Common use of Unrestricted Cash Clause in Contracts

Unrestricted Cash. Eligible Properties disposed of during the fiscal quarter most recently ended shall not be included in the calculation of Unencumbered Pool Value. In addition, to the extent the amount of Unencumbered Pool Value attributable to Development Properties, Major Redevelopment Properties, Low Occupancy Properties, Unimproved Land, assets held by Controlled JV Subsidiaries and Properties subject to a ground lease (other than the Property located at 0000 X Xxxxxx, Xxxxxxxxxx X.X.) would exceed 25.0% of Unencumbered Pool Value, such excess shall be excluded from Unencumbered Pool Value; provided, however that to the extent the amount of Unencumbered Pool Value attributable to (u) Development Properties exceeds 20.0% of the Unencumbered Pool Value, (v) Major Redevelopment Properties exceeds 20.0% of the Unencumbered Pool Value, (w) Low Occupancy Properties exceeds 10.0% of the Unencumbered Pool Value, (x) Unimproved Land exceeds 5% of the Unencumbered Pool Value, (y) assets held by Controlled JV Subsidiaries exceeds 10.0% of the Unencumbered Pool Value and (z) Properties subject to a ground lease (other than the Property located at 0000 X Xxxxxx, Xxxxxxxxxx X.X.) exceed 10.0% of the Unencumbered Pool Value, such excesses shall be excluded from Unencumbered Pool Value. “Unimproved Land” means land on which no development (other than improvements that are not material and are temporary in nature) has occurred. “Unrestricted Cash” means cash and Cash Equivalents held by the Borrower and its Subsidiaries (other than tenant deposits and other cash and Cash Equivalents that are subject to a Lien or a Negative Pledge or the disposition of which is restricted, it being understood by the parties that cash and Cash Equivalents representing proceeds from the sale of an asset, which proceeds have been escrowed in anticipation of a like-kind exchange, will not be considered restricted). “U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Internal Revenue Code.

Unrestricted Cash. Eligible Properties disposed On the Effective Date and at all times thereafter, the Company shall maintain: (i) unrestricted domestic Cash or Cash Equivalents and/or Cash Collateral minus (ii) the aggregate outstanding principal amount of during all Revolving Credit Loans minus (iii) the fiscal quarter most recently ended aggregate amount of all drawn Letters of Credit until such date that the Company or the applicable Letter of Credit Party shall not be included in the calculation of Unencumbered Pool Value. In addition, have paid to the extent Issuing Lender the amount of Unencumbered Pool Value attributable to Development Properties, Major Redevelopment Properties, Low Occupancy Properties, Unimproved Land, assets held by Controlled JV Subsidiaries such drawing or the Company shall have financed and Properties subject to a ground lease (other than the Property located at 0000 X Xxxxxx, Xxxxxxxxxx X.X.) would exceed 25.0% of Unencumbered Pool Value, such excess shall be excluded from Unencumbered Pool Value; provided, however that to the extent replaced the amount of Unencumbered Pool Value attributable to (u) Development Properties exceeds 20.0% such drawn Letter of the Unencumbered Pool Value, (v) Major Redevelopment Properties exceeds 20.0% of the Unencumbered Pool Value, (w) Low Occupancy Properties exceeds 10.0% of the Unencumbered Pool Value, (x) Unimproved Land exceeds 5% of the Unencumbered Pool Value, (y) assets held by Controlled JV Subsidiaries exceeds 10.0% of the Unencumbered Pool Value and (z) Properties subject to Credit with a ground lease (other than the Property located at 0000 X Xxxxxx, Xxxxxxxxxx X.X.) exceed 10.0% of the Unencumbered Pool Value, such excesses shall be excluded from Unencumbered Pool Value. “Unimproved Land” means land on which no development (other than improvements that are not material and are temporary Revolving Credit Loan in nature) has occurred. “Unrestricted Cash” means cash and Cash Equivalents held by the Borrower and its Subsidiaries (other than tenant deposits and other cash and Cash Equivalents that are subject to a Lien or a Negative Pledge or the disposition of which is restricted, it being understood by the parties that cash and Cash Equivalents representing proceeds from the sale of an asset, which proceeds have been escrowed in anticipation of a like-kind exchange, will not be considered restricted). “U.S. Person” means any Person that is a “United States Person” as defined in accordance with Section 7701(a)(302.03(b) of the Internal Revenue CodeCredit Agreement, of not less than $100,000,000.” (e) The second, third and fourth sentences of Section 7.13 of the Credit Agreement are hereby amended and restated in their entirety to provide as follows: “Notwithstanding the foregoing and subject to the next sentence, and so long as no Default or Event of Default has occurred and is then continuing or would occur as a result thereof, the Company shall be permitted to (i) pay cash dividends in the aggregate amount not to exceed the Annual Dividend Basket Amount and (ii) pay Excess Dividends and repurchase Equity Securities issued by the Company for cash provided that, in the case of payments described in clause (ii), the aggregate amount of Excess Dividends plus cash amounts expended to repurchase Equity Securities shall not exceed (a) in any fiscal year, fifty percent (50%) of the prior fiscal year's Consolidated Net Income commencing with the fiscal year ending July 31, 2009, plus (b) an aggregate amount equal to $100,000,000 (the “Applicable Amount”) during the term of this Agreement. For purposes of calculating compliance with the previous sentence, all Excess Dividends paid shall be applied first against the Applicable Amount referred to in clause (b) of such sentence, and amounts which the Company could distribute in any fiscal year pursuant to clause (a) of such sentence, but does not distribute may not be carried forward into subsequent fiscal years. Prior to declaring any such dividend or making any repurchase of Equity Securities, the Company shall deliver to the Administrative Agent a Certificate of the Chief Financial Officer of the Company demonstrating that, on a pro forma basis, the Company will be in compliance with the financial condition covenants of Section 7.12 hereof after giving effect to such dividend or repurchase and showing the calculation and categorization of such dividends and repurchases to the applicable basket amounts indicated above.”

Unrestricted Cash. Eligible Properties disposed Borrower shall maintain a balance of during unrestricted cash or cash equivalents (including, for the fiscal quarter most recently ended shall not be included in the calculation avoidance of Unencumbered Pool Value. In additiondoubt, to the extent the amount any marketable securities invested under Borrower’s Investment Policy) of Unencumbered Pool Value attributable to Development Properties, Major Redevelopment Properties, Low Occupancy Properties, Unimproved Land, assets held by Controlled JV Subsidiaries and Properties at least Fifteen Million Dollars ($15,000,000) (as subject to a ground lease (other than downward adjustment under this Section 6.18, the Property located “Minimum Cash Threshold”) at 0000 X Xxxxxx, Xxxxxxxxxx X.X.) would exceed 25.0% of Unencumbered Pool Value, such excess shall be excluded from Unencumbered Pool Value; provided, however that to the extent the amount of Unencumbered Pool Value attributable to (u) Development Properties exceeds 20.0% of the Unencumbered Pool Value, (v) Major Redevelopment Properties exceeds 20.0% of the Unencumbered Pool Value, (w) Low Occupancy Properties exceeds 10.0% of the Unencumbered Pool Value, (x) Unimproved Land exceeds 5% of the Unencumbered Pool Value, (y) assets held by Controlled JV Subsidiaries exceeds 10.0% of the Unencumbered Pool Value and (z) Properties subject to a ground lease (other than the Property located at 0000 X Xxxxxx, Xxxxxxxxxx X.X.) exceed 10.0% of the Unencumbered Pool Value, such excesses shall be excluded from Unencumbered Pool Value. “Unimproved Land” means land on which no development (other than improvements that are not material and are temporary all times in nature) has occurred. “Unrestricted Cash” means cash and Cash Equivalents held by the Borrower and its Subsidiaries (other than tenant deposits and other cash and Cash Equivalents accounts that are subject to a Lien or a Negative Pledge or the disposition an Account Control Agreement. The Minimum Cash Threshold shall be reduced by $2,500,000 for every $5,000,000 of which is restricted, it being understood by the parties that cash and Cash Equivalents representing net proceeds from the sale or issuance of the Borrower’s equity securities (including without limitation under the ATM Facility) that Borrower receives after the First Amendment Date, each reduction to be effective as of the date that Borrower provides Lender with reasonably acceptable evidence of Borrower’s receipt of such proceeds; provided that the Minimum Cash Threshold shall at all times be not less than the lesser of (a) Seven Million Five Hundred Thousand Dollars ($7,500,000) or (b) the aggregate amount of the Secured Obligations. 5. By May 2, 2014, Borrower shall obtain for the benefit of Lender a key man life insurance policy of at least $5,000,000 on Xxxxxx XxXxxx on terms reasonably acceptable to Lender, and shall maintain that policy for so long as any Advance is outstanding or Xxxxxx XxXxxx ceases to be employed by Borrower, at which time Borrower shall obtain such replacement key man life insurance policy for the benefit of Lender as reasonably requested by Lender. 6. The Agreement, as amended hereby, shall be and remain in full force and effect in accordance with its terms and is ratified and confirmed in all respects (other than ratification of any representations, which is addressed in Section 7). Except as expressly set forth herein, the execution, delivery, and performance of this Amendment shall not operate as a waiver of, or as an amendment of, any right, power, or remedy of Lender under the Loan Documents, as in effect prior to the date hereof. 7. Borrower represents and warrants that the representations and warranties contained in the Agreement and Loan Documents are true and correct in all material respects as of the date of this Amendment (other than any representations or warranties that relate to a specific date or specific schedules, which such representations and warranties are true and correct in all material respects on such earlier date or with respect to such schedules previously delivered). 8. This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one instrument. 9. Within three (3) Business Days after the First Amendment Date, Borrower shall deliver to Lender, inform and substance satisfactory to Lender: (a) an amendment to that certain Mortgage and Security Agreement, dated July 31, 2013, made in favor of the Lender in connection with the Agreement; and (b) an endorsement to title insurance policy in connection with this Amendment. 10. As a condition to the effectiveness of this Amendment, Lender shall have received, in form and substance satisfactory to Lender the following: (a) this Amendment; (b) a Warrant to Purchase Stock; (c) an Amendment to Warrant; (d) a certificate of an assetofficer of Borrower, which proceeds have been escrowed in anticipation together with resolutions of a like-kind exchange, will not be considered restricted). “U.S. Person” means any Person that is a “United States Person” Borrower’s board of directors approving the transactions contemplated by this Amendment; and (e) such other documents as defined in Section 7701(a)(30) of the Internal Revenue CodeLender reasonably requests.

Unrestricted Cash. Eligible Properties disposed To the extent the aggregate amount of during Unrestricted Cash of Intermediate Holdings and its Subsidiaries shall at any time exceed $150.0 million, the fiscal quarter most recently ended shall not be included in Borrowers shall, within five (5) Business Days, apply the calculation amount of Unencumbered Pool Value. In addition, such excess (to the extent such excess still exists on such date) to repay Revolving Facility Loans in accordance with Section 2.11(a) (to the extent outstanding at such time).”. (j) Section 6.01 of the Original Credit Agreement shall be amended by deleting the word “and” at the end of clause (z) thereof, replacing the words “paragraphs (a) through (z)” contained in clause (aa) thereof with words “paragraphs (a) through (cc)”, adding the word “and” at the end of such clause (aa), and inserting the following clauses (bb) and (cc) immediately after such clause (aa): (i) Indebtedness of the Domestic Loan Parties pursuant to the Initial First Lien Notes and (ii) refinancings thereof constituting First Lien Notes that comply with the requirements under clause (cc)(i) below; and (i) Indebtedness of the Domestic Loan Parties issued after the Amendment No. 1 Effective Date that is secured by a first priority Lien on the Collateral that is pari passu with the Lien securing the Obligations (such Indebtedness, “Future First Lien Notes”) or that is secured by a Lien ranking junior to the Lien on the Collateral securing the Obligations or that is unsecured and the aggregate principal amount of Unencumbered Pool Value attributable which does not exceed the Incremental Amount; provided that (A) the terms of such Indebtedness do not provide for any scheduled repayment, mandatory redemption or sinking fund obligations prior to Development Properties, Major Redevelopment Properties, Low Occupancy Properties, Unimproved Land, assets held by Controlled JV Subsidiaries and Properties subject to a ground lease the 91 days following the latest Term Facility Maturity Date (other than the Property located at 0000 X Xxxxxxcustomary offers to repurchase upon a change of control, Xxxxxxxxxx X.X.asset sale or event of loss and customary acceleration rights after an event of default) would exceed 25.0% of Unencumbered Pool Value, such excess shall be excluded from Unencumbered Pool Value; provided, however that to the extent the amount of Unencumbered Pool Value attributable to (u) Development Properties exceeds 20.0% of the Unencumbered Pool Value, (v) Major Redevelopment Properties exceeds 20.0% of the Unencumbered Pool Value, (w) Low Occupancy Properties exceeds 10.0% of the Unencumbered Pool Value, (x) Unimproved Land exceeds 5% of the Unencumbered Pool Value, (y) assets held by Controlled JV Subsidiaries exceeds 10.0% of the Unencumbered Pool Value and (zB) Properties subject to a ground lease the covenants, events of default, guarantees, collateral and other terms of which (other than interest rate and redemption premiums), taken as a whole, are not materially more restrictive to the Property located at 0000 X Xxxxxx, Xxxxxxxxxx X.X.) exceed 10.0% Loan Parties than those set forth in the Initial First Lien Notes Indenture (provided that a certificate of the Unencumbered Pool ValueResponsible Officer of Intermediate Holdings delivered to the Administrative Agent in good faith at least three (3) Business Days (or such shorter period as the Administrative Agent may reasonably agree) prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such excesses Indebtedness or drafts of the documentation relating thereto, stating that Intermediate Holdings has determined in good faith that such terms and conditions satisfy the foregoing requirement shall be excluded from Unencumbered Pool Value. “Unimproved Land” means land on which no development conclusive evidence that such terms and conditions satisfy the foregoing requirement), and (other than improvements ii) refinancings of any such Indebtedness constituting First Lien Notes that are not material and are temporary in naturecomply with the requirements under clause (i) has occurred. “Unrestricted Cash” means cash and Cash Equivalents held by the Borrower and its Subsidiaries (other than tenant deposits and other cash and Cash Equivalents that are subject to a Lien or a Negative Pledge or the disposition of which is restricted, it being understood by the parties that cash and Cash Equivalents representing proceeds from the sale of an asset, which proceeds have been escrowed in anticipation of a like-kind exchange, will not be considered restricted). “U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Internal Revenue Codehereof.”.