Common use of Priority of Distributions Clause in Contracts

Priority of Distributions. (i) Except as provided in Section 18.2(c)(ii), unless full cumulative distributions on the Class M Preferred Unit have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for payment for all past distribution periods, no distributions (other than in the form of Common Units or other Junior Units) shall be declared or paid or set apart for payment and no other distribution shall be declared or made upon any Junior Units or Parity Preferred Units nor shall any Junior Units or Parity Preferred Units be redeemed, purchased or otherwise acquired for any consideration (or any moneys be paid to or made available for a sinking fund for the redemption of any shares of any such Junior Units or Parity Preferred Units) by the Company (except by conversion into or exchange for Junior Units). (ii) If any shares of Class M Preferred Units are outstanding, no full distributions shall be declared or paid or set apart for payment on any Parity Preferred Units or Junior Units for any period unless full cumulative distributions have been or contemporaneously are declared and paid (contemporaneously with the respective dates that the distributions on the Parity Preferred Units or Junior Units are so declared and so paid) or declared and a sum sufficient for the payment thereof set apart for such payment on the Class M Preferred Units for all past distribution periods. When distributions are not paid in full (or a sum sufficient for such full payment is not so set apart) upon the shares of the Class M Preferred Units and any Parity Preferred Units, all distributions declared upon the shares of the Class M Preferred Units and any such Parity Preferred Units shall be declared pro rata so that the amount of distributions declared per unit on the Class M Preferred Units and all other such Parity Preferred Units shall in all cases bear to each other the same ratio that accrued and unpaid distributions per unit on the units of the Class M Preferred Units and all other such Parity Preferred Units bear to each other. No interest, or sum of money in lieu of interest, shall be payable in respect of any distribution payment or payments on the Class M Preferred Units which may be in arrears.

Priority of Distributions. (i) Except as provided in Section 18.2(c)(ii17.2(c)(ii), unless full cumulative distributions on the Class M L Preferred Unit have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for payment for all past distribution periods, no distributions (other than in the form of Common Units or other Junior Units) shall be declared or paid or set apart for payment and no other distribution shall be declared or made upon any Junior Units or Parity Preferred Units nor shall any Junior Units or Parity Preferred Units be redeemed, purchased or otherwise acquired for any consideration (or any moneys be paid to or made available for a sinking fund for the redemption of any shares of any such Junior Units or Parity Preferred Units) by the Company (except by conversion into or exchange for Junior Units). (ii) If any shares of Class M L Preferred Units are outstanding, no full distributions shall be declared or paid or set apart for payment on any Parity Preferred Units or Junior Units for any period unless full cumulative distributions have been or contemporaneously are declared and paid (contemporaneously with the respective dates that the distributions on the Parity Preferred Units or Junior Units are so declared and so paid) or declared and a sum sufficient for the payment thereof set apart for such payment on the Class M L Preferred Units for all past distribution periods. When distributions are not paid in full (or a sum sufficient for such full payment is not so set apart) upon the shares of the Class M L Preferred Units and any Parity Preferred Units, all distributions declared upon the shares of the Class M L Preferred Units and any such Parity Preferred Units shall be declared pro rata so that the amount of distributions declared per unit on the Class M L Preferred Units and all other such Parity Preferred Units shall in all cases bear to each other the same ratio that accrued and unpaid distributions per unit on the units of the Class M L Preferred Units and all other such Parity Preferred Units bear to each other. No interest, or sum of money in lieu of interest, shall be payable in respect of any distribution payment or payments on the Class M L Preferred Units which may be in arrears.

Priority of Distributions. So long as any Partnership Convertible Preferred Units remain outstanding, no distribution shall be declared or paid on Partnership Common Units or any other Partnership Junior Units, and no Partnership Common Units or other Partnership Junior Units shall be, directly or indirectly, purchased, redeemed or otherwise acquired for consideration by the Partnership or any of its Subsidiaries unless all accumulated and unpaid distributions for all preceding Distribution Periods have been declared and paid upon, or a sufficient sum of cash has been set apart for the payment of such distributions upon, all outstanding Partnership Convertible Preferred Units. The foregoing limitation shall not apply to (i) Except as a distribution payable on any Partnership Common Units or other Partnership Junior Units in any Partnership Common Units or other Partnership Junior Units, (ii) the acquisition of any Partnership Common Units or other Partnership Junior Units in exchange for, or through application of the proceeds of the sale of, any Partnership Common Units or other Partnership Junior Units; (iii) purchases of fractional interests in any Partnership Common Units or other Partnership Junior Units pursuant to the conversion or exchange provisions of such other Partnership Junior Units or any securities exchangeable for or convertible into such Partnership Common Units or other Partnership Junior Units; (iv) purchases of any Partnership Common Units or other Partnership Junior Units pursuant to a contractually binding requirement to purchase such units existing prior to the Distribution Period preceding the date of such purchase, including pursuant to a contractually binding unit repurchase plan (provided that all accumulated and unpaid distributions have been declared or paid for (x) the Distribution Period during which such binding requirement was entered into and (y) all prior Distribution Periods); (v) redemptions, purchases or other acquisitions of Partnership Common Units or other Partnership Junior Units in Section 18.2(c)(iiconnection with (1) any employee contract, employee benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors, consultants or independent contractors in the ordinary course of business, including, without limitation, purchases of units in lieu of tax withholding, the forfeiture of unvested restricted units or unit withholdings upon exercise, delivery or vesting of equity awards granted to officers, directors and employees and purchases of units to offset the Unit Dilution Amount pursuant to a publicly announced repurchase plan (provided that any purchases to offset the Unit Dilution Amount shall in no event exceed the Unit Dilution Amount) or (2) purchases of fractional interests in Partnership Common Units pursuant to a publicly announced distribution reinvestment plan; (vi) any distributions of rights or Partnership Common Units or other Partnership Junior Units in connection with a unitholders’ rights plan or any redemption or repurchase of rights pursuant to any unitholders’ rights plan; (vii) the acquisition by the Partnership or any of its Subsidiaries of record ownership in Partnership Common Units or other Partnership Junior Units for the beneficial ownership of any other persons (other than the Partnership or any of its Subsidiaries), unless full cumulative including as trustees or custodians or as the result of the acquisition of another company that already was the owner of record or beneficial owner of such units; (viii) any payments, by way of distributions or otherwise, made by the Partnership’s Subsidiaries to the Partnership or to other Subsidiaries of the Partnership; (ix) the exchange or conversion of Partnership Junior Units for or into other Partnership Junior Units; and (x) the acquisition or redemption of Partnership Common Units or other Partnership Junior Units solely to the extent necessary to preserve the General Partner’s status as a REIT for federal income tax purposes. When distributions on the Class M Partnership Convertible Preferred Unit Units have not been or contemporaneously are declared and paid in full on any Distribution Payment Date or declared and a sum sufficient for the payment thereof has not been set apart aside for payment for all past distribution periodsthe benefit of the Record Holders thereof on the applicable Regular Record Date, no distributions may be declared or paid on any Partnership Parity Preferred Units (other than distributions in the form of Common Units or other Junior Units) shall be declared or paid or set apart for payment and no other distribution shall be declared or made upon any Junior Units or Partnership Parity Preferred Units nor shall any and Partnership Junior Units or Parity and cash solely in lieu of fractional units in connection with such distribution) unless distributions are declared on the Partnership Convertible Preferred Units be redeemed, purchased or otherwise acquired for any consideration (or any moneys be paid to or made available for a sinking fund for the redemption of any shares of any such Junior Units or Parity Preferred Units) by the Company (except by conversion into or exchange for Junior Units). (ii) If any shares of Class M Preferred Units are outstanding, no full distributions shall be declared or paid or set apart for payment on any Parity Preferred Units or Junior Units for any period unless full cumulative distributions have been or contemporaneously are declared and paid (contemporaneously with that the respective dates that the amounts of such distributions declared on the Parity Preferred Units or Junior Units are so declared and so paid) or declared and a sum sufficient for the payment thereof set apart for such payment on the Class M Preferred Units for all past distribution periods. When distributions are not paid in full (or a sum sufficient for such full payment is not so set apart) upon the shares of the Class M Partnership Convertible Preferred Units and any Parity Preferred Units, all distributions declared upon the shares each such other class or series of the Class M Preferred Units and any such Partnership Parity Preferred Units shall be declared pro rata so that bear the amount of distributions declared per unit on the Class M Preferred Units and all other such Parity Preferred Units shall in all cases bear same ratio to each other the same ratio that accrued as all accumulated and unpaid distributions per unit on the units of the Class M Partnership Convertible Preferred Units and all other such class or series of Partnership Parity Preferred Units (subject to their having been declared by the General Partner out of legally available funds) bear to each other, in proportion to their respective liquidation preferences; provided that any unpaid distributions will continue to accumulate. No interestSubject to the foregoing, or sum of money in lieu of interestand not otherwise, shall be such distributions (payable in respect cash, securities or other property) as may be determined by the General Partner may be declared and paid on any securities, including Partnership Common Units and other Partnership Junior Units, from time to time out of any distribution payment or payments on the Class M Preferred Units which may funds legally available for such payment, and Holders shall not be entitled to participate in arrearsany such distributions.

Priority of Distributions. (i) Except as provided in Section 18.2(c)(ii19.2(c)(ii), unless full cumulative distributions on the Class M N Preferred Unit Units have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for payment for all past distribution periods, no distributions (other than in the form of Common Units or other Junior Units) shall be declared or paid or set apart for payment and no other distribution shall be declared or made upon any Junior Units or Parity Preferred Units nor shall any Junior Units or Parity Preferred Units be redeemed, purchased or otherwise acquired for any consideration (or any moneys be paid to or made available for a sinking fund for the redemption of any shares of any such Junior Units or Parity Preferred Units) by the Company (except by conversion into or exchange for Junior Units). (ii) If any shares of Class M N Preferred Units are outstanding, no full distributions shall be declared or paid or set apart for payment on any Parity Preferred Units or Junior Units for any period unless full cumulative distributions have been or contemporaneously are declared and paid (contemporaneously with the respective dates that the distributions on the Parity Preferred Units or Junior Units are so declared and so paid) or declared and a sum sufficient for the payment thereof set apart for such payment on the Class M N Preferred Units for all past distribution periods. When distributions are not paid in full (or a sum sufficient for such full payment is not so set apart) upon the shares of the Class M N Preferred Units and any Parity Preferred Units, all distributions declared upon the shares of the Class M N Preferred Units and any such Parity Preferred Units shall be declared pro rata so that the amount of distributions declared per unit on the Class M N Preferred Units and all other such Parity Preferred Units shall in all cases bear to each other the same ratio that accrued and unpaid distributions per unit on the units of the Class M N Preferred Units and all other such Parity Preferred Units bear to each other. No interest, or sum of money in lieu of interest, shall be payable in respect of any distribution payment or payments on the Class M N Preferred Units which may be in arrears.

Priority of Distributions. (i) Except So long as provided in Section 18.2(c)(ii), unless full cumulative distributions on the Class M any Series A Preferred Unit have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for payment for all past distribution periodsUnits remains outstanding, no distributions (other than in the form of Common Units or other Junior Units) distribution shall be declared or paid on Common Unit or set apart for payment any other class or series of Junior Units, and no Common Unit or any other distribution shall be declared class or made upon any series of Junior Units or Parity Units shall be, directly or indirectly, purchased, redeemed or otherwise acquired for consideration by the Company or any of its Subsidiaries unless all accumulated and unpaid Distributions for all preceding Series A Preferred Unit Distribution Periods have been declared and paid in full in cash, Common Units or a combination thereof upon, or a sufficient sum of cash or number of Common Units has been set apart for the payment of such Distributions upon, all outstanding Series A Preferred Units. The foregoing limitation shall not apply to: (a) any dividend or distribution payable in Common Units or any other class or series of Units that are neither Parity Units nor shall any Senior Units; (b) purchases, redemptions or other acquisitions of Common Units, other Junior Units or Parity Preferred Units be redeemedin connection with the administration of any benefit or other incentive plan of the Company or PubCo, including any employment contract, in the ordinary course of business; (c) purchases to offset the Unit Dilution Amount pursuant to a publicly announced repurchase plan, or acquisitions of Common Units surrendered, deemed surrendered or withheld in connection with the exercise of stock options or the vesting of restricted shares, restricted shares units, restricted share equivalents, performance share units, or instruments similar to any of the foregoing, whether of the Company or PubCo (provided that the number of units purchased or otherwise acquired for any consideration to offset the Unit Dilution Amount shall in no event exceed the Unit Dilution Amount); (d) purchases of Common Units or any moneys be paid other class or series of Units that is neither Parity Units nor Senior Units pursuant to a contractually binding requirement to buy Common Units or made available for any such other class or series of the Units existing prior to the date of the Prospectus; (e) any Distributions of rights or any class or series of Units that are neither Parity Units nor Senior Units in connection with a sinking fund for shareholders’ rights plan or any redemption or repurchase of rights pursuant to any shareholders’ rights plan (including any such plan of PubCo); (f) the redemption exchange or conversion of any shares class or series of Units that are neither Parity Units nor Senior Units for or into other class or series of Units that are neither Parity Units nor Senior Units or of Parity Units for or into other Parity Units (with the same or lesser aggregate liquidation preference) or any such Junior class or series of Units that are neither Parity Units nor Senior Units and, in each case, the payment of cash solely in lieu of fractional interests; (g) the deemed purchase or acquisition of fractional interests in Common Units, any other class or series of Units that are neither Parity Units nor Senior Units or Parity Preferred Units) by Units pursuant to the Company (except by conversion into or exchange for Junior Units).provisions of such shares or the security being converted or exchanged; and (iih) If any shares of Class M Tax Distributions made pursuant to Section 4.1(b). When Distributions on Series A Preferred Units are outstanding(1) have not been declared and paid in full on any Series A Preferred Unit Payment Date (or, in the case of Parity Units having dividend payment dates different from such Series A Preferred Unit Payment Dates, on a distribution payment date falling within a regular distribution period related to such Series A Preferred Unit Payment Date), or (2) have been declared but a sum of cash or number of Common Units sufficient for payment thereof has not been set aside for the benefit of PubCo on the applicable Series A Preferred Unit Regular Record Date, no full distributions shall Distributions may be declared or paid or set apart for payment on any shares of Parity Units unless Distributions are declared on the Series A Preferred Units or Junior such that the respective amounts of such Distributions declared on the Series A Preferred Units and such Parity Units shall be allocated pro rata among PubCo, as holder of the Series A Preferred Units, and the holders of any Parity Units then outstanding. For purposes of calculating the pro rata allocation of partial distribution payments, the Company shall allocate those payments so that the respective amounts of those payments for the declared distribution bear the same ratio to each other as all accumulated and unpaid Distributions per unit on Series A Preferred Units and such Parity Units bear to each other (subject to their having been declared by the Manager, out of funds legally available to pay Distributions); provided that any unpaid Distributions on the Series A Preferred Units will continue to accumulate. For purposes of this calculation, with respect to non-cumulative Parity Units, the Company shall use the full amount of Distributions that would be payable for the most recent distribution period unless if Distributions were declared in full on such non-cumulative distributions have been or contemporaneously are Parity Units. Subject to the foregoing, and not otherwise, such Distributions as may be determined by the Manager may be declared and paid (contemporaneously with the respective dates that the distributions payable in cash or other property or securities) on the Parity Preferred any securities, including Common Units or and other Junior Units are so declared Units, from time to time out of funds legally available to pay Distributions, and so paid) or declared and a sum sufficient for the payment thereof set apart for such payment on the Class M Preferred Units for all past distribution periods. When distributions are not paid in full (or a sum sufficient for such full payment is not so set apart) upon the shares PubCo, as holder of the Class M Preferred Units and any Parity Series A Preferred Units, all distributions declared upon the shares shall not be entitled to participate in any such Distributions on account of the Class M Series A Preferred Units and any such Parity Preferred Units shall be declared pro rata so that the amount of distributions declared per unit on the Class M Preferred Units and all other such Parity Preferred Units shall in all cases bear to each other the same ratio that accrued and unpaid distributions per unit on the units of the Class M Preferred Units and all other such Parity Preferred Units bear to each other. No interest, or sum of money in lieu of interest, shall be payable in respect of any distribution payment or payments on the Class M Preferred Units which may be in arrearsUnits.

Priority of Distributions. So long as any Series A Preferred Units remain outstanding, no distributions shall be declared or paid on the Class A Units or any other Junior Units (i) Except other than distributions payable solely in Class A Units or Junior Units), and no Class A Units, Junior Units or Parity Units shall be purchased, redeemed or otherwise acquired for consideration by the Company, directly or indirectly during a Distribution Period, unless all accumulated and unpaid distributions for all past completed Distribution Periods, including the latest completed Distribution Period (including, if applicable, distributions on such amount as provided in Section 18.2(c)(ii2(a) above), unless full cumulative distributions on the Class M all outstanding Series A Preferred Unit Units have been or contemporaneously are declared and paid in full (or declared and a sum sufficient for the payment thereof has been set apart aside in trust for payment for all past distribution periodsthe benefit of the Managing Member, no distributions in its capacity as the holder of Series A Preferred Units, on the applicable record date). The foregoing limitation shall not apply to (i) redemptions, purchases or other than in the form acquisitions of Common Class A Units or other Junior UnitsUnits by the Company pursuant to the terms of or in connection with the administration in the ordinary course of business of any employee benefit or management incentive compensation plan of the Managing Member or the Company or any of its subsidiaries, (ii) shall be declared any distributions of rights or paid Junior Units in connection with a stockholders’ rights plan of the Managing Member or set apart for payment and no other distribution shall be declared any redemption or made upon repurchase of rights pursuant to any such stockholders’ rights plan; (iii) the acquisition by the Managing Member, the Company or any of its subsidiaries of record ownership in Junior Units or Parity Preferred Units nor shall for the beneficial ownership of any other persons (other than the Corporation, the Company or any of its subsidiaries), including as trustee or custodians; and (iv) the exchange or conversion of Junior Units for or into other Junior Units or of Parity Preferred Units be redeemed, purchased for or otherwise acquired for any consideration into other Parity Units (with the same or any moneys be paid to lesser aggregate liquidation amount) or made available for a sinking fund for the redemption of any shares of any such Junior Units or Parity Preferred Units) by the Company (except by conversion into or exchange for Junior Units). (ii) If any shares of Class M Preferred Units are outstanding, no full distributions shall be declared or paid or set apart for payment on any Parity Preferred Units or Junior Units for any period unless full cumulative distributions have been or contemporaneously are declared and paid (contemporaneously with the respective dates that the distributions on the Parity Preferred Units or Junior Units are so declared and so paid) or declared and a sum sufficient for the payment thereof set apart for such payment on the Class M Preferred Units for all past distribution periods. When distributions are not paid in full (or a sum sufficient for such full payment is not so set apart) upon the shares of the Class M Preferred Units and any Parity Preferred Units, all distributions declared upon the shares of the Class M Preferred Units and any such Parity Preferred Units shall be declared pro rata so that the amount of distributions declared per unit on the Class M Preferred Units and all other such Parity Preferred Units shall in all cases bear to each other the same ratio that accrued and unpaid distributions per unit on the units of the Class M Preferred Units and all other such Parity Preferred Units bear to each other. No interest, or sum of money in lieu of interest, shall be payable in respect of any distribution payment or payments on the Class M Preferred Units which may be in arrears.