Dividends and Other Restricted Payments. The Parent shall not, and shall not permit the Borrower or any of their Subsidiaries to, declare or make any Restricted Payment; provided, however, that the Parent, the Borrower and their respective Subsidiaries may declare and make the following Restricted Payments so long as no Default or Event of Default would result therefrom: (i) the 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 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 7.12. or (ii) 90% of Funds From Operations; (ii) the 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 payment of taxes under Section 857 (including, without limitation, Section 857(b)(3)) and Section 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; (iv) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary; (v) the Borrower or any other Subsidiary of the Parent may 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, 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 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), 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 Parent shall not, and shall not permit the Borrower or any Subsidiary to, make any Restricted Payments to any Person other than to the Parent, the Borrower or any Subsidiary. (m) The Credit Agreement is hereby further amended by restating Section 9.1.(h)(ii) in its entirety to read as follows:
Appears in 2 contracts
Samples: Credit Agreement (Parkway Properties Inc), Term Loan Agreement (Parkway Properties Inc)
Dividends and Other Restricted Payments. The Parent shall not, and shall not permit the Borrower or any of their Subsidiaries to, declare or make any Restricted Payment; provided, however, that the Parent, the Borrower and their respective Subsidiaries may declare and make the following Restricted Payments so long as no Default or Event of Default would result therefrom:
(i) the 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 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 7.12. or (ii) 90% of Funds From Operations;
(ii) the 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 payment of taxes under Section 857 (including, without limitation, Section 857(b)(3)) and Section 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;
(iv) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary;
(v) the Borrower or any other Subsidiary of the Parent may 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, 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 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 an Event of Default specified in under Section 10.1.(a11.1(a), Section 10.1.(e11.1(e) or Section 10.1.(f11.1(f) shall existexist or, 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.(a11.2(a), 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 directly or indirectly declare or make, or incur any liability to make, any Restricted Payments. 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:
(A) Any Subsidiary may make cash distributions to any Eligible Subsidiary or the Borrower and 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 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 Preferred Stock or common Equity Interests in an aggregate amount not to exceed the greatest of (i) 95% of Funds From Operations, (ii) the amount required for the Parent Guarantor to 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 (iii) the amount necessary for the Parent Guarantor to avoid income or excise tax under the Internal Revenue Code;
(B) 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 shall notGuarantor, the Borrower and shall not permit any Subsidiary, each as applicable, may make cash payments:
(1) to redeem Equity Interests in the Borrower or any Subsidiary toin accordance with the terms of the charter, make any Restricted Payments articles of incorporation or by-laws, operating agreement, partnership agreement or other organizational document of such entity;
(2) of Preferred Dividends as required to any Person other than be paid to holders of Preferred Stock;
(3) to purchase Equity Interests from employees of the ParentParent Guarantor, the Borrower or any Subsidiary.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;
(m4) The Credit Agreement is hereby further amended by restating 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 9.1.(h)(ii) in its entirety to read as follows: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: Term Loan Agreement (Chesapeake Lodging Trust), Credit Agreement (Chesapeake Lodging Trust)
Dividends and Other Restricted Payments. The Parent shall Constituent Companies will not, and shall will not permit the Borrower any Subsidiary to, redeem, purchase, repurchase or otherwise acquire any Equity Interests of either Constituent Company or any of their its Subsidiaries from any Person other than a Constituent Company or a Subsidiary unless (a) no Default or Event of Default exists or would result therefrom and (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 compliance with the Specified Financial Covenants after giving pro forma effect 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 Payment; provided, however, Payments except that the Parent, the Borrower and their respective Subsidiaries may declare and make the following Restricted Payments so long as no Default or Event of Default would result therefrom:
(i1) the Borrower Issuer 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 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 7.12. or (ii) 90% of Funds From Operations;
(ii) the 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 payment of taxes under Section 857 (including, without limitation, Section 857(b)(3)) and Section 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;
(iv) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary;
(v) the Borrower or any other Subsidiary of the Parent may 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, 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 Guarantor and other holders of partnership interests Equity Interests in the Borrower Issuer with respect to any fiscal year to the extent necessary for the Parent Guarantor to distribute, and the Parent Guarantor may so distribute, (i) make cash or equity distributions in an aggregate amount not to exceed the minimum amount necessary for the Parent Guarantor to remain in compliance with Section 7.12. If satisfy the requirements for qualification and taxation as a Default REIT and not be subject to income or Event of Default specified in Section 10.1.(aexcise taxation under sections 857(b)(1), Section 10.1.(e) 857(b)(3), 860 or Section 10.1.(f) shall exist, or if as a result 4981 of the occurrence of any other Event of Default any Code and (ii) make additional distributions in common Equity Interests of the Obligations have been accelerated pursuant to Section 10.2.(a)Parent Guarantor in an amount under this clause (ii) that, when combined with the distributions under clause (i) above, do not exceed 100% of the taxable income of the Parent shall not, Guarantor determined in accordance with section 857(b)(2) of the Code and shall not permit (2) Subsidiaries of the Borrower or 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 ParentBank Credit Agreement, and the Borrower or any SubsidiarySurge Period shall not be deemed to be utilized.
(m) The Credit Agreement is hereby further amended by restating Section 9.1.(h)(ii) in its entirety to read as follows:
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 Each of the Parent and the Borrower shall not, and shall not permit the Borrower or any of their its Subsidiaries to, declare or make any Restricted Payment; provided, however, that each of the Parent, the Borrower and their respective its Subsidiaries may declare and make the following Restricted Payments so long as no Default or Event of Default is continuing or would result therefrom:
(i) the Borrower may pay cash distributions 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 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 7.12. 8.12 or (ii) 9095% of Funds From OperationsOperation;
(ii) the Borrower may pay cash distributions 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 (including, without limitation, distributions constituting “capital gains dividends”) 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 Section 857 (including, without limitation, Section Sections 857(b)(3)) and Section 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 SubsidiarySubsidiary 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;
(v) the Borrower or any other Subsidiary of the Parent may 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 other Subsidiary; and
(v) to the extent consummated in advance of or repurchase its Preferred Stockin connection with and made substantially concurrently with an IPO Event, at par or at a discountRestricted Payments made pursuant to any tender offer for the Equity Interests of the Parent. 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 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 7.128.12. If a Default or Event of Default specified in Section 10.1.(a), Section 10.1.(e11.1(a) or Section 10.1.(f11.1(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.(a11.2(a), the Parent shall not, and the Borrower shall not permit the Borrower or any Subsidiary to, make any Restricted Payments. Subsidiaries of the Parent (other than the Borrower) may make Restricted Payments to any Person other than to the Parent, the Borrower or and other Subsidiaries at any Subsidiarytime.
(m) The Credit Agreement is hereby further amended by restating Section 9.1.(h)(ii) in its entirety to read as follows:
Appears in 2 contracts
Samples: Credit Agreement (Tier Reit Inc), Credit Agreement (Tier Reit Inc)
Dividends and Other Restricted Payments. The Parent and the Borrower shall not, and shall not permit the Borrower or any of their Subsidiaries to, declare or make any Restricted Payment; provided, however, that the Parent, the Borrower and their respective Subsidiaries may declare and make the following Restricted Payments so long as no Default or Event of Default would result 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 (i) the amount required to be distributed for the Parent to remain in compliance with Section 8.12. or (ii) ninety-five percent (95%) of Funds From Operations. Notwithstanding the foregoing, but subject to the following sentence, if a Default or Event of Default exists, the Parent may only cause the Borrower may pay (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 distributions 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 7.12. or (ii) 90% of Funds From Operations;
(ii) the 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 payment of taxes under Section 857 (including, without limitation, Section 857(b)(3)) and Section 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;
(iv) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary;
(v) the Borrower or any other Subsidiary of the Parent may 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 discount8.12. 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 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)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, Section 10.1.(e11.1.(e) or Section 10.1.(f(f) shall existhave occurred and be continuing, 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.(a11.2.(a), the Parent and the Borrower shall not, and shall not permit the Borrower or any other Subsidiary to, make any Restricted Payments to any Person whatsoever. Subsidiaries other than the Borrower may make Restricted Payments to the Parent, Borrower and the Borrower or other Subsidiaries at any Subsidiarytime.
(m) The Credit Agreement is hereby further amended by restating Section 9.1.(h)(ii) in its entirety to read as follows:
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 prior written consent to such Consolidated Affiliate being excluded from the restrictions of this subsection (g))) to, declare or make any Restricted Payment; provided, however, that the Parent, the Borrower and their respective Subsidiaries may declare and make the following Restricted Payments so long as no Default or Event of Default would result therefrom:
(i) the Borrower may pay cash distributions 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 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 7.12. or (ii) 90% of Funds From Operations;
(ii) the Borrower may pay cash distributions 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 (including, without limitation, distributions constituting “capital gains dividends”) 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 Section 857 (including, without limitation, Section Sections 857(b)(3)) and Section 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
(iv) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary;
(v) the Borrower or any other Subsidiary of the Parent may 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, 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 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), Section 10.1.(b), 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 Parent shall not, and shall not permit the Borrower or any Subsidiary to, make any Restricted Payments to any Person other than to the Parent, the Borrower or any Subsidiary.
(m) The Credit Agreement is 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 Parent shall not, and shall not permit the Borrower or any of their its Subsidiaries to, declare or make any Restricted Payment; provided, however, that the Parent, 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 their respective Subsidiaries the other holders of partnership interests in the Borrower, and the Parent may declare and make so distribute such cash dividends to its shareholders, in the following Restricted Payments case of clause (A) or clause (B), so long as no Default or Event of Default exists or would result therefrom: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;
(iii) both (A) the Borrower may pay cash distributions 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 dividends to its shareholders in an aggregate amount not to exceed the greater of (ix) the amount required to be distributed for the Parent to remain in compliance with Section 7.128.14. or and (ii) 90% of Funds From Operations;
(iiy) the 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 amount 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 payment of taxes income or excise tax under Section 857 (including, without limitation, Section 857(b)(3)) and Section 4981 of the Internal Revenue Code;
; and (iii) a Subsidiary that is not a Wholly Owned Subsidiary may make cash distributions to holders of Equity Interests issued by such Subsidiary;
(ivB) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary;
(v) Subsidiary of the Borrower and the Borrower or any other Subsidiary of the Parent may 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) pay Restricted Payments to the Parent, the Borrower or any Subsidiary may redeem or repurchase its Preferred Stock, at par or at a discount. Notwithstanding the foregoing, but subject to the following foregoing sentence, if in the event that 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. If a Default or Event of Default specified in Section 10.1.(aunder Sections 11.1.(a), Section 10.1.(e(e) or Section 10.1.(f(f) shall existexists or would exist after giving effect to such Restricted Payment, 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)in accordance with the terms of this Agreement, then the Parent shall not, and nor shall not it permit the Borrower or any Subsidiary to, to make any Restricted Payments to any Person other than to the Parent, the Borrower or any SubsidiarySubsidiary that is a Guarantor.
(m) The Credit Agreement is hereby further amended by restating Section 9.1.(h)(ii) in its entirety to read as follows:
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 their Subsidiaries to, declare or make any Restricted Payment; provided, however, that the Parent, the Borrower and their respective Subsidiaries may declare and make the following Restricted Payments so long as no Default or Event of Default would result therefrom:
(i) the 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 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 7.12. or (ii) 90% of Funds From Operations;
(ii) the 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 of the Parent to the extent necessary to avoid payment of taxes under Section 857 (including, without limitation, Section 857(b)(3)) and Section 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;
(iv) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary;
(v) the Borrower or any other Subsidiary of the Parent may 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; 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 extent necessary for the Parent to make such purchases of its common stock. 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 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 857(b)(1), 857(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 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 Parent shall not, and shall not permit the Borrower or any Subsidiary to, make any Restricted Payments to any Person other than to the Parent, the Borrower or any Subsidiary.
(m) The Credit Agreement is 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 Parent and the Borrower shall not, and shall not permit any of their Subsidiaries to, redeem, purchase, repurchase or otherwise acquire any Equity Interests of the Parent, the Borrower or any of their Subsidiaries from any Person other than the Parent, the Borrower or a Subsidiary unless (i) no Default or Event of Default exists or would result therefrom and (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 and the Borrower will be in compliance with the covenants contained in Section 10.1. after giving pro forma effect 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 Payment; provided, however, Payments except that the Parent, the Borrower and their respective Subsidiaries may declare and make the following Restricted Payments so long as no Default or Event of Default would result therefrom:
(i) the 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 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 7.12. or (ii) 90% of Funds From Operations;
(ii) the 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 payment of taxes under Section 857 (including, without limitation, Section 857(b)(3)) and Section 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;
(iv) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary;
(v) the Borrower or any other Subsidiary of the Parent may 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, 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 Equity 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, (A) make cash or equity distributions in an aggregate amount not to exceed the minimum amount necessary for the Parent to remain satisfy the requirements for qualification and taxation as a REIT and not be subject to income or excise taxation under Sections 857(b)(1), 857(b)(3), 860 or 4981 of the Internal Revenue Code and (B) make additional distributions in compliance 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 7.12. If a Default or Event of Default specified in Section 10.1.(a), Section 10.1.(e857(b)(2) or Section 10.1.(f) shall exist, or if as a result of the occurrence of any other Event of Default any Internal Revenue Code and (ii) Subsidiaries of the Obligations have been accelerated pursuant to Section 10.2.(a), the Parent shall not, and shall not permit the Borrower or any Subsidiary to, 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 Parent, the Borrower or any Subsidiary.
(m) The Credit Agreement type of Equity Interest in respect of which such Restricted Payment is hereby further amended by restating Section 9.1.(h)(ii) in its entirety to read as follows: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 Parent and the Borrower shall not, and shall not permit any of their Subsidiaries to, redeem, purchase, repurchase or otherwise acquire any Equity Interests of the Parent, the Borrower or any of their Subsidiaries from any Person other than the Parent, the Borrower or a Subsidiary unless (i) no Default or Event of Default exists or would result therefrom and (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 and the Borrower will be in compliance with the covenants contained in Section 10.1. after giving pro forma effect 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 Payment; provided, however, Payments except that the Parent, the Borrower and their respective Subsidiaries may declare and make the following Restricted Payments so long as no Default or Event of Default would result therefrom:
(i) the 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 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 7.12. or (ii) 90% of Funds From Operations;
(ii) the 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 payment of taxes under Section 857 (including, without limitation, Section 857(b)(3)) and Section 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;
(iv) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary;
(v) the Borrower or any other Subsidiary of the Parent may 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, 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 Equity 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, (A) make cash or equity distributions in an aggregate amount not to exceed the minimum amount necessary for the Parent to remain satisfy the requirements for qualification and taxation as a REIT and not be subject to income or excise taxation under Sections 857(b)(1), 857(b)(3), 860 or 4981 of the Internal Revenue Code and (B) make additional distributions in compliance 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 7.12. If a Default or Event of Default specified in Section 10.1.(a), Section 10.1.(e857(b)(2) or Section 10.1.(f) shall exist, or if as a result of the occurrence of any other Event of Default any Internal Revenue Code and (ii) Subsidiaries of the Obligations have been accelerated pursuant to Section 10.2.(a), the Parent shall not, and shall not permit the Borrower or any Subsidiary to, 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 Parenttype of Equity Interest in respect of which such Restricted Payment is being made. Notwithstanding the foregoing, during the Covenant Relief Period, the Borrower or any Subsidiary.
(mterms of this 10.1.(k) The Credit Agreement is hereby further amended by restating shall be subject to Section 9.1.(h)(ii) in its entirety to read as follows: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 shall not, and shall not permit the Borrower or any of their Subsidiaries to, declare or make any Restricted Payment; provided, however, that the Parent, the Borrower and their respective Subsidiaries may declare and make the following Restricted Payments so long as no Default or Event of Default would result therefrom:
(i) the 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 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 7.12. or (ii) 90% of Funds From Operations;
(ii) the 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 payment of taxes under Section 857 (including, without limitation, Section 857(b)(3)) and Section 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;
(iv) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary;
(v) the Borrower or any other Subsidiary of the Parent may 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, 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 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 an Event of Default specified in under Section 10.1.(a11.1(a), Section 10.1.(e11.1(e) or Section 10.1.(f11.1(f) shall existexist or, 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.(a11.2(a), 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 directly or indirectly declare or make, or incur any liability to make, any Restricted Payments. 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:
(A) Any Subsidiary may make cash distributions to any Eligible Subsidiary or the Borrower and 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 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 Preferred Stock or common Equity Interests in an aggregate amount not to exceed the greatest of (i) 90% of Funds From Operations, (ii) the amount required for the Parent Guarantor to 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 (iii) the amount necessary for the Parent Guarantor to avoid income or excise tax under the Internal Revenue Code;
(B) 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 shall notGuarantor, the Borrower and shall not permit any Subsidiary, each as applicable, may make cash payments:
(1) to redeem Equity Interests in the Borrower or any Subsidiary toin accordance with the terms of the charter, make any Restricted Payments articles of incorporation or by-laws, operating agreement, partnership agreement or other organizational document of such entity;
(2) of Preferred Dividends as required to any Person other than be paid to holders of Preferred Stock;
(3) to purchase Equity Interests from employees of the ParentParent Guarantor, the Borrower or any Subsidiary.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;
(m4) The Credit Agreement is hereby further amended by restating 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 9.1.(h)(ii) in its entirety to read as follows: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 notParent, and shall not permit the Borrower or any Subsidiary of their Subsidiaries to, the Borrower shall declare or make any Restricted Payment; provided, however, that the Parent, the Borrower and their respective Subsidiaries may declare and make other than any of the following Restricted Payments so long as no Default or Event of Default would result therefrom:therefrom (and such declaration or payment of the Restricted Payment has not been rescinded, returned, unwound or otherwise cancelled for a period of ten (10) days):
(i) 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 distributions dividends to its shareholders in an aggregate amount not to exceed the greater of (ia) the amount required to be distributed for the Parent to remain in compliance with Section 7.12. qualified as a REIT for federal income tax purposes, or (iib) 90% of Funds From Operations;
(ii) 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 distributions (including, without limitation, distributions constituting “capital gains dividends”) 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 Section 857 (including, without limitation, Section Sections 857(b)(3)) and Section 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
(iv) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary;
(v) the Borrower or any other Subsidiary of the Parent may 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 BorrowerLoan Party; and
(vii) the Parentprovided, the Borrower or any Subsidiary may redeem or repurchase its Preferred Stockhowever, at par or at a discount. Notwithstanding the foregoing, but and subject to the following sentenceprovisions of Section 10.1.(j), 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. If a Default or Event of Default specified in Section 10.1.(a), Section 10.1.(e) or Section 10.1.(f) shall exist, or if qualified as a result of the occurrence of any other Event of Default any of the Obligations have been accelerated pursuant to Section 10.2.(aREIT for federal income tax purposes), the Parent shall not, and shall not permit the Borrower or any Subsidiary to, make any Restricted Payments to any Person other than to the Parent, the Borrower or any Subsidiary.
(m) The Credit Agreement is hereby further amended by restating Section 9.1.(h)(ii) in its entirety to read as follows:
Appears in 1 contract
Samples: Credit Agreement (Saul Centers Inc)
Dividends and Other Restricted Payments. The Parent and the Borrower shall not, and shall not permit the Borrower or any of their the other Subsidiaries to, declare or make any Restricted Payment; provided, however, that the Parent, the Borrower and their respective the other Subsidiaries may declare and make the following Restricted Payments so long as no Default or Event of Default would result therefromPayments:
(i) the Borrower may pay cash distributions dividends 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, cash dividends to its shareholders in an aggregate amount not to exceed the greater of (x) 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 (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 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 7.12. or (ii) 90% of Funds From Operations;
(ii) the 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 resulting from gains from certain asset sales to the extent necessary to avoid payment of taxes on such asset sales imposed under Section 857 (including, without limitation, Section Sections 857(b)(3)) and Section 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;
(iv) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary;
(v) the Borrower or any other Subsidiary of the Parent may make purchases of repurchase Equity Interests Interest in any Subsidiary or Unconsolidated Affiliate of the Parent so long as (x) immediately prior thereto, and immediately thereafter and after giving effect thereto, no Default or Event of any of its Subsidiaries that are held by any other Person;
(vi) the Borrower may redeem for cash limited partnership interests Default is or would be in the Borrower; and
(vii) the Parentexistence, the Borrower or any Subsidiary may redeem or repurchase its Preferred Stockincluding, at par or at a discount. Notwithstanding the foregoingwithout limitation, but subject to the following sentence, if a Default or Event of Default existsresulting 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 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 7.127.11. If a Default or Event of Default specified Notwithstanding anything to the contrary in Section 10.1.(a)this Section, 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 Subsidiaries may pay Restricted Payments to Section 10.2.(a), the Parent shall not, and shall not permit the Borrower or any other Subsidiary to, make at any Restricted Payments to any Person other than to the Parent, the Borrower or any Subsidiarytime.
(m) The Credit Agreement is hereby further amended by restating Section 9.1.(h)(ii) in its entirety to read as follows:
Appears in 1 contract
Dividends and Other Restricted Payments. The Parent and the Borrower shall not, and shall not permit the Borrower or any of their Subsidiaries to, declare or make any Restricted Payment; provided, however, that the Parent, the Borrower and their respective Subsidiaries may declare and make the following Restricted Payments so long as no Default or Event of Default would result 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 (i) the amount required to be distributed for the Parent to remain in compliance with Section 8.12. or (ii) ninety-five percent (95%) of Funds From Operations. Notwithstanding the foregoing, but subject to the following sentence, if a Default or Event of Default exists, the Parent may only cause the Borrower may pay (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 distributions 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 7.12. or (ii) 90% of Funds From Operations;
(ii) the 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 payment of taxes under Section 857 (including, without limitation, Section 857(b)(3)) and Section 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;
(iv) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary;
(v) the Borrower or any other Subsidiary of the Parent may 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 discount8.12. 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 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)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, Section 10.1.(e11.1.(e) or Section 10.1.(f(f) shall existhave occurred and be continuing, 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.(a11.2.(a), the Parent and the Borrower shall not, and shall not permit the Borrower or any other Subsidiary to, make any Restricted Payments to any Person whatsoever. Subsidiaries other than the Borrower may make Restricted Payments to the Parent, Borrower and the Borrower or other Subsidiaries at any Subsidiarytime.
(m) The Credit Agreement is hereby further amended by restating Section 9.1.(h)(ii) in its entirety to read as follows:
Appears in 1 contract
Samples: Term Loan Agreement (CBL & Associates Properties Inc)
Dividends and Other Restricted Payments. The Parent and the Borrower shall not, and shall not permit any of their Subsidiaries to, redeem, purchase, repurchase or otherwise acquire any Equity Interests of the Parent, the Borrower or any of their Subsidiaries from any Person other than the Parent, the Borrower or a Subsidiary unless (i) no Default or Event of Default exists or would result therefrom and (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 and the Borrower will be in compliance with the covenants contained in Section 10.1. after giving pro forma effect 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 Payment; provided, however, Payments except that the Parent, the Borrower and their respective Subsidiaries may declare and make the following Restricted Payments so long as no Default or Event of Default would result therefrom:
(i) the 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 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 7.12. or (ii) 90% of Funds From Operations;
(ii) the 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 payment of taxes under Section 857 (including, without limitation, Section 857(b)(3)) and Section 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;
(iv) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary;
(v) the Borrower or any other Subsidiary of the Parent may 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, 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 Equity 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, (A) make cash or equity distributions in an aggregate amount not to exceed the minimum amount necessary for the Parent to remain satisfy the requirements for qualification and taxation as a REIT and not be subject to income or excise taxation under Sections 857(b)(1), 857(b)(3), 860 or 4981 of the Internal Revenue Code and (B) make additional distributions in compliance 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 7.12. If a Default or Event of Default specified in Section 10.1.(a), Section 10.1.(e857(b)(2) or Section 10.1.(f) shall exist, or if as a result of the occurrence of any other Event of Default any Internal Revenue Code and (ii) Subsidiaries of the Obligations have been accelerated pursuant to Section 10.2.(a), the Parent shall not, and shall not permit the Borrower or any Subsidiary to, 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 Parenttype of Equity Interest in respect of which such Restricted Payment is being made. Notwithstanding the foregoing, during the Covenant Relief Period, the Borrower or any Subsidiaryterms of this 10.1.(l) shall be subject to Section 10.11.(a).
(m) The Credit Agreement is hereby further amended by restating Section 9.1.(h)(ii) in its entirety to read as follows:
Appears in 1 contract
Dividends and Other Restricted Payments. The Parent shall not, and shall not permit the Borrower or any of their its Subsidiaries to, declare or make any Restricted Payment; provided, however, that the Parent, the Borrower and their respective Subsidiaries may declare and make the following Restricted Payments so long as no Default or Event of Default would result therefromexcept that:
(i) the Borrower may pay cash distributions 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, 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 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 distributions dividends to its shareholders in an aggregate amount 271385948v.6 not to exceed the greater of (ix) the amount required to be distributed for the Parent to remain in compliance with Section 7.12. or 8.14 and (ii) 90% of Funds From Operations;
(iiy) the 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 amount 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 payment of taxes income or excise tax under Section 857 (including, without limitation, Section 857(b)(3)) and Section 4981 of the Internal Revenue Code;
; and (iii) a Subsidiary that is not a Wholly Owned Subsidiary may make cash distributions to holders of Equity Interests issued by such Subsidiary;
(ivB) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary;
(v) Subsidiary of the Borrower and the Borrower or any other Subsidiary of the Parent may 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) pay Restricted Payments to the Parent, the Borrower or any Subsidiary may redeem or repurchase its Preferred Stock, at par or at a discount. Notwithstanding the foregoing, but subject to the following foregoing sentence, if in the event that 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. If a Default or Event of Default specified in Section 10.1.(aunder Sections 11.1(a), Section 10.1.(e(e) or Section 10.1.(f(f) shall existexists or would exist after giving effect to such Restricted Payment, 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)in accordance with the terms of this Agreement, then the Parent shall not, and nor shall not it permit the Borrower or any Subsidiary to, to make any Restricted Payments to any Person other than to the Parent, the Borrower or any SubsidiarySubsidiary that is a Guarantor.
(m) The Credit Agreement is hereby further amended by restating Section 9.1.(h)(ii) in its entirety to read as follows:
Appears in 1 contract
Samples: Credit Agreement (NETSTREIT Corp.)
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 the Borrower or any of their the other Subsidiaries to, declare or make any Restricted Payment; providedPayments, however, except that notwithstanding the Parent, the Borrower and their respective Subsidiaries may declare and make the following Restricted Payments so long as no Default or existence of an Event of Default would result therefrom:
(i) Default, the Borrower may pay cash distributions 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 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 7.12. or (ii) 90% of Funds From Operations;
(ii) the Borrower may pay cash distributions to the Parent maintain its status as a real estate investment trust 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 payment of any income or excise taxes imposed under Section 857 (including857(b)(1), without limitation, Section 857(b)(3)) and Section or 4981 of the Internal Revenue Code;
. Subsidiaries (iiiother than the Borrower) 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 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 any other Subsidiary;delayed):
(va) the Borrower purchase or other acquisition of (i) property and assets or businesses of any other 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 Parent may make purchases 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 Subsidiary property by any Person, including any sale, assignment, transfer or Unconsolidated Affiliate other disposal, with or without recourse, of any notes or accounts receivable or any 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 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, 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 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), 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 Parent shall not, and shall not permit the Borrower or any Subsidiary to, make any Restricted Payments to any Person other than to the Parent, the Borrower or any Subsidiary.
(m) The Credit Agreement is hereby further amended by restating Section 9.1.(h)(ii) in its entirety to read as follows:
Appears in 1 contract
Dividends and Other Restricted Payments. The Parent shall Borrower will not, and shall will not permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
(a) the Borrower or any of their Subsidiaries to, declare or make any Restricted Payment; provided, however, that the Parent, the Borrower and their respective 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 following Restricted Payments so long as 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:
(i) the 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 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 7.12. or (ii) 90% of Funds From Operations;
(ii) the Borrower may pay cash distributions 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 Parent and other holders aggregate amount of partnership interests in all Capital Distributions made by the Borrower with respect pursuant to this clause shall not exceed (A) during any fiscal year ending during of the term Borrower an amount equal to 50% of this Agreement the Consolidated Net Income for the most recently completed fiscal year of the Borrower, to the extent necessary for positive and (B) $10,000,000 in the Parent to distribute, aggregate on and after the Parent may so distribute cash distributions (including, without limitation, distributions constituting “capital gains dividends”) to its shareholders to the extent necessary to avoid payment of taxes under Section 857 (including, without limitation, Section 857(b)(3)) and Section 4981 of the Internal Revenue CodeClosing Date;
(iii) 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;
(v) the Borrower or any other Subsidiary of the Parent may 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;
(vid) the Borrower may redeem for cash limited partnership interests in the Borrower; and
make Share Repurchases, provided that (viii) the Parentprior to or contemporaneously with any such Share Repurchase, the Borrower or any Subsidiary may redeem or repurchase its Preferred Stock, at par or at a discount. Notwithstanding the foregoing, but subject shall provide written evidence to the following sentenceAdministrative Agent and the Lenders of compliance on a pro forma basis with the covenants contained in Section 9.7, if a (ii) no Default or Event of Default exists, 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 only declare and make cash distributions to prepayments of the Parent and 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 Borrower with respect to any fiscal year to the extent necessary for the Parent to distributePermitted Prepayment Amount, 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 (ii) no Default or Event of Default specified in Section 10.1.(a), Section 10.1.(e) exists 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 Parent shall not, and shall not permit the Borrower or any Subsidiary to, make any Restricted Payments to any Person other than to the Parent, the Borrower or any Subsidiarywill occur immediately thereafter.
(m) The Credit Agreement is hereby further amended by restating Section 9.1.(h)(ii) in its entirety to read as follows:
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 prior written consent to such Consolidated Affiliate being excluded from the restrictions of this subsection (g))) to, declare or make any Restricted Payment; provided, however, that the Parent, the Borrower and their respective Subsidiaries may declare and make the following Restricted Payments so long as no Default or Event of Default would result therefrom:
(i) the Borrower may pay cash distributions 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 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 7.12. or (ii) 90% of Funds From Operations;
(ii) the Borrower may pay cash distributions 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 (including, without limitation, distributions constituting “capital gains dividends”) 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 Section 857 (including, without limitation, Section Sections 857(b)(3)) and Section 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
(iv) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary;
(v) the Borrower or any other Subsidiary of the Parent may 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, 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 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), Section 10.1.(b), 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 Parent shall not, and shall not permit the Borrower or any Subsidiary to, make any Restricted Payments to any Person other than to the Parent, the Borrower or any Subsidiary.
(m) The Credit Agreement is hereby further amended by restating Section 9.1.(h)(ii) in its entirety to read as follows:
Appears in 1 contract
Dividends and Other Restricted Payments. The Parent and the Borrower shall not, and shall not permit any of their Subsidiaries to, redeem, purchase, repurchase or otherwise acquire any Equity Interests of the Parent, the Borrower or any of their Subsidiaries from any Person other than the Parent, the Borrower or a Subsidiary unless (i) no Default or Event of Default exists or would result therefrom and (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 and the Borrower will be in compliance with the covenants contained in Section 10.1. after giving pro forma effect 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 Payment; provided, however, Payments except that the Parent, the Borrower and their respective Subsidiaries may declare and make the following Restricted Payments so long as no Default or Event of Default would result therefrom:
(i) the 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 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 7.12. or (ii) 90% of Funds From Operations;
(ii) the 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 payment of taxes under Section 857 (including, without limitation, Section 857(b)(3)) and Section 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;
(iv) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary;
(v) the Borrower or any other Subsidiary of the Parent may 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, 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 Equity 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, (A) make cash or equity distributions in an aggregate amount not to exceed the minimum amount necessary for the Parent to remain satisfy the requirements for qualification and taxation as a REIT and not be subject to income or excise taxation under Sections 857(b)(1), 857(b)(3), 860 or 4981 of the Internal Revenue Code and (B) make additional distributions in compliance 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 7.12. If a Default or Event of Default specified in Section 10.1.(a), Section 10.1.(e857(b)(2) or Section 10.1.(f) shall exist, or if as a result of the occurrence of any other Event of Default any Internal Revenue Code and (ii) Subsidiaries of the Obligations have been accelerated pursuant to Section 10.2.(a), the Parent shall not, and shall not permit the Borrower or any Subsidiary to, 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 Parenttype of Equity Interest in respect of which such Restricted Payment is being made. Notwithstanding the foregoing, during the Covenant Relief Period, the Borrower or any Subsidiary.
(mterms of this 10.1.(k) The Credit Agreement is hereby further amended by restating shall be subject to Section 9.1.(h)(ii) in its entirety to read as follows:10.11.(a).
Appears in 1 contract
Dividends and Other Restricted Payments. The Parent and the Borrower shall not, and shall not permit the Borrower or any of their the other Subsidiaries to, declare or make any Restricted Payment; provided, however, that the Parent, the Borrower and their respective the other Subsidiaries may declare and make the following Restricted Payments so long as no Default or Event of Default would result therefromPayments:
(i) the Borrower may pay cash distributions 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 dividends to its shareholders in an aggregate amount not to exceed the greater of (ix) the amount required to be distributed for the Parent to remain in compliance with Section 7.127.11. or (iiy) 9095.0% of Funds From Operations;
(ii) the Borrower may pay cash distributions 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 (including, without limitation, distributions constituting “capital gains dividends”) 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 Section 857 (including, without limitation, Section Sections 857(b)(3)) and Section 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;
(iv) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary;
(v) the Borrower or any other Subsidiary of the Parent may make purchases of repurchase Equity Interests Interest in any Subsidiary or Unconsolidated Affiliate of the Parent so long as (x) immediately prior thereto, and immediately thereafter and after giving effect thereto, no Default or Event of any of its Subsidiaries that are held by any other Person;
(vi) the Borrower may redeem for cash limited partnership interests Default is or would be in the Borrower; and
(vii) the Parentexistence, the Borrower or any Subsidiary may redeem or repurchase its Preferred Stockincluding, at par or at a discount. Notwithstanding the foregoingwithout limitation, but subject to the following sentence, if a Default or Event of Default existsresulting 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 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 7.127.11. If a Default or Event of Default specified Notwithstanding anything to the contrary in Section 10.1.(a)this Section, 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 Subsidiaries may pay Restricted Payments to Section 10.2.(a), the Parent shall not, and shall not permit the Borrower or any other Subsidiary to, make at any Restricted Payments to any Person other than to the Parent, the Borrower or any Subsidiarytime.
(m) The Credit Agreement is hereby further amended by restating Section 9.1.(h)(ii) in its entirety to read as follows:
Appears in 1 contract
Dividends and Other Restricted Payments. The Each of the Parent and the Borrower shall not, and shall not permit the Borrower or any of their its Subsidiaries to, declare or make any Restricted Payment; provided, however, that each of the Parent, the Borrower and their respective its Subsidiaries may declare and make the following Restricted Payments so long as no Default or Event of Default is continuing or would result therefrom:
(i) the Borrower may pay cash distributions 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 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 7.12. 8.12 or (ii) 9095% of Funds From OperationsOperation;
(ii) the Borrower may pay cash distributions 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 (including, without limitation, distributions constituting “capital gains dividends”) 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 Section 857 (including, without limitation, Section Sections 857(b)(3)) and Section 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 SubsidiarySubsidiary 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 Parent, the Borrower or any other Subsidiary;
(v) to the Borrower extent consummated in advance of or in connection with and made substantially concurrently with an IPO Event, Restricted Payments made pursuant to any other Subsidiary tender offer for the Equity Interests of the Parent may 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;Parent; and
(vi) the Borrower Parent may from time to time purchase, redeem for cash limited partnership interests in the Borrower; and
(vii) 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 or any Subsidiary may redeem or repurchase its Preferred Stockpay cash dividends to the Parent to the extent necessary to enable the Parent to make such purchases, at par or at a discountredemptions and acquisitions. 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 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 7.128.12. If a Default or Event of Default specified in Section 10.1.(a), Section 10.1.(e11.1(a) or Section 10.1.(f11.1(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.(a11.2(a), the Parent shall not, and the Borrower shall not permit the Borrower or any Subsidiary to, make any Restricted Payments. Subsidiaries of the Parent (other than the Borrower) may make Restricted Payments to any Person other than to the Parent, the Borrower or and other Subsidiaries at any Subsidiarytime.
(m) The Credit Agreement is hereby further amended by restating Section 9.1.(h)(ii) in its entirety to read as follows:
Appears in 1 contract
Samples: Credit Agreement (Tier Reit Inc)
Dividends and Other Restricted Payments. The Parent and the Borrower shall not, and shall not permit any of their Subsidiaries to, redeem, purchase, repurchase or otherwise acquire any Equity Interests of the Parent, the Borrower or any of their Subsidiaries to, declare or make from any Restricted Payment; provided, however, that Person other than the Parent, the Borrower and their respective Subsidiaries may declare and make the following Restricted Payments so long as or a Subsidiary unless (i) no Default or Event of Default exists or would result therefrom:
(i) the Borrower may pay cash distributions to the Parent therefrom 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 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 7.12. or (ii) 90% of Funds From Operations;
(ii) the Borrower may pay cash distributions 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 and other holders of partnership interests in the Borrower will be in compliance with respect the covenants contained in Section 10.1. after giving pro forma effect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distributesuch redemption, and the Parent may so distribute cash distributions (includingpurchase, without limitation, distributions constituting “capital gains dividends”) to its shareholders to the extent necessary to avoid payment of taxes under Section 857 (including, without limitation, Section 857(b)(3)) and Section 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;
(iv) Subsidiaries may pay Restricted Payments to the Borrower repurchase or any other Subsidiary;
(v) the Borrower or any other Subsidiary of the Parent may 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 discountacquisition. Notwithstanding the foregoing, but subject to the following sentence, if a Default or 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 (i) the Borrower may only declare and make cash distributions to the Parent and other holders of partnership interests Equity 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, (A) make cash or equity distributions in an aggregate amount not to exceed the minimum amount necessary for the Parent to remain satisfy the requirements for qualification and taxation as a REIT and not be subject to income or excise taxation under Sections 857(b)(1), 857(b)(3), 860 or 4981 of the Internal Revenue Code and (B) make additional distributions in compliance 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 7.12857(b)(2) of the Internal Revenue Code and (ii) Subsidiaries of the Borrower may make Restricted Payments to any Person 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. If a Default or Event of Default specified in Section 10.1.(a11.1.(a), Section 10.1.(e11.1.(f) or Section 10.1.(f11.1.(g) 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.(a11.2.(a), the Parent and the Borrower shall not, and shall not permit the Borrower or any Subsidiary to, make any Restricted Payments to any Person other than to the Parent, the Borrower or any SubsidiarySubsidiary of the Borrower.
(m) The Credit Agreement is hereby further amended by restating Section 9.1.(h)(ii) in its entirety to read as follows:
Appears in 1 contract
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 the Borrower or any of their its Subsidiaries to, declare or make any Restricted Payment; provided, however, Payments except that the Parent, the Borrower and their respective Subsidiaries may declare and make the following Restricted Payments so long as no Default or Event of Default would result therefrom:
(i) the Borrower may pay cash distributions to the Parent declare 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, make cash distributions to its shareholders in an aggregate amount not to exceed the greater of (i) the minimum amount required to be distributed necessary for the Parent Borrower to remain in compliance with Section 7.127.11. or (ii) 90% of Funds From Operations;
(ii) the 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 payment the imposition of income or excise taxes imposed under Section 857 (includingSections 857(b)(1), without limitation, Section 857(b)(3)) and Section or 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;
(ivii) Subsidiaries that are not Loan Parties may pay Restricted Payments to the Borrower or any other Subsidiary;
, and (viii) Subsidiaries that are Loan Parties may pay Restricted Payments to the Borrower or any other Loan Party (provided, however, that a Subsidiary of the Parent may 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 owning a discount. Notwithstanding the foregoing, but subject to the following sentence, if a Default or Event of Default exists, the Borrower Collateral Property may only declare and make cash distributions pay Restricted Payments 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 7.12another Subsidiary owning a Collateral Property). If a Default or 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 Parent Borrower shall not, and shall not permit the Borrower or any Subsidiary to, make any Restricted Payments to any Person other than except that (i) Subsidiaries that are not Loan Parties may pay Restricted Payments to the Parent, 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 and, in the case of any non-Wholly Owned Subsidiaries that 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 as otherwise required by the terms of the organizational documents of such other non-Wholly Owned Subsidiary.
(m) The Credit Agreement is hereby further amended by restating Section 9.1.(h)(ii) in its entirety to read as follows:
Appears in 1 contract
Dividends and Other Restricted Payments. The Parent and the Borrower shall not, and shall not permit the Borrower or any of their the other Subsidiaries to, declare or make any Restricted Payment; provided, however, that the Parent, the Borrower and their respective the other Subsidiaries may declare and make the following Restricted Payments so long as no Default or Event of Default would result therefrom:
(i) for the period beginning on the Effective Date and ending on September 30, 2010, the Borrower may pay cash distributions dividends to the Parent and other holders of partnership interests in the Borrower for the Parent to distribute, and the Parent may so distribute, cash dividends to its shareholders;
(ii) 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 year quarter ending during the term of this Agreement such period to the extent necessary for the Parent to distribute, and the Parent may so distribute, cash distributions 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 7.128.12. or (ii) 90110.0% 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 distributions 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 (including, without limitation, distributions constituting “capital gains dividends”) 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 Section 857 (including, without limitation, Section Sections 857(b)(3)) and Section 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;
(ivv) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary;
(v) the Borrower or any other Subsidiary of the Parent may 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 other Subsidiary; and
(vi) the Parent and the Borrower may redeem redeem, purchase or repurchase its Preferred Stockotherwise acquire Equity Interests of the Parent or the Borrower, at par as applicable, so long as after giving effect to such redemption, purchase or at a discountother 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 year quarters 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 7.128.12. If a Default or Event of Default specified in Section 10.1.(a11.1.(a), Section 10.1.(e11.1.(b), Section 11.1.(e) or Section 10.1.(f11.1.(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)accelerated, the Parent and the Borrower shall not, and shall not permit the Borrower or any other Subsidiary to, make any Restricted Payments to any Person other than to the Parent, the Borrower or any other Subsidiary.
(m) The Credit Agreement is hereby further amended by restating Section 9.1.(h)(ii) in its entirety to read as follows:
Appears in 1 contract
Samples: Credit Agreement (Excel Trust, Inc.)
Dividends and Other Restricted Payments. The Parent shall not, and shall not permit the Borrower or any of their Subsidiaries to, declare or make any Restricted Payment; provided, however, that the Parent, the Borrower and their respective Subsidiaries may declare and make the following Restricted Payments so long as no Default or Event of Default would result therefrom:
(i) the 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 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 7.12. or (ii) 90% of Funds From Operations;
(ii) the 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 payment of taxes under Section 857 (including, without limitation, Section 857(b)(3)) and Section 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;
(iv) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary;
(v) the Borrower or any other Subsidiary of the Parent may 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, 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 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 an Event of Default specified in under Section 10.1.(a11.1(a), Section 10.1.(e11.1(e) or Section 10.1.(f11.1(f) shall existexist or, 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.(a11.2(a), 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 directly or indirectly declare or make, or incur any liability to make, any Restricted Payments. 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:
(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 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 Preferred Stock or common Equity Interests in an aggregate amount not to exceed the greatest of (i) 90% of Funds From Operations, (ii) the amount required for the Parent Guarantor to 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 (iii) the amount necessary for the Parent Guarantor to avoid income or excise tax under the Internal Revenue Code;
(B) 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 shall notGuarantor, the Borrower and shall not permit any Subsidiary, each as applicable, may make cash payments:
(1) to redeem Equity Interests in the Borrower or any Subsidiary toin accordance with the terms of the charter, make any Restricted Payments articles of incorporation or by-laws, operating agreement, partnership agreement or other organizational document of such entity;
(2) of Preferred Dividends as required to any Person other than be paid to holders of Preferred Stock;
(3) to purchase Equity Interests from employees of the ParentParent Guarantor, the Borrower or any Subsidiary.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;
(m4) The Credit Agreement is hereby further amended by restating 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 9.1.(h)(ii) in its entirety to read as follows: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 Borrower shall not, and shall not permit the Borrower or any of their its Subsidiaries to, declare or make any Restricted Payment; provided, however, that the Parent, the Borrower and their respective its Subsidiaries may declare and make the following Restricted Payments so long as no Default or Event of Default would result therefrom:
(i) the Borrower may pay cash distributions 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 distributions to its shareholders four (4) quarter period in an aggregate amount not to exceed the greater of (iA) 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 7.12. or (ii) 90% 8.12 and avoid the imposition of Funds From Operationsincome taxes and excise taxes on Xxxxxx REIT;
(ii) the Borrower may pay 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 the Parent and other holders its shareholders 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 resulting from certain asset sales to the extent necessary to avoid payment of taxes on such asset sales imposed under Section 857 (including, without limitation, Section Sections 857(b)(3)) and Section 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
(ivvii) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary;
(v) the Borrower or any other Subsidiary of the Parent may 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, but subject to the following sentence, if a Default or Event of Default exists, the Borrower may only declare and make cash distributions 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 to the extent necessary for the Parent to distributeyear, and the Parent may so distributein each case, in an aggregate amount not to exceed the minimum amount necessary 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 in compliance with Section 7.128.12. If a Default or Event of Default specified in Section 10.1.(a11.1(a), Section 10.1.(e11.1(e) or Section 10.1.(f11.1(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.(a11.2(a), the Parent Borrower shall not, and shall not permit the Borrower or any Subsidiary to, make any Restricted Payments to any Person other than to the Parent, the Borrower or any Subsidiary.
(m) The Credit Agreement is hereby further amended by restating Section 9.1.(h)(ii) in its entirety to read as follows:
Appears in 1 contract
Dividends and Other Restricted Payments. The Parent Authorize, declare or pay, directly or indirectly, any Dividends or other Restricted Payment with respect to any Company (including pursuant to any Synthetic Purchase Agreement) or incur any obligation (contingent or otherwise) to do so, except that the following shall notbe permitted:
(i) any Restricted Subsidiary of the Administrative Borrower may pay Dividends to the Administrative Borrower or to any Wholly-Owned Subsidiary of the Administrative Borrower that is a Restricted Subsidiary and (ii) any non-Wholly-Owned Subsidiary of the Administrative Borrower that is a Restricted Subsidiary may pay cash Dividends to its shareholders, members or 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 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 permit 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 their its Restricted Subsidiaries tofor 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, declare 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 make 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 Payment; provided, however, that Payments pursuant to and in accordance with option plans or other benefit plans for management or employees of the ParentAdministrative 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 their respective Subsidiaries its Subsidiaries;
(e) the Administrative Borrower may declare and make exchange an Equity Interest of the following Administrative Borrower for Qualified Capital Stock of the Administrative Borrower; and
(f) other cash Restricted Payments so long as no Default or Event of Default would result therefrom:
(i) the 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 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 7.12. or (ii) 90% of Funds From Operations;
(ii) the 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 payment of taxes under Section 857 (including, without limitation, Section 857(b)(3)) and Section 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;
(iv) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary;
(v) the Borrower or any other Subsidiary of the Parent may make purchases of Equity Interests in any Subsidiary or Unconsolidated Affiliate of the Parent or of any of its Subsidiaries that Payment Conditions 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, 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 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), 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 Parent shall not, and shall not permit the Borrower or any Subsidiary to, make any Restricted Payments to any Person other than to the Parent, the Borrower or any Subsidiarysatisfied.
(m) The Credit Agreement is hereby further amended by restating Section 9.1.(h)(ii) in its entirety to read as follows:
Appears in 1 contract
Dividends and Other Restricted Payments. The Parent REIT Guarantor shall not, and shall not permit the Borrower any other Loan Party or any of their Subsidiaries Subsidiary to, declare or make any Restricted Payment; provided, however, that the ParentREIT Guarantor, the Borrower and their respective its Subsidiaries may declare and make the 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:
(ia) the Borrower may pay cash 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 distributions dividends to its shareholders in an aggregate amount not to exceed the greater of (i) the amount required to be distributed for the Parent REIT Guarantor to remain in compliance with Section 7.12. or (ii) 90commencing with the fiscal quarter ending March 31, 2016 through and including the fiscal quarter ending September 30, 2016, 100% of Funds From OperationsOperation 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;
(iib) the Borrower may pay cash 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 distributions (including, without limitation, distributions constituting “capital gains dividends”) 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 Section 857 (including, without limitation, Section Sections 857(b)(3)) and Section 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;
(ivc) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary;; and
(v) the Borrower or any other Subsidiary of the Parent may 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;
(vid) the Borrower may redeem for cash limited partnership interests distribute Available Cash (as defined in the Borrower; and
Borrower Partnership Agreement) to the Special General Partner (vii) the Parent, as defined in the Borrower or any Subsidiary may redeem or repurchase its Preferred Stock, at par or at a discountPartnership Agreement) in accordance with the terms of the Borrower Partnership Agreement. 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 REIT Guarantor and other holders of partnership interests in the Borrower with respect to any fiscal year to the extent necessary for the Parent REIT Guarantor to distribute, and the Parent REIT Guarantor may so distribute, an aggregate amount not to exceed the minimum amount necessary for the Parent REIT Guarantor to remain in compliance with Section 7.12. If a Default or Event of Default specified in Section 10.1.(a), Section 10.1.(e10.1.(f) or Section 10.1.(f10.1.(g) 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 Parent REIT Guarantor and the Borrower shall not, and shall not permit the Borrower or any Subsidiary to, make any Restricted Payments to any Person other than to the Parent, the Borrower or any SubsidiarySubsidiary that is a Guarantor.
(m) The Credit Agreement is hereby further amended by restating Section 9.1.(h)(ii) in its entirety to read as follows:
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 prior written consent to such Consolidated Affiliate being excluded from the restrictions of this subsection (g))) to, declare or make any Restricted Payment; provided, however, that the Parent, the Borrower and their respective Subsidiaries may declare and make the following Restricted Payments so long as as, other than in the case of clause (v), no Default or Event of Default would result therefrom:
(i) the Borrower may pay cash distributions 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 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 7.12. or (ii) 90% of Funds From Operations;
(ii) the Borrower may pay cash distributions 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 (including, without limitation, distributions constituting “capital gains dividends”) 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 Section 857 (including, without limitation, Section Sections 857(b)(3)) and Section 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;
(iv) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary;
(v) the Borrower or any other Subsidiary of may pay cash dividends to the Parent to the extent necessary for the Parent to redeem, and the Parent may make purchases of Equity Interests in so redeem the Series E Preferred Stock upon the exercise by any Subsidiary or Unconsolidated Affiliate holder thereof of the Parent or Series E Change of any Control Option unless (A) the events that trigger the Series E Change of its Subsidiaries Control Option (such events the “Change of Control”) also result in an Event of Default that are held by any other Person;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 redeem for pay cash limited partnership interests dividends to the Parent 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 Borrower; and
terms of the Series D Articles Supplementary) and the Series E Preferred Stock (vii) in accordance with the Parent, terms of the Borrower or any Subsidiary may redeem or repurchase its Preferred Stock, at par or at a discountSeries E Articles Supplementary). Notwithstanding the foregoing, but subject to the following sentence, if a Default or Event of Default exists, (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), Section 10.1.(b), 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 Parent shall not, and shall not permit the Borrower or any Subsidiary to, make any Restricted Payments to any Person other than to the Parent, the Borrower or any SubsidiarySubsidiary (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 Default or Event of Default under Section 10.1.(b) shall not prohibit the payment of Restricted Payments under the immediately preceding clause (vi).
(m) The Credit Agreement is hereby further amended by restating Section 9.1.(h)(ii) in its entirety to read as follows:
Appears in 1 contract
Dividends and Other Restricted Payments. The Parent shall not, and shall not permit the Borrower or any of their Subsidiaries to, declare or make any Restricted Payment; provided, however, that the Parent, the Borrower and their respective Subsidiaries may declare and make the following Restricted Payments so long as no Default or Event of Default would result therefrom:
(i) the 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 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 7.12. or (ii) 90% of Funds From Operations;
(ii) the 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 payment of taxes under Section 857 (including, without limitation, Section 857(b)(3)) and Section 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;
(iv) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary;
(v) the Borrower or any other Subsidiary of the Parent may 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, 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 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), 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 Parent shall not, and shall not permit the Borrower or any Subsidiary to, make any Restricted Payments to any Person other than to the Parent, the Borrower or any Subsidiary.
(m) The Credit Agreement is hereby further amended by restating Section 9.1.(h)(ii) in its entirety to read as follows:
Appears in 1 contract
Dividends and Other Restricted Payments. The Parent shall not, and shall not permit the Borrower or any of their Subsidiaries to, declare or make any Restricted Payment; provided, however, that the Parent, the Borrower and their respective Subsidiaries may declare and make the following Restricted Payments so long as no Default or Event of Default would result therefrom:
(i) the 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 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 7.12. or (ii) 90% of Funds From Operations;
(ii) the 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 payment of taxes under Section 857 (including, without limitation, Section 857(b)(3)) and Section 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;
(iv) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary;
(v) the Borrower or any other Subsidiary of the Parent may 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, but subject to the following sentence, if If a Default or Event of Default exists, the Borrower shall not declare or make any Restricted Payments except as may only 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 the Parent and other holders partners of partnership interests in the Borrower with respect to any fiscal year to the extent necessary which will be sufficient for the Parent partners to distribute, pay all income tax liabilities (including payments of estimated tax in respect thereof) under federal and applicable state and local laws imposed on the Parent may so distribute, an aggregate amount not to exceed partner’s allocable shares of the minimum amount necessary for the Parent to remain in compliance with Section 7.12Borrower’s taxable income. If a Default or Event of Default specified in Section 10.1.(a), Section 10.1.(e10.1.(f) or Section 10.1.(f10.1.(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 Parent Borrower shall not, and shall not permit the Borrower or any Subsidiary to, make any Restricted Payments to any Person other than to the Parent, the Borrower or any SubsidiarySubsidiary without the prior written consent of the Administrative Agent.
(m) The Credit Agreement is hereby further amended by restating Section 9.1.(h)(ii) in its entirety to read as follows:
Appears in 1 contract
Dividends and Other Restricted Payments. The Parent shall notMake, and shall not permit the Borrower or any of their Subsidiaries topay, declare or make authorize any Restricted Payment; dividend, 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) such Borrower may make, pay, declare or authorize distributions to Holdings in any quarter ending after the Parent, Effective Date in an aggregate amount not greater than the amount necessary (when combined with amounts paid by each other Borrower and their respective Subsidiaries may declare and each other Subsidiary of Holdings, if any) for Holdings to make the following Restricted Payments so long distributions to its members required or permitted pursuant to Section 6.4 of the Amended and Restated Limited Liability Company Agreement dated September 30, 2002 among Holdings, AAC Holding Corp., Consumer Credit Corp. and AAC Investors, Inc., as in effect on the date hereof, (ii) 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:
(i) the , each Borrower may pay cash make, pay, declare or authorize distributions to Holdings in any quarter ending after 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 Effective Date in an aggregate amount not to exceed the greater of (i) than the amount required to be distributed for the Parent permit Holdings to remain in compliance with Section 7.12. make payments to employees or (ii) 90% former employees of Funds From Operations;
(ii) the 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 payment of taxes under Section 857 (including, without limitation, Section 857(b)(3)) and Section 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;
(iv) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary;
(v) the Borrower or any other Subsidiary of the Parent may make purchases of Equity Interests in any Subsidiary or Unconsolidated Affiliate of the Parent or of any of its Subsidiaries in respect of share repurchases or payments in respect of share appreciation rights following the termination of their employment, provided that are held the aggregate amount distributed by all of the Borrowers in any other Person;
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 (viiii) 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, but subject to the following sentence, if a no Default or Event of Default exists, the Borrower may only declare shall exist or shall have occurred and make cash distributions to the Parent be continuing 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 no Default or Event of Default specified 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 10.1.(a5.2(l), Section 10.1.(e) "membership interests" shall include membership interests and any securities exchangeable for or Section 10.1.(f) shall existconvertible into membership interests and any warrants, rights or if as a result of the occurrence of any other Event of Default any of the Obligations have been accelerated pursuant options to Section 10.2.(a)purchase or otherwise acquire membership interests or such securities, the Parent shall not, and shall not permit the Borrower together with appreciation rights or any Subsidiary to, make any Restricted Payments to any Person other than contractual obligations linked to the Parent, the Borrower or any Subsidiaryvalue of such membership interests.
(m) The Credit Agreement is hereby further amended by restating Section 9.1.(h)(ii) in its entirety to read as follows:
Appears in 1 contract
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 the Borrower or any of their the other Subsidiaries to, declare or make any Restricted Payment; providedPayments, however, except that notwithstanding the Parent, the Borrower and their respective Subsidiaries may declare and make the following Restricted Payments so long as no Default or existence of an Event of Default would result therefrom:
(i) Default, the Borrower may pay cash distributions 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 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 7.12. or (ii) 90% of Funds From Operations;
(ii) the Borrower may pay cash distributions to the Parent maintain its status as a real estate investment trust 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 payment of any income or excise taxes imposed under Section 857 (including857(b)(1), without limitation, Section 857(b)(3)) and Section or 4981 of the Internal Revenue Code;
. Subsidiaries (iiiother than the Borrower) 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 and other Subsidiaries at any other Subsidiary;time. - 88 - LEGAL02/44384586v6
(va) the Borrower purchase or other acquisition of (i) property and assets or businesses of any other 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 Parent may make purchases 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 Subsidiary property by any Person, including any sale, assignment, transfer or Unconsolidated Affiliate other disposal, with or without recourse, of any notes or accounts receivable or any 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 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, 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 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), 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 Parent shall not, and shall not permit the Borrower or any Subsidiary to, make any Restricted Payments to any Person other than to the Parent, the Borrower or any Subsidiary.
(m) The Credit Agreement is hereby further amended by restating Section 9.1.(h)(ii) in its entirety to read as follows:
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 the Borrower or any of their its Subsidiaries to, declare or make any Restricted PaymentPayments; provided, however, provided that the Parent, the Borrower (i) SLGOP and their respective Subsidiaries Reckson may declare and make the following Restricted Payments so long as no Default or Event of Default would result therefrom:
(i) the 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 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 7.12. or (ii) 90% of Funds From Operations;
(ii) the 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 payment of taxes under Section 857 (including, without limitation, Section 857(b)(3)) and Section 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;
(iv) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary;
(v) the Borrower or any other Subsidiary of the Parent may 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 ParentSLGOP and Reckson, the Borrower or any Subsidiary may redeem or repurchase its Preferred Stockrespectively, at par or at a discount. 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 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 7.127.11. and (ii) Subsidiaries of a Borrower may make Restricted Payments to (A) such Borrower and to other holders of the Equity Interests in such Subsidiaries to the extent necessary to make Restricted Payments to such Borrower or (B) any of such Borrower’s Subsidiaries, and in the case of a Subsidiary of such Borrower that is not a Wholly Owned Subsidiary, to each other holder of Equity Interests of such Subsidiary based on their relative ownership interests. If a Default or 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 Parent shall notno Borrower shall, and no Borrower shall not permit the Borrower or any Subsidiary their respective Subsidiaries to, make any Restricted Payments to any Person other than to the Parent, the a Borrower or any Subsidiaryof their respective Subsidiaries and, in the case of a Subsidiary of such Borrower that is not a Wholly Owned Subsidiary (other than SLGOP and Reckson), to each other owner of Equity Interests of such Subsidiary based on their relative ownership interests.
(m) The Credit Agreement is hereby further amended by restating Section 9.1.(h)(ii) in its entirety to read as follows:
Appears in 1 contract
Samples: Credit Agreement (Sl Green Operating Partnership, L.P.)
Dividends and Other Restricted Payments. The Parent Borrower and its Subsidiaries (other than Wholly Owned Subsidiaries) shall not, and shall not permit the Borrower directly or any of their Subsidiaries to, indirectly declare or make make, or incur any liability to make, any Restricted Payment; providedPayments, however, that the Parent, the Borrower and their respective Subsidiaries may declare and make the following Restricted Payments so long as no Default or Event of Default would result therefrom:
except that: (i) the 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, make cash distributions to its shareholders in an aggregate amount not to exceed the greater of ninety-five percent (i95%) the amount required to be distributed for the Parent to remain in compliance with Section 7.12. or (ii) 90% of Funds From Operations;
(ii) Operations as of the Borrower may pay cash distributions to the Parent and other holders end of partnership interests in the Borrower with respect to any each fiscal year ending during the term of this Agreement to the extent necessary quarter for the Parent four fiscal quarter period then ending; provided however, that Borrower in all events shall be entitled to distribute, and the Parent may so distribute cash make distributions (including, without limitation, distributions constituting “capital gains dividends”) to its shareholders in such amounts and at such times as shall be necessary or appropriate to enable the Borrower to avoid liability for any tax pursuant to Section 857(b) or Section 4981 of the Internal Revenue Code (including cash distributions) of capital gains resulting from gains from asset sales to the extent necessary to avoid payment of taxes under Section 857 on such asset sales; (including, without limitation, Section 857(b)(3)) and Section 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;
(ivii) Subsidiaries may pay make Restricted Payments to the Borrower or any other Subsidiary;
; (viii) Subsidiaries may make Restricted Payments to the Borrower or any other Subsidiary extent such Restricted Payments are required by the terms of the Parent governing documents (i.e., entity documents or joint venture agreements) of such Subsidiaries; and (iv) Dim Vastgoed (if it becomes a Subsidiary) may make purchases of Equity Interests in any Subsidiary or Unconsolidated Affiliate of Restricted Payments to the Parent or of any of extent consistent with 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 discountpast corporate practice. Notwithstanding the foregoing, but subject to the following sentence, if a Default or Event of Default exists, the Borrower may only declare and or make cash distributions to the Parent and other holders of partnership interests its shareholders 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 Borrower to remain in compliance with Section 7.128.12. If a Default or an Event of Default specified in Section 10.1.(asubsection (a), Section 10.1.(e(e) or (f) of Section 10.1.(f) 11.1 shall existhave occurred and be continuing, 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)accelerated, the Parent Borrower shall not, and shall not permit the Borrower or any Subsidiary to, make any Restricted Payments to any Person whatsoever other than to the Parent, the Borrower or any Subsidiary.
(m) The Credit Agreement is hereby further amended by restating Section 9.1.(h)(ii) in its entirety to read as follows:
Appears in 1 contract
Samples: Credit Agreement (Equity One 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, L.P., Parkway Properties Office Fund II, L.P. and any other Consolidated Affiliate (provided that the Administrative Agent has given its prior written consent to such Consolidated Affiliate being excluded from the restrictions of this subsection (g)) to, declare or make any Restricted Payment; provided, however, that the Parent, the Borrower and their respective Subsidiaries may declare and make the following Restricted Payments so long as no Default or Event of Default would result therefrom:
(i) the Borrower may pay cash distributions 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 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 7.12. or (ii) 90% of Funds From Operations;
(ii) the Borrower may pay cash distributions 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 (including, without limitation, distributions constituting “capital gains dividends”) 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 Section 857 (including, without limitation, Section Sections 857(b)(3)) and Section 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
(iv) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary;
(v) the Borrower or any other Subsidiary of the Parent may 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, 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 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), Section 10.1.(b), 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 Parent shall not, and shall not permit the Borrower or any Subsidiary to, make any Restricted Payments to any Person other than to the Parent, the Borrower or any Subsidiary.
(m) The Credit Agreement is hereby further amended by restating Section 9.1.(h)(ii) in its entirety to read as follows:
Appears in 1 contract
Dividends and Other Restricted Payments. The Parent shall Constituent Companies will not, and shall will not permit the Borrower any Subsidiary to, redeem, purchase, repurchase or otherwise acquire any Equity Interests of either Constituent Company or any of their its Subsidiaries from any Person other than a Constituent Company or a Subsidiary unless (a) no Default or Event of Default exists or would result therefrom and (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 compliance with the Specified Financial Covenants after giving pro forma effect 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 Payment; provided, however, Payments except that the Parent, the Borrower and their respective Subsidiaries may declare and make the following Restricted Payments so long as no Default or Event of Default would result therefrom:
(i1) the Borrower Issuer 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 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 7.12. or (ii) 90% of Funds From Operations;
(ii) the 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 payment of taxes under Section 857 (including, without limitation, Section 857(b)(3)) and Section 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;
(iv) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary;
(v) the Borrower or any other Subsidiary of the Parent may 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, 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 Guarantor and other holders of partnership interests Equity Interests in the Borrower Issuer with respect to any fiscal year to the extent necessary for the Parent Guarantor to distribute, and the Parent Guarantor may so distribute, (i) make cash or equity distributions in an aggregate amount not to exceed the minimum amount necessary for the Parent Guarantor to remain in compliance with Section 7.12. If satisfy the requirements for qualification and taxation as a Default REIT and not be subject to income or Event of Default specified in Section 10.1.(aexcise taxation under sections 857(b)(1), Section 10.1.(e) 857(b)(3), 860 or Section 10.1.(f) shall exist, or if as a result 4981 of the occurrence of any other Event of Default any Code and (ii) make additional distributions in common Equity Interests of the Obligations have been accelerated pursuant to Section 10.2.(a)Parent Guarantor in an amount under this clause (ii) that, when combined with the distributions under clause (i) above, do not exceed 100% of the taxable income of the Parent shall not, Guarantor determined in accordance with section 857(b)(2) of the Code and shall not permit (2) Subsidiaries of the Borrower or 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 Parenttype of Equity Interest in respect of which such Restricted Payment is being made. Notwithstanding the foregoing, during the Covenant Relief Period, the Borrower or any Subsidiaryterms of this clause (h) shall be subject to Section 10.10(a).
(m) The Credit Agreement is hereby further amended by restating Section 9.1.(h)(ii) in its entirety to read as follows:
Appears in 1 contract
Samples: Note and Guarantee Agreement (Sunstone Hotel Investors, Inc.)
Dividends and Other Restricted Payments. The Neither the Borrower nor the Parent shall notshall, and shall not permit neither the Parent nor the Borrower or shall permit any of their its Subsidiaries to, declare or make any Restricted Payment; provided, however, that the Parent, the Borrower and their respective its Subsidiaries may declare and make the following Restricted Payments so long as no Default or Event of Default would result therefrom:
(i) the Borrower may pay cash distributions 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 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 7.128.11. or (ii) 9095.0% of Funds From OperationsOperation of the Parent and its Subsidiaries for such period;
(ii) the Borrower Parent may pay cash distributions to the Parent and other holders of partnership interests acquire Equity Interests in the Borrower with respect to or any fiscal year ending during the term other direct or indirect Subsidiary 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 payment of taxes under Section 857 (including, without limitation, Section 857(b)(3)) and Section 4981 in exchange for common stock of the Internal Revenue Code;Parent; and
(iii) 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;
(v) the Borrower or any other Subsidiary of the Parent may 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, but subject to the following sentence, if a Default or Event of Default exists, the Borrower may only declare and or make cash distributions to the Parent and other holders of partnership interests in the Borrower with respect to its shareholders during any fiscal year to the extent necessary for the Parent to distribute, and the Parent may so distribute, in an aggregate amount not to exceed the minimum amount necessary for the Parent to remain in compliance with Section 7.128.11. If a Default or Event of Default specified in Section 10.1.(a11.1.(a), Section 10.1.(e11.1.(e) or Section 10.1.(f11.1.(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.(a11.2.(a), neither the Parent shall notnor the Borrower shall, and shall not permit neither the Parent nor the Borrower or shall permit any Subsidiary to, make any Restricted Payments to any Person other than to the Parent, the Borrower or any Subsidiary.
(m) The Credit Agreement is hereby further amended by restating Section 9.1.(h)(ii) in its entirety to read as follows:
Appears in 1 contract
Dividends and Other Restricted Payments. The Parent shall not, and shall not permit the Borrower or any of their Subsidiaries to, declare or make any Restricted Payment; provided, however, that the Parent, the Borrower and their respective Subsidiaries may declare and make the following Restricted Payments so long as no Default or Event of Default is continuing or would result therefrom:
(i) the 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 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 7.128.12. (including the right to distribute 100% of net capital gains) or (ii) 90% of Funds From Operations;
(ii) the 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 of the Parent to the extent necessary to avoid payment of taxes under Section 857 (including, without limitation, Section 857(b)(3)) and Section 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 SubsidiarySubsidiary 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 Wholly Owned Subsidiary;
(v) the Borrower or any other Subsidiary of the Parent may 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 ParentBorrower may make cash distributions to the Parent to the extent necessary for the Parent to distribute, and the Parent may distribute, the Borrower 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 any Subsidiary repurchase Preferred Equity Interests, the Parent may redeem redeem, retire or repurchase its Preferred StockEquity Interests (and, at par or at a discountto 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, 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 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 7.128.12 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 10.1.(a11.1.(a), Section 10.1.(e11.1.(e) or Section 10.1.(f11.1.(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.(a11.2.(a), the Parent shall not, and shall not permit the Borrower or any Subsidiary to, make any Restricted Payments to any Person other than to the Parent, the Borrower or any Subsidiaryother 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 are not Loan Parties may make Restricted Payments to any other Subsidiaries.
(m) The Credit Agreement is hereby further amended by restating Section 9.1.(h)(ii) in its entirety to read as follows:
Appears in 1 contract
Samples: Credit Agreement (Parkway, Inc.)
Dividends and Other Restricted Payments. The Parent and the Borrower shall not, and shall not permit the Borrower or any of their Subsidiaries to, declare or make any Restricted Payment; provided, however, that the Parent, the Borrower and their respective Subsidiaries may declare and make the following Restricted Payments Payment so long as no any Default or Event of Default exists or would result 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 (i) f), in each case, solely with respect to the Parent or the Borrower, 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 pursuant to 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 (i) the amount required to be distributed for the Parent to (x) remain in compliance with Section 7.128.12 and (y) as long as the Parent qualifies as a REIT, avoid the payment of U.S. federal or state income or excise tax by the Parent. Subsidiaries other than the Borrower may, at any time, make Restricted Payments (x) to the Borrower and the other Subsidiaries that are Guarantors or (ii) 90% of Funds From Operations;
(ii) the 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”y) to its shareholders to the extent necessary to avoid payment of taxes under Section 857 (includingSubsidiaries that are not Guarantors, without limitation, Section 857(b)(3)) and Section 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 so long as such Subsidiary;
(iv) Subsidiaries may pay Restricted Payments are substantially concurrently distributed, directly or indirectly, to the Borrower or any other Subsidiary;
(v) the Borrower or any other Subsidiary of the Parent may 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, 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 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), 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 Parent shall not, and shall not permit the Borrower or any Subsidiary to, make any Restricted Payments to any Person other than to the Parent, the Borrower or any SubsidiaryGuarantor.
(m) The Credit Agreement is hereby further amended by restating Section 9.1.(h)(ii) in its entirety to read as follows:
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 their Subsidiaries to, redeem, purchase, repurchase or otherwise acquire any Equity Interests of the Parent, the Borrower or any of their Subsidiaries from any Person other than the Parent, the Borrower or a Subsidiary unless (i) no Default or Event of Default exists or would result therefrom and (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 and the Borrower will be in compliance with the covenants contained in Section 10.1. after giving pro forma effect 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 Payment; provided, however, Payments except that the Parent, the Borrower and their respective Subsidiaries may declare and make the following Restricted Payments so long as no Default or Event of Default would result therefrom:
(i) the 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 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 7.12. or (ii) 90% of Funds From Operations;
(ii) the 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 payment of taxes under Section 857 (including, without limitation, Section 857(b)(3)) and Section 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;
(iv) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary;
(v) the Borrower or any other Subsidiary of the Parent may 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, 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 Equity 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, (A) make cash or equity distributions in an aggregate amount not to exceed the minimum amount necessary for the Parent to remain satisfy the requirements for qualification and taxation as a REIT and not be subject to income or excise taxation under Sections 857(b)(1), 857(b)(3), 860 or 4981 of the Internal Revenue Code and (B) make additional distributions in compliance 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 7.12. If a Default or Event of Default specified in Section 10.1.(a), Section 10.1.(e857(b)(2) or Section 10.1.(f) shall exist, or if as a result of the occurrence of any other Event of Default any Internal Revenue Code and (ii) Subsidiaries of the Obligations have been accelerated pursuant to Section 10.2.(a), the Parent shall not, and shall not permit the Borrower or any Subsidiary to, 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 Parent, the Borrower or any Subsidiarytype of Equity Interest in respect of which such Restricted Payment is being made.
(m) The Credit Agreement is hereby further amended by restating Section 9.1.(h)(ii) in its entirety to read as follows:
Appears in 1 contract
Dividends and Other Restricted Payments. The Parent and the Borrower shall not, and shall not permit the Borrower or any of their the other Subsidiaries to, declare or make any Restricted Payment; provided, however, that the Parent, the Borrower and their respective the other Subsidiaries may declare and make the following Restricted Payments so long as no Default or Event of Default would result therefrom:
(i) the Borrower may pay cash distributions dividends to the Parent and other holders of partnership interests in the Borrower with respect to any period of four consecutive fiscal year ending quarters during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, cash distributions 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 7.128.12. or (ii) 9095.0% of Funds From Operations;
(ii) the Borrower may pay cash distributions 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 (including, without limitation, distributions constituting “capital gains dividends”) 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 Section 857 (including, without limitation, Section Sections 857(b)(3)) and Section 4981 of the Internal Revenue Code;; and
(iii) 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;
(v) the Borrower or any other Subsidiary of the Parent may 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 discountother 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 year quarters 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 7.128.12. If a Default or Event of Default specified in Section 10.1.(a11.1.(a), Section 10.1.(e11.1.(b), Section 11.1.(e) or Section 10.1.(f11.1.(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)accelerated, the Parent and the Borrower shall not, and shall not permit the Borrower or any other Subsidiary to, make any Restricted Payments to any Person other than to the Parent, the Borrower or any SubsidiaryPerson.
(m) The Credit Agreement is hereby further amended by restating Section 9.1.(h)(ii) in its entirety to read as follows:
Appears in 1 contract
Samples: Credit Agreement (Pacific Office Properties Trust, Inc.)
Dividends and Other Restricted Payments. The Parent Company shall not, and nor shall not it permit the Borrower or any of their Subsidiaries 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 PaymentPayments"); provided, however, that the Parentforegoing shall not apply to or operate to prevent (v) any repayment of amounts borrowed on any revolving credit facility, (w) any prepayment of the Borrower and their respective 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 may declare and make the following Restricted Payments of certain equipment financed by such Indebtedness, so long as as, with respect to any prepayment described in this clause (w), no Default or Event of Default would result therefrom:
shall occur or be continuing at the time of such prepayment and after giving effect thereto, (ix) the Borrower making of dividends or distributions by any Subsidiary to the Company or any other Subsidiary (provided that Domestic Subsidiaries may pay cash not make dividends or distributions to the Parent and other holders of partnership interests Foreign Subsidiaries or to Domestic Subsidiaries which are not Guarantors), (y) any Restricted Payments made in the Borrower with respect to any fiscal year ending during of 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 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 7.12. or (ii) 90% of Funds From Operations;
(ii) the Borrower may pay cash distributions to the Parent and other holders of partnership interests Company in the Borrower with respect form of treasury stock repurchases by the Company 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 “acquire its capital gains dividends”) to its shareholders stock to the extent necessary to avoid payment of taxes under Section 857 (includingcover equity compensation, without limitationretirement plans and incentive plans for employees and directors, Section 857(b)(3)) if and Section 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;
(iv) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary;
extent that at the time each such Restricted Payment described in this clause (vy) the Borrower or any other Subsidiary of the Parent may 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 Parentis made and after giving effect thereto, the Borrower or any Subsidiary may redeem or repurchase its Preferred Stock, at par or at a discount. Notwithstanding the foregoing, but subject to the following sentence, if a no Default or Event of Default existsshall occur or be continuing, the Borrower may only declare and make cash distributions (z) payments required to be made pursuant to the Parent terms of the Tax Allocation Agreement dated June 1, 1978, as amended, among Lane Industries, Inc. and other holders certain of partnership interests 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 Borrower with respect remaining term of this Agreement so long as, at the time of the making of and after giving effect to any fiscal year to the extent necessary for the Parent to distributeRestricted Payment, 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 no Default or Event of Default specified in Section 10.1.(a), Section 10.1.(e) shall occur 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 Parent shall not, and shall not permit the Borrower or any Subsidiary to, make any Restricted Payments to any Person other than to the Parent, the Borrower or any Subsidiarybe continuing.
(m) The Credit Agreement is hereby further amended by restating Section 9.1.(h)(ii) in its entirety to read as follows:
Appears in 1 contract
Samples: Multicurrency Credit Agreement (General Binding Corp)
Dividends and Other Restricted Payments. The Parent and the Borrower shall not, and shall not permit the Borrower or any of their the other Subsidiaries to, declare or make any Restricted Payment; provided, however, that the Parent, the Borrower and their respective the other Subsidiaries may declare and make the following Restricted Payments so long as no Default or Event of Default would result therefromPayments:
(i) the Borrower may pay cash distributions 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 dividends to its shareholders in an aggregate amount not to exceed the greater of (ix) the amount required to be distributed for the Parent to remain in compliance with Section 7.127.11. or (iiy) 9095.0% of Funds From from Operations;
(ii) the Borrower may pay cash distributions 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 (including, without limitation, distributions constituting “capital gains dividends”) 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 Section 857 (including, without limitation, Section Sections 857(b)(3)) and Section 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;
(iv) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary;
(v) the Borrower or any other Subsidiary of the Parent may make purchases of repurchase Equity Interests Interest in any Subsidiary or Unconsolidated Affiliate of the Parent so long as (x) immediately prior thereto, and immediately thereafter and after giving effect thereto, no Default or Event of any of its Subsidiaries that are held by any other Person;
(vi) the Borrower may redeem for cash limited partnership interests Default is or would be in the Borrower; and
(vii) the Parentexistence, the Borrower or any Subsidiary may redeem or repurchase its Preferred Stockincluding, at par or at a discount. Notwithstanding the foregoingwithout limitation, but subject to the following sentence, if a Default or Event of Default existsresulting 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 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 7.127.11. If a Default or Event of Default specified Notwithstanding anything to the contrary in Section 10.1.(a)this Section, 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 Subsidiaries may pay Restricted Payments to Section 10.2.(a), the Parent shall not, and shall not permit the Borrower or any other Subsidiary to, make at any Restricted Payments to any Person other than to the Parent, the Borrower or any Subsidiarytime.
(m) The Credit Agreement is hereby further amended by restating Section 9.1.(h)(ii) in its entirety to read as follows:
Appears in 1 contract
Samples: Term Loan Agreement (Equity Lifestyle Properties Inc)
Dividends and Other Restricted Payments. The Parent shall not, and shall not permit the Borrower or any of their its Subsidiaries to, declare or make any Restricted Payment; provided, however, that the Parent, 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 their respective Subsidiaries the other holders of partnership interests in the Borrower, and the Parent may declare and make so distribute such cash dividends to its shareholders, in the following Restricted Payments case of clause (A) or clause (B), so long as no Default or Event of Default exists or would result therefrom: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;
(iii) both (A) the Borrower may pay cash distributions 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 dividends to its shareholders in an aggregate amount not to exceed the greater of (ix) the amount required to be distributed for the Parent to remain in compliance with Section 7.12. or 8.14 and (ii) 90% of Funds From Operations;
(iiy) the 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 amount 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 payment of taxes income or excise tax under Section 857 (including, without limitation, Section 857(b)(3)) and Section 4981 of the Internal Revenue Code;
; and (iii) a Subsidiary that is not a Wholly Owned Subsidiary may make cash distributions to holders of Equity Interests issued by such Subsidiary;
(ivB) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary;
(v) Subsidiary of the Borrower and the Borrower or any other Subsidiary of the Parent may 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) pay Restricted Payments to the Parent, the Borrower or any Subsidiary may redeem or repurchase its Preferred Stock, at par or at a discount. Notwithstanding the foregoing, but subject to the following foregoing sentence, if in the event that 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. If a Default or Event of Default specified in Section 10.1.(aunder Sections 11.1(a), Section 10.1.(e(e) or Section 10.1.(f(f) shall existexists or would exist after giving effect to such Restricted Payment, 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)in accordance with the terms of this Agreement, then the Parent shall not, and nor shall not it permit the Borrower or any Subsidiary to, to make any Restricted Payments to any Person other than to the Parent, the Borrower or any SubsidiarySubsidiary that is a Guarantor.
(m) The Credit Agreement is hereby further amended by restating Section 9.1.(h)(ii) in its entirety to read as follows:
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 its Subsidiaries to, declare or make any Restricted Payment; provided, however, that the Parent, 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 their respective Subsidiaries the other holders of partnership interests in the Borrower, and the Parent may declare and make so distribute such cash dividends to its shareholders, in the following Restricted Payments case of clause (A) or clause (B), so long as no Default or Event of Default exists or would result therefrom: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
(iii) both (A) the Borrower may pay cash distributions 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 dividends to its shareholders in an aggregate amount not to exceed the greater of (ix) the amount required to be distributed for the Parent to remain in compliance with Section 7.128.14. or and (ii) 90% of Funds From Operations;
(iiy) the 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 amount 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 payment of taxes income or excise tax under Section 857 (including, without limitation, Section 857(b)(3)) and Section 4981 of the Internal Revenue Code;
; and (iii) a Subsidiary that is not a Wholly Owned Subsidiary may make cash distributions to holders of Equity Interests issued by such Subsidiary;
(ivB) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary;
(v) Subsidiary of the Borrower and the Borrower or any other Subsidiary of the Parent may 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) pay Restricted Payments to the Parent, the Borrower or any Subsidiary may redeem or repurchase its Preferred Stock, at par or at a discount. Notwithstanding the foregoing, but subject to the following foregoing sentence, if in the event that 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. If a Default or Event of Default specified in Section 10.1.(aunder Sections 11.1.(a), Section 10.1.(e(e) or Section 10.1.(f(f) shall existexists or would exist after giving effect to such Restricted Payment, 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)in accordance with the terms of this Agreement, then the Parent shall not, and nor shall not it permit the Borrower or any Subsidiary to, to make any Restricted Payments to any Person other than to the Parent, the Borrower or any SubsidiarySubsidiary that is a Guarantor.
(m) The Credit Agreement is hereby further amended by restating Section 9.1.(h)(ii) in its entirety to read as follows:
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 their Subsidiaries to, redeem, purchase, repurchase or otherwise acquire any Equity Interests of the Parent, the Borrower or any of their Subsidiaries from any Person other than the Parent, the Borrower or a Subsidiary unless (i) no Default or Event of Default exists or would result therefrom and (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 and the Borrower will be in compliance with the covenants contained in Section 10.1. after giving pro forma effect 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 Payment; provided, however, Payments except that the Parent, the Borrower and their respective Subsidiaries may declare and make the following Restricted Payments so long as no Default or Event of Default would result therefrom:
(i) the 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 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 7.12. or (ii) 90% of Funds From Operations;
(ii) the 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 payment of taxes under Section 857 (including, without limitation, Section 857(b)(3)) and Section 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;
(iv) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary;
(v) the Borrower or any other Subsidiary of the Parent may 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, 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 Equity 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, (A) make cash or equity distributions in an aggregate amount not to exceed the minimum amount necessary for the Parent to remain satisfy the requirements for qualification and taxation as a REIT and not be subject to income or excise taxation under Sections 857(b)(1), 857(b)(3), 860 or 4981 of the Internal Revenue Code and (B) make additional distributions in compliance 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 7.12. If a Default or Event of Default specified in Section 10.1.(a), Section 10.1.(e857(b)(2) or Section 10.1.(f) shall exist, or if as a result of the occurrence of any other Event of Default any Internal Revenue Code and (ii) Subsidiaries of the Obligations have been accelerated pursuant to Section 10.2.(a), the Parent shall not, and shall not permit the Borrower or any Subsidiary to, 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 Parenttype of Equity Interest in respect of which such Restricted Payment is being made. Notwithstanding the foregoing, during the Covenant Relief Period, the Borrower or any Subsidiaryterms of this 10.1.(kl) shall be subject to Section 10.11.(a).
(m) The Credit Agreement is hereby further amended by restating Section 9.1.(h)(ii) in its entirety to read as follows:
Appears in 1 contract
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 the Borrower or any of their its Subsidiaries to, declare or make any Restricted Payment; provided, however, provided that the Parent, the Borrower and their respective Subsidiaries may declare and make the following Restricted Payments so long as no Default or Event of Default would result therefrom:
(i) the Borrower may pay cash distributions to the Parent declare 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 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 7.12. or (ii) 90% of Funds From Operations;
(ii) the 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 payment of taxes under Section 857 (including, without limitation, Section 857(b)(3)) and Section 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;
(iv) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary;
(v) the Borrower or any other Subsidiary of the Parent may 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, 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 fiscal year to the extent necessary for the Parent Borrower to distribute, and the Parent Borrower may so distribute, an aggregate amount not to exceed the minimum amount necessary for the Parent Borrower to (A) remain in compliance with Section 7.12. If a Default and (B) to avoid payment for any federal income taxes or Event of Default specified in Section 10.1.(a), Section 10.1.(efederal excise taxes imposed under Sections 857(b)(1) or Section 10.1.(f857(b)(3) shall exist(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 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 of the Borrower’s Subsidiaries (and in the case of a Subsidiary of the Borrower that is not a Wholly Owned Subsidiary, if required by the 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 occurrence of any other Event of Default any of the Obligations have been accelerated pursuant to Section 10.2.(a), the Parent Borrower shall not, and the Borrower shall not permit the Borrower or any Subsidiary of its Subsidiaries to, make any Restricted Payments to any Person other than to the Parent, the Borrower or any of its Subsidiaries (and in the case of a Subsidiary that is not a Wholly 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).
(m) The Credit Agreement is hereby further amended by restating Section 9.1.(h)(ii) in its entirety to read as follows:
Appears in 1 contract
Dividends and Other Restricted Payments. The (i) Parent shall not, and shall not permit the Borrower or at any of their Subsidiaries to, time (x) declare or make any Restricted PaymentPurchase 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; providedprovided 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, howeverin each case, that in satisfaction of tax withholding and payment obligations in connection with the Parent, vesting of awards of Equity Interests or upon the forfeiture of any such grant or award in accordance with its terms.
(ii) The Borrower and their respective shall not permit any of its Subsidiaries may to declare and or make the following any Restricted Payments except that, so long as no Default or Event of Default would result therefrom:
exists at the time of declaration or payment thereof, (iA) Subsidiaries of the Borrower may pay cash make distributions to a Subsidiary Owner from time to time, and (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 other holders of partnership interests then on deposit in the Borrower with respect 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 any fiscal year ending during the term quarter of Parent, (y) no revenue from any then-current fiscal quarter shall be available for distribution as an ECF Distribution pursuant to this Agreement to the extent necessary for the Parent to distributeSection, and (z) if Excess Cash Flow as reported by the 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 clause (d)(i) above, the Borrower may make distributions to Holdings, and Holdings may in turn make distributions to Parent, and Parent may so distributedeclare and make distributions, in each case, in an amount to permit Parent (in the aggregate, together with all other distributions to Parent from its Subsidiaries) to declare and make cash distributions to its shareholders in an aggregate amount not to exceed the greater of (i) the minimum amount required to be distributed necessary for the Parent to remain in compliance with Section 7.12. 7.11 or (ii) 90% of Funds From Operations;
(ii) the 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 payment the imposition of income or excise taxes imposed under Section 857 (includingSections 857(b)(1), without limitation, Section 857(b)(3)) and Section or 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;.
(iv) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary;
(v) the Borrower or any other Subsidiary of the Parent may 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, 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 fiscal year to the extent necessary for the Parent to distribute, and the Parent may so distribute, If 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.(a10.1(a), Section 10.1.(e10.1(e) or Section 10.1.(f10.1(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.(a10.2(a), the Parent shall notnone of Parent, Holdings and shall not permit the Borrower shall, nor shall any of Parent, Holdings or the Borrower permit any Subsidiary of Holdings to, make any Restricted Payments to any Person other than to the Parent, the Borrower or any SubsidiaryPerson.
(m) The Credit Agreement is hereby further amended by restating Section 9.1.(h)(ii) in its entirety to read as follows:
Appears in 1 contract
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 the Borrower or any of their the other Subsidiaries to, declare or make any Restricted Payment; providedPayments, however, except that notwithstanding the Parent, the Borrower and their respective Subsidiaries may declare and make the following Restricted Payments so long as no Default or existence of an Event of Default would result therefrom:
(i) Default, the Borrower may pay cash distributions 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 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 7.12. or (ii) 90% of Funds From Operations;
(ii) the Borrower may pay cash distributions to the Parent maintain its status as a real estate investment trust 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 payment of any income or excise taxes imposed under Section 857 (including857(b)(1), without limitation, Section 857(b)(3)) and Section or 4981 of the Internal Revenue Code;
. Subsidiaries (iiiother than the Borrower) 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 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 any other Subsidiary;delayed):
(va) the Borrower purchase or other acquisition of (i) property and assets or businesses of any other 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 Parent may make purchases 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 Subsidiary property by any Person, including any sale, assignment, transfer or Unconsolidated Affiliate other disposal, with or without recourse, of any notes or accounts receivable or any 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 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, 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 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), 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 Parent shall not, and shall not permit the Borrower or any Subsidiary to, make any Restricted Payments to any Person other than to the Parent, the Borrower or any Subsidiary.
(m) The Credit Agreement is hereby further amended by restating Section 9.1.(h)(ii) in its entirety to read as follows:- 90 - LEGAL02\42427047.v4
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 the Borrower or any of their its Subsidiaries to, declare or make any Restricted PaymentPayments; provided, however, provided that (i) SLGOP and the Parent, the Borrower and their respective Subsidiaries Guarantor may declare and make the following Restricted Payments so long as no Default or Event of Default would result therefrom:
(i) the 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 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 7.12. or (ii) 90% of Funds From Operations;
(ii) the 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 payment of taxes under Section 857 (including, without limitation, Section 857(b)(3)) and Section 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;
(iv) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary;
(v) the Borrower or any other Subsidiary of the Parent may 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 SLGOP and the Borrower; and
(vii) the ParentGuarantor, the Borrower or any Subsidiary may redeem or repurchase its Preferred Stockrespectively, at par or at a discount. 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 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 7.127.11. and (ii) Subsidiaries of a Borrower may make Restricted Payments to (A) such Borrower and to other holders of the Equity Interests in such Subsidiaries to the extent necessary to make Restricted Payments to such Borrower or (B) any of such Borrower’s Subsidiaries, and in the case of a Subsidiary of such Borrower that is not a Wholly Owned Subsidiary, to each other holder of Equity Interests of such Subsidiary based on their relative ownership interests. If a Default or 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 Parent shall notno Borrower or other Loan Party shall, and shall not permit the no Borrower or other Loan Party shall permit any Subsidiary their respective Subsidiaries to, make any Restricted Payments to any Person other than to the Parent, the a Borrower or other Loan Party or any Subsidiaryof 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.
(m) The Credit Agreement is hereby further amended by restating Section 9.1.(h)(ii) in its entirety to read as follows:
Appears in 1 contract
Samples: Credit Agreement (Sl Green Operating Partnership, L.P.)
Dividends and Other Restricted Payments. The Parent and the Borrower shall not, and shall not permit the Borrower or any of their Subsidiaries to, declare or make any Restricted Payment; provided, however, that the Parent, the Borrower and their respective Subsidiaries may declare and make the following Restricted Payments Payment so long as no any Default or Event of Default exists or would result 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 (i) f), in each case, solely with respect to the Parent or the Borrower, 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 pursuant to 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 (i) the amount required to be distributed for the Parent to (x) remain in compliance with Section 7.128.12 and (y) avoid the payment of U.S. federal or state income or excise tax. Subsidiaries other than the Borrower may, at any time, make Restricted Payments (x) to the Borrower and the other Subsidiaries that are Guarantors or (ii) 90% of Funds From Operations;
(ii) the 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”y) to its shareholders to the extent necessary to avoid payment of taxes under Section 857 (includingSubsidiaries that are not Guarantors, without limitation, Section 857(b)(3)) and Section 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 so long as such Subsidiary;
(iv) Subsidiaries may pay Restricted Payments are substantially concurrently distributed, directly or indirectly, to the Borrower or any other Subsidiary;
(v) the Borrower or any other Subsidiary of the Parent may 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, 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 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), 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 Parent shall not, and shall not permit the Borrower or any Subsidiary to, make any Restricted Payments to any Person other than to the Parent, the Borrower or any SubsidiaryGuarantor.
(m) The Credit Agreement is hereby further amended by restating Section 9.1.(h)(ii) in its entirety to read as follows:
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 the Borrower or any of their its Subsidiaries to, declare or make any Restricted Payment; provided, however, that the Parent, the Borrower Parent and their respective its Subsidiaries may declare and make the following other Restricted Payments so long as no Default or Event of Default would result therefromtherefrom and so long as the Parent shall be in pro forma compliance with the other covenants set forth in this Section 10.1 after giving effect thereto:
(i) the Borrower may pay cash distributions 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 dividends to its shareholders in an aggregate amount not to exceed the greater of (ix) the amount required to be distributed for the Parent to remain in compliance with Section 7.12. or 8.14; (iiy) 9095% of Funds From Operations;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 (z) the amount necessary for the Parent to avoid income or excise tax under 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. If a Default or Event of Default exists, the Borrower may pay cash distributions 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 to distribute, and the Parent may so distribute distribute, cash distributions (including, without limitation, distributions constituting “capital gains dividends”) dividends to its shareholders to the extent necessary to avoid payment of taxes under Section 857 (including, without limitation, Section 857(b)(3)) and Section 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;
(iv) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary;
(v) the Borrower or any other Subsidiary of the Parent may 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, 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 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 required to be distributed for the Parent to remain in compliance with Section 7.128.14. If Notwithstanding the foregoing, if a Default or Event of Default specified in Section 10.1.(aunder Sections 11.1(a), Section 10.1.(e(e) or Section 10.1.(f(f) shall exist, exists or if as a result of the occurrence of any other Event of Default any of the Obligations have otherwise been accelerated pursuant to Section 10.2.(a)in accordance with the terms of this Agreement, the Parent shall not, and nor shall not it permit the Borrower or any Subsidiary to, make any Restricted Payments to any Person other than to the Parent, the Borrower or any SubsidiarySubsidiary that is a Guarantor.
(m) The Credit Agreement is hereby further amended by restating Section 9.1.(h)(ii) in its entirety to read as follows:
Appears in 1 contract
