Enhanced Negative Covenants. Notwithstanding anything to the contrary contained in this Agreement, during the Waiver Period the Note Parties shall not, nor shall they permit any other Company Party (except where expressly limited to the Company or the Note Parties, as applicable), directly or indirectly, to: (a) make any Investments other than (i) Investments in one or more new Unencumbered Borrowing Base Properties (or in Equity Interests in Subsidiaries that own or will own new Unencumbered Borrowing Base Properties) solely with the proceeds of Excluded Net Proceeds or (ii) any other Investments otherwise permitted pursuant to Section 10.9 not to exceed $100,000,000 in the aggregate; (b) make or become legally obligated to make any expenditure in respect of the purchase or other acquisition of any fixed or capital asset other than (i) in connection with emergency repairs, life safety repairs or ordinary course maintenance repairs (ii) capital expenditures to complete ongoing renovations in an amount not to exceed $155,000,000 in the aggregate during the period commencing with the Fourth Amendment Effective Date through the remainder of the Waiver Period; (c) create, incur, assume or suffer to exist any Indebtedness not existing and permitted as of the Second Amendment Effective Date other than (i) to the extent the proceeds of such Indebtedness are used to fully or partially refinance or replace Indebtedness existing and permitted as of the Second Amendment Effective Date; provided, however, that in no event shall the final stated maturity date of any Indebtedness permitted under this clause (c)(i) be earlier than the existing maturity date of the Indebtedness being refinanced or replaced; provided further, that any amounts in excess of the amounts used to fully or partially refinance or replace Indebtedness are otherwise permitted to be incurred pursuant to this Section 10.10(c), (ii) Secured Non-Recourse Debt not to exceed $250,000,000400,000,000 in the aggregate and pursuant to which the Company has made the mandatory offer to purchase pursuant to Section 8.9; provided, however, that in no event shall the final stated maturity date of any Indebtedness permitted under this clause (c)(ii) be earlier than one (1) year after the Maturity Date of the Notes, or (iii) Indebtedness that is recourse to one or more Company Parties and pursuant to which the Company has made the mandatory offer to purchase pursuant to Section 8.9; provided, however, that in no event shall the final stated maturity date of any Indebtedness permitted under this clause (c)(iii) (other than (A) increases of any Indebtedness under any Material Credit Facility pursuant to the terms thereof and (B) Indebtedness under a 364-day facility not to exceed $100,000,000) be earlier than one (1) year after the Maturity Date of the Notes; (d) make any Disposition other than Dispositions (i) permitted by Section 10.7(b)(i), (ii), (iii) and (iv), or (ii) to a Person that is not a Note Party or Related Party of any Consolidated Party, (A) for fair market value in an arms’ length transaction, (B) in which the price for such asset shall be paid to a Consolidated Party solely in cash, and (C) pursuant to which the Company has made the mandatory offer to purchase, if any, required pursuant to Section 8.9; (e) declare or make any Restricted Payments other than (i) Restricted Payments to the holders of the common Equity Interests in the Parent REIT of not more than $0.01 per share, (ii) Restricted Payments to the holders of the Equity Interests in the Parent REIT to the extent necessary to maintain the Parent REIT’s status as a REIT, (iii) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, Restricted Payments with respect to any preferred Equity Interests, (iv) Restricted Payments by Subsidiaries of the Company to Company and by Company to the Parent REIT the proceeds of which are used by the Parent REIT to make Restricted Payments permitted by clauses (i) through (iii) preceding and (v) the purchase or redemption by the Parent REIT of its preferred Equity Interests solely with Net Cash Proceeds from Permitted Preferred Issuances; (f) voluntarily prepay (i) the principal amount of any Permitted Convertible Notes other than pursuant to a conversion thereof into Equity Interests of the Parent REIT; or (ii) any Indebtedness incurred after the Fourth Amendment Effective Date; (g) create, incur, assume or suffer to exist any Lien upon any property, assets or revenues of any Consolidated Party, whether now owned or hereafter acquired, not existing and permitted as of the Second Amendment Effective Date other than (i) Liens securing the Pari Passu Obligations on a pari passu basis subject to the terms of the Intercreditor Agreement, (ii) Liens permitted by Sections 10.5(d), (e), (f), (g), (h), (i), (j) and (n), (iii) Liens securing Indebtedness permitted under Section 10.10(c)(i); provided that (A) the amount secured or benefited thereby is not increased except as contemplated by Section 7.03(b) of the Bank of America Credit Facility, (B) the direct or any contingent obligor with respect thereto is not changed, (C) any renewal or extension of the obligations secured or benefited thereby is permitted by Section 7.03(b) of the Bank of America Credit Facility, and (D) to the extent such existing Indebtedness being refinanced or replaced is Secured Debt, incurred to refinance or replace Secured Debt secured by the same property or assets, and (iv) Liens securing Indebtedness permitted under Section 10.10(c)(ii); or (h) enter into any Contractual Obligation (other than this Agreement) that limits the ability of the Company to make any prepayment offers hereunder, including for avoidance of doubt, Section 8.108.2, Section 8.5 or Section 8.118.10.
Appears in 1 contract
Enhanced Negative Covenants. Notwithstanding anything to the contrary contained in this Agreement, during the Waiver Period the Note Loan Parties shall not, nor shall they permit any other Company Consolidated Party (except where expressly limited to the Company Borrower or the Note Loan Parties, as applicable), directly or indirectly, to:
(a) make any Investments other than (i) Investments in one or more new Unencumbered Borrowing Base Properties (or in Equity Interests in Subsidiaries that own or will own new Unencumbered Borrowing Base Properties) solely with the proceeds of Excluded Net Proceeds or (ii) any other Investments otherwise permitted pursuant to Section 10.9 7.02 not to exceed $100,000,000 in the aggregate;
(b) make or become legally obligated to make any expenditure in respect of the purchase or other acquisition of any fixed or capital asset other than (i) in connection with emergency repairs, life safety repairs or ordinary course maintenance repairs (ii) capital expenditures to complete ongoing renovations in an amount not to exceed $155,000,000 90,000,000155,000,000 in the aggregate during the period commencing with the Fourth Third Amendment Effective Date through the remainder of the Waiver Period;
(c) create, incur, assume or suffer to exist any Indebtedness not existing and permitted as of the Second First Amendment Effective Date other than (i) to the extent the proceeds of such Indebtedness are used to fully or partially to refinance or replace Indebtedness existing and permitted as of the Second First Amendment Effective DateDate and pursuant to which the Borrower has made the mandatory prepayment required pursuant to Section 2.03(b); provided, however, that in no event shall the final stated maturity date of any Indebtedness permitted under this clause (c)(ic)
(i) be earlier than the existing maturity date of the Indebtedness being refinanced or replaced; provided further, that any amounts in excess of the amounts used to fully or partially refinance or replace Indebtedness are otherwise permitted to be incurred pursuant to this Section 10.10(c7.19(c), (ii) Secured Non-Recourse Debt not to exceed $250,000,000400,000,000 250,000,000 in the aggregate and pursuant to which the Company Borrower has made the mandatory offer to purchase prepayment required pursuant to Section 8.92.03(b); provided, however, that in no event shall the final stated maturity date of any Indebtedness permitted under this clause (c)(ii) be earlier than one (1) year after the Maturity Date of the NotesDate, or (iii) Indebtedness that is recourse to one aone or more Company Parties Consolidated Party not to exceed $250,000,000 in the aggregateParties and pursuant to which the Company Borrower has made the mandatory offer to purchase prepayment required pursuant to Section 8.92.03(b); provided, however, that in no event shall the final stated maturity date of any Indebtedness permitted under this clause (c)(iii) (other than (A) increases of any Indebtedness under any Material Credit Facility pursuant to the terms thereof and (B) Indebtedness under a 364-day facility not to exceed $100,000,000) be earlier than one (1) year after the Maturity Date of the Notes;
(d) make any Disposition other than Dispositions (i) permitted by Section 10.7(b)(ic), (ii), (iii) and (iv), or (ii) to a Person that is not a Note Party or Related Party of any Consolidated Party, (A) for fair market value in an arms’ length transaction, (B) in which the price for such asset shall be paid to a Consolidated Party solely in cash, and (C) pursuant to which the Company has made the mandatory offer to purchase, if any, required pursuant to Section 8.9;
(e) declare or make any Restricted Payments other than (i) Restricted Payments to the holders of the common Equity Interests in the Parent REIT of not more than $0.01 per share, (ii) Restricted Payments to the holders of the Equity Interests in the Parent REIT to the extent necessary to maintain the Parent REIT’s status as a REIT, (iii) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, Restricted Payments with respect to any preferred Equity Interests, (iv) Restricted Payments by Subsidiaries of the Company to Company and by Company to the Parent REIT the proceeds of which are used by the Parent REIT to make Restricted Payments permitted by clauses (i) through (iii) preceding and (v) the purchase or redemption by the Parent REIT of its preferred Equity Interests solely with Net Cash Proceeds from Permitted Preferred Issuances;
(f) voluntarily prepay (i) the principal amount of any Permitted Convertible Notes other than pursuant to a conversion thereof into Equity Interests of the Parent REIT; or (ii) any Indebtedness incurred after the Fourth Amendment Effective Date;
(g) create, incur, assume or suffer to exist any Lien upon any property, assets or revenues of any Consolidated Party, whether now owned or hereafter acquired, not existing and permitted as of the Second Amendment Effective Date other than (i) Liens securing the Pari Passu Obligations on a pari passu basis subject to the terms of the Intercreditor Agreement, (ii) Liens permitted by Sections 10.5(d), (e), (f), (g), (h), (i), (j) and (n), (iii) Liens securing Indebtedness permitted under Section 10.10(c)(i); provided that (A) the amount secured or benefited thereby is not increased except as contemplated by Section 7.03(b) of the Bank of America Credit Facility, (B) the direct or any contingent obligor with respect thereto is not changed, (C) any renewal or extension of the obligations secured or benefited thereby is permitted by Section 7.03(b) of the Bank of America Credit Facility, and (D) to the extent such existing Indebtedness being refinanced or replaced is Secured Debt, incurred to refinance or replace Secured Debt secured by the same property or assets, and (iv) Liens securing Indebtedness permitted under Section 10.10(c)(ii); or
(h) enter into any Contractual Obligation (other than this Agreement) that limits the ability of the Company to make any prepayment offers hereunder, including for avoidance of doubt, Section 8.108.2, Section 8.5 or Section 8.118.10.
Appears in 1 contract
Enhanced Negative Covenants. Notwithstanding anything to the contrary contained in this Agreement, during the Waiver Period the Note Loan Parties shall not, nor shall they permit any other Company Consolidated Party (except where expressly limited to the Company Borrower or the Note Loan Parties, as applicable), directly or indirectly, to:
(a) make any Investments other than (i) Investments in one or more new Unencumbered Borrowing Base Properties (or in Equity Interests in Subsidiaries that own or will own new Unencumbered Borrowing Base Properties) solely with the proceeds of Excluded Net Proceeds or (ii) any other Investments otherwise permitted pursuant to Section 10.9 7.02 not to exceed $100,000,000 in the aggregate;
(b) make or become legally obligated to make any expenditure in respect of the purchase or other acquisition of any fixed or capital asset other than (i) in connection with emergency repairs, life safety repairs or ordinary course maintenance repairs (ii) capital expenditures to complete ongoing renovations in an amount not to exceed $155,000,000 in the aggregate during the period commencing with the Fourth Third Amendment Effective Date through the remainder of the Waiver Period;
(c) create, incur, assume or suffer to exist any Indebtedness not existing and permitted as of the Second First Amendment Effective Date other than (i) to the extent the proceeds of such Indebtedness are used to fully or partially refinance or replace Indebtedness existing and permitted as of the Second First Amendment Effective Date; provided, however, that in no event shall the final stated maturity date of any Indebtedness permitted under this clause (c)(i) be earlier than the existing maturity date of the Indebtedness being refinanced or replaced; provided further, that any amounts in excess of the amounts used to fully or partially refinance or replace Indebtedness are otherwise permitted to be incurred pursuant to this Section 10.10(c7.19(c), (ii) Secured Non-Recourse Debt not to exceed $250,000,000400,000,000 in the aggregate and pursuant to which the Company Borrower has made the mandatory offer to purchase prepayment required pursuant to Section 8.92.03(b); provided, however, that in no event shall the final stated maturity date of any Indebtedness permitted under this clause (c)(ii) be earlier than one (1) year after the Maturity Date of the NotesDate, or (iii) Indebtedness that is recourse to one or more Company Consolidated Parties and pursuant to which the Company Borrower has made the mandatory offer to purchase prepayment required pursuant to Section 8.92.03(b); provided, however, that in no event shall the final stated maturity date of any Indebtedness permitted under this clause (c)(iii) (other than (A) increases of any Indebtedness under any Material Credit Facility Specified Debt pursuant to the terms thereof and (B) Indebtedness under a 364-day facility not to exceed $100,000,000) be earlier than one (1) year after the Maturity Date of the NotesDate;
(d) make any Disposition other than Dispositions (i) permitted by Section 10.7(b)(i7.05(b)(i), (ii), (iii) and (iv), or (ii) to a Person that is not a Note Consolidated Party or a Related Party of any Consolidated Party, (A) for fair market value in an arms’ length transaction, (B) in which the price for such asset shall be paid to a Consolidated Party solely in cash, and (C) pursuant to which the Company Borrower has made the mandatory offer to purchaseprepayment, if any, required pursuant to Section 8.92.03(b);
(e) declare or make any Restricted Payments other than (i) Restricted Payments to the holders of the common Equity Interests in the Parent REIT of not more than $0.01 per share, (ii) Restricted Payments to the holders of the Equity Interests in the Parent REIT to the extent necessary to maintain the Parent REIT’s status as a REIT, (iii) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, Restricted Payments with respect to any preferred Equity Interests, (iv) Restricted Payments by Subsidiaries of the Company Borrower to Company Borrower and by Company Borrower to the Parent REIT the proceeds of which are used by the Parent REIT to make Restricted Payments permitted by clauses (i) through (iii) preceding and (v) the purchase or redemption by the Parent REIT of its preferred Equity Interests solely with Net Cash Proceeds from Permitted Preferred Issuances;
(f) voluntarily prepay (i) the principal amount of (i) any Permitted Convertible Notes other than pursuant to a conversion thereof into Equity Interests of the Parent REIT; REIT or (ii) any Indebtedness incurred after the Fourth Third Amendment Effective Date;; or
(g) create, incur, assume or suffer to exist any Lien upon any property, assets or revenues of any Consolidated Party, whether now owned or hereafter acquired, not existing and permitted as of the Second First Amendment Effective Date other than (i) Liens securing the Pari Passu Obligations on a pari passu basis subject to the terms of the Intercreditor Agreement, (ii) Liens permitted by Sections 10.5(d7.01(d), (e), (f), (g), (h), (i), (j) and (n), (iii) Liens securing Indebtedness permitted under Section 10.10(c)(i); provided that (A) the amount secured or benefited thereby is not increased except as contemplated by Section 7.03(b) of the Bank of America Credit Facility, (B) the direct or any contingent obligor with respect thereto is not changed, (C) any renewal or extension of the obligations secured or benefited thereby is permitted by Section 7.03(b) of the Bank of America Credit Facility, and (D) to the extent such existing Indebtedness being refinanced or replaced is Secured Debt, incurred to refinance or replace Secured Debt secured by the same property or assets, and (iv) Liens securing Indebtedness permitted under Section 10.10(c)(ii); or
(h) enter into any Contractual Obligation (other than this Agreement) that limits the ability of the Company to make any prepayment offers hereunder, including for avoidance of doubt, Section 8.108.2, Section 8.5 or Section 8.118.10.7.19
Appears in 1 contract
Enhanced Negative Covenants. Notwithstanding anything to the contrary contained in this Agreement, during the Waiver Period the Note Loan Parties shall not, nor shall they permit any other Company Consolidated Party (except where expressly limited to the Company Borrower or the Note Loan Parties, as applicable), directly or indirectly, to:
(a) make any Investments other than (i) Investments in one or more new Unencumbered Borrowing Base Properties (or in Equity Interests in Subsidiaries that own or will own new Unencumbered Borrowing Base Properties) solely with the proceeds of Excluded Net Proceeds or (ii) any other Investments otherwise permitted pursuant to Section 10.9 7.02 not to exceed $100,000,000 in the aggregate;
(b) make or become legally obligated to make any expenditure in respect of the purchase or other acquisition of any fixed or capital asset other than (i) in connection with emergency repairs, life safety repairs or ordinary course maintenance repairs (ii) capital expenditures to complete ongoing renovations in an amount not to exceed $155,000,000 90,000,000 in the aggregate during the period commencing with the Fourth Amendment Effective Date through the remainder of the Waiver Period;
(c) create, incur, assume or suffer to exist any Indebtedness not existing and permitted as of the Second Amendment Effective Date other than and
(i) to the extent the proceeds of such Indebtedness are used to fully or partially refinance or replace Indebtedness existing and permitted as of the Second Amendment Effective Date; provided, however, that in no event shall the final stated maturity date of any Indebtedness permitted under this clause (c)(i) be earlier than the existing maturity date of the Indebtedness being refinanced or replaced; provided further, that any amounts in excess of the amounts used to fully or partially refinance or replace Indebtedness are otherwise permitted to be incurred pursuant to this Section 10.10(c), (ii) Secured Non-Recourse Debt not to exceed $250,000,000400,000,000 250,000,000 in the aggregate and pursuant to which the Company has made the mandatory offer to purchase pursuant to Section 8.9aggregate; provided, however, that in no event shall the final stated maturity date of any Indebtedness permitted under this clause (c)(ii) be earlier than one (1) year after the Maturity Date of the NotesDate, or (iii) Indebtedness that is recourse to one or more Company Parties and pursuant a Consolidated Party not to which exceed $250,000,000 in the Company has made the mandatory offer to purchase pursuant to Section 8.9aggregate; provided, however, that in no event shall the final stated maturity date of any Indebtedness permitted under this clause (c)(iii) (other than (A) increases of any Indebtedness under any Material Credit Facility Specified Debt pursuant to the terms thereof and (B) Indebtedness under a 364-day facility not to exceed $100,000,000) be earlier than one (1) year after the Maturity Date of the NotesDate;
(d) make any Disposition other than Dispositions (i) permitted by Section 10.7(b)(i7.05(b)(i), (ii), (iii) and (iv), or (ii) to a Person that is not a Note Consolidated Party or a Related Party of any Consolidated Party, (A) for fair market value in an arms’ length transaction, (B) in which the price for such asset shall be paid to a Consolidated Party solely in cash, and (C) pursuant to which the Company Borrower has made the mandatory offer to purchaseprepayment, if any, required pursuant to Section 8.92.03(b);
(e) declare or make any Restricted Payments other than (i) Restricted Payments to the holders of the common Equity Interests in the Parent REIT of not more than $0.01 per share, (ii) Restricted Payments to the holders of the Equity Interests in the Parent REIT to the extent necessary to maintain the Parent REIT’s status as a REIT, (iii) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, Restricted Payments with respect to any preferred Equity Interests, (iv) Restricted Payments by Subsidiaries of the Company Borrower to Company Borrower and by Company Borrower to the Parent REIT the proceeds of which are used by the Parent REIT to make Restricted Payments permitted by clauses (i) through (iii) preceding and (v) the purchase or redemption by the Parent REIT of its preferred Equity Interests solely with Net Cash Proceeds from Permitted Preferred Issuances;; or
(f) voluntarily prepay (i) the principal amount of any Permitted Convertible Notes other than pursuant to a conversion thereof into Equity Interests of the Parent REIT; or (ii) any Indebtedness incurred after the Fourth Amendment Effective Date;
(g) create, incur, assume or suffer to exist any Lien upon any property, assets or revenues of any Consolidated Party, whether now owned or hereafter acquired, not existing and permitted as of the Second First Amendment Effective Date other than (i) Liens securing the Pari Passu Obligations on a pari passu basis subject to the terms of the Intercreditor Agreement, (ii) Liens permitted by Sections 10.5(d7.01(d), (e), (f), (g), (h), (i), (j) and (n), (iii) Liens securing Indebtedness permitted under Section 10.10(c)(i7.19(c)(i); provided that (A) the amount secured or benefited thereby is not increased except as contemplated by Section 7.03(b) of the Bank of America Credit Facility), (B) the direct or any contingent obligor with respect thereto is not changed, (C) any renewal or extension of the obligations secured or benefited thereby is permitted by Section 7.03(b) of the Bank of America Credit Facility), and (D) to the extent such existing Indebtedness being refinanced or replaced is Secured Debt, incurred to refinance or replace Secured Debt secured by the same property or assets, and (iv) Liens securing Indebtedness permitted under Section 10.10(c)(ii7.19(c)(ii); or
(h) enter into any Contractual Obligation (other than this Agreement) that limits the ability of the Company to make any prepayment offers hereunder, including for avoidance of doubt, Section 8.108.2, Section 8.5 or Section 8.118.10.
Appears in 1 contract
Enhanced Negative Covenants. Notwithstanding anything to the contrary contained in this Agreement, during the Waiver Period each of the Note Parties Parent and the Borrower shall not, nor shall they it permit any other Company Party (except where expressly limited to the Company Subsidiary or the Note Parties, as applicable)Controlled JV Subsidiary to, directly or indirectly, to:
(a) make any Investments other than (i) Investments in one or more new Unencumbered Borrowing Base Properties (or in Equity Interests in Subsidiaries that own or will own new Unencumbered Borrowing Base Properties) solely with the proceeds of Excluded Net Proceeds or (ii) any other Investments otherwise permitted pursuant to Section 10.9 not to exceed $100,000,000 in the aggregate;
(b) make or become legally obligated to make any expenditure in respect of the purchase or other acquisition of any fixed or capital asset other than (i) in connection with emergency repairs, life safety repairs or ordinary course maintenance repairs (ii) capital expenditures to complete ongoing renovations in an amount not to exceed $155,000,000 in the aggregate during the period commencing with the Fourth Amendment Effective Date through the remainder of the Waiver Period;
(c) create, incur, assume or suffer to exist any Indebtedness not existing and permitted as of the Second First Amendment Effective Date other than except (i) to the extent the proceeds of such Indebtedness are used to fully or partially refinance or replace Indebtedness existing and permitted as of the Second First Amendment Effective DateDate and pursuant to which the Borrower has made the mandatory prepayment required pursuant to Section 2.05(c); provided, however, that in no event shall the final stated maturity date of any Indebtedness permitted under this clause (c)(ia)(i) be earlier than that the existing maturity date of the Indebtedness being refinanced or replaced; provided further, that any amounts in excess of the amounts used to fully or partially refinance or replace Indebtedness are otherwise permitted to be incurred pursuant to this Section 10.10(c), (ii) Secured Non-Recourse Debt not to exceed $250,000,000400,000,000 in the aggregate and pursuant to which the Company has made the mandatory offer to purchase pursuant to Section 8.9; provided, however, that in no event shall the final stated maturity date of any Indebtedness permitted under this clause (c)(ii) be earlier than is one (1) year after the Maturity Date of the Notes, Date) or (iiiii) Indebtedness that is recourse to one or more Company Parties and pursuant to which the Company has made the mandatory offer to purchase pursuant to Section 8.9; provided, however, that in no event shall the final stated maturity date of any Indebtedness permitted under this clause (c)(iii) (other than (A) increases of any Indebtedness under any Material Credit Facility pursuant relating to the terms thereof and (B) Indebtedness under a 364-day facility financing of premiums for insurance obtained for the benefit of Consolidated Parties and/or Controlled JV Subsidiaries in an amount not to exceed $100,000,0006,800,000 in the aggregate at any time outstanding;
(b) be earlier create, incur, assume or suffer to exist any Lien other than one Liens (1i) year after permitted under Section 7.01(a) through (h) or (ii) securing Indebtedness permitted under Section 7.17(a)(i) incurred to refinance or replace Secured Indebtedness secured by the Maturity Date same property or assets;
(c) declare or make any Restricted Payments other than (i) Restricted Payments payable solely in the form of common stock and/or (ii) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, quarterly Restricted Payments with respect to the NotesPreferred Equity;
(d) make any Disposition other than Dispositions (i) permitted by Section 10.7(b)(i7.05(a), (ii), (iii) and (ivb), or (c), (ii) to a Person that is not a Note Party or Related Party of the Borrower, the Parent, or any Consolidated Partyof their respective Subsidiaries, (A) for fair market value in an arms’ length transaction, (B) in which the price for such asset shall be paid to a Consolidated Party the Parent, the Borrower or their respective Subsidiary solely in cashcash and/or the assumption by the purchaser thereof of Indebtedness secured by such asset, and (C) pursuant to which the Company Borrower has made the mandatory offer to purchase, if any, prepayment required pursuant to Section 8.92.05(c), or (iii) pursuant to any foreclosure or deed in lieu of foreclosure (or similar remedy) of Secured Indebtedness not constituting Consolidated Recourse Indebtedness;
(e) declare make or become legally obligated to make any Restricted Payments expenditure in respect of the purchase or other acquisition of any fixed or capital asset other than (i) Restricted Payments to the holders in connection with emergency repairs, life safety repairs or ordinary course maintenance repairs or as required by Law or as required under any franchise agreement or management agreement with a third party hotel brand that is not a Related Party of the common Equity Interests Parent, the Borrower any Subsidiary or any Controlled JV Subsidiary; or
(f) make any Investments other than Investments in the Parent REIT of not more than $0.01 per share, (ii) Restricted Payments to the holders a Person that is a Consolidated Subsidiary or Controlled JV Subsidiary existing as of the Equity Interests in the Parent REIT to the extent necessary to maintain the Parent REIT’s status as a REIT, (iii) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, Restricted Payments with respect to any preferred Equity Interests, (iv) Restricted Payments by Subsidiaries of the Company to Company and by Company to the Parent REIT First Amendment Effective Date the proceeds of which are used by the Parent REIT such Consolidated Subsidiary or Controlled JV Subsidiary solely to make Restricted Payments required payments with respect to required reserve contributions or interest expense on Indebtedness of such Consolidated Subsidiary or Controlled JV Subsidiary, to pay taxes or operating expenses of such Consolidated Subsidiary or Controlled JV Subsidiary, and capital expenditures otherwise permitted by clauses (i) through (iii) preceding and (v) the purchase or redemption by the Parent REIT of its preferred Equity Interests solely with Net Cash Proceeds from Permitted Preferred Issuances;
(f) voluntarily prepay (i) the principal amount of any Permitted Convertible Notes other than pursuant to a conversion thereof into Equity Interests of the Parent REIT; or (ii) any Indebtedness incurred after the Fourth Amendment Effective Date;
(g) create, incur, assume or suffer to exist any Lien upon any property, assets or revenues of any Consolidated Party, whether now owned or hereafter acquired, not existing and permitted as of the Second Amendment Effective Date other than (i) Liens securing the Pari Passu Obligations on a pari passu basis subject to the terms of the Intercreditor Agreement, (ii) Liens permitted by Sections 10.5(d), (e), (f), (g), (h), (i), (j) and (n), (iii) Liens securing Indebtedness permitted under Section 10.10(c)(i); provided that (A) the amount secured or benefited thereby is not increased except as contemplated by Section 7.03(b) of the Bank of America Credit Facility, (B) the direct or any contingent obligor with respect thereto is not changed, (C) any renewal or extension of the obligations secured or benefited thereby is permitted by Section 7.03(b) of the Bank of America Credit Facility, and (D) to the extent such existing Indebtedness being refinanced or replaced is Secured Debt, incurred to refinance or replace Secured Debt secured by the same property or assets, and (iv) Liens securing Indebtedness permitted under Section 10.10(c)(ii); or
(h) enter into any Contractual Obligation (other than this Agreement) that limits the ability of the Company to make any prepayment offers hereunder, including for avoidance of doubt, Section 8.108.2, Section 8.5 or Section 8.118.10.
Appears in 1 contract
Enhanced Negative Covenants. Notwithstanding anything to the contrary contained in this Agreement, during the Waiver Period the Note Parties shall not, nor shall they permit any other Company Party (except where expressly limited to the Company or the Note Parties, as applicable), directly or indirectly, to:
(a) make any Investments other than (i) Investments in one or more new Unencumbered Borrowing Base Properties (or in Equity Interests in Subsidiaries that own or will own new Unencumbered Borrowing Base Properties) solely with the proceeds of Excluded Net Proceeds or (ii) any other Investments otherwise permitted pursuant to Section 10.9 not to exceed $100,000,000 in the aggregate;
(b) make or become legally obligated to make any expenditure in respect of the purchase or other acquisition of any fixed or capital asset other than (i) in connection with emergency repairs, life safety repairs or ordinary course maintenance repairs (ii) capital expenditures to complete ongoing renovations in an amount not to exceed $155,000,000 90,000,000155,000,000 in the aggregate during the period commencing with the Fourth Amendment Effective Date through the remainder of the Waiver Period;
(c) create, incur, assume or suffer to exist any Indebtedness not existing and permitted as of the Second Amendment Effective Date other than (i) to the extent the proceeds of such Indebtedness are used to fully or partially refinance or replace Indebtedness existing and permitted as of the Second Amendment Effective DateDate and pursuant to which the Company has made the mandatory offer to purchase required pursuant to Section 8.9; provided, however, that in no event shall the final stated maturity date of any Indebtedness permitted under this clause (c)(i) be earlier than the existing maturity date of the Indebtedness being refinanced or replaced; provided further, that any amounts in excess of the amounts used to fully or partially refinance or replace Indebtedness are otherwise permitted to be incurred pursuant to this Section 10.10(c), (ii) Secured Non-Recourse Debt not to exceed $250,000,000400,000,000 250,000,000 in the aggregate and pursuant to which the Company has made the mandatory offer to purchase pursuant to Section 8.9; provided, however, that in no event shall the final stated maturity date of any Indebtedness permitted under this clause (c)(ii) be earlier than one (1) year after the Maturity Date of the Notes, or (iii) Indebtedness that is recourse to one aone or more Company Parties Party not to exceed $250,000,000 in the aggregateParties and pursuant to which the Company has made the mandatory offer to purchase pursuant to Section 8.9; provided, however, that in no event shall the final stated maturity date of any Indebtedness permitted under this clause (c)(iii) (other than (A) increases of any Indebtedness under any Material Credit Facility pursuant to the terms thereof and (B) Indebtedness under a 364-day facility not to exceed $100,000,000) be earlier than one (1) year after the Maturity Date of the Notes;
(d) make any Disposition other than Dispositions (i) permitted by Section 10.7(b)(i), (ii), (iii) and (iv), or (ii) to a Person that is not a Note Party or Related Party of any Consolidated Party, (A) for fair market value in an arms’ length transaction, (B) in which the price for such asset shall be paid to a Consolidated Party solely in cash, and (C) pursuant to which the Company has made the mandatory offer to purchase, if any, required pursuant to Section 8.9;
(e) declare or make any Restricted Payments other than (i) Restricted Payments to the holders of the common Equity Interests in the Parent REIT of not more than $0.01 per share, (ii) Restricted Payments to the holders of the Equity Interests in the Parent REIT to the extent necessary to maintain the Parent REIT’s status as a REIT, (iii) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, Restricted Payments with respect to any preferred Equity Interests, (iv) Restricted Payments by Subsidiaries of the Company to Company and by Company to the Parent REIT the proceeds of which are used by the Parent REIT to make Restricted Payments permitted by clauses (i) through (iii) preceding and (v) the purchase or redemption by the Parent REIT of its preferred Equity Interests solely with Net Cash Proceeds from Permitted Preferred Issuances;
(f) voluntarily prepay (i) the principal amount of any Permitted Convertible Notes other than pursuant to a conversion thereof into Equity Interests of the Parent REIT; or (ii) any Indebtedness incurred after the Fourth Amendment Effective Date;
(g) create, incur, assume or suffer to exist any Lien upon any property, assets or revenues of any Consolidated Party, whether now owned or hereafter acquired, not existing and permitted as of the Second Amendment Effective Date other than (i) Liens securing the Pari Passu Obligations on a pari passu basis subject to the terms of the Intercreditor Agreement, (ii) Liens permitted by Sections 10.5(d), (e), (f), (g), (h), (i), (j) and (n), (iii) Liens securing Indebtedness permitted under Section 10.10(c)(i); provided that (A) the amount secured or benefited thereby is not increased except as contemplated by Section 7.03(b) of the Bank of America Credit Facility, (B) the direct or any contingent obligor with respect thereto is not changed, (C) any renewal or extension of the obligations secured or benefited thereby is permitted by Section 7.03(b) of the Bank of America Credit Facility, and (D) to the extent such existing Indebtedness being refinanced or replaced is Secured Debt, incurred to refinance or replace Secured Debt secured by the same property or assets, and (iv) Liens securing Indebtedness permitted under Section 10.10(c)(ii); or
or (h) enter into any Contractual Obligation (other than this Agreement) that limits the ability of the Company to make any prepayment offers hereunder, including for avoidance of doubt, Section 8.108.2, Section 8.5 8.10 or Section 8.118.108.11.
Appears in 1 contract
Enhanced Negative Covenants. Notwithstanding anything to the contrary contained in this Agreement, during the Waiver Period the Note Loan Parties shall not, nor shall they permit any other Company Consolidated Party (except where expressly limited to the Company Borrower or the Note Loan Parties, as applicable), directly or indirectly, to:
(a) make any Investments other than (i) Investments in one or more new Unencumbered Borrowing Base Properties (or in Equity Interests in Subsidiaries that own or will own new Unencumbered Borrowing Base Properties) solely with the proceeds of Excluded Net Proceeds or (ii) any other Investments otherwise permitted pursuant to Section 10.9 7.02 not to exceed $100,000,000 in the aggregate;
(b) make or become legally obligated to make any expenditure in respect of the purchase or other acquisition of any fixed or capital asset other than (i) in connection with emergency repairs, life safety repairs or ordinary course maintenance repairs (ii) capital expenditures to complete ongoing renovations in an amount not to exceed $155,000,000 in the aggregate during the period commencing with the Fourth Third Amendment Effective Date through the remainder of the Waiver Period;
(c) create, incur, assume or suffer to exist any Indebtedness not existing and permitted as of the Second First Amendment Effective Date other than (i) to the extent the proceeds of such Indebtedness are used to fully or partially to refinance or replace Indebtedness existing and permitted as of the Second First Amendment Effective Date; provided, however, that in no event shall the final stated maturity date of any Indebtedness permitted under this clause (c)(i) be earlier than the existing maturity date of the Indebtedness being refinanced or replaced; provided further, that any amounts in excess of the amounts used to fully or partially refinance or replace Indebtedness are otherwise permitted to be incurred pursuant to this Section 10.10(c7.19(c), (ii) Secured Non-Recourse Debt not to exceed $250,000,000400,000,000 in the aggregate and pursuant to which the Company Borrower has made the mandatory offer to purchase prepayment required pursuant to Section 8.92.03(b); provided, however, that in no event shall the final stated maturity date of any Indebtedness permitted under this clause (c)(ii) be earlier than one (1) year after the Maturity Date of the NotesDate, or (iii) Indebtedness that is recourse to one or more Company Consolidated Parties and pursuant to which the Company Borrower has made the mandatory offer to purchase prepayment required pursuant to Section 8.92.03(b); provided, however, that in no event shall the final stated maturity date of any Indebtedness permitted under this clause (c)(iii) (other than (A) increases of any Indebtedness under any Material Credit Facility Specified Debt pursuant to the terms thereof and (B) Indebtedness under a 364-day facility not to exceed $100,000,000) be earlier than one (1) year after the Maturity Date of the NotesDate;
(d) make any Disposition other than Dispositions (i) permitted by Section 10.7(b)(i7.05(b)(i), (ii), (iii) and (iv), or (ii) to a Person that is not a Note Consolidated Party or a Related Party of any Consolidated Party, (A) for fair market value in an arms’ length transaction, (B) in which the price for such asset shall be paid to a Consolidated Party solely in cash, and (C) pursuant to which the Company Borrower has made the mandatory offer to purchaseprepayment, if any, required pursuant to Section 8.92.03(b);
(e) declare or make any Restricted Payments other than (i) Restricted Payments to the holders of the common Equity Interests in the Parent REIT of not more than $0.01 per share, (ii) Restricted Payments to the holders of the Equity Interests in the Parent REIT to the extent necessary to maintain the Parent REIT’s status as a REIT, (iii) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, Restricted Payments with respect to any preferred Equity Interests, (iv) Restricted Payments by Subsidiaries of the Company Borrower to Company Borrower and by Company Borrower to the Parent REIT the proceeds of which are used by the Parent REIT to make Restricted Payments permitted by clauses (i) through (iii) preceding and (v) the purchase or redemption by the Parent REIT of its preferred Equity Interests solely with Net Cash Proceeds from Permitted Preferred Issuances;
(f) voluntarily prepay (i) the principal amount of (i) any Permitted Convertible Notes other than pursuant to a conversion thereof into Equity Interests of the Parent REIT; REIT or (ii) any Indebtedness incurred after the Fourth Third Amendment Effective Date;; or
(g) create, incur, assume or suffer to exist any Lien upon any property, assets or revenues of any Consolidated Party, whether now owned or hereafter acquired, not existing and permitted as of the Second First Amendment Effective Date other than (i) Liens securing the Pari Passu Obligations on a pari passu basis subject to the terms of the Intercreditor Agreement, (ii) Liens permitted by Sections 10.5(d7.01(d), (e), (f), (g), (h), (i), (j) and (n), (iii) Liens securing Indebtedness permitted under Section 10.10(c)(i); provided that (A) the amount secured or benefited thereby is not increased except as contemplated by Section 7.03(b) of the Bank of America Credit Facility, (B) the direct or any contingent obligor with respect thereto is not changed, (C) any renewal or extension of the obligations secured or benefited thereby is permitted by Section 7.03(b) of the Bank of America Credit Facility, and (D) to the extent such existing Indebtedness being refinanced or replaced is Secured Debt, incurred to refinance or replace Secured Debt secured by the same property or assets, and (iv) Liens securing Indebtedness permitted under Section 10.10(c)(ii); or
(h) enter into any Contractual Obligation (other than this Agreement) that limits the ability of the Company to make any prepayment offers hereunder, including for avoidance of doubt, Section 8.108.2, Section 8.5 or Section 8.118.10.7.19
Appears in 1 contract
Enhanced Negative Covenants. Notwithstanding anything to the contrary contained in this Agreement, during the Waiver Period the Note Parties shall not, nor shall they permit any other Company Party (except where expressly limited to the Company or the Note Parties, as applicable), directly or indirectly, to:in
(a) make any Investments other than (i) Investments in one or more new Unencumbered Borrowing Base Properties (or in Equity Interests in Subsidiaries that own or will own new Unencumbered Borrowing Base Properties) solely with the proceeds of Excluded Net Proceeds or (ii) any other Investments otherwise permitted pursuant to Section 10.9 7.02 not to exceed $100,000,000 in the aggregate;exceed
(b) make or become legally obligated to make any expenditure in respect of the purchase or other acquisition of any fixed or capital asset other than (i) in connection with emergency repairs, life safety repairs or ordinary course maintenance repairs (ii) capital expenditures to complete ongoing renovations in an amount not to exceed $155,000,000 in the aggregate during the period commencing with the Fourth Amendment Effective Date through the remainder of the Waiver Period;the
(c) create, incur, assume or suffer to exist any Indebtedness not existing and permitted as of the Second First Amendment Effective Date other than (i) to the extent the proceeds of such Indebtedness are used to fully or partially refinance or replace Indebtedness existing and permitted as of the Second First Amendment Effective DateDate and pursuant to which the Borrower has made the mandatory prepayment required pursuant to Section 2.03(b); provided, however, that in no event shall the final stated maturity date of any Indebtedness permitted under this clause (c)(i) be earlier than the existing maturity date of the Indebtedness being refinanced or replaced; provided further, that any amounts in excess of the amounts used to fully or partially refinance or replace Indebtedness are otherwise permitted to be incurred pursuant to this Section 10.10(c), (ii) Secured Non-Recourse Debt not to exceed $250,000,000400,000,000 250,000,000 in the aggregate and pursuant to which the Company has made the mandatory offer to purchase pursuant to Section 8.9aggregate; provided, however, that in no event shall the final stated maturity date of any Indebtedness permitted under this clause (c)(ii) be earlier than one (1) year after the Maturity Date of the Notes, or (iii) Indebtedness that is recourse to one or more Company Parties and pursuant to which the Company has made the mandatory offer to purchase pursuant to Section 8.9; provided, however, that in no event shall the final stated maturity date of any Indebtedness permitted under this clause (c)(iii) (other than (A) increases of any Indebtedness under any Material Credit Facility pursuant to the terms thereof and (B) Indebtedness under a 364-day facility not to exceed $100,000,000) be earlier than one (1) year after the Maturity Date of the Notes;no
(d) make any Disposition other than Dispositions (i) permitted by Section 10.7(b)(i7.05(b)(i), (ii), (iii) and (iv), or (ii) to a Person that is not a Note Party or Related Party of any Consolidated Party, (A) for fair market value in an arms’ length transaction, (B) in which the price for such asset shall be paid to a Consolidated Party solely in cash, and (C) pursuant to which the Company has made the mandatory offer to purchase, if any, required pursuant to Section 8.9;,
(e) declare or make any Restricted Payments other than (i) Restricted Payments to the holders of the common Equity Interests in the Parent REIT of not more than $0.01 per share, (ii) Restricted Payments to the holders of the Equity Interests in the Parent REIT to the extent necessary to maintain the Parent REIT’s status as a REIT, (iii) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, Restricted Payments with respect to any preferred Equity Interests, (iv) Restricted Payments by Subsidiaries of the Company to Company and by Company to the Parent REIT the proceeds of which are used by the Parent REIT to make Restricted Payments permitted by clauses (i) through (iii) preceding and (v) the purchase or redemption by the Parent REIT of its preferred Equity Interests solely with Net Cash Proceeds from Permitted Preferred Issuances;to
(f) voluntarily prepay (i) the principal amount of any Permitted Convertible Notes other than pursuant to a conversion thereof into Equity Interests of the Parent REIT; or (ii) any Indebtedness incurred after the Fourth Amendment Effective Date;
(g) create, incur, assume or suffer to exist any Lien upon any property, assets or revenues of any Consolidated Party, whether now owned or hereafter acquired, not existing and permitted as of the Second First Amendment Effective Date other than (i) Liens securing the Pari Passu Obligations on a pari passu basis subject to the terms of the Intercreditor Agreement, (ii) Liens permitted by Sections 10.5(d7.01(d), (e), (f), (g), (h), (i), (j) and (n), (iii) Liens securing Indebtedness permitted under Section 10.10(c)(i7.19(c)(i); provided that (A) the amount secured or benefited thereby is not increased except as contemplated by Section 7.03(b) of the Bank of America Credit Facility), (B) the direct or any contingent obligor with respect thereto is not changed, (C) any renewal or extension of the obligations secured or benefited thereby is permitted by Section 7.03(b) of the Bank of America Credit Facility), and (D) to the extent such existing Indebtedness being refinanced or replaced is Secured Debt, incurred to refinance or replace Secured Debt secured by the same property or assets, and (iv) Liens securing Indebtedness permitted under Section 10.10(c)(ii7.19(c)(ii); or
(h) enter into any Contractual Obligation (other than this Agreement) that limits the ability of the Company to make any prepayment offers hereunder, including for avoidance of doubt, Section 8.108.2, Section 8.5 or Section 8.118.10.
Appears in 1 contract
Enhanced Negative Covenants. Notwithstanding anything to the contrary contained in this Agreement, during the Waiver Period the Note Loan Parties shall not, nor shall they permit any other Company Consolidated Party (except where expressly limited to the Company Borrower or the Note Loan Parties, as applicable), directly or indirectly, to:
(a) make any Investments other than (i) Investments in one or more new Unencumbered Borrowing Base Properties (or in Equity Interests in Subsidiaries that own or will own new Unencumbered Borrowing Base Properties) solely with the proceeds of Excluded Net Proceeds or (ii) any other Investments otherwise permitted pursuant to Section 10.9 7.02 not to exceed $100,000,000 in the aggregate;
(b) make or become legally obligated to make any expenditure in respect of the purchase or other acquisition of any fixed or capital asset other than (i) in connection with emergency repairs, life safety repairs or ordinary course maintenance repairs (ii) capital expenditures to complete ongoing renovations in an amount not to exceed $155,000,000 90,000,000155,000,000 in the aggregate during the period commencing with the Fourth Third Amendment Effective Date through the remainder of the Waiver Period;
(c) create, incur, assume or suffer to exist any Indebtedness not existing and permitted as of the Second First Amendment Effective Date other than (i) to the extent the proceeds of such Indebtedness are used to fully or partially refinance or replace Indebtedness existing and permitted as of the Second First Amendment Effective DateDate and pursuant to which the Borrower has made the mandatory prepayment required pursuant to Section 2.03(b); provided, however, that in no event shall the final stated maturity date of any Indebtedness permitted under this clause (c)(i) be earlier than the existing maturity date of the Indebtedness being refinanced or replaced; provided further, that any amounts in excess of the amounts used to fully or partially refinance or replace Indebtedness are otherwise permitted to be incurred pursuant to this Section 10.10(c7.19(c), (ii) Secured Non-Recourse Debt not to exceed $250,000,000400,000,000 250,000,000 in the aggregate and pursuant to which the Company Borrower has made the mandatory offer to purchase prepayment required pursuant to Section 8.92.03(b); provided, however, that in no event shall the final stated maturity date of any Indebtedness permitted under this clause (c)(ii) be earlier than one (1) year after the Maturity Date of the NotesDate, or (iii) Indebtedness that is recourse to one aone or more Company Parties Consolidated Party not to exceed $250,000,000 in the aggregateParties and pursuant to which the Company Borrower has made the mandatory offer to purchase prepayment required pursuant to Section 8.92.03(b); provided, however, that in no event shall the final stated maturity date of any Indebtedness permitted under this clause (c)(iii) (other than (A) increases of any Indebtedness under any Material Credit Facility Specified Debt pursuant to the terms thereof and (B) Indebtedness under a 364-day facility not to exceed $100,000,000) be earlier than one (1) year after the Maturity Date of the NotesDate;
(d) make any Disposition other than Dispositions (i) permitted by Section 10.7(b)(i7.05(b)(i), (ii), (iii) and (iv), or (ii) to a Person that is not a Note Consolidated Party or a Related Party of any Consolidated Party, (A) for fair market value in an arms’ length transaction, (B) in which the price for such asset shall be paid to a Consolidated Party solely in cash, and (C) pursuant to which the Company Borrower has made the mandatory offer to purchaseprepayment, if any, required pursuant to Section 8.92.03(b);
(e) declare or make any Restricted Payments other than (i) Restricted Payments to the holders of the common Equity Interests in the Parent REIT of not more than $0.01 per share, (ii) Restricted Payments to the holders of the Equity Interests in the Parent REIT to the extent necessary to maintain the Parent REIT’s status as a REIT, (iii) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, Restricted Payments with respect to any preferred Equity Interests, (iv) Restricted Payments by Subsidiaries of the Company Borrower to Company Borrower and by Company Borrower to the Parent REIT the proceeds of which are used by the Parent REIT to make Restricted Payments permitted by clauses (i) through (iii) preceding and (v) the purchase or redemption by the Parent REIT of its preferred Equity Interests solely with Net Cash Proceeds from Permitted Preferred Issuances;
(f) voluntarily prepay (i) the principal amount of (i) any Permitted Convertible Notes other than pursuant to a conversion thereof into Equity Interests of the Parent REIT; REIT or (ii) any Indebtedness incurred after the Fourth Third Amendment Effective Date;; or
(g) (f) create, incur, assume or suffer to exist any Lien upon any property, assets or revenues of any Consolidated Party, whether now owned or hereafter acquired, not existing and permitted as of the Second First Amendment Effective Date other than (i) Liens securing the Pari Passu Obligations on a pari passu basis subject to the terms of the Intercreditor Agreement, (ii) Liens permitted by Sections 10.5(d7.01(d), (e), (f), (g), (h), (i), (j) and (n), (iii) Liens securing Indebtedness permitted under Section 10.10(c)(i); provided that (A) the amount secured or benefited thereby is not increased except as contemplated by Section 7.03(b) of the Bank of America Credit Facility, (B) the direct or any contingent obligor with respect thereto is not changed, (C) any renewal or extension of the obligations secured or benefited thereby is permitted by Section 7.03(b) of the Bank of America Credit Facility, and (D) to the extent such existing Indebtedness being refinanced or replaced is Secured Debt, incurred to refinance or replace Secured Debt secured by the same property or assets, and (iv) Liens securing Indebtedness permitted under Section 10.10(c)(ii); or
(h) enter into any Contractual Obligation (other than this Agreement) that limits the ability of the Company to make any prepayment offers hereunder, including for avoidance of doubt, Section 8.108.2, Section 8.5 or Section 8.118.10.7.19
Appears in 1 contract
Enhanced Negative Covenants. Notwithstanding anything to the contrary contained in this Agreement, during the Waiver Period the Note Loan Parties shall not, nor shall they permit any other Company Consolidated Party (except where expressly limited to the Company Borrower or the Note Loan Parties, as applicable), directly or indirectly, to:
(a) make any Investments other than (i) Investments in one or more new Unencumbered Borrowing Base Properties (or in Equity Interests in Subsidiaries that own or will own new Unencumbered Borrowing Base Properties) solely with the proceeds of Excluded Net Proceeds or (ii) any other Investments otherwise permitted pursuant to Section 10.9 7.02 not to exceed $100,000,000 in the aggregate;
(b) make or become legally obligated to make any expenditure in respect of the purchase or other acquisition of any fixed or capital asset other than (i) in connection with emergency repairs, life safety repairs or ordinary course maintenance repairs (ii) capital expenditures to complete ongoing renovations in an amount not to exceed $155,000,000 90,000,000155,000,000 in the aggregate during the period commencing with the Fourth Amendment Effective Date through the remainder of the Waiver Period;
(c) create, incur, assume or suffer to exist any Indebtedness not existing and permitted as of the Second Amendment Effective Date other than (i) to the extent the proceeds of such Indebtedness are used to fully or partially refinance or replace Indebtedness existing and permitted as of the Second Amendment Effective DateDate and pursuant to which the Borrower has made the mandatory prepayment required pursuant to Section 2.05(d); provided, however, that in no event shall the final stated maturity date of any Indebtedness permitted under this clause (c)(i) be earlier than the existing maturity date of the Indebtedness being refinanced or replaced; provided further, that any amounts in excess of the amounts used to fully or partially refinance or replace Indebtedness are otherwise permitted to be incurred pursuant to this Section 10.10(c7.20(c), (ii) Secured Non-Recourse Debt not to exceed $250,000,000400,000,000 250,000,000 in the aggregate and pursuant to which the Company Borrower has made the mandatory offer to purchase prepayment required pursuant to Section 8.92.05(d); provided, however, that in no event shall the final stated maturity date of any Indebtedness permitted under this clause (c)(ii) be earlier than one (1) year after the Maturity Date of the NotesDate, or (iii) Indebtedness that is recourse to one aone or more Company Parties Consolidated Party not to exceed $250,000,000 in the aggregateParties and pursuant to which the Company Borrower has made the mandatory offer to purchase prepayment required pursuant to Section 8.92.05(d); provided, however, that in no event shall the final stated maturity date of any Indebtedness permitted under this clause (c)(iii) (other than (A) increases of any Indebtedness under any Material Credit Facility Specified Debt pursuant to the terms thereof and (B) Indebtedness under a 364-day facility not to exceed $100,000,000) be earlier than one (1) year after the Maturity Date of the NotesDate;
(d) make any Disposition other than Dispositions (i) permitted by Section 10.7(b)(i7.05(b)(i), (ii), (iii) and (iv), or (ii) to a Person that is not a Note Consolidated Party or a Related Party of any Consolidated Party, (A) for fair market value in an arms’ length transaction, (B) in which the price for such asset shall be paid to a Consolidated Party solely in cash, and (C) pursuant to which the Company Borrower has made the mandatory offer to purchaseprepayment, if any, required pursuant to Section 8.92.05(d);
(e) declare or make any Restricted Payments other than (i) Restricted Payments to the holders of the common Equity Interests in the Parent REIT of not more than $0.01 per share, (ii) Restricted Payments to the holders of the Equity Interests in the Parent REIT to the extent necessary to maintain the Parent REIT’s status as a REIT, (iii) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, Restricted Payments with respect to any preferred Equity Interests, (iv) Restricted Payments by Subsidiaries of the Company Borrower to Company Borrower and by Company Borrower to the Parent REIT the proceeds of which are used by the Parent REIT to make Restricted Payments permitted by clauses (i) through (iii) preceding and (v) the purchase or redemption by the Parent REIT of its preferred Equity Interests solely with Net Cash Proceeds from Permitted Preferred Issuances;
(f) voluntarily prepay (i) the principal amount of (i) any Permitted Convertible Notes other than pursuant to a conversion thereof into Equity Interests of the Parent REIT; REIT or (ii) any Indebtedness incurred after the Fourth Amendment Effective Date;; or
(g) create, incur, assume or suffer to exist any Lien upon any property, assets or revenues of any Consolidated Party, whether now owned or hereafter acquired, not existing and permitted as of the Second Amendment Effective Date other than (i) Liens securing the Pari Passu Obligations on a pari passu basis subject to the terms of the Intercreditor Agreement, (ii) Liens permitted by Sections 10.5(d7.01(d), (e), (f), (g), (h), (i), (jk) and (no), (iii) Liens securing Indebtedness permitted under Section 10.10(c)(i7.20(c)(i); provided that (A) the amount secured or benefited thereby is not increased except as contemplated by Section 7.03(b) of the Bank of America Credit Facility), (B) the direct or any contingent obligor with respect thereto is not changed, (C) any renewal or extension of the obligations secured or benefited thereby is permitted by Section 7.03(b) of the Bank of America Credit Facility), and (D) to the extent such existing Indebtedness being refinanced or replaced is Secured Debt, incurred to refinance or replace Secured Debt secured by the same property or assets, and (iv) Liens securing Indebtedness permitted under Section 10.10(c)(ii7.20(c)(ii); or
(h) enter into any Contractual Obligation (other than this Agreement) that limits the ability of the Company to make any prepayment offers hereunder, including for avoidance of doubt, Section 8.108.2, Section 8.5 or Section 8.118.10.
Appears in 1 contract
Enhanced Negative Covenants. Notwithstanding anything to the contrary contained in this Agreement, during the Waiver Period the Note Loan Parties shall not, nor shall they permit any other Company Consolidated Party (except where expressly limited to the Company Borrower or the Note Loan Parties, as applicable), directly or indirectly, to:
(a) make any Investments other than (i) Investments in one or more new Unencumbered Borrowing Base Properties (or in Equity Interests in Subsidiaries that own or will own new Unencumbered Borrowing Base Properties) solely with the proceeds of Excluded Net Proceeds or (ii) any other Investments otherwise permitted pursuant to Section 10.9 7.02 not to exceed $100,000,000 in the aggregate;
(b) make or become legally obligated to make any expenditure in respect of the purchase or other acquisition of any fixed or capital asset other than (i) in connection with emergency repairs, life safety repairs or ordinary course maintenance repairs (ii) capital expenditures to complete ongoing renovations in an amount not to exceed $155,000,000 in the aggregate during the period commencing with the Fourth Amendment Effective Date through the remainder of the Waiver Period;
(c) create, incur, assume or suffer to exist any Indebtedness not existing and permitted as of the Second Amendment Effective Date other than (i) to the extent the proceeds of such Indebtedness are used to fully or partially refinance or replace Indebtedness existing and permitted as of the Second Amendment Effective Date; provided, however, that in no event shall the final stated maturity date of any Indebtedness permitted under this clause (c)(i) be earlier than the existing maturity date of the Indebtedness being refinanced or replaced; provided further, that any amounts in excess of the amounts used to fully or partially refinance or replace Indebtedness are otherwise permitted to be incurred pursuant to this Section 10.10(c7.20(c), (ii) Secured Non-Recourse Debt not to exceed $250,000,000400,000,000 in the aggregate and pursuant to which the Company Borrower has made the mandatory offer to purchase prepayment required pursuant to Section 8.92.05(d); provided, however, that in no event shall the final stated maturity date of any Indebtedness permitted under this clause (c)(ii) be earlier than one (1) year after the latest of the Revolving Maturity Date of the Notesor Term Loan Maturity Date, or (iii) Indebtedness that is recourse to one or more Company Consolidated Parties and pursuant to which the Company Borrower has made the mandatory offer to purchase prepayment required pursuant to Section 8.92.05(d); provided, however, that in no event shall the final stated maturity date of any Indebtedness permitted under this clause (c)(iii) (other than (A) increases of any Indebtedness under any Material Credit Facility Specified Debt pursuant to the terms thereof and (B) Indebtedness under a 364-day facility not to exceed $100,000,000) be earlier than one (1) year after the latest of the Revolving Maturity Date of the Notesor Term Loan Maturity Date;
(d) make any Disposition other than Dispositions (i) permitted by Section 10.7(b)(i7.05(b)(i), (ii), (iii) and (iv), or (ii) to a Person that is not a Note Consolidated Party or a Related Party of any Consolidated Party, (A) for fair market value in an arms’ length transaction, (B) in which the price for such asset shall be paid to a Consolidated Party solely in cash, and (C) pursuant to which the Company Borrower has made the mandatory offer to purchaseprepayment, if any, required pursuant to Section 8.92.05(d);
(e) declare or make any Restricted Payments other than (i) Restricted Payments to the holders of the common Equity Interests in the Parent REIT of not more than $0.01 per share, (ii) Restricted Payments to the holders of the Equity Interests in the Parent REIT to the extent necessary to maintain the Parent REIT’s status as a REIT, (iii) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, Restricted Payments with respect to any preferred Equity Interests, (iv) Restricted Payments by Subsidiaries of the Company Borrower to Company Borrower and by Company Borrower to the Parent REIT the proceeds of which are used by the Parent REIT to make Restricted Payments permitted by clauses (i) through (iii) preceding and (v) the purchase or redemption by the Parent REIT of its preferred Equity Interests solely with Net Cash Proceeds from Permitted Preferred Issuances;
(f) voluntarily prepay (i) the principal amount of (i) any Permitted Convertible Notes other than pursuant to a conversion thereof into Equity Interests of the Parent REIT; REIT or (ii) any Indebtedness incurred after the Fourth Amendment Effective Date;; or
(g) create, incur, assume or suffer to exist any Lien upon any property, assets or revenues of any Consolidated Party, whether now owned or hereafter acquired, not existing and permitted as of the Second Amendment Effective Date other than (i) Liens securing the Pari Passu Obligations on a pari passu basis subject to the terms of the Intercreditor Agreement, (ii) Liens permitted by Sections 10.5(d7.01(d), (e), (f), (g), (h), (i), (jk) and (no), (iii) Liens securing Indebtedness permitted under Section 10.10(c)(i7.20(c)(i); provided that (A) the amount secured or benefited thereby is not increased except as contemplated by Section 7.03(b) of the Bank of America Credit Facility), (B) the direct or any contingent obligor with respect thereto is not changed, (C) any renewal or extension of the obligations secured or benefited thereby is permitted by Section 7.03(b) of the Bank of America Credit Facility), and (D) to the extent such existing Indebtedness being refinanced or replaced is Secured Debt, incurred to refinance or replace Secured Debt secured by the same property or assets, and (iv) Liens securing Indebtedness permitted under Section 10.10(c)(ii7.20(c)(ii); or
(h) enter into any Contractual Obligation (other than this Agreement) that limits the ability of the Company to make any prepayment offers hereunder, including for avoidance of doubt, Section 8.108.2, Section 8.5 or Section 8.118.10.
Appears in 1 contract
Enhanced Negative Covenants. Notwithstanding anything to the contrary contained in this Agreement, during the Waiver Period the Note Loan Parties shall not, nor shall they permit any other Company Consolidated Party (except where expressly limited to the Company Borrower or the Note Loan Parties, as applicable), directly or indirectly, to:
(a) make any Investments other than (i) Investments in one or more new Unencumbered Borrowing Base Properties (or in Equity Interests in Subsidiaries that own or will own new Unencumbered Borrowing Base Properties) solely with the proceeds of Excluded Net Proceeds or (ii) any other Investments otherwise permitted pursuant to Section 10.9 7.02 not to exceed $100,000,000 in the aggregate;
(b) make or become legally obligated to make any expenditure in respect of the purchase or other acquisition of any fixed or capital asset other than (i) in connection with emergency repairs, life safety repairs or ordinary course maintenance repairs (ii) capital expenditures to complete ongoing renovations in an amount not to exceed $155,000,000 90,000,000 in the aggregate during the period commencing with the Fourth Amendment Effective Date through the remainder of the Waiver Period;
(c) create, incur, assume or suffer to exist any Indebtedness not existing and permitted as of the Second Amendment Effective Date other than (i) to the extent the proceeds of such Indebtedness are used to fully or partially refinance or replace Indebtedness existing and permitted as of the Second Amendment Effective DateDate and pursuant to which the Borrower has made the mandatory prepayment required pursuant to Section 2.05(d); provided, however, that in no event shall the final stated maturity date of any Indebtedness permitted under this clause (c)(i) be earlier than the existing maturity date of the Indebtedness being refinanced or replaced; provided further, that any amounts in excess of the amounts used to fully or partially refinance or replace Indebtedness are otherwise permitted to be incurred pursuant to this Section 10.10(c), (ii) Secured Non-Recourse Debt not to exceed $250,000,000400,000,000 250,000,000 in the aggregate and pursuant to which the Company has made the mandatory offer to purchase pursuant to Section 8.9aggregate; provided, however, that in no event shall the final stated maturity date of any Indebtedness permitted under this clause (c)(ii) be earlier than one (1) year after the Maturity Date of the NotesDate, or (iii) Indebtedness that is recourse to one or more Company Parties and pursuant a Consolidated Party not to which exceed $250,000,000 in the Company has made the mandatory offer to purchase pursuant to Section 8.9aggregate; provided, however, that in no event shall the final stated maturity date of any Indebtedness permitted under this clause (c)(iii) (other than (A) increases of any Indebtedness under any Material Credit Facility Specified Debt pursuant to the terms thereof and (B) Indebtedness under a 364-day facility not to exceed $100,000,000) be earlier than one (1) year after the Maturity Date of the NotesDate;
(d) make any Disposition other than Dispositions (i) permitted by Section 10.7(b)(i7.05(b)(i), (ii), (iii) and (iv), or (ii) to a Person that is not a Note Consolidated Party or a Related Party of any Consolidated Party, (A) for fair market value in an arms’ length transaction, (B) in which the price for such asset shall be paid to a Consolidated Party solely in cash, and (C) pursuant to which the Company Borrower has made the mandatory offer to purchaseprepayment, if any, required pursuant to Section 8.92.05(d);
(e) declare or make any Restricted Payments other than (i) Restricted Payments to the holders of the common Equity Interests in the Parent REIT of not more than $0.01 per share, (ii) Restricted Payments to the holders of the Equity Interests in the Parent REIT to the extent necessary to maintain the Parent REIT’s status as a REIT, (iii) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, Restricted Payments with respect to any preferred Equity Interests, (iv) Restricted Payments by Subsidiaries of the Company Borrower to Company Borrower and by Company Borrower to the Parent REIT the proceeds of which are used by the Parent REIT to make Restricted Payments permitted by clauses (i) through (iii) preceding and (v) the purchase or redemption by the Parent REIT of its preferred Equity Interests solely with Net Cash Proceeds from Permitted Preferred Issuances;; or
(f) voluntarily prepay (i) the principal amount of any Permitted Convertible Notes other than pursuant to a conversion thereof into Equity Interests of the Parent REIT; or (ii) any Indebtedness incurred after the Fourth Amendment Effective Date;
(g) create, incur, assume or suffer to exist any Lien upon any property, assets or revenues of any Consolidated Party, whether now owned or hereafter acquired, not existing and permitted as of the Second Amendment Effective Date other than (i) Liens securing the Pari Passu Obligations on a pari passu basis subject to the terms of the Intercreditor Agreement, (ii) Liens permitted by Sections 10.5(d7.01(d), (e), (f), (g), (h), (i), (jk) and (no), (iii) Liens securing Indebtedness permitted under Section 10.10(c)(i7.20(c)(i); provided that (A) the amount secured or benefited thereby is not increased except as contemplated by Section 7.03(b) of the Bank of America Credit Facility), (B) the direct or any contingent obligor with respect thereto is not changed, (C) any renewal or extension of the obligations secured or benefited thereby is permitted by Section 7.03(b) of the Bank of America Credit Facility), and (D) to the extent such existing Indebtedness being refinanced or replaced is Secured Debt, incurred to refinance or replace Secured Debt secured by the same property or assets, and (iv) Liens securing Indebtedness permitted under Section 10.10(c)(ii7.20(c)(ii); or
(h) enter into any Contractual Obligation (other than this Agreement) that limits the ability of the Company to make any prepayment offers hereunder, including for avoidance of doubt, Section 8.108.2, Section 8.5 or Section 8.118.10.
Appears in 1 contract
