Distribution of REIT Taxable Income Sample Clauses

Distribution of REIT Taxable Income. Notwithstanding anything to the contrary in this Agreement, prior to the Closing Date, the Company may declare and pay a dividend (including under Section 858 or Section 860 of the Code) on the Company Common Stock to its stockholders, the Partnership may make distributions on the Partnership Units, and each Subsidiary REIT may make distributions (including under Section 858 or Section 860 of the Code) to its stockholders, in each case, distributing cash in such amounts determined by the Company or such Subsidiary REIT, as applicable, in its sole discretion exercised in good faith to be required (after giving effect to the distributions contemplated by Section 6.1(b)(iii)) to be distributed in order for the Company or such Subsidiary REIT to maintain its qualification as a REIT for such year and to avoid or reduce the incurrence of income or excise Tax; provided, that the Common Stock Consideration shall be decreased by an amount equal to the per share amount of any such dividend on Company Common Stock declared or paid by the Company pursuant to this Section 7.11.

Distribution of REIT Taxable Income. (a) Notwithstanding anything to the contrary in this Agreement, prior to the Closing Date, any of the Company and its Subsidiary REITs may declare and pay a dividend to its shareholders distributing cash in such amounts determined by the Company in good faith and in compliance with this Section 5.16 to be required to be distributed in order for the Company or its Subsidiary REITs to qualify as a REIT for such year and to avoid to the extent reasonably 109 possible the incurrence of income or excise Tax by the Company or its Subsidiary REITs; provided that with respect to the taxable year that includes the Company Merger Effective Time, no distribution shall be permitted under this Section 5.16 for any Subsidiary REIT without the prior written consent of Parent (other than with respect to distributions that are required (after taking into account the Subsidiary REIT’s ability to make a consent dividend pursuant to Section 565 of the Code) in order for a Subsidiary REIT to qualify as a REIT for such year or to avoid to the extent reasonably possible the incurrence of income or excise tax by a Subsidiary REIT where such required distributions cannot reasonably be made after the Closing Date (including through a consent dividend), and any distributions required on any preferred shares of a Subsidiary REIT). If the Company declares a distribution to its shareholders pursuant to this Section 5.16, the Merger Consideration shall be decreased by an amount equal to such distribution, determined as follows: the reduction in the Merger Consideration shall be effected by (i) reducing the Cash Consideration by an amount equal to the per share amount of the Company’s distribution to its shareholders (the “Company Distribution”) and (ii) by recalculating the Exchange Ratio to be equal to the amount determined by (A) multiplying (1) the Pre-Signing Date Parent Common Share Price by (2) 0.92, and deducting from the product thereof the amount of the Company Distribution and (B) dividing (1) the resulting amount by (2) the Pre-Signing Date Parent Common Share Price to obtain the new Exchange Ratio. For purposes of clarity, set forth on Part 5.16(a) of the Company Disclosure Schedule is an agreed upon example of the foregoing calculation.

Distribution of REIT Taxable Income. (a) Notwithstanding anything to the contrary in this Agreement, prior to the Closing Date, the Company may declare and pay a dividend on the Company Common Stock to its stockholders, the Partnership may make distributions on the Class A Partnership Units and the GP Units, and Operations may make distributions to its stockholders, in each case, distributing cash in such amounts determined by the Company in its sole discretion exercised in good faith to be required (after giving effect to the distributions contemplated by Section 6.1(b)(iii)) to be distributed in order for the Company or Operations to maintain its qualification as a REIT for such year and to avoid or reduce the incurrence of income or excise Tax; provided, that the Common Stock Consideration shall be decreased by an amount equal to the per share amount of any such dividend on Company Common Stock declared or paid by the Company pursuant to this Section 7.11.

Distribution of REIT Taxable Income. ENA covenants that it will distribute to its shareholders prior to Closing an amount equal to ENA’s “real estate investment trust taxable income,” as computed for purposes of Section 857 of the Code (without any reduction for any prior year net operating losses) for the period of January 1 of the year of Closing to the Closing Date; provided, however, to the extent that such income arises from the partnership interests in LATA OP held by ENA and its Subsidiaries prior to the Closing, ENA shall not be obligated to distribute same to the extent that LATA OP fails to make distributions to ENA and its Subsidiaries prior to Closing in an amount equal to the taxable income LATA OP will allocate to ENA and its Subsidiaries for such period. To the extent that, immediately prior to Closing, ENA, ELRH or its Subsidiaries have accrued but unpaid receivables, such as distributions payable on OP Units, the rights to such accruals shall be distributed from the ELRH Subsidiaries to ELRH and from ELRH to JLCO and ENA, and any cash receipts from such accruals received by ENA after Closing shall be distributed solely to EH. LATA and EH agree that ENA, effective immediately prior to Closing, will declare a dividend to EH, as of the day prior to Closing, of all such accruals.