Common use of Dividends and Other Restricted Payments Clause in Contracts

Dividends and Other Restricted Payments. If (i) an Event of Default under Section 10.1.(a), Section 10.1.(e) or Section 10.1.(f) shall exist, or (ii) 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), neither the Borrower nor any Subsidiary shall directly or indirectly declare or make, or incur any liability to make any Restricted Payments. If any Event of Default other than those specified in clauses (i) and (ii) of the immediately preceding sentence exists and the Obligations have not been accelerated pursuant to Section 10.2.(a), the Borrower may only declare or make, or incur any liability to make, cash distributions to its shareholders during any fiscal year in an aggregate amount not to exceed the minimum amount necessary for the Borrower (or following the Reorganization, the REIT Entity) to maintain compliance with Section 7.11. Notwithstanding anything to the contrary in this Section, (i) Subsidiaries may make Restricted Payments to the Borrower and to other Subsidiaries, (ii) following the consummation of the Reorganization, the OP or any other Subsidiary of the REIT Entity may redeem for cash limited partnership interests or membership interests in the OP pursuant to customary redemption rights granted to the applicable limited partner or member, but only to the extent that, in the good faith determination of the Borrower, issuing shares of the REIT Entity in redemption of such partnership or membership interests reasonably could be considered to impair its ability to maintain its status as a REIT, and (iii) following the consummation of the Reorganization, to the extent constituting a Restricted Payment, payments may be made by the Borrower to the REIT Entity to the extent required to fund administrative and operating expenses of the REIT Entity to the extent attributable to any activity of or with respect to the REIT Entity that is not otherwise prohibited by this Agreement.

Dividends and Other Restricted Payments. If The Parent shall not, and shall not permit any of its Subsidiaries to, declare or make any Restricted Payment; provided, however, that the Parent and its Subsidiaries may declare and make the following other Restricted Payments so long as no Default or Event of Default 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 after giving effect thereto: (i) the Borrower may pay cash dividends to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, and the Parent may so distribute, cash dividends to its shareholders in an aggregate amount not to exceed the greater of (x) the amount required to be distributed for the Parent to remain in compliance with Section 8.14; (y) 95% of Funds From Operations; 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 under Section 10.1.(a), Section 10.1.(e) or Section 10.1.(f) shall exist, or (ii) 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), neither the Borrower nor any Subsidiary shall directly or indirectly declare or make, or incur any liability to make any Restricted Payments. If any Event of Default other than those specified in clauses (i) and (ii) of the immediately preceding sentence exists and the Obligations have not been accelerated pursuant to Section 10.2.(a)exists, the Borrower may only declare or makepay cash dividends to the Parent and other holders of Equity Interests in the Borrower with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Parent to distribute, or incur any liability to makeand the Parent may so distribute, cash distributions dividends to its shareholders during any fiscal year in an aggregate amount not to exceed the minimum amount necessary required to be distributed for the Borrower (or following the Reorganization, the REIT Entity) Parent to maintain remain in compliance with Section 7.118.14. Notwithstanding anything to the contrary in this Sectionforegoing, if a Default or Event of Default under Sections 11.1(a), (ie) Subsidiaries may or (f) exists or the Obligations have otherwise been accelerated in accordance with the terms of this Agreement, the Parent shall not, nor shall it permit any Subsidiary to, make any Restricted Payments to any Person other than to the Borrower and to other Subsidiaries, (ii) following the consummation of the Reorganization, the OP or any other Subsidiary of the REIT Entity may redeem for cash limited partnership interests or membership interests in the OP pursuant to customary redemption rights granted to the applicable limited partner or member, but only to the extent that, in the good faith determination of the Borrower, issuing shares of the REIT Entity in redemption of such partnership or membership interests reasonably could be considered to impair its ability to maintain its status as a REIT, and (iii) following the consummation of the Reorganization, to the extent constituting a Restricted Payment, payments may be made by the Borrower to the REIT Entity to the extent required to fund administrative and operating expenses of the REIT Entity to the extent attributable to any activity of or with respect to the REIT Entity that is not otherwise prohibited by this Agreementa Guarantor.

Dividends and Other Restricted Payments. If (i) an Event of Default under Section 10.1.(a)The Borrower will not, Section 10.1.(e) or Section 10.1.(f) shall exist, or (ii) as a result of the occurrence of any other Event of Default and will not permit any of the Obligations have been accelerated pursuant to Section 10.2.(a)its Subsidiaries to, neither the Borrower nor any Subsidiary shall directly or indirectly declare or make, or incur any liability agree to make pay or make, directly or indirectly, any Restricted Payments. If Payment, except: (a) the Borrower or any Event of Default 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 than those specified in clauses rights to acquire additional shares of its common stock); (b) any Subsidiary may declare and pay or make Capital Distributions (i) to the Borrower or any Subsidiary Guarantor and (ii) of to any Minority Holder, but solely to the immediately preceding sentence exists and extent a corresponding Capital Distribution is paid or made to the Obligations have not been accelerated pursuant to Section 10.2.(a), Borrower or a Subsidiary Guarantor; (c) the Borrower may only declare and pay or makemake any other Capital Distributions, or incur any liability to make, cash distributions to its shareholders during any fiscal year in an aggregate amount not to exceed the minimum amount necessary for the Borrower (or following the Reorganization, the REIT Entity) to maintain compliance with Section 7.11. Notwithstanding anything to the contrary in this Section, provided that (i) Subsidiaries may make Restricted Payments to the Borrower no Default or Event of Default shall have occurred and to other Subsidiariesbe continuing or would result therefrom, (ii) following the consummation of Borrower is in compliance with the Reorganization, the OP or any other Subsidiary of the REIT Entity may redeem for cash limited partnership interests or membership interests financial covenants set forth in the OP pursuant Section 9.7 hereof after giving pro forma effect to customary redemption rights granted to the applicable limited partner or member, but only to the extent that, in the good faith determination of the Borrower, issuing shares of the REIT Entity in redemption of each such partnership or membership interests reasonably could be considered to impair its ability to maintain its status as a REITCapital Distribution, and (iii) following the consummation aggregate amount of all Capital Distributions made by the Borrower pursuant to this clause shall not exceed (A) during any fiscal year of the ReorganizationBorrower an amount equal to 50% of the Consolidated Net Income for the most recently completed fiscal year of the Borrower, to the extent constituting a Restricted Payment, payments may be made by positive and (B) $10,000,000 in the aggregate on and after the Closing Date; (d) the Borrower may make Share Repurchases, provided that (i) prior to or contemporaneously with any such Share Repurchase, the Borrower shall provide written evidence to the REIT Entity to Administrative Agent and the extent required to fund administrative Lenders of compliance on a pro forma basis with the covenants contained in Section 9.7, (ii) no Default or Event of Default shall have occurred and operating expenses be continuing or shall result therefrom and (iii) the aggregate amount of all such Share Repurchases made on or after the REIT Entity to the extent attributable to any activity of or with respect to the REIT Entity that is Closing Date shall not otherwise prohibited by this Agreementexceed $10,000,000.

Dividends and Other Restricted Payments. If (i) Subject to the following sentence, if an Event of Default under exists, neither the Parent nor the Borrower shall, and neither the Parent nor the Borrower shall permit, subject to Section 12.14., any of its Subsidiaries to, declare or make any Restricted Payments except that (i) the Borrower may declare and make only cash distributions to the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year of the Parent, and the Parent may distribute such cash distributions, in an aggregate amount not to exceed the minimum amount necessary for the Parent to remain in compliance with Section 7.10., (ii) Subsidiaries of the Borrower may pay Restricted Payments to the Borrower, any other Subsidiary of the Borrower or any other Person that owns a direct 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, or, if such Restricted Payments cannot be made ratably because of requirements set forth in such Subsidiary’s organizational documents or other contract to which such Subsidiary is bound that was entered into for purposes other than primarily to avoid the requirement to make such distributions ratably as described in this clause (ii), then in the manner required by such organizational documents or such other contract, and (iii) the Parent may redeem common Equity Interests in the Parent to the extent necessary to comply with its Amended and Restated Share Redemption Program as in effect on the Agreement Date, as it may be amended from time to time; provided, that the Parent terminates its Amended and Restated Share Redemption Program within 45 days following the occurrence of such Event of Default and all such redemptions made after such Event of Default do not exceed $35,000,000 in the aggregate. If an Event of Default specified in Section 10.1.(a), Section 10.1.(e) or Section 10.1.(f) shall exist, or (ii) 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), then neither the Parent nor the Borrower shall, and neither the Parent nor the Borrower shall permit, subject to Section 12.14., any Subsidiary shall directly or indirectly declare or maketo, or incur any liability to make any Restricted Payments. If Payments to any Person except (x) in the case of the existence of a Default or an Event of Default other than those specified in clauses (iSection 10.1.(a) and (ii) of the immediately preceding sentence exists and the Obligations have not been accelerated pursuant to Section 10.2.(a)only, the Borrower may only declare or make, or incur any liability to make, and make cash distributions to its shareholders during the Parent and other holders of partnership interests in the Borrower with respect to any fiscal year of the Parent, and the Parent may distribute such cash distributions, in an aggregate amount not to exceed the minimum amount necessary for the Borrower (or following the Reorganization, the REIT Entity) Parent to maintain remain in compliance with Section 7.117.10. Notwithstanding anything to the contrary in this Section, so long as such amount does not exceed $10,000,000 and (iy) Subsidiaries of the Borrower may make pay Restricted Payments to the Borrower and to other SubsidiariesBorrower, (ii) following the consummation of the Reorganization, the OP or any other Subsidiary of the REIT Entity may redeem Borrower or any other Person that owns a direct 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, or, if such Restricted Payments cannot be made ratably because of requirements set forth in such Subsidiary’s organizational documents or other contract to which such Subsidiary is bound that was entered into for cash limited partnership interests or membership interests purposes other than primarily to avoid the requirement to make such distributions ratably as described in this clause (y), then in the OP pursuant to customary redemption rights granted to the applicable limited partner manner required by such organizational documents or member, but only to the extent that, in the good faith determination of the Borrower, issuing shares of the REIT Entity in redemption of such partnership or membership interests reasonably could be considered to impair its ability to maintain its status as a REIT, and (iii) following the consummation of the Reorganization, to the extent constituting a Restricted Payment, payments may be made by the Borrower to the REIT Entity to the extent required to fund administrative and operating expenses of the REIT Entity to the extent attributable to any activity of or with respect to the REIT Entity that is not otherwise prohibited by this Agreementother contract.

Dividends and Other Restricted Payments. If The Parent shall not, and shall not permit any of its Subsidiaries to, declare or make any Restricted Payment, except that: (i) an the Borrower may (A) make payments on account of redemption or repurchase of partnership interests in the Borrower in accordance with the partnership agreement of the Borrower, or (B) pay cash dividends to the Parent and the other holders of partnership interests in the Borrower, and the Parent may so distribute such cash dividends to its shareholders, in the case of clause (A) or clause (B), so long as no Default or Event of Default under 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.(a), Section 10.1.(e) or Section 10.1.(f) shall exist, or 10.1 immediately after giving effect thereto; (ii) 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), neither the Borrower nor any Subsidiary shall directly or indirectly declare or make, or incur any liability to make any Restricted Payments. If any Event of Default other than those specified in clauses both (iA) and (ii) of the immediately preceding sentence exists and the Obligations have not been accelerated pursuant to Section 10.2.(a), the Borrower may only declare or makepay 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, or incur any liability to makeand the Parent may so distribute, cash distributions dividends to its shareholders during any fiscal year in an aggregate amount not to exceed the minimum greater of (x) the amount required to be distributed for the Parent to remain in compliance with Section 8.14 and (y) the amount necessary for the Borrower Parent to avoid income or excise tax under the Internal Revenue Code; and (or following the Reorganization, the REIT Entity) to maintain compliance with Section 7.11. Notwithstanding anything to the contrary in this Section, (iB) Subsidiaries may make pay Restricted Payments to the Borrower and to other Subsidiaries, (ii) following the consummation of the Reorganization, the OP or any other Subsidiary of the REIT Entity Borrower and the Borrower or any other Subsidiary of the Parent may redeem for cash limited partnership interests or membership interests in the OP pursuant to customary redemption rights granted pay Restricted Payments to the applicable limited partner or member, but only to Parent. Notwithstanding the extent thatforegoing sentence, in the good faith determination event that a Default or Event of the BorrowerDefault under Sections 11.1(a), issuing shares of the REIT Entity in redemption of (e) or (f) exists or would exist after giving effect to such partnership or membership interests reasonably could be considered to impair its ability to maintain its status as a REIT, and (iii) following the consummation of the Reorganization, to the extent constituting a Restricted Payment, payments may be made by or the Obligations have been accelerated in accordance with the terms of this Agreement, then the Parent shall not, nor shall it permit any Subsidiary to make any Restricted Payments to any Person other than to the Borrower to the REIT Entity to the extent required to fund administrative and operating expenses of the REIT Entity to the extent attributable to or any activity of or with respect to the REIT Entity Subsidiary that is not otherwise prohibited by this Agreementa Guarantor.

Dividends and Other Restricted Payments. If Make, pay, declare or authorize any dividend, payment or other distribution in respect of any class of its Capital Stock or any dividend, payment or distribution in connection with the redemption, purchase, retirement or other acquisition, directly or indirectly, of any Capital Stock other than such dividends, payments or other distributions (i) an to the extent payable solely in shares of common stock of the Company, (ii) to the extent payable to the Company by a Restricted Subsidiary of the Company, (iii) dividends and distributions on Preferred Stock to the extent permitted under Section 5.2(s), (iv) if no Event of Default under Section 10.1.(a)or Default exists or would be caused thereby, Section 10.1.(e) or Section 10.1.(f) shall exist, or (ii) 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), neither the Borrower nor any Subsidiary shall directly or indirectly declare or make, or incur any liability to make any Restricted Payments. If any Event of Default other than those specified in clauses (i) and (ii) of the immediately preceding sentence exists and the Obligations have not been accelerated pursuant to Section 10.2.(a), the Borrower may only declare or make, or incur any liability to make, cash distributions to its shareholders during any fiscal year in an aggregate amount not to exceed $1,000,000 made after the minimum Effective Date, (v) which in aggregate amount necessary do not exceed 25% of the Net Income accrued during fiscal quarters ending after the Effective Date for which the Total Covenant Obligations to Total Covenant EBITDA Ratio was not greater than 3.0 to 1.0, provided that both before and after the making or declaration of such dividend, payment or other distribution (A) the pro forma Total Covenant Obligations to Total Covenant EBITDA Ratio is not greater than 3.0 to 1.0, on a pro forma basis acceptable to the Agent, (B) the Company is able to borrow at least $25,000,000 of additional Loans on a pro forma basis acceptable to the Agent and (C) no Default or Event of Default shall have occurred or be caused thereby, and (vi) if no Event of Default or Default exists or would be caused thereby, an aggregate amount not to exceed $2,500,000 for all employees made after the Effective Date for the Borrower (or following purpose of redeeming the Reorganization, the REIT Entity) to maintain compliance with Section 7.11. Notwithstanding anything to the contrary in this Section, (i) Subsidiaries may make Restricted Payments to the Borrower and to other Subsidiaries, (ii) following the consummation Capital Stock of the ReorganizationCompany owned by any employees of the Company, other than a Permitted Holder, upon the OP termination of the employment by the Company or any other Subsidiary of its Restricted Subsidiaries of such employee, provided that (A) any amounts used to redeem such Capital Stock under this clause (vi) shall first reduce the REIT Entity may redeem amount allowed or accumulated under Section 5.2(j)(iv) until the amount allowed thereunder is exhausted and then shall reduce the amount allowed under Section 5.2(j)(v) and (B) the amounts payable for cash limited partnership interests or membership interests in the OP pursuant to customary redemption rights granted to the applicable limited partner or member, but only to the extent that, in the good faith determination of the Borrower, issuing shares of the REIT Entity in redemption of such partnership Capital Stock will not be paid any sooner or membership interests reasonably could be considered to impair its ability to maintain its status as a REITin any greater amount than contractually required. The Company will not, and will not permit any of its Restricted Subsidiaries, to issue any Preferred Stock or any Disqualified Stock, other than (iii1) following any Preferred Stock which does not require any dividends, payments, redemptions or other distributions of any kind until at least one year after the consummation later of the ReorganizationRevolving Credit Termination Date, the Tooling Revolving Credit Termination Date or the Maturity Date, (2) the existing Lobdxxx Xxxferred Stock and (3) any other Preferred Stock or Disqualified Stock which meets all of the requirements for the issuance by the Company of Subordinated Debt (i.e. all payments and other obligations thereunder are expressly subordinate and junior in right and priority of payment to the extent constituting a Restricted Payment, payments may be made by the Borrower Advances and other Indebtedness of such Person to the REIT Entity Lenders in manner and by agreement satisfactory in form and substance to the extent required Agent and such Preferred Stock or Disqualified Stock is subject to fund administrative such other terms and operating expenses of the REIT Entity provisions, including without limitation maturities, covenants, defaults, rates and fees, acceptable to the extent attributable to any activity Agent), and such Preferred Stock and Disqualified Stock allowed under this clause (3) shall be treated as if it were Subordinated Debt for all purposes of or with respect to the REIT Entity that this Agreement and is not otherwise prohibited by this Agreementdefined herein as "Permitted Disqualified Stock".

Dividends and Other Restricted Payments. If (i) an Event of Default under Section 10.1.(a), Section 10.1.(e) or Section 10.1.(f10.1.9(f) shall exist, or (ii) 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), neither the Borrower nor any Subsidiary shall directly or indirectly declare or make, or incur any liability to make any Restricted Payments. If any Event of Default other than those specified in clauses (i) and (ii) of the immediately preceding sentence exists and the Obligations have not been accelerated pursuant to Section 10.2.(a), the Borrower may only declare or make, or incur any liability to make, cash distributions to its shareholders during any fiscal year in an aggregate amount not to exceed the minimum amount necessary for the Borrower (or following the Reorganization, the REIT Entity) to maintain compliance with Section 7.117.11 and to avoid payment of any income or excise taxes imposed under Section 857(b)(1), 857(b)(3) or 4981 of the Internal Revenue Code; provided that there shall not be any implied requirement that the Borrower (or following the Reorganization, the REIT Entity) utilize the dividend deferral options in Section 857(b)(9) or Section 858(a) of the Internal Revenue Code. Notwithstanding anything to the contrary in this Section, (i) Subsidiaries may make Restricted Payments to the Borrower and to other SubsidiariesSubsidiaries and to any Person owning Equity Interests in such Subsidiary ratably in accordance with the interest held by such Person, (ii) following the consummation of the Reorganization, the OP or any other Subsidiary of the REIT Entity may redeem for cash limited partnership interests or membership interests in the OP pursuant to customary redemption rights granted to the applicable limited partner or member, but only to the extent that, in the good faith determination of the Borrower, issuing shares of the REIT Entity in redemption of such partnership or membership interests reasonably could be considered to impair its ability to maintain its status as a REIT, and (iii) following the consummation of the Reorganization, to the extent constituting a Restricted Payment, payments may be made by the Borrower to the REIT Entity to the extent required to fund administrative and operating expenses of the REIT Entity to the extent attributable to any activity of or with respect to the REIT Entity that is not otherwise prohibited by this Agreement, (iv) the Borrower and any of its Subsidiaries may make repurchases, retirement or other acquisitions of Equity Interests in the Borrower or any Subsidiary (or following the Reorganization, the REIT Entity or any other parent entity of the Borrower) pursuant to any employee or director equity or stock option plan entered into in the ordinary course of business and (v) the Borrower (or following the Reorganization, including the REIT Entity) or any of its Subsidiaries may issue Equity Interests in connection with a conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion.

Dividends and Other Restricted Payments. If (iPrior to the completion by the Borrower of a Qualified Public Offering, the Borrower shall not, and shall not permit any of its Subsidiaries to, declare or make any Restricted Payments except Restricted Payments to the Borrower or any Subsidiary, and, provided that no Event of Default then exists, one or more distributions to SIR of the working capital of the Borrower and its Subsidiaries, provided that the Borrower shall at all times prior to such Qualified Public Offering maintain a reasonable amount of working capital determined in the reasonable business judgment of the Borrower. Following the completion by the Borrower of a Qualified Public Offering, the Borrower and its Subsidiaries shall be permitted to make Restricted Payments without limitation; provided, however, that following the occurrence and during the continuance of any Event of Default, the Borrower may declare and make cash distributions to its shareholders only in an aggregate amount not to exceed the minimum amount necessary for the Borrower to remain in compliance with Section 7.11 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 and Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary; provided further that if an Event of Default under specified in Section 10.1.(a10.1(a), Section 10.1.(e10.1(e) or Section 10.1.(f10.1(f) shall exist, or (ii) 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), neither the Borrower nor any Subsidiary shall directly or indirectly declare or make, or incur any liability to make any Restricted Payments. If any Event of Default other than those specified in clauses (i) and (ii) of the immediately preceding sentence exists and the Obligations have not been accelerated pursuant to Section 10.2.(a10.2(a), the Borrower may only declare or makeshall not, or incur and shall not permit any liability Subsidiary to, make any Restricted Payments to make, cash distributions to its shareholders during any fiscal year in an aggregate amount not to exceed the minimum amount necessary for the Borrower (or following the Reorganization, the REIT Entity) to maintain compliance with Section 7.11. Notwithstanding anything to the contrary in this Section, (i) Person except that Subsidiaries may make pay Restricted Payments to the Borrower and to other Subsidiaries, (ii) following the consummation of the Reorganization, the OP or any other Subsidiary of the REIT Entity may redeem for cash limited partnership interests or membership interests in the OP pursuant to customary redemption rights granted to the applicable limited partner or member, but only to the extent that, in the good faith determination of the Borrower, issuing shares of the REIT Entity in redemption of such partnership or membership interests reasonably could be considered to impair its ability to maintain its status as a REIT, and (iii) following the consummation of the Reorganization, to the extent constituting a Restricted Payment, payments may be made by the Borrower to the REIT Entity to the extent required to fund administrative and operating expenses of the REIT Entity to the extent attributable to any activity of or with respect to the REIT Entity that is not otherwise prohibited by this AgreementSubsidiary.

Dividends and Other Restricted Payments. If (i) a Default or an Event of Default under Section 10.1.(a11.1.(a), Section 10.1.(e11.1.(e) or Section 10.1.(f11.1.(f) shall existexist or, or (ii) 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 Borrower nor any Subsidiary 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 make, any Restricted Payments. If any Event of Default In all other than those specified circumstances except as described in clauses (i) and (ii) of the immediately preceding sentence exists sentence, neither Borrower nor any Specified Loan Party nor any of their respective Subsidiaries, and by its execution hereof the Obligations have not been accelerated pursuant to Section 10.2.(a)Parent Guarantor agrees that neither it nor any of its Subsidiaries (other than, in the Borrower may only 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, cash dividends or distributions to holders of its shareholders during any fiscal year common Equity Interests in an aggregate amount not to exceed the minimum amount necessary for the Borrower (or following the Reorganization, the REIT Entity) to maintain compliance with Section 7.11. Notwithstanding anything to the contrary in this Section, greatest of (i) Subsidiaries may make Restricted Payments to the Borrower and to other Subsidiaries90% of Funds From Operations, (ii) following the consummation of amount required for the Reorganization, the OP or any other Subsidiary of the REIT Entity may redeem for cash limited partnership interests or membership interests in the OP pursuant to customary redemption rights granted to the applicable limited partner or member, but only to the extent that, in the good faith determination of the Borrower, issuing shares of the REIT Entity in redemption of such partnership or membership interests reasonably could be considered to impair its ability Parent Guarantor to maintain its status as a REITREIT (including the right to distribute 100% of net capital gain) under Sections 856 through 860 of the Internal Revenue Code, and (iii) following the consummation amount necessary for the Parent Guarantor to avoid income or excise tax under the Internal Revenue Code; (B) As long as no Event of Default exists or would result therefrom, the Parent Guarantor, the Borrower and any Subsidiary, each as applicable, may make cash payments: (1) to redeem Equity Interests in the Borrower or any Subsidiary in accordance with the terms of the Reorganizationcharter, articles of incorporation or by-laws, operating agreement, partnership agreement or other organizational document of such entity; (2) of Preferred Dividends as required to be paid to holders of Preferred Stock; (3) to purchase Equity Interests from employees of the Parent Guarantor, the Borrower or any Subsidiary in amounts required to satisfy their withholding tax obligations in respect of non-cash compensation received by such employees in respect of such employment; (4) to purchase the interests of joint venture partners of the Borrower or its Subsidiaries; (5) to the extent constituting a Restricted Payment, payments may contractually required to be made to holders of minority interests in non-Wholly Owned Subsidiaries; and (6) to the Borrower or the Parent Guarantor, as applicable, in amounts sufficient to permit the recipient of such funds to make any of the payments permitted under the foregoing clauses of this Section 10.1.(e)(B); and (C) As long as no Event of Default or Default exists or would result therefrom (including, without limitation, that Borrower and the Parent Guarantor are, and following such repurchase would be, in compliance with the covenants in Section 10.1.), the Parent Guarantor may repurchase from time to time not more than 3,000,000 of its common Equity Interests (in the aggregate for all such repurchases) for a purchase price of not more than $35,000,000 (in the aggregate for all such repurchases) and the Borrower may repurchase Equity Interests in the Borrower held by the Borrower Parent Guarantor, or make other cash payments or distributions, in amounts sufficient to permit the REIT Entity Parent Guarantor to the extent required to fund administrative and operating expenses effect such repurchases of the REIT Entity to the extent attributable to any activity of or with respect to the REIT Entity that is not otherwise prohibited by this Agreementits common Equity Interests.

Dividends and Other Restricted Payments. If (i) an Event of Default under Section 10.1.(a), Section 10.1.(e) or Section 10.1.(f) shall exist, or (ii) 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), neither the Borrower nor any Subsidiary shall directly or indirectly declare or make, or incur any liability to make any Restricted Payments. If any Event of Default other than those specified in clauses (i) and (ii) of the immediately preceding sentence exists and the Obligations have not been accelerated pursuant to Section 10.2.(a), the Borrower may only declare or make, or incur any liability to make, cash distributions to its shareholders during any fiscal year in an aggregate amount not to exceed the minimum amount necessary for the Borrower (or following the Reorganization, the REIT Entity) to maintain compliance with Section 7.117.11 and to avoid payment of any income or excise taxes imposed under Section 857(b)(1), 857(b)(3) or 4981 of the Internal Revenue Code; provided that there shall not be any implied requirement that the Borrower (or following the Reorganization, the REIT Entity) utilize the dividend deferral options in Section 857(b)(9) or Section 858(a) of the Internal Revenue Code. Notwithstanding anything to the contrary in this Section, (i) Subsidiaries may make Restricted Payments to the Borrower and to other SubsidiariesSubsidiaries and to any Person owning Equity Interests in such Subsidiary ratably in accordance with the interest held by such Person, (ii) following the consummation of the Reorganization, the OP or any other Subsidiary of the REIT Entity may redeem for cash limited partnership interests or membership interests in the OP pursuant to customary redemption rights granted to the applicable limited partner or member, but only to the extent that, in the good faith determination of the Borrower, issuing shares of the REIT Entity in redemption of such partnership or membership interests reasonably could be considered to impair its ability to maintain its status as a REIT, and (iii) following the consummation of the Reorganization, to the extent constituting a Restricted Payment, payments may be made by the Borrower to the REIT Entity to the extent required to fund administrative and operating expenses of the REIT Entity to the extent attributable to any activity of or with respect to the REIT Entity that is not otherwise prohibited by this Agreement, (iv) the Borrower and any of its Subsidiaries may make repurchases, retirement or other acquisitions of Equity Interests in the Borrower or any Subsidiary (or following the Reorganization, the REIT Entity or any other parent entity of the Borrower) pursuant to any employee or director equity or stock option plan entered into in the ordinary course of business and (v) the Borrower (or following the Reorganization, including the REIT Entity) or any of its Subsidiaries may issue Equity Interests in LEGAL02/40926073v6 connection with a conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion.

Dividends and Other Restricted Payments. If (i) an Event of Default under Section 10.1.(a), Section 10.1.(e) or Section 10.1.(f) shall exist, or (ii) 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), neither the Borrower nor any Subsidiary shall directly or indirectly declare or make, or incur any liability to make any Restricted Payments. If any Event of Default other than those specified in clauses (i) and (ii) of the immediately preceding sentence exists and the Obligations have not been accelerated pursuant to Section 10.2.(a), the Borrower may only declare or make, or incur any liability to make, cash distributions to its shareholders during any fiscal year in an aggregate amount not to exceed the minimum amount necessary for the Borrower (or following the Reorganization, the REIT Entity) to maintain compliance with Section 7.117.11 and to avoid payment of any income or excise taxes imposed under Section 857(b)(1), 857(b)(3) or 4981 of the Internal Revenue Code; provided that there shall not be any implied requirement that the Borrower (or following the Reorganization, the REIT Entity) utilize the dividend deferral options in Section 857(b)(9) or Section 858(a) of the Internal Revenue Code. Notwithstanding anything to the contrary in this Section, (i) Subsidiaries may make Restricted Payments to the Borrower and to other SubsidiariesSubsidiaries and to any Person owning Equity Interests in such Subsidiary ratably in accordance with the interest held by such Person, (ii) following the consummation of the Reorganization, the OP or any other Subsidiary of the REIT Entity may redeem for cash limited partnership interests or membership interests in the OP pursuant to customary redemption rights granted to the applicable limited partner or member, but only to the extent that, in the good faith determination of the Borrower, issuing shares of the REIT Entity in redemption of such partnership or membership interests reasonably could be considered to impair its ability to maintain its status as a REIT, and (iii) following the consummation of the Reorganization, to the extent constituting a Restricted Payment, payments may be made by the Borrower to the REIT Entity to the extent required to fund administrative and operating expenses of the REIT Entity to the extent attributable to any activity of or with respect to the REIT Entity that is not otherwise prohibited by this Agreement, (iv) the Borrower and any of its Subsidiaries may make repurchases, retirement or other acquisitions of Equity Interests in the Borrower or any Subsidiary (or following the Reorganization, the REIT Entity or any other parent entity of the Borrower) pursuant to any employee or director equity or stock option plan entered into in the ordinary course of business and (v) the Borrower (or following the Reorganization, including the REIT Entity) or any of its Subsidiaries may issue Equity Interests in connection with a conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion.