Dividends and Other Restricted Payments. The Parent shall not, and shall not permit any of its Subsidiaries to, declare or make any Restricted Payment, except that: (i) the Borrower may (A) make payments on account of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement of the Borrower, or (B) pay cash dividends to the Parent and the other holders of partnership interests in the Borrower, and the Parent may so distribute such cash dividends to its shareholders, in the case of clause (A) or clause (B), so long as no Default or Event of Default exists or would result therefrom and so long as the Parent shall be in pro forma compliance with the other covenants set forth in this Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) immediately after giving effect thereto; (ii) both (A) the Borrower may pay cash dividends to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, cash dividends to its shareholders in an aggregate amount not to exceed the greater of (x) the amount required to be distributed for the Parent to remain in compliance with Section 8.14. and (y) the amount necessary for the Parent to avoid income or excise tax under the Internal Revenue Code; and (B) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary of the Borrower and the Borrower or any other Subsidiary of the Parent may pay Restricted Payments to the Parent. Notwithstanding the foregoing sentence, in the event that a Default or Event of Default under Sections 11.1.(a), (e) or (f) exists or would exist after giving effect to such Restricted Payment, or the Obligations have been accelerated in accordance with the terms of this Agreement, then the Parent shall not, nor shall it permit any Subsidiary to make any Restricted Payments to any Person other than to the Borrower or any Subsidiary that is a Guarantor.
Appears in 2 contracts
Samples: Credit Agreement (NETSTREIT Corp.), Credit Agreement (NETSTREIT Corp.)
Dividends and Other Restricted Payments. The Parent shall not, and shall not permit the Borrower or any of its their Subsidiaries to, declare or make any Restricted Payment; provided, except that:
(i) however, that the Parent, the Borrower and their respective Subsidiaries may (A) declare and make payments on account of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement of the Borrower, or (B) pay cash dividends to the Parent and the other holders of partnership interests in the Borrower, and the Parent may so distribute such cash dividends to its shareholders, in the case of clause (A) or clause (B), following Restricted Payments so long as no Default or Event of Default exists or would result therefrom and so long as the Parent shall be in pro forma compliance with the other covenants set forth in this Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) immediately after giving effect thereto;therefrom:
(ii) both (Ai) the Borrower may pay cash dividends distributions to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, cash dividends distributions to its shareholders in an aggregate amount not to exceed the greater of (xi) the amount required to be distributed for the Parent to remain in compliance with Section 8.147.12. and or (yii) 90% of Funds From Operations;
(ii) the amount Borrower may pay cash distributions to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute cash distributions (including, without limitation, distributions constituting “capital gains dividends”) to shareholders of the Parent to the extent necessary to avoid income or excise tax payment of taxes under Section 857 (including, without limitation, Section 857(b)(3)) and Section 4981 of the Internal Revenue Code; and ;
(Biii) a Subsidiary that is not a Wholly Owned Subsidiary may make cash distributions to holders of Equity Interests issued by such Subsidiary;
(iv) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary of the Borrower and Subsidiary;
(v) the Borrower or any other Subsidiary of the Parent may pay Restricted Payments make purchases of Equity Interests in any Subsidiary or Unconsolidated Affiliate of the Parent or of any of its Subsidiaries that are held by any other Person;
(vi) the Borrower may redeem for cash limited partnership interests in the Borrower;
(vii) the Parent, the Borrower or any Subsidiary may redeem or repurchase its Preferred Stock, at par or at a discount; and
(viii) the Parent may from time to time purchase shares of its common stock in an aggregate purchase price not to exceed $50,000,000 for all such purchases, and the Borrower may make cash distributions to Parent to the Parentextent necessary for the Parent to make such purchases of its common stock. Notwithstanding the foregoing foregoing, but subject to the following sentence, in the event that if a Default or Event of Default exists, the Borrower may only declare and make cash distributions to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year to the extent necessary for the Parent to distribute, and the Parent may so distribute, an aggregate amount not to exceed the minimum amount necessary for the Parent to remain in compliance with Section 7.12. and to avoid the imposition of income or excise taxes imposed under Sections 11.1.(a857(b)(1), (e857(b)(3) and 4981 of the Internal Revenue Code. If a Default or Event of Default specified in Section 10.1.(a), Section 10.1.(e) or (fSection 10.1.(f) exists or would exist after giving effect to such Restricted Paymentshall exist, or if as a result of the occurrence of any other Event of Default any of the Obligations have been accelerated in accordance with the terms of this Agreementpursuant to Section 10.2.(a), then the Parent shall not, nor and shall it not permit the Borrower or any Subsidiary to to, make any Restricted Payments to any Person other than to the Parent, the Borrower or any Subsidiary that is a GuarantorSubsidiary.
Appears in 2 contracts
Samples: Term Loan Agreement (Parkway Properties Inc), Credit Agreement (Parkway Properties Inc)
Dividends and Other Restricted Payments. The Parent shall Constituent Companies will not, and shall will not permit any Subsidiary to, redeem, purchase, repurchase or otherwise acquire any Equity Interests of either Constituent Company or any of its Subsidiaries to, declare from any Person other than a Constituent Company or make any Restricted Payment, except that:
a Subsidiary unless (ia) the Borrower may (A) make payments on account of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement of the Borrower, or (B) pay cash dividends to the Parent and the other holders of partnership interests in the Borrower, and the Parent may so distribute such cash dividends to its shareholders, in the case of clause (A) or clause (B), so long as no Default or Event of Default exists or would result therefrom and so long as (b) the Parent Guarantor shall have delivered to the holders of the Notes at least three Business Days prior to any redemption, purchase, repurchase or other acquisition that exceeds $50,000,000 in the aggregate an Officer’s Certificate evidencing that the Parent Guarantor will be in pro forma compliance with the other covenants set forth in this Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) immediately Specified Financial Covenants after giving pro forma effect thereto;
to such redemption, purchase, repurchase or other acquisition. Notwithstanding the foregoing, if an Event of Default exists, the Constituent Companies will not, and will not permit any Subsidiary to, declare or make any Restricted Payments except that (ii) both (A1) the Borrower Issuer may pay declare and make cash dividends distributions to the Parent Guarantor and other holders of partnership interests Equity Interests in the Borrower Issuer with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent Guarantor to distribute, and the Parent Guarantor may so distribute, (i) make cash dividends to its shareholders or equity distributions in an aggregate amount not to exceed the greater of (x) the amount required to be distributed for the Parent to remain in compliance with Section 8.14. and (y) the minimum amount necessary for the Parent Guarantor to avoid satisfy the requirements for qualification and taxation as a REIT and not be subject to income or excise tax taxation under sections 857(b)(1), 857(b)(3), 860 or 4981 of the Internal Revenue Code; Code and (Bii) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary of the Borrower and the Borrower or any other Subsidiary make additional distributions in common Equity Interests of the Parent may pay Restricted Payments to Guarantor in an amount under this clause (ii) that, when combined with the Parent. Notwithstanding distributions under clause (i) above, do not exceed 100% of the foregoing sentence, in taxable income of the event that a Default or Event of Default under Sections 11.1.(a), (e) or (f) exists or would exist after giving effect to such Restricted Payment, or the Obligations have been accelerated Parent Guarantor determined in accordance with section 857(b)(2) of the terms Code and (2) Subsidiaries of this Agreement, then the Parent shall not, nor shall it permit any Subsidiary to Issuer may make any Restricted Payments to any Person other than that owns an Equity Interest in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made. Notwithstanding the foregoing, during the Covenant Relief Period, the terms of this clause (h) shall be subject to Section 10.10(a). Notwithstanding the foregoing, during the Covenant Relief Period, the Parent Guarantor shall not be required to comply with (a) the Financial Covenants described in clauses (a) through (f) above, or (b) any Additional or More Restrictive Covenant incorporated from the Bank Credit Agreement that is not required to be complied with during the Covenant Relief Period pursuant to the Borrower or any Subsidiary that is a GuarantorBank Credit Agreement, and the Surge Period shall not be deemed to be utilized.
Appears in 2 contracts
Samples: Note and Guarantee Agreement (Sunstone Hotel Investors, Inc.), Note and Guarantee Agreement (Sunstone Hotel Investors, Inc.)
Dividends and Other Restricted Payments. The Parent and the Borrower shall not, and shall not permit any of its their Subsidiaries to, declare or make any Restricted Payment; provided, except that:
(i) however, that the Parent, the Borrower and their Subsidiaries may (A) declare and make payments on account of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement of the Borrower, or (B) pay cash dividends to the Parent and the other holders of partnership interests in the Borrower, and the Parent may so distribute such cash dividends to its shareholders, in the case of clause (A) or clause (B), following Restricted Payments so long as no Default or Event of Default exists or would result therefrom and so long as the Parent shall be in pro forma compliance with the other covenants set forth in this Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) immediately after giving effect thereto;
(ii) both (A) therefrom: the Borrower may pay cash dividends to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, cash dividends to its shareholders in an aggregate amount not to exceed the greater of (xi) the amount required to be distributed for the Parent to remain in compliance with Section 8.148.12. and or (yii) the amount necessary for the Parent to avoid income or excise tax under the Internal Revenue Code; and ninety-five percent (B95%) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary of the Borrower and the Borrower or any other Subsidiary of the Parent may pay Restricted Payments to the ParentFunds From Operations. Notwithstanding the foregoing foregoing, but subject to the following sentence, in the event that if a Default or Event of Default under Sections exists, the Parent may only cause the Borrower (directly or indirectly through any intermediate Subsidiaries) to make cash distributions to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, cash dividends to its shareholders in an aggregate amount required to be distributed for the Parent to remain in compliance with Section 8.12. Notwithstanding the foregoing, if a Default or Event of Default specified in Section 11.1.(a)) resulting from the Borrower's failure to pay when due the principal of, (eor interest on, any of the Loans or any Fees, Section 11.1.(e) or (f) exists or would exist after giving effect to such Restricted Paymentshall have occurred and be continuing, or if as a result of the occurrence of any other Event of Default the Obligations have been accelerated in accordance with the terms of this Agreementpursuant to Section 11.2.(a), then the Parent and the Borrower shall not, nor and shall it not permit any other Subsidiary to to, make any Restricted Payments to any Person whatsoever. Subsidiaries other than the Borrower may make Restricted Payments to the Borrower or and the other Subsidiaries at any Subsidiary that is a Guarantortime.
Appears in 2 contracts
Samples: Credit Agreement (CBL & Associates Properties Inc), Credit Agreement (CBL & Associates Properties Inc)
Dividends and Other Restricted Payments. The Parent shall not, and shall not permit the Borrower or any of their Subsidiaries (other than Parkway Properties Office Fund I, L.P., Parkway Properties Office Fund II, L.P. and any other Consolidated Affiliate (provided that the Administrative Agent has given its Subsidiaries prior written consent to such Consolidated Affiliate being excluded from the restrictions of this subsection (g))) to, declare or make any Restricted Payment; provided, except that:
(i) however, that the Parent, the Borrower and their respective Subsidiaries may (A) declare and make payments on account of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement of the Borrower, or (B) pay cash dividends to the Parent and the other holders of partnership interests in the Borrower, and the Parent may so distribute such cash dividends to its shareholders, in the case of clause (A) or clause (B), following Restricted Payments so long as no Default or Event of Default exists or would result therefrom and so long as the Parent shall be in pro forma compliance with the other covenants set forth in this Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) immediately after giving effect thereto;therefrom:
(ii) both (Ai) the Borrower may pay cash dividends to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, cash dividends to its shareholders in an aggregate amount not to exceed the greater of (xi) the amount required to be distributed for the Parent to remain in compliance with Section 8.147.12. and or (yii) 90% of Funds From Operations;
(ii) the amount Borrower may pay cash dividends to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute cash distributions to its shareholders of capital gains resulting from gains from certain asset sales to the extent necessary to avoid income or excise tax payment of taxes on such asset sales imposed under Sections 857(b)(3) and 4981 of the Internal Revenue Code;
(iii) a Subsidiary that is not a Wholly Owned Subsidiary may make cash distributions to holders of Equity Interests issued by such Subsidiary; and and
(Biv) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary of the Borrower and the Borrower or any other Subsidiary of the Parent may pay Restricted Payments to the ParentSubsidiary. Notwithstanding the foregoing foregoing, but subject to the following sentence, in the event that if a Default or Event of Default under Sections 11.1.(aexists, the Borrower may only declare and make cash distributions to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year to the extent necessary for the Parent to distribute, and the Parent may so distribute, an aggregate amount not to exceed the minimum amount necessary for the Parent to remain in compliance with Section 7.12.. If a Default or Event of Default specified in Section 10.1.(a), (eSection 10.1.(b), Section 10.1.(e) or (fSection 10.1.(f) exists or would exist after giving effect to such Restricted Paymentshall exist, or if as a result of the occurrence of any other Event of Default any of the Obligations have been accelerated in accordance with the terms of this Agreementpursuant to Section 10.2.(a), then the Parent shall not, nor and shall it not permit the Borrower or any Subsidiary to to, make any Restricted Payments to any Person other than to the Parent, the Borrower or any Subsidiary that is a GuarantorSubsidiary.
Appears in 2 contracts
Samples: Term Loan Agreement (Parkway Properties Inc), Credit Agreement (Parkway Properties Inc)
Dividends and Other Restricted Payments. The Parent and the Borrower shall not, and shall not permit any of its their Subsidiaries to, declare redeem, purchase, repurchase or make otherwise acquire any Restricted PaymentEquity Interests of the Parent, except that:
the Borrower or any of their Subsidiaries from any Person other than the Parent, the Borrower or a Subsidiary unless (i) the Borrower may (A) make payments on account of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement of the Borrower, or (B) pay cash dividends to the Parent and the other holders of partnership interests in the Borrower, and the Parent may so distribute such cash dividends to its shareholders, in the case of clause (A) or clause (B), so long as no Default or Event of Default exists or would result therefrom and so long as (ii) the Borrower shall have delivered to the Administrative Agent at least 3 Business Days prior to any redemption, purchase, repurchase or other acquisition that exceeds $100,000,000 in the aggregate from the date of the Compliance Certificate most recently delivered, a Compliance Certificate evidencing that the Parent shall and the Borrower will be in pro forma compliance with the other covenants set forth contained in this Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) immediately after giving pro forma effect thereto;
to such redemption, purchase, repurchase or other acquisition. Notwithstanding the foregoing, if an Event of Default exists, the Parent and the Borrower shall not, and shall not permit any of their Subsidiaries to, declare or make any Restricted Payments except that (ii) both (Ai) the Borrower may pay declare and make cash dividends distributions to the Parent and other holders of partnership interests Equity Interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, (A) make cash dividends to its shareholders or equity distributions in an aggregate amount not to exceed the greater of (x) the amount required to be distributed for the Parent to remain in compliance with Section 8.14. and (y) the minimum amount necessary for the Parent to avoid satisfy the requirements for qualification and taxation as a REIT and not be subject to income or excise tax taxation under Sections 857(b)(1), 857(b)(3), 860 or 4981 of the Internal Revenue Code; Code and (B) make additional distributions in common Equity Interests of the Parent in an amount under this clause (B) that, when combined with the distributions under clause (A) above, do not exceed 100% of the taxable income of the Parent determined in accordance with Section 857(b)(2) of the Internal Revenue Code and (ii) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary of the Borrower and the Borrower or any other Subsidiary of the Parent may pay Restricted Payments to the Parent. Notwithstanding the foregoing sentence, in the event that a Default or Event of Default under Sections 11.1.(a), (e) or (f) exists or would exist after giving effect to such Restricted Payment, or the Obligations have been accelerated in accordance with the terms of this Agreement, then the Parent shall not, nor shall it permit any Subsidiary to make any Restricted Payments to any Person other than that owns an Equity Interest in such Subsidiary, ratably according to their respective holdings of the Borrower or any Subsidiary that type of Equity Interest in respect of which such Restricted Payment is a Guarantor.being made.
Appears in 2 contracts
Samples: Term Loan Agreement (Sunstone Hotel Investors, Inc.), Credit Agreement (Sunstone Hotel Investors, Inc.)
Dividends and Other Restricted Payments. The Each of the Parent and the Borrower shall not, and shall not permit any of its Subsidiaries to, declare or make any Restricted Payment; provided, except that:
(i) however, that each of the Parent, the Borrower and its Subsidiaries may (A) declare and make payments on account of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement of the Borrower, or (B) pay cash dividends to the Parent and the other holders of partnership interests in the Borrower, and the Parent may so distribute such cash dividends to its shareholders, in the case of clause (A) or clause (B), following Restricted Payments so long as no Default or Event of Default exists is continuing or would result therefrom and so long as the Parent shall be in pro forma compliance with the other covenants set forth in this Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) immediately after giving effect thereto;therefrom:
(ii) both (Ai) the Borrower may pay cash dividends to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, cash dividends to its shareholders in an aggregate amount not to exceed the greater of (xi) the amount required to be distributed for the Parent to remain in compliance with Section 8.14. and 8.12 or (yii) 95% of Funds From Operation;
(ii) the amount Borrower may pay cash dividends to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute cash distributions to its shareholders of capital gains resulting from gains from certain asset sales to the extent necessary to avoid income or excise tax payment of taxes on such asset sales imposed under Sections 857(b)(3) and 4981 of the Internal Revenue Code; and ;
(Biii) a Subsidiary that is not a Wholly Owned Subsidiary may make cash distributions to holders of Equity Interests issued by such Subsidiary so long as such distributions are made ratably according to the holders’ respective holdings of the type of Equity Interest in respect of which such distributions are being made;
(iv) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary of the Borrower and Parent, the Borrower or any other Subsidiary Subsidiary; and
(v) to the extent consummated in advance of the Parent may pay or in connection with and made substantially concurrently with an IPO Event, Restricted Payments made pursuant to any tender offer for the Equity Interests of the Parent. Notwithstanding the foregoing foregoing, but subject to the following sentence, in the event that if a Default or Event of Default under Sections 11.1.(a)exists, (ethe Borrower may only declare and make cash distributions to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year to the extent necessary for the Parent to distribute, and the Parent may so distribute, an aggregate amount not to exceed the minimum amount necessary for the Parent to remain in compliance with Section 8.12. If a Default or Event of Default specified in Section 11.1(a) or (fSection 11.1(f) exists or would exist after giving effect to such Restricted Paymentshall exist, or if as a result of the occurrence of any other Event of Default any of the Obligations have been accelerated in accordance with the terms of this Agreementpursuant to Section 11.2(a), then the Parent and the Borrower shall not, nor shall it permit any Subsidiary to not make any Restricted Payments to any Person Payments. Subsidiaries of the Parent (other than the Borrower) may make Restricted Payments to the Borrower or and other Subsidiaries at any Subsidiary that is a Guarantortime.
Appears in 2 contracts
Samples: Credit Agreement (Tier Reit Inc), Credit Agreement (Tier Reit Inc)
Dividends and Other Restricted Payments. The Parent shall not, and shall not permit any of its Subsidiaries to, declare or make any Restricted Payment, except that:
(i) the Borrower may (A) make payments on account of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement of the Borrower, or (B) pay cash dividends to the Parent and the other holders of partnership interests in the Borrower, and the Parent may so distribute such cash dividends to its shareholders, in the case of clause (A) or clause (B), so long as no Default or Event of Default exists or would result therefrom and so long as the Parent shall be in pro forma compliance with the other covenants set forth in this Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) 10.1 immediately after giving effect thereto;
(ii) both (A) the Borrower may pay cash dividends to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, cash dividends to its shareholders in an aggregate amount not to exceed the greater of (x) the amount required to be distributed for the Parent to remain in compliance with Section 8.14. 8.14 and (y) the amount necessary for the Parent to avoid income or excise tax under the Internal Revenue Code; and (B) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary of the Borrower and the Borrower or any other Subsidiary of the Parent may pay Restricted Payments to the Parent. Notwithstanding the foregoing sentence, in the event that a Default or Event of Default under Sections 11.1.(a11.1(a), (e) or (f) exists or would exist after giving effect to such Restricted Payment, or the Obligations have been accelerated in accordance with the terms of this Agreement, then the Parent shall not, nor shall it permit any Subsidiary to make any Restricted Payments to any Person other than to the Borrower or any Subsidiary that is a Guarantor.
Appears in 2 contracts
Samples: Term Loan Agreement (NETSTREIT Corp.), Credit Agreement (NETSTREIT Corp.)
Dividends and Other Restricted Payments. The Parent and the Borrower shall not, and shall not permit any of its their Subsidiaries to, declare redeem, purchase, repurchase or make otherwise acquire any Restricted PaymentEquity Interests of the Parent, except that:
the Borrower or any of their Subsidiaries from any Person other than the Parent, the Borrower or a Subsidiary unless (i) the Borrower may (A) make payments on account of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement of the Borrower, or (B) pay cash dividends to the Parent and the other holders of partnership interests in the Borrower, and the Parent may so distribute such cash dividends to its shareholders, in the case of clause (A) or clause (B), so long as no Default or Event of Default exists or would result therefrom and so long as (ii) the Borrower shall have delivered to the Administrative Agent at least 3 Business Days prior to any redemption, purchase, repurchase or other acquisition that exceeds $50,000,000 in the aggregate a Compliance Certificate evidencing that the Parent shall and the Borrower will be in pro forma compliance with the other covenants set forth contained in this Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) immediately after giving pro forma effect thereto;
to such redemption, purchase, repurchase or other acquisition. Notwithstanding the foregoing, if an Event of Default exists, the Parent and the Borrower shall not, and shall not permit any of their Subsidiaries to, declare or make any Restricted Payments except that (ii) both (Ai) the Borrower may pay declare and make cash dividends distributions to the Parent and other holders of partnership interests Equity Interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, (A) make cash dividends to its shareholders or equity distributions in an aggregate amount not to exceed the greater of (x) the amount required to be distributed for the Parent to remain in compliance with Section 8.14. and (y) the minimum amount necessary for the Parent to avoid satisfy the requirements for qualification and taxation as a REIT and not be subject to income or excise tax taxation under Sections 857(b)(1), 857(b)(3), 860 or 4981 of the Internal Revenue Code; Code and (B) make additional distributions in common Equity Interests of the Parent in an amount under this clause (B) that, when combined with the distributions under clause (A) above, do not exceed 100% of the taxable income of the Parent determined in accordance with Section 857(b)(2) of the Internal Revenue Code and (ii) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary of the Borrower and the Borrower or any other Subsidiary of the Parent may pay Restricted Payments to the Parent. Notwithstanding the foregoing sentence, in the event that a Default or Event of Default under Sections 11.1.(a), (e) or (f) exists or would exist after giving effect to such Restricted Payment, or the Obligations have been accelerated in accordance with the terms of this Agreement, then the Parent shall not, nor shall it permit any Subsidiary to make any Restricted Payments to any Person other than that owns an Equity Interest in such Subsidiary, ratably according to their respective holdings of the Borrower or any Subsidiary that type of Equity Interest in respect of which such Restricted Payment is a Guarantor.being made. Notwithstanding the foregoing, during the Covenant Relief Period, the terms of this 10.1.(k) shall be subject to Section 10.11.(a).
Appears in 2 contracts
Samples: Credit Agreement (Sunstone Hotel Investors, Inc.), Credit Agreement (Sunstone Hotel Investors, Inc.)
Dividends and Other Restricted Payments. The Parent If a Default or an Event of Default under Section 11.1(a), 11.1(e) or 11.1(f) shall notexist or, if as a result of the occurrence of any other Event of Default any of the Obligations have been accelerated pursuant to Section 11.2(a), neither Borrower nor any Specified Loan Party nor any of their respective Subsidiaries, and shall not permit by its execution hereof the Parent Guarantor agrees that neither it nor any of its Subsidiaries to(other than, in the case of any of the foregoing, any Eligible Subsidiaries), shall directly or indirectly declare or make make, or incur any liability to make, any Restricted PaymentPayments. In all other circumstances except as described in the immediately preceding sentence, neither Borrower nor any Specified Loan Party nor any of their respective Subsidiaries, and by its execution hereof the Parent Guarantor agrees that neither it nor any of its Subsidiaries (other than, in the case of any of the foregoing, any Eligible Subsidiaries) shall declare or make, or incur any liability to make, any Restricted Payments, except that:
(iA) Any Subsidiary may make cash distributions to any Eligible Subsidiary or the Borrower may (A) make payments on account of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement of the Borrower, or (B) pay cash dividends to the Parent and the other holders of partnership interests in the Borrower, and the Parent may so distribute such cash dividends to its shareholders, in the case of clause (A) or clause (B), so long as no Default or Event of Default exists or would result therefrom and so long as the Parent shall be in pro forma compliance with the other covenants set forth in this Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) immediately after giving effect thereto;
(ii) both (A) the Borrower may pay cash dividends to the Parent Guarantor and other holders of partnership interests in the Borrower with respect to any period of four (4) fiscal year ending during the term of this Agreement quarters to the extent necessary for the Parent Guarantor to distribute, and the Parent Guarantor may so distribute, Preferred Dividends or cash dividends or distributions to holders of its shareholders Preferred Stock or common Equity Interests in an aggregate amount not to exceed the greater greatest of (xi) 90% of Funds From Operations, (ii) the amount required to be distributed for the Parent Guarantor to remain in compliance with Section 8.14. maintain its status as a REIT (including the right to distribute 100% of net capital gain) under Sections 856 through 860 of the Internal Revenue Code, and (yiii) the amount necessary for the Parent Guarantor to avoid income or excise tax under the Internal Revenue Code; and ;
(B) Subsidiaries may pay As long as (i) no Event of Default exists or would result therefrom and (ii) the Borrower is, and upon giving effect to any of the following Restricted Payments shall continue to be, in compliance with all covenants set forth in this Agreement (including those set forth in this Section 10.1) on a pro forma basis as of the date of the most recently delivered Compliance Certificate, the Parent Guarantor, the Borrower and any Subsidiary, each as applicable, may make cash payments:
(1) to redeem Equity Interests in the Borrower or any other Subsidiary of the Borrower and the Borrower or any other Subsidiary of the Parent may pay Restricted Payments to the Parent. Notwithstanding the foregoing sentence, in the event that a Default or Event of Default under Sections 11.1.(a), (e) or (f) exists or would exist after giving effect to such Restricted Payment, or the Obligations have been accelerated in accordance with the terms of this Agreementthe charter, then articles of incorporation or by-laws, operating agreement, partnership agreement or other organizational document of such entity;
(2) of Preferred Dividends as required to be paid to holders of Preferred Stock;
(3) to purchase Equity Interests from employees of the Parent shall notGuarantor, nor shall it permit any Subsidiary to make any Restricted Payments to any Person other than to the Borrower or any Subsidiary that is a in amounts required to satisfy their withholding tax obligations in respect of non-cash compensation received by such employees in respect of such employment;
(4) to purchase the interests of joint venture partners of the Borrower or its Subsidiaries;
(5) to the extent contractually required to be made to holders of minority interests in non-Wholly Owned Subsidiaries;
(6) to repurchase or redeem common Equity Interests or Preferred Stock;
(7) to otherwise make any Restricted Payment arising in the ordinary course of business; and
(8) to any Eligible Subsidiary or the Borrower or the Parent Guarantor, as applicable, in amounts sufficient to permit the recipient of such funds to make any of the payments permitted under the foregoing clauses of this Section 10.1(e)(B). Notwithstanding the foregoing, the aggregate amount paid for all purchases or redemptions of common shares or other equivalent common Equity Interests of the Parent Guarantor shall not exceed $200,000,000.
Appears in 2 contracts
Samples: Credit Agreement (Chesapeake Lodging Trust), Term Loan Agreement (Chesapeake Lodging Trust)
Dividends and Other Restricted Payments. The Parent shall not, and shall not permit the Borrower or any of its their Subsidiaries to, declare or make any Restricted Payment; provided, except that:
(i) however, that the Parent, the Borrower and their respective Subsidiaries may (A) declare and make payments on account of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement of the Borrower, or (B) pay cash dividends to the Parent and the other holders of partnership interests in the Borrower, and the Parent may so distribute such cash dividends to its shareholders, in the case of clause (A) or clause (B), following Restricted Payments so long as no Default or Event of Default exists or would result therefrom and so long as the Parent shall be in pro forma compliance with the other covenants set forth in this Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) immediately after giving effect thereto;therefrom:
(ii) both (Ai) the Borrower may pay cash dividends distributions to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, cash dividends distributions to its shareholders in an aggregate amount not to exceed the greater of (xi) the amount required to be distributed for the Parent to remain in compliance with Section 8.147.12. and or (yii) 90% of Funds From Operations;
(ii) the amount Borrower may pay cash distributions to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute cash distributions (including, without limitation, distributions constituting “capital gains dividends”) to its shareholders to the extent necessary to avoid income or excise tax payment of taxes under Section 857 (including, without limitation, Section 857(b)(3)) and Section 4981 of the Internal Revenue Code; and ;
(Biii) a Subsidiary that is not a Wholly Owned Subsidiary may make cash distributions to holders of Equity Interests issued by such Subsidiary;
(iv) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary of the Borrower and Subsidiary;
(v) the Borrower or any other Subsidiary of the Parent may pay Restricted Payments to make purchases of Equity Interests in any Subsidiary or Unconsolidated Affiliate of the Parent or of any of its Subsidiaries that are held by any other Person;
(vi) the Borrower may redeem for cash limited partnership interests in the Borrower; and
(vii) the Parent, the Borrower or any Subsidiary may redeem or repurchase its Preferred Stock, at par or at a discount. Notwithstanding the foregoing foregoing, but subject to the following sentence, in the event that if a Default or Event of Default under Sections 11.1.(aexists, the Borrower may only declare and make cash distributions to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year to the extent necessary for the Parent to distribute, and the Parent may so distribute, an aggregate amount not to exceed the minimum amount necessary for the Parent to remain in compliance with Section 7.12. If a Default or Event of Default specified in Section 10.1.(a), (eSection 10.1.(e) or (fSection 10.1.(f) exists or would exist after giving effect to such Restricted Paymentshall exist, or if as a result of the occurrence of any other Event of Default any of the Obligations have been accelerated in accordance with the terms of this Agreementpursuant to Section 10.2.(a), then the Parent shall not, nor and shall it not permit the Borrower or any Subsidiary to to, make any Restricted Payments to any Person other than to the Parent, the Borrower or any Subsidiary that Subsidiary.
(m) The Credit Agreement is a Guarantor.hereby further amended by restating Section 9.1.(h)(ii) in its entirety to read as follows:
Appears in 2 contracts
Samples: Term Loan Agreement (Parkway Properties Inc), Credit Agreement (Parkway Properties Inc)
Dividends and Other Restricted Payments. The Subject to the following sentence, if an Event of Default exists, the Parent and the Borrower shall not, and shall not permit any of its the other Subsidiaries to, declare or make any Restricted PaymentPayments, except that:
(i) that notwithstanding the Borrower may (A) make payments on account existence of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement of the Borrower, or (B) pay cash dividends to the Parent and the other holders of partnership interests in the Borrower, and the Parent may so distribute such cash dividends to its shareholders, in the case of clause (A) or clause (B), so long as no Default or an Event of Default exists or would result therefrom and so long as the Parent shall be in pro forma compliance with the other covenants set forth in this Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) immediately after giving effect thereto;
(ii) both (A) Default, the Borrower may pay cash dividends to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, cash dividends to its shareholders in an aggregate amount not to exceed the greater of (x) the amount required to be distributed for the Parent to remain in compliance with Section 8.14. maintain its status as a real estate investment trust and (y) the amount necessary for the Parent to avoid payment of any income or excise tax taxes imposed under Section 857(b)(1), 857(b)(3) or 4981 of the Internal Revenue Code; and . Subsidiaries (Bother than the Borrower) Subsidiaries may pay make Restricted Payments to the Borrower and other Subsidiaries at any time. For purposes of calculating compliance with the financial covenants set forth in this Section 9.1. and the other covenants contained in this Article IX., each of the following transactions, in each case not prohibited by the Loan Documents, that occurred during the period for which such financial covenant is to be calculated, shall be calculated on a pro forma basis assuming that each such transaction had occurred on the first day of such period (and taking into account (i) cost savings to the extent same would be permitted to be reflected in pro forma financial information complying with the requirements of GAAP and Article XI of Regulation S-X under the Securities Act and (ii) such other adjustments as may be reasonably approved by the Administrative Agent in writing, such approval not to be unreasonably withheld or delayed):
(a) the purchase or other acquisition of (i) property and assets or businesses of any Person or of assets constituting a business unit, a line of business or division of such Person, (ii) a Property or (iii) Equity Interests in a Person that, upon the consummation thereof, will be a Subsidiary of such Person (including as a result of a merger or consolidation); (b) the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction and any sale or issuance of Equity Interests in a Subsidiary) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any other Subsidiary rights and claims associated therewith; and (c) any incurrence (including by assumption or Guaranty) or repayment (including by redemption, repayment, retirement or extinguishment) of any Indebtedness. All pro forma calculations pursuant to this Section shall be made in good faith by the chief executive officer, chief financial officer or vice president-treasurer of the Borrower and the Borrower or any other Subsidiary of the Parent may pay Restricted Payments to the Parent. Notwithstanding the foregoing sentence, in the event that a Default or Event of Default under Sections 11.1.(a), (e) or (f) exists or would exist after giving effect to such Restricted Payment, or the Obligations have been accelerated in accordance with the terms of this Agreement, then the Parent shall not, nor shall it permit any Subsidiary to make any Restricted Payments to any Person other than to the Borrower or any Subsidiary that is a Guarantor.
Appears in 1 contract
Dividends and Other Restricted Payments. The Parent If a Default or an Event of Default under Section 11.1.(a), 11.1.(e) or 11.1.(f) shall notexist or, if as a result of the occurrence of any other Event of Default any of the Obligations have been accelerated pursuant to Section 11.2.(a), neither Borrower nor any Specified Loan Party nor any of their respective Subsidiaries, and shall not permit by its execution hereof the Parent Guarantor agrees that neither it nor any of its Subsidiaries to(other than, in the case of any of the foregoing, any Eligible Subsidiaries), shall directly or indirectly declare or make make, or incur any liability to make, any Restricted PaymentPayments. In all other circumstances except as described in the immediately preceding sentence, neither Borrower nor any Specified Loan Party nor any of their respective Subsidiaries, and by its execution hereof the Parent Guarantor agrees that neither it nor any of its Subsidiaries (other than, in the case of any of the foregoing, any Eligible Subsidiaries) shall declare or make, or incur any liability to make, any Restricted Payments, except that:
(i) the Borrower may (A) make payments on account of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement of the Borrower, or (B) pay cash dividends to the Parent and the other holders of partnership interests in the Borrower, and the Parent may so distribute such cash dividends to its shareholders, in the case of clause (A) or clause (B), so long as no Default or Event of Default exists or would result therefrom and so long as the Parent shall be in pro forma compliance with the other covenants set forth in this Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) immediately after giving effect thereto;
(ii) both (A) the The Borrower may pay cash dividends to the Parent Guarantor and other holders of partnership interests in the Borrower with respect to any period of four (4) fiscal year ending during the term of this Agreement quarters to the extent necessary for the Parent Guarantor to distribute, and the Parent Guarantor may so distribute, cash dividends or distributions to holders of its shareholders common Equity Interests in an aggregate amount not to exceed the greater greatest of (xi) 90% of Funds From Operations, (ii) the amount required to be distributed for the Parent Guarantor to remain in compliance with Section 8.14. maintain its status as a REIT (including the right to distribute 100% of net capital gain) under Sections 856 through 860 of the Internal Revenue Code, and (yiii) the amount necessary for the Parent Guarantor to avoid income or excise tax under the Internal Revenue Code; and ;
(B) Subsidiaries As long as no Event of Default exists or would result therefrom, the Parent Guarantor, the Borrower and any Subsidiary, each as applicable, may pay Restricted Payments make cash payments:
(1) to redeem Equity Interests in the Borrower or any other Subsidiary of the Borrower and the Borrower or any other Subsidiary of the Parent may pay Restricted Payments to the Parent. Notwithstanding the foregoing sentence, in the event that a Default or Event of Default under Sections 11.1.(a), (e) or (f) exists or would exist after giving effect to such Restricted Payment, or the Obligations have been accelerated in accordance with the terms of this Agreementthe charter, then articles of incorporation or by-laws, operating agreement, partnership agreement or other organizational document of such entity;
(2) of Preferred Dividends as required to be paid to holders of Preferred Stock;
(3) to purchase Equity Interests from employees of the Parent shall notGuarantor, nor shall it permit any Subsidiary to make any Restricted Payments to any Person other than to the Borrower or any Subsidiary in amounts required to satisfy their withholding tax obligations in respect of non-cash compensation received by such employees in respect of such employment;
(4) to purchase the interests of joint venture partners of the Borrower or its Subsidiaries;
(5) to the extent contractually required to be made to holders of minority interests in non-Wholly Owned Subsidiaries; and
(6) to the Borrower or the Parent Guarantor, as applicable, in amounts sufficient to permit the recipient of such funds to make any of the payments permitted under the foregoing clauses of this Section 10.1.(e)(B); and
(C) As long as no Event of Default or Default exists or would result therefrom (including, without limitation, that is Borrower and the Parent Guarantor are, and following such repurchase would be, in compliance with the covenants in Section 10.1.), the Parent Guarantor may repurchase from time to time not more than 3,000,000 of its common Equity Interests (in the aggregate for all such repurchases) for a purchase price of not more than $35,000,000 (in the aggregate for all such repurchases) and the Borrower may repurchase Equity Interests in the Borrower held by the Parent Guarantor, or make other cash payments or distributions, in amounts sufficient to permit the Parent Guarantor to effect such repurchases of its common Equity Interests.
Appears in 1 contract
Dividends and Other Restricted Payments. The Parent Borrower shall not, and shall not permit any of its Subsidiaries to, declare or make any Restricted Payment; provided, except that:
(i) however, that the Borrower and its Subsidiaries may (A) declare and make payments on account of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement of the Borrower, or (B) pay cash dividends to the Parent and the other holders of partnership interests in the Borrower, and the Parent may so distribute such cash dividends to its shareholders, in the case of clause (A) or clause (B), following Restricted Payments so long as no Default or Event of Default exists or would result therefrom and so long as the Parent shall be in pro forma compliance with the other covenants set forth in this Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) immediately after giving effect thereto;therefrom:
(ii) both (Ai) the Borrower may pay cash dividends make Restricted Payments to the Parent Xxxxxx REIT and other holders of partnership interests in Equity Interests of the Borrower with respect to during any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, cash dividends to its shareholders four (4) quarter period in an aggregate amount not to exceed the greater of (xA) ninety-five percent (95.0%) of the Borrower’s Funds From Operations, or (B) the amount required to be distributed to all of the holders of Equity Interests of the Borrower such that the amount distributed to Xxxxxx REIT is sufficient for the Parent Xxxxxx REIT to remain a REIT in compliance with Section 8.14. 8.12 and avoid the imposition of income taxes and excise taxes on Xxxxxx REIT;
(yii) the Borrower may make Restricted Payments to the holders of its Equity Interests such that the amount distributed to Xxxxxx REIT is sufficient to enable Xxxxxx REIT to make cash distributions to its shareholders of capital gains resulting from certain asset sales to the extent necessary for the Parent to avoid income or excise tax payment of taxes on such asset sales imposed under Sections 857(b)(3) and 4981 of the Internal Revenue Code; ;
(iii) the Borrower may make Restricted Payments to Xxxxxx REIT to permit Xxxxxx REIT to (A) pay corporate overhead expenses incurred in the ordinary course of business and (B) pay any taxes which are due and payable by Xxxxxx REIT, the Borrower or any Subsidiary;
(iv) the Borrower may redeem or repurchase Equity Interests of the Borrower (other than the Borrower Preferred Units) or make Restricted Payments to Xxxxxx REIT to enable Xxxxxx REIT to redeem or repurchase Equity Interests of Xxxxxx REIT so long as, in each case, immediately before and immediately after giving pro forma effect to any such Restricted Payment, 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;
(v) the Borrower may redeem or repurchase the Borrower Preferred Units in an aggregate amount not to exceed $12,500,000 during the term of this Agreement;
(vi) a Subsidiary that is not a Wholly Owned Subsidiary may make cash distributions to holders of Equity Interests issued by such Subsidiary; and
(vii) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary of the Borrower and the Borrower or any other Subsidiary of the Parent may pay Restricted Payments to the ParentSubsidiary. Notwithstanding the foregoing sentenceforegoing, in the event that if a Default or Event of Default under Sections 11.1.(aexists, the Borrower may only make Restricted Payments to Xxxxxx REIT and other holders of Equity Interests of the Borrower during any fiscal year, in each case, in an aggregate amount not to exceed the minimum amount required to be distributed to all of the holders of Equity Interests of the Borrower such that the amount distributed to Xxxxxx REIT is sufficient for Xxxxxx REIT to remain in compliance with Section 8.12. If a Default or Event of Default specified in Section 11.1(a), (eSection 11.1(e) or (fSection 11.1(f) exists or would exist after giving effect to such Restricted Paymentshall exist, or if as a result of the occurrence of any other Event of Default any of the Obligations have been accelerated in accordance with pursuant to Section 11.2(a), the terms of this Agreement, then the Parent Borrower shall not, nor and shall it not permit any Subsidiary to to, make any Restricted Payments to any Person other than to the Borrower or any Subsidiary that is a GuarantorSubsidiary.
Appears in 1 contract
Dividends and Other Restricted Payments. The Subject to the following sentence, if an Event of Default exists the Parent shall not, and shall not permit any of its Subsidiaries to, declare or make any Restricted Payment, except that:
Payments; provided that (i) the Borrower may (A) make payments on account of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement of the Borrower, or (B) pay cash dividends to the Parent SLGOP and the other Guarantor may declare and make cash distributions to holders of partnership interests in the Borrower, SLGOP and the Parent may so distribute such cash dividends to its shareholdersGuarantor, in the case of clause (A) or clause (B)respectively, so long as no Default or Event of Default exists or would result therefrom and so long as the Parent shall be in pro forma compliance with the other covenants set forth in this Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) immediately after giving effect thereto;
(ii) both (A) the Borrower may pay cash dividends to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, cash dividends to its shareholders in an aggregate amount not to exceed the greater of (x) the minimum amount required to be distributed necessary for the Parent to remain in compliance with Section 8.147.11. and (yii) Subsidiaries of a Borrower may make Restricted Payments to (A) such Borrower and to other holders of the amount Equity Interests in such Subsidiaries to the extent necessary for the Parent to avoid income make Restricted Payments to such Borrower or excise tax under the Internal Revenue Code; and (B) Subsidiaries may pay Restricted Payments to any of such Borrower’s Subsidiaries, and in the Borrower or any other case of a Subsidiary of the such Borrower and the Borrower or any that is not a Wholly Owned Subsidiary, to each other holder of Equity Interests of such Subsidiary of the Parent may pay Restricted Payments to the Parentbased on their relative ownership interests. Notwithstanding the foregoing sentence, in the event that If a Default or Event of Default under Sections 11.1.(aspecified in Section 10.1.(a), (eSection 10.1.(e) or (fSection 10.1.(f) exists or would exist after giving effect to such Restricted Paymentshall exist, or if as a result of the occurrence of any other Event of Default any of the Obligations have been accelerated in accordance with the terms of this Agreementpursuant to Section 10.2.(a), then the Parent no Borrower or other Loan Party shall, and no Borrower or other Loan Party shall not, nor shall it permit any Subsidiary to their respective Subsidiaries to, make any Restricted Payments to any Person other than to the a Borrower or other Loan Party or any of their respective Subsidiaries and, in the case of a Subsidiary of such Borrower or other Loan Party that is not a Wholly Owned Subsidiary (other than SLGOP and the Guarantor), to each other owner of Equity Interests of such Subsidiary based on their relative ownership interests.
Appears in 1 contract
Samples: Credit Agreement (Sl Green Operating Partnership, L.P.)
Dividends and Other Restricted Payments. The Subject to the following sentence, if an Event of Default exists, the Parent and the Borrower shall not, and shall not permit any of its the other Subsidiaries to, declare or make any Restricted PaymentPayments, except that:
(i) that notwithstanding the Borrower may (A) make payments on account existence of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement of the Borrower, or (B) pay cash dividends to the Parent and the other holders of partnership interests in the Borrower, and the Parent may so distribute such cash dividends to its shareholders, in the case of clause (A) or clause (B), so long as no Default or an Event of Default exists or would result therefrom and so long as the Parent shall be in pro forma compliance with the other covenants set forth in this Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) immediately after giving effect thereto;
(ii) both (A) Default, the Borrower may pay cash dividends to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, cash dividends to its shareholders in an aggregate amount not to exceed the greater of (x) the amount required to be distributed for the Parent to remain in compliance with Section 8.14. maintain its status as a real estate investment trust and (y) the amount necessary for the Parent to avoid payment of any income or excise tax taxes imposed under Section 857(b)(1), 857(b)(3) or 4981 of the Internal Revenue Code; and . Subsidiaries (Bother than the Borrower) Subsidiaries may pay make Restricted Payments to the Borrower and other Subsidiaries at any time. For purposes of calculating compliance with the financial covenants set forth in this Section 9.1. and the other covenants contained in this Article IX., each of the following transactions, in each case not prohibited by the Loan Documents, that occurred during the period for which such financial covenant is to be calculated, shall be calculated on a pro forma basis assuming that each such transaction had occurred on the first day of such period (and taking into account (i) cost savings to the extent same would be permitted to be reflected in pro forma financial information complying with the requirements of GAAP and Article XI of Regulation S-X under the Securities Act and (ii) such other adjustments as may be reasonably approved by the Administrative Agent in writing, such approval not to be unreasonably withheld or delayed):
(a) the purchase or other acquisition of (i) property and assets or businesses of any Person or of assets constituting a business unit, a line of business or division of such Person, (ii) a Property or (iii) Equity Interests in a Person that, upon the consummation thereof, will be a Subsidiary of such Person (including as a result of a merger or consolidation); (b) the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction and any sale or issuance of Equity Interests in a Subsidiary) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any other Subsidiary rights and claims associated therewith; and (c) any incurrence (including by assumption or Guaranty) or repayment (including by redemption, repayment, retirement or extinguishment) of any Indebtedness. All pro forma calculations pursuant to this Section shall be made in good faith by the Borrower and the Borrower chief executive officer, chief financial officer or any other Subsidiary vice president-treasurer of the Parent may pay Restricted Payments to the Parent. Notwithstanding the foregoing sentence, in the event that a Default or Event of Default under Sections 11.1.(a), (e) or (f) exists or would exist after giving effect to such Restricted Payment, or the Obligations have been accelerated in accordance with the terms of this Agreement, then the Parent shall not, nor shall it permit any Subsidiary to make any Restricted Payments to any Person other than to the Borrower or any Subsidiary that is a Guarantor.- 90 - LEGAL02\42427047.v4
Appears in 1 contract
Dividends and Other Restricted Payments. The Parent shall not, and shall not permit the Borrower or any of its their Subsidiaries to, declare or make any Restricted Payment; provided, except that:
(i) however, that the Parent, the Borrower and their respective Subsidiaries may (A) declare and make payments on account of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement of the Borrower, or (B) pay cash dividends to the Parent and the other holders of partnership interests in the Borrower, and the Parent may so distribute such cash dividends to its shareholders, in the case of clause (A) or clause (B), following Restricted Payments so long as no Default or Event of Default exists or would result therefrom and so long as the Parent shall be in pro forma compliance with the other covenants set forth in this Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) immediately after giving effect thereto;therefrom:
(ii) both (Ai) the Borrower may pay cash dividends distributions to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, cash dividends distributions to its shareholders in an aggregate amount not to exceed the greater of (xi) the amount required to be distributed for the Parent to remain in compliance with Section 8.147.12. and or (yii) 90% of Funds From Operations;
(ii) the amount Borrower may pay cash distributions to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute cash distributions (including, without limitation, distributions constituting “capital gains dividends”) to its shareholders to the extent necessary to avoid income or excise tax payment of taxes under Section 857 (including, without limitation, Section 857(b)(3)) and Section 4981 of the Internal Revenue Code; and ;
(Biii) a Subsidiary that is not a Wholly Owned Subsidiary may make cash distributions to holders of Equity Interests issued by such Subsidiary;
(iv) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary of the Borrower and Subsidiary;
(v) the Borrower or any other Subsidiary of the Parent may pay Restricted Payments to make purchases of Equity Interests in any Subsidiary or Unconsolidated Affiliate of the Parent or of any of its Subsidiaries that are held by any other Person;
(vi) the Borrower may redeem for cash limited partnership interests in the Borrower; and
(vii) the Parent, the Borrower or any Subsidiary may redeem or repurchase its Preferred Stock, at par or at a discount. Notwithstanding the foregoing foregoing, but subject to the following sentence, in the event that if a Default or Event of Default under Sections 11.1.(aexists, the Borrower may only declare and make cash distributions to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year to the extent necessary for the Parent to distribute, and the Parent may so distribute, an aggregate amount not to exceed the minimum amount necessary for the Parent to remain in compliance with Section 7.12. If a Default or Event of Default specified in Section 10.1.(a), (eSection 10.1.(e) or (fSection 10.1.(f) exists or would exist after giving effect to such Restricted Paymentshall exist, or if as a result of the occurrence of any other Event of Default any of the Obligations have been accelerated in accordance with the terms of this Agreementpursuant to Section 10.2.(a), then the Parent shall not, nor and shall it not permit the Borrower or any Subsidiary to to, make any Restricted Payments to any Person other than to the Parent, the Borrower or any Subsidiary that is a GuarantorSubsidiary.
Appears in 1 contract
Dividends and Other Restricted Payments. The Parent and the Borrower shall not, and shall not permit any of its their Subsidiaries to, declare or make any Restricted Payment; provided, except that:
(i) however, that the Parent, the Borrower and their Subsidiaries may (A) declare and make payments on account of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement of the Borrower, or (B) pay cash dividends to the Parent and the other holders of partnership interests in the Borrower, and the Parent may so distribute such cash dividends to its shareholders, in the case of clause (A) or clause (B), following Restricted Payments so long as no Default or Event of Default exists or would result therefrom and so long as the Parent shall be in pro forma compliance with the other covenants set forth in this Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) immediately after giving effect thereto;
(ii) both (A) therefrom: the Borrower may pay cash dividends to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, cash dividends to its shareholders in an aggregate amount not to exceed the greater of (xi) the amount required to be distributed for the Parent to remain in compliance with Section 8.148.12. and or (yii) the amount necessary for the Parent to avoid income or excise tax under the Internal Revenue Code; and ninety-five percent (B95%) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary of the Borrower and the Borrower or any other Subsidiary of the Parent may pay Restricted Payments to the ParentFunds From Operations. Notwithstanding the foregoing foregoing, but subject to the following sentence, in the event that if a Default or Event of Default under Sections exists, the Parent may only cause the Borrower (directly or indirectly through any intermediate Subsidiaries) to make cash distributions to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, cash dividends to its shareholders in an aggregate amount required to be distributed for the Parent to remain in compliance with Section 8.12. Notwithstanding the foregoing, if a Default or Event of Default specified in Section 11.1.(a)) resulting from the Borrower’s failure to pay when due the principal of, (eor interest on, any of the Loans or any Fees, Section 11.1.(e) or (f) exists or would exist after giving effect to such Restricted Paymentshall have occurred and be continuing, or if as a result of the occurrence of any other Event of Default the Obligations have been accelerated in accordance with the terms of this Agreementpursuant to Section 11.2.(a), then the Parent and the Borrower shall not, nor and shall it not permit any other Subsidiary to to, make any Restricted Payments to any Person whatsoever. Subsidiaries other than the Borrower may make Restricted Payments to the Borrower or and the other Subsidiaries at any Subsidiary that is a Guarantortime.
Appears in 1 contract
Samples: Term Loan Agreement (CBL & Associates Properties Inc)
Dividends and Other Restricted Payments. The If a Default or Event of Default exists, the Borrower shall not declare or make any Restricted Payments except as may be necessary to remain in compliance with Section 7.13 hereof or consistent with (ii) of the next sentence hereof. If a Default or Event of Default exists, the Borrower shall not permit any of the Subsidiary Guarantors to, declare or make any Restricted Payments except that the Subsidiary Guarantors may declare and make the following Restricted Payments:
(i) except where the Principal Shareholders have elected to have Parent Guarantor discontinue its status as a REIT, the Borrower may make cash distributions to its partners in an amount required to be distributed for Parent Guarantor to remain in compliance with Section 7.13. and to avoid incurring any corporate level income taxes and any excise taxes under Sections 857(b) and 4981 of the Internal Revenue Code; and
(ii) in the event that the Principal Shareholders have elected to have Parent Guarantor discontinue its status as a REIT and Parent Guarantor is entity taxed as a corporation, the Borrower may declare and make cash distributions to partners of the Borrower which will be sufficient for the partners to pay all income tax liabilities (including payments of estimated tax in respect thereof) under federal and applicable state and local laws imposed on the partner’s allocable shares of the Borrower’s taxable income. If a Default or Event of Default specified in Section 10.1.(a), Section 10.1.(f) or Section 10.1.(g) shall exist or if an Event of Default specified in Section 10.1(b) as to Section 9.1 shall exist, or if as a result of the occurrence of any other Event of Default any of the Obligations have been accelerated pursuant to Section 10.2.(a), the Borrower shall not, and shall not permit any of its Subsidiaries Subsidiary to, declare or make any Restricted Payment, except that:
(i) the Borrower may (A) make payments on account of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement of the Borrower, or (B) pay cash dividends to the Parent and the other holders of partnership interests in the Borrower, and the Parent may so distribute such cash dividends to its shareholders, in the case of clause (A) or clause (B), so long as no Default or Event of Default exists or would result therefrom and so long as the Parent shall be in pro forma compliance with the other covenants set forth in this Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) immediately after giving effect thereto;
(ii) both (A) the Borrower may pay cash dividends to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, cash dividends to its shareholders in an aggregate amount not to exceed the greater of (x) the amount required to be distributed for the Parent to remain in compliance with Section 8.14. and (y) the amount necessary for the Parent to avoid income or excise tax under the Internal Revenue Code; and (B) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary of the Borrower and the Borrower or any other Subsidiary of the Parent may pay Restricted Payments to the Parent. Notwithstanding the foregoing sentence, in the event that a Default or Event of Default under Sections 11.1.(a), (e) or (f) exists or would exist after giving effect to such Restricted Payment, or the Obligations have been accelerated in accordance with the terms of this Agreement, then the Parent shall not, nor shall it permit any Subsidiary to make any Restricted Payments to any Person other than to the Borrower or any Subsidiary that is a Guarantorwithout the prior written consent of the Administrative Agent.
Appears in 1 contract
Dividends and Other Restricted Payments. The Parent shall not, and shall not permit any of its Subsidiaries to, declare or make any Restricted Payment, except that:
(i) the Borrower may (A) make payments on account of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement of the Borrower, or (B) pay cash dividends to the Parent and the other holders of partnership interests in the Borrower, and the Parent may so distribute such cash dividends to its shareholders, in the case of clause (A) or clause (B), so long as no Default or Event of Default exists or would result therefrom and so long as the Parent shall be in pro forma compliance with the other covenants set forth in this Section 10.1. 10.1 for the periods for which financial statements have been delivered (or were required to be delivered) immediately after giving effect thereto;
(ii) both (A) the Borrower may pay cash dividends to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, cash dividends to its shareholders in an aggregate amount not to exceed the greater of (x) the amount required to be distributed for the Parent to remain in compliance with Section 8.14. 8.14 and (y) the amount necessary for the Parent to avoid income or excise tax under the Internal Revenue Code; and (B) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary of the Borrower and the Borrower or any other Subsidiary of the Parent may pay Restricted Payments to the Parent. Notwithstanding the foregoing sentence, in the event that a Default or Event of Default under Sections 11.1.(a11.1(a), (e) or (f) exists or would exist after giving effect to such Restricted Payment, or the Obligations have been accelerated in accordance with the terms of this Agreement, then the Parent shall not, nor shall it permit any Subsidiary to make any Restricted Payments to any Person other than to the Borrower or any Subsidiary that is a Guarantor.
Appears in 1 contract
Samples: Credit Agreement (NETSTREIT Corp.)
Dividends and Other Restricted Payments. The Parent shall not, and shall not permit the Borrower or any of their Subsidiaries (other than Parkway Properties Office Fund I, L.P., Parkway Properties Office Fund II, L.P. and any other Consolidated Affiliate (provided that the Administrative Agent has given its Subsidiaries prior written consent to such Consolidated Affiliate being excluded from the restrictions of this subsection (g))) to, declare or make any Restricted Payment; provided, except that:
(i) however, that the Parent, the Borrower and their respective Subsidiaries may (A) declare and make payments on account of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement of the Borrower, or (B) pay cash dividends to the Parent and the other holders of partnership interests in the Borrower, and the Parent may so distribute such cash dividends to its shareholders, in the case of clause (A) or clause (B), following Restricted Payments so long as no Default or Event of Default exists or would result therefrom and so long as the Parent shall be in pro forma compliance with the other covenants set forth in this Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) immediately after giving effect thereto;therefrom:
(ii) both (Ai) the Borrower may pay cash dividends to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, cash dividends to its shareholders in an aggregate amount not to exceed the greater of (xi) the amount required to be distributed for the Parent to remain in compliance with Section 8.147.12. and or (yii) 90% of Funds From Operations;
(ii) the amount Borrower may pay cash dividends to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute cash distributions to its shareholders of capital gains resulting from gains from certain asset sales to the extent necessary to avoid income or excise tax payment of taxes on such asset sales imposed under Sections 857(b)(3) and 4981 of the Internal Revenue Code;
(iii) a Subsidiary that is not a Wholly Owned Subsidiary may make cash distributions to holders of Equity Interests issued by such Subsidiary; and and
(Biv) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary of the Borrower and the Borrower or any other Subsidiary of the Parent may pay Restricted Payments to the ParentSubsidiary. Notwithstanding the foregoing foregoing, but subject to the following sentence, in the event that if a Default or Event of Default under Sections 11.1.(aexists, the Borrower may only declare and make cash distributions to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year to the extent necessary for the Parent to distribute, and the Parent may so distribute, an aggregate amount not to exceed the minimum amount necessary for the Parent to remain in compliance with Section 7.12. If a Default or Event of Default specified in Section 10.1.(a), (eSection 10.1.(b), Section 10.1.(e) or (fSection 10.1.(f) exists or would exist after giving effect to such Restricted Paymentshall exist, or if as a result of the occurrence of any other Event of Default any of the Obligations have been accelerated in accordance with the terms of this Agreementpursuant to Section 10.2.(a), then the Parent shall not, nor and shall it not permit the Borrower or any Subsidiary to to, make any Restricted Payments to any Person other than to the Parent, the Borrower or any Subsidiary that is a GuarantorSubsidiary.
Appears in 1 contract
Dividends and Other Restricted Payments. The Parent and the Borrower shall not, and shall not permit any of its their Subsidiaries to, declare or make any Restricted Payment, except that:
(i) the Borrower may (A) make payments on account of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement of the Borrower, or (B) pay cash dividends to the Parent and the other holders of partnership interests in the Borrower, and the Parent may so distribute such cash dividends to its shareholders, in the case of clause (A) or clause (B), Payment so long as no any Default or Event of Default exists or would result therefrom and so long as therefrom. Notwithstanding the foregoing, unless a Default or Event of Default specified in Section 11.1(a) resulting from the Borrower’s failure to pay when due the principal of, or interest on, any of the Loans or any Fees or Section 11.1(e) or (f), in each case, solely with respect to the Parent or the Borrower, shall have occurred and be in pro forma compliance with continuing, or if as a result of the occurrence of any other covenants set forth in this Section 10.1. for Event of Default the periods for which financial statements Obligations have been delivered (or were required accelerated pursuant to be delivered) immediately after giving effect thereto;
(ii) both (A) Section 11.2(a), the Borrower and its Subsidiaries and any other Subsidiary of the Parent may pay cash dividends and distributions to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, cash dividends and distributions to its shareholders in an aggregate amount not to exceed the greater of (x) the amount required to be distributed for the Parent to (x) remain in compliance with Section 8.14. 8.12 and (y) avoid the amount necessary for the Parent to avoid payment of U.S. federal or state income or excise tax under tax. Subsidiaries other than the Internal Revenue Code; and (B) Subsidiaries may pay Borrower may, at any time, make Restricted Payments (x) to the Borrower or any other Subsidiary of the Borrower and the Borrower other Subsidiaries that are Guarantors or any other Subsidiary of the Parent may pay (y) to Subsidiaries that are not Guarantors, so long as such Restricted Payments to the Parent. Notwithstanding the foregoing sentenceare substantially concurrently distributed, in the event that a Default directly or Event of Default under Sections 11.1.(a)indirectly, (e) or (f) exists or would exist after giving effect to such Restricted Payment, or the Obligations have been accelerated in accordance with the terms of this Agreement, then the Parent shall not, nor shall it permit any Subsidiary to make any Restricted Payments to any Person other than to the Borrower or any Subsidiary that is a Guarantor.
Appears in 1 contract
Samples: Credit Agreement (American Realty Capital Properties, Inc.)
Dividends and Other Restricted Payments. The Parent shall not, and shall not permit any of its Subsidiaries to, declare or make any Restricted Payment, except that:
(i) the Borrower may (A) make payments on account of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement of the Borrower, or (B) pay cash dividends to the Parent and the other holders of partnership interests in the Borrower, and the Parent may so distribute such cash dividends to its shareholders, in the case of clause (A) or clause (B), so long as no Default or Event of Default exists or would result therefrom and so long as the Parent shall be in pro forma compliance with the other covenants set forth in this Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) immediately after giving effect thereto;
(ii) both (A) the Borrower may pay cash dividends to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, cash dividends to its shareholders in an aggregate amount not to exceed the greater of (x) the amount required to be distributed for the Parent to remain in compliance with Section 8.14. and (y) the amount necessary for the Parent to avoid income or excise tax under the Internal Revenue Code; and (B) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary of the Borrower and the Borrower or any other Subsidiary of the Parent may pay Restricted Payments to the Parent. Notwithstanding the foregoing sentence, in the event that a Default or Event of Default under Sections 11.1.(a), (e) or (f) exists or would exist after giving effect to such Restricted Payment, or the Obligations have been accelerated in accordance with the terms of this Agreement, then the Parent Company shall not, nor shall it permit any Subsidiary to, (i) declare or pay any dividends on or make any other distributions in respect of any class or series of its capital stock or any other equity interest (other than dividends payable solely in its capital stock) or (ii) directly or indirectly purchase, redeem or otherwise acquire or retire any of its capital stock or any other equity interest or (iii) prepay any Indebtedness (other than the prepayment of the Loans and L/C Obligations in accordance with Section 5.4 hereof and the effecting of any redemption of such Loans) (such non-excepted dividends, distributions, purchases, redemptions, acquisitions, prepayments and retirements being hereinafter collectively called "Restricted Payments"); provided, however, that the foregoing shall not apply to or operate to prevent (v) any repayment of amounts borrowed on any revolving credit facility, (w) any prepayment of the industrial revenue bonds relating to the Company's real property in Addison, Illinois or in Hagerstown, Maryland, or any prepayment of a portion of the Indebtedness described in Section 11.1(m) hereof not exceeding $2,000,000 in aggregate principal amount in connection with the sale by the Company to one of its Subsidiaries of certain equipment financed by such Indebtedness, so long as, with respect to any prepayment described in this clause (w), no Default or Event of Default shall occur or be continuing at the time of such prepayment and after giving effect thereto, (x) the making of dividends or distributions by any Subsidiary to the Company or any other Subsidiary (provided that Domestic Subsidiaries may not make dividends or distributions to Foreign Subsidiaries or to Domestic Subsidiaries which are not Guarantors), (y) any Restricted Payments made in any fiscal year of the Company in the form of treasury stock repurchases by the Company to acquire its capital stock to the extent necessary to cover equity compensation, retirement plans and incentive plans for employees and directors, if and to the extent that at the time each such Restricted Payment described in this clause (y) is made and after giving effect thereto, no Default or Event of Default shall occur or be continuing, and (z) payments required to be made pursuant to the terms of the Tax Allocation Agreement dated June 1, 1978, as amended, among Lane Industries, Inc. and certain of its Subsidiaries (including the Company) and the State Tax Allocation Agreement dated May 31, 1985 among Lane Industries, Inc. and certain of its Subsidiaries (including the Company), and provided further that once the Company has demonstrated by the delivery of Compliance Certificates hereunder that its Total Leverage Ratio was less than 3.0 to 1.0 as of the end of each of the two most recent fiscal quarters then ended, none of the foregoing restrictions set forth in this Section 12.18 shall continue to apply for the remaining term of this Agreement so long as, at the time of the making of and after giving effect to any Person other than to the Borrower Restricted Payment, no Default or any Subsidiary that is a GuarantorEvent of Default shall occur or be continuing.
Appears in 1 contract
Samples: Multicurrency Credit Agreement (General Binding Corp)
Dividends and Other Restricted Payments. The Parent shall notMake, and shall not permit any of its Subsidiaries topay, declare or make authorize any Restricted Paymentdividend, except that:
payment or other distribution in respect of any class of its membership interests or any dividend, payment or distribution in connection with the redemption, purchase, retirement or other acquisition, directly or indirectly, of its membership interests, other than such dividends, payments or other distributions to the extent payable solely in membership interests of such Borrower, or amend or modify the Consulting Services Agreement to increase the amount payable thereunder, provided, however, that (i) the such Borrower may make, pay, declare or authorize distributions to Holdings in any quarter ending after the Effective Date in an aggregate amount not greater than the amount necessary (Awhen combined with amounts paid by each other Borrower and each other Subsidiary of Holdings, if any) for Holdings to make payments on account of redemption the distributions to its members required or repurchase of partnership interests in the Borrower in accordance with the partnership agreement permitted pursuant to Section 6.4 of the BorrowerAmended and Restated Limited Liability Company Agreement dated September 30, or 2002 among Holdings, AAC Holding Corp., Consumer Credit Corp. and AAC Investors, Inc., as in effect on the date hereof, (Bii) pay cash dividends to the Parent and the other holders of partnership interests in the Borrower, and the Parent may so distribute such cash dividends to its shareholders, in the case of clause (A) or clause (B), so long as if no Default or Event of Default exists shall exist or would result therefrom shall have occurred and so long as the Parent shall be in pro forma compliance with the other covenants set forth in this Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) immediately after giving effect thereto;
(ii) both (A) the Borrower may pay cash dividends to the Parent continuing and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, cash dividends to its shareholders in an aggregate amount not to exceed the greater of (x) the amount required to be distributed for the Parent to remain in compliance with Section 8.14. and (y) the amount necessary for the Parent to avoid income or excise tax under the Internal Revenue Code; and (B) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary of the Borrower and the Borrower or any other Subsidiary of the Parent may pay Restricted Payments to the Parent. Notwithstanding the foregoing sentence, in the event that a no Default or Event of Default under Sections 11.1.(a), (e) or (f) exists or would exist after giving effect to such Restricted Payment, or the Obligations have been accelerated in accordance with the terms any other provision of this AgreementAgreement would result therefrom, then each Borrower may make, pay, declare or authorize distributions to Holdings in any quarter ending after the Parent shall not, nor shall it Effective Date in an aggregate amount not greater than the amount to permit any Subsidiary Holdings to make any Restricted Payments payments to any Person other than to the employees or former employees of such Borrower or any Subsidiary of its Subsidiaries in respect of share repurchases or payments in respect of share appreciation rights following the termination of their employment, provided that is a Guarantorthe aggregate amount distributed by all of the Borrowers in any fiscal year for such payments does not exceed $500,000, together with any unused amount from prior fiscal years and net cash proceeds received by Holdings in such fiscal year from the sale or issuance of Holdings membership interests to employees of the Borrowers or their Subsidiaries, and (iii) if no Default or Event of Default shall exist or shall have occurred and be continuing and no Default or Event of Default under any other provision of this Agreement would result therefrom, other dividends, payments and other distributions that in the aggregate do not exceed $500,000 for all of the Borrowers during any fiscal year of the Borrowers, and provided, further, that Asset Acceptance may distribute up to $800,000 to Holdings on the Effective Date to fund the repayment of the Note Payable on Demand of $550,000 to AAC Holding Corp. and the Note Payable on Demand of $250,000 to Consumer Credit Corp. For purposes of this Section 5.2(l), "membership interests" shall include membership interests and any securities exchangeable for or convertible into membership interests and any warrants, rights or other options to purchase or otherwise acquire membership interests or such securities, together with appreciation rights or other contractual obligations linked to the value of such membership interests.
Appears in 1 contract
Dividends and Other Restricted Payments. The Parent shall Constituent Companies will not, and shall will not permit any Subsidiary to, redeem, purchase, repurchase or otherwise acquire any Equity Interests of either Constituent Company or any of its Subsidiaries to, declare from any Person other than a Constituent Company or make any Restricted Payment, except that:
a Subsidiary unless (ia) the Borrower may (A) make payments on account of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement of the Borrower, or (B) pay cash dividends to the Parent and the other holders of partnership interests in the Borrower, and the Parent may so distribute such cash dividends to its shareholders, in the case of clause (A) or clause (B), so long as no Default or Event of Default exists or would result therefrom and so long as (b) the Parent Guarantor shall have delivered to the holders of the Notes at least three Business Days prior to any redemption, purchase, repurchase or other acquisition that exceeds $50,000,000 in the aggregate an Officer’s Certificate evidencing that the Parent Guarantor will be in pro forma compliance with the other covenants set forth in this Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) immediately Specified Financial Covenants after giving pro forma effect thereto;
to such redemption, purchase, repurchase or other acquisition. Notwithstanding the foregoing, if an Event of Default exists, the Constituent Companies will not, and will not permit any Subsidiary to, declare or make any Restricted Payments except that (ii) both (A1) the Borrower Issuer may pay declare and make cash dividends distributions to the Parent Guarantor and other holders of partnership interests Equity Interests in the Borrower Issuer with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent Guarantor to distribute, and the Parent Guarantor may so distribute, (i) make cash dividends to its shareholders or equity distributions in an aggregate amount not to exceed the greater of (x) the amount required to be distributed for the Parent to remain in compliance with Section 8.14. and (y) the minimum amount necessary for the Parent Guarantor to avoid satisfy the requirements for qualification and taxation as a REIT and not be subject to income or excise tax taxation under sections 857(b)(1), 857(b)(3), 860 or 4981 of the Internal Revenue Code; Code and (Bii) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary of the Borrower and the Borrower or any other Subsidiary make additional distributions in common Equity Interests of the Parent may pay Restricted Payments to Guarantor in an amount under this clause (ii) that, when combined with the Parent. Notwithstanding distributions under clause (i) above, do not exceed 100% of the foregoing sentence, in taxable income of the event that a Default or Event of Default under Sections 11.1.(a), (e) or (f) exists or would exist after giving effect to such Restricted Payment, or the Obligations have been accelerated Parent Guarantor determined in accordance with section 857(b)(2) of the terms Code and (2) Subsidiaries of this Agreement, then the Parent shall not, nor shall it permit any Subsidiary to Issuer may make any Restricted Payments to any Person other than that owns an Equity Interest in such Subsidiary, ratably according to their respective holdings of the Borrower or any Subsidiary that type of Equity Interest in respect of which such Restricted Payment is a Guarantorbeing made. Notwithstanding the foregoing, during the Covenant Relief Period, the terms of this clause (h) shall be subject to Section 10.10(a).
Appears in 1 contract
Samples: Note and Guarantee Agreement (Sunstone Hotel Investors, Inc.)
Dividends and Other Restricted Payments. The Parent shall Borrower will not, and shall will not permit any of its Subsidiaries to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, except thatexcept:
(ia) the Borrower or any of its Subsidiaries may declare and pay or make Capital Distributions that are payable solely in additional shares of its common stock (or warrants, options or other rights to acquire additional shares of its common stock);
(b) any Subsidiary may declare and pay or make Capital Distributions to the Borrower or any Subsidiary Guarantor;
(c) the Borrower may declare any pay or make Capital Distributions, provided that (i) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (ii) the Borrower is in compliance with the financial covenants set forth in Section 9.7 hereof after giving pro forma effect to each such Capital Distribution, and (iii) the aggregate amount of all Capital Distributions made by the Borrower pursuant to this clause shall not exceed (A) make payments on account during any fiscal year of redemption or repurchase of partnership interests in the Borrower in accordance with an amount equal to 50% of the partnership agreement Consolidated Net Income for the most recently completed fiscal year of the Borrower, or to the extent positive and (B) pay cash dividends $10,000,000 in the aggregate on and after the Closing Date;
(d) the Borrower may make Share Repurchases, provided that (i) prior to or contemporaneously with any such Share Repurchase, the Borrower shall provide written evidence to the Parent Administrative Agent and the Lenders of compliance on a pro forma basis with the covenants contained in Section 9.7, (ii) no Default or Event of Default shall have occurred and be continuing or shall result therefrom and (iii) the aggregate amount of all such Share Repurchases made on or after the Closing Date shall not exceed $12,505,950; and
(e) the Borrower and its Subsidiaries may make prepayments of the Prepaid Subordinated Indebtedness provided that at the time any such prepayment is made, (i) such prepayment, when added together with all other holders prepayments of partnership interests in Prepaid Subordinated Indebtedness, will not exceed the BorrowerPermitted Prepayment Amount, and the Parent may so distribute such cash dividends to its shareholders, in the case of clause (Aii) or clause (B), so long as no Default or Event of Default exists or would result therefrom and so long as the Parent shall be in pro forma compliance with the other covenants set forth in this Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) will occur immediately after giving effect thereto;
(ii) both (A) the Borrower may pay cash dividends to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, cash dividends to its shareholders in an aggregate amount not to exceed the greater of (x) the amount required to be distributed for the Parent to remain in compliance with Section 8.14. and (y) the amount necessary for the Parent to avoid income or excise tax under the Internal Revenue Code; and (B) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary of the Borrower and the Borrower or any other Subsidiary of the Parent may pay Restricted Payments to the Parent. Notwithstanding the foregoing sentence, in the event that a Default or Event of Default under Sections 11.1.(a), (e) or (f) exists or would exist after giving effect to such Restricted Payment, or the Obligations have been accelerated in accordance with the terms of this Agreement, then the Parent shall not, nor shall it permit any Subsidiary to make any Restricted Payments to any Person other than to the Borrower or any Subsidiary that is a Guarantorthereafter.
Appears in 1 contract
Dividends and Other Restricted Payments. The Parent and the Borrower shall not, and shall not permit any of its the other Subsidiaries to, declare or make any Restricted Payment; provided, except that:
(i) however, that the Parent, the Borrower may (A) make payments on account of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement of the Borrower, or (B) pay cash dividends to the Parent and the other holders of partnership interests in Subsidiaries may declare and make the Borrower, and the Parent may so distribute such cash dividends to its shareholders, in the case of clause (A) or clause (B), following Restricted Payments so long as no Default or Event of Default exists or would result therefrom therefrom:
(i) for the period beginning on the Effective Date and so long as ending on September 30, 2010, the Borrower may pay cash dividends to the Parent shall be and other holders of partnership interests in pro forma compliance with the other covenants set forth in this Section 10.1. Borrower for the periods for which financial statements have been delivered (or were required Parent to be delivered) immediately after giving effect theretodistribute, and the Parent may so distribute, cash dividends to its shareholders;
(ii) both for the period beginning on October 1, 2010 and ending on June 30, 2011, the Borrower may pay cash dividends to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal quarter ending during such period to the extent necessary for the Parent to distribute, and the Parent may so distribute, cash dividends to its shareholders in an aggregate amount not to exceed the greater of (Ai) the amount required to be distributed for the Parent to remain in compliance with Section 8.12. or (ii) 110.0% of Funds From Operations;
(iii) beginning on July 1, 2011 and at all times thereafter, the Borrower may pay cash dividends to the Parent and other holders of partnership interests in the Borrower with respect to any period of four consecutive fiscal quarters to the extent necessary for the Parent to distribute, and the Parent may so distribute, cash dividends to its shareholders in an aggregate amount not to exceed the greater of (i) the amount required to be distributed for the Parent to remain in compliance with Section 8.12. or (ii) 95.0% of Funds From Operations;
(iv) the Borrower may pay cash dividends to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, distribute cash dividends distributions to its shareholders of capital gains resulting from gains from certain asset sales to the extent necessary to avoid payment of taxes on such asset sales imposed under Sections 857(b)(3) and 4981 of the Internal Revenue Code;
(v) Subsidiaries may pay Restricted Payments to the Parent, the Borrower or any other Subsidiary; and
(vi) the Parent and the Borrower may redeem, purchase or otherwise acquire Equity Interests of the Parent or the Borrower, as applicable, so long as after giving effect to such redemption, purchase or other acquisition Tangible Net Worth shall not be less than the greater of (x) $250,000,000 or (y) the minimum amount required under Section 10.1.(a). Notwithstanding the foregoing, but subject to the following sentence, if a Default or Event of Default exists, the Borrower may only declare and make cash distributions to the Parent and other holders of partnership interests in the Borrower with respect to any period of four consecutive fiscal quarters to the extent necessary for the Parent to distribute, and the Parent may so distribute, an aggregate amount not to exceed the greater of (x) the minimum amount required to be distributed necessary for the Parent to remain in compliance with Section 8.148.12. and (y) the amount necessary for the Parent to avoid income or excise tax under the Internal Revenue Code; and (B) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary of the Borrower and the Borrower or any other Subsidiary of the Parent may pay Restricted Payments to the Parent. Notwithstanding the foregoing sentence, in the event that If a Default or Event of Default under Sections specified in Section 11.1.(a), (eSection 11.1.(b), Section 11.1.(e) or (fSection 11.1.(f) exists or would exist after giving effect to such Restricted Paymentshall exist, or if as a result of the occurrence of any other Event of Default any of the Obligations have been accelerated in accordance with the terms of this Agreementaccelerated, then the Parent and the Borrower shall not, nor and shall it not permit any other Subsidiary to to, make any Restricted Payments to any Person other than to the Borrower or any Subsidiary that is a Guarantorother Subsidiary.
Appears in 1 contract
Samples: Credit Agreement (Excel Trust, Inc.)
Dividends and Other Restricted Payments. The Parent Subject to the following sentence, if an Event of Default exists, the Borrower shall not, and shall not permit any of its Subsidiaries to, declare or make any Restricted Payment, Payments except that:
that (i) the Borrower may (A) declare and make payments on account of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement of the Borrower, or (B) pay cash dividends to the Parent and the other holders of partnership interests in the Borrower, and the Parent may so distribute such cash dividends to its shareholders, in the case of clause (A) or clause (B), so long as no Default or Event of Default exists or would result therefrom and so long as the Parent shall be in pro forma compliance with the other covenants set forth in this Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) immediately after giving effect thereto;
(ii) both (A) the Borrower may pay cash dividends to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, cash dividends distributions to its shareholders in an aggregate amount not to exceed the greater of (x) the minimum amount required to be distributed necessary for the Parent Borrower to remain in compliance with Section 8.147.11. and (y) the amount necessary for the Parent or to avoid the imposition of income or excise tax taxes imposed under Sections 857(b)(1), 857(b)(3) or 4981 of the Internal Revenue Code; , (ii) Subsidiaries that are not Loan Parties may pay Restricted Payments to the Borrower or any other Subsidiary, and (Biii) Subsidiaries that are Loan Parties may pay Restricted Payments to the Borrower or any other Loan Party (provided, however, that a Subsidiary owning a Collateral Property may only pay Restricted Payments to another Subsidiary owning a Collateral Property). If an Event of Default specified in Section 10.1.(a), Section 10.1.(e) or Section 10.1.(f) shall exist, or if as a result of the occurrence of any other Event of Default any of the Obligations have been accelerated pursuant to Section 10.2.(a), the Borrower shall not, and shall not permit any Subsidiary to, make any Restricted Payments to any Person except that (i) Subsidiaries that are not Loan Parties may pay Restricted Payments to the Borrower or any other Subsidiary, (ii) Subsidiaries that are Loan Parties may pay Restricted Payments to the Borrower or any other Loan Party (provided, however, that a Subsidiary owning a Collateral Property may only pay Restricted Payments to another Subsidiary owning a Collateral Property) and (iii) Subsidiaries that are not Loan Parties may pay Restricted Payments to the Borrower or any other Subsidiary of the Borrower and the Borrower or any other Subsidiary of the Parent may pay Restricted Payments to the Parent. Notwithstanding the foregoing sentenceand, in the event case of any non-Wholly Owned Subsidiaries that a Default are not Loan Parties, to each other owner of Equity Interests of such other non-Wholly Owned Subsidiary pro rata based on the relative ownership interests or Event of Default under Sections 11.1.(a), (e) or (f) exists or would exist after giving effect to such Restricted Payment, or the Obligations have been accelerated in accordance with as otherwise required by the terms of this Agreement, then the Parent shall not, nor shall it permit any Subsidiary to make any Restricted Payments to any Person organizational documents of such other than to the Borrower or any Subsidiary that is a Guarantornon-Wholly Owned Subsidiary.
Appears in 1 contract
Dividends and Other Restricted Payments. The Parent REIT Guarantor shall not, and shall not permit any of its Subsidiaries other Loan Party or Subsidiary to, declare or make any Restricted Payment; provided, except that:
(i) however, that the REIT Guarantor, the Borrower and its Subsidiaries may (A) declare and make payments on account of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement of the Borrower, or (B) pay cash dividends to the Parent and the other holders of partnership interests in the Borrower, and the Parent may so distribute such cash dividends to its shareholders, in the case of clause (A) or clause (B), following Restricted Payments so long as no Default or Event of Default exists at the time of the making of such Restricted Payment or would result therefrom and so long as the Parent shall be in pro forma compliance with the other covenants set forth in this Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) immediately after giving effect thereto;therefrom:
(ii) both (Aa) the Borrower may pay cash dividends distributions to the Parent REIT Guarantor and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent REIT Guarantor to distribute, and the Parent REIT Guarantor may so distribute, cash dividends to its shareholders in an aggregate amount not to exceed the greater of (xi) the amount required to be distributed for the Parent REIT Guarantor to remain in compliance with Section 8.147.12. or (ii) commencing with the fiscal quarter ending March 31, 2016 through and including the fiscal quarter ending September 30, 2016, 100% of Funds From Operation for the period of twelve consecutive months and, commencing with the fiscal quarter ending December 31, 2016 and for each fiscal quarter thereafter, 95% of Funds From Operation for the period of twelve consecutive months, in each case, tested at the end of each applicable fiscal quarter;
(yb) the amount Borrower may pay cash distributions to the REIT Guarantor and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent REIT Guarantor to distribute, and the REIT Guarantor may so distribute cash distributions to its shareholders of capital gains resulting from gains from certain asset sales to the extent necessary to avoid income or excise tax payment of taxes on such asset sales imposed under Sections 857(b)(3) and 4981 of the Internal Revenue Code; and ;
(Bc) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary Subsidiary; and
(d) the Borrower may distribute Available Cash (as defined in the Borrower Partnership Agreement) to the Special General Partner (as defined in the Borrower Partnership Agreement) in accordance with the terms of the Borrower and the Borrower or any other Subsidiary of the Parent may pay Restricted Payments to the ParentPartnership Agreement. Notwithstanding the foregoing foregoing, but subject to the following sentence, in the event that if a Default or Event of Default under Sections 11.1.(aexists, the Borrower may only declare and make cash distributions to the REIT Guarantor and other holders of partnership interests in the Borrower with respect to any fiscal year to the extent necessary for the REIT Guarantor to distribute, and the REIT Guarantor may so distribute, an aggregate amount not to exceed the minimum amount necessary for the REIT Guarantor to remain in compliance with Section 7.12. If a Default or Event of Default specified in Section 10.1.(a), (eSection 10.1.(f) or (fSection 10.1.(g) exists or would exist after giving effect to such Restricted Paymentshall exist, or if as a result of the occurrence of any other Event of Default any of the Obligations have been accelerated in accordance with pursuant to Section 10.2.(a), the terms of this Agreement, then REIT Guarantor and the Parent Borrower shall not, nor and shall it not permit any Subsidiary to to, make any Restricted Payments to any Person other than to the Borrower or any Subsidiary that is a Guarantor.
Appears in 1 contract
Dividends and Other Restricted Payments. The Parent shall not, and shall not permit any of its Subsidiaries to, declare or make any Restricted Payment, except that:
(i) the Borrower may (A) make payments on account of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement of the Borrower, or (B) pay cash dividends to the Parent and the other holders of partnership interests in the Borrower, and the Parent may so distribute such cash dividends to its shareholders, in the case of clause (A) or clause (B), so long as no Default or Event of Default exists or would result therefrom and so long as the Parent shall be in pro forma compliance with the other covenants set forth in this Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) immediately after giving effect thereto;; LEGAL 4867-4266-3982v.3
(ii) both (A) the Borrower may pay cash dividends to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, cash dividends to its shareholders in an aggregate amount not to exceed the greater of (x) the amount required to be distributed for the Parent to remain in compliance with Section 8.14. and (y) the amount necessary for the Parent to avoid income or excise tax under the Internal Revenue Code; and (B) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary of the Borrower and the Borrower or any other Subsidiary of the Parent may pay Restricted Payments to the Parent. Notwithstanding the foregoing sentence, in the event that a Default or Event of Default under Sections 11.1.(a), (e) or (f) exists or would exist after giving effect to such Restricted Payment, or the Obligations have been accelerated in accordance with the terms of this Agreement, then the Parent shall not, nor shall it permit any Subsidiary to make any Restricted Payments to any Person other than to the Borrower or any Subsidiary that is a Guarantor.
Appears in 1 contract
Samples: Credit Agreement (NETSTREIT Corp.)
Dividends and Other Restricted Payments. The Parent and the Borrower shall not, and shall not permit any of its their Subsidiaries to, declare redeem, purchase, repurchase or make otherwise acquire any Restricted PaymentEquity Interests of the Parent, except that:
the Borrower or any of their Subsidiaries from any Person other than the Parent, the Borrower or a Subsidiary unless (i) the Borrower may (A) make payments on account of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement of the Borrower, or (B) pay cash dividends to the Parent and the other holders of partnership interests in the Borrower, and the Parent may so distribute such cash dividends to its shareholders, in the case of clause (A) or clause (B), so long as no Default or Event of Default exists or would result therefrom and so long as (ii) the Borrower shall have delivered to the Administrative Agent at least 3 Business Days prior to any redemption, purchase, repurchase or other acquisition that exceeds $50,000,000 in the aggregate a Compliance Certificate evidencing that the Parent shall and the Borrower will be in pro forma compliance with the other covenants set forth contained in this Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) immediately after giving pro forma effect thereto;
to such redemption, purchase, repurchase or other acquisition. Notwithstanding the foregoing, if an Event of Default exists, the Parent and the Borrower shall not, and shall not permit any of their Subsidiaries to, declare or make any Restricted Payments except that (ii) both (Ai) the Borrower may pay declare and make cash dividends distributions to the Parent and other holders of partnership interests Equity Interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, (A) make cash dividends to its shareholders or equity distributions in an aggregate amount not to exceed the greater of (x) the amount required to be distributed for the Parent to remain in compliance with Section 8.14. and (y) the minimum amount necessary for the Parent to avoid satisfy the requirements for qualification and taxation as a REIT and not be subject to income or excise tax taxation under Sections 857(b)(1), 857(b)(3), 860 or 4981 of the Internal Revenue Code; Code and (B) make additional distributions in common Equity Interests of the Parent in an amount under this clause (B) that, when combined with the distributions under clause (A) above, do not exceed 100% of the taxable income of the Parent determined in accordance with Section 857(b)(2) of the Internal Revenue Code and (ii) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary of the Borrower and the Borrower or any other Subsidiary of the Parent may pay Restricted Payments to the Parent. Notwithstanding the foregoing sentence, in the event that a Default or Event of Default under Sections 11.1.(a), (e) or (f) exists or would exist after giving effect to such Restricted Payment, or the Obligations have been accelerated in accordance with the terms of this Agreement, then the Parent shall not, nor shall it permit any Subsidiary to make any Restricted Payments to any Person other than that owns an Equity Interest in such Subsidiary, ratably according to their respective holdings of the Borrower or any Subsidiary that type of Equity Interest in respect of which such Restricted Payment is a Guarantorbeing made. Notwithstanding the foregoing, during the Covenant Relief Period, the terms of this 10.1.(kl) shall be subject to Section 10.11.(a).
Appears in 1 contract
Dividends and Other Restricted Payments. The Subject to the following sentence, if an Event of Default exists the Parent shall not, and shall not permit any of its Subsidiaries to, declare or make any Restricted Payment, except that:
Payments; provided that (i) the Borrower SLGOP and Reckson may (A) declare and make payments on account of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement of the Borrower, or (B) pay cash dividends distributions to the Parent and the other holders of partnership interests in the BorrowerSLGOP and Reckson, and the Parent may so distribute such cash dividends to its shareholdersrespectively, in the case of clause (A) or clause (B), so long as no Default or Event of Default exists or would result therefrom and so long as the Parent shall be in pro forma compliance with the other covenants set forth in this Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) immediately after giving effect thereto;
(ii) both (A) the Borrower may pay cash dividends to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, cash dividends to its shareholders in an aggregate amount not to exceed the greater of (x) the minimum amount required to be distributed necessary for the Parent to remain in compliance with Section 8.147.11. and (yii) Subsidiaries of a Borrower may make Restricted Payments to (A) such Borrower and to other holders of the amount Equity Interests in such Subsidiaries to the extent necessary for the Parent to avoid income make Restricted Payments to such Borrower or excise tax under the Internal Revenue Code; and (B) Subsidiaries may pay Restricted Payments to any of such Borrower’s Subsidiaries, and in the Borrower or any other case of a Subsidiary of the such Borrower and the Borrower or any that is not a Wholly Owned Subsidiary, to each other holder of Equity Interests of such Subsidiary of the Parent may pay Restricted Payments to the Parentbased on their relative ownership interests. Notwithstanding the foregoing sentence, in the event that If a Default or Event of Default under Sections 11.1.(aspecified in Section 10.1.(a), (eSection 10.1.(e) or (fSection 10.1.(f) exists or would exist after giving effect to such Restricted Paymentshall exist, or if as a result of the occurrence of any other Event of Default any of the Obligations have been accelerated in accordance with the terms of this Agreementpursuant to Section 10.2.(a), then the Parent no Borrower shall, and no Borrower shall not, nor shall it permit any Subsidiary to their respective Subsidiaries to, make any Restricted Payments to any Person other than to the a Borrower or any of their respective Subsidiaries and, in the case of a Subsidiary of such Borrower that is not a GuarantorWholly Owned Subsidiary (other than SLGOP and Reckson), to each other owner of Equity Interests of such Subsidiary based on their relative ownership interests.
Appears in 1 contract
Samples: Credit Agreement (Sl Green Operating Partnership, L.P.)
Dividends and Other Restricted Payments. The Parent Subject to the following sentence, if an Event of Default exists the Borrower shall not, and shall not permit any of its Subsidiaries to, declare or make any Restricted Payment, except that:
; provided that (i) the Borrower may (A) declare and make payments on account of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement of the Borrower, or (B) pay cash dividends distributions to the Parent and the other holders of partnership interests in the Borrower, and the Parent may so distribute such cash dividends to its shareholders, in the case of clause (A) or clause (B), so long as no Default or Event of Default exists or would result therefrom and so long as the Parent shall be in pro forma compliance with the other covenants set forth in this Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) immediately after giving effect thereto;
(ii) both (A) the Borrower may pay cash dividends to the Parent and other holders of partnership interests Equity Interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent Borrower to distribute, and the Parent Borrower may so distribute, cash dividends to its shareholders in an aggregate amount not to exceed the greater of (x) the minimum amount required to be distributed necessary for the Parent Borrower to (A) remain in compliance with Section 8.147.12. and (y) the amount necessary for the Parent to avoid income or excise tax under the Internal Revenue Code; and (B) to avoid payment for any federal income taxes or federal excise taxes imposed under Sections 857(b)(1) or Section 857(b)(3) (or so much of Section 11 as relates to such Sections) and 4981 of the Internal Revenue Code and any similar state and local laws, so long as prior to making such cash distributions the Borrower delivers to the Administrative Agent a detailed certificate of the Borrower’s chief financial officer or treasurer in form and substance satisfactory to the Administrative Agent evidencing such minimum amount necessary, and (ii) Subsidiaries of the Borrower may pay make Restricted Payments to (A) the Borrower and to other holders of the Equity Interests in such Subsidiaries to the extent necessary to make Restricted Payments to the Borrower or (B) any other of the Borrower’s Subsidiaries (and in the case of a Subsidiary of the Borrower and that is not a Wholly Owned Subsidiary, if required by the Borrower or any organizational documents of such Subsidiary, to each other holder of Equity Interests of such Subsidiary based on their relative ownership interests). If as a result of the Parent may pay Restricted Payments to the Parent. Notwithstanding the foregoing sentence, in the event that a Default or occurrence of any Event of Default under Sections 11.1.(a), (e) or (f) exists or would exist after giving effect to such Restricted Payment, or any of the Obligations have been accelerated in accordance with pursuant to Section 10.2.(a), the terms of this Agreement, then the Parent Borrower shall not, nor and the Borrower shall it not permit any Subsidiary to of its Subsidiaries to, make any Restricted Payments to any Person other than to the Borrower or any of its Subsidiaries (and in the case of a Subsidiary that is not a GuarantorWholly Owned Subsidiary, if required by the organizational documents of such Subsidiary, to each other owner of Equity Interests of such Subsidiary based on their relative ownership interests).
Appears in 1 contract
Dividends and Other Restricted Payments. The Parent shall not, and shall not permit any of its Subsidiaries to, declare or make any Restricted Payment; provided, except that:
(i) the Borrower may (A) make payments on account of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement of the Borrowerhowever, or (B) pay cash dividends to that the Parent and its Subsidiaries may declare and make the following other holders of partnership interests in the Borrower, and the Parent may so distribute such cash dividends to its shareholders, in the case of clause (A) or clause (B), Restricted Payments so long as no Default or Event of Default exists or would result therefrom and so long as the Parent shall be in pro forma compliance with the other covenants set forth in this Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) immediately 10.1 after giving effect thereto;:
(ii) both (Ai) the Borrower may pay cash dividends to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, cash dividends to its shareholders in an aggregate amount not to exceed the greater of (x) the amount required to be distributed for the Parent to remain in compliance with Section 8.14. ; (y) 95% of Funds From Operations for the four fiscal quarter period most recently ended (or, in the case of the first three fiscal quarters following the Effective Date, for the three-, six- and nine-month periods then ended, annualized); and (yz) the amount necessary for the Parent to avoid income or excise tax under the Internal Revenue Code; and and
(Bii) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary of the Borrower and the Borrower or any other Subsidiary of the Parent may pay Restricted Payments to the Parent. If a Default or Event of Default exists, the Borrower may pay cash dividends to the Parent and other holders of Equity Interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, cash dividends to its shareholders in an aggregate amount not to exceed the minimum amount required to be distributed for the Parent to remain in compliance with Section 8.14. Notwithstanding the foregoing sentenceforegoing, in the event that if a Default or Event of Default under Sections 11.1.(a11.1(a), (e) or (f) exists or would exist after giving effect to such Restricted Payment, or the Obligations have otherwise been accelerated in accordance with the terms of this Agreement, then the Parent shall not, nor shall it permit any Subsidiary to to, make any Restricted Payments to any Person other than to the Borrower or any Subsidiary that is a Guarantor.
Appears in 1 contract
Dividends and Other Restricted Payments. The Parent shall not, and shall not permit the Borrower or any of their Subsidiaries (other than Parkway Properties Office Fund I, L.P., Parkway Properties Office Fund II, L.P. and any other Consolidated Affiliate (provided that the Administrative Agent has given its Subsidiaries prior written consent to such Consolidated Affiliate being excluded from the restrictions of this subsection (g))) to, declare or make any Restricted Payment; provided, except that:
(i) however, that the Parent, the Borrower and their respective Subsidiaries may (A) declare and make payments on account of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement of the Borrowerfollowing Restricted Payments so long as, or (B) pay cash dividends to the Parent and the other holders of partnership interests in the Borrower, and the Parent may so distribute such cash dividends to its shareholders, than in the case of clause (A) or clause (Bv), so long as no Default or Event of Default exists or would result therefrom and so long as the Parent shall be in pro forma compliance with the other covenants set forth in this Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) immediately after giving effect thereto;therefrom:
(ii) both (Ai) the Borrower may pay cash dividends to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, cash dividends to its shareholders in an aggregate amount not to exceed the greater of (xi) the amount required to be distributed for the Parent to remain in compliance with Section 8.147.12. and or (yii) 90% of Funds From Operations;
(ii) the amount Borrower may pay cash dividends to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute cash distributions to its shareholders of capital gains resulting from gains from certain asset sales to the extent necessary to avoid income or excise tax payment of taxes on such asset sales imposed under Sections 857(b)(3) and 4981 of the Internal Revenue Code; and ;
(Biii) a Subsidiary that is not a Wholly Owned Subsidiary may make cash distributions to holders of Equity Interests issued by such Subsidiary;
(iv) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary of Subsidiary;
(v) the Borrower may pay cash dividends to the Parent to the extent necessary for the Parent to redeem, and the Borrower or any other Subsidiary of the Parent may so redeem the Series E Preferred Stock upon the exercise by any holder thereof of the Series E Change of Control Option unless (A) the events that trigger the Series E Change of Control Option (such events the “Change of Control”) also result in an Event of Default that is not waived and (B) the maturity of the Obligations is accelerated pursuant to Section 10.2 upon the consummation of the Change of Control; and
(vi) so long as any Series E Preferred Stock remains outstanding, the Borrower may pay Restricted Payments cash dividends to the ParentParent to the extent necessary to distribute, and the Parent may so distribute, cash dividends to the holders of the Series D Preferred Stock (in accordance with the terms of the Series D Articles Supplementary) and the Series E Preferred Stock (in accordance with the terms of the Series E Articles Supplementary). Notwithstanding the foregoing foregoing, but subject to the following sentence, in the event that if a Default or Event of Default under Sections 11.1.(aexists, (x) the Borrower may only declare and make cash distributions to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year to the extent necessary for the Parent to distribute, and the Parent may so distribute, an aggregate amount not to exceed the minimum amount necessary for the Parent to remain in compliance with Section 7.12. and (y) the Borrower and the Parent may make the Restricted Payments described in the immediately preceding clauses (v) and (vi) subject to compliance with the terms thereof. If a Default or Event of Default specified in Section 10.1.(a), (eSection 10.1.(b), Section 10.1.(e) or (fSection 10.1.(f) exists or would exist after giving effect to such Restricted Paymentshall exist, or if as a result of the occurrence of any other Event of Default any of the Obligations have been accelerated in accordance with the terms of this Agreementpursuant to Section 10.2.(a), then the Parent shall not, nor and shall it not permit the Borrower or any Subsidiary to to, make any Restricted Payments to any Person other than to the Parent, the Borrower or any Subsidiary that is (other than Restricted Payments described in the immediately preceding clause (v) which may be made subject to compliance with the terms thereof); provided that, so long as any Series E Preferred Stock remains outstanding, the existence of a GuarantorDefault or Event of Default under Section 10.1.(b) shall not prohibit the payment of Restricted Payments under the immediately preceding clause (vi).
Appears in 1 contract
Dividends and Other Restricted Payments. The Parent and the Borrower shall not, and shall not permit any of its their Subsidiaries to, declare redeem, purchase, repurchase or make otherwise acquire any Restricted PaymentEquity Interests of the Parent, except that:
the Borrower or any of their Subsidiaries from any Person other than the Parent, the Borrower or a Subsidiary unless (i) the Borrower may (A) make payments on account of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement of the Borrower, or (B) pay cash dividends to the Parent and the other holders of partnership interests in the Borrower, and the Parent may so distribute such cash dividends to its shareholders, in the case of clause (A) or clause (B), so long as no Default or Event of Default exists or would result therefrom and so long as (ii) the Borrower shall have delivered to the Administrative Agent at least 3 Business Days prior to any redemption, purchase, repurchase or other acquisition that exceeds $50,000,000 in the aggregate a Compliance Certificate evidencing that the Parent shall and the Borrower will be in pro forma compliance with the other covenants set forth contained in this Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) immediately after giving pro forma effect thereto;
to such redemption, purchase, repurchase or other acquisition. Notwithstanding the foregoing, if an Event of Default exists, the Parent and the Borrower shall not, and shall not permit any of their Subsidiaries to, declare or make any Restricted Payments except that (ii) both (Ai) the Borrower may pay declare and make cash dividends distributions to the Parent and other holders of partnership interests Equity Interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, (A) make cash dividends to its shareholders or equity distributions in an aggregate amount not to exceed the greater of (x) the amount required to be distributed for the Parent to remain in compliance with Section 8.14. and (y) the minimum amount necessary for the Parent to avoid satisfy the requirements for qualification and taxation as a REIT and not be subject to income or excise tax taxation under Sections 857(b)(1), 857(b)(3), 860 or 4981 of the Internal Revenue Code; Code and (B) make additional distributions in common Equity Interests of the Parent in an amount under this clause (B) that, when combined with the distributions under clause (A) above, do not exceed 100% of the taxable income of the Parent determined in accordance with Section 857(b)(2) of the Internal Revenue Code and (ii) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary of the Borrower and the Borrower or any other Subsidiary of the Parent may pay Restricted Payments to the Parent. Notwithstanding the foregoing sentence, in the event that a Default or Event of Default under Sections 11.1.(a), (e) or (f) exists or would exist after giving effect to such Restricted Payment, or the Obligations have been accelerated in accordance with the terms of this Agreement, then the Parent shall not, nor shall it permit any Subsidiary to make any Restricted Payments to any Person other than that owns an Equity Interest in such Subsidiary, ratably according to their respective holdings of the Borrower or any Subsidiary that type of Equity Interest in respect of which such Restricted Payment is a Guarantorbeing made.
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Dividends and Other Restricted Payments. The Parent Parent, the Borrower or any Subsidiary of the Borrower shall not, and shall not permit any of its Subsidiaries to, declare or make any Restricted Payment, except that:
(i) the Borrower may (A) make payments on account of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement other than any of the Borrower, or (B) pay cash dividends to the Parent and the other holders of partnership interests in the Borrower, and the Parent may so distribute such cash dividends to its shareholders, in the case of clause (A) or clause (B), following Restricted Payments so long as no Default or Event of Default exists or would result therefrom (and so long as such declaration or payment of the Parent shall be in pro forma compliance with the other covenants set forth in this Section 10.1. Restricted Payment has not been rescinded, returned, unwound or otherwise cancelled for the periods for which financial statements have been delivered a period of ten (or were required to be delivered10) immediately after giving effect thereto;days):
(ii) both (Ai) the Borrower may pay cash dividends or distributions to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, cash dividends to its shareholders in an aggregate amount not to exceed the greater of (xa) the amount required to be distributed for the Parent to remain in compliance with Section 8.14. and qualified as a REIT for federal income tax purposes, or (yb) 90% of Funds From Operations;
(ii) the amount Borrower may pay cash dividends or distributions to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute cash distributions to its shareholders of capital gains resulting from gains from certain asset sales to the extent necessary to avoid income or excise tax payment of taxes on such asset sales imposed under Sections 857(b)(3) and 4981 of the Internal Revenue Code;
(iii) a Subsidiary that is not a Wholly Owned Subsidiary may make cash distributions (ratably in accordance with the percentage of Equity Interests held) to holders of Equity Interests issued by such Subsidiary; and and
(Biv) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary of the Borrower Loan Party; provided, however, and the Borrower or any other Subsidiary of the Parent may pay Restricted Payments subject to the Parent. Notwithstanding the foregoing sentenceprovisions of Section 10.1.(j), in the event that if a Default or Event of Default under Sections 11.1.(a)exists, (e) or (f) exists or would exist after giving effect the Borrower may only declare and make cash distributions to such Restricted Payment, or the Obligations have been accelerated in accordance with the terms of this Agreement, then the Parent shall not, nor shall it permit any Subsidiary to make any Restricted Payments and other holders of partnership interests in the Borrower with respect to any Person other than fiscal year to the Borrower or any Subsidiary that is extent necessary for the Parent to distribute, and the Parent may so distribute, an aggregate amount not to exceed the minimum amount necessary for the Parent to remain qualified as a GuarantorREIT for federal income tax purposes).
Appears in 1 contract
Samples: Credit Agreement (Saul Centers Inc)
Dividends and Other Restricted Payments. The Parent Borrower and its Subsidiaries (other than Wholly Owned Subsidiaries) shall not, and shall not permit any of its Subsidiaries to, directly or indirectly declare or make make, or incur any liability to make, any Restricted PaymentPayments, except that:
: (i) the Borrower may make cash distributions to its shareholders in an aggregate amount not to exceed ninety-five percent (A95%) of Funds From Operations as of the end of each fiscal quarter for the four fiscal quarter period then ending; provided however, that Borrower in all events shall be entitled to make payments on account of redemption distributions to its shareholders in such amounts and at such times as shall be necessary or repurchase of partnership interests in appropriate to enable the Borrower in accordance with the partnership agreement to avoid liability for any tax pursuant to Section 857(b) or Section 4981 of the Borrower, or Internal Revenue Code (Bincluding cash distributions) pay cash dividends of capital gains resulting from gains from asset sales to the Parent extent necessary to avoid payment of taxes on such asset sales; (ii) Subsidiaries may make Restricted Payments to the Borrower or any other Subsidiary; (iii) Subsidiaries may make Restricted Payments to the extent such Restricted Payments are required by the terms of the governing documents (i.e., entity documents or joint venture agreements) of such Subsidiaries; and (iv) Dim Vastgoed (if it becomes a Subsidiary) may make Restricted Payments to the other holders of partnership interests in extent consistent with its past corporate practice. Notwithstanding the Borrowerforegoing, and but subject to the Parent may so distribute such cash dividends to its shareholdersfollowing sentence, in the case of clause (A) or clause (B), so long as no if a Default or Event of Default exists or would result therefrom and so long as the Parent shall be in pro forma compliance with the other covenants set forth in this Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) immediately after giving effect thereto;
(ii) both (A) exists, the Borrower may pay only declare or make cash dividends to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, cash dividends distributions to its shareholders in an aggregate amount not to exceed the greater of (x) the minimum amount required to be distributed necessary for the Parent Borrower to remain in compliance with Section 8.148.12. and (y) the amount necessary for the Parent to avoid income or excise tax under the Internal Revenue Code; and (B) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary of the Borrower and the Borrower or any other Subsidiary of the Parent may pay Restricted Payments to the Parent. Notwithstanding the foregoing sentence, in the event that a Default or If an Event of Default under Sections 11.1.(aspecified in subsection (a), (e) or (f) exists or would exist after giving effect to such Restricted Paymentof Section 11.1 shall have occurred and be continuing, or if as a result of the occurrence of any other Event of Default the Obligations have been accelerated in accordance with accelerated, the terms of this Agreement, then the Parent Borrower shall not, nor and shall it not permit any Subsidiary to to, make any Restricted Payments to any Person whatsoever other than to the Borrower or any Subsidiary that is a GuarantorSubsidiary.
Appears in 1 contract
Samples: Credit Agreement (Equity One Inc)
Dividends and Other Restricted Payments. The Parent and the Borrower shall not, and shall not permit any of its their Subsidiaries to, declare redeem, purchase, repurchase or make otherwise acquire any Restricted PaymentEquity Interests of the Parent, except that:
the Borrower or any of their Subsidiaries from any Person other than the Parent, the Borrower or a Subsidiary unless (i) the Borrower may (A) make payments on account of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement of the Borrower, or (B) pay cash dividends to the Parent and the other holders of partnership interests in the Borrower, and the Parent may so distribute such cash dividends to its shareholders, in the case of clause (A) or clause (B), so long as no Default or Event of Default exists or would result therefrom and so long as (ii) the Borrower shall have delivered to the Administrative Agent at least 3 Business Days prior to any redemption, purchase, repurchase or other acquisition that exceeds $50,000,000 in the aggregate a Compliance Certificate evidencing that the Parent shall and the Borrower will be in pro forma compliance with the other covenants set forth contained in this Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) immediately after giving pro forma effect thereto;
to such redemption, purchase, repurchase or other acquisition. Notwithstanding the foregoing, if an Event of Default exists, the Parent and the Borrower shall not, and shall not permit any of their Subsidiaries to, declare or make any Restricted Payments except that (ii) both (Ai) the Borrower may pay declare and make cash dividends distributions to the Parent and other holders of partnership interests Equity Interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, (A) make cash dividends to its shareholders or equity distributions in an aggregate amount not to exceed the greater of (x) the amount required to be distributed for the Parent to remain in compliance with Section 8.14. and (y) the minimum amount necessary for the Parent to avoid satisfy the requirements for qualification and taxation as a REIT and not be subject to income or excise tax taxation under Sections 857(b)(1), 857(b)(3), 860 or 4981 of the Internal Revenue Code; Code and (B) make additional distributions in common Equity Interests of the Parent in an amount under this clause (B) that, when combined with the distributions under clause (A) above, do not exceed 100% of the taxable income of the Parent determined in accordance with Section 857(b)(2) of the Internal Revenue Code and (ii) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary of the Borrower and the Borrower or any other Subsidiary of the Parent may pay Restricted Payments to the Parent. Notwithstanding the foregoing sentence, in the event that a Default or Event of Default under Sections 11.1.(a), (e) or (f) exists or would exist after giving effect to such Restricted Payment, or the Obligations have been accelerated in accordance with the terms of this Agreement, then the Parent shall not, nor shall it permit any Subsidiary to make any Restricted Payments to any Person other than that owns an Equity Interest in such Subsidiary, ratably according to their respective holdings of the Borrower or any Subsidiary that type of Equity Interest in respect of which such Restricted Payment is a Guarantorbeing made. Notwithstanding the foregoing, during the Covenant Relief Period, the terms of this 10.1.(l) shall be subject to Section 10.11.(a).
Appears in 1 contract
Dividends and Other Restricted Payments. The Parent shall not, and shall not permit any of its Subsidiaries to, declare or make any Restricted Payment, except that:
(i) the Borrower may (A) make payments on account of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement of the Borrower, or (B) pay cash dividends to the Parent and the other holders of partnership interests in the Borrower, and the Parent may so distribute such cash dividends to its shareholders, in the case of clause (A) or clause (B), so long as no Default or Event of Default exists or would result therefrom and so long as the Parent shall be in pro forma compliance with the other covenants set forth in this Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) 10.1 immediately after giving effect thereto;
(ii) both (A) the Borrower may pay cash dividends to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, cash dividends to its shareholders in an aggregate amount 271385948v.6 not to exceed the greater of (x) the amount required to be distributed for the Parent to remain in compliance with Section 8.14. 8.14 and (y) the amount necessary for the Parent to avoid income or excise tax under the Internal Revenue Code; and (B) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary of the Borrower and the Borrower or any other Subsidiary of the Parent may pay Restricted Payments to the Parent. Notwithstanding the foregoing sentence, in the event that a Default or Event of Default under Sections 11.1.(a11.1(a), (e) or (f) exists or would exist after giving effect to such Restricted Payment, or the Obligations have been accelerated in accordance with the terms of this Agreement, then the Parent shall not, nor shall it permit any Subsidiary to make any Restricted Payments to any Person other than to the Borrower or any Subsidiary that is a Guarantor.
Appears in 1 contract
Samples: Credit Agreement (NETSTREIT Corp.)
Dividends and Other Restricted Payments. The Parent shall not, and shall not permit any of its Subsidiaries toAuthorize, declare or make pay, directly or indirectly, any Dividends or other Restricted PaymentPayment with respect to any Company (including pursuant to any Synthetic Purchase Agreement) or incur any obligation (contingent or otherwise) to do so, except thatthat the following shall be permitted:
(i) any Restricted Subsidiary of the Administrative Borrower may (A) make payments on account of redemption pay Dividends to the Administrative Borrower or repurchase of partnership interests in the Borrower in accordance with the partnership agreement to any Wholly-Owned Subsidiary of the Borrower, or Administrative Borrower that is a Restricted Subsidiary and (Bii) any non-Wholly-Owned Subsidiary of the Administrative Borrower that is a Restricted Subsidiary may pay cash dividends to the Parent and the other holders of partnership interests in the Borrower, and the Parent may so distribute such cash dividends Dividends to its shareholders, in the case of clause (A) members or clause (B)partners generally, so long as the Administrative Borrower or its respective Restricted Subsidiary which owns the Equity Interest in the Restricted Subsidiary paying such Dividends receives at least its proportionate share thereof (based upon its relative holding of the Equity Interest in the Restricted Subsidiary paying such Dividends and taking into account the relative preferences, if any, of the various classes of Equity Interests of such Restricted Subsidiary);
(b) so long as no Default or Event of Default then exists or would result therefrom, payments by the Administrative Borrower to repurchase or redeem Qualified Capital Stock of the Administrative Borrower held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates) of any Company, upon their death, disability, retirement, severance or termination of employment or service; provided, that, the aggregate amount of such payments shall not exceed, in any period of 12 consecutive months, $1,000,000 and, in the aggregate, $3,000,000;
(c) so long as no Specified Event of Default then exists or would result therefrom and the Administrative Borrower is treated as a partnership or similar pass through entity for federal income taxes, cash Dividends by the Administrative Borrower to its equity holders at the times and in the amounts necessary to enable such equity holders to make tax payments solely with respect to their allocable share of the income of the Administrative Borrower in any taxable year (collectively, the “Permitted Tax Distributions”); except, that, with respect to any Permitted Tax Distributions under this Section 6.08(c) that are attributable to any Unrestricted Subsidiary, such Permited Tax Distributions shall only be permitted to the extent that either (i) such Unrestricted Subsidiary has made one or more cash distributions, to Administrative Borrower or any of its Restricted Subsidiaries for such purpose in an amount up to the amount of such Unrestricted Subsidiary’s proportionate share of such Permitted Tax Distributions or (ii) the amount of such Permitted Tax Distributions made by the Administrative Borrower on behalf of such Unrestricted Subsidiary is permitted to be made as an Investment under this Agreement;
(d) the Administrative Borrower may make Restricted Payments pursuant to and in accordance with stock option and benefits plans, including, without limitation, (i) cashless exercises of any such options, (ii) the delivery to Administrative Borrower of shares of Administrative Borrower’s common stock or restricted stock units by directors, management and employees of the Administrative Borrower or any Subsidiary thereof to cover tax withholding obligations associated with grants or exercises of stock options, restricted stock, restricted stock units or other equity-based awards, as well as other Restricted Payments pursuant to and in accordance with option plans or other benefit plans for management or employees of the Administrative Borrower and its Subsidiaries and (iii) so long as (A) no Event of Default is then outstanding or would result therefrom and (B) the Payment Conditions are satisfied, the purchase of the Administrative Borrower’s common stock on the open market and the re-issuance of such common stock to officers and employees of the Administrative Borrower in connection with incentive compensation plans or other agreements with officers, directors or employees of the Administrative Borrower approved by the Board of Directors of the Administrative Borrower, option plans or other benefit plans for management or employees of the Administrative Borrower and its Subsidiaries;
(e) the Administrative Borrower may exchange an Equity Interest of the Administrative Borrower for Qualified Capital Stock of the Administrative Borrower; and
(f) other cash Restricted Payments so long as the Parent shall be in pro forma compliance with the other covenants set forth in this Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) immediately after giving effect thereto;
(ii) both (A) the Borrower may pay cash dividends to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, cash dividends to its shareholders in an aggregate amount not to exceed the greater of (x) the amount required to be distributed for the Parent to remain in compliance with Section 8.14. and (y) the amount necessary for the Parent to avoid income or excise tax under the Internal Revenue Code; and (B) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary of the Borrower and the Borrower or any other Subsidiary of the Parent may pay Restricted Payments to the Parent. Notwithstanding the foregoing sentence, in the event that a Default or Event of Default under Sections 11.1.(a), (e) or (f) exists or would exist after giving effect to such Restricted Payment, or the Obligations have been accelerated in accordance with the terms of this Agreement, then the Parent shall not, nor shall it permit any Subsidiary to make any Restricted Payments to any Person other than to the Borrower or any Subsidiary that is a GuarantorPayment Conditions are satisfied.
Appears in 1 contract
Dividends and Other Restricted Payments. The Parent and the Borrower shall not, and shall not permit any of its their Subsidiaries to, declare redeem, purchase, repurchase or make otherwise acquire any Restricted PaymentEquity Interests of the Parent, except that:
the Borrower or any of their Subsidiaries from any Person other than the Parent, the Borrower or a Subsidiary unless (i) the Borrower may (A) make payments on account of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement of the Borrower, or (B) pay cash dividends to the Parent and the other holders of partnership interests in the Borrower, and the Parent may so distribute such cash dividends to its shareholders, in the case of clause (A) or clause (B), so long as no Default or Event of Default exists or would result therefrom and so long as (ii) the Borrower shall have delivered to the Administrative Agent at least 3 Business Days prior to any redemption, purchase, repurchase or other acquisition that exceeds $50,000,000 in the aggregate a Compliance Certificate evidencing that the Parent shall and the Borrower will be in pro forma compliance with the other covenants set forth contained in this Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) immediately after giving pro forma effect thereto;
to such redemption, purchase, repurchase or other acquisition. Notwithstanding the foregoing, if an Event of Default exists, the Parent and the Borrower shall not, and shall not permit any of their Subsidiaries to, declare or make any Restricted Payments except that (ii) both (Ai) the Borrower may pay declare and make cash dividends distributions to the Parent and other holders of partnership interests Equity Interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, (A) make cash dividends to its shareholders or equity distributions in an aggregate amount not to exceed the greater of (x) the amount required to be distributed for the Parent to remain in compliance with Section 8.14. and (y) the minimum amount necessary for the Parent to avoid satisfy the requirements for qualification and taxation as a REIT and not be subject to income or excise tax taxation under Sections 857(b)(1), 857(b)(3), 860 or 4981 of the Internal Revenue Code; Code and (B) make additional distributions in common Equity Interests of the Parent in an amount under this clause (B) that, when combined with the distributions under clause (A) above, do not exceed 100% of the taxable income of the Parent determined in accordance with Section 857(b)(2) of the Internal Revenue Code and (ii) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary of the Borrower and the Borrower or any other Subsidiary of the Parent may pay Restricted Payments to the Parent. Notwithstanding the foregoing sentence, in the event that a Default or Event of Default under Sections 11.1.(a), (e) or (f) exists or would exist after giving effect to such Restricted Payment, or the Obligations have been accelerated in accordance with the terms of this Agreement, then the Parent shall not, nor shall it permit any Subsidiary to make any Restricted Payments to any Person other than that owns an Equity Interest in such Subsidiary, ratably according to their respective holdings of the Borrower or any Subsidiary that type of Equity Interest in respect of which such Restricted Payment is a Guarantor.being made. Notwithstanding the foregoing, during the Covenant Relief Period, the terms of this 10.1.(k) shall be subject to Section 10.11.(a).
Appears in 1 contract
Dividends and Other Restricted Payments. The Each of the Parent and the Borrower shall not, and shall not permit any of its Subsidiaries to, declare or make any Restricted Payment; provided, except that:
(i) however, that each of the Parent, the Borrower and its Subsidiaries may (A) declare and make payments on account of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement of the Borrower, or (B) pay cash dividends to the Parent and the other holders of partnership interests in the Borrower, and the Parent may so distribute such cash dividends to its shareholders, in the case of clause (A) or clause (B), following Restricted Payments so long as no Default or Event of Default exists is continuing or would result therefrom and so long as the Parent shall be in pro forma compliance with the other covenants set forth in this Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) immediately after giving effect thereto;therefrom:
(ii) both (Ai) the Borrower may pay cash dividends to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, cash dividends to its shareholders in an aggregate amount not to exceed the greater of (xi) the amount required to be distributed for the Parent to remain in compliance with Section 8.14. and 8.12 or (yii) 95% of Funds From Operation;
(ii) the amount Borrower may pay cash dividends to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute cash distributions to its shareholders of capital gains resulting from gains from certain asset sales to the extent necessary to avoid income or excise tax payment of taxes on such asset sales imposed under Sections 857(b)(3) and 4981 of the Internal Revenue Code; and ;
(Biii) a Subsidiary that is not a Wholly Owned Subsidiary may make cash distributions to holders of Equity Interests issued by such Subsidiary so long as such distributions are made ratably according to the holders’ respective holdings of the type of Equity Interest in respect of which such distributions are being made;
(iv) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary of the Borrower and Parent, the Borrower or any other Subsidiary Subsidiary;
(v) to the extent consummated in advance of or in connection with and made substantially concurrently with an IPO Event, Restricted Payments made pursuant to any tender offer for the Equity Interests of the Parent; and
(vi) the Parent may from time to time purchase, redeem or otherwise acquire Equity Interests of the Parent, provided that the aggregate amount of payments pursuant to this clause (vi) shall not exceed $50,000,000 during any twelve consecutive month period, and the Borrower may pay Restricted Payments cash dividends to the ParentParent to the extent necessary to enable the Parent to make such purchases, redemptions and acquisitions. Notwithstanding the foregoing foregoing, but subject to the following sentence, in the event that if a Default or Event of Default under Sections 11.1.(a)exists, (ethe Borrower may only declare and make cash distributions to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year to the extent necessary for the Parent to distribute, and the Parent may so distribute, an aggregate amount not to exceed the minimum amount necessary for the Parent to remain in compliance with Section 8.12. If a Default or Event of Default specified in Section 11.1(a) or (fSection 11.1(f) exists or would exist after giving effect to such Restricted Paymentshall exist, or if as a result of the occurrence of any other Event of Default any of the Obligations have been accelerated in accordance with the terms of this Agreementpursuant to Section 11.2(a), then the Parent and the Borrower shall not, nor shall it permit any Subsidiary to not make any Restricted Payments to any Person Payments. Subsidiaries of the Parent (other than the Borrower) may make Restricted Payments to the Borrower or and other Subsidiaries at any Subsidiary that is a Guarantortime.
Appears in 1 contract
Samples: Credit Agreement (Tier Reit Inc)
Dividends and Other Restricted Payments. The Parent If a Default or an Event of Default under Section 11.1(a), 11.1(e) or 11.1(f) shall notexist or, if as a result of the occurrence of any other Event of Default any of the Obligations have been accelerated pursuant to Section 11.2(a), neither Borrower nor any Specified Loan Party nor any of their respective Subsidiaries, and shall not permit by its execution hereof the Parent Guarantor agrees that neither it nor any of its Subsidiaries to(other than, in the case of any of the foregoing, any Eligible Subsidiaries), shall directly or indirectly declare or make make, or incur any liability to make, any Restricted PaymentPayments. In all other circumstances except as described in the immediately preceding sentence, neither Borrower nor any Specified Loan Party nor any of their respective Subsidiaries, and by its execution hereof the Parent Guarantor agrees that neither it nor any of its Subsidiaries (other than, in the case of any of the foregoing, any Eligible Subsidiaries) shall declare or make, or incur any liability to make, any Restricted Payments, except that:
(i) the Borrower may (A) make payments on account of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement of the Borrower, or (B) pay cash dividends to the Parent and the other holders of partnership interests in the Borrower, and the Parent may so distribute such cash dividends to its shareholders, in the case of clause (A) or clause (B), so long as no Default or Event of Default exists or would result therefrom and so long as the Parent shall be in pro forma compliance with the other covenants set forth in this Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) immediately after giving effect thereto;
(ii) both (A) the The Borrower may pay cash dividends to the Parent Guarantor and other holders of partnership interests in the Borrower with respect to any period of four (4) fiscal year ending during the term of this Agreement quarters to the extent necessary for the Parent Guarantor to distribute, and the Parent Guarantor may so distribute, Preferred Dividends or cash dividends or distributions to holders of its shareholders Preferred Stock or common Equity Interests in an aggregate amount not to exceed the greater greatest of (xi) 90% of Funds From Operations, (ii) the amount required to be distributed for the Parent Guarantor to remain in compliance with Section 8.14. maintain its status as a REIT (including the right to distribute 100% of net capital gain) under Sections 856 through 860 of the Internal Revenue Code, and (yiii) the amount necessary for the Parent Guarantor to avoid income or excise tax under the Internal Revenue Code; and ;
(B) Subsidiaries may pay As long as (i) no Event of Default exists or would result therefrom and (ii) the Borrower is, and upon giving effect to any of the following Restricted Payments shall continue to be, in compliance with all covenants set forth in this Agreement (including those set forth in this Section 10.1) on a pro forma basis as of the date of the most recently delivered Compliance Certificate, the Parent Guarantor, the Borrower and any Subsidiary, each as applicable, may make cash payments:
(1) to redeem Equity Interests in the Borrower or any other Subsidiary of the Borrower and the Borrower or any other Subsidiary of the Parent may pay Restricted Payments to the Parent. Notwithstanding the foregoing sentence, in the event that a Default or Event of Default under Sections 11.1.(a), (e) or (f) exists or would exist after giving effect to such Restricted Payment, or the Obligations have been accelerated in accordance with the terms of this Agreementthe charter, then articles of incorporation or by-laws, operating agreement, partnership agreement or other organizational document of such entity;
(2) of Preferred Dividends as required to be paid to holders of Preferred Stock;
(3) to purchase Equity Interests from employees of the Parent shall notGuarantor, nor shall it permit any Subsidiary to make any Restricted Payments to any Person other than to the Borrower or any Subsidiary that is a in amounts required to satisfy their withholding tax obligations in respect of non-cash compensation received by such employees in respect of such employment;
(4) to purchase the interests of joint venture partners of the Borrower or its Subsidiaries;
(5) to the extent contractually required to be made to holders of minority interests in non-Wholly Owned Subsidiaries;
(6) to repurchase or redeem common Equity Interests or Preferred Stock;
(7) to otherwise make any Restricted Payment arising in the ordinary course of business; and
(8) to the Borrower or the Parent Guarantor, as applicable, in amounts sufficient to permit the recipient of such funds to make any of the payments permitted under the foregoing clauses of this Section 10.1(e)(B). Notwithstanding the foregoing, the aggregate amount paid for all purchases or redemptions of common shares or other equivalent common Equity Interests of the Parent Guarantor shall not exceed $200,000,000.
Appears in 1 contract
Dividends and Other Restricted Payments. The Parent and the Borrower shall not, and shall not permit any of its their Subsidiaries to, declare redeem, purchase, repurchase or make otherwise acquire any Restricted PaymentEquity Interests of the Parent, except that:
the Borrower or any of their Subsidiaries from any Person other than the Parent, the Borrower or a Subsidiary unless (i) the Borrower may (A) make payments on account of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement of the Borrower, or (B) pay cash dividends to the Parent and the other holders of partnership interests in the Borrower, and the Parent may so distribute such cash dividends to its shareholders, in the case of clause (A) or clause (B), so long as no Default or Event of Default exists or would result therefrom and so long as (ii) the Borrower shall have delivered to the Administrative Agent at least 3 Business Days prior to any redemption, purchase, repurchase or other acquisition that exceeds $30,000,000 in the aggregate a Compliance Certificate evidencing that the Parent shall and the Borrower will be in pro forma compliance with the other covenants set forth contained in this Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) immediately after giving pro forma effect thereto;
to such redemption, purchase, repurchase or other acquisition. Notwithstanding the foregoing, but subject to the following sentence, if an Event of Default exists, the Parent and the Borrower shall not, and shall not permit any of their Subsidiaries to, declare or make any Restricted Payments except that (ii) both (Ai) the Borrower may pay declare and make cash dividends distributions to the Parent and other holders of partnership interests Equity Interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, (A) make cash dividends to its shareholders or equity distributions in an aggregate amount not to exceed the greater of (x) the amount required to be distributed for the Parent to remain in compliance with Section 8.14. and (y) the minimum amount necessary for the Parent to avoid satisfy the requirements for qualification and taxation as a REIT and not be subject to income or excise tax taxation under Sections 857(b)(1), 857(b)(3), 860 or 4981 of the Internal Revenue Code; Code and (B) make additional distributions in common Equity Interests of the Parent in an amount under this clause (B) that, when combined with the distributions under clause (A) above, do not exceed 100% of the taxable income of the Parent determined in accordance with Section 857(b)(2) of the Internal Revenue Code and (ii) Subsidiaries of the Borrower may pay make Restricted Payments to the Borrower or any other Subsidiary Person that owns an Equity Interest in such Subsidiary, ratably according to their respective holdings of the Borrower and the Borrower or any other Subsidiary type of the Parent may pay Equity Interest in respect of which such Restricted Payments to the ParentPayment is being made. Notwithstanding the foregoing sentence, in the event that If a Default or Event of Default under Sections specified in Section 11.1.(a), (eSection 11.1.(f) or (fSection 11.1.(g) exists or would exist after giving effect to such Restricted Paymentshall exist, or if as a result of the occurrence of any other Event of Default any of the Obligations have been accelerated in accordance with the terms of this Agreementpursuant to Section 11.2.(a), then the Parent and the Borrower shall not, nor and shall it not permit any Subsidiary to to, make any Restricted Payments to any Person other than to the Borrower or any Subsidiary that is a Guarantorof the Borrower.
Appears in 1 contract
Dividends and Other Restricted Payments. The Parent shall not, and shall not permit the Borrower or any of its their Subsidiaries to, declare or make any Restricted Payment; provided, except that:
(i) however, that the Parent, the Borrower and their respective Subsidiaries may (A) declare and make payments on account of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement of the Borrower, or (B) pay cash dividends to the Parent and the other holders of partnership interests in the Borrower, and the Parent may so distribute such cash dividends to its shareholders, in the case of clause (A) or clause (B), following Restricted Payments so long as no Default or Event of Default exists is continuing or would result therefrom and so long as the Parent shall be in pro forma compliance with the other covenants set forth in this Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) immediately after giving effect thereto;therefrom:
(ii) both (Ai) the Borrower may pay cash dividends distributions to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, cash dividends distributions to its shareholders in an aggregate amount not to exceed the greater of (xi) the amount required to be distributed for the Parent to remain in compliance with Section 8.148.12. and (yincluding the right to distribute 100% of net capital gains) or (ii) 90% of Funds From Operations;
(ii) the amount Borrower may pay cash distributions to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute cash distributions (including, without limitation, distributions constituting “capital gains dividends”) to shareholders of the Parent to the extent necessary to avoid income or excise tax payment of taxes under Section 857 (including, without limitation, Section 857(b)(3)) and Section 4981 of the Internal Revenue Code; and ;
(Biii) a Subsidiary that is not a Wholly Owned Subsidiary may make cash distributions to holders of Equity Interests issued by such Subsidiary so long as such distributions are made ratably according to the holders’ respective holdings of the type of Equity Interest in respect of which such distributions are being made;
(iv) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary of the Borrower and Wholly Owned Subsidiary;
(v) the Borrower or any other Subsidiary of the Parent may pay Restricted Payments make purchases of Equity Interests in any Subsidiary or Unconsolidated Affiliate of the Parent or of any of its Subsidiaries that are held by any other Person;
(vi) the Borrower may redeem for cash limited partnership interests in the Borrower;
(vii) the Borrower may make cash distributions to the ParentParent to the extent necessary for the Parent to distribute, and the Parent may distribute, the Specified Distribution;
(viii) solely to the extent of any Net Proceeds excluded from the calculation of Tangible Net Worth pursuant to Section 10.1.(d), and applied to redeem, retire or repurchase Preferred Equity Interests, the Parent may redeem, retire or repurchase its Preferred Equity Interests (and, to the extent such Net Proceeds were contributed to the Borrower, the Borrower may make cash distributions of the amount of such contributed Net Proceeds for the purposes of funding such transaction); and
(ix) the Parent may from time to time purchase shares of its common stock in an aggregate purchase price not to exceed $50,000,000 for all such purchases, and the Borrower may make cash distributions to the Parent to the extent necessary for the Parent to make such purchases of common stock. Notwithstanding the foregoing foregoing, but subject to the following sentence, in the event that if a Default or Event of Default exists, the Borrower may only declare and make cash distributions to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year to the extent necessary for the Parent to distribute, and the Parent may so distribute, an aggregate amount not to exceed the minimum amount necessary for the Parent to remain in compliance with Section 8.12 and to avoid the imposition of income or excise taxes imposed under Sections 857(b)(1), 857(b)(3) and 4981 of the Internal Revenue Code. If a Default or Event of Default specified in Section 11.1.(a), (eSection 11.1.(e) or (fSection 11.1.(f) exists or would exist after giving effect to such Restricted Paymentshall exist, or if as a result of the occurrence of any other Event of Default any of the Obligations have been accelerated in accordance with the terms of this Agreementpursuant to Section 11.2.(a), then the Parent shall not, nor and shall it not permit the Borrower or any Subsidiary to to, make any Restricted Payments to any Person other than to the Parent, the Borrower or any Subsidiary other Loan Party. Subsidiaries (other than the Borrower) may make Restricted Payments to the Borrower and the other Loan Parties at any time and Subsidiaries that is a Guarantorare not Loan Parties may make Restricted Payments to any other Subsidiaries.
Appears in 1 contract
Samples: Credit Agreement (Parkway, Inc.)
Dividends and Other Restricted Payments. The Subject to the following sentence, if an Event of Default exists, the Parent and the Borrower shall not, and shall not permit any of its the other Subsidiaries to, declare or make any Restricted PaymentPayments, except that:
(i) that notwithstanding the Borrower may (A) make payments on account existence of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement of the Borrower, or (B) pay cash dividends to the Parent and the other holders of partnership interests in the Borrower, and the Parent may so distribute such cash dividends to its shareholders, in the case of clause (A) or clause (B), so long as no Default or an Event of Default exists or would result therefrom and so long as the Parent shall be in pro forma compliance with the other covenants set forth in this Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) immediately after giving effect thereto;
(ii) both (A) Default, the Borrower may pay cash dividends to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, cash dividends to its shareholders in an aggregate amount not to exceed the greater of (x) the amount required to be distributed for the Parent to remain in compliance with Section 8.14. maintain its status as a real estate investment trust and (y) the amount necessary for the Parent to avoid payment of any income or excise tax taxes imposed under Section 857(b)(1), 857(b)(3) or 4981 of the Internal Revenue Code; and . Subsidiaries (Bother than the Borrower) Subsidiaries may pay make Restricted Payments to the Borrower and other Subsidiaries at any time. - 88 - LEGAL02/44384586v6
(a) the purchase or other acquisition of (i) property and assets or businesses of any Person or of assets constituting a business unit, a line of business or division of such Person, (ii) a Property or (iii) Equity Interests in a Person that, upon the consummation thereof, will be a Subsidiary of such Person (including as a result of a merger or consolidation); (b) the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction and any sale or issuance of Equity Interests in a Subsidiary) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any other Subsidiary rights and claims associated therewith; and (c) any incurrence (including by assumption or Guaranty) or repayment (including by redemption, repayment, retirement or extinguishment) of any Indebtedness. All pro forma calculations pursuant to this Section shall be made in good faith by the chief executive officer, chief financial officer or vice president-treasurer of the Borrower and the Borrower or any other Subsidiary of the Parent may pay Restricted Payments to the Parent. Notwithstanding the foregoing sentence, in the event that a Default or Event of Default under Sections 11.1.(a), (e) or (f) exists or would exist after giving effect to such Restricted Payment, or the Obligations have been accelerated in accordance with the terms of this Agreement, then the Parent shall not, nor shall it permit any Subsidiary to make any Restricted Payments to any Person other than to the Borrower or any Subsidiary that is a Guarantor.
Appears in 1 contract
Dividends and Other Restricted Payments. The Parent and the Borrower shall not, and shall not permit any of its the other Subsidiaries to, declare or make any Restricted Payment; provided, except that:
(i) however, that the Parent, the Borrower may (A) make payments on account of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement of the Borrower, or (B) pay cash dividends to the Parent and the other holders of partnership interests in Subsidiaries may declare and make the Borrower, and the Parent may so distribute such cash dividends to its shareholders, in the case of clause (A) or clause (B), following Restricted Payments so long as no Default or Event of Default exists or would result therefrom and so long as therefrom:
(i) the Borrower may pay cash dividends to the Parent shall be and other holders of partnership interests in pro forma compliance the Borrower with respect to any period of four consecutive fiscal quarters during the other covenants set forth in term of this Section 10.1. Agreement to the extent necessary for the periods for which financial statements have been delivered Parent to distribute, and the Parent may so distribute, cash dividends to its shareholders in an aggregate amount not to exceed the greater of (or were i) the amount required to be delivereddistributed for the Parent to remain in compliance with Section 8.12. or (ii) immediately after giving effect thereto95.0% of Funds From Operations;
(ii) both (A) the Borrower may pay cash dividends to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, distribute cash dividends distributions to its shareholders of capital gains resulting from gains from certain asset sales to the extent necessary to avoid payment of taxes on such asset sales imposed under Sections 857(b)(3) and 4981 of the Internal Revenue Code; and
(iii) Subsidiaries may pay Restricted Payments to the Parent, the Borrower or any other Subsidiary. Notwithstanding the foregoing, but subject to the following sentence, if a Default or Event of Default exists, the Borrower may only declare and make cash distributions to the Parent and other holders of partnership interests in the Borrower with respect to any period of four consecutive fiscal quarters to the extent necessary for the Parent to distribute, and the Parent may so distribute, an aggregate amount not to exceed the greater of (x) the minimum amount required to be distributed necessary for the Parent to remain in compliance with Section 8.148.12. and (y) the amount necessary for the Parent to avoid income or excise tax under the Internal Revenue Code; and (B) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary of the Borrower and the Borrower or any other Subsidiary of the Parent may pay Restricted Payments to the Parent. Notwithstanding the foregoing sentence, in the event that If a Default or Event of Default under Sections specified in Section 11.1.(a), (eSection 11.1.(b), Section 11.1.(e) or (fSection 11.1.(f) exists or would exist after giving effect to such Restricted Paymentshall exist, or if as a result of the occurrence of any other Event of Default any of the Obligations have been accelerated in accordance with the terms of this Agreementaccelerated, then the Parent and the Borrower shall not, nor and shall it not permit any other Subsidiary to to, make any Restricted Payments to any Person other than to the Borrower or any Subsidiary that is a GuarantorPerson.
Appears in 1 contract
Samples: Credit Agreement (Pacific Office Properties Trust, Inc.)
Dividends and Other Restricted Payments. The Neither the Borrower nor the Parent shall notshall, and neither the Parent nor the Borrower shall not permit any of its Subsidiaries to, declare or make any Restricted Payment; provided, except that:
(i) however, that the Borrower and its Subsidiaries may (A) declare and make payments on account of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement of the Borrower, or (B) pay cash dividends to the Parent and the other holders of partnership interests in the Borrower, and the Parent may so distribute such cash dividends to its shareholders, in the case of clause (A) or clause (B), following Restricted Payments so long as no Default or Event of Default exists or would result therefrom and so long as the Parent shall be in pro forma compliance with the other covenants set forth in this Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) immediately after giving effect thereto;therefrom:
(ii) both (Ai) the Borrower may pay cash dividends to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, cash dividends to its shareholders in an aggregate amount not to exceed the greater of (xi) the amount required to be distributed for the Parent to remain in compliance with Section 8.148.11. or (ii) 95.0% of Funds From Operation of the Parent and its Subsidiaries for such period;
(yii) the amount necessary for Parent may acquire Equity Interests in the Borrower or any other direct or indirect Subsidiary of the Parent to avoid income or excise tax under in exchange for common stock of the Internal Revenue CodeParent; and and
(Biii) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary of the Borrower and the Borrower or any other Subsidiary of the Parent may pay Restricted Payments to the ParentSubsidiary. Notwithstanding the foregoing foregoing, but subject to the following sentence, in the event that if a Default or Event of Default under Sections exists, the Borrower may only declare or make cash distributions to its shareholders during any fiscal year in an aggregate amount not to exceed the minimum amount necessary for the Parent to remain in compliance with Section 8.11. If a Default or Event of Default specified in Section 11.1.(a), (eSection 11.1.(e) or (fSection 11.1.(f) exists or would exist after giving effect to such Restricted Paymentshall exist, or if as a result of the occurrence of any other Event of Default any of the Obligations have been accelerated in accordance with the terms of this Agreementpursuant to Section 11.2.(a), then neither the Parent nor the Borrower shall, and neither the Parent nor the Borrower shall not, nor shall it permit any Subsidiary to to, make any Restricted Payments to any Person other than to the Borrower or any Subsidiary that is a GuarantorSubsidiary.
Appears in 1 contract
Dividends and Other Restricted Payments. The Parent shall not, and shall not permit the Borrower or any of their Subsidiaries (other than Parkway Properties Office Fund, L.P., Parkway Properties Office Fund II, L.P. and any other Consolidated Affiliate (provided that the Administrative Agent has given its Subsidiaries prior written consent to such Consolidated Affiliate being excluded from the restrictions of this subsection (g)) to, declare or make any Restricted Payment; provided, except that:
(i) however, that the Parent, the Borrower and their respective Subsidiaries may (A) declare and make payments on account of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement of the Borrower, or (B) pay cash dividends to the Parent and the other holders of partnership interests in the Borrower, and the Parent may so distribute such cash dividends to its shareholders, in the case of clause (A) or clause (B), following Restricted Payments so long as no Default or Event of Default exists or would result therefrom and so long as the Parent shall be in pro forma compliance with the other covenants set forth in this Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) immediately after giving effect thereto;therefrom:
(ii) both (Ai) the Borrower may pay cash dividends to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, cash dividends to its shareholders in an aggregate amount not to exceed the greater of (xi) the amount required to be distributed for the Parent to remain in compliance with Section 8.147.12. and or (yii) 90% of Funds From Operations;
(ii) the amount Borrower may pay cash dividends to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute cash distributions to its shareholders of capital gains resulting from gains from certain asset sales to the extent necessary to avoid income or excise tax payment of taxes on such asset sales imposed under Sections 857(b)(3) and 4981 of the Internal Revenue Code;
(iii) a Subsidiary that is not a Wholly Owned Subsidiary may make cash distributions to holders of Equity Interests issued by such Subsidiary; and and
(Biv) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary of the Borrower and the Borrower or any other Subsidiary of the Parent may pay Restricted Payments to the ParentSubsidiary. Notwithstanding the foregoing foregoing, but subject to the following sentence, in the event that if a Default or Event of Default under Sections 11.1.(aexists, the Borrower may only declare and make cash distributions to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year to the extent necessary for the Parent to distribute, and the Parent may so distribute, an aggregate amount not to exceed the minimum amount necessary for the Parent to remain in compliance with Section 7.12. If a Default or Event of Default specified in Section 10.1.(a), (eSection 10.1.(b), Section 10.1.(e) or (fSection 10.1.(f) exists or would exist after giving effect to such Restricted Paymentshall exist, or if as a result of the occurrence of any other Event of Default any of the Obligations have been accelerated in accordance with the terms of this Agreementpursuant to Section 10.2.(a), then the Parent shall not, nor and shall it not permit the Borrower or any Subsidiary to to, make any Restricted Payments to any Person other than to the Parent, the Borrower or any Subsidiary that is a GuarantorSubsidiary.
Appears in 1 contract
Dividends and Other Restricted Payments. The Parent and the Borrower shall not, and shall not permit any of its their Subsidiaries to, declare or make any Restricted Payment, except that:
(i) the Borrower may (A) make payments on account of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement of the Borrower, or (B) pay cash dividends to the Parent and the other holders of partnership interests in the Borrower, and the Parent may so distribute such cash dividends to its shareholders, in the case of clause (A) or clause (B), Payment so long as no any Default or Event of Default exists or would result therefrom and so long as therefrom. Notwithstanding the foregoing, unless a Default or Event of Default specified in Section 11.1(a) resulting from the Borrower’s failure to pay when due the principal of, or interest on, any of the Loans or any Fees or Section 11.1(e) or (f), in each case, solely with respect to the Parent or the Borrower, shall have occurred and be in pro forma compliance with continuing, or if as a result of the occurrence of any other covenants set forth in this Section 10.1. for Event of Default the periods for which financial statements Obligations have been delivered (or were required accelerated pursuant to be delivered) immediately after giving effect thereto;
(ii) both (A) Section 11.2(a), the Borrower and its Subsidiaries and any other Subsidiary of the Parent may pay cash dividends and distributions to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, cash dividends and distributions to its shareholders in an aggregate amount not to exceed the greater of (x) the amount required to be distributed for the Parent to (x) remain in compliance with Section 8.14. 8.12 and (y) the amount necessary for as long as the Parent to qualifies as a REIT, avoid the payment of U.S. federal or state income or excise tax under by the Internal Revenue Code; and (B) Parent. Subsidiaries may pay other than the Borrower may, at any time, make Restricted Payments (x) to the Borrower and the other Subsidiaries that are Guarantors or (y) to Subsidiaries that are not Guarantors, so long as such Restricted Payments are substantially concurrently distributed, directly or indirectly, to the Borrower or any other Subsidiary of the Borrower and the Borrower or any other Subsidiary of the Parent may pay Restricted Payments to the Parent. Notwithstanding the foregoing sentence, in the event that a Default or Event of Default under Sections 11.1.(a), (e) or (f) exists or would exist after giving effect to such Restricted Payment, or the Obligations have been accelerated in accordance with the terms of this Agreement, then the Parent shall not, nor shall it permit any Subsidiary to make any Restricted Payments to any Person other than to the Borrower or any Subsidiary that is a Guarantor.
Appears in 1 contract
Samples: Credit Agreement (VEREIT Operating Partnership, L.P.)
Dividends and Other Restricted Payments. The Parent and the Borrower shall not, and shall not permit any of its the other Subsidiaries to, declare or make any Restricted Payment; provided, except thathowever, that the Parent, the Borrower and the other Subsidiaries may declare and make the following Restricted Payments:
(i) the Borrower may (A) make payments on account of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement of the Borrower, or (B) pay cash dividends to the Parent and the other holders of partnership interests in the Borrower, and the Parent may so distribute such cash dividends to its shareholders, in the case of clause (A) or clause (B), so long as no Default or Event of Default exists or would result therefrom and so long as the Parent shall be in pro forma compliance with the other covenants set forth in this Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) immediately after giving effect thereto;
(ii) both (A) the Borrower may pay cash dividends to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, cash dividends to its shareholders in an aggregate amount not to exceed the greater of (x) the amount required to be distributed for the Parent to remain in compliance with Section 8.147.11. or (y) 95.0% of Funds From Operations;
(ii) the Borrower may pay cash dividends to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute cash distributions to its shareholders of capital gains resulting from gains from certain asset sales to the extent necessary to avoid payment of taxes on such asset sales imposed under Sections 857(b)(3) and 4981 of the Internal Revenue Code;
(iii) the Parent may repurchase Equity Interest in the Parent so long as (x) immediately prior thereto, and immediately thereafter and after giving effect thereto, 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 any of the covenants contained in Section 9.1.; (y) Net Worth immediately after giving pro forma effect to such repurchase would not be less than (1) $1,800,000,000 plus (2) 75% of the Net Proceeds of all Equity Issuances effected at any time after the Agreement Date by the Parent, any of its Subsidiaries or any Unconsolidated Affiliate to any Person other than the Parent or any of its Subsidiaries (with the amount of any increase under clause (2) resulting from Equity Issuances effected by an Unconsolidated Affiliate being limited to the Parent’s Ownership Share of such Unconsolidated Affiliate) and (z) at least 5 Business Days before such repurchase (or in the case of a repurchase program approved by the Parent’s board of directors, 5 Business Days before the first repurchase effected under such program), 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 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 repurchase (or in the case of a repurchase program approved by the Parent’s board of directors, 5 Business Days before the first repurchase effected under such program); and
(iv) so long as no Default or Event of Default would result therefrom, Restricted Payments (x) resulting from repurchases of Equity Interests in the Parent deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options or (y) made for purposes of permitting, directly or indirectly, the repurchase of Equity Interests in the Parent from present or former officers, directors, consultants, agents or employees (or their estates, trusts, family members or former spouses) of the Loan Parties and their Subsidiaries, so long as the amount of such Restricted Payments in the case of both clauses (x) and (y) does not exceed $10,000,000 in the aggregate in any fiscal year. Notwithstanding the foregoing, if an Event of Default specified in Section 10.1.(a) exists or if as a result of the occurrence of any other Event of Default any of the Obligations have been accelerated, the Parent and the Borrower shall not, and shall not permit any other Subsidiary to, make any Restricted Payments to any Person except that the Borrower may declare and make cash distributions to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year to the extent necessary for the Parent to distribute, and the Parent may so distribute, an aggregate amount not to exceed the minimum amount necessary for the Parent to avoid income or excise tax under remain in compliance with Section 7.11. Notwithstanding anything to the Internal Revenue Code; and (B) contrary in this Section, Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary of the Borrower and the Borrower or at any other Subsidiary of the Parent may pay Restricted Payments to the Parent. Notwithstanding the foregoing sentence, in the event that a Default or Event of Default under Sections 11.1.(a), (e) or (f) exists or would exist after giving effect to such Restricted Payment, or the Obligations have been accelerated in accordance with the terms of this Agreement, then the Parent shall not, nor shall it permit any Subsidiary to make any Restricted Payments to any Person other than to the Borrower or any Subsidiary that is a Guarantortime.
Appears in 1 contract
Dividends and Other Restricted Payments. The Parent and the Borrower shall not, and shall not permit any of its the other Subsidiaries to, declare or make any Restricted Payment; provided, except thathowever, that the Parent, the Borrower and the other Subsidiaries may declare and make the following Restricted Payments:
(i) the Borrower may (A) make payments on account of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement of the Borrower, or (B) pay cash dividends to the Parent and the other holders of partnership interests in the Borrower, and the Parent may so distribute such cash dividends to its shareholders, in the case of clause (A) or clause (B), so long as no Default or Event of Default exists or would result therefrom and so long as the Parent shall be in pro forma compliance with the other covenants set forth in this Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) immediately after giving effect thereto;
(ii) both (A) the Borrower may pay cash dividends to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, cash dividends to its shareholders in an aggregate amount not to exceed the greater of (x) the amount required to be distributed for the Parent to remain in compliance with Section 8.147.11. or (y) 95.0% of Funds from Operations;
(ii) the Borrower may pay cash dividends to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute cash distributions to its shareholders of capital gains resulting from gains from certain asset sales to the extent necessary to avoid payment of taxes on such asset sales imposed under Sections 857(b)(3) and 4981 of the Internal Revenue Code;
(iii) the Parent may repurchase Equity Interest in the Parent so long as (x) immediately prior thereto, and immediately thereafter and after giving effect thereto, 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 any of the covenants contained in Section 9.1.; (y) Net Worth immediately after giving pro forma effect to such repurchase would not be less than (1) $1,800,000,000 plus (2) 75% of the Net Proceeds of all Equity Issuances effected at any time after May 19, 2011 by the Parent, any of its Subsidiaries or any Unconsolidated Affiliate to any Person other than the Parent or any of its Subsidiaries (with the amount of any increase under clause (2) resulting from Equity Issuances effected by an Unconsolidated Affiliate being limited to the Parent’s Ownership Share of such Unconsolidated Affiliate) and (z) at least 5 Business Days before such repurchase (or in the case of a repurchase program approved by the Parent’s board of directors, 5 Business Days before the first repurchase effected under such program), 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 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 repurchase (or in the case of a repurchase program approved by the Parent’s board of directors, 5 Business Days before the first repurchase effected under such program); and
(iv) so long as no Default or Event of Default would result therefrom, Restricted Payments (x) resulting from repurchases of Equity Interests in the Parent deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options or (y) made for purposes of permitting, directly or indirectly, the repurchase of Equity Interests in the Parent from present or former officers, directors, consultants, agents or employees (or their estates, trusts, family members or former spouses) of the Loan Parties and their Subsidiaries, so long as the amount of such Restricted Payments in the case of both clauses (x) and (y) does not exceed $10,000,000 in the aggregate in any fiscal year. Notwithstanding the foregoing, if an Event of Default specified in Section 10.1.(a) exists or if as a result of the occurrence of any other Event of Default any of the Obligations have been accelerated, the Parent and the Borrower shall not, and shall not permit any other Subsidiary to, make any Restricted Payments to any Person except that the Borrower may declare and make cash distributions to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year to the extent necessary for the Parent to distribute, and the Parent may so distribute, an aggregate amount not to exceed the minimum amount necessary for the Parent to avoid income or excise tax under remain in compliance with Section 7.11. Notwithstanding anything to the Internal Revenue Code; and (B) contrary in this Section, Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary of the Borrower and the Borrower or at any other Subsidiary of the Parent may pay Restricted Payments to the Parent. Notwithstanding the foregoing sentence, in the event that a Default or Event of Default under Sections 11.1.(a), (e) or (f) exists or would exist after giving effect to such Restricted Payment, or the Obligations have been accelerated in accordance with the terms of this Agreement, then the Parent shall not, nor shall it permit any Subsidiary to make any Restricted Payments to any Person other than to the Borrower or any Subsidiary that is a Guarantortime.
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Samples: Term Loan Agreement (Equity Lifestyle Properties Inc)
Dividends and Other Restricted Payments. The (i) Parent shall notnot at any time (x) declare or make any Restricted Purchase or (y) subject to clause (d)(iii) below, increase the quarterly dividend payable on Equity Interests of the Parent to an amount greater than $0.01 per share; provided that Parent may make Restricted Purchases of Equity Interests from certain of its current and former trustees and officers and from certain current and former officers and employees of RMR, in each case, in satisfaction of tax withholding and payment obligations in connection with the vesting of awards of Equity Interests or upon the forfeiture of any such grant or award in accordance with its terms.
(ii) The Borrower shall not permit any of its Subsidiaries to, to declare or make any Restricted Payment, Payments except that:
(i) the Borrower may (A) make payments on account of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement of the Borrower, or (B) pay cash dividends to the Parent and the other holders of partnership interests in the Borrower, and the Parent may so distribute such cash dividends to its shareholders, in the case of clause (A) or clause (B), so long as no Default or Event of Default exists at the time of declaration or would result therefrom payment thereof, (A) Subsidiaries of the Borrower may make distributions to a Subsidiary Owner from time to time, and so long as (B) Subsidiaries of the Borrower may make distributions to the Borrower (or any Person designated by the Borrower) once per fiscal quarter of Parent in an aggregate amount (collectively for all such distributions from such Subsidiary Owners to the Borrower) not to exceed the amount of Excess Cash Flow attributable to previously ended fiscal quarters and then on deposit in the Collateral Property Accounts (i.e., not previously distributed or otherwise applied) (distributions pursuant to this clause (ii)(B), collectively, an “ECF Distribution”). For the avoidance of doubt, (x) there shall be no more than one (1) ECF Distribution in pro forma compliance with any fiscal quarter of Parent, (y) no revenue from any then-current fiscal quarter shall be available for distribution as an ECF Distribution pursuant to this Section, and (z) if Excess Cash Flow as reported by the other covenants Borrower pursuant to Section 8.4(p) is equal to or less than zero for any fiscal quarter, there shall be no resulting ECF Distribution attributable to such fiscal quarter.
(iii) Subject to clause (iv) immediately below, if an Event of Default exists, none of Parent, Holdings and the Borrower shall, nor shall any of Parent, Holdings or the Borrower permit any Subsidiary of Holdings to, declare or make any Restricted Payments; provided that, notwithstanding such restriction and any such restriction set forth in this Section 10.1. for the periods for which financial statements have been delivered clause (or were required to be deliveredd)(i) immediately after giving effect thereto;
(ii) both (A) above, the Borrower may pay cash dividends make distributions to the Holdings, and Holdings may in turn make distributions to Parent, and Parent may declare and other holders of partnership interests make distributions, in each case, in an amount to permit Parent (in the Borrower aggregate, together with respect all other distributions to any fiscal year ending during the term of this Agreement Parent from its Subsidiaries) to the extent necessary for the Parent to distribute, declare and the Parent may so distribute, make cash dividends distributions to its shareholders in an aggregate amount not to exceed the greater of (x) the minimum amount required to be distributed necessary for the Parent to remain in compliance with Section 8.14. and (y) the amount necessary for the Parent 7.11 or to avoid the imposition of income or excise tax taxes imposed under Sections 857(b)(1), 857(b)(3) or 4981 of the Internal Revenue Code; and .
(Biv) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary of the Borrower and the Borrower or any other Subsidiary of the Parent may pay Restricted Payments to the Parent. Notwithstanding the foregoing sentence, in the event that a Default or If an Event of Default under Sections 11.1.(aspecified in Section 10.1(a), (eSection 10.1(e) or (fSection 10.1(f) exists or would exist after giving effect to such Restricted Paymentshall exist, or if as a result of the occurrence of any other Event of Default any of the Obligations have been accelerated in accordance with pursuant to Section 10.2(a), none of Parent, Holdings and the terms of this Agreement, then the Parent shall notBorrower shall, nor shall it any of Parent, Holdings or the Borrower permit any Subsidiary to of Holdings to, make any Restricted Payments to any Person other than to the Borrower or any Subsidiary that is a GuarantorPerson.
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Dividends and Other Restricted Payments. The Parent and the Borrower shall not, and shall not permit any of its the other Subsidiaries to, declare or make any Restricted Payment; provided, except thathowever, that the Parent, the Borrower and the other Subsidiaries may declare and make the following Restricted Payments:
(i) the Borrower may (A) make payments on account of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement of the Borrower, or (B) pay cash dividends to the Parent and the other holders of partnership interests in the BorrowerBorrower with respect to any fiscal year to the extent necessary for the Parent to distribute, and the Parent may so distribute such distribute, cash dividends to its shareholders, shareholders in an aggregate amount not to exceed the case greater of clause (Ax) an amount equal to 100.0% of its “real estate investment trust taxable income” within the meaning of Section 857(b)(2) of the Internal Revenue Code for each taxable year or clause (B), so long as no Default or Event y) 95.0% of Default exists or would result therefrom and so long as the Parent shall be in pro forma compliance with the other covenants set forth in this Section 10.1. for the periods for which financial statements have been delivered (or were required to be delivered) immediately after giving effect theretoFunds from Operations;
(ii) both (A) the Borrower may pay cash dividends to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, cash dividends distributions to its shareholders of capital gains resulting from gains from certain asset sales to the extent necessary to avoid payment of taxes on such asset sales imposed under Sections 857(b)(3) and 4981 of the Internal Revenue Code;
(iii) the Parent may repurchase Equity Interest in the Parent so long as (x) immediately prior thereto, and immediately thereafter and after giving effect thereto, 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 any of the covenants contained in Section 9.1.; (y) Net Worth immediately after giving pro forma effect to such repurchase would not be less than (1) $2,213,882,161 plus (2) 75% of the Net Proceeds of all Equity Issuances effected at any time after the Agreement Date by the Parent, any of its Subsidiaries or any Unconsolidated Affiliate to any Person other than the Parent or any of its Subsidiaries (with the amount of any increase under clause (2) resulting from Equity Issuances effected by an Unconsolidated Affiliate being limited to the Parent’s Ownership Share of such Unconsolidated Affiliate) and (z) at least 5 Business Days before such repurchase (or in the case of a repurchase program approved by the Parent’s board of directors, 5 Business Days before the first repurchase effected under such program), 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 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 repurchase (or in the case of a repurchase program approved by the Parent’s board of directors, 5 Business Days before the first repurchase effected under such program); and
(iv) so long as no Default or Event of Default would result therefrom, Restricted Payments (x) resulting from repurchases of Equity Interests in the Parent deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options or (y) made for purposes of permitting, directly or indirectly, the repurchase of Equity Interests in the Parent from present or former officers, directors, consultants, agents or employees (or their estates, trusts, family members or former spouses) of the Loan Parties and their Subsidiaries, so long as the amount of such Restricted Payments in the case of both clauses (x) and (y) does not exceed $10,000,000 in the aggregate in any fiscal year.
(a) exists or if as a result of the occurrence of any other Event of Default any of the Obligations have been accelerated, the Parent and the Borrower shall not, and shall not permit any other Subsidiary to, make any Restricted Payments to any Person except that the Borrower may declare and make cash distributions to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year to the extent necessary for the Parent to distribute, and the Parent may so distribute, an aggregate amount not to exceed the greater of (x) the minimum amount required to be distributed necessary for the Parent to remain in compliance with Section 8.147.11. and (y) Notwithstanding anything to the amount necessary for the Parent to avoid income or excise tax under the Internal Revenue Code; and (B) contrary in this Section, Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary of the Borrower and the Borrower or at any other Subsidiary of the Parent may pay Restricted Payments to the Parent. Notwithstanding the foregoing sentence, in the event that a Default or Event of Default under Sections 11.1.(a), (e) or (f) exists or would exist after giving effect to such Restricted Payment, or the Obligations have been accelerated in accordance with the terms of this Agreement, then the Parent shall not, nor shall it permit any Subsidiary to make any Restricted Payments to any Person other than to the Borrower or any Subsidiary that is a Guarantortime.
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