Common use of Merger, Consolidation, Sales of Assets and Other Arrangements Clause in Contracts

Merger, Consolidation, Sales of Assets and Other Arrangements. Neither the Parent nor the Borrower shall, and neither the Parent nor the Borrower shall permit any other Loan Party or any other Subsidiary to, (a) enter into any transaction of merger or consolidation (other than (x) any transaction of merger or consolidation between or among Loan Parties; provided that if the Parent or the Borrower enters into such a transaction of merger, it is the survivor thereof, (y) any transaction of merger or consolidation of a Subsidiary that is not Loan Party into a Loan Party so long as the Loan Party is the survivor thereof and (z) any transaction of merger or consolidation between two or more Subsidiaries that are not Loan Parties); (b) liquidate, windup or dissolve itself (or suffer any liquidation or dissolution); (c) convey, sell, lease, sublease, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any substantial part of its business or assets, or the capital stock of or other Equity Interests in any of its Subsidiaries, whether now owned or hereafter acquired; or (d) acquire any assets of, or make an Investment in, any other Person; provided, however, that any of the actions described in the immediately preceding clauses (a) through (d) may be taken with respect to the Borrower, any other Loan Party or any other Subsidiary so long as (x) immediately prior to the taking of such action, and immediately thereafter and after giving effect thereto, no Default or Event of Default is or would be in existence and (y) if as a result of any such transaction, or series of such actions, the amount of Consolidated Tangible Assets would increase or decrease by 25.0%, then the Requisite Lenders shall have given their prior written consent to such action or series of actions (such consent not to be unreasonably withheld, conditioned or delayed); notwithstanding the foregoing, the Parent and the Borrower may not enter into a transaction of merger pursuant to which such Loan Party is not the survivor of such merger. Further, no Loan Party nor any Subsidiary, shall enter into any sale-leaseback transactions or other transaction by which such Loan Party or Subsidiary shall remain liable as lessee (or the economic equivalent thereof) of any real or personal property that it has sold or leased to another Person.

Merger, Consolidation, Sales of Assets and Other Arrangements. Neither the Parent nor the (a) The Borrower shallshall not, and neither the Parent nor the Borrower shall not permit any other Loan Party Obligor or any Subsidiary of Borrower or any other Subsidiary Obligor to, : (ai) enter into any transaction of merger or consolidation (other than (x) any transaction of merger or consolidation between or among Loan Parties; provided that if the Parent or the Borrower enters into such a transaction of merger, it is the survivor thereofconsolidation, (y) any transaction of merger reorganization or consolidation of a Subsidiary that is not Loan Party into a Loan Party so long as the Loan Party is the survivor thereof and (z) any transaction of merger or consolidation between two or more Subsidiaries that are not Loan Parties)other business combination; (bii) liquidate, windup wind up or dissolve itself (or suffer any liquidation or dissolution); or (ciii) convey, sell, lease, sublease, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any substantial part of its business or assets, or the capital stock of or other Equity Interests in any of its Subsidiaries, whether now owned or hereafter acquired; or (d) acquire any assets of, or make an Investment indiscontinue or eliminate any business line or segment (any such event described in clause (iii), any other Persona “Sale”); provided, however, that a Person may merge with the Borrower or any of the actions described in the immediately preceding clauses (a) through (d) may be taken with respect to the Borrowerits Subsidiaries, any other Loan Party or any other Subsidiary so long as (xi) such Person was organized under the laws of the United States of America or one of its states; (ii) if such merger involves the Borrower, the Borrower is the survivor of such merger; (iii) if such merger involves a Subsidiary of the Borrower that is a Guarantor, subject to Section 9.7(b)(ii), such Subsidiary is the survivor of such merger; (iv) immediately prior to the taking of such actionmerger, and immediately thereafter and after giving effect thereto, no Default or Event of Default is or would be in existence existence; (v) the Borrower shall have given the Agent and the Lenders at least ten (y10) if Business Days’ prior written notice of such merger (except that such prior notice shall not be required in the case of the merger of a Subsidiary of the Borrower with and into the Borrower); (vi) such merger is completed as a result of any such transaction, negotiations with the approval of the board of directors or series similar body of such actionsPerson and is not a so called “hostile takeover”; (vii) following such merger, the amount of Consolidated Tangible Assets would increase or decrease by 25.0%, then the Requisite Lenders shall have given their prior written consent to such action or series of actions (such consent not Borrower and its Subsidiaries will continue to be unreasonably withheldengaged solely in the business of the ownership, conditioned or delayed)development, management and investment in real estate; notwithstanding the foregoing, the Parent and the Borrower may not enter into a transaction of merger pursuant to which such Loan Party is not the survivor of (viii) such merger. Further, no Loan Party nor any Subsidiarytogether with all other mergers permitted by this Section 9.7 and consummated in the same fiscal year as such merger, shall enter into any salenot increase the Total Asset Value by more than twenty-leaseback transactions or other transaction by which such Loan Party or Subsidiary shall remain liable as lessee five percent (or the economic equivalent thereof25%) of any real or personal property that it has sold or leased to another Personthe Total Asset Value as of the end of the previous fiscal year.

Merger, Consolidation, Sales of Assets and Other Arrangements. Neither the Parent nor the The Borrower shallshall not, and neither the Parent nor the Borrower shall not permit any other Loan Party Obligor or any Subsidiary of Borrower or any other Subsidiary Obligor to, : (ai) enter into any transaction of merger or consolidation (other than (x) any transaction of merger or consolidation between or among Loan Parties; provided that if the Parent or the Borrower enters into such a transaction of merger, it is the survivor thereofconsolidation, (y) any transaction of merger reorganization or consolidation of a Subsidiary that is not Loan Party into a Loan Party so long as the Loan Party is the survivor thereof and (z) any transaction of merger or consolidation between two or more Subsidiaries that are not Loan Parties)other business combination; (bii) liquidate, windup wind up or dissolve itself (or suffer any liquidation or dissolution); or (ciii) convey, sell, lease, sublease, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any substantial part of its business or assets, or the capital stock of or other Equity Interests in any of its Subsidiaries, whether now owned or hereafter acquired; or (d) acquire any assets of, or make an Investment indiscontinue or eliminate any business line or segment (any such event described in clause (iii), any other Persona “Sale”); provided, however, that a Person may merge with the Borrower or any of the actions described in the immediately preceding clauses (a) through (d) may be taken with respect to the Borrowerits Subsidiaries, any other Loan Party or any other Subsidiary so long as (xi) such Person was organized under the laws of the United States of America or one of its states; (ii) if such merger involves the Borrower, the Borrower is the survivor of such merger; (iii) if such merger involves a Subsidiary of the Borrower that is a Guarantor, subject to Section 9.7(b)(ii), such Subsidiary is the survivor of such merger; (iv) immediately prior to the taking of such actionmerger, and immediately thereafter and after giving effect thereto, no Default or Event of Default is or would be in existence existence; (v) the Borrower shall have given the Agent and the Lenders at least ten (y10) if Business Days’ prior written notice of such merger (except that such prior notice shall not be required in the case of the merger of a Subsidiary of the Borrower with and into the Borrower); (vi) such merger is completed as a result of any such transaction, negotiations with the approval of the board of directors or series similar body of such actionsPerson and is not a so called “hostile takeover”; (vii) following such merger, the amount of Consolidated Tangible Assets would increase or decrease by 25.0%, then the Requisite Lenders shall have given their prior written consent to such action or series of actions (such consent not Borrower and its Subsidiaries will continue to be unreasonably withheldengaged solely in the business of the ownership, conditioned or delayed)development, management and investment in real estate; notwithstanding the foregoing, the Parent and the Borrower may not enter into a transaction of merger pursuant to which such Loan Party is not the survivor of (viii) such merger. Further, no Loan Party nor any Subsidiarytogether with all other mergers permitted by this Section 9.7 and consummated in the same fiscal year as such merger, shall enter into any salenot increase the Total Asset Value by more than twenty-leaseback transactions or other transaction by which such Loan Party or Subsidiary shall remain liable as lessee five percent (or the economic equivalent thereof25%) of any real or personal property that it has sold or leased to another Personthe Total Asset Value as of the end of the previous fiscal year.

Merger, Consolidation, Sales of Assets and Other Arrangements. Neither the Parent nor the (a) The Borrower shallshall not, and neither the Parent nor the Borrower shall not permit any other Loan Party Obligor or any Subsidiary of Borrower or any other Subsidiary Obligor to, : (ai) enter into any transaction of merger or consolidation (other than (x) any transaction of merger or consolidation between or among Loan Parties; provided that if the Parent or the Borrower enters into such a transaction of merger, it is the survivor thereofconsolidation, (y) any transaction of merger reorganization or consolidation of a Subsidiary that is not Loan Party into a Loan Party so long as the Loan Party is the survivor thereof and (z) any transaction of merger or consolidation between two or more Subsidiaries that are not Loan Parties)other business combination; (bii) liquidate, windup wind up or dissolve itself (or suffer any liquidation or dissolution); or (ciii) convey, sell, lease, sublease, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any substantial part of its business or assets, or the capital stock of or other Equity Interests in any of its Subsidiaries, whether now owned or hereafter acquired; or (d) acquire any assets of, or make an Investment indiscontinue or eliminate any business line or segment (any such event described in clause (iii), any other Persona “Sale”); provided, however, that a Person may merge with the Borrower or any of the actions described in the immediately preceding clauses (a) through (d) may be taken with respect to the Borrowerits Subsidiaries, any other Loan Party or any other Subsidiary so long as (xi) such Person was organized under the laws of the United States of America or one of its states; (ii) if such merger involves the Borrower, the Borrower is the survivor of such merger; (iii) if such merger involves a Subsidiary of the Borrower that is a Guarantor, subject to Section 9.7(b)(ii), such Subsidiary is the survivor of such merger; (iv) immediately prior to the taking of such actionmerger, and immediately thereafter and after giving effect thereto, no Default or Event of Default is or would be in existence existence; (v) the Borrower shall have given the Agent and the Lenders at least ten (y10) if Business Days' prior written notice of such merger (except that such prior notice shall not be required in the case of the merger of a Subsidiary of the Borrower with and into the Borrower); (vi) such merger is completed as a result of any such transaction, negotiations with the approval of the board of directors or series similar body of such actionsPerson and is not a so called “hostile takeover”; (vii) following such merger, the amount of Consolidated Tangible Assets would increase or decrease by 25.0%, then the Requisite Lenders shall have given their prior written consent to such action or series of actions (such consent not Borrower and its Subsidiaries will continue to be unreasonably withheldengaged solely in the business of the ownership, conditioned or delayed)development, management and investment in real estate; notwithstanding the foregoing, the Parent and the Borrower may not enter into a transaction of merger pursuant to which such Loan Party is not the survivor of (viii) such merger. Further, no Loan Party nor any Subsidiarytogether with all other mergers permitted by this Section 9.7 and consummated in the same fiscal year as such merger, shall enter into any salenot increase the Total Asset Value by more than twenty-leaseback transactions or other transaction by which such Loan Party or Subsidiary shall remain liable as lessee five percent (or the economic equivalent thereof25%) of any real or personal property that it has sold or leased to another Personthe Total Asset Value as of the end of the previous fiscal year.

Merger, Consolidation, Sales of Assets and Other Arrangements. Neither the Parent nor the (a) The Borrower shallshall not, and neither the Parent nor the Borrower shall not permit any other Loan Party Obligor or any Subsidiary of Borrower or any other Subsidiary Obligor to, : (ai) enter into any transaction of merger or consolidation (other than (x) any transaction of merger or consolidation between or among Loan Parties; provided that if the Parent or the Borrower enters into such a transaction of merger, it is the survivor thereofconsolidation, (y) any transaction of merger reorganization or consolidation of a Subsidiary that is not Loan Party into a Loan Party so long as the Loan Party is the survivor thereof and (z) any transaction of merger or consolidation between two or more Subsidiaries that are not Loan Parties)other business combination; (bii) liquidate, windup wind up or dissolve itself (or suffer any liquidation or dissolution); or (ciii) convey, sell, lease, sublease, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any substantial part of its business or assets, or the capital stock of or other Equity Interests in any of its Subsidiaries, whether now owned or hereafter acquired; or (d) acquire any assets of, or make an Investment in, discontinue or eliminate any other Personbusiness line or segment; provided, however, that a Person may merge with the Borrower or any of the actions described in the immediately preceding clauses (a) through (d) may be taken with respect to the Borrowerits Subsidiaries, any other Loan Party or any other Subsidiary so long as (xA) such Person was organized under the laws of the United States of America or one of its states; (B) if such merger involves the Borrower, the Borrower is the survivor of such merger; (C) if such merger involves a Subsidiary of the Borrower that is a Guarantor, such Subsidiary is the survivor of such merger; (D) immediately prior to the taking of such actionmerger, and immediately thereafter and after giving effect thereto, no Default or Event of Default is or would be in existence existence; (E) the Borrower shall have given the Agent and the Lenders at least ten (y10) if Business Days’ prior written notice of such merger (except that such prior notice shall not be required in the case of the merger of a Subsidiary of the Borrower with and into the Borrower); (F) such merger is completed as a result of any such transaction, negotiations with the approval of the board of directors or series similar body of such actionsPerson and is not a “hostile takeover”; (G) following such merger, the amount of Consolidated Tangible Assets would increase or decrease by 25.0%, then the Requisite Lenders shall have given their prior written consent to such action or series of actions (such consent not Borrower and its Subsidiaries will continue to be unreasonably withheldengaged primarily in the business of the ownership, conditioned or delayed)development, management and investment in real estate; notwithstanding the foregoing, the Parent and the Borrower may not enter into a transaction of merger pursuant to which such Loan Party is not the survivor of (H) such merger. Further, no Loan Party nor any Subsidiarytogether with all other mergers permitted by this Section 9.6 and consummated in the same fiscal year as such merger, shall enter into any salenot increase the Total Asset Value by more than twenty-leaseback transactions or other transaction by which such Loan Party or Subsidiary shall remain liable as lessee five percent (or the economic equivalent thereof25%) of any real or personal property that it has sold or leased to another Personthe Total Asset Value as of the end of the previous fiscal year.

Merger, Consolidation, Sales of Assets and Other Arrangements. Neither the Parent nor the (a) The Borrower shallshall not, and neither the Parent nor the Borrower shall not permit any other Loan Party Obligor or any Subsidiary of Borrower or any other Subsidiary Obligor to, : (ai) enter into any transaction of merger or consolidation (other than (x) any transaction of merger or consolidation between or among Loan Parties; provided that if the Parent or the Borrower enters into such a transaction of merger, it is the survivor thereofconsolidation, (y) any transaction of merger reorganization or consolidation of a Subsidiary that is not Loan Party into a Loan Party so long as the Loan Party is the survivor thereof and (z) any transaction of merger or consolidation between two or more Subsidiaries that are not Loan Parties)other business combination; (bii) liquidate, windup wind up or dissolve itself (or suffer any liquidation or dissolution); or (ciii) convey, sell, lease, sublease, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any substantial part of its business or assets, or the capital stock of or other Equity Interests in any of its Subsidiaries, whether now owned or hereafter acquired; or (d) acquire any assets of, or make an Investment indiscontinue or eliminate any business line or segment (any such event described in clause (iii), any other Persona “Sale”); provided, however, that a Person may merge with the Borrower or any of the actions described in the immediately preceding clauses (a) through (d) may be taken with respect to the Borrowerits Subsidiaries, any other Loan Party or any other Subsidiary so long as (xi) such Person was organized under the laws of the United States of America or one of its states; (ii) if such merger involves the Borrower, the Borrower is the survivor of such merger; (iii) if such merger involves a Subsidiary of the Borrower that is a Guarantor, subject to Section 9.7(b)(ii), such Subsidiary is the survivor of such merger; (iv) immediately prior to the taking of such actionmerger, and immediately thereafter and after giving effect thereto, no Default or Event of Default is or would be in existence existence; (v) the Borrower shall have given the Agent and the Lenders at least ten (y10) if Business Days’ prior written notice of such merger (except that such prior notice shall not be required in the case of the merger of a Subsidiary of the Borrower with and into the Borrower); (vi) such merger is completed as a result of any such transaction, negotiations with the approval of the board of directors or series similar body of such actionsPerson and is not a so called “hostile takeover”; and (vii) following such merger, the amount of Consolidated Tangible Assets would increase or decrease by 25.0%, then the Requisite Lenders shall have given their prior written consent to such action or series of actions (such consent not Borrower and its Subsidiaries will continue to be unreasonably withheldengaged solely in the business of the ownership, conditioned or delayed); notwithstanding the foregoingdevelopment, the Parent management and the Borrower may not enter into a transaction of merger pursuant to which such Loan Party is not the survivor of such merger. Further, no Loan Party nor any Subsidiary, shall enter into any sale-leaseback transactions or other transaction by which such Loan Party or Subsidiary shall remain liable as lessee (or the economic equivalent thereof) of any investment in real or personal property that it has sold or leased to another Personestate.

Merger, Consolidation, Sales of Assets and Other Arrangements. Neither the Parent nor the Borrower shallThe Borrowers shall not, and neither the Parent nor the Borrower shall not permit any Subsidiary or other Loan Party or any other Subsidiary to, : (ai) enter into any transaction of merger or consolidation (other than (x) any transaction of merger or consolidation between or among Loan Parties; provided that if the Parent or the Borrower enters into such a transaction of merger, it is the survivor thereofconsolidation, (y) any transaction of merger reorganization or consolidation of a Subsidiary that is not Loan Party into a Loan Party so long as the Loan Party is the survivor thereof and (z) any transaction of merger or consolidation between two or more Subsidiaries that are not Loan Parties)other business combination; (bii) liquidate, windup wind up or dissolve itself (or suffer any liquidation or dissolution); or (ciii) convey, sell, lease, sublease, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any substantial part of its business or assets, or the capital stock of or other Equity Interests in any of its Subsidiaries, whether now owned or hereafter acquired; or (d) acquire any assets of, or make an Investment indiscontinue or eliminate any business line or segment (any such event described in clause (iii), any other Persona "Sale"); provided, however, that any that: (a) Any of the actions described in the immediately preceding clauses (ai) through and (dii) may be taken with respect to the Borrowerany Subsidiary that is not also a Loan Party, any other Loan Party or any other Subsidiary so long as (x) immediately prior to the taking of such action, and immediately thereafter and after giving effect thereto, no Default or Event of Default is or would be in existence existence; (b) Any of the actions described in the immediately preceding clauses (i) and (yii) if as may be taken with respect to a result of any such transaction, Guarantor (other than GBP or series of such actions, the amount of Consolidated Tangible Assets would increase General Partner) or decrease Gables-TN in connection with a transaction permitted by 25.0%, then the Requisite Lenders shall have given their prior written consent to such action Section 7.12(b) or series of actions (such consent not to be unreasonably withheld, conditioned or delayedc); notwithstanding (c) A Guarantor may merge with or transfer assets to another Guarantor or either of the foregoing, the Parent and the Borrowers (with such Borrower may not enter into a transaction of merger pursuant to which such Loan Party is not as the survivor of such merger. Further) and any other Subsidiary may merge with or transfer assets to a Guarantor, another Subsidiary, or either of the Borrowers (with such Borrower or such Guarantor as the survivor of such merger), so long as immediately prior to the taking of such action, and immediately thereafter and after giving effect thereto, no Default or Event of Default is or would be in existence; (d) a Person (other than a Borrower, a Subsidiary or a Loan Party) may merge with and into a Borrower, any Subsidiary or any other Loan Party nor any Subsidiaryso long as (i) such Person was organized under the laws of the United States of America or one of its states, shall enter into any sale(ii) except as permitted in Section 9.7(b) with respect to Gables-leaseback transactions TN, such Borrower, or other transaction by which except as permitted in Section 9.7(a) or (b), such Loan Party or Subsidiary is the survivor of such merger (provided that in any merger involving Parent, Parent shall remain liable as lessee be the surviving entity), (iii) immediately prior to such merger, and immediately thereafter and after giving effect thereto, no Default or Event of Default is or would be in existence; and (iv) the economic equivalent thereofBorrowers shall have given the Agent and the Lenders at least ten (10) Business Days' prior written notice of such merger (except that such prior notice shall not be required in the case of the merger of a Subsidiary with and into a Borrower); and (e) the foregoing limitation on a Sale shall not prohibit any real Sale made in the ordinary course of business, provided that (i) such Sale does not result in any Sale of all or personal property that it has sold any substantial part of the assets or leased business of GBP, General Partner or Parent, and (ii) immediately prior to another Person.the taking of such action, and immediately thereafter, and after giving effect thereto, no Default or Event of Default would be in existence. Section 9.8

Merger, Consolidation, Sales of Assets and Other Arrangements. Neither the Parent nor the Borrower shall, and neither the Parent nor the Borrower shall permit any other Loan Party or any other Subsidiary to, (a) enter into any transaction of merger or consolidation (other than (x) any transaction of merger or consolidation between or among Loan Parties; provided that if the Parent or the Borrower enters into such a transaction of merger, it is the survivor thereof, (y) any transaction of merger or consolidation of a Subsidiary that is not Loan Party into a Loan Party so long as the Loan Party is the survivor thereof and (z) any transaction of merger or consolidation between two or more Subsidiaries that are not Loan Parties); (b) liquidate, windup or dissolve itself (or suffer any liquidation or dissolution); (c) convey, sell, lease, sublease, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any substantial part of its business or assets, or the capital stock of or other Equity Interests in any of its Subsidiaries, whether now owned or hereafter acquired; or (d) acquire any assets of, or make an Investment in, any other PersonPerson (including, in the case of each of the foregoing clauses, pursuant to a Delaware LLC Division); provided, however, that any of the actions described in the immediately preceding clauses (a) through (d) may be taken with respect to the Borrower, any other Loan Party or any other Subsidiary so long as (x) immediately prior to the taking of such action, and immediately thereafter and after giving effect thereto, no Default or Event of Default is or would be in existence and (y) if as a result of any such transaction, or series of such actions, the amount of Consolidated Tangible Assets would increase or decrease by 25.0%, then prior to entering into such transaction the Requisite Lenders Parent shall have given their prior written consent deliver a Compliance Certificate executed on behalf of the Parent by a Financial Officer of the Parent demonstrating that the Parent would be in compliance with the covenants contained in Section 10.1 on a pro-forma basis after giving effect to such action or series transaction as of actions (such consent not to be unreasonably withheld, conditioned or delayed)the end of the most recent fiscal quarter for which financial statements are available; notwithstanding the foregoing, the Parent and the Borrower may not enter into a transaction of merger pursuant to which such Loan Party is not the survivor of such merger. Further, no Loan Party nor any Subsidiary, shall enter into any sale-leaseback transactions or other transaction by which such Loan Party or Subsidiary shall remain liable as lessee (or the economic equivalent thereof) of any real or personal property that it has sold or leased to another PersonPerson other than in the ordinary course of business for such Loan Party or Subsidiary.

Merger, Consolidation, Sales of Assets and Other Arrangements. Neither the (a) The Parent nor the Borrower shall, and neither the Parent nor the Borrower shall not, and shall not permit any other Loan Party or any other Subsidiary to, (aw) enter into any transaction of merger merger, consolidation, reorganization or consolidation (other than recapitalization; (x) any transaction of merger or consolidation between or among Loan Parties; provided that if the Parent or the Borrower enters into such a transaction of merger, it is the survivor thereof, (y) any transaction of merger or consolidation of a Subsidiary that is not Loan Party into a Loan Party so long as the Loan Party is the survivor thereof and (z) any transaction of merger or consolidation between two or more Subsidiaries that are not Loan Parties); (b) liquidate, windup or dissolve itself (or suffer any liquidation or dissolution); (cy) convey, sell, lease, sublease, transfer or otherwise dispose of, in one transaction or a series of transactions, all or substantially all of its business or assets, or the Equity Interests in any substantial part Subsidiary, whether now owned or hereafter acquired; or (z) acquire all or substantially all of the assets of, or Equity Interests in, any other Person; provided, however, that: (i) any Subsidiary (A) may merge with a Loan Party so long as such Loan Party is the survivor (and in any merger involving the Borrower, the Borrower is the survivor) and (B) that is not a Loan Party may merge with any other Subsidiary that is not a Loan Party; (ii) any Subsidiary (A) may sell, transfer or otherwise dispose of its assets to a Loan Party and (B) that is not a Loan Party may sell, transfer or otherwise dispose of its assets to any other Subsidiary that is not a Loan Party, in each case, including any disposition that is by its nature a liquidation; (iii) (A) a Loan Party (other than the Parent, the Borrower or any Qualifying Unencumbered Property Owner) and any Subsidiary that is not (and is not required to be) a Loan Party may convey, sell, transfer or otherwise dispose of, in one transaction or a series of transactions, all or substantially all of its business or assets, or the capital stock of or other Equity Interests in any of its SubsidiariesSubsidiaries (other than the Borrower or a Qualifying Unencumbered Property Owner), and (B) any Loan Party and any other Subsidiary may, directly or indirectly, acquire (whether now owned by purchase, acquisition of Equity Interests of a Person, or hereafter acquired; as a result of a merger or (dconsolidation) acquire any all or substantially all of the assets of, or make an Investment acquire Equity Interests in, any other Person; provided, howeverso long as, that any of the actions described in the immediately preceding clauses case of each of clause (aA) through and (d) may be taken with respect to the BorrowerB), any other Loan Party or any other Subsidiary so long as (x1) immediately prior to the taking of such actionthereto, and immediately thereafter and after giving effect thereto, no Default or Event of Default is or would be in existence existence, including, without limitation, a Default or Event of Default resulting from a breach of any of the covenants contained in Section 9.1.; (2) to the extent such sale, transfer, disposition or acquisition of all or substantially all of the assets or Equity Interest of any Subsidiary (other than the Borrower, a Loan Party or a Qualifying Unencumbered Property Owner) and the consideration of such transaction equals or exceeds 5% of Total Asset Value immediately prior to giving effect to such sale, transfer, disposition or acquisition: (x) the Borrower shall have given the Administrative Agent and the Lenders at least 15-days prior written notice of such conveyance, sale, transfer, disposition, acquisition, purchase, merger or consolidation, specifying the nature of the transaction in reasonable detail; and (y) if as a result at the time the Borrower gives notice pursuant to clause (2)(x) of any such transaction, or series of such actionsthis subsection, the amount of Consolidated Tangible Assets would increase or decrease by 25.0%, then the Requisite Lenders Borrower shall have given their prior written consent delivered to the Administrative Agent for distribution to each of the Lenders a Compliance Certificate, calculated on a pro forma basis, evidencing the continued compliance by the Loan Parties with the terms and conditions of this Agreement and the other Loan Documents, including without limitation, the covenants contained in Section 9.1., after giving pro forma effect to such action conveyance, sale, transfer, disposition, acquisition, purchase, merger or series consolidation; and (3) in the case of actions (such consent not to be unreasonably withheld, conditioned a consolidation or delayed); notwithstanding merger involving the foregoingParent, the Parent Borrower or a Qualifying Unencumbered Property Owner, the Parent, the Borrower or such Qualifying Unencumbered Property Owner, as the case may be, shall be the survivor thereof; and (iv) the Parent, the Borrower, the other Loan Parties and the Borrower other Subsidiaries may not enter into a transaction lease and sublease their respective assets, as lessor or sublessor (as the case may be), in the ordinary course of merger pursuant to which such Loan Party is not the survivor of such merger. Further, no Loan Party nor any Subsidiary, shall enter into any sale-leaseback transactions or other transaction by which such Loan Party or Subsidiary shall remain liable as lessee (or the economic equivalent thereof) of any real or personal property that it has sold or leased to another Persontheir business.

Merger, Consolidation, Sales of Assets and Other Arrangements. Neither the Parent nor the Borrower shall, and neither the Parent nor the Borrower shall permit any other Loan Party or any other Subsidiary to, (a) enter into any transaction of merger or consolidation (other than (x) any transaction of merger or consolidation between or among Loan Parties; provided that if the Parent or the Borrower enters into such a transaction of merger, it is the survivor thereof, (y) any transaction of merger or consolidation of a Subsidiary that is not Loan Party into a Loan Party so long as the Loan Party is the survivor thereof and (z) any transaction of merger or consolidation between two or more Subsidiaries that are not Loan Parties); (b) liquidate, windup or dissolve itself (or suffer any liquidation or dissolution); (c) convey, sell, lease, sublease, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any substantial part of its business or assets, or the capital stock of or other Equity Interests in any of its Subsidiaries, whether now owned or hereafter acquired; or (d) acquire any assets of, or make an Investment in, any other PersonPerson (including, in the case of each of the foregoing clauses, pursuant to a Delaware LLC Division); provided, however, that any of the actions described in the immediately preceding clauses (a) through (d) may be taken with respect to the Borrower, any other Loan Party or any other Subsidiary so long as (x) immediately prior to the taking of such action, and immediately thereafter and after giving effect thereto, no Default or Event of Default is or would be in existence and (y) if as a result of any such transaction, or series of such actions, the amount of Consolidated Tangible Assets would increase or decrease by 25.0%, then prior to entering into such transaction the Requisite Lenders Parent shall have given their prior written consent deliver a Compliance Certificate executed on behalf of the Parent by a Financial Officer of the Parent demonstrating that the Parent would be in compliance with the covenants contained in Section 10.1 on a pro-forma basis after giving effect to such action or series transaction as of actions (such consent not to be unreasonably withheld, conditioned or delayed)the end of the most recent fiscal quarter for which financial statements are available; notwithstanding the foregoing, the Parent and the Borrower may not enter into a transaction of merger pursuant to which such Loan Party is not the survivor of such merger. Further, no Loan Party nor any Subsidiary, shall enter into any sale-sale leaseback transactions or other transaction by which such Loan Party or Subsidiary shall remain liable as lessee (or the economic equivalent thereof) of any real or personal property that it has sold or leased to another PersonPerson other than in the ordinary course of business for such Loan Party or Subsidiary.

Merger, Consolidation, Sales of Assets and Other Arrangements. Neither the Parent nor the The Borrower shallshall not, and neither the Parent nor the Borrower shall not permit any other Loan Party or any other Subsidiary to, (a) enter into any transaction of merger or consolidation (other than (x) any transaction of merger or consolidation between or among Loan Parties; provided that if the Parent or the Borrower enters into such a transaction of merger, it is the survivor thereof, (y) any transaction of merger or consolidation of a Subsidiary that is not Loan Party into a Loan Party so long as the Loan Party is the survivor thereof and (z) any transaction of merger or consolidation between two or more Subsidiaries that are not Loan Parties)consolidation; (b) liquidate, windup or dissolve itself (or suffer any liquidation or dissolution); (c) convey, sell, lease, sublease, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any substantial part of its business or assets, or the capital stock of or other Equity Interests in any of its Subsidiaries, whether now owned or hereafter acquired, having a fair market value in excess of the Substantial Amount; or (d) acquire any engage in a transaction or a series of related transactions in which it acquires assets of, having a fair market value in excess of the Substantial Amount or make an Investment in, in any other PersonPerson in excess of the Substantial Amount; provided, however, that: (i) the Borrower or any Subsidiary may merge with or into any other Subsidiary or any other Person so long as no Default or Event of Default is or would be in existence immediately thereafter; provided, however, that any of the actions described in the immediately preceding clauses case of any merger involving (ax) through (d) may be taken with respect to the Borrower, the Borrower shall be the surviving entity or (y) any other Loan Party (other than the Borrower), the surviving entity shall be a Loan Party or shall become a Loan Party in accordance with the applicable terms of this Agreement; (ii) the Borrower or any Subsidiary may sell, lease or otherwise transfer or dispose of its assets to the Borrower or any other Subsidiary so long as no Default or Event of Default is or would be in existence immediately thereafter; (xiii) any Loan Party and any other Subsidiary may, directly or indirectly, sell, lease or otherwise transfer, whether by one or a series of transactions, assets having a fair market value in excess of the Substantial Amount (including capital stock or other securities of Subsidiaries) to - 90 - LEGAL02/35717724v8 Execution Version any other Person, so long as (1) the Borrower shall have given the Administrative Agent and the Lenders at least 15 days prior written notice (or such shorter period as may be acceptable to the Administrative Agent) of such sale, lease or other transfer; (2) immediately prior to the taking of such actionthereto, and immediately thereafter and after giving effect thereto, no Default or Event of Default is or would be in existence; provided, however, that if, prior to the occurrence of a Default (or, during the existence and (y) if of a Default, so long as a result the relevant agreement expressly states that sale of any such transactionthe Property subject to the agreement is conditioned on the approval of the Lenders), or series of such actions, the amount of Consolidated Tangible Assets would increase or decrease by 25.0%, then the Requisite Lenders shall have given their prior written consent to such action or series of actions (such consent not to be unreasonably withheld, conditioned or delayed); notwithstanding the foregoing, the Parent and the Borrower may not enter into a transaction of merger pursuant to which such Loan Party is not the survivor of or Subsidiary has entered into an agreement to sell a Property which agreement requires that such merger. FurtherProperty be sold at a time during which a Default exists, no Loan Party nor any Subsidiary, shall enter into any sale-leaseback transactions or other transaction by which such Loan Party or Subsidiary shall remain liable be permitted to sell such Property if a Default (but not an Event of Default) exists to the extent necessary for such Loan Party or Subsidiary to comply with the terms of such agreement, subject to such Loan Party or Subsidiary having received the approval of the Lenders required pursuant to the terms of any agreement entered into during the existence of a Default; and (3) at the time the Borrower gives notice pursuant to clause (1) of this subsection, the Borrower shall have delivered to the Administrative Agent and the Lenders a Compliance Certificate, calculated on a pro forma basis, evidencing the continued compliance by the Loan Parties with the financial covenants contained in Section 9.1., after giving effect to such consolidation, merger, sale, lease or other transfer; (iv) any Loan Party and any other Subsidiary may, directly or indirectly, acquire (whether by purchase, acquisition of Equity Interests of a Person, or as lessee a result of a merger or consolidation) assets, in a single transaction or series of related transactions, having a fair market value in excess of the Substantial Amount, or make an Investment in any other Person in an amount in excess of the Substantial Amount, so long as (1) the Borrower shall have given the Administrative Agent and the Lenders at least 15 days prior written notice (or such shorter period as may be acceptable to the economic equivalent thereofAdministrative Agent) of such purchase, acquisition, merger, consolidation or Investment (collectively, "acquisition"); (2) immediately prior thereto, and immediately thereafter and after giving effect thereto, no Default or Event of Default is or would be in existence; provided, however, that if, prior to the occurrence of a Default (or, during the existence of a Default, so long as the relevant agreement expressly states that acquisition of the Property subject to the agreement is conditioned on the approval of the Lenders), such Loan Party or Subsidiary has entered into an agreement to acquire a Property which agreement requires that such Property be acquired at a time during which a Default (but not an Event of Default) exists, such Loan Party or Subsidiary shall be permitted to acquire such Property to the extent necessary for such Loan Party or Subsidiary to comply with the terms of such agreement, subject to such Loan Party or Subsidiary having received the approval of the Lenders required pursuant to the terms of any real agreement entered into during the existence of a Default; (3) in the case of a consolidation or personal property merger involving (x) the Borrower, the Borrower shall be the survivor thereof or (y) any Loan Party (other than the Borrower), the survivor thereof shall be a Loan Party or shall become a Loan Party in accordance with the applicable terms of this Agreement; and (4) at the time the Borrower gives notice pursuant to clause (1) of this subsection, the Borrower shall have delivered to the Administrative Agent and the Lenders a Compliance Certificate, calculated on a pro forma basis, evidencing the continued compliance by the Loan Parties with the financial covenants contained in Section 9.1., after giving effect to such acquisition; (v) the Loan Parties and the other Subsidiaries may lease and sublease their respective assets, as lessor or sublessor (as the case may be), in the ordinary course of their business; (vi) any Subsidiary that it has sold is not a Material Subsidiary may liquidate and dissolve itself (or leased suffer its liquidation or dissolution) so long as immediately prior to another Person.the taking of such action,

Merger, Consolidation, Sales of Assets and Other Arrangements. Neither the (a) The Parent nor the Borrower shall, and neither the Parent nor the Borrower shall not, and shall not permit any other Loan Party or any other Subsidiary to, (aw) enter into any transaction of merger merger, consolidation, reorganization or consolidation (other than recapitalization; (x) any transaction of merger or consolidation between or among Loan Parties; provided that if the Parent or the Borrower enters into such a transaction of merger, it is the survivor thereof, (y) any transaction of merger or consolidation of a Subsidiary that is not Loan Party into a Loan Party so long as the Loan Party is the survivor thereof and (z) any transaction of merger or consolidation between two or more Subsidiaries that are not Loan Parties); (b) liquidate, windup or dissolve itself (or suffer any liquidation or dissolution); (cy) convey, sell, lease, sublease, transfer or otherwise dispose of, in one transaction or a series of transactions, all or substantially all of its business or assets, or the Equity Interests in any substantial part Subsidiary, whether now owned or hereafter acquired; or (z) acquire all or substantially all of the assets of, or Equity Interests in, any other Person; provided, however, that: (i) any Subsidiary (A) may merge with a Loan Party so long as such Loan Party is the survivor (and in any merger involving the Borrower, the Borrower is the survivor) and (B) that is not a Loan Party may merge with any other Subsidiary that is not a Loan Party; (ii) any Subsidiary (A) may sell, transfer or otherwise dispose of its assets to a Loan Party and (B) that is not a Loan Party may sell, transfer or otherwise dispose of its assets to any other Subsidiary that is not a Loan Party, in each case, including any disposition that is by its nature a liquidation; (iii) (A) a Loan Party (other than the Parent, the Borrower or any Qualifying Unencumbered Property Owner) and any Subsidiary that is not (and is not required to be) a Loan Party may convey, sell, transfer or otherwise dispose of, in one transaction or a series of transactions, all or substantially all of its business or assets, or the capital stock of or other Equity Interests in any of its SubsidiariesSubsidiaries (other than the Borrower or a Qualifying Unencumbered Property Owner), and (B) any Loan Party and any other Subsidiary may, directly or indirectly, acquire (whether now owned by purchase, acquisition of Equity Interests of a Person, or hereafter acquired; as a result of a merger or (dconsolidation) acquire any all or substantially all of the assets of, or make an Investment acquire Equity Interests in, any other Person; provided, howeverso long as, that any of the actions described in the immediately preceding clauses case of each of clause (aA) through and (d) may be taken with respect to the BorrowerB), any other Loan Party or any other Subsidiary so long as (x1) immediately prior to the taking of such actionthereto, and immediately thereafter and after giving effect thereto, no Default or Event of Default is or would be in existence existence, including, without limitation, a Default or Event of Default resulting from a breach of any of the covenants contained in Section 9.1.; (2) to the extent such sale, transfer, disposition or acquisition of all or substantially all of the assets or Equity Interest of any Subsidiary (other than the Borrower, a Loan Party or a Qualifying Unencumbered Property Owner) and the consideration of such transaction equals or exceeds 5% of Total Asset Value immediately prior to giving effect to such sale, transfer, disposition or acquisition: (x) the Borrower shall have given the Administrative Agent and the Lenders at least 15-days prior written notice of such conveyance, sale, transfer, disposition, acquisition, purchase, merger or consolidation, specifying the nature of the transaction in reasonable detail; and (y) if as a result of any such transaction, or series of such actions, at the amount of Consolidated Tangible Assets would increase or decrease by 25.0%, then time the Requisite Lenders shall have given their prior written consent to such action or series of actions (such consent not to be unreasonably withheld, conditioned or delayed); notwithstanding the foregoing, the Parent and the Borrower may not enter into a transaction of merger pursuant to which such Loan Party is not the survivor of such merger. Further, no Loan Party nor any Subsidiary, shall enter into any sale-leaseback transactions or other transaction by which such Loan Party or Subsidiary shall remain liable as lessee (or the economic equivalent thereof) of any real or personal property that it has sold or leased to another Person.- 93 - LEGAL02\42427047.v4

Merger, Consolidation, Sales of Assets and Other Arrangements. Neither the Parent nor the (a) The Borrower shallshall not, and neither the Parent nor the Borrower shall not permit any other Loan Party Obligor or any Subsidiary of Borrower or any other Subsidiary Obligor to, : (ai) enter into any transaction of merger or consolidation (other than (x) any transaction of merger or consolidation between or among Loan Parties; provided that if the Parent or the Borrower enters into such a transaction of merger, it is the survivor thereofconsolidation, (y) any transaction of merger reorganization or consolidation of a Subsidiary that is not Loan Party into a Loan Party so long as the Loan Party is the survivor thereof and (z) any transaction of merger or consolidation between two or more Subsidiaries that are not Loan Parties)other business combination; (bii) liquidate, windup wind up or dissolve itself (or suffer any liquidation or dissolution); or (ciii) convey, sell, lease, sublease, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any substantial part of its business or assets, or the capital stock of or other Equity Interests in any of its Subsidiaries, whether now owned or hereafter acquired; or (d) acquire any assets of, or make an Investment indiscontinue or eliminate any business line or segment (any such event described in clause (iii), any other Persona “Sale”); provided, however, that a Person may merge with the Borrower or any of the actions described in the immediately preceding clauses (a) through (d) may be taken with respect to the Borrowerits Subsidiaries, any other Loan Party or any other Subsidiary so long as (xi) such Person was organized under the laws of the United States of America or one of its states; (ii) if such merger involves the Borrower, the Borrower is the survivor of such merger; (iii) if such merger involves a Subsidiary of the Borrower that is a Guarantor, subject to Section 9.7(b)(ii), such Subsidiary is the survivor of such merger; (iv) immediately A/75663178.5 prior to the taking of such actionmerger, and immediately thereafter and after giving effect thereto, no Default or Event of Default is or would be in existence existence; (v) the Borrower shall have given the Agent and the Lenders at least ten (y10) if Business Days’ prior written notice of such merger (except that such prior notice shall not be required in the case of the merger of a Subsidiary of the Borrower with and into the Borrower); (vi) such merger is completed as a result of any such transaction, negotiations with the approval of the board of directors or series similar body of such actionsPerson and is not a so called “hostile takeover”; (vii) following such merger, the amount of Consolidated Tangible Assets would increase or decrease by 25.0%, then the Requisite Lenders shall have given their prior written consent to such action or series of actions (such consent not Borrower and its Subsidiaries will continue to be unreasonably withheldengaged solely in the business of the ownership, conditioned or delayed)development, management and investment in real estate; notwithstanding the foregoing, the Parent and the Borrower may not enter into a transaction of merger pursuant to which such Loan Party is not the survivor of (viii) such merger. Further, no Loan Party nor any Subsidiarytogether with all other mergers permitted by this Section 9.7 and consummated in the same fiscal year as such merger, shall enter into any salenot increase the Total Asset Value by more than twenty-leaseback transactions or other transaction by which such Loan Party or Subsidiary shall remain liable as lessee five percent (or the economic equivalent thereof25%) of any real or personal property that it has sold or leased to another Personthe Total Asset Value as of the end of the previous fiscal year.

Merger, Consolidation, Sales of Assets and Other Arrangements. Neither the (a) The Parent nor the Borrower shall, and neither the Parent nor the Borrower shall not, and shall not permit any other Loan Party or any other Subsidiary to, (aw) enter into any transaction of merger merger, consolidation, reorganization or consolidation (other than recapitalization; (x) any transaction of merger or consolidation between or among Loan Parties; provided that if the Parent or the Borrower enters into such a transaction of merger, it is the survivor thereof, (y) any transaction of merger or consolidation of a Subsidiary that is not Loan Party into a Loan Party so long as the Loan Party is the survivor thereof and (z) any transaction of merger or consolidation between two or more Subsidiaries that are not Loan Parties); (b) liquidate, windup or dissolve itself (or suffer any liquidation or dissolution); (cy) convey, sell, lease, sublease, transfer or otherwise dispose of, in one transaction or a series of transactions, all or substantially all of its business or assets, or the Equity Interests in any substantial part Subsidiary, whether now owned or hereafter acquired; or (z) acquire all or substantially all of the assets of, or Equity Interests in, any other Person; provided, however, that: (i) any Subsidiary (A) may merge with a Loan Party so long as such Loan Party is the survivor (and in any merger involving the Borrower, the Borrower is the survivor) and (B) that is not a Loan Party may merge with any other Subsidiary that is not a Loan Party; (ii) any Subsidiary (A) may sell, transfer or otherwise dispose of its assets to a Loan Party and (B) that is not a Loan Party may sell, transfer or otherwise dispose of its assets to any other Subsidiary that is not a Loan Party, in each case, including any disposition that is by its nature a liquidation; (iii) (A) a Loan Party (other than the Parent, the Borrower or any Qualifying Unencumbered Property Owner) and any Subsidiary that is not (and is not required to be) a Loan Party may convey, sell, transfer or otherwise dispose of, in one transaction or a series of transactions, all or substantially all of its business or assets, or the capital stock of or other Equity Interests in any of its SubsidiariesSubsidiaries (other than the Borrower or a Qualifying Unencumbered Property Owner), and (B) any Loan Party and any other Subsidiary may, directly or indirectly, acquire (whether now owned by purchase, acquisition of Equity Interests of a Person, or hereafter acquired; as a result of a merger or (dconsolidation) acquire any all or substantially all of the assets of, or make an Investment acquire Equity Interests in, any other Person; provided, howeverso long as, that any of the actions described in the immediately preceding clauses case of each of clause (aA) through and (d) may be taken with respect to the BorrowerB), any other Loan Party or any other Subsidiary so long as (x1) immediately prior to the taking of such actionthereto, and immediately thereafter and after giving effect thereto, no Default or Event of Default is or would be in existence existence, including, without limitation, a Default or Event of Default resulting from a breach of any of the covenants contained in Section 9.1.; (2) to the extent such sale, transfer, disposition or acquisition of all or substantially all of the assets or Equity Interest of any Subsidiary (other than the Borrower, a Loan Party or a Qualifying Unencumbered Property Owner) and the consideration of such transaction is $75,000,000 or more: (x) the Borrower shall have given the Administrative Agent and the Lenders at least 15-days prior written notice of such conveyance, sale, transfer, disposition, acquisition, purchase, merger or consolidation, specifying the nature of the transaction in reasonable detail; and (y) if as a result at the time the Borrower gives notice pursuant to clause (2)(x) of any such transaction, or series of such actionsthis subsection, the amount of Consolidated Tangible Assets would increase or decrease by 25.0%, then the Requisite Lenders Borrower shall have given their prior written consent delivered to the Administrative Agent for distribution to each of the Lenders a Compliance Certificate, calculated on a pro forma basis, evidencing the continued compliance by the Loan Parties with the terms and conditions of this Agreement and the other Loan Documents, including without limitation, the covenants contained in Section 9.1., after giving pro forma effect to such action conveyance, sale, transfer, disposition, acquisition, purchase, merger or series consolidation; and (3) in the case of actions (such consent not to be unreasonably withheld, conditioned a consolidation or delayed); notwithstanding merger involving the foregoingParent, the Parent Borrower or a Qualifying Unencumbered Property Owner, the Parent, the Borrower or such Qualifying Unencumbered Property Owner, as the case may be, shall be the survivor thereof; and (iv) the Parent, the Borrower, the other Loan Parties and the Borrower other Subsidiaries may not enter into a transaction lease and sublease their respective assets, as lessor or sublessor (as the case may be), in the ordinary course of merger pursuant to which such Loan Party is not the survivor of such merger. Further, no Loan Party nor any Subsidiary, shall enter into any sale-leaseback transactions or other transaction by which such Loan Party or Subsidiary shall remain liable as lessee (or the economic equivalent thereof) of any real or personal property that it has sold or leased to another Persontheir business.

Merger, Consolidation, Sales of Assets and Other Arrangements. Neither the Parent nor the (a) The Borrower shallshall not, and neither the Parent nor the Borrower shall not permit any other Loan Party Obligor or any Subsidiary of Borrower or any other Subsidiary Obligor to, : (ai) enter into any transaction of merger or consolidation (other than (x) any transaction of merger or consolidation between or among Loan Parties; provided that if the Parent or the Borrower enters into such a transaction of merger, it is the survivor thereofconsolidation, (y) any transaction of merger reorganization or consolidation of a Subsidiary that is not Loan Party into a Loan Party so long as the Loan Party is the survivor thereof and (z) any transaction of merger or consolidation between two or more Subsidiaries that are not Loan Parties)other business combination; (bii) liquidate, windup wind up or dissolve itself (or suffer any liquidation or dissolution); or (ciii) convey, sell, lease, sublease, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any substantial part of its business or assets, or the capital stock of or other Equity Interests in any of its Subsidiaries, whether now owned or hereafter acquired; or (d) acquire any assets of, or make an Investment in, discontinue or eliminate any other Personbusiness line or segment; provided, however, that a Person may merge with the Borrower or any of the actions described in the immediately preceding clauses (a) through (d) may be taken with respect to the Borrowerits Subsidiaries, any other Loan Party or any other Subsidiary so long as (xi) such Person was organized under the laws of the United States of America or one of its states; (ii) if such merger involves the Borrower, the Borrower is the survivor of such merger; (iii) if such merger involves a Subsidiary of the Borrower that is a Guarantor, subject to Section 9.7(b)(ii), such Subsidiary is the survivor of such merger; (iv) immediately prior to the taking of such actionmerger, and immediately thereafter and after giving effect thereto, no Default or Event of Default is or would be in existence existence; (v) the Borrower shall have given the Agent and the Lenders at least ten (y10) if Business Days’ prior written notice of such merger (except that such prior notice shall not be required in the case of the merger of a Subsidiary of the Borrower with and into the Borrower); (vi) such merger is completed as a result of any such transaction, negotiations with the approval of the board of directors or series similar body of such actionsPerson and is not a so called “hostile takeover”; and (vii) following such merger, the amount of Consolidated Tangible Assets would increase or decrease by 25.0%, then the Requisite Lenders shall have given their prior written consent to such action or series of actions (such consent not Borrower and its Subsidiaries will continue to be unreasonably withheldengaged solely in the business of the ownership, conditioned or delayed); notwithstanding the foregoingdevelopment, the Parent management and the Borrower may not enter into a transaction of merger pursuant to which such Loan Party is not the survivor of such merger. Further, no Loan Party nor any Subsidiary, shall enter into any sale-leaseback transactions or other transaction by which such Loan Party or Subsidiary shall remain liable as lessee (or the economic equivalent thereof) of any investment in real or personal property that it has sold or leased to another Personestate.

Merger, Consolidation, Sales of Assets and Other Arrangements. Neither the The Parent nor the Borrower shall, and neither the Parent nor the Borrower shall not, and shall not permit any other Loan Party or any other Subsidiary to, : (ai) enter into any transaction of merger or consolidation (other than (x) any transaction of merger or consolidation between or among Loan Parties; provided that if the Parent or the Borrower enters into such a transaction of merger, it is the survivor thereof, (y) any transaction of merger or consolidation of a Subsidiary that is not Loan Party into a Loan Party so long as the Loan Party is the survivor thereof and (z) any transaction of merger or consolidation between two or more Subsidiaries that are not Loan Parties)consolidation; (bii) liquidate, windup or dissolve itself (or suffer any liquidation or dissolution); or (ciii) convey, sell, lease, sublease, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any substantial part of its business or assets, or the capital stock of or other Equity Interests in any of its Subsidiaries, whether now owned or hereafter acquired; or (d) acquire any assets of, or make an Investment in, any other Person; provided, however, that that: (a) any of the actions described in the immediately preceding clauses (ai) through (diii) may be taken with respect to the Borrower, any other Loan Party or any other Subsidiary so long as (x) immediately prior to the taking of such action, and immediately thereafter and after giving effect thereto, no Default or Event of Default is or would be in existence existence, and (y) if as such action includes the sale of all Equity Interests in a result of any Subsidiary that is a Guarantor owned directly or indirectly by the Parent, such transaction, or series of such actionsSubsidiary can and will be released from the Guaranty in accordance with Section 8.15; (b) the Parent, the amount of Consolidated Tangible Assets would increase or decrease by 25.0%, then the Requisite Lenders shall have given their prior written consent to such action or series of actions (such consent not to be unreasonably withheld, conditioned or delayed); notwithstanding the foregoingBorrower, the Parent other Loan Parties and the Borrower other Subsidiaries may not enter into lease and sublease their respective assets, as lessor or sublessor (as the case may be), in the ordinary course of their business; (c) a transaction of merger pursuant to which such Person may merge with a Loan Party is not so long as (i) the survivor of such merger. Further, no Loan Party nor any Subsidiary, shall enter into any sale-leaseback transactions or other transaction by which merger is such Loan Party or Subsidiary becomes a Loan Party at the time of such merger (provided, that the foregoing shall remain liable as lessee (not be construed to allow the Parent or the economic equivalent thereofBorrower to merge and not be the surviving party to such merger without the prior written consent of the Administrative Agent and each Lender in accordance with Section 13.5.(a)), (ii) immediately prior to such merger, and immediately thereafter and after giving effect thereto, (x) no Default or Event of Default is or would be in existence, including, without limitation, a Default or Event of Default resulting from a breach of Section 10.1. and (y) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party are and shall be true and correct in all material respects, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date) and except for changes in factual circumstances not prohibited under the Loan Documents, (iii) the Borrower shall have given the Administrative Agent at least 30-days’ prior written notice of such merger, such notice to include a certification as to the matters described in the immediately preceding clause (ii) (except that such prior notice shall not be required in the case of the merger of a Subsidiary that does not own an Unencumbered Property with and into a Loan Party but the Borrower shall give the Administrative Agent notice of any such merger promptly following the effectiveness of such merger) and (iv) at the time the Borrower gives notice pursuant to clause (i) of this subsection, the Borrower shall have delivered to the Administrative Agent for distribution to each of the Lenders a Compliance Certificate, calculated on a pro forma basis, evidencing the continued compliance by the Loan Parties, as applicable, with the terms and conditions of this Agreement and the other Loan Documents, including without limitation, the financial covenants contained in Section 10.1., after giving effect to such consolidation, merger, acquisition, Investment, sale, lease or other transfer and any real prepayment of Loans to be made in connection therewith; and (d) the Parent, the Borrower and each other Subsidiary may sell, transfer or personal property that it has sold or leased to another Persondispose of assets among themselves.

Merger, Consolidation, Sales of Assets and Other Arrangements. Neither the Parent nor the (a)The Borrower shallshall not, and neither the Parent nor the Borrower shall not permit any other Loan Party Obligor or any Subsidiary of Borrower or any other Subsidiary Obligor to, : (ai) enter into any transaction of merger or consolidation (other than (x) any transaction of merger or consolidation between or among Loan Parties; provided that if the Parent or the Borrower enters into such a transaction of merger, it is the survivor thereofconsolidation, (y) any transaction of merger reorganization or consolidation of a Subsidiary that is not Loan Party into a Loan Party so long as the Loan Party is the survivor thereof and (z) any transaction of merger or consolidation between two or more Subsidiaries that are not Loan Parties)other business combination; (bii) liquidate, windup wind up or dissolve itself (or suffer any liquidation or dissolution); or (ciii) convey, sell, lease, sublease, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any substantial part of its business or assets, or the capital stock of or other Equity Interests in any of its Subsidiaries, whether now owned or hereafter acquired; or (d) acquire any assets of, or make an Investment indiscontinue or eliminate any business line or segment (any such event described in clause (iii), any other Persona “Sale”); provided, however, that a Person may merge with the Borrower or any of the actions described in the immediately preceding clauses (a) through (d) may be taken with respect to the Borrowerits Subsidiaries, any other Loan Party or any other Subsidiary so long as (xi) such Person was organized under the laws of the United States of America or one of its states; (ii) if such merger involves the Borrower, the Borrower is the survivor of such merger; (iii) if such merger involves a Subsidiary of the Borrower that is a Guarantor, subject to Section 9.7(b)(ii), such Subsidiary is the survivor of such merger; (iv) immediately - 63 - prior to the taking of such actionmerger, and immediately thereafter and after giving effect thereto, no Default or Event of Default is or would be in existence existence; (v) the Borrower shall have given the Agent and the Lenders at least ten (y10) if Business Days’ prior written notice of such merger (except that such prior notice shall not be required in the case of the merger of a Subsidiary of the Borrower with and into the Borrower); (vi) such merger is completed as a result of negotiations with the approval of the board of directors or similar body of such Person and is not a so called “hostile takeover”; (vii) following such merger, the Borrower and its Subsidiaries will continue to be engaged solely in the business of the ownership, development, management and investment in real estate; and (viii) such merger, together with all other mergers permitted by this Section 9.7 and consummated in the same fiscal year as such merger, shall not increase the Total Asset Value by more than twenty-five percent (25%) of the Total Asset Value as of the end of the previous fiscal year. (b)The Borrower shall not, and shall not permit any other Obligor or any Subsidiary of Borrower or any other Obligor to, sell, dispose of or transfer any Property or other assets if a Default or an Event of Default has occurred and is continuing, or would occur as a result of such transaction, or series of such actions, the amount of Consolidated Tangible Assets would increase or decrease by 25.0%, then the Requisite Lenders shall have given their prior written consent to such action or series of actions (such consent not to be unreasonably withheld, conditioned or delayed); notwithstanding the foregoing, the Parent and the Borrower may not enter into a transaction of merger pursuant to which such Loan Party is not the survivor of such merger. Further, no Loan Party nor any Subsidiary, shall enter into any sale-leaseback transactions or other transaction by which such Loan Party or Subsidiary shall remain liable as lessee (or the economic equivalent thereof) of any real or personal property that it has sold or leased to another Person.Section 9.8

Merger, Consolidation, Sales of Assets and Other Arrangements. Neither the Parent nor the (a)The Borrower shallshall not, and neither the Parent nor the Borrower shall not permit any other Loan Party Obligor or any Subsidiary of Borrower or any other Subsidiary Obligor to, : (ai) enter into any transaction of merger or consolidation (other than (x) any transaction of merger or consolidation between or among Loan Parties; provided that if the Parent or the Borrower enters into such a transaction of merger, it is the survivor thereofconsolidation, (y) any transaction of merger reorganization or consolidation of a Subsidiary that is not Loan Party into a Loan Party so long as the Loan Party is the survivor thereof and (z) any transaction of merger or consolidation between two or more Subsidiaries that are not Loan Parties)other business combination; (bii) liquidate, windup wind up or dissolve itself (or suffer any liquidation or dissolution); or (ciii) convey, sell, lease, sublease, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any substantial part of its business or assets, or the capital stock of or other Equity Interests in any of its Subsidiaries, whether now owned or hereafter acquired; or (d) acquire any assets of, or make an Investment indiscontinue or eliminate any business line or segment (any such event described in clause (iii), any other Persona “Sale”); provided, however, that a Person may merge with the Borrower or any of the actions described in the immediately preceding clauses (a) through (d) may be taken with respect to the Borrowerits Subsidiaries, any other Loan Party or any other Subsidiary so long as (xi) such Person was organized under the laws of the United States of America or one of its states; (ii) if such merger involves the Borrower, the Borrower is the survivor of such merger; (iii) if such merger involves a Subsidiary of the Borrower that is a Guarantor, subject to Section 9.7(b)(ii), such Subsidiary is the survivor of such merger; (iv) immediately 62 A/75663178.5 prior to the taking of such actionmerger, and immediately thereafter and after giving effect thereto, no Default or Event of Default is or would be in existence existence; (v) the Borrower shall have given the Agent and the Lenders at least ten (y10) if Business Days’ prior written notice of such merger (except that such prior notice shall not be required in the case of the merger of a Subsidiary of the Borrower with and into the Borrower); (vi) such merger is completed as a result of negotiations with the approval of the board of directors or similar body of such Person and is not a so called “hostile takeover”; (vii) following such merger, the Borrower and its Subsidiaries will continue to be engaged solely in the business of the ownership, development, management and investment in real estate; and (viii) such merger, together with all other mergers permitted by this Section 9.7 and consummated in the same fiscal year as such merger, shall not increase the Total Asset Value by more than twenty-five percent (25%) of the Total Asset Value as of the end of the previous fiscal year. (b)The Borrower shall not, and shall not permit any other Obligor or any Subsidiary of Borrower or any other Obligor to, sell, dispose of or transfer any Property or other assets if a Default or an Event of Default has occurred and is continuing, or would occur as a result of such transaction, or series of such actions, the amount of Consolidated Tangible Assets would increase or decrease by 25.0%, then the Requisite Lenders shall have given their prior written consent to such action or series of actions (such consent not to be unreasonably withheld, conditioned or delayed); notwithstanding the foregoing, the Parent and the Borrower may not enter into a transaction of merger pursuant to which such Loan Party is not the survivor of such merger. Further, no Loan Party nor any Subsidiary, shall enter into any sale-leaseback transactions or other transaction by which such Loan Party or Subsidiary shall remain liable as lessee (or the economic equivalent thereof) of any real or personal property that it has sold or leased to another Person.Section 9.8

Merger, Consolidation, Sales of Assets and Other Arrangements. Neither the Parent nor the The Borrower shallshall not, and neither the Parent nor the Borrower shall not permit any other Loan Party or any other Subsidiary to, (a) enter into any transaction of merger or consolidation (other than (x) any transaction of merger or consolidation between or among Loan Parties; provided that if the Parent or the Borrower enters into such a transaction of merger, it is the survivor thereof, (y) any transaction of merger or consolidation of a Subsidiary that is not Loan Party into a Loan Party so long as the Loan Party is the survivor thereof and (z) any transaction of merger or consolidation between two or more Subsidiaries that are not Loan Parties)consolidation; (b) liquidate, windup wind up or dissolve itself (or suffer any liquidation or dissolution); (c) convey, sell, lease, sublease, transfer or otherwise dispose of, in one transaction or a series of transactions, all or substantially all of its business or assets, or the capital stock of or other Equity Interests in any of its Subsidiaries, whether now owned or hereafter acquired; or (d) acquire a Substantial Amount of the assets of, or make an Investment of a Substantial Amount in, any other Person; provided, however, that: any Subsidiary may merge with a Loan Party so long as the survivor is a Loan Party; any Subsidiary may sell, transfer or dispose of its assets to a Loan Party; any Subsidiary that is not (and is not required to be) a Loan Party may convey, sell, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any substantial part of its business or assets, or the capital stock of or other Equity Interests in any of its Subsidiaries, whether now owned and immediately thereafter liquidate, provided that immediately prior to any such conveyance, sale, transfer, disposition or hereafter acquiredliquidation and immediately thereafter and after giving effect thereto, no Default or Event of Default is or would be in existence; any Loan Party and any other Subsidiary may, directly or indirectly, (dA) acquire any (whether by purchase, acquisition of Equity Interests of a Person, or as a result of a merger or consolidation) assets of, or make an Investment in, any other Person; providedPerson so long as the amount of such acquisition or Investment does not equal or exceed a Substantial Amount and (B) sell, howeverlease or otherwise transfer, that whether by one or a series of transactions, assets (including capital stock or other securities of Subsidiaries) which do not equal or exceed a Substantial Amount to any of the actions described other Person and, in the immediately preceding clauses event that the assets referenced in either subsection (aA) through or (dB) may be taken with respect to above do in fact equal or exceed a Substantial Amount, the Borrower, any other applicable Loan Party or any other Subsidiary may proceed with such acquisition or transfer, so long as as, in each case, (x1) the Borrower shall have given the Administrative Agent and the Lenders at least thirty (30) days prior written notice of 80 such consolidation, merger, acquisition, Investment, sale, lease or other transfer; (2) immediately prior to the taking of such actionthereto, and immediately thereafter and after giving effect thereto, no Default or Event of Default is or would be in existence existence; (3) in the case of a consolidation or merger involving the Borrower or any other Loan Party, such Person shall be the survivor thereof and (y4) if as a result at the time the Borrower gives notice pursuant to clause (1) of any such transaction, or series of such actionsthis subsection, the amount of Consolidated Tangible Assets would increase or decrease by 25.0%, then the Requisite Lenders Borrower shall have given their prior written consent delivered to the Administrative Agent and the Lenders a Compliance Certificate, calculated on a pro forma basis, evidencing the continued compliance by the Loan Parties with the terms and conditions of this Agreement and the other Loan Documents, including without limitation, the financial covenants contained in Section 10.1, after giving effect to such action consolidation, merger, acquisition, Investment, sale, lease or series other transfer; the Borrower and the other Loan Parties may lease and sublease its respective assets, as lessor or sublessor (as the case may be), in the ordinary course of actions (such consent not to be unreasonably withheld, conditioned or delayed)their business; notwithstanding the foregoing, the Parent and the Borrower may not enter into a merger transaction of merger pursuant to which such Loan Party with IRT, provided that Borrower is not the survivor of such mergerresulting entity. Further, no Loan Party Party, nor any other Subsidiary, shall enter into any sale-leaseback transactions or other transaction by which such Loan Party or Subsidiary Person shall remain liable as lessee (or the economic equivalent thereof) of any real or personal property that it has sold or leased to another Person.

Merger, Consolidation, Sales of Assets and Other Arrangements. Neither the Parent nor the (a) The Borrower shallshall not, and neither the Parent nor the Borrower shall not permit any other Loan Party Obligor or any Subsidiary of Borrower or any other Subsidiary Obligor to, : (ai) enter into any transaction of merger or consolidation (other than (x) any transaction of merger or consolidation between or among Loan Parties; provided that if the Parent or the Borrower enters into such a transaction of merger, it is the survivor thereofconsolidation, (y) any transaction of merger reorganization or consolidation of other business combination or consummate a Subsidiary that is not Loan Party into a Loan Party so long Division as the Loan Party is the survivor thereof and (z) any transaction of merger or consolidation between two or more Subsidiaries that are not Loan Parties)Dividing Person; (bii) liquidate, windup wind up or dissolve itself (or suffer any liquidation or dissolution); or (ciii) convey, sell, lease, sublease, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any substantial part of its business or assets, or the capital stock of or other Equity Interests in any of its Subsidiaries, whether now owned or hereafter acquired; or (d) acquire any assets of, or make an Investment indiscontinue or eliminate any business line or segment (any such event described in clause (iii), any other Persona “Sale”); provided, however, that (A) a Person may merge with the Borrower or any of the actions described in the immediately preceding clauses (a) through (d) may be taken with respect to the Borrowerits Subsidiaries, any other Loan Party or any other Subsidiary so long as (xi) such Person was organized under the laws of the United States of America or one of its states; (ii) if such merger involves the Borrower, the Borrower is the survivor of such merger; (iii) if such merger involves a Subsidiary of the Borrower that is a Guarantor, subject to Section 9.7(b)(ii), such Subsidiary is the survivor of such merger; (iv) immediately prior to the taking of such actionmerger, and immediately thereafter and after giving effect thereto, no Default or Event of Default is or would be in existence existence; (v) the Borrower shall have given the Agent and the Lenders at least ten (y10) if Business Days’ prior written notice of such merger (except that such prior notice shall not be required in the case of the merger of a Subsidiary of the Borrower with and into the Borrower); (vi) such merger is completed as a result of negotiations with the approval of the board of directors or similar body of such Person and is not a so called “hostile takeover”; and (vii) following such merger, the Borrower and its Subsidiaries will continue to be engaged solely in the business of the ownership, development, management and investment in real estate and (B) (1) any such transactionSubsidiary may liquidate or dissolve, consummate a Division as the Dividing Person, or series sell, transfer, lease or otherwise dispose of such actions, the amount of Consolidated Tangible Assets would increase or decrease by 25.0%, then the Requisite Lenders shall have given their prior written consent its assets to such action or series of actions (such consent not to be unreasonably withheld, conditioned or delayed); notwithstanding the foregoing, the Parent and the Borrower or to another Subsidiary, (2) any Subsidiary may not enter into liquidate or dissolve or merge into, consummate a transaction Division as the Dividing Person, or sell, transfer, lease or otherwise dispose of merger pursuant to which its assets to, another Person if the Borrower determines in good faith that such Loan Party liquidation or dissolution, merger, Division or disposition is in the best interests of the Borrower, is not materially disadvantageous to the survivor Lenders, and does not result in a Default or an Event of such merger. FurtherDefault hereunder and (3) the Borrower or any Subsidiary may sell, no Loan Party nor any Subsidiarytransfer, shall enter into any sale-leaseback transactions lease or other transaction by which such Loan Party or Subsidiary shall remain liable as lessee (or the economic equivalent thereof) otherwise dispose of any real or personal property Subsidiary in connection with any disposition of assets that it has sold or leased to another Personis permitted by this Agreement.

Merger, Consolidation, Sales of Assets and Other Arrangements. Neither the Parent nor the (a) The Borrower shallshall not, and neither the Parent nor the Borrower shall not permit any other Loan Party Obligor or any Subsidiary of Borrower or any other Subsidiary Obligor to, : (ai) enter into any transaction of merger or consolidation (other than (x) any transaction of merger or consolidation between or among Loan Parties; provided that if the Parent or the Borrower enters into such a transaction of merger, it is the survivor thereofconsolidation, (y) any transaction of merger reorganization or consolidation of a Subsidiary that is not Loan Party into a Loan Party so long as the Loan Party is the survivor thereof and (z) any transaction of merger or consolidation between two or more Subsidiaries that are not Loan Parties)other business combination; (bii) liquidate, windup wind up or dissolve itself (or suffer any liquidation or dissolution); or (ciii) convey, sell, lease, sublease, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any substantial part of its business or assets, or the capital stock of or other Equity Interests in any of its Subsidiaries, whether now owned or hereafter acquired; or (d) acquire any assets of, or make an Investment in, discontinue or eliminate any other Personbusiness line or segment; provided, however, that a Person may merge with the Borrower or any of the actions described in the immediately preceding clauses (a) through (d) may be taken with respect to the Borrowerits Subsidiaries, any other Loan Party or any other Subsidiary so long as (xA) such Person was organized under the laws of the United States of America or one of its states; (B) if such merger involves the Borrower, the Borrower is the survivor of such merger; (C) if such merger involves a Subsidiary of the Borrower that is a Guarantor, such Subsidiary is the survivor of such merger; (D) immediately prior to the taking of such actionmerger, and immediately thereafter and after giving effect thereto, no Default or Event of Default is or would be in existence and, any merger that involves a Non-Wholly Owned Subsidiary would be permitted by Section 9.3; (E) the Borrower shall have given the Administrative Agent and the Lenders at least ten (y10) if Business Days' prior written notice of such merger (except that such prior notice shall not be required in the case of the merger of a Subsidiary of the Borrower with and into the Borrower); (F) such merger is completed as a result of any such transaction, negotiations with the approval of the board of directors or series similar body of such actionsPerson and is not a “hostile takeover”; (G) following such merger, the amount of Consolidated Tangible Assets would increase or decrease by 25.0%, then the Requisite Lenders shall have given their prior written consent to such action or series of actions (such consent not Borrower and its Subsidiaries will continue to be unreasonably withheldengaged primarily in the business of the ownership, conditioned or delayed)development, management and investment in real estate; notwithstanding the foregoing, the Parent and the Borrower may not enter into a transaction of merger pursuant to which such Loan Party is not the survivor of (H) such merger. Further, no Loan Party nor any Subsidiarytogether with all other mergers permitted by this Section 9.6 and consummated in the same fiscal year as such merger, shall enter into any salenot increase the Total Asset Value by more than twenty-leaseback transactions or other transaction by which such Loan Party or Subsidiary shall remain liable as lessee five percent (or the economic equivalent thereof25%) of any real or personal property that it has sold or leased to another Personthe Total Asset Value as of the end of the previous fiscal year.