JOINT VENTURES) IF SUCH
DIVIDENDS AND DISTRIBUTIONS PAID ON ACCOUNT OF THE THEN-CURRENT FISCAL QUARTER
AND THE THREE IMMEDIATELY PRECEDING FISCAL QUARTERS, IN THE AGGREGATE SALES FOR
SUCH PERIOD, WOULD EXCEED 95% OF FUNDS FROM OPERATIONS FOR SUCH PERIOD PLUS (B)
WITHOUT DUPLICATION, ALL GAINS ON PROPERTY SALES FOR SUCH PERIOD TO THE EXTENT
DISTRIBUTIONS WERE ACTUALLY MADE WITH RESPECT THERETO.
NOTWITHSTANDING THE
FOREGOING, THE BORROWER SHALL BE PERMITTED AT ALL TIMES TO DISTRIBUTE WHATEVER
AMOUNT OF DIVIDENDS IS NECESSARY TO MAINTAIN ITS TAX STATUS AS A REAL ESTATE
INVESTMENT TRUST.
MERGER; SALE OF ASSETS.
THE BORROWER WILL NOT, NOR WILL IT PERMIT ANY OF ITS
SUBSIDIARIES TO, WITHOUT PRIOR NOTICE TO THE ADMINISTRATIVE AGENT AND WITHOUT
PROVIDING A CERTIFICATION OF COMPLIANCE WITH THE LOAN DOCUMENTS ENTER INTO ANY
MERGER (OTHER THAN MERGERS IN WHICH SUCH ENTITY IS THE SURVIVOR AND MERGERS OF
SUBSIDIARIES (BUT NOT THE BORROWER) AS PART OF TRANSACTIONS THAT ARE PERMITTED
ACQUISITIONS PROVIDED THAT FOLLOWING SUCH MERGER THE TARGET ENTITY BECOMES A
WHOLLY-OWNED SUBSIDIARY OF BORROWER),CONSOLIDATION, REORGANIZATION OR
LIQUIDATION OR TRANSFER OR OTHERWISE DISPOSE OF ALL OR A SUBSTANTIALPORTION OF
THEIR PROPERTIES, EXCEPT FOR (A) SUCH TRANSACTIONS THATOCCUR BETWEEN
WHOLLY-OWNED SUBSIDIARIES OR BETWEEN BORROWER AND A WHOLLY-OWNED SUBSIDIARY AND
(B) MERGERS SOLELY TO CHANGE THE JURISDICTION OF ORGANIZATION OF A SUBSIDIARY
GUARANTOR, PROVIDED THAT, IN ANY EVENT, APPROVAL IN ADVANCE BY THE REQUIRED
LENDERS SHALL BE REQUIRED FOR TRANSFER OR DISPOSITION IN ANY QUARTER OF ASSETS
WITH AN AGGREGATE VALUE GREATER THAN 10% OF TOTAL ASSET VALUE, OR ANY MERGER
RESULTING IN AN INCREASE TO THE TOTAL ASSET VALUE OF MORE THAN 35%.
DELIVERY OF SUBSIDIARY GUARANTIES.
BORROWER SHALL CAUSE EACH OF ITS EXISTING
SUBSIDIARIES (OTHER THAN A SUBSIDIARY WHICH IS A SINGLE-PURPOSE ENTITY WHICH
OWNS ONLY PROJECTS SUBJECT TO SECURITIZED INDEBTEDNESS AND WHICH HAS
RESTRICTIONS ON THE CREATION OF ADDITIONAL INDEBTEDNESS AND OTHER SAFEGUARDS
TYPICALLY IMPOSED ON SUCH SINGLE-PURPOSE ENTITIES IN SECURITIZED FINANCINGS) TO
EXECUTE AND DELIVER TO THE ADMINISTRATIVE AGENT THE SUBSIDIARY GUARANTY.
WITHIN
10 DAYS AFTER THE LATER OF THE DATE BORROWER FORMS OR ACQUIRES ANY SUBSIDIARY OR
THE DATE SUCH SUBSIDIARY FIRST OWNS A PROJECT, BORROWER SHALL CAUSE SUCH
SUBSIDIARY (OTHER THAN SUBSIDIARIES EXCLUDED UNDER THE PARENTHETICAL IN THE
PRECEDING SENTENCE) TO EXECUTE AND DELIVER TO THE ADMINISTRATIVE AGENT A JOINDER
IN THE SUBSIDIARY GUARANTY, TOGETHER WITH SUPPORTING ORGANIZATIONAL AND
AUTHORITY DOCUMENTS AND OPINIONS SIMILAR TO THOSE PROVIDED WITH RESPECT TO THE
BORROWER UNDER SECTION 4.1 HEREOF.
IF A SUBSIDIARY THAT IS INITIALLY NOT
REQUIRED TO DELIVER A SUBSIDIARY GUARANTY UNDER THE PARENTHETICAL IN THE FIRST
SENTENCE IS LATER NOT PRECLUDED FROM DOING SO, THEN BORROWER SHALL CAUSE SUCH
SUBSIDIARY TO DELIVER A JOINDER TO GUARANTY (IN THE FORM ATTACHED AS EXHIBIT A
TO THE FORM OF SUBSIDIARY GUARANTY ATTACHED HERETO AS EXHIBIT F) AND SUCH
SUPPORTING DOCUMENTS AND OPINIONS AT THAT TIME.
SALE AND LEASEBACK.
THE BORROWER WILL NOT, NOR WILL IT PERMIT ANY OF ITS
SUBSIDIARIES TO, SELL OR TRANSFER A SUBSTANTIAL PORTION OF ITS PROPERTY IN ORDER
TO CONCURRENTLY