered Asset or Unencumbered Assets as a non-Unencumbered Asset or non-Unencumbered AssetsAssets (it being acknowledged and agreed for purpose of this Section 10.5 that any such designation shall be deemed to constitute a Transfer), in each case with the intention that such Unencumbered Asset or Unencumbered Assets, upon consummation of such Transfer or upon such designation, shall no longer constitute an Unencumbered Asset or Unencumbered Assets for purposes of this Agreement, provided that (x) the remaining Unencumbered Assets continue to satisfy all Unencumbered Asset Conditions Conditions, and (y) the Loan Credit Parties shall be in compliance with the covenants contained in Section 5.04 11 both immediately before and on a pro forma basis immediately after giving effect to such Transfer, provided further provided, further, that compliance with the foregoing proviso shall be evidenced by a certificate of the Chief Financial Officer (or other Responsible Officer performing similar functions) of the Borrower Company delivered to the Administrative Agent each Significant Holder prior to the date of such Transfer demonstrating such compliance, together with supporting information in detail reasonably satisfactory to the Administrative AgentAgent (or, during the continuance of an Event of Default, the Required Holders). If, at any time after the designation in accordance with the foregoing clause (B) of all Unencumbered Assets of any Property-Level Subsidiary as non-Unencumbered Assets, such Subsidiary shall incur any Debt not prohibited by Section 5.02(b) 10.2 pursuant to an agreement that could qualify as an Excluded Subsidiary Agreement hereunder, (i) the Administrative Agent PIM and each holder of Notes shall, upon the request of the BorrowerCompany, release such Subsidiary (and any other Subsidiary related thereto to the extent reasonably requested by the BorrowerCompany) from the Multiparty Guaranty; provided, that no such release shall be become effective prior to any parallel release of the applicable Subsidiary or Subsidiaries from the Guaranty (as defined in the Revolving Credit Agreement), (ii) such Subsidiary or Subsidiaries shall constitute Excluded Subsidiaries hereunder and such agreement shall constitute an Excluded Subsidiary Agreement hereunder, and (iii) the Borrower shall, or cause such Excluded Subsidiaries to, Company shall promptly deliver to the Administrative Agent (x) a copy of such Excluded Subsidiary Agreement in respect of such Debt and (y) each Significant Holder an amended Schedule 4.01(y) 5.20 that sets forth such Excluded Subsidiary Agreement opposite the name of such Excluded Subsidiaries.
Appears in 1 contract
Samples: Note Purchase and Private Shelf Agreement (Digital Realty Trust, Inc.)
Sales, Etc. of Assets. (i) In the case of the Parent Guarantor, sell, lease, transfer or otherwise dispose of, or grant any option or other right to purchase, lease or otherwise acquire any assets and (ii) in the case of the Loan Parties (other than the Parent Guarantor), sell, lease (other than enter by entering into Tenancy Leases), transfer or otherwise dispose of, or grant any option or other right to purchase, lease (other than any option or other right to enter into Tenancy Leases) or otherwise acquire, or permit any of its Subsidiaries to sell, lease (other than pursuant to a Tenancy Lease)lease, transfer or otherwise dispose of, or grant any option or other right to purchase, lease (other than an option or other right to enter into a Tenancy Lease) or otherwise acquire (each action described in clause clauses (i) and (ii) of this subsection (e) ), including, without limitation, any Sale and Leaseback Transaction, being a “Transfer”), any Unencumbered Asset or Unencumbered Assets (or any direct or indirect Equity Interests in the owner thereof) ), or remove a Borrowing Base Asset from the Borrowing Base Assets in each case other than the following TransfersTransfers and removals, which shall be permitted hereunder only so long as no Default or Event of Default shall exist or would result therefrom:
(A) the Transfer of any Unencumbered Asset or Unencumbered Assets that are not Borrowing Base Assets from any Loan Party to another Loan Party (other than the Parent Guarantor) or from a Subsidiary of a Loan Party to another Subsidiary of such Loan Party or any other Loan Party, andParty (other than the Parent Guarantor),
(B) the Transfer of any Unencumbered Asset or Unencumbered Assets that are not Borrowing Base Assets to any Person, or the designation of an Unencumbered Asset or Unencumbered Assets as Person that is not a non-Unencumbered Asset or non-Unencumbered Assets, in each case with the intention that such Unencumbered Asset or Unencumbered Assets, upon consummation of such Transfer or upon such designation, shall no longer constitute an Unencumbered Asset or Unencumbered Assets for purposes of this AgreementLoan Party, provided that (x) the remaining Unencumbered Assets continue to satisfy all Unencumbered Asset Conditions and (y1) the Loan Parties shall be in compliance with the covenants contained in Section 5.04 both immediately before prior to and on a pro forma basis immediately after giving effect to such Transfer, provided further and (2) in the case of any such Transfer which shall result in the aggregate purchase price paid to the Loan Parties (or any of them) to exceed $50,000,000 in any 12-month period and any such Transfer thereafter consummated during such 12-month period, prior to the date of such Transfer, the Borrower shall have delivered to the Administrative Agent (x) a Borrowing Base Certificate demonstrating that compliance with the foregoing proviso shall Facility Available Amount (calculated on a pro forma basis after giving effect to such Transfer and to any repayment of Advances made at the time thereof) will be evidenced by greater than or equal to the Facility Exposure, and (y) a certificate of the Chief Financial Officer (or other Responsible Officer performing similar functions) of the Borrower delivered to demonstrating compliance with the Administrative Agent prior to foregoing clause (1) and confirming that no Default or Event of Default shall exist on the date of such Transfer demonstrating such complianceor will result therefrom, together with supporting information in detail reasonably satisfactory to the Administrative Agent. If,
(C) the Transfer of any Borrowing Base Asset or Borrowing Base Assets to any Person, at any time after or removal of a Borrowing Base Asset or Borrowing Base Assets from the designation Borrowing Base Assets, in accordance each case with the foregoing clause intention that such Borrowing Base Asset or Borrowing Base Assets, upon consummation of such Transfer or removal, shall no longer constitute a Borrowing Base Asset or Borrowing Base Assets, provided that:
(BI) immediately after giving effect to such Transfer or removal, as the case may be, the remaining Borrowing Base Assets shall continue to satisfy the requirements set forth in clauses (a) through (h) of all Unencumbered Assets the definition of any Property-Level Subsidiary Borrowing Base Conditions,
(II) immediately after giving effect to such Transfer or removal, as non-Unencumbered Assetsthe case may be, such Subsidiary no Default or Event of Default shall incur any Debt not prohibited by Section 5.02(b) pursuant to an agreement that could qualify as an Excluded Subsidiary Agreement hereunder, exist or result therefrom,
(iIII) the Administrative Agent shallLoan Parties shall be in compliance with the covenants contained in Section 5.04 both immediately prior to and on a pro forma basis immediately after giving effect to such Transfer or removal, upon as the request of the Borrowercase may be, release such Subsidiary and
(and any other Subsidiary related thereto IV) on or prior to the extent reasonably requested by date of such Transfer or removal, as the Borrower) from the Guarantycase may be, (ii) such Subsidiary or Subsidiaries shall constitute Excluded Subsidiaries hereunder and such agreement shall constitute an Excluded Subsidiary Agreement hereunder, and (iii) the Borrower shall, or cause such Excluded Subsidiaries to, promptly deliver shall have delivered to the Administrative Agent (xA) a copy Borrowing Base Certificate demonstrating that the Facility Available Amount (calculated on a pro forma basis after giving effect to such Transfer and to any repayment of such Excluded Subsidiary Agreement in respect of such Debt Advances made at the time thereof) will be greater than or equal to the Facility Exposure, and (yB) a certificate of the Chief Financial Officer (or other Responsible Officer performing similar functions) of the Borrower demonstrating compliance with the foregoing clauses (1) through (3), together with supporting information in detail reasonably satisfactory to the Administrative Agent, or
(D) the Transfer of (1) obsolete or worn out personal property in the ordinary course of business or (2) inventory in the ordinary course of business, which personal property or inventory, as the case may be, is used or held in connection with an amended Schedule 4.01(y) that sets forth such Excluded Subsidiary Agreement opposite the name of such Excluded SubsidiariesAsset.
Appears in 1 contract
Sales, Etc. of Assets. (i) In the case of the Parent Guarantor, sell, lease, transfer or otherwise dispose ofof (including pursuant to a Division), or grant any option or other right to purchase, lease or otherwise acquire any assets and (ii) in the case of the Loan Parties (other than the Parent Guarantor), sell, lease (other than enter by entering into Tenancy Leases), transfer or otherwise dispose ofof (including pursuant to a Division), or grant any option or other right to purchase, lease (other than any option or other right to enter into Tenancy Leases) or otherwise acquire, or permit any of its Subsidiaries to sell, lease (other than pursuant to a Tenancy Lease)lease, transfer or otherwise dispose ofof (including pursuant to a Division), or grant any option or other right to purchase, lease (other than an option or other right to enter into a Tenancy Lease) or otherwise acquire (each action described in clause clauses (i) and (ii) of this subsection (e) ), including, without limitation, any Sale and Leaseback Transaction, being a “Transfer”), any Unencumbered Asset or Unencumbered Assets (or any direct or indirect Equity Interests in the owner thereof) thereof or any TRS Lessee), in each case other than the following Transfers, which shall be permitted hereunder only so long as (other than with respect to the Transfer described in clause (E) below) no Default or Event of Default shall exist or would result therefrom:
(A) the Transfer of any Unencumbered Asset or Unencumbered Assets that are not Borrowing Base Assets from any Loan Party to another Loan Party (other than the Parent Guarantor) or from a Subsidiary of a Loan Party to another Subsidiary of such Loan Party or any other Loan Party, andParty (other than the Parent Guarantor),
(B) the Transfer of any Unencumbered Asset or Unencumbered Assets that are not Borrowing Base Assets or are not direct or indirect interests in Borrowing Base Assets to any PersonPerson that is not a Loan Party, provided that the purchase price paid to the applicable Loan Party or Subsidiary for such Asset or Assets shall not be materially less than the fair market value of such Asset or Assets at the time of such sale,
(C) the Transfer of any Borrowing Base Asset or Borrowing Base Assets to any Person that is not an Affiliate or Subsidiary of a Loan Party pursuant to a purchase and sale agreement or the designation of an Unencumbered a Borrowing Base Asset or Unencumbered Borrowing Base Assets as a non-Unencumbered Borrowing Base Asset or non-Unencumbered AssetsBorrowing Base Assets (a “Designation”), in each case case, with the intention that such Unencumbered Borrowing Base Asset or Unencumbered Borrowing Base Assets, upon consummation of such Transfer or upon such designationDesignation, shall no longer constitute an Unencumbered a Borrowing Base Asset or Unencumbered Assets for purposes of this AgreementBorrowing Base Assets, provided that that:
(x1) in the case of a Transfer, such Transfer does not constitute a Sale and Leaseback Transaction, and immediately after giving effect to such Transfer or Designation, as the case may be, the remaining Unencumbered Borrowing Base Assets shall continue to satisfy the requirements set forth in clauses (a) through (l) of the definition of Borrowing Base Conditions,
(2) no more than 4 Borrowing Base Assets may be designated as non-Borrowing Base Assets,
(3) the aggregate Allocated Loan Amount (without regard to any percentage increases set forth in the definition thereof) of all Unencumbered Asset Conditions and Borrowing Base Assets that are the subject of Designations shall not exceed $68,530,000, AMERICAS/2023134647.11 84
(y4) the Loan Parties shall be in compliance with the covenants contained in Section 5.04 both immediately before prior to and on a pro forma basis immediately after giving effect to such TransferTransfer or Designation, provided further and
(5) on or prior to the date of such Transfer or Designation, as the case may be, (a) the Borrower shall have prepaid the Facilities in an amount equal to the Allocated Loan Amount for each Borrowing Base Asset that compliance is the subject of such Transfer or Designation (with the foregoing proviso allocation of such prepayment being governed by Section 2.06(b)(iv) hereof), (b) the Borrower shall have delivered to the Administrative Agent an Availability Certificate demonstrating that the Facility Available Amount (calculated on a pro forma basis after giving effect to such Transfer or Designation and to any repayment of Advances made at the time thereof) will be evidenced by greater than or equal to the Facility Exposure and (c) a certificate of the Chief Financial Officer (or other Responsible Officer performing similar functions) of the Borrower delivered demonstrating compliance with the foregoing clauses (a) and (b) and confirming that (x) such Transfer does not constitute a Sale and Leaseback Transaction, (y) following such Transfer or Designation and the application of any prepayment made in connection therewith to the Administrative Agent Obligations, (I) the Borrowing Base Leverage Ratio shall be no higher, and (II) the Borrowing Base Debt Yield shall be no lower, in each case, than immediately prior to such Transfer and (z) no Default or Event of Default shall exist on the date of such Transfer demonstrating such complianceor Designation or will result therefrom, together with supporting information in detail reasonably satisfactory to the Administrative Agent.
(D) the Transfer of (1) obsolete or worn out FF&E in the ordinary course of business or (2) inventory in the ordinary course of business, which FF&E or inventory, as the case may be, is used or held in connection with a Borrowing Base Asset, or
(E) the Transfer of any Urban Select Service Property to a Person that is not an Affiliate or a Subsidiary of a Loan Party. If, at any time after the designation Following (I) a Transfer of a portion of or all Borrowing Base Assets owned and leased by a Subsidiary Guarantor in accordance with Section 5.02(e)(ii)(C) or (II) the foregoing clause (B) Designation by a Subsidiary Guarantor of a portion of or all Unencumbered Borrowing Base Assets of any Property-Level Subsidiary owned or leased by it as non-Unencumbered Assets, such Subsidiary shall incur any Debt not prohibited by Section 5.02(b) Borrowing Base Assets pursuant to an agreement that could qualify as an Excluded Subsidiary Agreement hereunderSection 5.02(e)(ii)(C), (i) the Administrative Agent shall, upon the request of the Borrower and at the Borrower’s expense, promptly release any mortgages, deeds of trust, security agreement and UCC financing statements from such transferred Borrowing Base Assets or assets designated as non-Borrowing Base Assets. Further, following a Transfer of all Borrowing Base Assets owned or leased by a Subsidiary Guarantor in accordance with Section 5.02(e)(ii)(C), the Administrative Agent shall, upon the request of the Borrower and at the Borrower’s expense, promptly (A) release such Subsidiary (Guarantor, the TRS Lessee that has leased such Borrowing Base Asset and any other such Equity Pledgor of certificated Equity Interests evidencing Equity Interest Collateral issued by such Subsidiary related thereto to the extent reasonably requested by the Borrower) Guarantor or TRS Lessee, as applicable, from the GuarantyGuaranty and Security Agreement, (ii) such Subsidiary or Subsidiaries shall constitute Excluded Subsidiaries hereunder and such agreement shall constitute an Excluded Subsidiary Agreement hereunderas applicable, and (iiiB) the Borrower shall, return each certificated Equity Interest issued by such Subsidiary Guarantor or cause such Excluded Subsidiaries to, promptly deliver to the Administrative Agent (x) a copy of such Excluded Subsidiary Agreement in respect of such Debt and (y) an amended Schedule 4.01(y) that sets forth such Excluded Subsidiary Agreement opposite the name of such Excluded SubsidiariesTRS Lessee.
Appears in 1 contract
Sales, Etc. of Assets. (i) In the case of the Parent Guarantor, sell, lease, transfer or otherwise dispose of, or grant any option or other right to purchase, lease or otherwise acquire any assets and (ii) in the case of the Loan Parties (other than the Parent Guarantor), sell, lease (other than enter by entering into Tenancy Leases), transfer or otherwise dispose of, or grant any option or other right to purchase, lease (other than any option or other right to enter into Tenancy Leases) or otherwise acquire, or permit any of its Subsidiaries to sell, lease (other than pursuant to a Tenancy Lease)lease, transfer or otherwise dispose of, or grant any option or other right to purchase, lease (other than an option or other right to enter into a Tenancy Lease) or otherwise acquire (each action described in clause clauses (i) and (ii) of this subsection (e) ), including, without limitation, any Sale and Leaseback Transaction, being a “Transfer”), any Unencumbered Asset or Unencumbered Assets (or any direct or indirect Equity Interests in the owner thereof) ), in each case other than the following Transfers, which shall be permitted hereunder only so long as no Default or Event of Default shall exist or would result therefrom:
(A) the Transfer of any Unencumbered Asset or Unencumbered Assets that are not Borrowing Base Assets from any Loan Party to another Loan Party (other than the Parent Guarantor) or from a Subsidiary of a Loan Party to another Subsidiary of such Loan Party or any other Loan PartyParty (other than the Parent Guarantor), and98
(B) the Transfer of any Unencumbered Asset or Unencumbered Assets that are not Borrowing Base Assets to any Person that is not a Loan Party, provided that the purchase price paid to the applicable Loan Party for such Asset or Assets shall not be materially less than the fair market value of such Asset or Assets at the time of such sale,
(C) the Transfer of any Borrowing Base Asset or Borrowing Base Assets to any Person, or the designation of an Unencumbered a Borrowing Base Asset or Unencumbered Borrowing Base Assets as a non-Unencumbered Borrowing Base Asset or non-Unencumbered Borrowing Base Assets, in each case with the intention that such Unencumbered Borrowing Base Asset or Unencumbered Borrowing Base Assets, upon consummation of such Transfer or upon such designation, shall no longer constitute an Unencumbered a Borrowing Base Asset or Unencumbered Assets for purposes of this AgreementBorrowing Base Assets, provided that (x) that:
1. immediately after giving effect to such Transfer or designation, as the case may be, the remaining Unencumbered Borrowing Base Assets shall continue to satisfy all Unencumbered Asset Conditions and the requirements set forth in clauses (ya) through (j) of the definition of Borrowing Base Conditions,
2. the Loan Parties shall be in compliance with the covenants contained in Section 5.04 both immediately before prior to and on a pro forma basis immediately after giving effect to such TransferTransfer or designation, provided further and
3. on or prior to the date of such Transfer or designation, as the case may be, the Borrower shall have delivered to the Administrative Agent (A) an Availability Certificate demonstrating that compliance with the foregoing proviso shall Facility Available Amount (calculated on a pro forma basis after giving effect to such Transfer or designation and to any repayment of Advances made at the time thereof) will be evidenced by greater than or equal to the Facility Exposure, and (B) a certificate of the Chief Financial Officer (or other Responsible Officer performing similar functions) of the Borrower delivered to demonstrating compliance with the Administrative Agent prior to foregoing clauses (1) and (2) and confirming that no Default or Event of Default shall exist on the date of such Transfer demonstrating such complianceor designation or will result therefrom, together with supporting information in detail reasonably satisfactory to the Administrative Agent, or
(D) the Transfer of (1) obsolete or worn out FF&E in the ordinary course of business or (2) inventory in the ordinary course of business, which FF&E or inventory, as the case may be, is used or held in connection with a Borrowing Base Asset. If, at any time after the designation Following (I) a Transfer of all Borrowing Base Assets owned and leased by a Subsidiary Guarantor in accordance with Section 5.02(e)(ii)(C) or (II) the foregoing clause (B) designation by a Subsidiary Guarantor of all Unencumbered Borrowing Base Assets of any Property-Level Subsidiary owned or leased by it as non-Unencumbered Assets, such Subsidiary shall incur any Debt not prohibited by Section 5.02(b) Borrowing Base Assets pursuant to an agreement that could qualify as an Excluded Subsidiary Agreement hereunderSection 5.02(e)(ii)(C), (i) the Administrative Agent shall, upon the request of the Borrower and at the Borrower’s expense, promptly release such Subsidiary (and any other Subsidiary related thereto to the extent reasonably requested by the Borrower) Guarantor from the Guaranty, (ii) such Subsidiary or Subsidiaries shall constitute Excluded Subsidiaries hereunder and such agreement shall constitute an Excluded Subsidiary Agreement hereunder, and (iii) the Borrower shall, or cause such Excluded Subsidiaries to, promptly deliver to the Administrative Agent (x) a copy of such Excluded Subsidiary Agreement in respect of such Debt and (y) an amended Schedule 4.01(y) that sets forth such Excluded Subsidiary Agreement opposite the name of such Excluded Subsidiaries.
Appears in 1 contract
Sales, Etc. of Assets. (i) In the case of the Parent Guarantor, sell, lease, transfer or otherwise dispose of, or grant any option or other right to purchase, lease or otherwise acquire any assets and (ii) in the case of the Loan Parties (other than the Parent Guarantor), sell, lease (other than enter by entering into Tenancy Leases), transfer or otherwise dispose of, or grant any option or other right to purchase, lease (other than any option or other right to enter into Tenancy Leases) or otherwise acquire, or permit any of its Subsidiaries to sell, lease (other than pursuant to a Tenancy Lease)lease, transfer or otherwise dispose of, or grant any option or other right to purchase, lease (other than an option or other right to enter into a Tenancy Lease) or otherwise acquire (each action described in clause clauses (i) and (ii) of this subsection (e) ), including, without limitation, any Sale and Leaseback Transaction, being a “Transfer”), any Unencumbered Asset or Unencumbered Assets (or any direct or indirect Equity Interests in the owner thereof) ), in each case other than the following Transfers, which shall be permitted hereunder only so long as no Default or Event of Default shall exist or would result therefrom:
(A) the Transfer of any Unencumbered Asset or Unencumbered Assets that are not Borrowing Base Assets from any Loan Party to another Loan Party (other than the Parent Guarantor) or from a Subsidiary of a Loan Party to another Subsidiary of such Loan Party or any other Loan Party, andParty (other than the Parent Guarantor),
(B) the Transfer of any Unencumbered Asset or Unencumbered Assets that are not Borrowing Base Assets to any Person that is not a Loan Party, provided that the purchase price paid to the applicable Loan Party for such Asset or Assets shall not be materially less than the fair market value of such Asset or Assets at the time of such sale,
(C) the Transfer of any Borrowing Base Asset or Borrowing Base Assets to any Person, or the designation of an Unencumbered a Borrowing Base Asset or Unencumbered Borrowing Base Assets as a non-Unencumbered Borrowing Base Asset or non-Unencumbered Borrowing Base Assets, in each case with the intention that such Unencumbered Borrowing Base Asset or Unencumbered Borrowing Base Assets, upon consummation of such Transfer or upon such designation, shall no longer constitute an Unencumbered a Borrowing Base Asset or Unencumbered Assets for purposes of this AgreementBorrowing Base Assets, provided that that:
(x1) immediately after giving effect to such Transfer or designation, as the case may be, the remaining Unencumbered Borrowing Base Assets shall continue to satisfy all Unencumbered Asset Conditions and the requirements set forth in clauses (ya) through (j) of the definition of Borrowing Base Conditions,
(2) the Loan Parties shall be in compliance with the covenants contained in Section 5.04 both immediately before prior to and on a pro forma basis immediately after giving effect to such TransferTransfer or designation, provided further and
(3) on or prior to the date of such Transfer or designation, as the case may be, the Borrower shall have delivered to the Administrative Agent (A) an Availability Certificate demonstrating that compliance with the foregoing proviso shall Facility Available Amount (calculated on a pro forma basis after giving effect to such Transfer and to any repayment of Advances made at the time thereof) will be evidenced by greater than or equal to the Facility Exposure, and (B) a certificate of the Chief Financial Officer (or other Responsible Officer performing similar functions) of the Borrower delivered to demonstrating compliance with the Administrative Agent prior to foregoing clauses (1) and (2) and confirming that no Default or Event of Default shall exist on the date of such Transfer demonstrating such complianceor will result therefrom, together with supporting information in detail reasonably satisfactory to the Administrative Agent. If, at any time and
(4) the Administrative Agent and the Required Lenders shall have consented in writing (such consent not to be unreasonably withheld) to such Transfer or designation prior to the consummation thereof, it being agreed that the Administrative Agent shall give notice to the Borrower of whether the Administrative Agent and the Required Lenders have consented to such Transfer or designation within ten (10) Business Days after receipt of the designation Borrower’s request therefor together with the items specified in clause (3), or
(D) the Transfer of (1) obsolete or worn out FF&E in the ordinary course of business or (2) inventory in the ordinary course of business, which FF&E or inventory, as the case may be, is used or held in connection with a Borrowing Base Asset.
(I) a Transfer of all Borrowing Base Assets owned and leased by a Subsidiary Guarantor in accordance with Section 5.02(e)(ii)(C) or (II) the foregoing clause (B) designation by a Subsidiary Guarantor of all Unencumbered Borrowing Base Assets of any Property-Level Subsidiary owned or leased by it as non-Unencumbered Assets, such Subsidiary shall incur any Debt not prohibited by Section 5.02(b) Borrowing Base Assets pursuant to an agreement that could qualify as an Excluded Subsidiary Agreement hereunderSection 5.02(e)(ii)(C), (i) the Administrative Agent shall, upon the request of the Borrower and at the Borrower’s expense, promptly release such Subsidiary (and any other Subsidiary related thereto to the extent reasonably requested by the Borrower) Guarantor from the Guaranty, (ii) such Subsidiary or Subsidiaries shall constitute Excluded Subsidiaries hereunder and such agreement shall constitute an Excluded Subsidiary Agreement hereunder, and (iii) the Borrower shall, or cause such Excluded Subsidiaries to, promptly deliver to the Administrative Agent (x) a copy of such Excluded Subsidiary Agreement in respect of such Debt and (y) an amended Schedule 4.01(y) that sets forth such Excluded Subsidiary Agreement opposite the name of such Excluded Subsidiaries.
Appears in 1 contract
Sales, Etc. of Assets. (i) In the case of the Parent Guarantor, sell, lease, transfer or otherwise dispose of, or grant any option or other right to purchase, lease or otherwise acquire any assets and and
(ii) in the case of the Loan Parties (other than the Parent Guarantor), sell, lease (other than enter by entering into Tenancy Leases), transfer or otherwise dispose of, or grant any option or other right to purchase, lease (other than any option or other right to enter into Tenancy Leases) or otherwise acquire, or permit any of its Subsidiaries to sell, lease (other than pursuant to a Tenancy Lease)lease, transfer or otherwise dispose of, or grant any option or other right to purchase, lease (other than an option or other right to enter into a Tenancy Lease) or otherwise acquire (each action described in clause clauses (i) and (ii) of this subsection (e) ), including, without limitation, any Sale and Leaseback Transaction, being a “Transfer”), any Unencumbered Asset or Unencumbered Assets (or any direct or indirect Equity Interests in the owner thereof) ), in each case other than the following Transfers, which shall be permitted hereunder only so long as no Default or Event of Default shall exist or would result therefrom:
(A) the Transfer of any Unencumbered Asset or Assets, including unimproved land, that are not Unencumbered Assets from any Loan Party to another Loan Party (other than the Parent Guarantor) or from a Subsidiary of a Loan Party to another Subsidiary of such Loan Party or any other Loan Party, andParty (other than the Parent Guarantor),
(B) the Transfer of any Asset or Assets that are not Unencumbered Assets to any Person that is not a Loan Party, provided that the Loan Parties shall be in compliance with the covenants contained in Section 5.04 both immediately prior to and on a pro forma basis immediately after giving effect to such Transfer, on or prior to the date of such Transfer or designation, as the case may be,
(C) the Transfer of any Unencumbered Asset or Unencumbered Assets to any Person, or the designation of an Unencumbered Asset or Unencumbered Assets as a non-Unencumbered Asset or non-Unencumbered Assets, in each case with the intention that such Unencumbered Asset or Unencumbered Assets, upon consummation of such Transfer or upon such designation, shall no longer constitute an Unencumbered Asset or Unencumbered Assets for purposes of this AgreementAssets, provided that that:
(x1) immediately after giving effect to such Transfer or designation, as the case may be, the remaining Unencumbered Assets shall continue to satisfy all the requirements set forth in clauses (a) through (k) of the definition of Unencumbered Asset Conditions and Pool Conditions,
(y2) the Loan Parties shall be in compliance with the covenants contained in Section 5.04 both immediately before and on a pro forma basis immediately after giving effect to such TransferTransfer or designation, provided further and
(3) on or prior to the date of such Transfer or designation, as the case may be, the Borrower shall have delivered to the Administrative Agent (A) a certificate signed by a Responsible Officer of the Borrower, stating that before and after giving effect to such Transfer or designation, as the case may be, the Parent Guarantor shall be in compliance with the foregoing proviso shall be evidenced by covenants contained in Section 5.04(b), together with supporting information in form satisfactory to the Administrative Agent showing the computations used in determining compliance with such covenants, and (B) a certificate of the Chief Financial Officer (or other Responsible Officer performing similar functions) of the Borrower delivered to demonstrating compliance with the Administrative Agent prior to foregoing clauses (1) through (3) and confirming that no Default or Event of Default shall exist on the date of such Transfer demonstrating such complianceor will result therefrom, together with supporting information in detail reasonably satisfactory to the Administrative Agent. If, at any time after the designation in accordance with the foregoing clause or
(B) of all Unencumbered Assets of any Property-Level Subsidiary as non-Unencumbered Assets, such Subsidiary shall incur any Debt not prohibited by Section 5.02(b) pursuant to an agreement that could qualify as an Excluded Subsidiary Agreement hereunder, (iD) the Administrative Agent shallTransfer of (1) obsolete or worn out FF&E in the ordinary course of business or (2) inventory in the ordinary course of business, upon which FF&E or inventory, as the request of the Borrowercase may be, release such Subsidiary (and any other Subsidiary related thereto to the extent reasonably requested by the Borrower) from the Guaranty, (ii) such Subsidiary is used or Subsidiaries shall constitute Excluded Subsidiaries hereunder and such agreement shall constitute held in connection with an Excluded Subsidiary Agreement hereunder, and (iii) the Borrower shall, or cause such Excluded Subsidiaries to, promptly deliver to the Administrative Agent (x) a copy of such Excluded Subsidiary Agreement in respect of such Debt and (y) an amended Schedule 4.01(y) that sets forth such Excluded Subsidiary Agreement opposite the name of such Excluded SubsidiariesUnencumbered Asset.
Appears in 1 contract
Sales, Etc. of Assets. (i) In the case of the Parent Guarantor, sell, lease, transfer or otherwise dispose of, or grant any option or other right to purchase, lease or otherwise acquire any assets and (ii) in the case of the Loan Parties (other than the Parent Guarantor), sell, lease (other than enter by entering into Tenancy Leases), transfer or otherwise dispose of, or grant any option or other right to purchase, lease (other than any option or other right to enter into Tenancy Leases) or otherwise acquire, or permit any of its Subsidiaries to sell, lease (other than pursuant to a Tenancy Lease)lease, transfer or otherwise dispose of, or grant any option or other right to purchase, lease (other than an option or other right to enter into a Tenancy Lease) or otherwise acquire (each action described in clause clauses (i) and (ii) of this subsection (e) ), including, without limitation, any Sale and Leaseback Transaction, being a “Transfer”), any Unencumbered Asset or Unencumbered Assets (or any direct or indirect Equity Interests in the owner thereof) ), in each case other than the following Transfers, which shall be permitted hereunder only so long as no Default or Event of Default shall exist or would result therefrom:
(A) the Transfer of any Unencumbered Asset or Unencumbered Assets, including unimproved land, that are not Borrowing Base Assets from any Loan Party to another Loan Party (other than the Parent Guarantor) or from a Subsidiary of a Loan Party to another Subsidiary of such Loan Party or any other Loan Party, andParty (other than the Parent Guarantor),
(B) the Transfer of any Unencumbered Asset or Unencumbered Assets that are not Borrowing Base Assets to any Person, or the designation of an Unencumbered Asset or Unencumbered Assets as Person that is not a non-Unencumbered Asset or non-Unencumbered Assets, in each case with the intention that such Unencumbered Asset or Unencumbered Assets, upon consummation of such Transfer or upon such designation, shall no longer constitute an Unencumbered Asset or Unencumbered Assets for purposes of this AgreementLoan Party, provided that (x) the remaining Unencumbered Assets continue to satisfy all Unencumbered Asset Conditions and (y) the Loan Parties shall be in compliance with the covenants contained in Section 5.04 both immediately before prior to and on a pro forma basis immediately after giving effect to such Transfer, on or prior to the date of such Transfer or designation, as the case may be,
(C) the Transfer of any Borrowing Base Asset or Borrowing Base Assets to any Person, or the designation of a Borrowing Base Asset or Borrowing Base Assets as a non-Borrowing Base Asset or non-Borrowing Base Assets, in each case with the intention that such Borrowing Base Asset or Borrowing Base Assets, upon consummation of such Transfer or designation, shall no longer constitute a Borrowing Base Asset or Borrowing Base Assets, provided further that that:
(1) immediately after giving effect to such Transfer or designation, as the case may be, the remaining Borrowing Base Assets shall continue to satisfy the requirements set forth in clauses (a) through (l) of the definition of Borrowing Base Conditions,
(2) the Loan Parties shall be in compliance with the foregoing proviso covenants contained in Section 5.04 on a pro forma basis immediately after giving effect to such Transfer or designation, and
(3) on or prior to the date of such Transfer or designation, as the case may be, the Borrower shall have delivered to the Administrative Agent (A) a Borrowing Base Certificate demonstrating that the Borrowing Base Amount (calculated on a pro forma basis after giving effect to such Transfer and to any repayment of Advances made at the time thereof) will be evidenced by greater than or equal to the Facility Exposure, and (B) a certificate of the Chief Financial Officer (or other Responsible Officer performing similar functions) of the Borrower delivered to demonstrating compliance with the Administrative Agent prior to foregoing clauses (1) through (3) and confirming that no Default or Event of Default shall exist on the date of such Transfer demonstrating such complianceor will result therefrom, together with supporting information in detail reasonably satisfactory to the Administrative Agent. If, at any time after or
(D) the designation Transfer of (1) obsolete or worn out FF&E in the ordinary course of business or (2) inventory in the ordinary course of business, which FF&E or inventory, as the case may be, is used or held in connection with a Borrowing Base Asset.
(I) a Transfer of a portion or all Borrowing Base Assets owned or leased by a Subsidiary Guarantor in accordance with Section 5.02(e)(ii)(C) or (II) the foregoing clause (B) designation by a Subsidiary Guarantor of a portion or all Unencumbered Borrowing Base Assets of any Property-Level Subsidiary owned or leased by it as non-Unencumbered Assets, such Subsidiary shall incur any Debt not prohibited by Section 5.02(b) Borrowing Base Assets pursuant to an agreement that could qualify as an Excluded Subsidiary Agreement hereunderSection 5.02(e)(ii)(C), (i) the Administrative Agent shall, upon the request of the Borrower and at the Borrower’s expense, promptly release any mortgages, deeds of trust, security agreements, and UCC financing statements from such transferred Borrower Base Assets or assets designated as non-Borrowing Base Assets. Further, following (x) a Transfer of all Borrowing Base Assets owned or leased by a Subsidiary Guarantor in accordance with Section 5.02(e)(ii)(C) or (y) the designation by a Subsidiary Guarantor of all Borrowing Base Assets owned or leased by it as non-Borrowing Base Assets pursuant to Section 5.02(e)(ii)(C), the Administrative Agent shall, upon the request of the Borrower and at the Borrower’s expense, promptly release such Subsidiary (and any other Subsidiary related thereto to the extent reasonably requested by the Borrower) Guarantor from the Guaranty, (ii) such Subsidiary or Subsidiaries shall constitute Excluded Subsidiaries hereunder the Security Agreement and such agreement shall constitute an Excluded Subsidiary Agreement hereunder, and (iii) the Borrower shall, or cause such Excluded Subsidiaries to, promptly deliver to the Administrative Agent (x) a copy of such Excluded Subsidiary Agreement in respect of such Debt and (y) an amended Schedule 4.01(y) that sets forth such Excluded Subsidiary Agreement opposite the name of such Excluded SubsidiariesCash Management Agreement.
Appears in 1 contract
Sales, Etc. of Assets. (i) In the case of the Parent Guarantor, sellSell, lease, transfer or otherwise dispose of, or permit any of its Restricted Subsidiaries to sell (including sales and issuances of Capital Stock of any Restricted Subsidiary (other than sales and issuances that do not decrease the percentage ownership of the Borrower and its Restricted Subsidiaries in each class of Capital Stock of such Restricted Subsidiary)), lease, transfer or otherwise dispose of, any assets, or grant any option or other right to purchase, lease or otherwise acquire any assets, except (provided that the issuance and sale of stock by the Borrower shall not be subject to this Section 7.5):
(a) the Borrower and its Restricted Subsidiaries may sell or dispose of inventory or immaterial assets and (ii) in the case ordinary course of business;
(A) the Loan Parties (other than the Parent Guarantor), Borrower may sell, lease (other than enter into Tenancy Leases)lease, transfer or otherwise dispose of, or grant any option or other right to purchase, lease (other than any option or other right to enter into Tenancy Leases) or otherwise acquire, or permit of any of its property or assets to any of the Restricted Subsidiaries, and (B) any of the Restricted Subsidiaries to may sell, lease (other than pursuant to a Tenancy Lease)lease, transfer or otherwise dispose ofof any of its property or assets to the Borrower or any of the other Restricted Subsidiaries; provided that if the transferee in such transaction is a Foreign Subsidiary or any other Non-Guarantor Subsidiary, such transaction is permitted by Section 7.6;
(c) any Restricted Subsidiary that is no longer actively engaged in any business or grant activities and does not have property and assets with an aggregate book value in excess of $1,000,000 may be wound up, liquidated or dissolved so long as such winding up, liquidation or dissolution is determined in good faith by management of the Borrower to be in the best interests of the Borrower and its Restricted Subsidiaries;
(d) the Borrower and its Restricted Subsidiaries may dispose of accounts receivable in connection with the compromise or collection thereof in the ordinary course of business consistent with past practice and not as part of any option or other right to purchase, lease (other than an option or other right to enter into a Tenancy Lease) or otherwise acquire (each action described in clause (ii) of this subsection accounts receivables financing transaction
(e) being a “Transfer”)the Borrower and its Restricted Subsidiaries may lease, any Unencumbered Asset sublease, license or Unencumbered Assets (sublicense Real Property or any direct or indirect Equity Interests other assets to the extent required for their respective businesses and operations in the owner thereof) other than the following Transfers, which shall be permitted hereunder only ordinary course so long as no Default such lease, sublease, license or Event sublicense is not otherwise prohibited under the terms of Default shall exist the Loan Documents;
(f) the Borrower and its Restricted Subsidiaries may sell, lease, transfer or would result therefromotherwise dispose of property and assets not otherwise permitted to be sold, leased, transferred or disposed of pursuant to this Section 7.5; provided that:
(A) the Transfer gross proceeds received from any such sale, lease, transfer or other disposition shall be at least equal to the fair market value of the property and assets so sold, leased, transferred or otherwise disposed of, determined at the time of such sale, lease, transfer or other disposition;
(B) with respect to any disposition under this Section 7.5(f) that exceeds $25,000,000 (in the good faith determination of the Borrower) at least 75% of the value of the aggregate consideration received from any such sale, lease, transfer or other disposition shall be in cash or Cash Equivalents; provided that (i) up to one-third of such 75% may consist of notes or other obligations received by the Borrower or such Restricted Subsidiary that are due and payable or otherwise converted by the Borrower or such Restricted Subsidiary into cash within 365 days of receipt, which cash (to the extent received) shall constitute Net Cash Proceeds attributable to the original transaction; (ii) any unsubordinated Debt of the Borrower or any of its Restricted Subsidiaries (as shown on the Borrower’s or such Restricted Subsidiary’s most recent balance sheet) that is assumed by the transferee of any Unencumbered Asset such assets shall constitute cash for purposes of this Section 7.5(f), so long as the Borrower and all of its Restricted Subsidiaries are fully and unconditionally released therefrom; and (iii) any Designated Non-Cash Consideration received by the Borrower or Unencumbered Assets from any Loan Party of its Restricted Subsidiaries, having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to another Loan Party or from a Subsidiary this clause (B) after the Closing Date not to exceed $100,000,000 at the time of a Loan Party to another Subsidiary receipt of such Loan Party Designated Non-Cash Consideration shall be deemed to be cash for purposes of this Section 7.5(f) (it being understood that the fair market value of each item of Designated Non-Cash Consideration is measured at the time of receipt without giving effect to subsequent changes in value); provided that if such Designated Non-Cash Consideration is sold for, or otherwise converted into, cash, such cash shall constitute Net Cash Proceeds attributable to the original transaction;
(C) immediately before and immediately after giving pro forma effect to any such sale, lease, transfer or other Loan Partydisposition, no Event of Default shall have occurred and be continuing; and
(D) if and to the extent that the Net Cash Proceeds of any transaction effected pursuant to this Section 7.5(f) shall not have been reinvested (pursuant to a Reinvestment Notice), such Net Cash Proceeds shall be applied to prepay Loans to the extent required by, and in accordance with, Section 2.11;
(g) the Borrower and its Restricted Subsidiaries may exchange assets and properties with another Person or sell assets and properties and use the proceeds toward the purchase price of additional assets and properties; provided that:
(A) the assets or properties received by the Borrower or its Restricted Subsidiaries shall be used in a business permitted by Section 7.3 as conducted immediately prior to such transaction, or in an incidental or related business;
(B) the Transfer total consideration received by the Borrower or such Restricted Subsidiary for such assets or property shall have been determined by the Borrower or such Restricted Subsidiary to be not less than the fair market value of the assets or property exchanged; and
(C) immediately before and immediately after giving pro forma effect to any such exchange, no Default shall have occurred and be continuing;
(h) the Borrower and its Restricted Subsidiaries may enter into Sale and Leaseback Transactions with respect to any property; provided that the aggregate value of property sold or transferred under this clause (h) shall not exceed $100,000,000 from and after the Closing Date;
(i) the Borrower and its Restricted Subsidiaries may purchase, sell or otherwise transfer (including by capital contribution) Receivables Assets pursuant to Permitted Receivables Financings;
(j) the Borrower and its Restricted Subsidiaries may sell, lease, transfer or otherwise dispose of assets or property (i) in anticipation of any Unencumbered Asset Investment pursuant to Sections 7.6(e), (f), (h), (i), (k), (m) or Unencumbered Assets (n) (including as a result of discussion with antitrust regulators in connection with such Investment) or (ii) as reasonably expected to be required pursuant to any Person, consent decree or similar order or agreement issued or entered into prior to the designation of an Unencumbered Asset or Unencumbered Assets as a non-Unencumbered Asset or non-Unencumbered Assets, in each case with the intention that such Unencumbered Asset or Unencumbered Assets, upon consummation of such Transfer Investment and in connection therewith by the Antitrust Division of the U.S. Department of Justice, the Bureau of Competition of the U.S. Federal Trade Commission or upon any similar state or foreign regulatory agency or body;
(k) within 545 days of the acquisition by the Borrower or any Restricted Subsidiary of any Real Property after the Closing Date, the Borrower or such designation, shall no longer constitute an Unencumbered Asset Restricted Subsidiary may sell or Unencumbered Assets for purposes of this Agreement, provided that (x) otherwise transfer such Real Property in connection with a Sale and Leaseback Transaction so long as the remaining Unencumbered Assets continue to satisfy all Unencumbered Asset Conditions and (y) the Loan Parties Borrower shall be in compliance with the covenants contained in Section 5.04 both immediately before and on a pro forma basis immediately 7.2 after giving effect to such TransferSale and Leaseback Transaction; provided that the Net Cash Proceeds (excluding, provided further that compliance for the avoidance of doubt, any Net Cash Proceeds from a transaction permitted under Section 7.5(h)) are applied to the extent required by, and in accordance with, Section 2.11(b);
(l) the Borrower and its Restricted Subsidiaries may issue additional Capital Stock (i) to directors, management or employees and health care providers under contract with the foregoing proviso shall be evidenced by Borrower or any of its Restricted Subsidiaries in an amount not in excess of $25,000,000 in the aggregate in any twelve month period (with any unused amounts in any such twelve month period being carried over to the immediately succeeding twelve month period), and (ii) in connection with option plans of Restricted Subsidiaries pursuant to which options are granted at a certificate strike price of the Chief Financial Officer fair market value (or other Responsible Officer performing similar functions) as determined in good faith of the Borrower delivered or the applicable Restricted Subsidiary) together with any subsequent exercise of such options;
(m) the Borrower and its Restricted Subsidiaries may enter into any transfer or disposition of property or assets constituting an Investment pursuant to Section 7.6 (other than Section 7.6(d));
(n) the Borrower and its Restricted Subsidiaries may trade, sell or dispose of Cash Equivalents;
(o) the Borrower and its Restricted Subsidiaries may transfer or dispose of Investments or issue Capital Stock to the Administrative Agent prior extent required by, or made pursuant to, customary buy/sell arrangements between the parties to any joint venture or shareholders of any non-Wholly Owned Subsidiaries set forth in the shareholder agreements, joint venture agreements, organization documents or binding agreements relating to such joint venture or non-Wholly Owned Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may transfer or dispose of accounts receivable in the ordinary course of business in connection with the collection or compromise thereof;
(q) the unwinding of any Swap Contract pursuant to its terms;
(r) the Borrower and its Restricted Subsidiaries may surrender or waive contractual rights and leases and settle or waive contractual or litigation claims in the ordinary course of business;
(s) any sale of Capital Stock in, or Debt or other securities of, an Unrestricted Subsidiary (other than an Unrestricted Subsidiary if cash and/or Cash Equivalents make up substantially all of the assets thereof);
(t) the Borrower and its Restricted Subsidiaries may sell or transfer property to an Unrestricted Subsidiary; provided that such transaction is permitted under Section 7.6;
(u) any Disposition of the Sharecare Stock;
(v) to the date of such Transfer demonstrating such complianceextent constituting a Disposition, together with supporting information in detail reasonably satisfactory to the Administrative Agent. If, at any time after the designation in accordance with the foregoing clause (B) of all Unencumbered Assets of any Property-Level Subsidiary as non-Unencumbered Assets, such Subsidiary shall incur any Debt Restricted Payments not prohibited by Section 5.02(b7.7;
(w) pursuant to an agreement the Borrower and its Restricted Subsidiaries may sell, lease, transfer or otherwise dispose of any obsolete, damaged or worn out or surplus equipment or any other assets or property (including, for the avoidance of doubt, intellectual property) that could qualify as an Excluded Subsidiary Agreement hereunderis otherwise no longer useful in the conduct of their businesses;
(x) the Borrower and its Restricted Subsidiaries may sell, lease, transfer or otherwise dispose of (i) the Administrative Agent shall, upon the request of the Borrower, release such Subsidiary (and any other Subsidiary related thereto leasehold improvements to landlords pursuant to the extent reasonably requested by the Borrower) from the Guaranty, terms of leases in respect of any leasehold property and (ii) such Subsidiary Intellectual Property no longer used or Subsidiaries shall constitute Excluded Subsidiaries hereunder useful in the business of the Borrower and such agreement shall constitute an Excluded Subsidiary Agreement hereunder, and its Subsidiaries; and
(iiiy) the Borrower shalland its Restricted Subsidiaries may sell, lease, transfer or cause such Excluded Subsidiaries to, promptly deliver to otherwise dispose of assets in connection with a Recovery Event; provided that the Administrative Agent (x) a copy of such Excluded Subsidiary Agreement in respect of such Debt and (y) an amended Schedule 4.01(y) that sets forth such Excluded Subsidiary Agreement opposite the name of such Excluded SubsidiariesNet Cash Proceeds thereof shall be applied as required this Agreement.
Appears in 1 contract
Sales, Etc. of Assets. (i) In the case of the Parent Guarantor, sell, lease, transfer or otherwise dispose of, or grant any option or other right to purchase, lease or otherwise acquire any assets and (ii) in the case of the Loan Parties (other than the Parent Guarantor), sell, lease (other than enter by entering into Tenancy Leases), transfer or otherwise dispose of, or grant any option or other right to purchase, lease (other than any option or other right to enter into Tenancy Leases) or otherwise acquire, or permit any of its Subsidiaries to sell, lease (other than pursuant to a Tenancy Lease)lease, transfer or otherwise dispose of, or grant any option or other right to purchase, lease (other than an option or other right to enter into a Tenancy Lease) or otherwise acquire (each action described in clause clauses (i) and (ii) of this subsection (e) ), including, without limitation, any Sale and Leaseback Transaction, being a “Transfer”), any Unencumbered Asset or Unencumbered Assets (or any direct or indirect Equity Interests in the owner thereof) ), in each case other than the following Transfers, which shall be permitted hereunder only so long as no Default or Event of Default shall exist or would result therefrom:
(A) the Transfer of any Unencumbered Asset or Unencumbered Assets that are not Borrowing Base Assets from any Loan Party to another Loan Party (other than the Parent Guarantor) or from a Subsidiary of a Loan Party to another Subsidiary of such Loan Party or any other Loan Party, andParty (other than the Parent Guarantor),
(B) the Transfer of any Unencumbered Asset or Unencumbered Assets that are not Borrowing Base Assets to any Person that is not a Loan Party, provided that the purchase price paid to the applicable Loan Party for such Asset or Assets shall not be materially less than the fair market value of such Asset or Assets at the time of such sale,
(C) the Transfer of any Borrowing Base Asset or Borrowing Base Assets to any Person, or the designation of an Unencumbered a Borrowing Base Asset or Unencumbered Borrowing Base Assets as a non-Unencumbered Borrowing Base Asset or non-Unencumbered Borrowing Base Assets, in each case with the intention that such Unencumbered Borrowing Base Asset or Unencumbered Borrowing Base Assets, upon consummation of such Transfer or upon such designation, shall no longer constitute an Unencumbered a Borrowing Base Asset or Unencumbered Assets for purposes of this AgreementBorrowing Base Assets, provided that that:
(x1) immediately after giving effect to such Transfer or designation, as the case may be, the remaining Unencumbered Borrowing Base Assets shall continue to satisfy all Unencumbered Asset Conditions and the requirements set forth in clauses (ya) through (j) of the definition of Borrowing Base Conditions,
(2) the Loan Parties shall be in compliance with the covenants contained in Section 5.04 both immediately before prior to and on a pro forma basis immediately after giving effect to such TransferTransfer or designation, provided further and
(3) on or prior to the date of such Transfer or designation, as the case may be, the Borrower shall have delivered to the Administrative Agent (A) an 83 Availability Certificate demonstrating that compliance with the foregoing proviso shall Facility Available Amount (calculated on a pro forma basis after giving effect to such Transfer and to any repayment of Advances made at the time thereof) will be evidenced by greater than or equal to the Facility Exposure, and (B) a certificate of the Chief Financial Officer (or other Responsible Officer performing similar functions) of the Borrower delivered to demonstrating compliance with the Administrative Agent prior to foregoing clauses (1) and (2) and confirming that no Default or Event of Default shall exist on the date of such Transfer demonstrating such complianceor will result therefrom, together with supporting information in detail reasonably satisfactory to the Administrative Agent, or
(A) the Transfer of (1) obsolete or worn out FF&E in the ordinary course of business or (2) inventory in the ordinary course of business, which FF&E or inventory, as the case may be, is used or held in connection with a Borrowing Base Asset. If, at any time after the designation Following (I) a Transfer of all Borrowing Base Assets owned and leased by a Subsidiary Guarantor in accordance with Section 5.02(e)(ii)(C) or (II) the foregoing clause (B) designation by a Subsidiary Guarantor of all Unencumbered Borrowing Base Assets of any Property-Level Subsidiary owned or leased by it as non-Unencumbered Assets, such Subsidiary shall incur any Debt not prohibited by Section 5.02(b) Borrowing Base Assets pursuant to an agreement that could qualify as an Excluded Subsidiary Agreement hereunderSection 5.02(e)(ii)(C), (i) the Administrative Agent shall, upon the request of the Borrower and at the Borrower’s expense, promptly release such Subsidiary (and any other Subsidiary related thereto to the extent reasonably requested by the Borrower) Guarantor from the Guaranty, (ii) such Subsidiary or Subsidiaries shall constitute Excluded Subsidiaries hereunder and such agreement shall constitute an Excluded Subsidiary Agreement hereunder, and (iii) the Borrower shall, or cause such Excluded Subsidiaries to, promptly deliver to the Administrative Agent (x) a copy of such Excluded Subsidiary Agreement in respect of such Debt and (y) an amended Schedule 4.01(y) that sets forth such Excluded Subsidiary Agreement opposite the name of such Excluded Subsidiaries.
Appears in 1 contract
Sales, Etc. of Assets. (i) In the case of the Parent Guarantor, sell, lease, transfer or otherwise dispose of, or grant any option or other right to purchase, lease or otherwise acquire any assets and (ii) in the case of the Loan Parties (other than the Parent Guarantor), sell, lease (other than enter by entering into Tenancy Leases), transfer or otherwise dispose of, or grant any option or other right to purchase, lease (other than any option or other right to enter into Tenancy Leases) or otherwise acquire, or permit any of its Subsidiaries to sell, lease (other than pursuant to a Tenancy Lease)lease, transfer or otherwise dispose of, or grant any option or other right to purchase, lease (other than an option or other right to enter into a Tenancy Lease) or otherwise acquire (each action described in clause clauses (i) and (ii) of this subsection (e) ), including, without limitation, any Sale and Leaseback Transaction, being a “Transfer”), any Unencumbered Asset or Unencumbered Assets (or any direct or indirect Equity Interests in the owner thereof) ), in each case other than the following Transfers, which shall be permitted hereunder only so long as no Default or Event of Default shall exist or would result therefrom:
(A) the Transfer of any Unencumbered Asset or Unencumbered Assets that are not Borrowing Base Assets from any Loan Party to another Loan Party (other than the Parent Guarantor) or from a Subsidiary of a Loan Party to another Subsidiary of such Loan Party or any other Loan Party, andParty (other than the Parent Guarantor),
(B) the Transfer of any Unencumbered Asset or Unencumbered Assets that are not Borrowing Base Assets to any Person that is not a Loan Party, provided that the purchase price paid to the applicable Loan Party for such Asset or Assets shall not be materially less than the fair market value of such Asset or Assets at the time of such sale,
(C) the Transfer of any Borrowing Base Asset or Borrowing Base Assets to any Person, or the designation of an Unencumbered a Borrowing Base Asset or Unencumbered Borrowing Base Assets as a non-Unencumbered Borrowing Base Asset or non-Unencumbered Borrowing Base Assets, in each case with the intention that such Unencumbered Borrowing Base Asset or Unencumbered Borrowing Base Assets, upon consummation of such Transfer or upon such designation, shall no longer constitute an Unencumbered a Borrowing Base Asset or Unencumbered Assets for purposes of this AgreementBorrowing Base Assets, provided that (x) that:
1. immediately after giving effect to such Transfer or designation, as the case may be, the remaining Unencumbered Borrowing Base Assets shall continue to satisfy all Unencumbered Asset Conditions and the requirements set forth in clauses (ya) through (j) of the definition of Borrowing Base Conditions,
2. the Loan Parties shall be in compliance with the covenants contained in Section 5.04 both immediately before prior to and on a pro forma basis immediately after giving effect to such TransferTransfer or designation, provided further and
3. on or prior to the date of such Transfer or designation, as the case may be, the Borrower shall have delivered to the Administrative Agent (A) an Availability Certificate demonstrating that compliance with the foregoing proviso shall Facility Available Amount (calculated on a pro forma basis after giving effect to such Transfer or designation and to any repayment of Advances made at the time thereof) will be evidenced by greater than or equal to the Facility Exposure, and (B) a certificate of the Chief Financial Officer (or other Responsible Officer performing similar functions) of the Borrower delivered to demonstrating compliance with the Administrative Agent prior to foregoing clauses (1) and (2) and confirming that no Default or Event of Default shall exist on the date of such Transfer demonstrating such complianceor designation or will result therefrom, together with supporting information in detail reasonably satisfactory to the Administrative Agent, or
(D) the Transfer of (1) obsolete or worn out FF&E in the ordinary course of business or (2) inventory in the ordinary course of business, which FF&E or inventory, as the case may be, is used or held in connection with a Borrowing Base Asset. If, at any time after the designation Following (I) a Transfer of all Borrowing Base Assets owned and leased by a Subsidiary Guarantor in accordance with Section 5.02(e)(ii)(C) or (II) the foregoing clause (B) designation by a Subsidiary Guarantor of all Unencumbered Borrowing Base Assets of any Property-Level Subsidiary owned or leased by it as non-Unencumbered Assets, such Subsidiary shall incur any Debt not prohibited by Section 5.02(b) Borrowing Base Assets pursuant to an agreement that could qualify as an Excluded Subsidiary Agreement hereunderSection 5.02(e)(ii)(C), (i) the Administrative Agent shall, upon the request of the Borrower and at the Borrower’s expense, promptly release such Subsidiary (and any other Subsidiary related thereto to the extent reasonably requested by the Borrower) Guarantor from the Guaranty, (ii) such Subsidiary or Subsidiaries shall constitute Excluded Subsidiaries hereunder and such agreement shall constitute an Excluded Subsidiary Agreement hereunder, and (iii) the Borrower shall, or cause such Excluded Subsidiaries to, promptly deliver to the Administrative Agent (x) a copy of such Excluded Subsidiary Agreement in respect of such Debt and (y) an amended Schedule 4.01(y) that sets forth such Excluded Subsidiary Agreement opposite the name of such Excluded Subsidiaries.
Appears in 1 contract
Sales, Etc. of Assets. (i) In the case of the Parent Guarantor, sell, lease, transfer or otherwise dispose of, or grant any option or other right to purchase, lease or otherwise acquire any assets and (ii) in the case of the Loan Parties (other than the Parent Guarantor), sell, lease (other than enter by entering into Tenancy Leases), transfer or otherwise dispose of, or grant any option or other right to purchase, lease (other than any option or other right to enter into Tenancy Leases) or otherwise acquire, or permit any of its Subsidiaries to sell, lease (other than pursuant to a Tenancy Lease)lease, transfer or otherwise dispose of, or grant any option or other right to purchase, lease (other than an option or other right to enter into a Tenancy Lease) or otherwise acquire (each action described in clause clauses (i) and (ii) of this subsection (e) ), including, without limitation, any Sale and Leaseback Transaction, being a “Transfer”), any Unencumbered Asset or Unencumbered Assets (or any direct or indirect Equity Interests in the owner thereof) ), in each case other than the following Transfers, which shall be permitted hereunder only so long as no Default or Event of Default shall exist or would result therefrom:
(A) the Transfer of any Unencumbered Asset or Unencumbered Assets, including unimproved land, that are not Borrowing Base Assets from any Loan Party to another Loan Party (other than the Parent Guarantor) or from a Subsidiary of a Loan Party to another Subsidiary of such Loan Party or any other Loan Party, andParty (other than the Parent Guarantor),
(B) the Transfer of any Unencumbered Asset or Unencumbered Assets that are not Borrowing Base Assets to any Person, or the designation of an Unencumbered Asset or Unencumbered Assets as Person that is not a non-Unencumbered Asset or non-Unencumbered Assets, in each case with the intention that such Unencumbered Asset or Unencumbered Assets, upon consummation of such Transfer or upon such designation, shall no longer constitute an Unencumbered Asset or Unencumbered Assets for purposes of this AgreementLoan Party, provided that (x) the remaining Unencumbered Assets continue to satisfy all Unencumbered Asset Conditions and (y) the Loan Parties shall be in compliance with the covenants contained in Section 5.04 both immediately before prior to and on a pro forma basis immediately after giving effect to such Transfer, on or prior to the date of such Transfer or designation, as the case may be,
(C) the Transfer of any Borrowing Base Asset or Borrowing Base Assets to any Person, or the designation of a Borrowing Base Asset or Borrowing Base Assets as a non-Borrowing Base Asset or non-Borrowing Base Assets, in each case with the intention that such Borrowing Base Asset or Borrowing Base Assets, upon consummation of such Transfer or designation, shall no longer constitute a Borrowing Base Asset or Borrowing Base Assets, provided further that that:
(1) immediately after giving effect to such Transfer or designation, as the case may be, the remaining Borrowing Base Assets shall continue to satisfy the requirements set forth in clauses (a) through (l) of the definition of Borrowing Base Conditions,
(2) the Loan Parties shall be in compliance with the foregoing proviso covenants contained in Section 5.04 on a pro forma basis immediately after giving effect to such Transfer or designation, and
(3) on or prior to the date of such Transfer or designation, as the case may be, the Borrower shall have delivered to the Administrative Agent (A) a Borrowing Base Certificate demonstrating that the Borrowing Base Amount (calculated on a pro forma basis after giving effect to such Transfer and to any repayment of Advances made at the time thereof) will be evidenced by greater than or equal to the Facility Exposure, and (B) a certificate of the Chief Financial Officer (or other Responsible Officer performing similar functions) of the Borrower delivered to demonstrating compliance with the Administrative Agent prior to foregoing clauses (1) through (3) and confirming that no Default or Event of Default shall exist on the date of such Transfer demonstrating such complianceor will result therefrom, together with supporting information in detail reasonably satisfactory to the Administrative Agent. If, at any time after the designation in accordance with the foregoing clause or
(B) of all Unencumbered Assets of any Property-Level Subsidiary as non-Unencumbered Assets, such Subsidiary shall incur any Debt not prohibited by Section 5.02(b) pursuant to an agreement that could qualify as an Excluded Subsidiary Agreement hereunder, (iD) the Administrative Agent shallTransfer of (1) obsolete or worn out FF&E in the ordinary course of business or (2) inventory in the ordinary course of business, upon which FF&E or inventory, as the request of the Borrowercase may be, release such Subsidiary (and any other Subsidiary related thereto to the extent reasonably requested by the Borrower) from the Guaranty, (ii) such Subsidiary is used or Subsidiaries shall constitute Excluded Subsidiaries hereunder and such agreement shall constitute an Excluded Subsidiary Agreement hereunder, and (iii) the Borrower shall, or cause such Excluded Subsidiaries to, promptly deliver to the Administrative Agent (x) held in connection with a copy of such Excluded Subsidiary Agreement in respect of such Debt and (y) an amended Schedule 4.01(y) that sets forth such Excluded Subsidiary Agreement opposite the name of such Excluded SubsidiariesBorrowing Base Asset.
Appears in 1 contract
Sales, Etc. of Assets. (i) In the case of the Parent Guarantor, sell, lease, transfer or otherwise dispose of, or grant any option or other right to purchase, lease or otherwise acquire any assets and (ii) in the case of the Loan Parties (other than the Parent Guarantor), sell, lease (other than enter by entering into Tenancy Leases), transfer or otherwise dispose of, or grant any option or other right to purchase, lease (other than any option or other right to enter into Tenancy Leases) or otherwise acquire, or permit any of its Subsidiaries to sell, lease (other than pursuant to a Tenancy Lease)lease, transfer or otherwise dispose of, or grant any option or other right to purchase, lease (other than an option or other right to enter into a Tenancy Lease) or otherwise acquire (each action described in clause clauses (i) and (ii) of this subsection (e) ), including, without limitation, any Sale and Leaseback Transaction, being a “Transfer”), any Unencumbered Asset or Unencumbered Assets (or any direct or indirect Equity Interests in the owner thereof) ), in each case other than the following Transfers, which shall be permitted hereunder only so long as no Default or Event of Default shall exist or would result therefrom:
(A) the Transfer of any Unencumbered Asset or Unencumbered Assets that are not Borrowing Base Assets from any Loan Party to another Loan Party (other than the Parent Guarantor) or from a Subsidiary of a Loan Party to another Subsidiary of such Loan Party or any other Loan Party, andParty (other than the Parent Guarantor),
(B) the Transfer of any Unencumbered Asset or Unencumbered Assets that are not Borrowing Base Assets to any Person that is not a Loan Party, provided that the purchase price paid to the applicable Loan Party for such Asset or Assets shall not be materially less than the fair market value of such Asset or Assets at the time of such sale,
(C) the Transfer of any Borrowing Base Asset or Borrowing Base Assets to any Person, or the designation of an Unencumbered a Borrowing Base Asset or Unencumbered Borrowing Base Assets as a non-Unencumbered Borrowing Base Asset or non-Unencumbered Borrowing Base Assets, in each case with the intention that such Unencumbered Borrowing Base Asset or Unencumbered Borrowing Base Assets, upon consummation of such Transfer or upon such designation, shall no longer constitute an Unencumbered a Borrowing Base Asset or Unencumbered Assets for purposes of this AgreementBorrowing Base Assets, provided that that:
(x1) immediately after giving effect to such Transfer or designation, as the case may be, the remaining Unencumbered Borrowing Base Assets shall continue to satisfy all Unencumbered Asset Conditions and the requirements set forth in clauses (ya) through (j) of the definition of Borrowing Base Conditions,
(2) the Loan Parties shall be in compliance with the covenants contained in Section 5.04 both immediately before prior to and on a pro forma basis immediately after giving effect to such TransferTransfer or designation, provided further and
(3) on or prior to the date of such Transfer or designation, as the case may be, the Borrower shall have delivered to the Administrative Agent (A) an Availability Certificate demonstrating that compliance with the foregoing proviso shall Facility Available Amount (calculated on a pro forma basis after giving effect to such Transfer or designation and to any repayment of Advances made at the time thereof) will be evidenced by greater than or equal to the Facility Exposure, and (B) a certificate of the Chief Financial Officer (or other Responsible Officer performing similar functions) of the Borrower delivered to demonstrating compliance with the Administrative Agent prior to foregoing clauses (1) and (2) and confirming that no Default or Event of Default shall exist on the date of such Transfer demonstrating such complianceor designation or will result therefrom, together with supporting information in detail reasonably satisfactory to the Administrative Agent, or
(A) the Transfer of (1) obsolete or worn out FF&E in the ordinary course of business or (2) inventory in the ordinary course of business, which FF&E or inventory, as the case may be, is used or held in connection with a Borrowing Base Asset. If, at any time after the designation Following (I) a Transfer of all Borrowing Base Assets owned and leased by a Subsidiary Guarantor in accordance with Section 5.02(e)(ii)(C) or (II) the foregoing clause (B) designation by a Subsidiary Guarantor of all Unencumbered Borrowing Base Assets of any Property-Level Subsidiary owned or leased by it as non-Unencumbered Assets, such Subsidiary shall incur any Debt not prohibited by Section 5.02(b) Borrowing Base Assets pursuant to an agreement that could qualify as an Excluded Subsidiary Agreement hereunderSection 5.02(e)(ii)(C), (i) the Administrative Agent shall, upon the request of the Borrower and at the Borrower’s expense, promptly release such Subsidiary (and any other Subsidiary related thereto to the extent reasonably requested by the Borrower) Guarantor from the Guaranty, (ii) such Subsidiary or Subsidiaries shall constitute Excluded Subsidiaries hereunder and such agreement shall constitute an Excluded Subsidiary Agreement hereunder, and (iii) the Borrower shall, or cause such Excluded Subsidiaries to, promptly deliver to the Administrative Agent (x) a copy of such Excluded Subsidiary Agreement in respect of such Debt and (y) an amended Schedule 4.01(y) that sets forth such Excluded Subsidiary Agreement opposite the name of such Excluded Subsidiaries.
Appears in 1 contract
Sales, Etc. of Assets. (i) In the case of the Parent Guarantor, sell, lease, transfer or otherwise dispose of, or grant any option or other right to purchase, lease or otherwise acquire any assets and (ii) in the case of the Loan Parties (other than the Parent Guarantor), sell, lease (other than enter by entering into Tenancy Leases), transfer or otherwise dispose of, or grant any option or other right to purchase, lease (other than any option or other right to enter into Tenancy Leases) or otherwise acquire, or permit any of its Subsidiaries to sell, lease (other than pursuant to a Tenancy Lease)lease, transfer or otherwise dispose of, or grant any option or other right to purchase, lease (other than an option or other right to enter into a Tenancy Lease) or otherwise acquire (each action described in clause clauses (i) and (ii) of this subsection (e) ), including, without limitation, any Sale and Leaseback Transaction, being a “Transfer”), any Unencumbered Asset or Unencumbered Assets (or any direct or indirect Equity Interests in the owner thereof) ), in each case other than the following Transfers, which shall be permitted hereunder only so long as no Default or Event of Default shall exist or would result therefrom:
(A) the Transfer of any Unencumbered Asset or Unencumbered Assets that are not Borrowing Base Assets from any Loan Party to another Loan Party (other than the Parent Guarantor) or from a Subsidiary of a Loan Party to another Subsidiary of such Loan Party or any other Loan Party, andParty (other than the Parent Guarantor),
(B) the Transfer of any Unencumbered Asset or Unencumbered Assets that are not Borrowing Base Assets to any Person that is not a Loan Party, provided that the purchase price paid to the applicable Loan Party or Subsidiary for such Asset or Assets shall not be materially less than the fair market value of such Asset or Assets at the time of such sale,
(C) the Transfer of any Borrowing Base Asset or Borrowing Base Assets to any Person, or the designation of an Unencumbered a Borrowing Base Asset or Unencumbered Borrowing Base Assets as a non-Unencumbered Borrowing Base Asset or non-Unencumbered Borrowing Base Assets, in each case with the intention that such Unencumbered Borrowing Base Asset or Unencumbered Borrowing Base Assets, upon consummation of such Transfer or upon such designation, shall no longer constitute an Unencumbered a Borrowing Base Asset or Unencumbered Assets for purposes of this AgreementBorrowing Base Assets, provided that that:
(x1) immediately after giving effect to such Transfer or designation, as the case may be, the remaining Unencumbered Borrowing Base Assets shall continue to satisfy all Unencumbered Asset Conditions and the requirements set forth in clauses (ya) through (j) of the definition of Borrowing Base Conditions,
(2) the Loan Parties shall be in compliance with the covenants contained in Section 5.04 both immediately before prior to and on a pro forma basis immediately after giving effect to such TransferTransfer or designation, provided further and
(3) on or prior to the date of such Transfer or designation, as the case may be, the Borrower shall have delivered to the Administrative Agent (A) an Availability Certificate demonstrating that compliance with the foregoing proviso shall Facility Available Amount (calculated on a pro forma basis after giving effect to such Transfer or designation and to any repayment of Advances made at the time thereof) will be evidenced by greater than or equal to the Facility Exposure, and (B) a certificate of the Chief Financial Officer (or other Responsible Officer performing similar functions) of the Borrower delivered to demonstrating compliance with the Administrative Agent prior to foregoing clauses (1) and (2) and confirming that no Default or Event of Default shall exist on the date of such Transfer demonstrating such complianceor designation or will result therefrom, together with supporting information in detail reasonably satisfactory to the Administrative Agent, or
(D) the Transfer of (1) obsolete or worn out FF&E in the ordinary course of business or (2) inventory in the ordinary course of business, which FF&E or inventory, as the case may be, is used or held in connection with a Borrowing Base Asset. If, at any time after the designation Following (I) a Transfer of all Borrowing Base Assets owned and leased by a Subsidiary Guarantor in accordance with Section 5.02(e)(ii)(C) or (II) the foregoing clause (B) designation by a Subsidiary Guarantor of all Unencumbered Borrowing Base Assets of any Property-Level Subsidiary owned or leased by it as non-Unencumbered Assets, such Subsidiary shall incur any Debt not prohibited by Section 5.02(b) Borrowing Base Assets pursuant to an agreement that could qualify as an Excluded Subsidiary Agreement hereunderSection 5.02(e)(ii)(C), (i) the Administrative Agent shall, upon the request of the Borrower and at the Borrower’s expense, promptly release such Subsidiary (and any other Subsidiary related thereto to the extent reasonably requested by the Borrower) Guarantor from the Guaranty, (ii) such Subsidiary or Subsidiaries shall constitute Excluded Subsidiaries hereunder and such agreement shall constitute an Excluded Subsidiary Agreement hereunder, and (iii) the Borrower shall, or cause such Excluded Subsidiaries to, promptly deliver to the Administrative Agent (x) a copy of such Excluded Subsidiary Agreement in respect of such Debt and (y) an amended Schedule 4.01(y) that sets forth such Excluded Subsidiary Agreement opposite the name of such Excluded Subsidiaries.
Appears in 1 contract
Sales, Etc. of Assets. (i) In the case of the Parent GuarantorREIT, sell, lease, transfer or otherwise dispose of, or grant any option or other right to purchase, lease or otherwise acquire any assets and (ii) in the case of the Loan Parties (other than the Parent GuarantorREIT), sell, lease (other than enter into Tenancy Leases), transfer or otherwise dispose of, or grant any option or other right to purchase, lease (other than any option or other right to enter into Tenancy Leases) or otherwise acquire, or permit any of its Subsidiaries to sell, lease (other than pursuant to a Tenancy Lease), transfer or otherwise dispose of, or grant any option or other right to purchase, lease (other than an option or other right to enter into a Tenancy Lease) or otherwise acquire (each action described in clause (ii) of this subsection (ef) being a “Transfer”), any Unencumbered Asset or Unencumbered Assets (or any direct or indirect Equity Interests in the owner thereof) other than the following Transfers, which shall be permitted hereunder only so long as no Default or Event of Default shall exist or would result therefrom:
(A) the Transfer of any Unencumbered Asset or Unencumbered Assets from any Loan Party to another Loan Party or from a Subsidiary of a Loan Party to another Subsidiary of such Loan Party or any other Loan Party, and
(B) the Transfer of any Unencumbered Asset or Unencumbered Assets to any Person, or the designation of an Unencumbered Asset or Unencumbered Assets as a non-Unencumbered Asset or non-Unencumbered Assets, in each case with the intention that such Unencumbered Asset or Unencumbered Assets, upon consummation of such Transfer or upon such designation, shall no longer constitute an Unencumbered Asset or Unencumbered Assets for purposes of this Agreement, provided that (x) the remaining Unencumbered Assets continue to satisfy all Unencumbered Asset Conditions and (y) the Loan Parties shall be in compliance with the covenants contained in Section 5.04 both immediately before and on a pro forma basis immediately after giving effect to such Transfer, provided further that compliance with the foregoing proviso shall be evidenced by a certificate of the Chief Financial Officer (or other Responsible Officer performing similar functions) of the applicable Borrower delivered to the Administrative Agent prior to the date of such Transfer demonstrating such compliance, together with supporting information in detail reasonably satisfactory to the Administrative Agent. If, at any time after the designation in accordance with the foregoing clause (B) of all Unencumbered Assets of any Property-Level Subsidiary as non-Unencumbered Assets, such Subsidiary shall incur any Debt not prohibited by Section 5.02(b) pursuant to an agreement that could qualify as an Excluded Subsidiary Agreement hereunder, (i) the Administrative Agent shall, upon the request of the applicable Borrower, release such Subsidiary (and any other Subsidiary related thereto to the extent reasonably requested by the such Borrower) from the Guaranty, (ii) such Subsidiary or Subsidiaries shall constitute Excluded Subsidiaries hereunder and such agreement shall constitute an Excluded Subsidiary Agreement hereunder, and (iii) the Borrower shall, or cause such Excluded Subsidiaries to, promptly deliver to the Administrative Agent (x) a copy of such Excluded Subsidiary Agreement in respect of such Debt and (y) an amended Schedule 4.01(y) that sets forth such Excluded Subsidiary Agreement opposite the name of such Excluded Subsidiaries.
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Samples: Revolving Credit Agreement (Digital Realty Trust, L.P.)
Sales, Etc. of Assets. (i) In the case of the Parent Guarantor, sell, lease, transfer or otherwise dispose of, or grant any option or other right to purchase, lease or otherwise acquire any assets and (ii) in the case of the Loan Parties (other than the Parent Guarantor), sell, lease (other than enter by entering into Tenancy Leases), transfer or otherwise dispose of, or grant any option or other right to purchase, lease (other than any option or other right to enter into Tenancy Leases) or otherwise acquire, or permit any of its Subsidiaries to sell, lease (other than pursuant to a Tenancy Lease)lease, transfer or otherwise dispose of, or grant any option or other right to purchase, lease (other than an option or other right to enter into a Tenancy Lease) or otherwise acquire (each action described in clause clauses (i) and (ii) of this subsection (e) ), including, without limitation, any Sale and Leaseback Transaction, being a “Transfer”), any Unencumbered Asset or Unencumbered Assets (or any direct or indirect Equity Interests in the owner thereof) ), in each case other than the following Transfers, which shall be permitted hereunder only so long as no Default or Event of Default shall exist or would result therefrom:
(A) the Transfer of any Unencumbered Asset or Unencumbered Assets that are not Borrowing Base Assets from any Loan Party to another Loan Party (other than the Parent Guarantor) or from a Subsidiary of a Loan Party to another Subsidiary of such Loan Party or any other Loan Party, andParty (other than the Parent Guarantor),
(B) the Transfer of any Unencumbered Asset or Unencumbered Assets that are not Borrowing Base Assets to any Person that is not a Loan Party, provided that the purchase price paid to the applicable Loan Party for such Asset or Assets shall not be materially less than the fair market value of such Asset or Assets at the time of such sale,
(C) the Transfer of any Borrowing Base Asset or Borrowing Base Assets to any Person, or the designation of an Unencumbered a Borrowing Base Asset or Unencumbered Borrowing Base Assets as a non-Unencumbered Borrowing Base Asset or non-Unencumbered Borrowing Base Assets, in each case with the intention that such Unencumbered Borrowing Base Asset or Unencumbered Borrowing Base Assets, upon consummation of such Transfer or upon such designation, shall no longer constitute an Unencumbered a Borrowing Base Asset or Unencumbered Assets for purposes of this AgreementBorrowing Base Assets, provided that that: 69
(x1) immediately after giving effect to such Transfer or designation, as the case may be, the remaining Unencumbered Borrowing Base Assets shall continue to satisfy all Unencumbered Asset Conditions and the requirements set forth in clauses (ya) through (j) of the definition of Borrowing Base Conditions,
(2) the Loan Parties shall be in compliance with the covenants contained in Section 5.04 both immediately before prior to and on a pro forma basis immediately after giving effect to such TransferTransfer or designation, provided further and
(3) on or prior to the date of such Transfer or designation, as the case may be, the Borrower shall have delivered to the Administrative Agent (A) an Availability Certificate demonstrating that compliance with the foregoing proviso shall Facility Available Amount (calculated on a pro forma basis after giving effect to such Transfer or designation and to any repayment of Advances made at the time thereof) will be evidenced by greater than or equal to the Facility Exposure, and (B) a certificate of the Chief Financial Officer (or other Responsible Officer performing similar functions) of the Borrower delivered to demonstrating compliance with the Administrative Agent prior to foregoing clauses (1) and (2) and confirming that no Default or Event of Default shall exist on the date of such Transfer demonstrating such complianceor designation or will result therefrom, together with supporting information in detail reasonably satisfactory to the Administrative Agent, or
(D) the Transfer of (1) obsolete or worn out FF&E in the ordinary course of business or (2) inventory in the ordinary course of business, which FF&E or inventory, as the case may be, is used or held in connection with a Borrowing Base Asset. If, at any time after the designation Following (I) a Transfer of all Borrowing Base Assets owned and leased by a Subsidiary Guarantor in accordance with Section 5.02(e)(ii)(C) or (II) the foregoing clause (B) designation by a Subsidiary Guarantor of all Unencumbered Borrowing Base Assets of any Property-Level Subsidiary owned or leased by it as non-Unencumbered Assets, such Subsidiary shall incur any Debt not prohibited by Section 5.02(b) Borrowing Base Assets pursuant to an agreement that could qualify as an Excluded Subsidiary Agreement hereunderSection 5.02(e)(ii)(C), (i) the Administrative Agent shall, upon the request of the Borrower and at the Borrower’s expense, promptly release such Subsidiary (and any other Subsidiary related thereto to the extent reasonably requested by the Borrower) Guarantor from the Guaranty, (ii) such Subsidiary or Subsidiaries shall constitute Excluded Subsidiaries hereunder and such agreement shall constitute an Excluded Subsidiary Agreement hereunder, and (iii) the Borrower shall, or cause such Excluded Subsidiaries to, promptly deliver to the Administrative Agent (x) a copy of such Excluded Subsidiary Agreement in respect of such Debt and (y) an amended Schedule 4.01(y) that sets forth such Excluded Subsidiary Agreement opposite the name of such Excluded Subsidiaries.
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Sales, Etc. of Assets. (i) In the case of the Parent Guarantor, sell, lease, transfer or otherwise dispose of, or grant any option or other right to purchase, lease or otherwise acquire any assets and and
(ii) in the case of the Loan Parties (other than the Parent Guarantor), sell, lease (other than enter by entering into Tenancy Leases), transfer or otherwise dispose of, or grant any option or other right to purchase, lease (other than any option or other right to enter into Tenancy Leases) or otherwise acquire, or permit any of its Subsidiaries to sell, lease (other than pursuant to a Tenancy Lease)lease, transfer or otherwise dispose of, or grant any option or other right to purchase, lease (other than an option or other right to enter into a Tenancy Lease) or otherwise acquire (each action described in clause clauses (i) and (ii) of this subsection (e) ), including, without limitation, any Sale and Leaseback Transaction, being a “Transfer”), any Unencumbered Asset or Unencumbered Assets (or any direct or indirect Equity Interests in the owner thereof) ), in each case other than the following Transfers, which shall be permitted hereunder only so long as no Default or Event of Default shall exist or would result therefrom:
(A) the Transfer of any Unencumbered Asset or Assets, including unimproved land, that are not Unencumbered Assets from any Loan Party to another Loan Party (other than the Parent Guarantor) or from a Subsidiary of a Loan Party to another Subsidiary of such Loan Party or any other Loan Party, andParty (other than the Parent Guarantor),
(B) the Transfer of any Asset or Assets that are not Unencumbered Assets to any Person that is not a Loan Party, provided that the Loan Parties shall be in compliance with the covenants contained in Section 5.04 both immediately prior to and on a pro forma basis immediately after giving effect to such Transfer, on or prior to the date of such Transfer or designation, as the case may be,
(C) the Transfer of any Unencumbered Asset or Unencumbered Assets to any Person, or the designation of an Unencumbered Asset or Unencumbered Assets as a non-Unencumbered Asset or non-Unencumbered Assets, in each case with the intention that such Unencumbered Asset or Unencumbered Assets, upon consummation of such Transfer or upon such designation, shall no longer constitute an Unencumbered Asset or Unencumbered Assets for purposes of this AgreementAssets, provided that that:
(x1) immediately after giving effect to such Transfer or designation, as the case may be, the remaining Unencumbered Assets shall continue to satisfy all the requirements set forth in clauses (a) through (k) of the definition of Unencumbered Asset Conditions and Pool Conditions,
(y2) the Loan Parties shall be in compliance with the covenants contained in Section 5.04 both immediately before and on a pro forma basis immediately after giving effect to such TransferTransfer or designation, provided further and
(3) on or prior to the date of such Transfer or designation, as the case may be, the Borrower shall have delivered to the Administrative Agent (A) a certificate signed by a Responsible Officer of the Borrower, stating that before and after giving effect to such Transfer or designation, as the case may be, the Parent Guarantor shall be in compliance with the foregoing proviso shall be evidenced by covenants contained in Section 5.04(b), together with supporting information in form satisfactory to the Administrative Agent showing the computations used in determining compliance with such covenants, and (B) a certificate of the Chief Financial Officer (or other Responsible Officer performing similar functions) of the Borrower delivered to demonstrating compliance with the Administrative Agent prior to foregoing clauses (1) through (3) and confirming that no Default or Event of Default shall exist on the date of such Transfer demonstrating such complianceor will result therefrom, together with supporting information in detail reasonably satisfactory to the Administrative Agent, or
(D) the Transfer of (1) obsolete or worn out FF&E in the ordinary course of business or (2) inventory in the ordinary course of business, which FF&E or inventory, as the case may be, is used or held in connection with an Unencumbered Asset. If, at any time after the designation in accordance with the foregoing clause Following (Bx) a Transfer of all Unencumbered Assets owned or leased by a Subsidiary Guarantor in accordance with Section 5.02(e)(ii)(C) or (y) the designation by a Subsidiary Guarantor of any Property-Level Subsidiary all Unencumbered Assets owned or leased by it as non-Unencumbered Assets, such Subsidiary shall incur any Debt not prohibited by Section 5.02(b) Assets pursuant to an agreement that could qualify as an Excluded Subsidiary Agreement hereunderSection 5.02(e)(ii)(C), (i) the Administrative Agent shall, upon the request of the Borrower and at the Borrower’s expense, promptly release such Subsidiary (and any other Subsidiary related thereto to the extent reasonably requested by the Borrower) Guarantor from the Guaranty, (ii) such Subsidiary or Subsidiaries shall constitute Excluded Subsidiaries hereunder and such agreement shall constitute an Excluded Subsidiary Agreement hereunder, and (iii) the Borrower shall, or cause such Excluded Subsidiaries to, promptly deliver to the Administrative Agent (x) a copy of such Excluded Subsidiary Agreement in respect of such Debt and (y) an amended Schedule 4.01(y) that sets forth such Excluded Subsidiary Agreement opposite the name of such Excluded Subsidiaries.
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