Distributions. Neither the Borrower nor the Trust shall make any Distributions which would cause it to violate any of the following covenants: (a) [Intentionally Deleted]; (b) The Borrower and the Trust shall not make any Distribution if such Distribution is in excess of the amount which, when added to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust and (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case (A) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement; (c) In the event that an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; and (d) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectly.
Appears in 4 contracts
Sources: Unsecured Term Loan Agreement (Ramco Gershenson Properties Trust), Unsecured Term Loan Agreement (Ramco Gershenson Properties Trust), Unsecured Term Loan Agreement (Ramco Gershenson Properties Trust)
Distributions. Neither the Borrower nor the Trust shall make any Distributions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted];
(b) The Borrower and the Trust shall not declare or make any Distribution if such Distribution is in excess of the amount which, when added to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance payment of common any distribution on or in respect of any equity interests, or Preferred Equity of the Borrower or the Trust and (ii) repurchase common stock issued by any payment on account of the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii)purchase, redemption, retirement or acquisition of any option, warrant or other right to acquire such equity interests; provided that so long as in either case (A) no Event of Default shall have occurred and be continuing on the date Default, Unmatured Event of any such repurchase or redemptionDefault, (B) no Unmatured Servicer Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;
(c) In the event that an Event of Servicer Default shall have occurred and be continuing, neither the Borrower nor may make a distribution of (A) amounts paid to it pursuant to Section 8.3(a) on the Trust applicable Distribution Date (but any such distribution of Principal Collections shall make be included in the 10% limitation set forth in clause (C) below), (B) the proceeds of any Distributions other than Advance received with respect to any Eligible Collateral Obligation the minimum Distributions acquisition of which was fully funded by capital contribution from the Equityholder in advance of receipt of such Advances hereunder, (C) during any 12 month period during the Revolving Period, Principal Collections (excluding any Principal Collections necessary to settle the acquisition of Eligible Collateral Obligations) or proceeds of any Advance equal to 10% of the average Aggregate Eligible Collateral Obligation Amount on each day of such 12 month period if, as certified in writing by the Borrower and the Servicer to the Trust Facility Agent, in each case both before and immediately after giving effect to such distribution, (x) sufficient proceeds remain for all payments to be made pursuant to Section 8.3(a) (other than clauses (i)(N) and (ii)(J) thereof) on the next Distribution Date, (y) each Collateral Quality Test and the Minimum Equity Test are satisfied and (z) the aggregate principal amount of all Advances outstanding hereunder shall not exceed the Borrowing Base or the Maximum Availability, and (D) Collateral Obligations pursuant to Section 7.10(iv)(y).
(b) Prior to foreclosure by the Trust required under the Code Facility Agent upon any Collateral pursuant to maintain the REIT Status of the TrustSection 13.3(c), as evidenced by a certification of the principal financial nothing in this Section 10.16 or accounting officer of the Trust containing calculations otherwise in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust this Agreement shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; and
(d) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred and the maturity of the Obligations has been accelerated, neither restrict the Borrower nor from exercising any Warrant Assets issued to it by Obligors from time to time to the Trust shall make any Distributions whatsoever, directly extent funds are available to the Borrower under Section 8.3(a) or indirectlymade available to the Borrower.
Appears in 3 contracts
Sources: Loan Financing and Servicing Agreement (MSD Investment Corp.), Loan Financing and Servicing Agreement (MSD Investment Corp.), Loan Financing and Servicing Agreement (MSD Investment Corp.)
Distributions. Neither the Borrower nor the Trust The Company shall make not, and shall not allow any Distributions which would cause it to violate any of the following covenants:
Subsidiary to, (a) [Intentionally Deleted];
(b) The Borrower and repurchase or redeem any class of stock or other Equity Interest other than pursuant to employee, director or consultant equity incentive, stock purchase or repurchase plans or awards granted thereunder or other similar agreements provided under plans approved by the Trust shall not make any Distribution if such Distribution is in excess Board of the amount which, when added to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paidDirectors; provided, however, notwithstanding in each case the foregoing in this §8.7(brepurchase or redemption price does not exceed the original consideration paid for such stock or Equity Interest, or (b) declare or pay any cash dividend or make a cash distribution on any class of stock or other Equity Interest, except that a Subsidiary of the Company may pay dividends or make distributions to the Company or a parent company that is a direct or indirect Wholly Owned Subsidiary of the Company, or (c) lend money to any employees, officers or directors (except as permitted under clause (F) of the definition of Permitted Investment), Borrower and or guarantee the Trust maypayment of any such loans granted by a third party in excess of two hundred fifty thousand dollars ($250,000) in the aggregate or (d) waive, subject release or forgive any Indebtedness owed by any employees, officers or directors in excess of two hundred fifty thousand dollars ($250,000) in the aggregate. If there are dividends or distributions made by the Company or any Subsidiary, within one (1) Business Day following the date on which the Company files an Annual Report on Form 10-K or Quarterly Report on Form 10-Q with the Commission, the Company will provide the Holder with a written notice setting forth the aggregate amount of dividends or distributions made by the Company or any Subsidiary pursuant to this Section 7(G) for the period covered by such Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as applicable. Notwithstanding anything herein to the limitations set forth in this Agreement (including specificallycontrary, but without limitationthe Company shall not, those contained in §8.7(b)) (i) redeem existing Preferred and shall not allow any Subsidiary to, declare or pay any cash dividend or make a cash distribution on any class of stock or other Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust and (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case Interest if (A) no any Event of Default shall have has occurred hereunder and be continuing on has not been waived by the date of any such repurchase Required Holders or redemption, (B) no Default any event or Event circumstance has occurred and is continuing which, with the giving of Default shall occur as a result notice or passage of any such repurchase time or redemptionboth, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;
(c) In the event that could constitute an Event of Default shall have occurred and be continuingwith respect to Section 9(A)(ii), neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status of the TrustSection 9(A)(iv), as evidenced by a certification of the principal financial Section 9(A)(vi), Section 9(A)(ix), Section 9(A)(x), Section 9(A)(xi) or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; and
(d) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectlySection 9(A)(xiv).
Appears in 3 contracts
Sources: Third Note Amendment (Velo3D, Inc.), Note Amendment (Velo3D, Inc.), Note Amendment (Velo3D, Inc.)
Distributions. Neither the Borrower nor the Trust shall make any Distributions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted];
(b) The Borrower Neither CVOP II nor, from and after the Merger, CVOP I, shall pay any Distribution to the partners, members or other owners of CVOP II or CVOP I, as applicable, and the Trust Borrower shall not make pay any Distribution to its partners, members or other owners, if such Distribution is in excess of by the amount whichBorrower, CVOP II or, from and after the Merger CVOP I, when added to the amount of all other Distributions paid in the same fiscal quarter and the preceding three any period of four (34) fiscal quarters would exceed consecutive calendar quarters, is in excess of ninety-five percent (95%) of their respective such Person’s Funds from Operations for such period; provided that the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing limitations contained in this §8.7(b)8.7(a) shall not preclude Borrower, Borrower CVOP II or, from and after the Trust mayMerger, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds CVOP I from an issuance of common equity or Preferred Equity of the Borrower or the Trust and (ii) repurchase common stock issued by the Trust making Distributions in an amount not exceeding equal to the limit set forth minimum distributions required under the Code to maintain the REIT Status of Borrower, as evidenced by a certification of the principal financial or accounting officer of Borrower containing calculations in §8.3(j)(ii), so long as detail reasonably satisfactory in either case form and substance to the Agent.
(Ab) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, (B) no If a Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;
(c) In the event that an Event of Default shall have occurred and be continuing, neither CVOP II nor, from and after the Borrower nor the Trust Merger, CVOP I shall make any Distributions Distributions, and the Borrower shall not pay any Distribution to its partners, members or other owners, other than Distributions in an amount equal to the minimum Distributions by the Borrower to the Trust and by the Trust distributions required under the Code to maintain the REIT Status of the TrustBorrower, as evidenced by a certification of the principal financial or accounting officer of the Trust Borrower containing calculations in reasonable detail reasonably satisfactory in form and substance to the Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; and.
(dc) Notwithstanding the foregoing, at any time when an Event of Default under §12.1(a) or (b) shall have occurred occurred, an Event of Default as to the Borrower, CVOP II or, from and after the Merger, CVOP I under §12.1(g), (h) or (i) shall have occurred, or the maturity of the Obligations has been accelerated, neither the Borrower nor Borrower, CVOP II nor, from and after the Trust Merger, CVOP I shall make any Distributions whatsoever, directly or indirectly.
Appears in 3 contracts
Sources: Credit Agreement (Carter Validus Mission Critical REIT II, Inc.), Term Loan Agreement (Carter Validus Mission Critical REIT II, Inc.), Credit Agreement (Carter Validus Mission Critical REIT II, Inc.)
Distributions. Neither the Borrower nor the Trust shall make any Distributions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted];Except as otherwise set forth herein and subject to the second sentence hereof, distributions to the Members shall be made at such times and in such amounts as the Managing Member shall determine in its sole discretion; provided that, subject to Section 8.07, any such distributions (including for this purpose any transfer of Members’ indirect ownership interests in CAC to the Members), shall be made pro rata in accordance with the Members’ respective Membership Units. Subject to the maintenance by the Company of appropriate reserves (as determined by the Managing Member in its reasonable judgment), the Company shall promptly (and in any event within fifteen (15) Business Days) distribute all cash it receives in respect of its ownership interest in CAC and, to the extent practicable, shall make such distributions to Members in sufficient time for Members (or their direct or indirect owners) to pay any taxes with respect to their proportionate indirect ownership interests in CAC.
(b) The Borrower and Distributions may be made in cash or property, as determined by the Trust Managing Member in its reasonable judgment; provided that any such distributions to the Members shall not make any Distribution if such Distribution is in excess consist of the amount whichsame relative composition of cash and/or property to each Member, when added to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust and (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), so long except as in either case (A) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;otherwise expressly permitted herein.
(c) In the event that an Event the Managing Member distributes non-Marketable Securities to any Member pursuant to the terms of Default shall have occurred and be continuingthis Agreement, neither the Borrower nor the Trust shall make any Distributions other than (i) Newly Issued Securities or (ii) any securities distributed in connection with a dissolution of the minimum Distributions Company (other than a dissolution pursuant to Section 11.01(a)(i)), such Member shall enter into a stockholders agreement with the Managing Member (or its designee) in respect of such non-Marketable Securities (i) containing substantially the same terms and conditions as set forth in Articles VII, VIII, and XIII, and Sections 9.04 and 3.04 hereof, (ii) providing that the right to vote such non-Marketable Securities shall remain with the Company or, if the Company has been dissolved, shall lie with the Managing Member and (iii) in the event that such non-Marketable Securities are distributed to the limited partners of the any of the Trimaran Vehicles, containing no greater restrictions on such Member than apply to the non-Marketable Securities that are held by the Borrower limited partners of such Trimaran Vehicle. Any such agreement shall terminate upon the earlier of (i) the time that the Managing Member (or its Affiliates) no longer Controls, directly or indirectly, CAC, and (ii) the sixth anniversary of an IPO.
(d) In the event that following an IPO (i) (a) American Securities holds less than its Threshold Interest Amount and (b) the Managing Member elects to remove the Trust representative of American Securities from the CAC Board and by each Subsidiary Board (in accordance with the Trust required under rights set forth in Section 3.04(c)) or (ii) American Securities holds less than its De Minimis Interest Amount and the Code to maintain the REIT Status market value of the Trust, as evidenced CAC common stock beneficially owned by a certification American Securities through its membership interests in the Company constitutes less than five percent (5%) of the principal financial or accounting officer aggregate market value of the Trust containing calculations public float of CAC common stock, then (in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust either case (i) or (ii)) American Securities shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock receive a pro rata distribution of the Trust at shares of CAC common stock held by the Company in proportion to its ownership of membership interests in the Company (as determined by the Managing Member in good faith) for subsequent resale in compliance with applicable securities laws. In the event that American Securities receives any time after an Event distribution of Default shall have occurred and be continuing; and
(d) Notwithstanding shares pursuant to the foregoing, at American Securities agrees that it shall comply with any time when customary requests by underwriters with respect to lockup or similar arrangements with securityholders to the extent officers and directors and/or major stockholders are similarly bound. Any distribution to American Securities pursuant to this Section 5.01(d) foregoing shall be in termination of its entire interest in the Company.
(e) If (i) an Event of Default shall have IPO has occurred and (ii) on the maturity Windup Distribution Date the market value of the Obligations has been acceleratedCAC common stock beneficially owned by American Securities through its membership interests in the Company constitutes less than five percent (5%) of the aggregate market value of the public float of CAC common stock, neither then American Securities shall be entitled, on or following the Borrower nor Windup Distribution Date, to receive a pro rata distribution of the Trust shares of CAC common stock held by the Company in proportion to its ownership of membership interests in the Company (as determined by the Managing Member in good faith) for either (i) subsequent distribution to American Securities’ limited partners or members, as applicable or (ii) sale by American Securities and a subsequent distribution of the proceeds of such sale to its limited partners or members. For purposes of the foregoing, “Windup Distribution Date” shall make mean four years following the date of this Agreement. In the event that American Securities receives any Distributions whatsoeverdistribution of shares pursuant to the foregoing, directly American Securities agrees that it shall, and shall cause its limited partners or indirectlymembers, as applicable, to comply with any customary requests by underwriters with respect to lockup or similar arrangements with securityholders to the extent officers and directors and/or major stockholders are similarly bound. Any distribution to American Securities pursuant to this Section 5.01(e) shall be in termination of its entire interest in the Company.
Appears in 3 contracts
Sources: Limited Liability Company Operating Agreement (El Pollo Loco Holdings, Inc.), Limited Liability Company Operating Agreement (EPL Intermediate, Inc.), Limited Liability Company Operating Agreement (EPL Intermediate, Inc.)
Distributions. Neither the Borrower nor the Trust shall make any Distributions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted];Make any Distribution if a Default or an Event of Default then exists or if an Event of Default or Default would result therefrom; or
(b) The At all times the Consolidated Interest Coverage Ratio is less than 2:00 to 1:00, (i) retire, redeem, purchase or otherwise acquire for value (other than for capital stock of the same type of the Borrower and or any of its Consolidated Subsidiaries) any shares of capital stock or any warrant or right to acquire shares of capital stock or any other equity security issued by the Trust shall not Borrower or any of its Consolidated Subsidiaries; or (ii) make any Distribution if such Distribution is Investment in excess any holder of 5% or more of the amount which, when added to the amount of all capital stock (or other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%equity securities) of their respective Funds from Operations for the four Borrower or any of its Consolidated Subsidiaries, if a purpose of such Investment is to avoid the restrictions set forth in subclause (4i) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paidabove; provided, however, notwithstanding that the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations restrictions set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)Section 6.12(b) shall not apply if all of the following conditions are met:
(i) redeem existing Preferred Equity with proceeds from an issuance of common equity Unrestricted Cash (calculated on a pro forma basis after giving effect to such retirement, redemption, purchase, acquisition or Preferred Equity of Investment) equals or exceeds the Borrower or the Trust and Commitment;
(ii) repurchase common stock issued by Total Outstandings (excluding the Trust in an aggregate undrawn face amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case of outstanding Letters of Credit) are zero; and
(A) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, (Biii) no Default or Event of Default shall occur as a then exists or would result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;therefrom.
(c) In Notwithstanding the event that an Event foregoing provisions of Default shall have occurred this Section 6.12, Section 6.12 does not prohibit:
(i) retirements, redemptions, purchases, or other acquisitions for value of capital stock, warrants or rights to acquire shares of capital stock or other equity securities (x) from or with employees, officers or directors or former employees, officer or directors (or their estates or beneficiaries under their estates) of Borrower and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions its Subsidiaries in connection with Borrower’s equity incentive plans or other benefit plans or upon death, disability, retirement, severance or termination or pursuant to any agreement under which the capital stock or other securities were issued or any employment agreement, (y) in connection with cashless exercises of options, warrants or other rights to acquire capital stock or other equity securities, or (z) in lieu of fractional shares;
(ii) the purchase of call options or call spreads by Borrower or its Subsidiaries in connection with any convertible securities offering of Subordinated Obligations by Borrower, together with the repurchase of common shares of capital stock or preferred stock settlement for cash (in whole or in part) as may be required by the terms of such options or spreads;
(iii) a Distribution made (x) to Borrower or to a Guarantor Subsidiary by any of their respective Subsidiaries or (y) to a wholly-owned Subsidiary of Borrower by any Subsidiary that is not a Loan Party;
(iv) the payment of any Distribution within 60 days after the date of declaration thereof so long as such Distribution was permitted by the provisions of this Agreement at the time of its declaration; or
(v) the making of cash payments in connection with any conversion of convertible securities of the Trust at any time after an Event of Default shall have occurred and be continuing; and
(d) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectlyBorrower.
Appears in 3 contracts
Sources: Revolving Loan Agreement (Kb Home), Revolving Loan Agreement (Kb Home), Revolving Loan Agreement (Kb Home)
Distributions. Neither Holdings and the Borrower nor the Trust shall not, and shall not permit any of its Restricted Subsidiaries to, make any Distributions which would cause it to violate any of Distribution, other than the following covenants:(collectively, “Permitted Distributions”):
(a) each Restricted Subsidiary may make Distributions to Holdings, the Borrower and to other Restricted Subsidiaries (and, in the case of a Distribution by a non-Wholly Owned Restricted Subsidiary, to Holdings, the Borrower and any other Restricted Subsidiary and to each other owner of Stock of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests of the relevant class of Stock);
(i) Holdings and the Borrower may (or may make Distributions to permit any Parent Entity to) redeem in whole or in part any of its Stock for another class of its (or such Parent Entity’s) Stock or rights to acquire its Stock or with proceeds from substantially concurrent equity contributions or issuances of new Stock; provided that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Stock are at least as advantageous to the Lenders as those contained in the Stock redeemed thereby and (ii) Holdings may declare and make any Distribution payable solely in the Stock (other than Disqualified Stock not otherwise permitted by Section 8.12) of Holdings;
(c) [Intentionally Deletedreserved];
(bd) The to the extent constituting Distributions, Holdings and its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 8.11 (other than pursuant to clause (p) of the definition of “Permitted Investments” or Sections 8.14(g));
(e) repurchases of Stock of the Borrower (or any Parent Entity) or any Restricted Subsidiary deemed to occur upon exercise, vesting and/or settlement of Stock if such Stock represents a portion of the exercise price thereof or any portion of required withholding or similar taxes due upon the exercise, vesting and/or settlement thereof;
(f) so long as no Default or Event of Default shall be continuing, the Borrower or any Restricted Subsidiary may pay (or make Distributions to allow any Parent Entity to pay) for the repurchase, retirement or other acquisition or retirement for value of Stock of it or any Parent Entity (or any options or warrants or stock appreciation or similar rights issued with respect to any of such Stock) held by any future, present or former employee, director, officer or other individual service provider (or any Affiliates, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing) of the Borrower (or any Parent Entity) or any of the other Restricted Subsidiaries pursuant to any employee, management or director equity plan, employee, management or director stock option plan or any other employee, management or director benefit plan or any agreement (including any stock option or stock appreciation or similar rights plan, any management, director and/or employee stock ownership or equity-based incentive plan, stock subscription plan, employment termination agreement or any other employment agreements or equity holders’ agreement) with any employee, director, officer or other individual service provider of the Borrower (or any Parent Entity) or any Restricted Subsidiary; provided that any such payments do not exceed (i) $10,000,000 in any Fiscal Year, plus (ii) all net cash proceeds obtained by any Parent Entity (and contributed to the Borrower) or the Borrower during such calendar year from the sale or issuance of such Stock to other present or former officers, employees, directors and other individual service provider in connection with any plans or agreements set forth above in this clause (f) plus (iii) all net cash proceeds obtained from any key-man life insurance policies received by the Borrower during such calendar year; provided that any unused portion of the preceding basket calculated pursuant to clauses (i) through (iii) above for any Fiscal Year may be carried forward to the next two (2) succeeding Fiscal Years up to a maximum of $15,000,000 in the aggregate in any Fiscal Year; provided, further, that cancellation of Debt owing to Holdings (or any Parent Entity of Borrower) or any of its Restricted Subsidiaries from employees, directors, officers or other individual service providers of the Borrower, any of the Borrower’s Parent Entity or any of Holdings’ Restricted Subsidiaries in connection with a repurchase of Stock of any of the Borrower’s Parent Entity will not be deemed to constitute a Distribution for purposes of this covenant or any other provision of this Agreement;
(g) Holdings and its Restricted Subsidiaries may make Distributions to any direct or indirect owner thereof (including but not limited to any Parent Entity of Borrower):
(i) the proceeds of which will be used to pay: (A) for any taxable period for which Manufacturing, the Borrower or any of its Subsidiaries is a member of a combined, consolidated or similar tax group for U.S. federal, state or local Tax purposes of which a direct or indirect parent of the Borrower is the common parent (a “Tax Group”), the portion of any consolidated, combined or similar Tax liability of such Tax Group for such taxable period attributable to the income or operations of Manufacturing, the Borrower and its Subsidiaries; provided that (x) no such payments shall exceed the Trust Tax liability that would have been imposed on Manufacturing, the Borrower and/or the applicable Subsidiaries had such entity(is) paid such Taxes on a stand-alone basis (or as a stand-alone group) and (y) any such payments attributable to an Unrestricted Subsidiary shall not make any Distribution if such Distribution is in excess of the amount which, when added be limited to the amount of all other Distributions any cash paid by such Unrestricted Subsidiary to the Borrower or any Restricted Subsidiary for such purpose; or (B) with respect to any taxable period for which Holdings or any of its Subsidiaries is classified as a disregarded entity or partnership for U.S. federal, state or local Tax purposes, an aggregate amount necessary to provide its direct and indirect equity holders with funds sufficient to pay their Tax liabilities, including estimated tax liabilities, attributable to their direct or indirect allocable shares of income, gain, losses, deductions and credits of Holdings and its Subsidiaries classified as partnerships or disregarded entities for U.S. federal income tax purposes during their period of direct or indirect ownership through partnerships or disregarded entities in such entity with respect to such taxable year taking into account any applicable deductions pursuant to Section 199A (as determined by Holdings or its Subsidiaries after consultation with the applicable equity holder);
(ii) the proceeds of which shall be used to pay such Parent Entity’s operating costs and expenses incurred in the same fiscal quarter ordinary course of business, other overhead costs and expenses and fees (including administrative, legal, accounting and similar expenses provided by third parties as well as trustee, directors and general partner fees) which are reasonable and customary and incurred in the preceding three ordinary course of business and attributable to the ownership or operations of Manufacturing, the Borrower and its Subsidiaries (3including any reasonable and customary indemnification claims made by directors or officers of Parent Entity attributable to the direct or indirect ownership or operations of Manufacturing, the Borrower and its Subsidiaries) fiscal quarters would and fees and expenses otherwise due and payable by the Borrower or any other Restricted Subsidiary of Holdings and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement not to exceed ninety-five percent $5,000,000 in any Fiscal Year;
(95%iii) the proceeds of their respective Funds from Operations for which shall be used to pay franchise and excise taxes, and other fees and expenses, required to maintain its (or any of its direct or indirect parents’) existence;
(iv) to finance any Permitted Acquisition or similar Investment; provided that (A) such Distribution shall be made substantially concurrently with the four closing of such Investment and (4B) the Borrower or such Parent Entity shall, immediately following the closing thereof, cause all property acquired (whether assets or Stock) to be held by or contributed to the Borrower or a Restricted Subsidiary of Holdings;
(v) the proceeds of which shall be used to pay customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful Stock or Debt offering, Refinancing, issuance or incurrence transaction or any Disposition, acquisition or Investment permitted by this Agreement; and
(vi) the proceeds of which shall be used to pay customary salary, compensation, bonus and other benefits payable to officers, employees, consultants and other service providers of any Parent Entity or partner of the Borrower to the extent such salaries, compensation, bonuses and other benefits are attributable to the ownership or operation of Holdings and its Restricted Subsidiaries;
(h) the Borrower or any Restricted Subsidiary of Holdings may pay any dividend or distribution within sixty (60) consecutive fiscal quarters ending prior to calendar days after the quarter in which date of declaration thereof, if at the date of declaration such Distribution is paid; provided, however, notwithstanding payment would have complied with the foregoing in provisions of this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) Agreement;
(i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or any Restricted Subsidiary of Holdings may (a) pay cash in lieu of fractional Stock in connection with any dividend, split or combination thereof or any Permitted Acquisition (or other similar Investment) and (b) honor any conversion request by a holder of convertible Debt and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Debt in accordance with its terms;
(j) in addition to the Trust foregoing Distributions (i) the Borrower or any Restricted Subsidiary of Holdings may make additional Distributions so long as the Specified Conditions shall have been satisfied with respect thereto at the time of (and after giving effect to) such Distributions, (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case (A) no Default or Event of Default shall have occurred and be continuing on or would result therefrom, the date Borrower or any Restricted Subsidiary of any such repurchase or redemptionHoldings may make additional Distributions, measured at the time made, in an aggregate amount not to exceed $5,000,000 and (Biii) so long as no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;
(c) In the event that an Event of Default shall have occurred and be continuingcontinuing or would result therefrom, neither the Borrower nor may make additional Distributions in an aggregate amount not to exceed an amount equal to the Trust shall make any Available Equity Amount at the time such Distributions other than the minimum Distributions by are paid; and
(k) the Borrower may pay (or may make Distributions to the Trust allow any Parent Entity to) Distributions in an amount equal to withholding or similar taxes payable or expected to be payable by any present or former employee, director, manager, consultant or other service provider (or its Affiliates, or any of their respective estates or immediate family members) and by the Trust required under the Code to maintain the REIT Status any repurchases of the Trust, as evidenced by a certification Stock in consideration of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions such payments including deemed repurchases in connection with the repurchase exercise of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; and
(d) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectlyStock options.
Appears in 3 contracts
Sources: Credit Agreement (ProFrac Holding Corp.), Credit Agreement (ProFrac Holding Corp.), Credit Agreement (ProFrac Holding Corp.)
Distributions. Neither the Borrower nor the Trust shall make any Distributions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted];
(b) The Borrower and the Trust shall not declare or make (i) payment of any distribution on or in respect of any equity interests, or (ii) any payment on account of the purchase, redemption, retirement or acquisition of any option, warrant or other right to acquire such equity interests; provided that the Borrower may make a distribution (I) of amounts paid (or released or distributed) to it (or on its behalf) on any Distribution if such Distribution is in excess Date pursuant to Section 8.3(a) and (II) on any Business Day during the Revolving Period of the amount which(A)(1) Interest Collections, when added to the amount (2) Principal Collections or proceeds of all other Distributions paid in the same fiscal quarter any Loan, and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) any Collateral Obligations or other assets of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter Borrower, in which such Distribution is paid; providedeach case, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations as set forth in this Agreement clauses (including specifically, but without limitation, those contained in §8.7(b)II)(A)(1) through (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust and (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(iiA)(3), so long as in either case (A) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (if after giving effect to such repurchasedistribution, (x) shall be less than fifty percent (50%). Notwithstanding the foregoingno Unmatured Event of Default, the Borrower may pay a Distribution to its partners Event of sums received by it pursuant to the Tax Indemnity Agreement;
(c) In the event that an Default, Unmatured Servicer Event of Default or Servicer Event of Default shall have occurred and be continuing, neither (y) the Borrower nor the Trust shall make Borrowing Base Condition is satisfied and (z) any Distributions other than the minimum Distributions by the Borrower distributions of Collateral Obligations made to the Trust Equityholder are at all times subject to the limits prescribed in Section 7.10(a)(v), and by (B) the Trust required under the Code proceeds of any Loan, if after giving effect to maintain the REIT Status such distribution, (x) no Unmatured Event of the TrustDefault, as evidenced by a certification Event of the principal financial Default, Unmatured Servicer Event of Default or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Servicer Event of Default shall have occurred and be continuingcontinuing or (y) the Borrowing Base Condition is satisfied; and
provided further, the Borrower shall only make distributions of Principal Collections to the Equityholder (di) during the Revolving Period in accordance with Sections 8.3(a), 8.3(b) and this Section 10.16 and (ii) after the Revolving Period in accordance with Sections 8.3(a), or on any Business Day in accordance with the formula set forth in Section 8.3(a)(ii)(B). For the avoidance of doubt, the Borrower shall not be permitted to make distributions to the Equityholder (including Permitted RIC Distributions) except pursuant to Section 8.3 and this Section 10.16. Notwithstanding anything herein to the foregoingcontrary, Permitted RIC Distributions shall be permitted hereunder at any time when an subject to the limitations expressly permitted under the definition of “Permitted RIC Distribution” and subject to each of the limitations and conditions set forth therein, provided that after the occurrence and during the continuation of a Tier Two Event of Default Permitted RIC Distributions may be made from Interest Collections only pursuant to Section 8.3(a)(i).
(b) Prior to foreclosure by the Agent upon any Collateral pursuant to Section 13.3(b), nothing in this Section 10.16 or otherwise in this Agreement shall have occurred and restrict (i) the maturity of the Obligations has been accelerated, neither Servicer from exercising any Warrant Assets issued to it by Obligors from time to time or (ii) the Borrower nor from exercising any Warrant Assets issued to it by Obligors from time to time to the Trust shall make any Distributions whatsoever, directly extent funds are available to the Borrower under Section 8.3(a) or indirectlymade available to the Borrower.
Appears in 3 contracts
Sources: Loan and Servicing Agreement (Antares Strategic Credit Fund), Loan and Servicing Agreement (Antares Strategic Credit Fund), Loan and Servicing Agreement (Antares Strategic Credit Fund)
Distributions. Neither the Borrower nor the Trust shall make any Distributions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted];
(b) The Neither Borrower and the Trust nor REIT shall not make pay any Distribution to its respective partners, members or other owners, if such Distribution is in excess of the amount which, which when added to the amount of all other Distributions paid by Borrower and REIT in the same fiscal calendar quarter and the preceding three (3) fiscal calendar quarters (without duplication of any Distribution paid by Borrower to REIT from which REIT pays a Distribution to its owners), would exceed the sum of ninety-five percent (95%) of their respective REIT’s Funds from Operations for such period; provided that the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing limitations contained in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)8.7(a) shall not preclude (i) redeem existing Preferred Equity with proceeds Parent Company and the Borrower from making Distributions in an issuance amount equal to the minimum distributions required under the Code to maintain the REIT Status of common equity or Preferred Equity REIT following the date that REIT elects to be a real estate investment trust under the Code, as evidenced by a certification of the Borrower principal financial or accounting officer of Parent Company containing calculations in detail reasonably satisfactory in form and substance to the Trust Agent, and (ii) repurchase common stock issued by the Trust REIT from redeeming partnership interests of Borrower in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case (A) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase exchange for shares of common stock pursuant to §8.7(b)(ii), prior to (or other comparable equity interests) of REIT and any such repurchase Borrower redemption shall not be included in the calculation of whether Distributions have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty exceeded ninety-five percent (5095%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners ) of sums received by it pursuant to the Tax Indemnity Agreement;REIT's Funds from Operations for any period.
(cb) In the event that an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust and REIT shall make any no Distributions to its respective partners, members or other owners, other than if REIT exists and has elected REIT Status, Distributions in an amount equal to the minimum Distributions by the Borrower to the Trust and by the Trust distributions required under the Code to maintain the REIT Status of the TrustREIT, as evidenced by a certification of the principal financial or accounting officer of the Trust Parent Company containing calculations in reasonable detail reasonably satisfactory in form and substance to the Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; and.
(dc) Notwithstanding the foregoing, at any time when an Event of Default under §12.1(a), (b), (h), (i) or (j) shall have occurred and or the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust and REIT shall not make any Distributions whatsoever, directly or indirectly.
(d) The foregoing provisions in this §8.7 shall not limit the ability of REIT or the Borrower (i) to retain, acquire, relinquish or sell stock awarded to its employees pursuant to equity compensation programs in the ordinary course of business in order to pay applicable withholding tax obligations of such employee or (ii) to issue, to obtain the surrender of, or relinquish Equity Interests upon the exercise of stock options, warrants or other rights to acquire Equity Interests.
Appears in 3 contracts
Sources: Credit Agreement (QualityTech, LP), Credit Agreement (QTS Realty Trust, Inc.), Credit Agreement (QTS Realty Trust, Inc.)
Distributions. Neither the Borrower nor the Trust shall make any Distributions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted];
(b) The Borrower and the Trust shall not declare or make (i) payment of any Distribution if such Distribution is distribution on or in excess respect of any equity interests, or (ii) any payment on account of the amount whichpurchase, when added redemption, retirement or acquisition of any option, warrant or other right to acquire such equity interests; provided that no more frequently than once per Collection Period, the amount Borrower may make one or more distributions of all other Distributions paid in the same fiscal quarter (A)(1) Interest Collections, (2) Principal Collections and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity any Collateral Obligations or Preferred Equity other assets of the Borrower Borrower, in each case, with the prior written consent of the Facility Agent (which consent shall not be unreasonably withheld, conditioned or the Trust delayed) and (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case (A) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (if after giving effect to such repurchasedistribution, (v) shall be less than fifty percent (50%). Notwithstanding the foregoing, as certified in writing by the Borrower may pay a Distribution and Servicer to its partners of sums received by it the Facility Agent, sufficient proceeds remain for all payments to be made pursuant to Section 8.3(a)(i) (other than clause (L) or (M) thereof) and Section 8.3(a)(ii) (other than clause (J) thereof) on the Tax Indemnity Agreement;
next Distribution Date, (cw) In the event that an no Unmatured Event of Default or Event of Default shall have occurred and be continuing, neither (x) each Collateral Quality Test and the Collateral Portfolio Test is satisfied, (y) each Coverage Test is satisfied and (z) the Advances outstanding do not exceed the Borrowing Base, and (B) any amounts paid to it pursuant to Section 8.3(a) on the applicable Distribution Date.
(b) Prior to foreclosure by the Facility Agent upon any Collateral pursuant to Section 13.3(c), nothing in this Section 10.16 or otherwise in this Agreement shall restrict the Borrower nor from exercising any Warrant Assets issued to it by Obligors from time to time to the Trust shall make any Distributions other than extent funds are available to the minimum Distributions Borrower under Section 8.3(a) or made available to the Borrower by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; and
(d) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectlyEquityholder.
Appears in 2 contracts
Sources: Loan Financing and Sale Agreement (AB Private Credit Investors Corp), Loan Financing and Servicing Agreement (AB Private Credit Investors Corp)
Distributions. Neither the Borrower nor the Trust shall make any Distributions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted];
(b) The Borrower and the Trust shall not declare or make (i) payment of any Distribution if such Distribution is distribution on or in excess respect of any equity interests, or (ii) any payment on account of the amount whichpurchase, when added redemption, retirement or acquisition of any option, warrant or other right to acquire such equity interests; provided that the amount Borrower may make a distribution of all other Distributions paid in (A) (1) Interest Collections, (2) Principal Collections or proceeds of any Advance (excluding any such amounts needed to settle the same fiscal quarter acquisition of any Eligible Collateral Obligation) and the preceding three (3) fiscal quarters would exceed ninety-five percent with the prior written consent of the Facility Agent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; providedconsent shall not be unreasonably withheld, however, notwithstanding the foregoing in this §8.7(bconditioned or delayed), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity any Collateral Obligations or Preferred Equity other assets of the Borrower or the Trust and (ii) repurchase common stock issued by the Trust Borrower, in an amount not exceeding the limit set forth in §8.3(j)(ii)each case, so long as in either case (A) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (if after giving effect to such repurchasedistribution, (v) shall be less than fifty percent (50%). Notwithstanding the foregoing, as certified in writing by the Borrower may pay and Investment Manager to the Facility Agent (with a Distribution copy to its partners of sums received by it each Agent), sufficient proceeds remain for all payments to be made pursuant to Section 8.3(a) (other than clause (N) thereof) on the Tax Indemnity Agreement;
next Distribution Date, (cw) In the event that an no Unmatured Facility Termination Event, Facility Termination Event, Unmatured Investment Manager Event of Default or Investment Manager Event of Default shall have occurred and be continuing, neither (x) each Collateral Quality Test is satisfied, (y) the Borrower nor Minimum Equity Condition is satisfied and (z) the Trust Borrowing Base Condition is satisfied; provided that such Borrowing Base Condition shall make be deemed satisfied if such percentage is at least 2.5% above the required amount, (B) amounts paid to it pursuant to Section 8.3(a) on the applicable Distribution Date and (C) the proceeds of any Distributions other than Advance on the minimum Distributions applicable Advance Date, but only if such Advance is made in respect of an Eligible Collateral Obligation acquired by the Borrower (and none of the proceeds from such Advance are needed to settle the acquisition of such Eligible Collateral Obligation) either (1) prior to such Advance Date if such Eligible Collateral Obligation was identified on the related Asset Approval Request as an asset with respect to which the Borrower intends to make a future distribution pursuant to this Section 10.16(C)(1) or (2) on such Advance Date.
i. Prior to foreclosure by the Facility Agent upon any Collateral pursuant to Section 13.3(c), nothing in this Section 10.16 or otherwise in this Agreement shall restrict (i) the Investment Manager from exercising any Warrant Assets issued to it by Obligors from time to time or (ii) the Borrower from exercising any Warrant Assets issued to it by Obligors from time to time to the Trust and by the Trust required under the Code extent funds are available to maintain the REIT Status of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; and
(d) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred and the maturity of the Obligations has been accelerated, neither the Borrower nor under Section 8.3(a) or made available to the Trust shall make any Distributions whatsoever, directly or indirectlyBorrower.
Appears in 2 contracts
Sources: Loan Financing and Servicing Agreement (FS KKR Capital Corp), Loan Agreement (FS KKR Capital Corp)
Distributions. Neither Borrower shall not, and shall not allow any Subsidiary or, to the Borrower nor extent permitted by applicable law (as determined by the Trust shall make reasonable business judgment of Borrower) and within its control, any Distributions which would cause it to violate any of the following covenants:
Physician Group to, (a) [Intentionally Deleted];
(b) The Borrower and the Trust shall not make repurchase or redeem any Distribution if such Distribution is in excess class of the amount whichstock or other Equity Interest other than pursuant to employee, when added to the amount of all officer, director, manager or consultant repurchase plans or other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; similar agreements, provided, however, notwithstanding in each case the foregoing repurchase or redemption price does not exceed the original consideration paid for such stock or Equity Interest unless required by the terms of such agreement or plan, or pursuant to a public repurchase of securities in this §8.7(b)compliance with the requirements of SEC Rule 10b-18, Borrower and the Trust may, subject or (b) except for Permitted Investments pursuant to the limitations set forth in this Agreement clause (including specifically, but without limitation, those contained in §8.7(b)iii) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the definition thereof, declare or pay any cash dividend or make any other cash distribution on any class of stock or other Equity Interest, except that any Subsidiary may pay dividends or make other distributions to Borrower or any Subsidiary thereof that has executed a Joinder Agreement, or (c) except for Permitted Investments, lend money to any employees, officers or directors or guarantee the Trust and (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case (A) no Event of Default shall have occurred and be continuing on the date payment of any such repurchase loans granted by a third party in excess of One Million Dollars ($1,000,000.00) in the aggregate at any time outstanding or redemption(d) waive, release or forgive any Indebtedness owed by any employees, officers or directors in excess of One Million Dollars (B$1,000,000.00) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that in the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;
(c) In the event that an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust shall make any Distributions aggregate other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status cancellation of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions Indebtedness in connection with the repurchase of common Equity Interests permitted under clause (a) above or preferred stock clause (iii) of the Trust at definition of “Permitted Investments”. Notwithstanding the foregoing, Borrower may redeem or repurchase the Closing Date Convertible Notes, so long as the Redemption Conditions (as applied to such redemption or repurchase) are satisfied with respect to such redemption or repurchase. Notwithstanding the foregoing, and for the avoidance of doubt, this Section 7.7 shall not prohibit (i) the conversion by holders of (including any cash payment upon conversion), or required payment of any principal or premium on (including, for the avoidance of doubt, in respect of a repurchase in connection with the redemption of all or a portion of the convertible notes issued in a Permitted Convertible Debt Financing upon satisfaction of a condition related to the stock price of Common Stock) or required payment of any interest with respect to any Permitted Convertible Debt Financing, in each case, in accordance with the terms of the indenture governing such Permitted Convertible Debt Financing, (ii) the entry into (including the payment of premiums in connection therewith) or any required payment with respect to, or required early unwind or settlement of, any Permitted Bond Hedge Transaction or Permitted Warrant Transaction, in each case, in accordance with the terms of the agreement governing such Permitted Bond Hedge Transaction or Permitted Warrant Transaction, or (iii) the withholding of shares of common stock upon the vesting of restricted stock units and performance stock units issued to Borrower’s employees under Borrower’s equity incentive plan upon vesting of such stock units and any related cash payments required to be paid to such employees and or any governmental authority on account of Taxes related thereto, in each case in the ordinary course of business of Borrower. Notwithstanding the foregoing, Parent may repurchase, exchange or induce the conversion of all or a portion of the convertible notes issued in a Permitted Convertible Debt Financing by delivery of Common Stock and/or a different series of Permitted Convertible Debt Financing and/or by payment of cash (in an amount that does not exceed the proceeds received by Parent from the substantially concurrent issuance of Common Stock and/or Permitted Convertible Debt Financing (or a permitted refinancing thereof) plus the net cash proceeds, if any, received by Parent pursuant to the related exercise or early unwind or termination of the related Permitted Bond Hedge Transactions and Permitted Warrant Transactions, if any, pursuant to the immediately following proviso); provided that, substantially concurrently with, or a commercially reasonable period of time before or after, the related settlement date for the convertible notes issued in a Permitted Convertible Debt Financing that is so repurchased, exchanged or converted, Parent shall exercise or unwind or terminate early (whether in cash, shares or any combination thereof) the portion of the Permitted Bond Hedge Transactions and Permitted Warrant Transactions, if any, corresponding to such Permitted Convertible Debt Financing that are so repurchased, exchanged or converted. Notwithstanding anything to the contrary set forth in this Section 7.7, and for the avoidance of doubt:
(i) Parent may make any required payment of premium to a counterparty thereunder due in connection with entering into any Permitted Bond Hedge Transaction;
(ii) Parent may make any payment in connection with any Permitted Warrant Transaction by (i) delivery of shares of Parent’s Common Stock (together with cash in lieu of fractional shares) upon net share settlement thereof, (ii) set-off, netting and/or payment of an early termination payment or other payment thereunder, in each case, in Parent’s Common Stock and (iii) solely to the extent Parent does not have the option of satisfying such payment obligations through the delivery of shares of Parent’s Common Stock or is otherwise required to satisfy such payment obligations in cash, set-off, netting and/or payment of an early termination payment or other payment thereunder, in each case, in cash (it being understood and agreed that any payment made in cash in connection with Permitted Warrant Transactions by set-off, netting and/or payment of an early termination payment or similar payment thereunder, in each case, after using commercially reasonable efforts to satisfy such obligation (or the portion thereof remaining after giving effect to any netting or set-off against termination or similar payments under an Event applicable Permitted Bond Hedge Transaction) by delivery of Default shares of Parent’s Common Stock shall have occurred and be continuingdeemed to be a payment obligation required to be satisfied in cash); and
(diii) Notwithstanding Parent may acquire shares or other Equity Interests or cash or a combination thereof under the foregoing, at terms of any time when an Event of Default shall have occurred and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly Permitted Bond Hedge Transaction or indirectlyPermitted Warrant Transaction.
Appears in 2 contracts
Sources: Loan and Security Agreement (Oak Street Health, Inc.), Loan and Security Agreement (Oak Street Health, Inc.)
Distributions. Neither the Borrower nor the Trust shall make any Distributions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted];
(bi) The Borrower and the Trust shall not make pay any Distribution if to the partners, members or other owners of the Borrower, and REIT shall not pay any Distribution to its partners, members or other owners, during any period of four (4) consecutive calendar quarters to the extent that such Distribution is in excess of would cause the amount which, when added to the aggregate Distributions (less any amount of all other Distributions such Distribution constituting Dividend Reinvestment Proceeds) paid in the same fiscal quarter and the preceding three (3) fiscal quarters would or declared during such period to exceed ninety-five percent (95%) of their respective such Person’s Funds from Operations for the such period; provided that so long as no Default or Event of Default shall be continuing or would arise as a result thereof, an amount not to exceed $15,000,000.00 in any period of four (4) consecutive fiscal quarters ending prior paid to redeem Equity Interests in Borrower or REIT shall not be considered Distributions for the quarter in which such Distribution is paid; provided, however, notwithstanding purpose of the foregoing limit; and provided further that the limitations contained in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)8.7(a) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of shall not preclude the Borrower or the Trust and (ii) repurchase common stock issued by the Trust from making Distributions in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case (A) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant equal to the Tax Indemnity Agreement;
(c) In the event that an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust distributions required under the Code to maintain the REIT Status of the TrustREIT, as evidenced by a certification of the principal financial or accounting officer of the Trust REIT containing calculations in reasonable detail reasonably satisfactory in form and substance to the Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after .
(b) If an Event of Default shall have occurred and be continuing; and, the Borrower shall make no Distributions, and REIT shall not pay any Distribution to its partners, members or other owners, other than Distributions in an amount equal to the minimum distributions required under the Code to maintain the REIT Status of REIT, as evidenced by a certification of the principal financial or accounting officer of REIT containing calculations in detail reasonably satisfactory in form and substance to the Agent.
(dc) Notwithstanding the foregoing, at any time when an Event of Default under §12.1(a) or (b) shall have occurred and occurred, an Event of Default as to Borrower or REIT under §12.1 (g), (h) or (i) shall have occurred, or the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust REIT shall make any Distributions whatsoever, directly or indirectly.
Appears in 2 contracts
Sources: Credit Agreement (Behringer Harvard Reit I Inc), Credit Agreement (Behringer Harvard Reit I Inc)
Distributions. Neither the Borrower nor the Trust shall make any Distributions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted];Subject to Section 8.2 hereof, the Company shall distribute to each Member as promptly as practicable (and in any event within forty-five (45) days) after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year of the Company an amount equal to such Member’s Quarterly Tax Distribution for such Fiscal Quarter. In addition, subject to Section 8.2 hereof, the Company shall distribute to each Member as promptly as practicable (and in any event within forty-five (45) days) after the end of each Fiscal Year an amount equal to the excess, if any, of such Member’s Proportionate Tax Share for such Fiscal Year over the aggregate amount of Quarterly Tax Distributions made to such Member with respect to such Fiscal Year; provided that, if a Suspension Period occurs during such Fiscal Year, such calculation shall exclude any Adjusted Taxable Income attributable to Fiscal Quarters within such Suspension Period; provided further that, if Section 9.2(b) ceases to prevent Tax Distributions pursuant to this Section 9.2(a) during a Fiscal Year, the calculation of the Tax Distribution to be made with respect to such Fiscal Year pursuant to the second sentence of this Section 9.2(a) shall also exclude any Adjusted Taxable Income attributable to Fiscal Quarters in such Fiscal Year that ended prior to the date when Section 9.2(b) ceased to prevent such Tax Distributions.
(b) Notwithstanding anything herein to the contrary, in no event shall the Company make any Tax Distribution pursuant to Section 9.2(a) until the date upon which each of (i) the $300,000,000 7% Senior Notes due 2014, (ii) the $400,000,000 8 1/4% Senior Notes due 2019 and (iii) the $300,000,000 4.75% Senior Notes due 2021, each issued by the Company and Chevron ▇▇▇▇▇▇▇▇ Chemical Company LP as joint and several obligors (collectively, the “Bond Indebtedness”), has been repaid or redeemed in full or such repayment obligations otherwise have been fully discharged. The Borrower Class C Member and each of the Class P Members agree to cause the Class C Directors and the Trust Class P Directors, respectively, to instruct management of the Company to use commercially reasonable efforts to repay or redeem the Bond Indebtedness, as promptly as commercially practicable after the date hereof, with available cash of the Company in the manner most beneficial to the Company in management’s discretion.
(c) Any distributions by the Company to the Members, other than a Tax Distribution in accordance with Sections 9.2(a) and 9.2(b) hereof, shall be payable at the discretion of the Board of Directors.
(d) To the extent the Company is required by law to withhold or to make tax payments on behalf of or with respect to any Member, the Company may withhold such amounts and make such tax payments as so required. For purposes of this Agreement, any such payments or withholdings shall be treated as a distribution to the Member on behalf of whom the withholding or payment was made.
(e) Notwithstanding anything to the contrary contained in this Section 9.2, the Company shall not make any Distribution if such Distribution distribution to the Members which would render the Company insolvent or which is otherwise prohibited by applicable law.
(f) Subsequent to the Closing, the Company made distributions to the Initial Chevron Member and the Previous ▇▇▇▇▇▇▇▇ Members as provided in excess Section 9.2(f) of the amount whichAmended & Restated LLC Agreement, when added and, after such distributions, the aggregate Capital Accounts of the Class C Members remained equal to the amount aggregate Capital Accounts of the Class P Members. The Company will use its best efforts to avoid taking any action that, or failing to take any action the failure of which to take, is likely to cause all other Distributions paid in or part of the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%distributions made pursuant to Section 9.2(f) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior Amended & Restated LLC Agreement to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject be taxable to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity one or Preferred Equity more of the Borrower or Members and in connection therewith the Trust Members shall cooperate with the Company and (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case (A) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;each other.
(cg) In the event that that, within two years of the Closing or any contribution of an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower asset to the Trust Company, the Members desire for the Company to make a distribution or payment to any of the Members or pay all or a portion of any liability, and by the Trust required if such distribution or payment to a Member or such payment of a liability may give rise to a disguised sale under section 707(a)(2)(B) of the Code or corresponding provision of state or local law, the Members shall cooperate to maintain avoid such result without changing the REIT Status intended economics of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; and
(d) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectlyarrangement.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Phillips 66), Consent Agreement (Phillips 66)
Distributions. Neither the Borrower nor the Trust shall make any Distributions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted];
(b) The Parent Borrower and the Trust shall not make pay any Distribution to the partners, members or other owners of Parent Borrower, and REIT shall not pay any Distribution to its shareholders, if such Distribution is in excess of the amount which, which (i) when added to the amount of all other Distributions paid in the same fiscal calendar quarter and (A) the preceding calendar quarters from the date of this Agreement or (B) the preceding three (3) fiscal calendar quarters (whichever is less), would exceed ninety-five percent (95%) of their respective such Person’s Funds from Operations for such period; provided that (x) the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing limitations contained in this §8.7(b)8.7(a) shall not preclude the Parent Borrower from making Distributions each year to its owners, Borrower and pro rata in accordance with percentage interests, such that the Trust may, subject amount received by REIT is sufficient to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) cover (i) redeem existing Preferred Equity with proceeds from an issuance the liability of common equity or Preferred Equity of the Borrower or the Trust and REIT for Taxes plus (ii) repurchase common stock issued by the Trust in an amount not exceeding equal to the limit set forth greater of: (1) the amount estimated by REIT in §8.3(j)(ii), so long as in either case (A) no Event of Default shall have occurred and good faith after reasonable diligence to be continuing on the date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) necessary to permit REIT to distribute to its shareholders with respect to any repurchase calendar year (whether made during such year or after the end thereof) 100% of common stock the “real estate investment trust taxable income” of REIT within the meaning of Section 857(b)(2) of the Code, determined without regard to deductions for dividends paid and the exclusions set forth in Sections 857(b)(2)(C), (D), (E) and (F) of the Code but including therein all net capital gains and net recognized built-in gains within the meaning of Treasury Regulations Section 1.337(d)-6 (whether or not such gains might otherwise be excluded or excludable therefrom); or (2) the amount that is estimated by REIT in good faith after reasonable diligence to be necessary either to maintain the REIT Status of REIT (if REIT exists) or to enable REIT to avoid the incurrence of any tax for any calendar year that could be avoided by reason of a distribution by REIT to its shareholders, with such distributions to be made as and when determined by REIT, whether during or after the end of the relevant calendar year; and (y) REIT shall be allowed to pay Distributions of the amount received pursuant to this §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value 8.7
(after giving effect to such repurchasea) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;shareholders.
(cb) In the event that an Event of Default shall have occurred and be continuing, neither the Parent Borrower nor the Trust shall make no Distributions, and REIT shall not pay any Distribution to its shareholders, other than, if REIT exists and has elected REIT Status, Distributions other than the minimum Distributions by the Borrower pro rata in accordance with percentage interests to the Trust and owners of Parent Borrower such that REIT receives an amount that is estimated by the Trust required under the Code REIT in good faith after reasonable diligence to be necessary either to maintain the REIT Status of REIT under the TrustCode for any calendar year, or to enable REIT to avoid the payment of any tax for any calendar year that could be avoided by reason of a distribution by REIT to its shareholders, with such distributions to be made as evidenced and when determined by a certification REIT, whether during or after the end of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form relevant tax year and substance to Agent; provided, however, that neither Borrower nor the Trust REIT shall be entitled allowed to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; andsuch amounts to its shareholders.
(dc) Notwithstanding the foregoing, at any time when an Event of Default under §12.1(a), (b), (h), (i) or (j) shall have occurred and or the maturity of the Obligations has been accelerated, neither the Parent Borrower nor the Trust shall not, and shall not permit REIT to, make any Distributions whatsoever, directly or indirectly.
Appears in 2 contracts
Sources: Credit Agreement (CoreSite Realty Corp), Credit Agreement (CoreSite Realty Corp)
Distributions. Neither Holdings and the Borrower nor the Trust shall not, and shall not permit any of its Restricted Subsidiaries to, make any Distributions which would cause it to violate any of Distribution, other than the following covenants:(collectively, “Permitted Distributions”):
(a) [Intentionally Deleted]each Restricted Subsidiary may make Distributions to Holdings, the Borrower and to other Restricted Subsidiaries (and, in the case of a Distribution by a non-Wholly-Owned Restricted Subsidiary, to Holdings, the Borrower and any other Restricted Subsidiary and to each other owner of Stock of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests of the relevant class of Stock);
(b) The Borrower without duplication of any Distributions made pursuant to clause (m) below, (i) Holdings may (or may make Distributions to permit any Parent Entity to directly or indirectly) redeem in whole or in part any of its Stock (A) for another class of its (or such Parent Entity’s) Stock or rights to acquire its Stock, (B) with proceeds from substantially concurrent direct or indirect equity contributions by any Parent Entity to Holdings or (C) with proceeds from substantially concurrent issuances of new Stock of Holdings (or new Stock of any Parent Entity); provided that any terms and provisions material to the Trust shall not make any Distribution if such Distribution is in excess interests of the amount whichLenders, when added taken as a whole, contained in such other class of Stock referenced in clause (A) or (C) are at least as advantageous to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, Lenders as those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust Stock redeemed thereby and (ii) repurchase common stock issued Holdings may declare and make any Distribution payable solely in the Stock (other than Disqualified Stock not otherwise permitted by Section 8.12) of Holdings;
(c) to the Trust in an amount not exceeding extent constituting Distributions, Holdings and its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 8.11 (other than pursuant to clause (p) of the limit set forth in §8.3(j)(iidefinition of “Permitted Investments”) or Section 8.14(f);
(d) repurchases of Stock of Holdings (or Stock of any Parent Entity) or any Restricted Subsidiary deemed to occur upon exercise, vesting and/or settlement of Stock if such Stock represents a portion of the exercise price thereof or any portion of required withholding or similar taxes due upon the exercise, vesting and/or settlement thereof;
(e) so long as in either case no Default or Event of Default shall be continuing, from and after the date that is twelve (12) months after the consummation of the IPO Transactions, Holdings or any Restricted Subsidiary may pay (or make Distributions to allow any Parent Entity to pay) for the repurchase, retirement or other acquisition or retirement for value of Stock of it or any Parent Entity (or any options or warrants or stock appreciation or similar rights issued with respect to any of such Stock) held by any future, present or former employee, director, officer or other individual service provider (or any Affiliates, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing) of Holdings (or any Parent Entity) or any of the other Restricted Subsidiaries pursuant to any employee, management or director equity plan, employee, management or director stock option plan or any other employee, management or director benefit plan or any agreement (including any stock option or stock appreciation or similar rights plan, any management, director and/or employee stock ownership or equity-based incentive plan, stock subscription plan, employment termination agreement or any other employment agreements or equity holders’ agreement) with any employee, director, officer or other individual service provider of Holdings (or any Parent Entity) or any Restricted Subsidiary; provided that any such payments, when taken together with (i) the aggregate principal amount of loans and advances made under clause (j) of the definition of “Permitted Investments” and (ii) the aggregate amount of Investments made under clause (t) of the definition of “Permitted Investments”, do not exceed (A) $15,000,000 in any Fiscal Year and (B) $30,000,000 during the term of the Agreement; provided that any unused portion of the preceding basket calculated pursuant to clause (A) above for any Fiscal Year may be carried forward to the next succeeding Fiscal Year up to a maximum of $5,000,000 in the aggregate in any Fiscal Year; provided, further, that cancellation of Debt owing to Holdings or any of its Restricted Subsidiaries from employees, directors, officers or other individual service providers of Holdings or any of its Restricted Subsidiaries in connection with a repurchase of Stock of Holdings or any of its Restricted Subsidiaries will not be deemed to constitute a Distribution for purposes of this covenant or any other provision of this Agreement;
(f) Holdings and its Restricted Subsidiaries may make Distributions to any direct or indirect owner thereof (including but not limited to any Parent Entity of Holdings):
(i) the proceeds of which shall be used to make Permitted Tax Distributions;
(ii) the proceeds of which shall be used:
(A) to make payments to ▇▇▇▇▇ Brothers, LLC, a Texas limited liability company, in respect of the “retainer fees” under the Shared Services Agreement in an aggregate amount not to exceed in any Fiscal Year $7,000,000; and
(B) to pay such Parent Entity’s operating costs and expenses incurred in the ordinary course of business, other overhead costs and expenses and fees (including administrative, legal, accounting and similar expenses provided by third parties as well as trustee, directors and general partner fees) which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of Holdings and its Restricted Subsidiaries (including any reasonable and customary indemnification claims made by directors or officers of any Parent Entity attributable to the direct or indirect ownership or operations of Holdings and its Restricted Subsidiaries) and fees and expenses otherwise due and payable by Holdings under the Shared Services Agreement in respect of services provided thereunder (for the avoidance of doubt, excluding any “retainer fees” permitted to be paid thereunder pursuant to subclause (A) of this clause (ii)) in an aggregate amount not to exceed in any Fiscal Year, for all such amounts under this clause (ii)(B), the greater of (1) $4,500,000 and (2) 2.00% of the Consolidated EBITDA of Holdings and its Restricted Subsidiaries for such Fiscal Year; provided that (x) such payments are made in respect of services performed on behalf of, or expenses incurred by, Holdings and its Restricted Subsidiaries on an arm’s length basis after the earlier of (I) the consummation of the IPO Transactions and (II) the twelve (12) month anniversary of the Closing Date, and (y) such payments are approved by the Board of Directors of ProFrac PubCo if required by the policies of such Board of Directors related to arm’s length transactions;
(iii) the proceeds of which shall be used to pay franchise, excise and similar taxes, and other fees and expenses, required to maintain its (or any of its direct or indirect parents’) existence;
(iv) the proceeds of which shall be used to finance any Permitted Acquisition or similarany other acquisition constituting a Permitted Investment permitted to be consummated by the terms hereof; provided that (A) such Distribution shall be made substantially concurrently with the closing of such Investment and (B) Holdings, the Borrower or such Parent Entity shall, immediately following the closing thereof, cause all property acquired (whether assets or Stock (other than Excluded Stock described in clause (g) of the definition thereof)) to be held by or contributed to the Borrower or a Restricted Subsidiary of the Borrower;
(v) the proceeds of which shall be used to pay customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful Stock or Debt offering, Refinancing, issuance or incurrence transaction or any Disposition, acquisition or Investment permitted by this Agreement in an aggregate amount for all such Distributions made pursuant to this clause (v) not to exceed (A) $5,000,000 during any Fiscal Year and (B) $10,000,000 during the term of this Agreement; and
(vi) the proceeds of which shall be used to pay customary salary, compensation, bonus and other benefits payable to officers, employees, consultants and other service providers of any Parent Entity or partner of the Borrower to the extent such salaries, compensation, bonuses and other benefits are attributable to the ownership or operation of Holdings and its Restricted Subsidiaries in an aggregate amount not to exceed $3,000,000;
(g) Holdings or any of its Restricted Subsidiaries may (a) pay cash in lieu of fractional Stock in connection with any dividend, split or combination thereof or any Permitted Acquisition (or any other similaracquisition constituting a Permitted Investment) and (b) honor any conversion request by a holder of convertible Debt and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Debt in accordance with its terms;
(h) in addition to the foregoing Distributions, Holdings or any Restricted Subsidiary of Holdings may make additional Distributions, measured at the time made, (i) so long as no Default or Event of Default shall have occurred and be continuing on or would result therefrom, in an aggregate amount not to exceed $5,000,000 and (ii) Distributions using the date of any such repurchase or redemption, Available Amount so long as (Bx) no Default or Event of Default shall occur as a have occurred and be continuing or would result of any such repurchase or redemption, therefrom and (Cy) the Total Net Leverage Ratio as of the last day of the most recently completed Test Period, after giving Pro Forma Effect to such Distribution, does not exceed 0.75:1.00;
(i) Holdings or any Restricted Subsidiary of Holdings may pay (or may make Distributions to allow any Parent Entity to pay) Distributions in an amount equal to withholding or similar taxes payable or expected to be payable by any present or former employee, director, manager, consultant or other service provider (or its Affiliates, or any of their respective estates or immediate family members) and any repurchases of Stock in consideration of such payments including deemed repurchases in connection with the exercise of Stock options;
(j) to the extent constituting Distributions, the transactions described in clause (i) of the definition of IPO Transactions; Transaction;
(k) any Distribution by Holdings pursuant to the FTS Distribution and Contribution Transaction;
(l) any Distribution by Holdings of the Stock of a Person acquired by Holdings or any of its Subsidiaries in accordance with the provisions set forth herein so long as all or substantially all of the property and assets of such Person (including any Stock owned by such Person other than the Stock of Holdings or any Parent Entity) were contributed to the Borrower or a Guarantor (other than Holdings) substantially simultaneously with such acquisition (and, for the avoidance of doubt, prior to such Distribution) and the Borrower or such Guarantor has complied with the Collateral and Guarantee Requirements with respect to such property and assets (including any repurchase Stock owned by such Person) so contributed;
(m) without duplication of common stock any Distributions made pursuant to §8.7(b)(iiclause (b) above, any non-cash redemption or other acquisition by Holdings of its Stock pursuant to the “Redemption Right” or the “Call Right” (each as described in the Section of the Registration Statement for the IPO Transactions entitled “Corporate reorganization”) to be included in the Holdings LLC Agreement upon the effectiveness of the IPO Transactions (it being understood and agreed, for the avoidance of doubt, that such redemption shall not in any event be made with the proceeds of any Distribution from the Borrower or any of its Restricted Subsidiaries to Holdings); and
(n) the PubCo Distribution, prior which shall only be permitted to any be made so long as (i) the Borrower has already (A) made all mandatory prepayments of the Term Loans from the first $100,000,000 of Net Cash Proceeds from the IPO required pursuant to Section 4.3(c) and (B) repaid $27,070,000 in respect of the Back-Stop Note and (ii) such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that Pubco Distribution is made solely from the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (remaining Net Cash Proceeds from the IPO after giving effect to such repurchasethe payments described in the foregoing clauses (i) shall be less than fifty percent and (50%ii). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;
(c) In the event that an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; and
(d) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectly.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (ProFrac Holding Corp.), Term Loan Credit Agreement (ProFrac Holding Corp.)
Distributions. Neither the The Borrower nor the Trust shall will not make any Distributions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted];
(b) The Borrower and the Trust shall not make Pay any Distribution to the shareholders of the Borrower if such Distribution is in excess of the greater of (i) the minimum Distributions required under the Code to maintain the REIT status of the Borrower, and (ii) the amount which, when added to the amount of all other Distributions (a) paid in the same fiscal quarter and the preceding three (3) fiscal quarters quarter, would exceed ninetyeighty-five percent (9585%) of their respective its Funds from Operations for such fiscal quarter (except that, for the fiscal quarter ending December 31, 1996 only, such percentage shall be increased to ninety percent (90%)), and (b) paid for the preceding four fiscal quarters, would exceed one hundred ten percent (4110%) consecutive of its Cash Available for Distribution for the preceding four fiscal quarters ending prior (except that, commencing with any fiscal quarter after December 31, 1996, such percentage shall be decreased to the quarter in which such Distribution is paidone hundred percent (100%)); provided, however, notwithstanding that in making the foregoing in this §8.7(b)calculation, Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust and (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case (A) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase calendar quarter in which Borrower has made an Equity Offering, there shall be excluded the amount of common stock Distributions made during such calendar quarter to Persons acquiring such Equity Offering, to the extent such Distributions exceed the pro rata amount of Distributions that would have been payable to such persons had Distributions been based upon the actual time that such Person held interests in Borrower during calendar quarter in question (for example, if an Equity Offering were successfully concluded in the third month of any calendar quarter, the Persons acquiring interests pursuant to §8.7(b)(ii)such new Equity Offering would receive a full quarterly distribution as of the relevant record date, prior as opposed to any receiving a one-third (1/3) distribution based on their actual period of ownership for such repurchase Borrower shall have delivered to Agent calendar quarter if pro forma evidence reasonably satisfactory to Agent that rata Distributions were permissible - in making the ratio foregoing calculation, then, two-thirds of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant Distributions to the Tax Indemnity Agreementacquiring Persons would be excluded);
(cb) In the event that an Event of Default shall have occurred and be continuing, neither the Majority Banks may require that the Borrower nor the Trust shall make any no Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status of the TrustBorrower, as evidenced by a certification of the principal financial or accounting officer an Authorized Officer of the Trust Borrower containing calculations in reasonable detail satisfactory in form and substance to the Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; and
(dc) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred and the maturity of the Obligations has been accelerated, neither the Majority Banks may prohibit Borrower nor the Trust shall make from making any Distributions whatsoever, directly or indirectly.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Meridian Industrial Trust Inc), Revolving Credit Agreement (Meridian Industrial Trust Inc)
Distributions. Neither the Borrower nor the Trust shall Other than Permitted Distributions, make any Distributions which would cause it to violate distribution or declare or pay any dividends (in cash or other property, other than common Stock) on, or purchase, acquire, redeem, or retire any of the following covenants:
(a) [Intentionally Deleted];
(b) The Borrower and the Trust shall not make any Distribution if such Distribution is in excess Loan Party’s Stock, of the amount whichany class, when added to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paidwhether now or hereafter outstanding; provided, however, notwithstanding the foregoing in this §8.7(b)foregoing, Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance repurchases by Parent of its issued and outstanding shares of common equity or Preferred Equity of the Borrower or the Trust and (ii) repurchase Stock through open market purchases pursuant to a publicly announced common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), repurchase program shall be permitted hereunder so long as in either case (A) no Event of Default shall have occurred immediately before and be continuing on the date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;
(c) In the event that an no Event of Default shall have occurred and be continuing, neither (B) the Borrower nor amount of Liquidity immediately after such repurchase is not less than $50,000,000, and (C) the Trust shall make any Distributions other amount of Liquidity for the immediately following twelve month period after such repurchase is not projected to be less than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status of the Trust$50,000,000, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations set forth in reasonable detail satisfactory Parent’s Projections, in form and substance reasonably satisfactory to Agent; provided, however, that neither Borrower nor the Trust shall be entitled (ii) purchases by Parent of options to make any Distributions purchase its issued and outstanding shares of common Stock in connection with the repurchase incurrence of common or preferred stock of the Trust at any time Indebtedness permitted under Section 6.1(k), shall be permitted hereunder so long as (A) immediately before and after an such purchase and/or repurchase, no Event of Default shall have occurred and be continuing, and (B) the amount of Liquidity immediately after such purchase or repurchase is not less than $50,000,000, and (C) the amount of Liquidity for the immediately following twelve month period after such purchase and/or repurchase is not projected to be less than $50,000,000, as set forth in Parent’s Projections, in form and substance reasonably satisfactory to Agent, (iii) repurchases by Parent of its issued and outstanding shares of common Stock pursuant to options purchased in compliance with the foregoing clause (ii) shall be permitted hereunder; and
provided that no cash payments are required in connection with the repurchases described in this clause (diii), (iv) Notwithstanding repurchases by Parent of warrants to purchase its issued and outstanding shares of common Stock issued in connection with the foregoingincurrence of Indebtedness permitted under Section 6.1(k), at any time when an shall be permitted hereunder so long as (A) immediately before and after such repurchase, no Event of Default shall have occurred and be continuing, and (B) the maturity amount of Liquidity immediately after such repurchase is not less than $50,000,000, and (C) the amount of Liquidity for the immediately following twelve month period after such repurchase is not projected to be less than $50,000,000, as set forth in Parent’s Projections, in form and substance reasonably satisfactory to Agent, and (v) acquisitions, retirements or redemptions permitted by Section 6.7(e) of Indebtedness permitted under Section 6.1(k) (“Permitted Redemptions”) and repurchases of issued and outstanding shares of common Stock of Parent in connection with Permitted Redemptions; provided that (w) such shares of common Stock of Parent were issued upon conversion of Indebtedness subject to such Permitted Redemption following public announcement of such Permitted Redemption, (x) immediately before and after such redemption, no Event of Default shall have occurred and be continuing, (y) for the 90 day period prior to the date of such redemption, (1) no Advances are outstanding at any time, and (2) the amount of unrestricted cash of the Obligations has been acceleratedLoan Parties located in the United States, neither Canada, the Borrower nor United Kingdom, the Trust countries comprising the European Union and Switzerland is not less than the sum of (A) the outstanding unpaid principal of, and accrued interest on, such Indebtedness (redemption price of shares of common stock of Parent) to be redeemed, (B) $30,000,000 and (C) 105% of the then existing Letter of Credit Usage; provided, that at least 2/3 of such unrestricted cash must be Qualified Cash, and (z) on the date of such redemption, Agent shall make any Distributions whatsoeverhave received a certificate of the chief financial officer of Parent certifying as to the matters set forth in clauses (v)(w), directly or indirectly(x) and (y) above.”
(b) Schedule 6.1(k) of the Credit Agreement is hereby replaced in its entirety with the new Schedule 6.1(k) attached hereto as Annex I.
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (Take Two Interactive Software Inc)
Distributions. Neither the Borrower nor the Trust shall make any Distributions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted];
(b) The Borrower and the Trust shall not make pay any Distribution to the partners, members or other owners of Borrower, and REIT shall not pay any Distribution to its shareholders, if such Distribution is in excess of the amount which, which (i) when added to the amount of all other Distributions paid in the same fiscal calendar quarter and (A) the preceding calendar quarters from the date of this Agreement or (B) the preceding three (3) fiscal calendar quarters (whichever is less), would exceed ninety-five percent (95%) of their respective such Person’s Funds from Operations for such period; provided that (x) the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing limitations contained in this §8.7(b)§ 8.7(a) shall not preclude Borrower from making Distributions each year to its owners, Borrower and pro rata in accordance with percentage interests, such that the Trust may, subject amount received by REIT is sufficient to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) cover (i) redeem existing Preferred Equity with proceeds from an issuance the liability of common equity or Preferred Equity of the Borrower or the Trust and REIT for Taxes plus (ii) repurchase common stock issued by the Trust in an amount not exceeding equal to the limit set forth greater of: (1) the amount estimated by REIT in §8.3(j)(ii), so long as in either case (A) no Event of Default shall have occurred and good faith after reasonable diligence to be continuing on the date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) necessary to permit REIT to distribute to its shareholders with respect to any repurchase calendar year (whether made during such year or after the end thereof) 100% of common stock the “real estate investment trust taxable income” of REIT within the meaning of Section 857(b)(2) of the Code, determined without regard to deductions for dividends paid and the exclusions set forth in Sections 857(b)(2)(C), (D), (E) and (F) of the Code but including therein all net capital gains and net recognized built-in gains within the meaning of Treasury Regulations Section 1.337(d)-6 or Treasury Regulations Section 1.337(d)-7 (whether or not such gains might otherwise be excluded or excludable therefrom); or (2) the amount that is estimated by REIT in good faith after reasonable diligence to be necessary either to maintain REIT Status of REIT (if REIT exists) or to enable REIT to avoid the incurrence of any tax for any calendar year that could be avoided by reason of a distribution by REIT to its shareholders, with such distributions to be made as and when determined by REIT, whether during or after the end of the relevant calendar year; and (y) REIT shall be allowed to pay Distributions of the amount received pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value this § 8.7
(after giving effect to such repurchasea) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;shareholders.
(cb) In the event that an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust shall make no Distributions, and REIT shall not pay any Distribution to its shareholders, other than, if REIT exists and has elected REIT Status, Distributions other than the minimum Distributions by the Borrower pro rata in accordance with percentage interests to the Trust and owners of Borrower such that REIT receives an amount that is estimated by the Trust required REIT in good faith after reasonable diligence to be necessary either to maintain REIT Status of REIT under the Code for any calendar year, or to maintain enable REIT to avoid the payment of any tax for any calendar year that could be avoided by reason of a distribution by REIT Status to its shareholders, with such distributions to be made as and when determined by REIT, whether during or after the end of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form relevant tax year and substance to Agent; provided, however, that neither Borrower nor the Trust REIT shall be entitled allowed to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; andsuch amounts to its shareholders.
(dc) Notwithstanding the foregoing, at any time when an Event of Default under § 12.1(a), (b), (h), (i) or (j) shall have occurred and or the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall not, and shall not permit REIT to, make any Distributions whatsoever, directly or indirectly.
Appears in 2 contracts
Sources: Term Loan Agreement (CoreSite Realty Corp), Term Loan Agreement (CoreSite Realty Corp)
Distributions. Neither the Borrower nor the Trust shall make any Distributions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted];Other than upon and during the continuance of an Event of Default,
(b) The Borrower and the Trust shall not make any Distribution if such Distribution is in excess of the amount which, when added to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust and (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case (A) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) Pledgor shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution entitled to its partners of sums received by it pursuant exercise any and all voting and other consensual rights pertaining to the Tax Indemnity Agreement;
(c) In the event that an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust shall make Collateral or any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agentpart thereof for any purpose; provided, however, that neither Borrower nor the Trust Pledgor will not exercise or refrain from exercising any such right if such action would have a material adverse effect on the value of the Collateral or any part thereof or on the rights of the Pledgee therein.
(ii) to the extent consistent with Section 6(h), the Pledgor shall be entitled to make receive and retain any Distributions and all distributions paid in connection with the repurchase of common or preferred stock respect of the Trust at Pledged Securities; provided, however, that any time after an Event of Default shall have occurred and be continuingall
(A) distributions paid or payable other than in cash in respect of, and Instruments, Financial Assets and other property received, receivable or otherwise distributed in respect of, or in exchange for, any Collateral; and
(dB) Notwithstanding cash paid, payable or otherwise distributed in respect of principal of, or in redemption of, or in exchange for, any Collateral, shall be forthwith delivered to the foregoingPledgee to hold as Collateral and shall, at if received by the Pledgor, be received in trust for the benefit of the Pledgee, be segregated from the other property or funds of the Pledgor and be forthwith delivered to the Pledgee as Collateral in the same form as so received (with any time when necessary endorsement) to the extent the Collateral is less than the Required Account Value.
(b) The Pledgee shall execute and deliver (or cause to be executed and delivered) to the Pledgor all such proxies and other instruments as the Pledgor may reasonably request for the purpose of enabling the Pledgor to exercise the voting and other rights that it is entitled to exercise pursuant to paragraph (a)(i) above and to receive the dividends or interest payments that it is authorized to receive and retain pursuant to paragraph (a)(ii) above.
(c) Upon and during the continuance of an Event of Default Default, all of the rights of the Pledgor pursuant to the preceding paragraphs (a) and (b) shall automatically cease, and the Pledgee shall have occurred the exclusive right to exercise any such rights and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make to receive and retain any Distributions whatsoever, directly or indirectlyand all distributions and cash as provided in said paragraphs.
Appears in 2 contracts
Sources: Pledge Agreement (Renaissancere Holdings LTD), Pledge Agreement (Renaissancere Holdings LTD)
Distributions. Neither the Borrower nor the Trust shall make any Distributions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted];Subject to the other provisions of this Article IV, Section 6.9(g) and Section 10.5, and except in connection with a Liquidation Event, the Board may in its sole discretion from time to time authorize distributions in cash out of Available Cash to the Members on a pro rata basis based on the Members’ Percentage Interest.
(b) The Borrower and the Trust shall not make any Distribution if such Distribution is in excess of the amount which, when added Notwithstanding anything to the amount of all other Distributions paid in the same fiscal quarter and the preceding three contrary contained herein, (3i) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations unless otherwise set forth in the applicable Equity Incentive Plan (if any) or applicable Award Agreement, no Member will share in any distribution under Section 4.2 with respect to Profits Interest Units until aggregate distributions have been made to all Members pursuant to this Agreement following such Award of Profits Interest Units in an amount equal to the applicable Distribution Threshold of such Profits Interest Units (including specifically, but without limitation, those contained as may be adjusted to reflect Capital Contributions (if any) made and any other changes in §8.7(bthe Company’s capitalization on or after the date of such Award)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust ; and (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case (A) no Event of Default Member shall have occurred and be continuing on the date of receive any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) distributions pursuant to Section 4.2 with respect to any repurchase Profits Interest Units that are Unvested Profits Interest Units as of common stock the date of distribution, but the distributions that would otherwise have been made pursuant to §8.7(b)(ii)Section 4.2 in respect of any such Unvested Profits Interest Unit (had such Unvested Profits Interest Unit then been a Vested Profits Interest Unit) shall instead be held in a separate reserve by the Company for distribution to the holder of such Unvested Profits Interest Unit should the Unvested Profits Interest Unit become vested; and (iii) upon the vesting of any Profits Interest Unit that was an Unvested Profits Interest Unit, the holder of such Profits Interest Unit shall be entitled to receive any distributions held in reserve for such Profits Interest Unit pursuant to the foregoing clause (ii) as soon as reasonably practicable following vesting. In the event that an Unvested Profits Interest Unit (or corresponding Upstairs Unit) is forfeited, repurchased or redeemed prior to vesting, then any such repurchase Borrower shall have delivered amounts held back in reserve for such Unvested Profits Interest Unit pursuant to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value foregoing clause (after giving effect to such repurchaseii) shall be less than fifty percent forfeited by the Member (50%). Notwithstanding and any holder of the foregoingcorresponding Upstairs Unit) for whose benefit such amounts were held back and the Member that held such Unvested Profits Interest Unit shall not be entitled to any other distributions or other amounts in respect of such forfeited, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;repurchased or redeemed Unvested Profits Interest Unit.
(c) In the event that of any Sale of the Company (including an Event of Default shall have occurred Approved Sale), the net proceeds from such transaction (after reduction for any reasonable and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions documented fees and expenses incurred by the Borrower Company) shall be allocated among the Members participating in such transaction on a pro rata basis (based on the number of Units included in such transaction), subject to Section 4.2(b). If any portion of the consideration payable in such Sale of the Company is placed into escrow, held back and/or is payable to the Trust and by the Trust required under the Code participating Members subject to maintain the REIT Status contingencies (such portion of the Trustconsideration, as evidenced by a certification the “Additional Consideration”), (i) the portion of the principal financial or accounting officer consideration from the Sale of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; providedCompany that is not Additional Consideration (such portion, however, that neither Borrower nor the Trust “Initial Consideration”) shall be entitled to make any Distributions allocated among the Members in accordance with the first sentence of this Section 4.2(c) as if the Initial Consideration were the only consideration payable in connection with the repurchase of common or preferred stock such Sale of the Trust at Company and (ii) any time Additional Consideration which becomes payable to the participating Members upon satisfaction of such contingencies shall be allocated among the Members in accordance with the first sentence of this Section 4.2(c) after an Event of Default shall have occurred and be continuing; and
(d) Notwithstanding taking into account the foregoing, at any time when an Event of Default shall have occurred and the maturity previous payment of the Obligations has been accelerated, neither Initial Consideration as part of the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectlysame transaction.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Topgolf Callaway Brands Corp.), Equity Purchase Agreement (Topgolf Callaway Brands Corp.)
Distributions. Neither Holdings and the Borrower nor the Trust shall not, and shall not permit any of its Restricted Subsidiaries to, make any Distributions which would cause it to violate any of Distribution, other than the following covenants:(collectively, “Permitted Distributions”):
(a) [Intentionally Deleted]each Restricted Subsidiary may make Distributions to Holdings, the Borrower and to other Restricted Subsidiaries (and, in the case of a Distribution by a non-Wholly-Owned Restricted Subsidiary, to Holdings, the Borrower and any other Restricted Subsidiary and to each other owner of Stock of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests of the relevant class of Stock);
(b) The Borrower without duplication of any Distributions made pursuant to clause (m) below, (i) Holdings may (or may make Distributions to permit any Parent Entity to directly or indirectly) redeem in whole or in part any of its Stock (A) for another class of its (or such Parent Entity’s) Stock or rights to acquire its Stock, (B) with proceeds from substantially concurrent direct or indirect equity contributions by any Parent Entity to Holdings or (C) with proceeds from substantially concurrent issuances of new Stock of Holdings (or new Stock of any Parent Entity); provided that any terms and provisions material to the Trust shall not make any Distribution if such Distribution is in excess interests of the amount whichLenders, when added taken as a whole, contained in such other class of Stock referenced in clause (A) or (C) are at least as advantageous to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, Lenders as those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust Stock redeemed thereby and (ii) repurchase common stock issued Holdings may declare and make any Distribution payable solely in the Stock (other than Disqualified Stock not otherwise permitted by Section 8.12) of Holdings;
(c) to the Trust in an amount not exceeding extent constituting Distributions, Holdings and its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 8.11 (other than pursuant to clause (p) of the limit set forth in §8.3(j)(iidefinition of “Permitted Investments”) or Section 8.14(f);
(d) repurchases of Stock of Holdings (or Stock of any Parent Entity) or any Restricted Subsidiary deemed to occur upon exercise, vesting and/or settlement of Stock if such Stock represents a portion of the exercise price thereof or any portion of required withholding or similar taxes due upon the exercise, vesting and/or settlement thereof;
(e) so long as in either case no Default or Event of Default shall be continuing, from and after the date that is twelve (12) months after the consummation of the IPO Transactions, Holdings or any Restricted Subsidiary may pay (or make Distributions to allow any Parent Entity to pay) for the repurchase, retirement or other acquisition or retirement for value of Stock of it or any Parent Entity (or any options or warrants or stock appreciation or similar rights issued with respect to any of such Stock) held by any future, present or former employee, director, officer or other individual service provider (or any Affiliates, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing) of Holdings (or any Parent Entity) or any of the other Restricted Subsidiaries pursuant to any employee, management or director equity plan, employee, management or director stock option plan or any other employee, management or director benefit plan or any agreement (including any stock option or stock appreciation or similar rights plan, any management, director and/or employee stock ownership or equity-based incentive plan, stock subscription plan, employment termination agreement or any other employment agreements or equity holders’ agreement) with any employee, director, officer or other individual service provider of Holdings (or any Parent Entity) or any Restricted Subsidiary; provided that any such payments, when taken together with (i) the aggregate principal amount of loans and advances made under clause (j) of the definition of “Permitted Investments” and (ii) the aggregate amount of Investments made under clause (t) of the definition of “Permitted Investments”, do not exceed (A) $15,000,000 in any Fiscal Year and (B) $30,000,000 during the term of the Agreement; provided that any unused portion of the preceding basket calculated pursuant to clause (A) above for any Fiscal Year may be carried forward to the next succeeding Fiscal Year up to a maximum of $5,000,000 in the aggregate in any Fiscal Year; provided, further, that cancellation of Debt owing to Holdings or any of its Restricted Subsidiaries from employees, directors, officers or other individual service providers of Holdings or any of its Restricted Subsidiaries in connection with a repurchase of Stock of Holdings or any of its Restricted Subsidiaries will not be deemed to constitute a Distribution for purposes of this covenant or any other provision of this Agreement;
(f) Holdings and its Restricted Subsidiaries may make Distributions to any direct or indirect owner thereof (including but not limited to any Parent Entity of Holdings):
(i) the proceeds of which shall be used to make Permitted Tax Distributions;
(ii) the proceeds of which shall be used:
(A) to make payments to ▇▇▇▇▇ Brothers, LLC, a Texas limited liability company, in respect of the “retainer fees” under the Shared Services Agreement in an aggregate amount not to exceed in any Fiscal Year $7,000,000; and
(B) to pay such Parent Entity’s operating costs and expenses incurred in the ordinary course of business, other overhead costs and expenses and fees (including administrative, legal, accounting and similar expenses provided by third parties as well as trustee, directors and general partner fees) which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of Holdings and its Restricted Subsidiaries (including any reasonable and customary indemnification claims made by directors or officers of any Parent Entity attributable to the direct or indirect ownership or operations of Holdings and its Restricted Subsidiaries) and fees and expenses otherwise due and payable by Holdings under the Shared Services Agreement in respect of services provided thereunder (for the avoidance of doubt, excluding any “retainer fees” permitted to be paid thereunder pursuant to subclause (A) of this clause (ii)) in an aggregate amount not to exceed in any Fiscal Year, for all such amounts under this clause (ii)(B), the greater of (1) $4,500,000 and (2) 2.00% of the Consolidated EBITDA of Holdings and its Restricted Subsidiaries for such Fiscal Year; provided that (x) such payments are made in respect of services performed on behalf of, or expenses incurred by, Holdings and its Restricted Subsidiaries on an arm’s length basis after the earlier of (I) the consummation of the IPO Transactions and (II) the twelve (12) month anniversary of the Closing Date, and (y) such payments are approved by the Board of Directors of ProFrac PubCo if required by the policies of such Board of Directors related to arm’s length transactions;
(iii) the proceeds of which shall be used to pay franchise, excise and similar taxes, and other fees and expenses, required to maintain its (or any of its direct or indirect parents’) existence;
(iv) the proceeds of which shall be used to finance any Permitted Acquisition or any other acquisition constituting a Permitted Investment; provided that (A) such Distribution shall be made substantially concurrently with the closing of such Investment and (B) Holdings, the Borrower or such Parent Entity shall, immediately following the closing thereof, cause all property acquired (whether assets or Stock (other than Excluded Stock described in clause (g) of the definition thereof)) to be held by or contributed to the Borrower or a Restricted Subsidiary of the Borrower;
(v) the proceeds of which shall be used to pay customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful Stock or Debt offering, Refinancing, issuance or incurrence transaction or any Disposition, acquisition or Investment permitted by this Agreement in an aggregate amount for all such Distributions made pursuant to this clause (v) not to exceed (A) $5,000,000 during any Fiscal Year and (B) $10,000,000 during the term of this Agreement; and
(vi) the proceeds of which shall be used to pay customary salary, compensation, bonus and other benefits payable to officers, employees, consultants and other service providers of any Parent Entity or partner of the Borrower to the extent such salaries, compensation, bonuses and other benefits are attributable to the ownership or operation of Holdings and its Restricted Subsidiaries in an aggregate amount not to exceed $3,000,000;
(g) Holdings or any of its Restricted Subsidiaries may (a) pay cash in lieu of fractional Stock in connection with any dividend, split or combination thereof or any Permitted Acquisition (or any other acquisition constituting a Permitted Investment) and (b) honor any conversion request by a holder of convertible Debt and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Debt in accordance with its terms;
(h) in addition to the foregoing Distributions, Holdings or any Restricted Subsidiary of Holdings may make additional Distributions, measured at the time made, (i) so long as no Default or Event of Default shall have occurred and be continuing on or would result therefrom, in an aggregate amount not to exceed $5,000,000 and (ii) Distributions using the date of any such repurchase or redemption, Available Amount so long as (Bx) no Default or Event of Default shall occur as a have occurred and be continuing or would result of any such repurchase or redemption, therefrom and (Cy) the Total Net Leverage Ratio as of the last day of the most recently completed Test Period, after giving Pro Forma Effect to such Distribution, does not exceed 0.75:1.00;
(i) Holdings or any Restricted Subsidiary of Holdings may pay (or may make Distributions to allow any Parent Entity to pay) Distributions in an amount equal to withholding or similar taxes payable or expected to be payable by any present or former employee, director, manager, consultant or other service provider (or its Affiliates, or any of their respective estates or immediate family members) and any repurchases of Stock in consideration of such payments including deemed repurchases in connection with the exercise of Stock options;
(j) to the extent constituting Distributions, the transactions described in clause (i) of the definition of IPO Transactions;
(k) any Distribution by Holdings pursuant to the FTS Distribution and Contribution Transaction;
(l) any Distribution by Holdings of the Stock of a Person acquired by Holdings or any of its Subsidiaries in accordance with the provisions set forth herein so long as all or substantially all of the property and assets of such Person (including any Stock owned by such Person other than the Stock of Holdings or any Parent Entity) were contributed to the Borrower or a Guarantor (other than Holdings) substantially simultaneously with such acquisition (and, for the avoidance of doubt, prior to such Distribution) and the Borrower or such Guarantor has complied with the Collateral and Guarantee Requirements with respect to such property and assets (including any repurchase Stock owned by such Person) so contributed;
(m) without duplication of common stock any Distributions made pursuant to §8.7(b)(iiclause (b) above, any non-cash redemption or other acquisition by Holdings of its Stock pursuant to the “Redemption Right” or the “Call Right” (each as described in the Section of the Registration Statement for the IPO Transactions entitled “Corporate reorganization”) to be included in the Holdings LLC Agreement upon the effectiveness of the IPO Transactions (it being understood and agreed, for the avoidance of doubt, that such redemption shall not in any event be made with the proceeds of any Distribution from the Borrower or any of its Restricted Subsidiaries to Holdings); and
(n) the PubCo Distribution, prior which shall only be permitted to any be made so long as (i) the Borrower has already (A) made all mandatory prepayments of the Term Loans from the first $100,000,000 of Net Cash Proceeds from the IPO required pursuant to Section 4.3(c) and (B) repaid $27,070,000 in respect of the Back-Stop Note and (ii) such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that Pubco Distribution is made solely from the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (remaining Net Cash Proceeds from the IPO after giving effect to such repurchasethe payments described in the foregoing clauses (i) shall be less than fifty percent and (50%ii). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;
(c) In the event that an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; and
(d) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectly.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (ProFrac Holding Corp.), Term Loan Credit Agreement (ProFrac Holding Corp.)
Distributions. Neither the Borrower nor the Trust (a) The Issuer shall make any Distributions which would cause it to violate any not, and shall procure that none of the following covenantsits Subsidiaries:
(ai) [Intentionally Deleted]pay any dividend in respect of its shares (other than to the Issuer and any wholly-owned Subsidiary of the Issuer);
(ii) repurchase, redeem or reduce its share capital or other restricted or unrestricted equity with repayment to shareholders, other than in relation to redemption of preference shares (class A) issued by the Issuer provided that such shares are redeemed by way of issuing new ordinary shares or with cash from such issuance of new ordinary shares and that the share capital in the Issuer is not reduced;
(iii) repay any loans granted by its direct or indirect shareholders or pay interest thereon (other than to the Issuer and any wholly-owned Subsidiary of the Issuer);
(iv) make any prepayments or repayments under any long-term debt ranking junior or pari passu with the Bonds (other than in an aggregate maximum amount of SEK 30,000,000);
(v) grant any loans except to Group Companies or Mistral Energi AB provided that Hancap Facade AB owns 49 per cent. of Mistral Energi AB; or
(vi) make any other similar distribution or transfers of value to the Issuer’s, or the Subsidiaries’, direct and indirect shareholders or the Affiliates of such direct and indirect shareholders (other than to the Issuer and any wholly-owned Subsidiary of the Issuer),
(b) The Borrower and Notwithstanding the Trust shall not make any Distribution if such Distribution is in excess of above, the amount whichIssuer shall, when added to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust and (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case (A) provided that no Event of Default shall have occurred and is outstanding, not be continuing restricted from paying dividends on its preference shares:
(i) from the First Issue Date to the date of falling one year after the First Issue Date;
(ii) from the date falling one year after the First Issue Date to the date falling two years after the First Issue Date if the Interest Coverage Ratio is greater than 1.6:1;
(iii) from the date falling two years after the First Issue Date to the date falling three years after the First Issue Date if the Interest Coverage Ratio is greater than 1.9:1, provided that, any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) dividends declared with respect to any repurchase of common stock pursuant preference shares held by Per ▇▇▇▇▇▇▇▇ shall not be paid in cash to §8.7(b)(ii), prior Per ▇▇▇▇▇▇▇▇ until after the Final Maturity Date and such claim shall be subordinated to any such repurchase Borrower shall the Bonds until after the Bonds have delivered to Agent pro forma evidence reasonably satisfactory to Agent that been redeemed in full (unless the ratio of Consolidated Total Liabilities Net Interest Bearing Debt to Consolidated Total Adjusted Asset Value (after giving effect EBITDA was below 4.50:1 in accordance with the most recent Compliance Certificate delivered to the Trustee and such repurchase) shall dividend payment is considered to be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it prudent pursuant to the Tax Indemnity Agreement;
(c) In the event that an Event of Default shall have occurred and be continuingChapter 17, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status Section 3 of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; and
Swedish Companies Act (d) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectlySw. aktiebolagslagen SFS 2005:551)).
Appears in 2 contracts
Sources: Amendment and Restatement Agreement, Amendment and Restatement Agreement
Distributions. Neither Holdings and the Borrower nor the Trust shall not, and shall not permit any of their Subsidiaries to authorize, declare or make any Distributions which would cause it to violate any of Distribution, other than the following covenants:(collectively, “Permitted Distributions”):
(ai) [Intentionally Deleted]each Subsidiary may authorize, declare and make Distributions to the Borrower and to other Subsidiaries that are Obligors and (ii) Borrower may authorize, declare and make Distributions to Holdings to the extent that Holdings uses the proceeds of such Distribution to make a Distribution that is otherwise permitted under this Section 8.10;
(b) The Borrower without duplication of any Distributions made pursuant to clause (m) below, (i) Holdings may (or may make Distributions to permit any Parent Entity to directly or indirectly) redeem in whole or in part any of its Stock (A) for another class of its (or such Parent Entity’s) Stock or rights to acquire its Stock, (B) with proceeds from substantially concurrent direct or indirect equity contributions by any Parent Entity to Holdings or (C) with proceeds from substantially concurrent issuances of new Stock of Holdings (or new Stock of any Parent Entity) (and the Trust shall not make may authorize and declare any Distribution if such Distribution is in excess of the amount whichforegoing); provided that any terms and provisions material to the interests of the Lenders, when added taken as a whole, contained in such other class of Stock referenced in clause (A) or (C) are at least as advantageous to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, Lenders as those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust Stock redeemed thereby and (ii) repurchase common stock issued Holdings may declare and make any Distribution payable solely in the Stock (other than Disqualified Stock not otherwise permitted by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case (ASection 8.12) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity AgreementHoldings;
(c) In to the event extent constituting Distributions, Holdings and its Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 8.11 (other than pursuant to clause (p) of the definition of “Permitted Investments”) or Section 8.14(f) (and authorize and declare any of the foregoing);
(d) [reserved];
(e) [reserved];
(f) Holdings and its Subsidiaries may authorize, declare and make Distributions in Cash to any direct or indirect owner thereof (including but not limited to any Parent Entity of Holdings):
(i) the proceeds of which shall be used to make Permitted Tax Distributions;
(ii) the proceeds of which shall be used:
(A) to make payments to or reimburse ProFrac Holdings for fees, costs and expenses incurred by ProFrac Holdings in respect of advisory fees in an aggregate amount not to exceed in any Fiscal Year $1,000,000; and
(B) to pay such Parent Entity’s operating costs and expenses incurred in the ordinary course of business, other overhead costs and expenses and fees (including, legal, accounting and similar expenses and costs and expenses relating to insurance, software licenses, in each case, provided by third parties, as well as trustee, directors and general partner fees and administrative costs and expenses) which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of Holdings and its Subsidiaries (including any reasonable and customary indemnification claims made by directors or officers of any Parent Entity attributable to the direct or indirect ownership or operations of Holdings and its Subsidiaries) and fees, costs and expenses otherwise due and payable by Holdings under the Shared Services Agreement in respect of services provided thereunder in an aggregate amount not to exceed in any Fiscal Year, for all such amounts under this clause (ii)(B), the greater of (x) $4,000,000 and (y) 2.00% of the Consolidated EBITDA of Holdings and its Subsidiaries for such Fiscal Year; provided that (x) such payments are made in respect of services performed on behalf of, or expenses incurred by, Holdings and its Subsidiaries on an Event arm’s length basis after the Closing Date, and (y) such payments are approved by the Board of Default Directors of ProFrac PubCo if required by the policies of such Board of Directors related to arm’s length transactions;
(iii) the proceeds of which shall have occurred be used to pay franchise, excise and similar taxes, and other fees and expenses, required to maintain its (or any of its direct or indirect parents’) existence;
(iv) without duplication for Distributions pursuant to Section 8.10(f)(i), the proceeds of which shall be continuingused to make any payments pursuant to the Tax Sharing Agreement, neither provided that the aggregate amount of any such proceeds coming from the Borrower nor and its Subsidiaries with respect to any taxable year shall not exceed the Trust aggregate net taxable income generated from the Borrower and its Subsidiaries calculated as if Borrower and its Subsidiaries were treated as a single corporation for U.S. federal income tax purposes with respect to such taxable year, taking into account any Redetermination of any Joint Return (as such terms are defined in the Tax Sharing Agreement) or other adjustments as set forth in Section 5(a) of the Tax Sharing Agreement with respect to such taxable income for such taxable year, including associated interest, penalties, and expenses that are properly attributable to the Borrower and its Subsidiaries under Section 6(a) of the Tax Sharing Agreement;
(v) [reserved];
(vi) the proceeds of which shall make be used to pay customary salary, compensation, bonus and other benefits payable to officers, employees, consultants and other service providers of any Distributions other than the minimum Distributions by Parent Entity or partner of the Borrower to the Trust extent such salaries, compensation, bonuses and other benefits are attributable to the ownership or operation of Holdings and its Subsidiaries in an aggregate amount not to exceed $3,000,000 for any Fiscal Year;
(g) Holdings or any of its Subsidiaries may (a) pay cash in lieu of fractional Stock in connection with any dividend, split or combination thereof or any Permitted Acquisition (or any other acquisition constituting a Permitted Investment) and (b) honor any conversion request by the Trust required under the Code to maintain the REIT Status a holder of convertible Debt and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Debt in accordance with its terms (and may authorize and declare any of the Trustforegoing);
(h) in addition to the foregoing Distributions, as evidenced by a certification Holdings or any Subsidiary of Holdings may authorize, declare and make additional Distributions in Cash, (i) in the case of any Distribution occurring prior to the 12-month anniversary of the principal financial or accounting officer Closing Date, in an amount equal to $35,000,000 (ii) so long as (A) the Monarch Acquisition Seller Debt has been repaid in Cash, and the Liens securing the Monarch Acquisition Seller Debt have been released, in each case, in full and final satisfaction thereof, and (B) such Distribution occurs prior to December 27, 2025, in an amount equal to $35,000,000 and (iii) in an unlimited amount after the twelve month anniversary of the Trust containing calculations Closing Date, so long as on the date such Distribution is made, measured at such time, (x) the Total Net Leverage Ratio as of the last day of the most recently completed Test Period, after giving Pro Forma Effect to such Distribution, does not exceed 1.00:1.00 and (y) Liquidity, after giving Pro Forma Effect to such Distribution, is not less than $40,000,000;
(i) Holdings or any Subsidiary of Holdings may authorize, declare and pay (or may make Distributions to allow any Parent Entity to pay) Distributions in reasonable detail satisfactory an amount equal to withholding or similar taxes payable or expected to be payable by any present or former employee, director, manager, consultant or other service provider (or its Affiliates, or any of their respective estates or immediate family members) and any repurchases of Stock in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions consideration of such payments including deemed repurchases in connection with the repurchase exercise of common or preferred stock Stock options;
(j) any payment under the Services Agreement to the extent characterized as a Distribution;
(k) [reserved];
(l) any Distribution (and any authorization and declaration thereof) by Holdings of the Trust at Stock of a Person acquired by Holdings or any time after an Event of Default shall have occurred its Subsidiaries in accordance with the provisions set forth herein so long as all or substantially all of the property and be continuingassets of such Person (including any Stock owned by such Person other than the Stock of Holdings or any Parent Entity) were contributed to the Borrower or a Guarantor (other than Holdings) substantially simultaneously with such acquisition (and prior to such Distribution) and the Borrower or such Guarantor has complied with the Collateral and Guarantee Requirements with respect to such property and assets (including any Stock owned by such Person) so contributed;
(m) Distributions (and any authorization and declaration thereof) of the Net Cash Proceeds from the Qualified IPO; and
(dn) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred Distribution (and the maturity any authorization and declaration thereof) using proceeds of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, Term Loans to directly or indirectlyindirectly enable ProFrac Holdings II to repay (i) Debt under the ProFrac Term Credit Agreement and (ii) Debt under the ProFrac ABL Credit Agreement.
Appears in 2 contracts
Sources: Credit Agreement (ProFrac Holding Corp.), Credit Agreement (ProFrac Holding Corp.)
Distributions. Neither the Borrower nor the Trust shall make any Distributions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted];All distributions from the Partnership to the Partners may be made at any time, and from time to time, as determined by the Board of Managers (subject to the other provisions hereof). Without limiting the foregoing, the Board of Managers shall have complete discretion to retain funds in the Partnership to pay or provide appropriate reserves to meet current, anticipated, or contingent Partnership obligations or expenditures.
(b) The Borrower Subject to Article X and this Section 5.4, all distributions by the Trust Partnership shall not make any Distribution if such Distribution is in excess of the amount which, when added be made to the amount of Partners (i) at all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending times prior to the quarter in which such Distribution is paid; providedSubsequent Closing Date, howeverpro rata according to their respective Applicable Unit Proceeds, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust and (ii) repurchase common stock issued at all times thereafter, in accordance with their respective Distribution Percentages. The Partners acknowledge that, because of the timing of distributions and Capital Contributions, Payout ▇▇. ▇, ▇▇▇▇▇▇ ▇▇. ▇, or Payout No. 3, as applicable, could have been satisfied as of the date of a distribution to the Partners but not as of the date of a subsequent distribution to the Partners. Accordingly, whether the EnCap Partners have received cumulative distributions sufficient to cause the occurrence of Payout ▇▇. ▇, ▇▇▇▇▇▇ ▇▇. ▇, or Payout No. 3, as applicable, shall be determined by the Trust Board of Managers prior to each distribution.
(c) Notwithstanding anything herein to the contrary, from and after the Subsequent Closing Date distributions from the Partnership shall be made in kind (the “Distribution in Kind Option”) unless otherwise approved by the Board of Managers. To effect the Distribution in Kind Option:
(i) promptly after the Board of Managers authorizes the Partnership to make a distribution of any shares of Eclipse Common Stock (an amount not exceeding the limit set forth in §8.3(j)(ii“Authorized Shares Distribution”), so long as it shall give notice to each Limited Partner of such authorization (the “Authorized Shares Distribution Notice”), which notice shall summarize in either case reasonable detail (A) no Event the terms and manner of Default shall have occurred and be continuing on the date of any such repurchase or redemptionAuthorized Shares Distribution, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemptionthe date(s) when the Board proposes to effect the Authorized Shares Distribution, and (C) with respect to any repurchase the estimated number of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio shares of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect Eclipse Common Stock distributable to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;
(c) In the event that an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; andLimited Partner.
(d) Notwithstanding The Board shall declare and authorize an Authorized Shares Distribution to the foregoingmaximum extent the Partners are allowed to sell Eclipse Common Stock in connection with any secondary offering of Eclipse Common Stock effected concurrently with the IPO.
(e) To the extent the Board of Managers authorizes the sale of Eclipse Common Stock by the Partnership (as opposed to the distribution of Eclipse Common Stock to the Limited Partners pursuant to the Distribution in Kind Option), at the Partnership will promptly distribute the Share Proceeds thereof to the Limited Partners (subject to the other provisions herein).
(f) Payment of all cash distributions made by the Partnership to a Partner shall be made by wire transfer of immediately available funds in accordance with such written instructions to the Partnership as may be provided by such Partner from time to time.
(g) The Partnership shall withhold from any distribution that would otherwise be made to a Partner any portion thereof that it is required by Applicable Law to withhold and shall pay over such amount to any appropriate Governmental Authority as required by Applicable Law provided that any amount that is withheld and paid over shall be considered to have been distributed to such Partner pursuant to this Agreement. The Partners shall furnish to the Partnership from time when an Event of Default shall have occurred to time all such information as is required by Applicable Law or otherwise reasonably requested by the Partnership (including certificates in the form prescribed by the Internal Revenue Code and applicable Treasury Regulations or applicable state, local, or foreign law) to permit the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make Partnership to ascertain whether and in what amount any Distributions whatsoever, directly or indirectlysuch withholding is required.
Appears in 2 contracts
Sources: Limited Partnership Agreement (Eclipse Resources Corp), Limited Partnership Agreement (Eclipse Resources Corp)
Distributions. Neither the The Borrower nor the Trust shall not, and shall not permit Walden to, make any Distributions D▇▇▇▇▇▇utions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted];
(b) The Borrower and the Trust shall not make pay any Distribution to the partners of Borrower if such Distribution is in excess of the amount which, when added to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters quarters, would exceed ninety-five ninety percent (9590%) of their respective its Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided;
(b) Walden shall not pay ▇▇▇ ▇▇stribution to the shareholders of Walden if such Distri▇▇▇▇▇▇ is in excess of the amount which, however, notwithstanding when added to the foregoing amount of all other Distributions paid in this §8.7(b), Borrower the same fiscal quarter and the Trust maypreceding three (3) fiscal quarters, subject would exceed ninety percent (90%) of its Funds from Operations for the four consecutive fiscal quarters ending prior to the limitations set forth quarter in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust and (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case (A) no Event of Default shall have occurred and be continuing on the date of any which such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreementis paid;
(c) In the event that an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust shall make any no Distributions other than Distributions to Walden in an amount e▇▇▇▇ ▇o the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status of the TrustWalden, as evidenced by a certification ▇▇ ▇ ▇ertification of the principal financial or accounting officer of the Trust Walden containing calculations cal▇▇▇▇▇▇ons in reasonable detail satisfactory in form and substance to Agent; provided, however, and
(d) In the event that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; and, Walden shall make no ▇▇▇▇▇▇butions other than the minimum Distributions required under the Code to maintain the REIT Status of Walden, as evidenced ▇▇ ▇ ▇ertification of the principal financial or accounting officer of Walden containing cal▇▇▇▇▇▇ons in reasonable detail satisfactory in form and substance to Agent;
(de) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred and the maturity of the Obligations has been accelerated, at the option of the Majority Banks, neither the Borrower nor the Trust Walden shall make any Distributions ▇▇▇▇▇ibutions whatsoever, directly or indirectly.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Walden Residential Properties Inc), Revolving Credit Agreement (Walden Residential Properties Inc)
Distributions. Neither the Borrower No Loan Party shall, nor the Trust shall make allow any Distributions which would cause it to violate any of the following covenants:
Controlled Entity to, (a) [Intentionally Deleted];
(b) The Borrower and the Trust shall not make repurchase or redeem any Distribution if such Distribution is in excess class of the amount whichshares, when added stock or other Equity Interest other than pursuant to the amount of all employee, director or consultant repurchase plans or other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; similar agreements, provided, however, notwithstanding in each case the foregoing in this §8.7(b)repurchase or redemption price does not exceed the original consideration paid for such stock or Equity Interest, Borrower and or (b) declare or pay any cash dividend or make any other cash distribution on any class of stock or other Equity Interest, except that a Controlled Entity may pay dividends or make other distributions to any Loan Party, (c) lend money to any employees, officers or directors or guarantee the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust and (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case (A) no Event of Default shall have occurred and be continuing on the date payment of any such repurchase loans granted by a third party in excess of $500,000 in the aggregate or redemption(d) waive, (B) no Default release or Event forgive any Indebtedness owed by any employees, officers or directors in excess of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that $500,000 in the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%)aggregate. Notwithstanding the foregoing, Parent may (A) pay the Borrower may pay purchase price of any Permitted Bond Hedge Transaction or (B) settle, unwind or terminate all or any portion of any Permitted Warrant Transaction by (I) set-off against the concurrent settlement, unwind or other termination of all or any portion of any related Permitted Bond Hedge Transaction or (II) delivery of common stock. Notwithstanding the foregoing, and for the avoidance of doubt, this Section 7.7 shall not prohibit the conversion by holders of (including any payment upon conversion, whether in cash, common stock or a Distribution to its partners combination thereof), or required payment of sums received by it pursuant to any principal or premium on (including, for the Tax Indemnity Agreement;
(c) In the event that an Event avoidance of Default shall have occurred and be continuingdoubt, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust in respect of a required under the Code to maintain the REIT Status of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions repurchase in connection with the repurchase redemption of common or preferred Permitted Convertible Debt upon satisfaction of a condition related to the stock price of the Trust common stock) or required payment of any interest with respect to, any Permitted Convertible Debt in each case, in accordance with the terms of the indenture governing such Permitted Convertible Debt; provided that principal payments in cash (other than cash in lieu of fractional shares) shall only be allowed if the Redemption Conditions are satisfied in respect of such payment and at all times after such payment; provided further that, to the extent both (a) the aggregate amount of cash payable upon conversion or payment of any time after Permitted Convertible Debt (excluding any required payment of interest with respect to such Permitted Convertible Debt and excluding any payment of cash in lieu of a fractional share due upon conversion thereof) exceeds the aggregate principal amount thereof and (b) such conversion or payment is not offset by an Event exercise or early unwind or settlement of Default a corresponding portion of the Bond Hedge Transactions relating to such Permitted Convertible Debt (including, for the avoidance of doubt, the case where there is no Bond Hedge Transaction relating to such Permitted Convertible Debt), the payment of such excess cash shall have occurred and not be continuing; and
(d) permitted by the preceding sentence. Notwithstanding the foregoing, at any time when Parent may repurchase, exchange or induce the conversion of Permitted Convertible Debt by delivery of common stock and/or a different series of Permitted Convertible Debt and/or by payment of cash (in an Event amount that does not exceed the proceeds received by Parent from the substantially concurrent issuance of Default shall have occurred and common stock and/or Permitted Convertible Debt plus the maturity net cash proceeds, if any, received by Parent pursuant to the related exercise or early unwind or termination of the Obligations has been acceleratedrelated Permitted Bond Hedge Transactions and Permitted Warrant Transactions, neither if any, pursuant to the Borrower nor immediately following proviso); provided that, substantially concurrently with, or a commercially reasonable period of time before or after, the Trust related settlement date for the Permitted Convertible Debt that is so repurchased, exchanged or converted, Parent shall make exercise or unwind or terminate early (whether in cash, shares or any Distributions whatsoevercombination thereof) the portion of the Permitted Bond Hedge Transactions and Permitted Warrant Transactions, directly if any, corresponding to such Permitted Convertible Debt that are so repurchased, exchanged or indirectlyconverted.
Appears in 2 contracts
Sources: Loan and Security Agreement (ATAI Life Sciences N.V.), Loan and Security Agreement (ATAI Life Sciences N.V.)
Distributions. Neither the Borrower nor the Trust shall make any Distributions which would cause it to violate (other than a dividend or other distribution of any shares of common Stock of the following covenantsBorrower subject to the Parent's pledge under the Parent Pledge Agreement) in respect of the Borrower's Stock or any Subordinated Indebtedness of the Borrower, except that the Borrower may:
(ai) [Intentionally Deleted];
(b) The Borrower and the Trust shall not make any Distribution if such Distribution is pay interest in excess respect of the amount which, when added Subordinated Indebtedness owing to the amount Grandparent, or any of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specificallyits Subsidiaries, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust and (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case only if:
(A) no Event at the time of Default shall have occurred and be continuing on the date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoingpayment, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;
(c) In the event that an no Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Potential Event of Default shall have occurred and be continuing; and
(dB) Notwithstanding interest on such Subordinated Indebtedness shall accrue at a rate per annum not exceeding a fixed rate of 12% per annum (or, subject to the foregoingprior written approval of the Required Lenders, such higher rate as is consistent with then- available market rates);
(ii) repay or prepay principal owing in respect of Subordinated Indebtedness owing to the Grandparent, or any of its Subsidiaries, but only if:
(A) at any the time when an of and after giving effect to such repayment or prepayment, no Event of Default or Potential Event of Default shall have occurred and be continuing,
(B) the maturity aggregate principal amount of all such Subordinated Indebtedness that is being repaid or prepaid at such time shall not exceed the sum of:
(a) the difference, if any, between:
(1) the maximum aggregate principal amount of the Obligations has Advances that could then be outstanding at such time under Section 2.1, and
(2) the sum of:
(I) the aggregate principal amount of the Advances that are actually outstanding at such time, and
(II) the aggregate principal amount of such Subordinated Indebtedness that shall have been acceleratedrepaid or prepaid after the date of this Agreement and is allocable to amounts that may be distributed pursuant to this clause (a),
(b) the difference, neither if any, between:
(1) the maximum aggregate principal amount of the Indebtedness that could then be outstanding at such time under other Permitted Loan Agreements, and
(2) the sum of:
(I) the aggregate principal amount of the Indebtedness that is actually outstanding thereunder at such time, and
(II) the aggregate principal amount of such Subordinated Indebtedness that shall have been repaid or prepaid after the date of this Agreement and is allocable to amounts that may be distributed pursuant to this clause (b), and
(c) the amount equal to:
(1) the aggregate principal amount of such Subordinated Indebtedness that shall have been loaned to the Borrower nor within the Trust 180 days preceding the date of such repayment or prepayment, minus
(2) the aggregate principal amount of such Subordinated Indebtedness that shall make any Distributions whatsoever, directly have been repaid within the 180 days preceding the date of such repayment or indirectly.prepayment and is allocable to amounts that may be distributed pursuant to this clause (c); provided that: --------
Appears in 2 contracts
Sources: Loan Agreement (Omnipoint Corp \De\), Loan Agreement (Omnipoint Corp \De\)
Distributions. Neither the Borrower nor the Trust shall make any Distributions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted];
(b) The Borrower and the Trust shall not make pay any Distribution if such (other than any Distribution is in excess expressly permitted pursuant to the immediately following sentence) to the partners, members or other owners of the Borrower, and REIT shall not pay any Distribution (other than any Distribution expressly permitted pursuant to the immediately following sentence) to its owners, to the extent that the aggregate amount whichof such Distributions paid in any fiscal quarter, when added to the aggregate amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would quarters, exceeds one hundred percent (100%) of such Person’s Adjusted FFO for such period (calculated as of the last day of the most recently ended fiscal quarter for the four quarter period ending on such date of determination); provided, that for one fiscal quarter in each calendar year, such amount may exceed ninety-one hundred percent (100%) of Adjusted FFO but shall not exceed one hundred five percent (95105%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paidAdjusted FFO; and provided, howeverfurther, notwithstanding that the foregoing limitations contained in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)8.7(a) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of shall not preclude the Borrower or the Trust and (ii) repurchase common stock issued by the Trust REIT from making Distributions in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case (A) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant equal to the Tax Indemnity Agreement;
(c) In the event that an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust distributions required under the Code to maintain the REIT Status of REIT and to avoid the Trustpayment of federal and state income or excise tax, in each case, as evidenced by a certification of the principal financial officer or accounting officer of REIT containing calculations in detail reasonably satisfactory in form and substance to the Agent. Notwithstanding the foregoing, so long as no Event of Default has occurred and is continuing or would result therefrom, including an Event of Default related to any financial covenant set forth in this Agreement, (i) Borrower and REIT may request the Majority Lenders’ consent to a Distribution that is not a Distribution permitted by the immediately preceding sentence, which consent shall be granted or withheld in the sole, but good faith, business judgment of the Majority Lenders, (ii) Borrower and REIT may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue (occurring in under thirty (30) days) of new Equity Interests, (iii) Borrower, REIT and each Subsidiary may make payments in lieu of the issuance of fractional shares representing insignificant interests in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of REIT, Borrower or any Subsidiary, (iv) Borrower, REIT and each Subsidiary may make non-cash Distributions in connection with the implementation of or pursuant to any retirement, health, stock option and other benefit plans, bonus plans, performance-based incentive plans, and other similar forms of compensation for the benefit of the directors, officers and employees of REIT, Borrower and the Subsidiaries, and (v) the REIT or the Borrower may, and the Borrower may make dividends or distributions to the REIT to allow the REIT to make, any (x) redemption or cash settlement payments and (y) any cash interest payments, in each case, in accordance with the terms of any series of convertible Indebtedness of the REIT or the Borrower which is issued by the REIT or the Borrower and otherwise permitted hereunder (provided, for the avoidance of doubt, that all obligations of REIT or Borrower with respect to such convertible Indebtedness shall continue to constitute Indebtedness for purposes of this Agreement until such convertible Indebtedness is converted to Equity Interests, repaid or retired in accordance with the terms thereof). For purposes of this §8.7(a), Distributions shall not include any Dividend Reinvestment Proceeds.
(b) Notwithstanding anything to the contrary contained in §8.7(a), at any time REIT has obtained and is maintaining an Investment Grade Rating from at least two (2) of the Rating Agencies, the limitation on Distributions set forth in §8.7(a) shall not be applicable; provided, however, that except as expressly set forth in §8.7(c), the Borrower shall not pay any Distribution to the partners, members or other owners of the Borrower, and REIT shall not pay any Distribution to its owners, if an Event of Default under §§12.1(a), 12.1(b), 12.1(g), 12.1(h) or 12.1(i) shall have occurred and be continuing or if the maturity of the Obligations shall have been accelerated.
(c) If an Event of Default under §§12.1(a), 12.1(b), 12.1(g), 12.1(h) or 12.1(i) shall have occurred and be continuing or if the maturity of the Obligations shall have been accelerated, the Borrower shall make no Distributions to its partners, members or other owners, and REIT shall not pay any Distribution to its owners, other than Distributions in an amount equal to the minimum distributions required under the Code to maintain the REIT Status of REIT, as evidenced by a certification of the principal financial or accounting officer of the Trust Borrower containing calculations in reasonable detail reasonably satisfactory in form and substance to the Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; and
(d) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectly.
Appears in 2 contracts
Sources: Credit Agreement (Global Net Lease, Inc.), Credit Agreement (Global Net Lease, Inc.)
Distributions. Neither the Borrower nor the Trust shall EPR will not make any Distributions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted];
(b) The Borrower and the Trust shall EPR will not make any Distribution if such Distribution is Distributions in excess violation of Section 9.1(g) hereof, except as otherwise provided below. Notwithstanding the amount whichforegoing, when added to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust EPR may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(bSection 9.2(b) and Section 9.2(c)) make Distributions (which shall not be included in the ninety-five percent (95%) FFO test set forth in Section 9.1(g) hereof) in order to enable EPR to repurchase common shares of EPR and the right to redeem any then outstanding preferred shares in accordance with their terms so long as (i) redeem existing Preferred Equity with proceeds from an issuance of common equity any such repurchase or Preferred Equity of the Borrower or the Trust and redemption is made in EPR’s prudent business judgment, (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case (A) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, redemption and (Biii) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;
(cb) In the event that an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust EPR shall not make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Internal Revenue Code to maintain the REIT Status of the TrustEPR, as evidenced by a certification of the principal chief financial or accounting officer of the Trust EPR containing calculations in reasonable detail reasonably satisfactory in form and substance to the Agent; provided, however, that neither Borrower nor the Trust EPR shall not be entitled to make any Distributions Distribution in connection with the repurchase of common or preferred stock of the Trust any Borrower at any time after an Event of Default shall have occurred and be continuing; and
(dc) Notwithstanding In the foregoing, at any time when event that an Event of Default shall have occurred and be continuing and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust EPR shall not make any Distributions whatsoever, either directly or indirectly.
Appears in 2 contracts
Sources: Credit Agreement (Entertainment Properties Trust), Credit Agreement (Entertainment Properties Trust)
Distributions. Neither the Borrower nor the Trust shall make any Distributions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted];Distributions shall be made to the Members (“Distributions”) to the extent that the Company has net cash from any and all sources remaining after providing for payment of current, prospective or contingent obligations, including working capital and operating costs of the Company and any other amounts approved by the Board for reserves (“Available Cash Flow”). In making this determination of whether or not the Company has Available Cash Flow, the Operator shall examine and consider cash flow projections in accordance with the Annual Budgets, including, without limitation, such items as earnings, taxes, capital expenditures and working capital requirements of the Company. Once the Operator has made a determination that the Company has Available Cash Flow, then the Company shall make Distributions to the Members in an aggregate amount equal to such Available Cash Flow in accordance with this Section 6.4(a). Subject to its evaluation of the Company’s Available Cash Flow as provided above, Operator will make Distributions to the Members at least as often as each fiscal quarter.
(b) The Borrower and the Trust Distributions shall not make any Distribution if such Distribution is in excess of the amount which, when added be made only to the amount of all other Distributions paid Members simultaneously in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of proportion to their respective Funds from Operations for Membership Interests at the four time thereof, except as provided above in Section 6.1(g). No member in default of making a Capital Contribution pursuant to this Agreement shall receive a Distribution until such Capital Contribution is paid by the Non-Funding Member.
(4c) consecutive fiscal quarters ending prior The Company shall withhold and pay over to the quarter Internal Revenue Service or other applicable taxing authority all taxes or withholdings, and all interest, penalties, additions to tax, and similar liabilities in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject connection therewith or attributable thereto (hereinafter “Withholding Taxes”) to the limitations set forth in this Agreement (including specificallyextent that the Operator determines that such withholding and/or payment is required by the Code or any other law, but rule, or regulation, including, without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity Sections 1441, 1442, 1445, or Preferred Equity 1446 of the Borrower or the Trust and (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case (A) no Event of Default Code. The Operator shall have occurred and be continuing on the date of any determine to which Member such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (CWithholding Taxes are attributable. All amounts withheld pursuant to this Section 6.4(d) with respect to any repurchase of common stock allocation, payment or distribution to any Member shall be treated as amounts distributed to such Member pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio Section 6.4(a) hereof for all purposes of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity this Agreement;
(c) In the event that an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; and.
(d) Notwithstanding anything to the foregoing, at any time when an Event of Default shall have occurred and the maturity of the Obligations has been acceleratedcontrary set forth in this Section 6.4, neither the Borrower Company nor the Trust shall Operator on behalf of the Company will make a distribution to any Distributions whatsoeverMember on account of its interest in the Company, directly if such distribution would be prohibited by or indirectlyin violation of the Act or other applicable law.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (El Paso Pipeline Partners, L.P.), Limited Liability Company Agreement (El Paso Pipeline Partners, L.P.)
Distributions. Neither the Borrower nor the Trust shall make any Distributions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted];
(b) The Borrower and the Trust It shall not declare or make (i) payment of any Distribution if such Distribution is distribution on or in excess respect of any equity interests or (ii) any payment on account of the amount whichpurchase, when added redemption, retirement or acquisition of any option, warrant or other right to acquire such equity interests; provided that it may make a distribution of (A) on any Business Day during the amount Revolving Period in accordance with Section 8.3(b) (1) Interest Collections, (2) Principal Collections or the proceeds of all other Distributions paid in the same fiscal quarter any Loan and the preceding three (3) fiscal quarters would exceed ninety-five percent with the prior written consent of the Agent (95%which consent shall not be unreasonably withheld, conditioned or delayed) upon no less than two (2) Business Days’ advance notice, any Collateral Obligations or other assets of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter Borrower, in which such Distribution is paid; providedeach case, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations as set forth in this Agreement the foregoing clauses (including specifically, but without limitation, those contained in §8.7(b)A)(1) through (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust and (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(iiA)(3), so long as in either case (A) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (if after giving effect to such repurchasedistribution, in each case, (x) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received as certified in writing by it and the Servicer to the Agent (with a copy to each Lender Agent and the Collateral Agent), sufficient proceeds remain for all payments to be made pursuant to Section 8.3(a)(i) (other than clauses (L)(1), (L)(2) and (O) thereof) and/or pursuant to Section 8.3(a)(ii) (other than clauses (J) and (K) thereof), as applicable, on the Tax Indemnity Agreement;
next Distribution Date, (cy) In subject to the event that an last sentence of this Section 10.16 and the definition of “Permitted RIC Distributions”, no Unmatured Event of Default, Event of Default, Unmatured Servicer Event of Default or Servicer Event of Default shall have occurred and be continuing, neither and (z) the Borrower nor Borrowing Base Condition is satisfied; (B) amounts paid (or released or distributed) to it pursuant to Section 8.3(a) on the Trust shall make applicable Distribution Date; and (C) the proceeds of any Distributions other than Loan on the minimum Distributions by the Borrower applicable Loan Date, if after giving effect to the Trust and by the Trust required such distribution under the Code to maintain the REIT Status this clause (C), (x) no Unmatured Event of the TrustDefault, as evidenced by a certification Event of the principal financial Default, Unmatured Servicer Event of Default or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Servicer Event of Default shall have occurred and be continuing; and
continuing and (dy) the Borrowing Base Condition is satisfied, but only if such Loan is made in respect of an Eligible Collateral Obligation acquired by it prior to such Loan Date if such Eligible Collateral Obligation was identified on the related Asset Approval Request as an asset with respect to which it intends to make a future distribution pursuant to this Section 10.16(a)(C) on such Loan Date. For the avoidance of doubt, the Borrower shall not be permitted to make distributions to the Equityholder (including Permitted RIC Distributions) except in accordance with this Section 10.16 or to the extent expressly permitted under Section 7.10. Notwithstanding anything herein to the foregoingcontrary, at any time when an Permitted RIC Distributions shall be permitted hereunder after the occurrence and during the continuation of a Tier Two Event of Default shall have occurred from Interest Collections only pursuant to Section 8.3(a)(i) and solely to the maturity extent expressly permitted under the definition of “Permitted RIC Distribution” and subject to each of the Obligations has been acceleratedlimitations and conditions set forth therein.
(b) Prior to foreclosure by the Agent upon any Collateral pursuant to Section 13.3(c), neither nothing in this Section 10.16 or otherwise in this Agreement shall restrict (i) the Servicer from exercising any Warrant Assets issued to it by Obligors from time to time or (ii) the Borrower nor from exercising any Warrant Assets issued to it by Obligors from time to time to the Trust shall make any Distributions whatsoever, directly extent funds are available to it under Section 8.3(a) or indirectlymade available to it.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (Ares Strategic Income Fund), Loan and Servicing Agreement (Ares Strategic Income Fund)
Distributions. Neither the Borrower nor the Trust shall make any Distributions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted];The holder of the Award OPP Units shall be entitled to receive distributions with respect to such Award OPP Units to the extent provided for in the Partnership Agreement as modified hereby.
(b) The Borrower and Distribution Participation Date (as defined in the Trust shall not make any Distribution if such Distribution is in excess of Partnership Agreement) for the amount which, when added Final OPP Unit Equivalent (to the amount extent provided in Section 6(c) below) shall be the Final Valuation Date, except that if the provisions of all other Distributions paid Section 4(b) hereof become applicable to the Grantee, the Distribution Participation Date for the Grantee shall be accelerated to the date the calculations provided in Section 3 hereof are performed with respect to the same fiscal quarter and Award OPP Units that are no longer subject to forfeiture pursuant to Section 4(b) hereof.
(c) Following each applicable Distribution Participation Date, the preceding three (3) fiscal quarters would exceed ninety-five Grantee shall be entitled to receive one hundred percent (95100%) of their respective Funds from Operations for the four same distributions payable with respect to Class A Units on the Final OPP Unit Equivalent.
(4d) consecutive fiscal quarters ending prior to Each Award OPP Unit shall be considered a Special LTIP Unit (as defined in the quarter in which Partnership Agreement) and as such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) the: (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of LTIP Unit Initial Sharing Percentage (as defined in the Borrower or the Trust Partnership Agreement) shall be ten percent (10%) and (ii) repurchase common stock issued by the Trust Award OPP Units shall not be entitled to receive distributions prior to the applicable Distribution Participation Date. On the applicable Distribution Participation Date, Award OPP Units shall be entitled to a Special LTIP Unit Distribution (as defined in an amount not exceeding the limit set forth Partnership Agreement) to the extent provided in §8.3(j)(ii), so long the Partnership Agreement. The Distribution Measurement Date (as defined in either case (A) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (CPartnership Agreement) with respect to any repurchase the Award OPP Units shall be the Effective Date and all of common stock the Award OPP Units granted pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) this Agreement shall be less than fifty percent deemed to have been issued as part of the Same Award (50%as defined in the Partnership Agreement). Notwithstanding .
(e) For the foregoingavoidance of doubt, after the Borrower may pay a applicable Distribution to its partners of sums received by it Participation Date, Award OPP Units, both vested and (until and unless forfeited pursuant to the Tax Indemnity Agreement;
(cSection 3(d) In the event that an Event of Default shall have occurred and be continuing4(g) hereof) unvested, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions receive the same distributions payable with respect to Class A Units if the payment date for such distributions is after the applicable Distribution Participation Date, even though the record date for such distributions is before the applicable Distribution Participation Date.
(f) All distributions paid with respect to Award OPP Units, whether at the rate provided in connection with Sections 6(d) hereof prior to the repurchase of common applicable Distribution Participation Date or preferred stock at the rate provided in Sections 6(c) hereof after the applicable Distribution Participation Date, shall be fully vested and non-forfeitable when paid, regardless of the Trust at any time after an Event of Default shall fact that the underlying 2021 OPP Units may be subject to forfeiture or have occurred not yet become, or never become, vested pursuant to Sections 3 and be continuing; and
(d) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectly4 hereof.
Appears in 2 contracts
Sources: 2021 Outperformance Plan Award Agreement (Vornado Realty Lp), 2021 Outperformance Plan Award Agreement (Vornado Realty Lp)
Distributions. Neither the Borrower nor the Trust shall make any Distributions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted];
(b) The Borrower Subject to the Act, Section 5.2, and the Trust shall not make any Distribution if such Distribution is in excess right of the amount whichBoard of Managers to suspend the payment of the GM Preferred Accrued Distribution Amount with respect to any one or more Fiscal Quarters with the consent of the Majority GM Preferred Holders, when added Distributions of the GM Preferred Accrued Distribution Amount with respect to the amount of all other Distributions paid immediately preceding Fiscal Quarter shall be made in cash, except as otherwise may be permitted pursuant to Section 5.4, to the same fiscal quarter and GM Preferred Holders no later than the preceding tenth Business Day following (x) with respect to the first three Fiscal Quarters in each Fiscal Year, the filing (3) fiscal quarters would exceed ninety-five percent (95%or delivery to the Members, as applicable) of their respective Funds from Operations for the four (4Company’s quarterly report pursuant to Section 4.5(a) consecutive fiscal quarters ending prior with respect to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust and (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case (A) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemptionFiscal Quarter, and (Cy) with respect to the fourth Fiscal Quarter in each Fiscal Year, the filing (or delivery to the Members, as applicable) of the Company’s annual report pursuant to Section 4.5(a) with respect to such Fiscal Year, in each case, ratably among such GM Preferred Holders in proportion to the aggregate GM Preferred Accrued Distribution Amount with respect to the GM Preferred Membership Interests then held by each such GM Preferred Holder either (1) immediately prior to such Distribution or, if applicable, (2) on the record date set by the Board of Managers pursuant to Section 7.9 with respect to such Distribution; provided that the Board of Managers may reduce any such Distribution to the extent required to avoid a reduction of the equity capital of the Company below the Required Capital Amount, as determined in good faith by the Board of Managers. The Company shall use its commercially reasonable efforts to give written notice to each GM Preferred Holder at least three Business Days prior to any Distribution pursuant to this Section 5.1(a). Notwithstanding the other provisions of this Agreement, in the event that the Company fails to make the full amount of Distributions of the GM Preferred Accrued Distribution Amount pursuant to this Section 5.1(a) with respect to any repurchase of common stock Fiscal Quarter, then the Company shall not make any Distributions pursuant to §8.7(b)(ii)Section 5.1(d) until such time as the Company has made a full Distribution of the GM Preferred Accrued Distribution Amount pursuant to this Section 5.1(a) with respect to a subsequent Fiscal Quarter.
(b) Subject to the Act and subject to Section 5.2, Distributions of the Class E Preferred Accrued Distribution Amount shall be payable when, as and if declared by the Board of Managers in cash, in arrears, on a Class E Preferred Payment Distribution Date, ratably among such Class E Preferred Membership Interests then held by the Class E Preferred Holder, either (i) immediately prior to any such repurchase Borrower shall have delivered Distribution, or (ii) if applicable, on the record date set by the Board of Managers pursuant to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect Section 7.9 with respect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;Distribution.
(c) In the event that an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower [Reserved.]
(d) Subject to the Trust Act, and by except as set forth in the Trust required under the Code to maintain the REIT Status last sentence of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form Section 5.1(a) and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust Section 5.2 at any time after the Fiscal Quarter ended December 31, 2008, Distributions shall be made when, as and if declared by the Board of Managers, and distributed in the following amounts and order of priority:
(i) first, to the Common Holders, ratably among such Common Holders based on the Company Interest of each such Common Holder either (A) immediately prior to such Distribution or, if applicable, (B) on the record date set by the Board of Managers pursuant to Section 7.9 with respect to such Distribution, until such Common Holders have received (1) a return of the Agreed Initial Value (taking into account all prior Distributions) plus (2) an Event amount equal to a ten percent (10%) per annum compound rate of Default return on the Agreed Initial Value outstanding from time to time after reduction for amounts Distributed to the Common Holders hereunder (disregarding Distributions of the Tax Amount) (the “Hurdle Rate”), provided that for the purpose of computing whether or not the Agreed Initial Value and an amount equal to the Hurdle Rate has been received by the Common Holders, Distributions to the Common Holders to the extent of the Tax Amount shall have occurred and be continuingdisregarded; and
(dii) thereafter, to the Class C-1 Holders and Common Holders based on the Total Interest of each such Class C-1 Holder and Common Holder either (A) immediately prior to such Distribution or, if applicable, (B) on the record date set by the Board of Managers pursuant to Section 7.9 with respect to such Distribution; provided, that to the extent any of the Management Units issued by Management Company are not vested, then that portion of the Distributable Amount that would otherwise have been made to the Class C-1 Holders with respect to that portion of Class C-1 Membership Interests equivalent to the Management Units that are not vested at such time shall be held by the Company and shall not be distributed to the Class C-1 Holders until such time as such Management Units are vested. Distributions pursuant to this Section 5.1(d) shall be made in cash, except as otherwise may be permitted pursuant to Section 5.4.
(i) Notwithstanding the foregoingother provisions of this Section 5.1, at any Distributions equal to the amount of income taxes that are payable by Management Company on income allocated to Management Company pursuant to Article VI hereof on account of the Class C Membership Interests held by Management Company as determined by the Board of Managers in good faith, shall be made from time when an Event to time to the Management Company to the extent the Distributions to Management Company pursuant to this Section 5.1 are otherwise insufficient to pay such income taxes. The aggregate amount of Default such payments pursuant to this Section 5.1(e)(i) shall have occurred be deducted from the next amounts to be Distributed to the Class C-1 Holders pursuant to Section 5.1(d)(ii) and the maturity aggregate amount to be Distributed to all other Members pursuant to Section 5.1(d)(ii) shall be increased by such deducted amount.
(ii) (A) With respect to any taxable period during which the Company continues to be classified as a partnership for federal income tax purposes, the Company shall periodically make tax distributions on Junior Membership Interests to the extent determined to be reasonably necessary by the Board of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectly.Managers (“Tax Distributions”) as follows:
Appears in 2 contracts
Sources: Limited Liability Company Operating Agreement (Gmac LLC), Limited Liability Company Operating Agreement (Gmac LLC)
Distributions. Neither (a) Unless the Borrower nor Notes have been accelerated pursuant to Section 5.2 of the Trust Indenture, on each Payment Date, the Relevant Trustee (based on information contained in the Servicer’s Certificate delivered on or before the related Determination Date pursuant to Section 3.8) shall make any Distributions which would cause it to violate any of the following covenantsdeposits and distributions, to the extent of Available Funds and the Reserve Account Draw Amount, on deposit in the Collection Account for such Payment Date, in the following order of priority:
(ai) [Intentionally Deleted];
first, (bA) The Borrower and the Trust shall not make any Distribution if such Distribution is in excess of the amount which, when added to the amount of Servicer, the Servicing Fee, any Supplemental Servicing Fees and any Liquidation Reimbursements and all other Distributions paid in the same fiscal quarter unpaid Servicing Fees, Supplemental Servicing Fees and the preceding three Liquidation Reimbursements, if any, with respect to prior periods and (3B) fiscal quarters would exceed ninety-five percent (95%i) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paidStandby Servicer, any accrued and unpaid Standby Servicing Fees and reasonable expenses and indemnification amounts; provided, however, notwithstanding that, prior to the foregoing occurrence of an Event of Default of the type described in this §8.7(bclauses (a), Borrower (b) or (e) of Section 5.1 of the Indenture, the expenses and the Trust may, subject indemnification amounts payable to the limitations set forth Standby Servicer pursuant to this clause first shall be limited to $125,000 per annum in this Agreement (including specificallythe aggregate, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust and (ii) repurchase common stock issued if the Standby Servicer becomes the successor Servicer, to the Standby Servicer, Servicing Transition Costs, to the extent not previously paid by the Trust in an amount not exceeding the limit set forth in §8.3(j)(iipredecessor Servicer pursuant to Section 7.1(a), provided, that such Servicing Transition Costs payable pursuant to this clause first shall not exceed $200,000; provided, further, that amounts withdrawn from the Reserve Account may not be used to pay amounts due under clause (A) so long as in either case (A) no Event BAC or an Affiliate of Default shall have occurred and be continuing on BAC is the date of any such repurchase Servicer or redemption, under clause (B) no Default so long as BAC or Event an Affiliate of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that BAC is the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity AgreementStandby Servicer;
(c) In the event that an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; and
(d) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectly.
Appears in 2 contracts
Sources: Sale and Servicing Agreement (Bridgecrest Lending Auto Securitization Trust 2026-1), Sale and Servicing Agreement (Bridgecrest Lending Auto Securitization Trust 2026-1)
Distributions. Neither the Borrower Directly or indirectly, declare, order, make or set apart any sum for or pay any Restricted Payment, nor the Trust shall make will they permit any Distributions which would cause it to violate any of the following covenantsSubsidiary to, except:
(a) [Intentionally Deleted]to make dividends or other distributions payable solely in the same class of Equity Interests of such Person;
(b) The to make dividends or other distributions payable to Borrower or any of its Subsidiaries;
(c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire its Equity Interests with the Trust shall not proceeds received from a substantially concurrent issuance of new common or subordinated Equity Interests;
(d) the Borrower may make any Distribution if such Distribution is in excess the distributions of up to all of the amount whichproceeds of the Term Loans (as defined in the KeyBank Credit Agreement), if and when added made, to GPMI on the date on which such term loan is made to the amount Borrower;
(e) so long as no Default or Event of all Default then exists and is continuing or would result therefrom, Restricted Payments by the Borrower out of its operating surplus pursuant to and in accordance with the Partnership Agreement;
(f) to purchase, redeem or otherwise acquire its Equity Interests with the proceeds received from a substantially concurrent issue of new Equity Interests (other Distributions paid in than Equity Interests issued by such Person and which by the same fiscal quarter and terms thereof could be (at the preceding three (3request of the holders thereof or otherwise) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations subject to mandatory sinking fund payments, redemption or other acceleration for the four (4) consecutive fiscal quarters ending cash on a date prior to the quarter fifth anniversary of the date hereof);
(g) to redeem or convert its Equity Interests or make any payment, in which such Distribution is paid; providedeach case, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity connection with proceeds from an issuance of common equity any employee benefit plan or Preferred Equity of arrangement sponsored by the Borrower or any of its Subsidiaries entered into in the Trust and ordinary course of business; and
(iih) repurchase common stock issued by Borrowers may pay any Restricted Payment within sixty (60) days after the Trust in an amount not exceeding date of declaration thereof, if at the limit set forth in §8.3(j)(ii)date of declaration such Restricted Payment would otherwise have been permitted to be made under this Section 7.7, so long as in either case (A) no unless a Specified Default or a Material Event of Default shall have occurred and be continuing on at the date of any time such repurchase Restricted Payment is to be made, or redemption, (B) no Default or Event of Default shall would occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to the making of such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;
(c) In the event that an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; and
(d) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectlyRestricted Payment.
Appears in 2 contracts
Sources: Term Loan and Security Agreement (ARKO Corp.), Term Loan and Security Agreement (GPM Petroleum LP)
Distributions. Neither the Borrower nor the Trust shall make any Distributions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted];
(bi) The Borrower and the Trust shall not make pay any Distribution if to the partners, members or other owners of the Borrower, and REIT shall not pay any Distribution to its partners, members or other owners, during any period of four (4) consecutive calendar quarters to the extent that such Distribution is in excess of would cause the amount which, when added to the aggregate Distributions (less any amount of all other Distributions such Distribution constituting Dividend Reinvestment Proceeds) paid in the same fiscal quarter and the preceding three (3) fiscal quarters would or declared during such period to exceed ninety-five percent (95%) of their respective such Person’s Funds from Operations for the such period; provided that so long as no Default or Event of Default shall be continuing or would arise as a result thereof, an amount not to exceed $7,500,000.00 in any period of four (4) consecutive fiscal quarters ending prior paid to redeem Equity Interests in Borrower or REIT shall not be considered Distributions for the quarter in which such Distribution is paid; provided, however, notwithstanding purpose of the foregoing limit; and provided further that the limitations contained in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)8.7(a) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of shall not preclude the Borrower or the Trust and (ii) repurchase common stock issued by the Trust from making Distributions in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case (A) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant equal to the Tax Indemnity Agreement;
(c) In the event that an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust distributions required under the Code to maintain the REIT Status of the TrustREIT, as evidenced by a certification of the principal financial or accounting officer of the Trust REIT containing calculations in reasonable detail reasonably satisfactory in form and substance to the Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common .
(b) If a Default or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; and, the Borrower shall make no Distributions, and REIT shall not pay any Distribution to its partners, members or other owners, other than Distributions in an amount equal to the minimum distributions required under the Code to maintain the REIT Status of REIT, as evidenced by a certification of the principal financial or accounting officer of REIT containing calculations in detail reasonably satisfactory in form and substance to the Agent.
(dc) Notwithstanding the foregoing, at any time when an Event of Default under §12.1(a) or (b) shall have occurred and occurred, an Event of Default as to Borrower or REIT under §12.1 (g), (h) or (i) shall have occurred, or the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust REIT shall make any Distributions whatsoever, directly or indirectly.
Appears in 2 contracts
Sources: Credit Agreement (Tier Reit Inc), Credit Agreement (Behringer Harvard Reit I Inc)
Distributions. Neither 6.6.1 Other than (w) the making of In Kind Equity Payments, Equity Contribution True-Up Reimbursements and NEG EPC Guaranty Reimbursements in accordance with the proviso to Section 5.1.1(a) hereof, (x) the making of Excess Cash Flow Contributions in accordance with Section 4.2.2 of the Depositary Agreement, (y) the distribution of Divestiture Profits and (z) the making of Other Proceeds Contributions in accordance with Section 4.8.2(d)(ii) of the Depositary Agreement, Borrower nor the Trust shall not directly or indirectly make or declare any distribution (in cash, property or obligation) on, or make any Distributions which would cause it to violate other payment on account of, any interest in Borrower or any other Credit Party (including transfers of the following covenantsany tax benefits), or make any payment on account of subordinated obligations (including Subordinated Affiliate Fees) (a "Restricted Payment"), unless:
(ai) [Intentionally Deleted]no Borrower Event of Default or Borrower Inchoate Default has occurred and is continuing and such Restricted Payment will not result in a Borrower Event of Default or Borrower Inchoate Default;
(bii) The Borrower and the Trust shall not make any Distribution if such Distribution is in excess of the amount which, when added to the amount of all other Distributions paid in such Restricted Payment does not exceed the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) sum of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust and (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case (A) the aggregate of all Attributed Distributable Cash as of the proposed Restricted Payment Date for the Approved Project Companies with respect to which no Project Event of Default shall have or Project Inchoate Default has occurred and be is continuing on the date of any or would result from such repurchase or redemptionRestricted Payment, plus (B) the aggregate of all Attributed Distributable Cash as of any previous Restricted Payment Date for the Approved Project Companies with respect to which no Default or Project Event of Default or Project Inchoate Default has occurred and is continuing or would result from such Restricted Payment that (x) was required to be retained in the Distribution Account on such previous Restricted Payment Date, (y) remains on deposit in the Distribution Account and (z) is not required to be used to prepay Loans as contemplated by the last sentence of Section 4.7.2 of the Depositary Agreement;
(iii) both the Amortization Commencement Date and the Last Completion Date have occurred as of the proposed Restricted Payment Date;
(iv) there are no outstanding Working Capital Loans, Project LC Loans, DSR LC Loans or Reimbursement Obligations under the Letters of Credit as of the proposed Restricted Payment Date;
(v) the Obligations are rated at least Baa3 by ▇▇▇▇▇'▇ and at least BBB- by S&P as of the proposed Restricted Payment Date;
(vi) as of the proposed Restricted Payment Date, the cash and Permitted Investments on deposit in the Debt Service Reserve Account, together with the then current Stated Amount of the DSR Letter of Credit (if any), shall equal or exceed the DSR Required Balance;
(vii) such Restricted Payment is made from Account Funds in the Distribution Account in accordance with Section 4.7.2 of the Depositary Agreement;
(viii) no Borrower Material Adverse Effect has occurred and is continuing or would reasonably be expected to occur as a result of any such repurchase Restricted Payment;
(A) the historical Debt Service Coverage Ratio for the Approved Projects (taken as a whole) for the 12 months immediately preceding the Quarterly Date that is on or redemptionimmediately preceding the proposed Restricted Payment Date (or such shorter period beginning on the Last Completion Date and ending on such Quarterly Date) is equal to or greater than 1.7 to 1.0, and (CB) the projected Debt Service Coverage Ratio for the Approved Projects (taken as a whole) for the 24 months immediately following such Quarterly Date equal to or greater than 1.7 to 1.0;
(x) the Representative Equivalent Availability Factor shall have been equal to or greater than 88% during any one Availability Determination Period occurring prior to the proposed Restricted Payment Date, and Borrower shall have satisfied the following information delivery requirements in connection therewith:
(A) Borrower shall have made available to Administrative Agent, no more than 30 days after each Quarterly Date occurring in such Availability Determination Period, a written calculation of the Representative Equivalent Availability Factor during the quarter ending on such Quarterly Date, together with respect such data and documentation as reasonably requested by Administrative Agent to verify such Representative Equivalent Availability Factor, including sufficient data to verify the duration of a forced or planned derate to the nearest hour (provided that Borrower shall not be required to provide Administrative Agent with an hour-by-hour calculation of any repurchase given derated situation, but rather shall be required to provide Administrative Agent with appropriate trend plots or other suitable alternative which clearly shows the magnitude and time duration of common stock pursuant the derate); and
(B) for any Allowance Hours included in the calculation of such Representative Equivalent Availability Factor, Borrower shall have provided to §8.7(b)(iiAdministrative Agent, at least 5 days prior to the applicable outage (or such shorter period agreed to by Administrative Agent), prior a written outage plan specifying the following: (1) the projected duration of the outage; (2) the work to any such repurchase be performed during the outage; (3) the projected cost to complete the outage; and (4) the projected performance benefit from the work to be performed during the outage;
(xi) Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoingAdministrative Agent, the Borrower may pay a Distribution to its partners of sums received by it pursuant at least five Banking Days prior to the Tax Indemnity Agreement;
(c) In the event that an Event of Default shall have occurred and be continuingproposed Restricted Payment Date, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status as-built A.L.T.A. surveys of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory Site (in form and substance as required in Section 3.2.22) with respect to each Approved Project (or such other documentation reasonably acceptable to Administrative Agent), in form and substance reasonably satisfactory to Administrative Agent and the Title Insurer, certified to Administrative Agent as to completeness and accuracy by a licensed surveyor reasonably satisfactory to Administrative Agent, showing (A) as to such Site, the exact location and dimensions thereof, including the location of all means of access thereto and all Easements relating thereto and showing the perimeter within which all foundations are located; (B) as to such Easements, the exact location and dimensions thereof, including the location of all means of access thereto from such Approved Project, and all improvements or other encroachments in or on such Easements burdening such Approved Project; (C) the location and dimensions of all improvements, fences or encroachments located in or on such Site or such Easements; (D) that the location of such Approved Project does not encroach on or interfere with adjacent property or existing easements or other rights, whether on, above or below ground (or if the location of such Approved Project does encroach on or interfere with adjacent property or existing easements or other rights, such encroachment or interference is reasonably acceptable to Administrative Agent); (E) any gaps, gores, projections or protrusions at the Site; and (F) whether such Site or any portion thereof is located in a special earthquake or flood hazard zone; provided, however, that neither Borrower nor the Trust shall matters described in clauses (B) and (F) may be entitled shown by separate maps, surveys or other manner reasonably satisfactory to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuingAdministrative Agent; and
(dxii) Notwithstanding the foregoingBorrower shall have delivered to Administrative Agent, at any least five Banking Days prior to the proposed Restricted Payment Date, a certificate (which certificate shall demonstrate in reasonable detail compliance with the conditions set forth in clause (ix) above), dated as of the proposed Restricted Payment Date and duly executed by a Responsible Officer of Borrower, certifying to the effect that each of the foregoing conditions shall have been satisfied as of such date; provided, however, that even if not all of the foregoing conditions have been satisfied as of the proposed Restricted Payment Date, Borrower may make distributions for Federal, state or local income tax payments in an amount not to exceed the amount that Borrower, the Approved Intermediate Holding Companies and the Approved Project Companies would be required to pay if such Persons were tax paying entities forming a consolidated group for Federal income tax purposes or a similar consolidated, combined or unitary group for state or local income tax purposes, which amount shall be assumed to equal the product of (A) the net income of such group for Federal, state of local income tax purposes multiplied by (B) the highest marginal Federal, state or local income tax rate at the time when an applicable to "C" corporations, so long as (1) no Borrower Event of Default shall have or Borrower Inchoate Default has occurred and is continuing or would result from such distributions and (2) each of Borrower, the maturity Approved Intermediate Holding Companies and the Approved Project Companies is then treated as a pass-through entity or a Subsidiary of an affiliated group of corporations filing a consolidated, combined or unitary return for Federal, state or local income tax purposes and such Person's income is included in the Obligations has been acceleratedtaxable income of PG&E Corporation or any other entity within the PG&E Corporation affiliate group of corporations.
6.6.2 Notwithstanding anything set forth in Section 6.6.1, neither the Borrower nor the Trust shall not make any Distributions whatsoever, directly Restricted Payments other than on Quarterly Dates (or indirectly.within 10 Banking Days thereafter) in accordance with the terms of Section 4.7.2
Appears in 2 contracts
Sources: Credit Agreement (Pg&e Corp), Credit Agreement (Pacific Gas & Electric Co)
Distributions. Neither the Borrower shall not, nor the Trust shall make it permit any Distributions which would cause it to violate any of the following covenants:
Subsidiary to, (a) [Intentionally Deleted];
repurchase or redeem any class of stock or other Equity Interest other than the repurchases described in clause (c) of the defined term “Permitted Investments”; (b) The declare or pay any cash dividend or make a cash distribution on any class of stock or other Equity Interest, except that a Subsidiary of Borrower and may pay dividends or make distributions to Borrower or a Subsidiary of Borrower; (c) lend money to any employees, officers or directors or guarantee the Trust shall not make payment of any Distribution if such Distribution is loans granted by a third party in excess of the amount which, when added to the amount of all other Distributions paid $1,000,000 in the same fiscal quarter and aggregate; or (d) waive, release or forgive any Indebtedness owed by any employees, officers or directors in excess of $1,000,000 in the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust and (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case (A) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%)aggregate. Notwithstanding the foregoing, and for the Borrower may pay avoidance of doubt, this Section 7.7 shall not prohibit (i) the conversion by holders of (including any cash payment upon conversion), or required payment of any principal or premium on (including, for the avoidance of doubt, in respect of a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;
(c) In the event that an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions repurchase in connection with the repurchase redemption of Permitted Convertible Debt upon satisfaction of a condition related to the stock price of Borrower’s common stock) or required payment of any interest with respect to, any Permitted Convertible Debt in each case, in accordance with the terms of the indenture governing such Permitted Convertible Debt, (ii) the entry into (including the payment of premiums in connection therewith) or any required payment with respect to, or required early unwind or settlement of, any Permitted Convertible Debt, Permitted Bond Hedge Transaction or Permitted Warrant Transaction, in each case, in accordance with the terms of the agreement governing such Permitted Convertible Debt, Permitted Bond Hedge Transaction or Permitted Warrant Transaction, or (iii) the withholding of shares of common stock upon the vesting of restricted stock units and performance stock units issued to the Borrower’s employees under the Borrower’s equity incentive plan upon vesting of such stock units and any related cash payments required to be paid to such employees and or preferred stock any Governmental Authority on account of Taxes related thereto, in each case in the ordinary course of business of the Trust at any time after an Event of Default shall have occurred and be continuing; and
(d) Borrower. Notwithstanding the foregoing, at any time when Borrower may repurchase, exchange or induce the conversion of Permitted Convertible Debt by delivery of shares of Borrower’s common stock and/or a different series of Permitted Convertible Debt and/or by payment of cash (in an Event amount that does not exceed the proceeds received by Borrower from the substantially concurrent issuance of Default shall have occurred and shares of Borrower’s common stock plus the maturity net cash proceeds, if any, received by Borrower pursuant to the related exercise or early unwind or termination of the Obligations has been acceleratedrelated Permitted Bond Hedge Transactions and Permitted Warrant Transactions, neither if any, pursuant to the immediately following proviso); provided that, for the avoidance of doubt, substantially concurrently with, or a commercially reasonable period of time before or after, the related settlement date for the Permitted Convertible Debt that are so repurchased, exchanged or converted, Borrower nor may exercise or unwind or terminate early (whether in cash, shares or any combination thereof) the Trust shall make any Distributions whatsoeverportion of the Permitted Bond Hedge Transactions and Permitted Warrant Transactions, directly if any, corresponding to such Permitted Convertible Debt that are so repurchased, exchanged or indirectlyconverted.
Appears in 2 contracts
Sources: Loan and Security Agreement (Arcus Biosciences, Inc.), Loan and Security Agreement (Arcus Biosciences, Inc.)
Distributions. Neither the Borrower nor the Trust (a) The Issuer shall make any Distributions which would cause it to violate any not, and shall procure that none of the following covenantsits Subsidiaries:
(ai) [Intentionally Deleted]pay any dividend in respect of its shares (other than to the Issuer and any wholly-owned Subsidiary of the Issuer);
(ii) repurchase, redeem or reduce its share capital or other restricted or unrestricted equity with repayment to shareholders, other than in relation to redemption of preference shares (class A) issued by the Issuer provided that such shares are redeemed by way of issuing new ordinary shares or with cash from such issuance of new ordinary shares and that the share capital in the Issuer is not reduced;
(iii) repay any loans granted by its direct or indirect shareholders or pay interest thereon (other than to the Issuer and any wholly-owned Subsidiary of the Issuer);
(iv) make any prepayments or repayments under any long-term debt ranking junior or pari passu with the Bonds (other than in an aggregate maximum amount of SEK 30,000,000);
(v) grant any loans except to Group Companies or Mistral Energi AB provided that Hancap Facade AB owns 49 per cent. of Mistral Energi AB; or
(vi) make any other similar distribution or transfers of value to the Issuer’s, or the Subsidiaries’, direct and indirect shareholders or the Affiliates of such direct and indirect shareholders (other than to the Issuer and any wholly-owned Subsidiary of the Issuer),
(b) The Borrower and Notwithstanding the Trust shall not make any Distribution if such Distribution is in excess of above, the amount whichIssuer shall, when added to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust and (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case (A) provided that no Event of Default is outstanding and that such dividend payment is considered to be prudent pursuant to Chapter 17, Section 3 of the Swedish Companies Act (Sw.
(i) from the First Issue Date until 31 December 2018;
(ii) from 1 December 2019 until the Final Maturity Date, if the Interest Coverage Ratio was greater than 1.5:1 for the Reference Period directly preceding the period on which the dividend shall have occurred and be continuing made, provided that (A) the Interest Coverage Ratio for this purpose shall be calculated on the date of any such repurchase or redemption, same basis as the Maintenance Covenant and (B) no Default or Event of Default shall occur as the Interest Coverage Ratio for the next Reference Period will be greater than 1.5:1 calculated on a result of pro forma basis, provided that, any such repurchase or redemption, and (C) dividends declared with respect to any repurchase of common stock pursuant preference shares held by ▇▇▇ ▇▇▇▇▇▇▇▇ shall not be paid in cash to §8.7(b)(ii), prior Per ▇▇▇▇▇▇▇▇ until after the Final Maturity Date and such claim shall be subordinated to any such repurchase Borrower shall the Bonds until after the Bonds have delivered to Agent pro forma evidence reasonably satisfactory to Agent that been redeemed in full (unless the ratio of Consolidated Total Liabilities Net Interest Bearing Debt to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding EBITDA was below 4.50:1 in accordance with the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant most recent Compliance Certificate delivered to the Tax Indemnity Agreement;
(c) In the event that an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; and
(d) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectlyTrustee).
Appears in 2 contracts
Sources: Terms and Conditions, Amendment and Restatement Agreement
Distributions. Neither the Borrower nor the Trust shall make any Distributions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted];
(b) The Parent Borrower and the Trust shall not make pay any Distribution to the partners, members or other owners of Parent Borrower, and REIT shall not pay any Distribution to its shareholders, if such Distribution is in excess of the amount which, which (i) when added to the amount of all other Distributions paid in the same fiscal calendar quarter and (A) the preceding calendar quarters from the date of this Agreement or (B) the preceding three (3) fiscal calendar quarters (whichever is less), would exceed ninety-five percent (95%) of their respective such Person’s Funds from Operations for such period; provided that (x) the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing limitations contained in this §8.7(b)8.7(a) shall not preclude the Parent Borrower from making Distributions each year to its owners, Borrower and pro rata in accordance with percentage interests, such that the Trust may, subject amount received by REIT is sufficient to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) cover (i) redeem existing Preferred Equity with proceeds from an issuance the liability of common equity or Preferred Equity of the Borrower or the Trust and REIT for Taxes plus (ii) repurchase common stock issued by the Trust in an amount not exceeding equal to the limit set forth greater of: (1) the amount estimated by REIT in §8.3(j)(ii), so long as in either case (A) no Event of Default shall have occurred and good faith after reasonable diligence to be continuing on the date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) necessary to permit REIT to distribute to its shareholders with respect to any repurchase calendar year (whether made during such year or after the end thereof) 100% of common stock the “real estate investment trust taxable income” of REIT within the meaning of Section 857(b)(2) of the Code, determined without regard to deductions for dividends paid and the exclusions set forth in Sections 857(b)(2)(C), (D), (E) and (F) of the Code but including therein all net capital gains and net recognized built-in gains within the meaning of Treasury Regulations Section 1.337(d)-6 (whether or not such gains might otherwise be excluded or excludable therefrom); or (2) the amount that is estimated by REIT in good faith after reasonable diligence to be necessary either to maintain the REIT Status of REIT (if REIT exists) or to enable REIT to avoid the incurrence of any tax for any calendar year that could be avoided by reason of a distribution by REIT to its shareholders, with such distributions to be made as and when determined by REIT, whether during or after the end of the relevant calendar year; and (y) REIT shall be allowed to pay Distributions of the amount received pursuant to this §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase8.7(a) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;shareholders.
(cb) In the event that an Event of Default shall have occurred and be continuing, neither the (i) Parent Borrower nor the Trust shall make no Distributions, and REIT shall not pay any Distribution to its shareholders, other than, if REIT exists and has elected REIT Status, Distributions other than the minimum Distributions by the Borrower pro rata in accordance with percentage interests to the Trust and owners of Parent Borrower such that REIT receives an amount that is estimated by the Trust required under the Code REIT in good faith after reasonable diligence to be necessary either to maintain the REIT Status of REIT under the TrustCode for any calendar year, or to enable REIT to avoid the payment of any tax for any calendar year that could be avoided by reason of a distribution by REIT to its shareholders, with such distributions to be made as evidenced and when determined by a certification REIT, whether during or after the end of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form relevant tax year and substance to Agent; provided, however, that neither Borrower nor the Trust REIT shall be entitled allowed to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; andsuch amounts to its shareholders.
(dc) Notwithstanding the foregoing, at any time when an Event of Default under §12.1(a), (b), (h), (i) or (j) shall have occurred and or the maturity of the Obligations has been accelerated, neither the Parent Borrower nor the Trust shall not, and shall not permit REIT to, make any Distributions whatsoever, directly or indirectly.
Appears in 2 contracts
Sources: Credit Agreement (CoreSite Realty Corp), Credit Agreement (CoreSite Realty Corp)
Distributions. Neither a. Following receipt by the Borrower nor the Trust Down REIT Sub of written notice (which notice shall make any Distributions which would cause it to violate any specifically reference this Section 5 of the following covenants:
this Agreement) from Lender that a Default has occurred and is continuing (a) [Intentionally Deleted];
(b) The Borrower and the Trust shall not make any Distribution if such Distribution is in excess of the amount which, when added to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) a “Default Notice”): (i) redeem existing Preferred Equity with proceeds upon the written instruction of Lender and until instructions to the contrary are received from an issuance of common equity or Preferred Equity Lender, the Down REIT Sub shall remit to Lender all cash distributions otherwise payable to Pledgor in respect of the Borrower or Pledged Units, and HCPI shall remit to Lender all cash dividends otherwise payable to Pledgor in respect of the Trust Pledged Shares, of any nature, and (ii) repurchase common stock issued upon the written instruction of Lender and until instructions to the contrary are received from Lender, all rights of Pledgor to exercise the voting or other consensual rights that Pledgor would otherwise be entitled to exercise in respect of the Collateral shall cease, and all such rights (and any other rights Pledgor may have in respect of the Collateral) shall thereupon become vested in Lender, which shall have the sole right to exercise such rights, until further notice from Lender. With respect to cash distributions payable during such time as no event of Default is occurring, Pledgor hereby directs the Down REIT Sub and/or HCPI, as the case may be, and the Down REIT Sub and/or HCPI, as the case may be, agrees to deposit any and all such dividends and distributions in the following account: Western National Trust Company Custody Account No. ▇▇▇▇▇▇▇. Any amounts paid to the Lender or its designee as contemplated by the Trust terms of the foregoing shall be treated as amounts paid or distributed to Pledgor for all purposes of the LLC Agreement, or other agreement pursuant to which the payment or distribution is made or is required to be made and shall be deemed to satisfy the obligations of the Down REIT Sub or HCPI to make such payment thereunder. Pledgor hereby agrees that neither the Down REIT Sub nor HCPI shall be deemed to be in an amount not exceeding breach of its obligations under, or in violation of the limit set forth provisions of, any such agreement by virtue of having made such payments in §8.3(j)(ii), so long as in either case (A) no Event of Default shall have occurred the foregoing manner.
b. From and be continuing on after the date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemptionthis Agreement, and whether or not a Default has occurred and is continuing, if Pledgor shall become entitled to receive, in connection with any of the Collateral, any:
(Ci) with respect LLC Units or stock certificates (including, without limitation, stock certificates relating to any repurchase of common stock pursuant to §8.7(b)(iithe Pledged Shares), prior to including, without limitation, any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio certificates (1) issued in respect of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received additional properties contributed by it pursuant Pledgor to the Tax Indemnity AgreementDown REIT Sub, or (2) representing a dividend or distribution or issued in connection with any increase or reduction of capital, reclassification, merger, consolidation, sale of assets, combination of shares or partnership units, stock or partnership units split, spin-off, or split-off;
(cii) In Options, warrants, rights or other securities or instruments, whether as an addition to, or in substitution or in exchange for, any of the event that an Event of Default shall have occurred and be continuingCollateral, neither the Borrower nor the Trust shall make any Distributions or otherwise;
(iii) Dividends or distributions payable in property other than cash, including securities issued by other than the minimum Distributions issuer of any of the Collateral; or
(iv) Any sums paid in redemption of any of the Collateral, then HCPI shall deliver the same to Lender, to be held by Lender as part of the Collateral. Any amounts paid to the Lender or its designee as contemplated by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status terms of the Trust, foregoing shall be treated as evidenced by a certification amounts paid or distributed to Pledgor for all purposes of the principal financial LLC Agreement, or accounting officer other agreement pursuant to which the payment or distribution is made or is required to be made and shall be deemed to satisfy the obligations of the Trust containing calculations in reasonable detail satisfactory in form and substance Down REIT Sub or HCPI to Agent; provided, however, make such payment thereunder. Pledgor hereby agrees that neither Borrower the Down REIT Sub nor the Trust HCPI shall be entitled deemed to make any Distributions be in connection with the repurchase breach of common its obligations under, or preferred stock in violation of the Trust at provisions of, any time after an Event such agreement by virtue of Default shall have occurred and be continuing; and
(d) Notwithstanding having made such payments in the foregoing, at any time when an Event of Default shall have occurred and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectlyforegoing manner.
Appears in 2 contracts
Sources: Acknowledgment and Consent (Health Care Property Investors Inc), Acknowledgment and Consent (Health Care Property Investors Inc)
Distributions. Neither the Borrower nor the Trust shall make Declare or make, or permit any Distributions which would cause it Guarantor to violate declare or make, any of the following covenantsDistributions, except for:
(ai) [Intentionally Deleted]Distributions by any Person to a Borrower;
(bii) The Borrower and the Trust shall not make any Distribution if such Distribution is in excess of the amount which, when added to the amount of all other Distributions paid solely in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity Securities of the Borrower or Guarantor making the Trust Distribution;
(iii) Distributions by Century which would be permitted to be made by Century pursuant to (a) Sections 4.07(b)(vi) and 4.07(b)(x) of the 2013 Indenture as in effect on the Second Restatement Effective Date or (iib) repurchase common stock issued by any restricted payment covenant contained in the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), Permitted Refinancing Indenture Documents so long as such restricted payment covenants are reasonably acceptable to Agent and Majority Lenders;
(iv) Distributions not included in either case paragraphs (Ai) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemptionthrough (iii) above; provided that, (Bi) no Default or Event of Default shall occur as a result of any such repurchase has occurred and is continuing or redemption, would be caused thereby and (Cii) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchaseDistribution, either (A) Availability shall be equal to or greater than the greater of (I) an amount equal to 17.5% of the Line Cap and (II) $20,000,000, or (B)(I) Availability shall be equal to or greater than the greater of (y) an amount equal to 12.5% of the Line Cap and (z) $15,000,000, and (II) Borrowers and Guarantors shall have a pro forma Fixed Charge Coverage Ratio of not less than fifty percent (50%). Notwithstanding 1.1 to 1.0 as of the foregoinglast day of the immediately preceding four fiscal quarters for which financial statements have been filed with the SEC, the Borrower may pay taken as a Distribution single period or, if not so filed, then for which such financial statements were required to its partners of sums received by it pursuant to the Tax Indemnity Agreement;
(c) In the event that an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required been delivered under the Code to maintain the REIT Status of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuingAgreement; and
(dv) Notwithstanding the foregoingpayment of Distributions within 60 days after the date of declaration thereof, at any time when an so long as no Default or Event of Default shall have occurred and exists or would be caused thereby, provided that the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectlydeclaration thereof was permitted under this subsection 8.2.5.
Appears in 2 contracts
Sources: Loan and Security Agreement (Century Aluminum Co), Loan and Security Agreement (Century Aluminum Co)
Distributions. Neither the Borrower nor the Trust shall make any Distributions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted];In the event that a High Leverage Condition exists (or would arise as a result of a Distribution), neither Borrower nor the Trust shall make any Distribution if such Distribution is in excess of the amount which, when added to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed the lesser of (i) an amount equivalent to 0.9252 cents per share of common stock of the Trust or (ii) ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid.
(b) The In the event that a Target Leverage Condition exists, the Borrower and the Trust shall not make any Distribution if such Distribution is in excess of the amount which, when added to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust and (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case (Ai) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, and (Bii) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;.
(c) In the event that an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; and.
(d) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred and be continuing and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectly.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Ramco Gershenson Properties Trust), Revolving Credit Agreement (Ramco Gershenson Properties Trust)
Distributions. Neither If the Borrower nor Company, at any time while the Trust shall make any Distributions which would cause it Warrants are outstanding and unexpired, pays to violate any all or substantially all of the following covenants:
holders of the Common Stock a dividend or makes a distribution in cash, securities or other assets on account of such shares of Common Stock other than as described in subsection 4(a) above (a) [Intentionally Deleted];
(b) The Borrower and any such non-excluded event being referred to herein as a “Distribution”), then, in each such case, the Trust Holder shall not make any Distribution if be entitled to participate in such Distribution is in excess of the amount which, when added to the amount same extent that the Holder would have participated therein if the Holder had held the number of all other Distributions paid in shares of Common Stock acquirable upon complete exercise of its Warrants (without regard to any limitations or restrictions on exercise of such Warrants, including without limitation the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust mayMaximum Percentage, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)proviso below) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust and (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case (A) no Event of Default shall have occurred and be continuing on immediately before the date of any on which a record is taken for such repurchase dividend or redemptiondistribution, (B) or, if no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoingrecord is taken, the Borrower may pay a Distribution date as of which the record holders of shares of Common Stock are to its partners of sums received by it pursuant to be determined for the Tax Indemnity Agreement;
participation in such dividend or distribution (c) In the event that an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor to the Trust extent that the Holder’s right to participate in any such dividend or distribution would result in the Holder and the other Attribution Parties exceeding the Maximum Percentage, then the Holder shall not be entitled to make participate in such dividend or distribution in excess of the Maximum Percentage (and shall not be entitled to beneficial ownership of such shares of Common Stock as a result of such dividend or distribution (and beneficial ownership) to the extent of any such excess) and the portion of such Distribution shall be held in abeyance for the benefit of the Holder until such time or times as its right thereto would not result in the Holder and the other Attribution Parties exceeding the Maximum Percentage, at which time or times the Holder shall be granted such Distribution (and any Distributions declared or made on such initial Distribution or on any subsequent Distribution held similarly in connection with abeyance) to the repurchase same extent as if there had been no such limitation, provided that, for the avoidance of common doubt, in no event shall the Company be required to hold such Distribution(s) in abeyance at or preferred stock of after at 5:00 p.m., New York City time, on the Trust at any time after an Event of Default shall have occurred and be continuing; and
(d) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectlyExpiration Date).
Appears in 2 contracts
Sources: Pre Funded Warrant Agreement (IonQ, Inc.), Pre Funded Warrant Agreement (IonQ, Inc.)
Distributions. Neither the Borrower nor the Trust shall EPR will not make any Distributions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted];
(b) The Borrower and the Trust shall EPR will not make any Distribution if such Distribution is Distributions in excess violation of §9.8 hereof, except as otherwise provided below. Notwithstanding the amount whichforegoing, when added to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust EPR may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) make Distributions (iwhich shall not be included in the ninety percent (90%) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust and (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit FFO test set forth in §8.3(j)(ii), 9.8 hereof) in order to enable EPR to repurchase common shares of EPR and the right to redeem any then outstanding preferred shares in accordance with their terms so long as (i) any such repurchase or redemption is made in either case EPR’s prudent business judgment, (Aii) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, redemption and (Biii) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;
(cb) In the event that an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust EPR shall not make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status of the TrustEPR, as evidenced by a certification of the principal chief financial or accounting officer of the Trust EPR containing calculations in reasonable detail reasonably satisfactory in form and substance to the Agent; provided, however, that neither Borrower nor the Trust EPR shall not be entitled to make any Distributions Distribution in connection with the repurchase of common or preferred stock of the Trust Borrower at any time after an Event of Default shall have occurred and be continuing; and
(dc) Notwithstanding In the foregoing, at any time when event that an Event of Default shall have occurred and be continuing and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust EPR shall not make any Distributions whatsoever, either directly or indirectly.
Appears in 2 contracts
Sources: Master Credit Agreement (Entertainment Properties Trust), Master Credit Agreement (Entertainment Properties Trust)
Distributions. Neither the Borrower nor the Trust shall Declare or make any Distributions which would cause it to violate any of the following covenantsDistributions, except:
(i) provided that no Event of Default of the type described in clause (a), (c) [Intentionally Deleted](solely to the extent such Event of Default under clause (c) results from a failure to perform any covenant contained in Section 10.3), or (k) of Section 11.1 exists immediately prior to such Distributions:
(A) for so long as Parent is a pass through (including a partnership) or disregarded entity for United States Federal income tax purposes, Boise Cascade and Parent may make Permitted Tax Distributions;
(bB) The Borrower and the Trust shall not Boise Cascade may make any Distribution if such Distribution is in excess Distributions to Parent that are used solely to pay franchise taxes of the amount whichParent; and
(C) Boise Cascade may make Distributions to Parent that are used solely to pay operating expenses and administrative, when added legal, accounting and corporate reporting expenses of Parent incurred in the ordinary course of business of Parent in the exercise of its reasonable business judgment and in good faith; and other fees required to maintain the corporate existence of Parent, of up to $2,000,000 per fiscal year (or $5,000,000 per fiscal year following the completion of an initial public offering by parent of its Equity Interests to the amount public by means of all other Distributions paid in an offering registered with the same fiscal quarter Securities and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(bExchange Commission), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust and ;
(ii) repurchase common stock issued by provided that no Default or Event of Default exists immediately prior to or would result directly or indirectly from such Distributions, the Trust Obligors may make Upstream Payments;
(iii) Distributions made on the Closing Date in an amount not exceeding connection with the limit set forth Paper Group Disposition in §8.3(j)(ii), so long accordance with the Contribution Agreement (as in either case effect on the Closing Date);
(iv) any Distribution of any Equity Interest of Boise, Inc. or Debt of Boise, Inc. owing to any Obligor or the proceeds thereof;
(v) provided that (x) no Default or Event of Default exists immediately prior to or would result directly or indirectly from such Distributions, and (y) Availability immediately after giving effect to such Distributions and Average Availability for the most recently ended Fiscal Quarter prior to such Distribution but giving pro forma effect to such Distributions, in each case, is not less than the Restricted Payment Availability Threshold, Boise Cascade may make the following Distributions to the extent otherwise permitted under this Agreement:
(A) following an IPO, Boise Cascade may pay any Distributions within 60 days after the date of declaration thereof if (1) at the date of declaration such Distribution would have complied with this Section 10.2.4(a), (2) at the time of such Distribution no other Default or Event of Default shall have occurred and be continuing (or result therefrom), and (3) either Boise Cascade has public shareholders on the date of declaration of such Distributions or the proceeds of such Distribution are to be and are in fact used by either Parent or any Person that directly or indirectly owns the majority of the Equity Interests of Parent to pay previously declared Distributions to public shareholders;
(B) Distributions to Parent that are used solely for the purchase, redemption or other acquisition of Equity Interests of Parent or any Person that directly or indirectly owns the majority of the Equity Interests of Parent from any of their employees, former employees, officers, former officers, directors, former directors, consultants or former consultants (or permitted transferees of such employees, former employees, officers, former officers, directors, former directors, consultants or former consultants), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) approved by the Board of Directors of Parent or any Person that directly or indirectly owns the majority of the Equity Interests of Parent, as the case may be), under which such individuals purchase or sell or are granted the option to purchase or sell, such Equity Interests; provided, however, that the aggregate amount of such Distributions (excluding amounts representing cancellation of Debt) shall not exceed $5,000,000 in any calendar year; and provided, further, that (x)(i) Boise Cascade may make in any calendar year, in addition to the amounts permitted for such calendar year, the amount of Distributions which would otherwise be permitted to be made pursuant to this clause (B) in any subsequent two years that end prior to the Revolver Maturity Date, up to a maximum, together with amount carried forward in accordance with clause (x)(ii), of $15,000,000 in any calendar year (and the amounts available in such subsequent years shall be correspondingly reduced) and (ii) Boise Cascade may carry forward and make in a subsequent calendar year, in addition to the amounts permitted for such calendar year, the amount of such Distributions permitted to have been made but not made in any preceding calendar year up to a maximum, together with amounts for subsequent years described in clause (x)(i), of $15,000,000 in any calendar year pursuant to this clause (B) and that such amount in any calendar year may be increased by (1) the cash proceeds of key man life insurance policies received by any Obligors after the Closing Date and (2) the aggregate cash proceeds received by Boise Cascade from Parent during that calendar year from any re-issuance of Equity Interests by Parent to employees, officers, directors or consultants of Parent, less any amount previously applied to the payment of Distributions pursuant to this clause (B); and provided, further, that Boise Cascade may make Distributions to Parent to purchase, redeem, or otherwise acquire Equity Interests of Parent or any Person that directly or indirectly owns the majority of the Equity Interests of Parent from any of their employees, former employees, officers, former officers, directors, former directors, consultants or former consultants (or permitted transferees of such employees, former employees, officers, former officers, directors, former directors, consultants or former consultants), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) approved by the Board of Directors of Parent or any Person that directly or indirectly owns the majority of the Equity Interests of Parent, under which such individuals purchase or sell or are granted the option to purchase or sell, such Equity Interests, on or before April 15, 2008, in an aggregate amount not to exceed $18,300,000, and such purchase, redemption or other acquisition shall be excluded from the calculation of purchases, redemptions or other acquisitions otherwise permitted to be made under this clause (B);
(C) repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options; and
(D) cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of Boise Cascade or in connection with a merger, consolidation, amalgamation or other combination involving Boise Cascade; provided, however, that any such repurchase or redemption, cash payment shall not be for the purpose of evading the limitation of this Section 10.2.4 (Bas determined in good faith by the Boards of Directors of Boise Cascade); and
(vi) provided that (x) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), exists immediately prior to any or would result directly or indirectly from such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value Distributions, (y) Availability immediately after giving effect to such repurchase) shall be Distributions and Average Availability for the most recently ended Fiscal Quarter after giving pro forma effect to such Distributions, in each case, is not less than fifty percent the Restricted Payment Availability Threshold, and (50%). Notwithstanding z) the foregoingFixed Charge Coverage Ratio as of the last day of the immediately preceding month after giving pro forma effect to such Distributions is at least 1.0 to 1.0, the Borrower Boise Cascade may pay a Distribution to its partners of sums received by it pursuant make any other Distributions to the Tax Indemnity extent otherwise permitted under this Agreement;
(c) In the event that an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; and
(d) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectly.
Appears in 2 contracts
Sources: Loan and Security Agreement (Boise Cascade Holdings, L.L.C.), Loan and Security Agreement (Boise Cascade Holdings, L.L.C.)
Distributions. Neither None of the Borrower Borrowers nor the Trust shall Parent will make any Distributions which would cause it to violate any of the following covenants:
other than (a) [Intentionally Deleted];
(b) The Borrower and Distributions by the Trust shall Borrowers to the Parent in an aggregate amount for all Borrowers not make to exceed in any Distribution if such Distribution is in excess one fiscal year of the amount whichBorrowers the greater of (i) the sum of (A) the scheduled payments of principal and interest under the Senior Notes for such fiscal year plus (B) the Borrowers' allocable share of income taxes, when added franchise taxes, professional fees and other operating expenses for such year (it being understood that, with respect to the amount of all other Distributions paid in each Borrower's allocable share of income taxes, such amount shall not exceed the same fiscal quarter amount of income taxes for which such Borrower would have been liable had the accounts of such Borrower not been consolidated with the accounts of the Parent) and the preceding three (3ii) fiscal quarters would exceed ninetyan amount equal to twenty-five percent (9525%) of their respective Funds from Operations the net income of the Borrowers for such fiscal year; (b) Distributions by the four (4) consecutive fiscal quarters ending prior Borrowers to the quarter Parent in which an aggregate amount for all such Distribution is paidDistributions made after the Closing Date not to exceed $25,000,000; providedand (c) Distributions by the Parent in an aggregate amount for all such Distributions made after the Closing Date not to exceed $25,000,000, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity consisting of the Borrower purchase or the Trust and (ii) repurchase common stock issued redemption by the Trust Parent of the capital stock of the Parent; provided that no Distribution (other than Distributions in an amount not exceeding the limit set forth in §8.3(j)(ii)respect of taxes) shall be made if, so long as in either case (A) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding Distribution or such payment of principal or interest under the foregoingSenior Notes, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;
(c) In the event that an Default or Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; and
(d) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectly.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Trico Marine Services Inc), Revolving Credit Agreement (Trico Marine Services Inc)
Distributions. Neither the Borrower nor the Trust shall make any Distributions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted];
(b) The Borrower and the Trust Net Distributable Cash shall not make any Distribution if such Distribution is in excess of the amount which, when added be distributed to the amount Partners in accordance with the provisions of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust and (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case (A) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;
(c) In the event that an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to AgentSection 6.1; provided, however, that neither Borrower nor the Trust Partnership may, in the sole discretion of the General Partner, (i) reinvest Returned Capital in Investments during the Investment Period, or in Follow-on Investments and Committed Investments thereafter, or (ii) distribute Returned Capital to the Partners. If there is a change in the Percentage Interests of any of the Partners during any period in which Net Distributable Cash has been received by the Partnership, distributions shall be entitled made to make any Distributions the Partners in connection with a manner which takes into account the repurchase of common or preferred stock varying Percentage Interests of the Trust Partners during such period, as determined by the General Partner in its sole discretion.
(b) Distributions of Net Distributable Cash shall be made at any time after such times as determined by the General Partner in its reasonable discretion not less than quarterly; distributions of Net Distributable Cash shall be made to the Partners with respect to each Investment in the following manner:
(i) First, 100% to the Partners, pro rata based upon their respective Percentage Interests, until each Partner has received an Event of Default amount equal to such Partner's Invested Capital multiplied by the Preferred Rate (the "Preferred Return"), which Preferred Return shall have occurred and be continuingcalculated from the date(s) that such Partner made such Capital Contributions until the date such amounts are distributed to such Partner; and
(ii) Second, 100% to the Partners, pro rata based upon their respective Percentage Interests, until each Partner has received an amount equal to such Partner's unreturned Contribution Account Balance; and
(iii) Third, 100% of any remaining amounts will be allocated (A) 56% to TRST and (B) 44% to Parkway.
(c) Pending distribution, funds held by the Partnership which are required to be distributed pursuant to Section 6.1 hereof shall be invested in Interim Investments, to the extent practicable, at the sole discretion of the General Partner.
(d) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred and the maturity Any receipts or other revenues of the Obligations has Partnership (excluding Capital Contributions) not included in Net Distributable Cash, including, by means of example and not limitation, the net revenues from Interim Investments, may, in the General Partner's discretion,
(i) be applied, in the General Partner's discretion, to pay the Partnership's working capital needs, pay Operating Expenses, Organizational Expenses or Asset Management Fees, establish Reserves, or repay Indebtedness; or
(ii) be distributed to the Partners in accordance with Section 6.1(b) hereof.
(e) The General Partner will use best efforts to ensure that all distributions made under this Agreement are in cash rather than in-kind; provided, however, that under no circumstances shall the Partnership make an in-kind distribution to TRST. In the event that the Partnership intends to make a distribution in-kind to its Partners and is un-able to comply with the restriction in the previous sentence, the General Partner will provide written notice to TRST at least thirty (30) prior to the date of the in-kind distribution and upon the election of TRST prior to the date of such proposed in-kind distribution, the General Partner shall dispose of on behalf of TRST, all or a portion of such asset that otherwise would have been accelerateddistributed to TRST and to pay TRST instead the net cash proceeds from such disposition.
(f) Notwithstanding any provision of this Agreement to the contrary, neither the Borrower Partnership, nor the Trust General Partner on behalf of the Partnership, shall make any Distributions whatsoever, directly distribution to any Partner if such distribution would violate the Act or indirectlyother applicable law.
Appears in 2 contracts
Sources: Limited Partnership Agreement, Limited Partnership Agreement (Parkway Properties Inc)
Distributions. Neither the Borrower nor the Trust shall make any Distributions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted];Subject to the provisions of the Delaware Act and the provisions of this Article IV, the Managing Member, in its sole discretion, may authorize Distributions to the Members, which Distributions shall be made pro rata in accordance with the Members’ respective Percentage Interests as of the record date of the Distribution designated by the Managing Member.
(b) The Borrower Each Distribution pursuant to this Section 4.1 shall be made to the Persons shown on the Company’s books and the Trust shall not make any Distribution if such Distribution is in excess records as Members as of the amount whichrecord date of such Distribution.
(c) Notwithstanding the foregoing provisions of Section 4.1(a), when added all amounts otherwise distributable pursuant to this Agreement (other than Section 4.1(d)) with respect to each unvested Unit shall be retained by the Company (collectively, the “Retained Amounts”). Prior to making any distribution pursuant to Section 4.1(a), the Company will distribute the Retained Amounts with respect to each previously unvested Unit that has become a vested Unit to the amount Holder of all such Unit. Retained Amounts in respect of unvested Units that are forfeited prior to vesting shall be forfeited by the Holder of such Unit, and no distribution of such Retained Amounts in respect of such forfeited Units shall be made.
(d) Notwithstanding any other Distributions paid provision of this Agreement to the contrary, to the fullest extent permitted by applicable Law and consistent with the Company’s obligations to its creditors as reasonably determined by the Managing Member, the Managing Member shall, to the extent of Available Cash, cause to be distributed to the Members with respect to their Common Units in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of proportion to their respective Funds from Operations for Percentage Interests on an annual basis an aggregate amount that equals the four Tax Distribution Amount (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paideach, a “Tax Distribution”); provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject that any portion of a Tax Distribution made with respect to the limitations set forth amounts described in this Agreement clause (including specifically, but without limitation, those contained in §8.7(b)b) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or definition of Tax Distribution Amount may be distributed reasonably promptly before a payment is required to be made pursuant to the Trust and (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii)Tax Receivable Agreement. If, so long as in either case (A) no Event of Default shall have occurred and be continuing on the date of any a Tax Distribution, there are insufficient funds on hand to distribute to the Members the full amount of the Tax Distributions to which such repurchase or redemptionMembers are otherwise entitled, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock distributions pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchasethis Section 4.1(d) shall be less than fifty percent (50%)made to the Members to the extent of available funds in accordance with their Percentage Interests, and the Company shall make future Tax Distributions as soon as funds become available sufficient to pay the remaining portion of the Tax Distributions to which such Members are otherwise entitled. Notwithstanding the foregoing, the Borrower Managing Member may pay cause distributions under this Section 4.1(d) to be made on a quarterly basis based upon estimates of the Tax Distribution to its partners of sums received by it pursuant Amount (but only to the extent of the amounts described in clause (a) of the definition thereof), and reconcile such quarterly determinations with its determination of the total amount of Tax Indemnity Agreement;
Distributions to be made for a Fiscal Year as soon as reasonably practicable after the end of such Fiscal Year (c) In the or as soon as reasonably practicable after any event that an Event subsequently adjusts the taxable income of Default shall have occurred and be continuingsuch Fiscal Year), neither in each case, in the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in Managing Member’s reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; and
(d) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectlydiscretion.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Bakkt Holdings, Inc.), Merger Agreement (VPC Impact Acquisition Holdings)
Distributions. Neither the Borrower nor the Trust No Loan Party shall, and shall make not allow any Distributions which would cause it to violate any of the following covenants:
Subsidiary to, (a) [Intentionally Deleted];
repurchase or redeem any class of shares, stock or other Equity Interest other than (bi) The Borrower and the Trust shall not make any Distribution if such Distribution is pursuant to employee, director or consultant repurchase plans or other similar agreements in excess of the amount whichaccordance with applicable law, when added to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding in each case, the foregoing in this §8.7(b)aggregate repurchase or redemption proceeds do not exceed the original consideration received by the relevant Loan Party or Subsidiary for such shares, Borrower and the Trust maystock or Equity Interest, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust and (ii) repurchases of such shares, stock or Equity Interest deemed to occur upon exercise of stock options or warrants if such repurchased shares, stock or Equity Interest represents a portion of the exercise price of such options or warrants, (iii) repurchases of such shares, stock or Equity Interest deemed to occur upon the withholding of a portion of such shares, stock or Equity Interest granted or awarded to a current or former officer, director, employee or consultant to pay for the taxes payable by such Person upon such grant or award (or upon vesting thereof) or (iv) purchases of its Common Shares or equity derivatives with respect to its Common Shares (including capped call, call spread, accelerated stock repurchase common and forward purchase transactions) using the proceeds from the simultaneous issuance of convertible notes pursuant to a Permitted Convertible Debt Financing, (and any payments under or pursuant to, or settlements of, any such accelerated or forward stock issued by repurchase arrangements, call spreads, capped calls or other derivatives entered into simultaneously at the Trust time of and in an amount connection with a Permitted Convertible Debt Financing); provided that the aggregate net purchase price of such transactions in the aggregate shall not exceeding exceed thirty percent (30.00%) of the limit set forth in §8.3(j)(ii)net proceeds from the Permitted Convertible Debt Financing; or (b) declare or pay any cash dividend or make a cash distribution on any class of shares, so long as in either case stock or other Equity Interest, except that a Subsidiary may pay dividends or make distributions to any other Loan Party or if a Loan Party is not its direct parent entity, to its parent entity; or (Ac) no Event of Default shall have occurred and be continuing on lend money to any employees, officers or directors or guarantee the date payment of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;
(c) In the event that an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status of the Trust, as evidenced loans granted by a certification third party in excess of Five Hundred Thousand Dollars ($500,000) in the principal financial aggregate; or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; and
(d) Notwithstanding waive, release or forgive any Indebtedness (other than Indebtedness represented by a Permitted Investment made pursuant to clause (viii) thereof) owed by any employees, officers or directors in excess of Five Hundred Thousand Dollars ($500,000) in the foregoing, at aggregate in any time when an Event of Default shall have occurred and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectlyfiscal year.
Appears in 2 contracts
Sources: Loan and Security Agreement, Loan and Security Agreement (Myovant Sciences Ltd.)
Distributions. Neither the Borrower nor the Trust shall make any Distributions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted];
(b) The Borrower and the Trust shall not make Make any Distribution if such Distribution unless (i) the Borrower is in excess of compliance with the amount which, when added to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations covenants set forth in this Agreement (including specificallySections 6.9, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust 6.10 and 6.11 hereof on a pro forma basis after giving effect thereto and (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case (A) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a then exists or would result therefrom.
(b) Notwithstanding Section 6.12(a) above, this Section 6.12 does not prohibit:
(i) retirements, redemptions, purchases, or other acquisitions for value of any such repurchase capital stock, warrants or redemptionrights to acquire shares of capital stock or other equity securities (x) from or with employees, and officers or directors or former employees, officer or directors (Cor their estates or beneficiaries under their estates) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to and its partners of sums received by it pursuant to the Tax Indemnity Agreement;
(c) In the event that an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions Restricted Subsidiaries in connection with the Borrower’s equity incentive plans or other benefit plans or upon death, disability, retirement, severance or termination or pursuant to any agreement under which the capital stock or other securities were issued or any employment agreement, (y) in connection with cashless exercises of options, warrants or other rights to acquire capital stock or other equity securities, or (z) in lieu of fractional shares; provided that, the total cash consideration paid by or on behalf of the Borrower and its Restricted Subsidiaries for all such repurchases and exchanges from or with employees (excluding repurchases and exchanges solely to satisfy Tax withholding obligations) does not exceed in the aggregate $5,000,000 in any Fiscal Year;
(ii) the purchase of call options or call spreads by the Borrower or its Restricted Subsidiaries in connection with any convertible securities offering of Subordinated Obligations by the Borrower, together with the repurchase of common shares of capital stock or preferred stock settlement for cash (in whole or in part) as may be required by the terms of such options or spreads;
(iii) a Distribution made (x) to the Borrower or to a Guarantor Subsidiary by any of their respective Subsidiaries or (y) to a wholly-owned Restricted Subsidiary of the Trust at Borrower by any time after an Event of Default shall have occurred and be continuing; andSubsidiary that is not a Loan Party;
(div) Notwithstanding the foregoing, payment of any Distribution within 60 days after the date of declaration thereof so long as such Distribution was permitted by the provisions of this Agreement at the time of its declaration; or
(v) the making of cash payments in connection with any time when an Event conversion of Default shall have occurred and the maturity convertible securities of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectlyBorrower.
Appears in 2 contracts
Sources: Revolving Credit Agreement (WCI Communities, Inc.), Revolving Credit Agreement (WCI Communities, Inc.)
Distributions. Neither the Borrower nor the Trust MakeBorrower shall not make any Distributions which would cause it Restricted Payment to violate any of the following covenantsGeneral Partner except that Borrower may declare and make Restricted Payments to General Partner; provided, that:
(a) [Intentionally Deleted]if a Default or Event of Default resulting from noncompliance with any of the provisions of Article VIII exists, Borrower shall not, and shall not permit any Subsidiary to, declare or make any Restricted Payments to General Partner other than:
(i) the declaration and making of cash distributions to General Partner and other holders of partnership interests in Borrower with respect to any fiscal year to the extent necessary for General Partner to distribute an aggregate amount not to exceed the minimum amount necessary for General Partner to avoid (x) an Event of Default under Section 9.01(8)(ii) and (y) income or excise tax under the Code; and
(ii) Borrower may make repurchases, retirement or other acquisition of Equity Interests in General Partner, Borrower or any Subsidiary pursuant to any employee or director/trustee equity or stock option plan entered into in the ordinary course of business;
(b) The if a Default or Event of Default, in each case, specified in Section 9.01(1) or Section 9.01(5) shall exist, or if as a result of the occurrence of any other Event of Default any of the Obligations have been accelerated pursuant to Section 9.02, Borrower shall not, and the Trust shall not permit any Subsidiary to, make any Distribution if Restricted Payments to any Person other than to Borrower or any Subsidiary (except that, in the case of a Subsidiary that is not a Wholly Owned Subsidiary, distributions are made only to holders of Equity Interests in such Distribution is in excess Subsidiary ratably according to the holders’ respective holdings of the amount which, when added to the amount type of all other Distributions paid Equity Interest in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) respect of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paiddistributions are being made); provided, however, and
(c) notwithstanding the foregoing in this §8.7(b)paragraphs (a) and (b) above, Borrower may make Restricted Payments in an amount sufficient to pay customary and the Trust mayreasonable administrative and legal costs and expenses, subject to the limitations set forth in this Agreement (including specificallyincluding, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity audit expenses, of the Borrower or the Trust and (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case (A) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;
(c) In the event that an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions Parent Entities in connection with the repurchase maintenance of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; and
(d) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectlyits respective legal existence as a publicly traded company.
Appears in 2 contracts
Sources: Credit Agreement (JBG SMITH Properties), Credit Agreement (JBG SMITH Properties)
Distributions. Neither Distributions on the Borrower nor LTIP Units shall be paid to the Trust shall make any Distributions which would cause it Holder pursuant to violate any the LP Agreement, including without limitation Section 1.5 of Exhibit B thereto and Articles 5 and 13 thereof. Notwithstanding the following covenants:
immediately prior sentence, (a) [Intentionally Deleted];
unless otherwise determined by the Committee, but in all cases subject to applicable law, it is intended that, with respect to the LTIP Units, applicable distributions otherwise to be provided to the Holder with respect to such LTIP Units under the LP Agreement will not be paid to the Holder on a current basis (b) The Borrower at the same time as such distributions are otherwise paid to other Partners in the Partnership), but instead, until such LTIP Units Vest under this Agreement, the Holder will be credited on the records of the Partnership and the Trust shall not make any Distribution if Company (without interest) with such Distribution is in excess distributions (the “Credited Distributions”) relating to such LTIP Units, with the lesser of the amount which, when added to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust such Credited Distributions and (ii) repurchase common stock issued by the Trust Partnership’s gross income in an amount not exceeding the limit set forth taxable year such LTIP Units have Vested, to be paid in §8.3(j)(ii), so long the medium as in either case (A) no Event of Default shall have occurred and be continuing on provided for under the date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant LP Agreement to the Tax Indemnity Agreement;
(c) In Holder at the event that an Event of Default shall have occurred same time and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by same extent as the Trust required under the Code to maintain the REIT Status of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; LTIP Units (for which such distributions were credited) Vest (provided, however, that neither Borrower nor if any such LTIP Units are forfeited under this Agreement, the Trust Credited Distributions for such forfeited LTIP Units will also be forfeited; provided further, if the Credited Distributions exceed the Partnership’s gross income in the taxable year such LTIP Units have Vested, the balance shall be entitled paid in the medium as provided for under the LP Agreement to make any Distributions the Holder in connection the subsequent taxable year to the extent of the Partnership’s gross income in that subsequent taxable year), in each case as reasonably determined under the LP Agreement, but (b) notwithstanding Section 6(a), and subject to applicable law, during the term of the Agreement, no allocation of profit (that is taxable to the Holder) shall be made with respect to Unvested LTIP Units subject to this Award unless a corresponding distribution in equal value is or has been made to the Holder or is otherwise required pursuant to Section 704(b) of the Code. This Agreement and the Award shall be administered in a manner consistent with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; and
(d) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectlyintentions described in this Section 6.
Appears in 2 contracts
Sources: Performance Based Ltip Units Award Agreement (Curbline Properties Corp.), Performance Based Ltip Units Award Agreement (Curbline Properties Corp.)
Distributions. Neither the Borrower nor the Trust shall make not, and shall not allow any Distributions which would cause it Subsidiary to violate any of the following covenants:
(a) [Intentionally Deleted];
repurchase or redeem any class of stock or other equity interest other than (bi) The Borrower and pursuant to employee, director or consultant repurchase plans, employee stock option plans, the Trust shall not make any Distribution if such Distribution is in excess Series C Repurchase Agreement (subject to, for the avoidance of doubt, the amount which, when added to the amount of all other Distributions paid specified cumulative limit in the same fiscal quarter and definition “Permitted Series C Repurchases”), or agreements entered into in the preceding three ordinary course of business, or other similar agreements or in connection with withholding taxes (3including in connection with restricted stock agreements) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for incurred solely in connection with the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; foregoing, provided, however, notwithstanding in each case the foregoing in this §8.7(brepurchase or redemption price does not exceed the original consideration paid for such stock or equity interest (other than the net exercise of any stock options), Borrower and the Trust mayor (b) declare or pay any cash dividend or make a cash distribution on any class of stock or other equity interest, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) except that (i) redeem existing Preferred Equity with proceeds from an issuance of common equity a Subsidiary may pay dividends or Preferred Equity of the make distributions to Borrower or the Trust and (ii) repurchase common stock issued so long as no Event of Default has occurred and is continuing, Borrower may pay cash dividends pursuant to Permitted Series C Repurchases (subject to, for the avoidance of doubt, the cumulative limit indicated in such definition), or (c) lend money to any employees, officers or directors or guarantee the payment of any such loans granted by a third party in excess of $100,000 in the Trust aggregate outstanding other than Permitted Investments or (d) waive, release or forgive any Indebtedness owed by any employees, officers or directors in an amount not exceeding excess of $100,000 in the limit set forth in §8.3(j)(ii)aggregate; provided that notwithstanding clauses (a) and (b) above, so long as in either case (A) no Event of Default shall have has occurred and be continuing on the date of any such is continuing, Borrower may repurchase and redeem (including for cash or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase for shares of common stock pursuant to §8.7(b)(iiof Plug Power), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoingand may make cash payments with respect to, the Borrower Series D Preferred Stock, in each case, so long as such cash payments do not to exceed $20,000,000 in the aggregate (or such higher amounts as the Lender may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;
(c) In the event that an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations approve in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; and
(d) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectlywriting).
Appears in 2 contracts
Sources: Loan and Security Agreement (Plug Power Inc), Loan and Security Agreement (Plug Power Inc)
Distributions. Neither the Borrower shall not, nor the Trust shall make it permit any Distributions which would cause it to violate any of the following covenants:
Subsidiary to, (a) [Intentionally Deleted];
repurchase or redeem any class of stock or other Equity Interest other than the repurchases described in clause (c) of the defined term “Permitted Investments”; (b) The declare or pay any cash dividend or make a cash distribution on any class of stock or other Equity Interest, except that a Subsidiary of Borrower and may pay dividends or make distributions to Borrower or a Subsidiary of Borrower; (c) lend money to any employees, officers or directors or guarantee the Trust shall not make payment of any Distribution if such Distribution is loans granted by a third party in excess of the amount which, when added to the amount of all other Distributions paid $500,000 in the same fiscal quarter and aggregate; or (d) waive, release or forgive any Indebtedness owed by any employees, officers or directors in excess of $500,000 in the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust and (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case (A) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%)aggregate. Notwithstanding the foregoing, and for the Borrower may pay avoidance of doubt, this Section 7.7 shall not prohibit (i) the conversion by holders of (including any cash payment upon conversion), or required payment of any principal or premium on (including, for the avoidance of doubt, in respect of a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;
(c) In the event that an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions repurchase in connection with the repurchase redemption of Permitted Convertible Debt upon satisfaction of a condition related to the stock price of Borrower’s common stock) or required payment of any interest with respect to, any Permitted Convertible Debt in each case, in accordance with the terms of the indenture governing such Permitted Convertible Debt, (ii) the entry into (including the payment of premiums in connection therewith) or any required payment with respect to, or required early unwind or settlement of, any Permitted Bond Hedge Transaction or Permitted Warrant Transaction, in each case, in accordance with the terms of the agreement governing such Permitted Bond Hedge Transaction or Permitted Warrant Transaction, or (iii) the withholding of shares of common stock upon the vesting of restricted stock units and performance stock units issued to the Borrower’s employees under the Borrower’s equity incentive plan upon vesting of such stock units and any related cash payments required to be paid to such employees and or preferred stock any governmental authority on account of Taxes related thereto, in each case in the ordinary course of business of the Trust at any time after an Event of Default shall have occurred and be continuing; and
(d) Borrower. Notwithstanding the foregoing, at any time when Borrower may repurchase, exchange or induce the conversion of Permitted Convertible Debt by delivery of shares of Borrower’s common stock and/or a different series of Permitted Convertible Debt and/or by payment of cash (in an Event amount that does not exceed the proceeds received by Borrower from the substantially concurrent issuance of Default shall have occurred and shares of Borrower’s common stock and/or Refinancing Convertible Notes plus the maturity net cash proceeds, if any, received by Borrower pursuant to the related exercise or early unwind or termination of the Obligations has been acceleratedrelated Permitted Bond Hedge Transactions and Permitted Warrant Transactions, neither if any, pursuant to the immediately following proviso); provided that, for the avoidance of doubt, substantially concurrently with, or a commercially reasonable period of time before or after, the related settlement date for the Permitted Convertible Debt that are so repurchased, exchanged or converted, Borrower nor may exercise or unwind or terminate early (whether in cash, shares or any combination thereof) the Trust shall make any Distributions whatsoeverportion of the Permitted Bond Hedge Transactions and Permitted Warrant Transactions, directly if any, corresponding to such Permitted Convertible Debt that are so repurchased, exchanged or indirectlyconverted.
Appears in 2 contracts
Sources: Loan and Security Agreement (Gritstone Bio, Inc.), Loan and Security Agreement (Gritstone Bio, Inc.)
Distributions. Neither the Borrower nor the Trust shall Pay any dividends, make intellectual property royalty payments or make any Distributions which would cause it to violate other distribution or payment on account of or in redemption, retirement or purchase of any capital stock, or permit any of its Subsidiaries to do so, except that each Borrower may repurchase the following covenants:
(a) [Intentionally Deleted];
(b) The Borrower and the Trust shall not make any Distribution if such Distribution is in excess stock of the amount which, when added former employees pursuant to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust and (ii) stock repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), so agreements as long as in either case (A) no an Event of Default shall have occurred and be continuing on the date of any does not exist prior to such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (would not exist after giving effect to such repurchase) shall be less than fifty percent (50%), and the aggregate amount of such repurchase does not exceed $100,000 in any fiscal year.
6. The following is added to the end of Section 7.7 of the Agreement: Notwithstanding the foregoing, the Borrower may pay a Distribution make loans to its partners Parent (in lieu of sums received by it pursuant to the Tax Indemnity making any royalty payments or dividends or other distributions that may have been previously permitted under this Agreement;
, which are no longer permitted under this Agreement) as long as: (ci) In the event that an no Event of Default has occurred that is continuing or would exist immediately after giving effect thereto, (ii) Bank has provided its prior written consent to such loan, on a case by case basis, which consent shall have occurred and not be continuingunreasonably withheld, neither conditioned, or delayed, with the mutual understanding that such consent will be given if Borrower nor the Trust shall make any Distributions other than the minimum Distributions is considered by the Borrower Bank to be in good standing under the Agreement, and (iii) no modifications to the Trust and by the Trust required under the Code terms of such loans are entered into without Bank’s prior written consent.
7. Pursuant to maintain the REIT Status Section 7.7 of the TrustAgreement, as evidenced by amended herein, Bank hereby consents to a certification $400,000 loan to Parent from Borrower at an interest rate of at least 2% per annum and a maturity date of no later than five years from the onset of such loan.
8. Section 7.9 of the principal financial or accounting officer of the Trust containing calculations Agreement is amended and restated in reasonable detail satisfactory in form and substance its entirety to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; and
(d) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectly.read as follows:
Appears in 2 contracts
Sources: Loan and Security Agreement (IBEX LTD), Loan and Security Agreement (IBEX LTD)
Distributions. Neither 1. On each June 30 and December 31 while the Borrower nor Agreement is in effect, the Trust Optionee shall make any Distributions which would cause it be paid a lump sum distribution in cash equal to violate any the balance credited to his Cash Sub-Account and such balance shall be reduced to zero.
2. The Optionee shall receive a distribution of his Account as soon as practicable following the following covenants:
earliest of (a) [Intentionally Deleted];
his termination of employment with the Company for any reason, whether voluntary or involuntary (with or without cause), (b) The Borrower and the Trust shall not make any Distribution if such Distribution is in excess expiration of the amount whichDeferral Period or (c) a Change in Control.
3. In the event of the death or Disability of the Optionee, when added the Optionee's Account shall be paid to the amount of all other Optionee's Beneficiary or guardian (as the case may be) within 30 days following the date on which the Company is notified or otherwise determines that such event has occurred.
4. Distributions paid from the Optionee's Account shall be made in a single lump sum payment unless the Optionee elects to receive such payment in the same fiscal quarter and the preceding form of annual installment payments over a three (3) fiscal quarters would exceed ninety-or five percent (95%5) of their respective Funds from Operations for year period. Any election to receive installment payments must be made in writing (in accordance with rules established by the four Administrator) at least six (46) consecutive fiscal quarters ending months prior to the quarter in date on which such Distribution the payment is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject due to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust and (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case (A) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%)made. Notwithstanding the foregoing, the Borrower may pay any remaining installment payments shall be accelerated and paid in a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;
(c) In single payment in the event that an Event of Default the death of the Optionee, a Change in Control of the Company or the Optionee's involuntary termination of employment from the Company. All payments under the Agreement (except for the semi-annual distributions from the Cash Sub-Account described in paragraph 1 above) shall have occurred and be continuing, neither in the Borrower nor form of Common Shares of the Trust shall make any Distributions other than the minimum Distributions class covered by the Borrower Option (with any fractional shares being paid in cash).
5. Notwithstanding the foregoing provisions of this Article V, if the deduction of all or any portion of a payment or distribution otherwise due to the Trust and be made by the Trust required Company under the Agreement would be disallowed solely by reason of Code to maintain Section 162(m) but for the REIT Status operation of the Trustthis paragraph, as evidenced by a certification of the principal financial then such payment or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust distribution (or portion thereof) shall be entitled deferred and made at the earliest time that Section 162(m) would not apply to make any disallow the corresponding deduction by the Company.
6. Distributions in connection with under the repurchase of common or preferred stock of the Trust at any time after an Event of Default Agreement shall have occurred and be continuing; and
(d) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectlysubject to all applicable withholding taxes.
Appears in 2 contracts
Sources: Agreement to Defer Stock Option Gains (American Greetings Corp), Agreement to Defer Stock Option Gains (American Greetings Corp)
Distributions. Neither (a) Except for the Borrower nor Special Distribution, the Trust shall make any Distributions which would cause it Common Distribution and distributions pursuant to violate any SECTION 8.2 in connection with the dissolution and liquidation of the Partnership, the General Partner shall cause the Partnership to distribute all Net Cash Flow to the Partners from time to time as determined by the General Partner, but in any event not less frequently than quarterly, in such amounts as the General Partner shall determine, and in the following covenantspriority:
(ai) [Intentionally Deleted];First, to the extent that the amount of cash distributed to the General Partner for all prior Quarters pursuant to SECTION 6.2(a)(ii) (other than the immediately preceding Quarter) was less than the Preferred Distribution for each of the outstanding Preferred Units for all such Quarters, and such deficiency was not previously distributed pursuant to this subsection (i) or paid as part of a Preferred Unit Redemption Amount (a "Preferred Distribution Shortfall"), Net Cash Flow shall be distributed to the General Partner in an amount equal to such Preferred Distribution Shortfall for all such prior Quarters.
(ii) Second, Net Cash Flow shall be distributed to the General Partner on the Partnership Payment Date in an amount equal to the Preferred Distribution for the immediately preceding Quarter for each outstanding Preferred Unit then held by the General Partner.
(iii) Third, to the extent the amount of cash distributed to the Partners holding Convertible Preferred Units pursuant to SECTION 6.2(a)(iv) for all prior Quarters (other than the immediately preceding Quarter) was less than the Convertible Preferred Distribution for each of the outstanding Convertible Preferred Units for all such Quarters, and such deficiency was not previously distributed pursuant to this subsection (iii) or paid as part of Convertible Preferred Unit Redemption Amount (a "Convertible Preferred Distribution Shortfall"), Net Cash Flow shall be distributed to the Partners holding Convertible Preferred Units, pro rata in accordance with their respective Convertible Preferred Units, in an amount equal to such Convertible Preferred Distribution Shortfall for all such prior Quarters.
(iv) Fourth, Net Cash Flow shall be distributed to the Partners holding Convertible Preferred Units on the Partnership Payment Date in an amount equal to the Convertible Preferred Distribution for the immediately preceding Quarter for each outstanding Convertible Preferred Unit then held by the Partners holding Convertible Preferred Units, pro rata in accordance with their respective Convertible Preferred Units.
(v) Fifth, to the extent that the amount of cash distributed to Partners pursuant to SECTION 6.2(a)(vi) for all prior Quarters (other than the immediately preceding Quarter) was less than the Series C Preferred Distribution for each of the outstanding Series C Preferred Units for all such Quarters, and such deficiency was not previously distributed pursuant to this subsection (v) or paid as part of a Series C Preferred Unit Redemption Amount (a "Series C Preferred Distribution Shortfall"), Net Cash Flow in an amount equal to such Series C Preferred Distribution Shortfall for all such prior quarters shall be distributed to the Partners holding Series C Preferred Units on the Partnership Payment Date for the immediately preceding Quarter, pro rata, in accordance with their respective Series C Preferred Units.
(vi) Sixth, Net Cash Flow shall be distributed to the Partners holding Series C Preferred Units in an amount equal to the Series C Preferred Distribution for the immediately preceding Quarter for each outstanding Series C Preferred Unit, pro rata, in accordance with their respective Series C Preferred Units.
(vii) Seventh, the balance of any Net Cash Flow to be distributed, if any, shall be distributed to the Partners holding Common Units on the Partnership Payment Date with respect to the immediately preceding Quarter, pro rata in accordance with their respective Common Units.
(b) The Borrower and On the Trust shall not make any Distribution if such Distribution is in excess of the amount whichdate hereof, when added to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending immediately prior to the quarter in which such Distribution is paid; providedSpecial Distribution, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) Partnership shall formally declare a cash distribution of (i) redeem existing $0.50 per outstanding Common Unit and Series C Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust Unit and (ii) repurchase common stock issued by $0.60 per outstanding Convertible Preferred Unit, in each case to each holder of record of Common Units, Convertible Preferred Units and Series C Preferred Units as of the Trust in an amount not exceeding close of the limit set forth in §8.3(j)(ii), so long as in either case (A) no Event transfer books of Default shall have occurred and be continuing on the Partnership immediately prior to the Merger. The payment date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) Special Distribution shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;________.
(c) In On the event that an Event date hereof immediately after consummation of Default the Merger, the Common Distribution shall have occurred and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions effected by the Borrower distribution of each issued and outstanding common unit of Repositioning Strategies, L.P. (each, a "RSLP Common Unit") to each holder of record of Common Units, Convertible Preferred Units and Series C Preferred Units as of the close of the transfer books of the Partnership immediately after the consummation of the Merger such that (i) each Convertible Preferred Unit shall entitle the holder to receive RSLP Common Units equal to 1.196 multiplied by the number of RSLP Common Units being distributed in respect of each Common Unit, and (ii) each Series C Preferred Unit shall entitle the holder to receive that number of RSLP Common Units distributed in respect of each Common Unit. The payment date with respect to the Trust and by the Trust required under the Code to maintain the REIT Status of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust Common Distribution shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; and________.
(d) Notwithstanding The General Partner shall use its best efforts to cause the foregoingPartnership to distribute sufficient amounts to enable the General Partner to pay shareholder dividends that will (i) satisfy the requirements for qualifying as a REIT under the Code and Regulations ("REIT Requirements"), at and (ii) avoid any time when federal income or excise tax liability of the General Partner.
(e) With respect to any Limited Partner(s) from whom the General Partner receives an Event Exercise Notice to exercise Rights in accordance with ARTICLE XI for which the General Partner elects to pay the Cash Purchase Price pursuant to EXHIBIT C, the General Partner shall cause the Partnership to distribute to such Limited Partner(s), with respect to the Common Units for which the Cash Purchase Price is paid, (i) on the Partnership Payment Date, if any, thereafter occurring during the Quarter in which the Cash Purchase Price is paid, an amount equal to a full PRO RATA share of Default shall any Net Cash Flow to which such Limited Partner would have occurred been entitled to receive pursuant to SECTION 6.2(a)(vii) had such Limited Partner held such Common Units on the Partnership Payment Date occurring in such Quarter and (ii) on the Partnership Payment Date, if any, occurring during the next succeeding Quarter after such Exercise Notice is received, an amount equal to the Net Cash Flow to which such Limited Partner would have been entitled to receive pursuant to SECTION 6.2(a)(vii) had such Limited Partner held such Common Units on the Partnership Payment Date, multiplied by a fraction, the numerator of which is the number of days in the preceding Quarter (based on three 30-day months) that the Limited Partner held such Common Units and the maturity denominator of which is 90.
(f) Notwithstanding any other provision in this Agreement, from time to time and at such times as the General Partner shall determine, and prior to any determination or distribution of Net Cash Flow pursuant to SECTION 6.2(a), there shall be distributed to the General Partner from the revenues, proceeds or other funds of the Obligations has been acceleratedPartnership, neither an amount equal to any REIT Expenses (other than those described in clause (ii) of the Borrower nor definition of REIT Expenses), to the Trust shall make extent not paid or payable by the General Partner from cash distributions which it receives directly from any Distributions whatsoeverProperty Partnerships on account of any interest in the Property Partnership which it holds directly (as opposed to through the Partnership).
(g) The provisions of SECTION 6.2 of this Agreement are not intended to supersede or replace, directly or indirectlyand are subject to, the agreements set forth on EXHIBIT E hereto.
Appears in 2 contracts
Sources: Limited Partnership Agreement (Sky Merger Corp), Limited Partnership Agreement (Sky Merger Corp)
Distributions. Neither Holdings and the Borrower nor the Trust shall not, and shall not permit any of its Restricted Subsidiaries to, make any Distributions which would cause it to violate any of Distribution, other than the following covenants:(collectively, “Permitted Distributions”):
(a) [Intentionally Deleted]each Restricted Subsidiary may make Distributions to Holdings, the Borrower and to other Restricted Subsidiaries (and, in the case of a Distribution by a non-Wholly-Owned Restricted Subsidiary, to Holdings, the Borrower and any other Restricted Subsidiary and to each other owner of Stock of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests of the relevant class of Stock);
(b) The Borrower without duplication of any Distributions made pursuant to clause (m) below, (i) Holdings may (or may make Distributions to permit any Parent Entity to directly or indirectly) redeem in whole or in part any of its Stock (A) for another class of its (or such Parent Entity’s) Stock or rights to acquire its Stock, (B) with proceeds from substantially concurrent direct or indirect equity contributions by any Parent Entity to Holdings or (C) with proceeds from substantially concurrent issuances of new Stock of Holdings (or new Stock of any Parent Entity); provided that any terms and provisions material to the Trust shall not make any Distribution if such Distribution is in excess interests of the amount whichLenders, when added taken as a whole, contained in such other class of Stock referenced in clause (A) or (C) are at least as advantageous to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, Lenders as those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust Stock redeemed thereby and (ii) repurchase common stock issued Holdings may declare and make any Distribution payable solely in the Stock (other than Disqualified Stock not otherwise permitted by Section 8.12) of Holdings;
(c) to the Trust in an amount not exceeding extent constituting Distributions, Holdings and its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 8.11 (other than pursuant to clause (p) of the limit set forth in §8.3(j)(iidefinition of “Permitted Investments”) or Section 8.14(f);
(d) repurchases of Stock of Holdings (or Stock of any Parent Entity) or any Restricted Subsidiary deemed to occur upon exercise, vesting and/or settlement of Stock if such Stock represents a portion of the exercise price thereof or any portion of required withholding or similar taxes due upon the exercise, vesting and/or settlement thereof;
(e) so long as in either case no Default or Event of Default shall be continuing, from and after the date that is twelve (12) months after the consummation of the IPO Transactions, Holdings or any Restricted Subsidiary may pay (or make Distributions to allow any Parent Entity to pay) for the repurchase, retirement or other acquisition or retirement for value of Stock of it or any Parent Entity (or any options or warrants or stock appreciation or similar rights issued with respect to any of such Stock) held by any future, present or former employee, director, officer or other individual service provider (or any Affiliates, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing) of Holdings (or any Parent Entity) or any of the other Restricted Subsidiaries pursuant to any employee, management or director equity plan, employee, management or director stock option plan or any other employee, management or director benefit plan or any agreement (including any stock option or stock appreciation or similar rights plan, any management, director and/or employee stock ownership or equity-based incentive plan, stock subscription plan, employment termination agreement or any other employment agreements or equity holders’ agreement) with any employee, director, officer or other individual service provider of Holdings (or any Parent Entity) or any Restricted Subsidiary; provided that any such payments, when taken together with (i) the aggregate principal amount of loans and advances made under clause (j) of the definition of “Permitted Investments” and (ii) the aggregate amount of Investments made under clause (t) of the definition of “Permitted Investments”, do not exceed (A) $15,000,000 in any Fiscal Year and (B) $30,000,000 during the term of the Agreement; provided that any unused portion of the preceding basket calculated pursuant to clause (A) above for any Fiscal Year may be carried forward to the next succeeding Fiscal Year up to a maximum of $5,000,000 in the aggregate in any Fiscal Year; provided, further, that cancellation of Debt owing to Holdings or any of its Restricted Subsidiaries from employees, directors, officers or other individual service providers of Holdings or any of its Restricted Subsidiaries in connection with a repurchase of Stock of Holdings or any of its Restricted Subsidiaries will not be deemed to constitute a Distribution for purposes of this covenant or any other provision of this Agreement;
(f) Holdings and its Restricted Subsidiaries may make Distributions to any direct or indirect owner thereof (including but not limited to any Parent Entity of Holdings):
(i) the proceeds of which shall be used to make Permitted Tax Distributions;
(ii) the proceeds of which shall be used:
(A) to make payments to ▇▇▇▇▇ Brothers, LLC, a Texas limited liability company, in respect of the “retainer fees” under the Shared Services Agreement in an aggregate amount not to exceed in any Fiscal Year $7,000,000; and
(B) to pay such Parent Entity’s operating costs and expenses incurred in the ordinary course of business, other overhead costs and expenses and fees (including administrative, legal, accounting and similar expenses provided by third parties as well as trustee, directors and general partner fees) which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of Holdings and its Restricted Subsidiaries (including any reasonable and customary indemnification claims made by directors or officers of any Parent Entity attributable to the direct or indirect ownership or operations of Holdings and its Restricted Subsidiaries) and fees and expenses otherwise due and payable by Holdings under the Shared Services Agreement in respect of services provided thereunder (for the avoidance of doubt, excluding any “retainer fees” permitted to be paid thereunder pursuant to subclause (A) of this clause (ii)) in an aggregate amount not to exceed in any Fiscal Year, for all such amounts under this clause (ii)(B), the greater of (1) $4,500,000 and (2) 2.00% of the Consolidated EBITDA of Holdings and its Restricted Subsidiaries for such Fiscal Year; provided that (x) such payments are made in respect of services performed on behalf of, or expenses incurred by, Holdings and its Restricted Subsidiaries on an arm’s length basis after the earlier of (I) the consummation of the IPO Transactions and (II) the twelve (12) month anniversary of the Closing Date, and (y) such payments are approved by the Board of Directors of ProFrac PubCo if required by the policies of such Board of Directors related to arm’s length transactions;
(iii) the proceeds of which shall be used to pay franchise, excise and similar taxes, and other fees and expenses, required to maintain its (or any of its direct or indirect parents’) existence;
(iv) the proceeds of which shall be used to finance any Permitted Acquisition or similar Investment permitted to be consummated by the terms hereof; provided that (A) such Distribution shall be made substantially concurrently with the closing of such Investment and (B) Holdings, the Borrower or such Parent Entity shall, immediately following the closing thereof, cause all property acquired (whether assets or Stock (other than Excluded Stock described in clause (g) of the definition thereof)) to be held by or contributed to the Borrower or a Restricted Subsidiary of the Borrower;
(v) the proceeds of which shall be used to pay customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful Stock or Debt offering, Refinancing, issuance or incurrence transaction or any Disposition, acquisition or Investment permitted by this Agreement in an aggregate amount for all such Distributions made pursuant to this clause (v) not to exceed (A) $5,000,000 during any Fiscal Year and (B) $10,000,000 during the term of this Agreement; and
(vi) the proceeds of which shall be used to pay customary salary, compensation, bonus and other benefits payable to officers, employees, consultants and other service providers of any Parent Entity or partner of the Borrower to the extent such salaries, compensation, bonuses and other benefits are attributable to the ownership or operation of Holdings and its Restricted Subsidiaries in an aggregate amount not to exceed $3,000,000;
(g) Holdings or any of its Restricted Subsidiaries may (a) pay cash in lieu of fractional Stock in connection with any dividend, split or combination thereof or any Permitted Acquisition (or other similar Investment) and (b) honor any conversion request by a holder of convertible Debt and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Debt in accordance with its terms;
(h) in addition to the foregoing Distributions, Holdings or any Restricted Subsidiary of Holdings may make additional Distributions, measured at the time made, (i) so long as no Default or Event of Default shall have occurred and be continuing on or would result therefrom, in an aggregate amount not to exceed $5,000,000 and (ii) Distributions using the date of any such repurchase or redemption, Available Amount so long as (Bx) no Default or Event of Default shall occur as a have occurred and be continuing or would result of any such repurchase or redemption, therefrom and (Cy) the Total Net Leverage Ratio as of the last day of the most recently completed Test Period, after giving Pro Forma Effect to such Distribution, does not exceed 0.75:1.00;
(i) Holdings or any Restricted Subsidiary of Holdings may pay (or may make Distributions to allow any Parent Entity to pay) Distributions in an amount equal to withholding or similar taxes payable or expected to be payable by any present or former employee, director, manager, consultant or other service provider (or its Affiliates, or any of their respective estates or immediate family members) and any repurchases of Stock in consideration of such payments including deemed repurchases in connection with the exercise of Stock options;
(j) to the extent constituting Distributions, the transactions described in clause (i) of the definition of IPO Transactions;
(k) any Distribution by Holdings pursuant to the FTS Distribution and Contribution Transaction;
(l) any Distribution by Holdings of the Stock of a Person acquired by Holdings or any of its Subsidiaries in accordance with the provisions set forth herein so long as all or substantially all of the property and assets of such Person (including any Stock owned by such Person other than the Stock of Holdings or any Parent Entity) were contributed to the Borrower or a Guarantor (other than Holdings) substantially simultaneously with such acquisition (and, for the avoidance of doubt, prior to such Distribution) and the Borrower or such Guarantor has complied with the Collateral and Guarantee Requirements with respect to such property and assets (including any repurchase Stock owned by such Person) so contributed;
(m) without duplication of common stock any Distributions made pursuant to §8.7(b)(iiclause (b) above, any non-cash redemption or other acquisition by Holdings of its Stock pursuant to the “Redemption Right” or the “Call Right” (each as described in the Section of the Registration Statement for the IPO Transactions entitled “Corporate reorganization”) to be included in the Holdings LLC Agreement upon the effectiveness of the IPO Transactions (it being understood and agreed, for the avoidance of doubt, that such redemption shall not in any event be made with the proceeds of any Distribution from the Borrower or any of its Restricted Subsidiaries to Holdings); and
(n) the PubCo Distribution, prior which shall only be permitted to any be made so long as (i) the Borrower has already (A) made all mandatory prepayments of the Term Loans from the first $100,000,000 of Net Cash Proceeds from the IPO required pursuant to Section 4.3(c) and (B) repaid $27,070,000 in respect of the Back-Stop Note and (ii) such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that Pubco Distribution is made solely from the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (remaining Net Cash Proceeds from the IPO after giving effect to such repurchasethe payments described in the foregoing clauses (i) shall be less than fifty percent and (50%ii). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;
(c) In the event that an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; and
(d) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectly.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (ProFrac Holding Corp.), Term Loan Credit Agreement (ProFrac Holding Corp.)
Distributions. Neither the Borrower nor the Trust shall make any Distributions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted];In the event that a High Leverage Condition exists (or would arise as a result of a Distribution), neither Borrower nor the Trust shall make any Distribution if such Distribution is in excess of the amount which, when added to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed the lesser of (i) an amount equivalent to 0.9252 cents per share of common stock of the Trust or (ii) ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid.
(b) The In the event that a Target Leverage Condition exists, the Borrower and the Trust shall not make any Distribution if such Distribution is in excess of the amount which, when added to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust and (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case (Ai) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, and (Bii) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;
(c) In the event that an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; and
(d) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectly.
Appears in 2 contracts
Sources: Secured Master Loan Agreement (Ramco Gershenson Properties Trust), Secured Master Loan Agreement (Ramco Gershenson Properties Trust)
Distributions. Neither Notwithstanding anything contained in this Agreement to the contrary, (x) the Borrower nor the Trust shall may make any Distributions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted];
requests for, and distributions or other payments of, Advances for working capital or other general corporate purposes, and (b) The Borrower and the Trust shall not make any Distribution if such Distribution is payments of distributions on or in excess respect of the amount which, when added to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common its equity or Preferred Equity of the Borrower or the Trust and (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii)interests, so long as (in either case each case) at the time of such distribution, declaration or payment (Aand after giving effect thereto) no Event of Default shall have occurred amount payable by the Borrower under any Transaction Document is then due and owing but unpaid and sufficient proceeds remain for all payments to be continuing made pursuant to Section 8.5(a) (other than clause (xiv) thereof) on the date of any such repurchase or redemptionnext Distribution Date, and only so long as (w) the Interest Spread Test is satisfied, (Bx) the Minimum Equity Condition is satisfied, (y) no Default Facility Termination Event or Unmatured Facility Termination Event of Default shall occur as a result of any such repurchase or redemptionbe continuing, and (Cz) with respect all Advances outstanding shall not exceed the lowest of (I) the Facility Amount, (II) the Borrowing Base and (III) the Maximum Availability and (y) the Borrower may make Permitted RIC Distributions or Permitted Stock Dividends; provided that, notwithstanding anything in this Agreement or in any Transaction Document to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoingcontrary, the Borrower may pay a Distribution to its partners of sums received by it make payments pursuant to Section 8.5. Prior to foreclosure by the Tax Indemnity Agreement;
(c) In the event that an Event of Default Facility Agent upon any Borrower Collateral pursuant to Section 14.3(b), nothing in this Section 10.18 or otherwise in this Agreement shall have occurred and be continuing, neither restrict the Borrower nor from exercising any Warrant Assets issued to it by Obligors from time to time to the Trust shall make any Distributions other than the minimum Distributions by extent funds are available to the Borrower under Section 8.5 or made available to the Trust and by Borrower through capital contributions from the Trust required under the Code to maintain the REIT Status Equityholder or from disposing of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; and
(d) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectlyPortfolio Investments.
Appears in 2 contracts
Sources: Omnibus Amendment to Transaction Documents (TriplePoint Private Venture Credit Inc.), Receivables Financing Agreement (TriplePoint Private Venture Credit Inc.)
Distributions. Neither the Borrower nor the Trust shall make not, and shall not allow any Distributions which would cause it to violate any of the following covenants:
Subsidiary to, (a) [Intentionally Deleted];
repurchase or redeem any class of its stock or other Equity Interest, or (b) The Borrower and the Trust shall not declare or pay any cash dividend or make any Distribution if other cash distribution on any class of its stock or other Equity Interest, or (c) except for Permitted Investments, lend money to any employees, officers or directors or guarantee the payment of any such Distribution is loans to employees, officers or directors granted by a third party in excess of the amount which, when added to the amount of all other Distributions paid Two Hundred Fifty Thousand Dollars ($250,000) in the same fiscal quarter and aggregate,, or (d) waive, release or forgive any Indebtedness owed to Borrower or any Subsidiary by any employees, officers or directors in excess of Two Hundred Fifty Thousand Dollars ($250,000) in the preceding three aggregate, in each case other than (3i) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior repurchases or redemptions pursuant to the quarter in which such Distribution is paid; employee, director or consultant repurchase plans or other similar agreements, provided, however, notwithstanding in each case the foregoing in this §8.7(b), Borrower and repurchase or redemption price does not exceed the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred original consideration paid for such stock or Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust and Interest; (ii) repurchase common stock issued by the Trust payment of cash in an amount lieu of fractional shares not exceeding the limit set forth in §8.3(j)(iito exceed Fifty Thousand Dollars ($50,000), (iii) a Subsidiary may pay dividends or make other distributions to Borrower or any Subsidiary of Borrower, (iv) the conversion of any of its convertible securities into other securities pursuant to the terms of such convertible securities or otherwise in exchange therefor, and (v) other dividends, distributions, redemptions or repurchases so long as the aggregate amount of all such purchases does not exceed Two Hundred Fifty Thousand Dollars ($250,000) in either case (A) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%)fiscal year. Notwithstanding the foregoing, and for the Borrower may pay a Distribution to its partners avoidance of sums received doubt, this Section 7.7 shall not prohibit (i) the conversion by it pursuant to holders of any Permitted Convertible Debt in accordance with the Tax Indemnity Agreement;
(c) In the event that an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status terms of the Trustindenture governing such Permitted Convertible Debt, as evidenced by a certification or Borrower’s delivery of the principal financial conversion consideration in connection therewith or accounting officer the delivery of Common Stock (or other securities or property following a merger event, reclassification or other change of the Trust containing calculations Common Stock), and Cash in reasonable detail satisfactory lieu of fractional shares of Common Stock in form exchange for, or to induce the conversion of, Permitted Convertible Debt; provided that the conversion consideration (or exchange or inducement consideration) paid to such holders is limited to (A) Common Stock and substance (B) and Cash in lieu of fractional shares of Common Stock not to Agent; providedexceed Fifty Thousand Dollars ($50,000), howeveror (ii) the Borrower’s making of any interest payments with respect to any Permitted Convertible Debt or (iii) the Borrower’s payment of any premium in respect of, that neither Borrower nor making or receiving any payment (via proceeds of the Trust shall be entitled related Permitted Convertible Indebtedness not to make exceed twenty-five percent (25%) of the aggregate principal amount of such related Permitted Convertible Indebtedness deliveries in shares of Common Stock (or other securities or property following a merger event, reclassification or other change of the Common Stock and Cash in lieu of fractional shares not to exceed Fifty Thousand Dollars ($50,000)) with respect to, or the Borrower’s otherwise performing its obligations under, any Distributions Permitted Call Spread Transaction, including without limitation in connection with the repurchase of common any settlement, unwind or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; and
(d) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly termination thereof whether pursuant to its terms or indirectlyotherwise.
Appears in 1 contract
Distributions. Neither the The Borrower nor the Trust shall will not make any Distributions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted]The Borrower will not pay any Distributions to its shareholders except as follows:
(i) For the fourth (4th) calendar quarter of 2002, Borrower's quarterly dividend with respect to common stock outstanding as of the date of this Agreement, which dividend shall not exceed $0.27 per share;
(bii) The For the first (1st) calendar quarter of 2003, Borrower's quarterly dividend with respect to common stock outstanding as of the date of this Agreement, which dividend shall not exceed $0.20 per share; and
(iii) For the first (1st) and second (2nd) calendar quarters of 2003, Borrower shall be permitted to pay quarterly dividends on its preferred stock outstanding as of the date of this Agreement in the amount of $0.586 per share; and
(iv) From and after the payment by Borrower of its Distribution to its common shareholders during the first (1st) calendar quarter of 2003 and the Trust payment of its quarterly dividend on its preferred stock as provided in Section 8.7(a)(iii) during the second (2nd) calendar quarter of 2003, Borrower shall not make any Distribution if such Distribution is in excess of Distributions to its common shareholders other than the amount which, when added to the amount of all other Distributions paid on its preferred stock pursuant to Section 8.7(a)(iii) for such quarter and all Distributions previously paid during such calendar year, do not exceed in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five aggregate ninety percent (9590%) of their respective Funds from Operations "REIT taxable income" (as defined in the Code) calculated on a cumulative basis for such calendar year;
(b) Notwithstanding the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(bterms of Section 8.7(a), Borrower commencing with the third (3rd) calendar quarter of 2003 and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust and (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case (A) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoingfor each calendar quarter thereafter, the Borrower may pay a Distribution shall not make any Distributions other than Distributions to its partners common or preferred shareholders provided that such Distributions in the aggregate do not exceed ninety percent (90%) of sums received by it pursuant to the Tax Indemnity Agreement"REIT taxable income" calculated on a cumulative basis in a calendar year;
(c) In the event that an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust shall not make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status of the TrustBorrower, as evidenced by a certification of the principal chief financial or accounting officer of the Trust Borrower containing calculations in reasonable detail reasonably satisfactory in form and substance to the Agent; provided, however, and
(d) In the event that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; and
(d) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred continuing and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall not make any Distributions whatsoever, either directly or indirectly.
Appears in 1 contract
Distributions. Neither the Borrower nor the Trust shall make any Distributions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted];
(b) The Borrower and the Trust shall not declare or make any Distribution if such Distribution is in excess of the amount which, when added to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance payment of common any distribution on or in respect of any equity interests, or Preferred Equity of the Borrower or the Trust and (ii) repurchase common stock issued by any payment on account of the Trust in an amount not exceeding purchase, redemption, retirement or acquisition of any option, warrant or other right to acquire such equity interests; provided that the limit set forth in §8.3(j)(ii), so long as in either case Borrower may make one or more distributions of (A) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemptionPrincipal Collections if, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchasedistribution, (v) shall be less than fifty percent (50%). Notwithstanding as certified in writing by the foregoingBorrower and Servicer to the Facility Agent, the Borrower may pay Collateral Agent and the Collateral Custodian (with a Distribution copy to its partners of sums received by it each Agent), sufficient proceeds remain for all payments to be made pursuant to Section 8.3(a)(i) (other than clause (N) thereof) and Section 8.3(a)(ii) (other than clause (J) thereof) on the Tax Indemnity Agreement;
next Distribution Date, (cw) In the event that an no Event of Default, Unmatured Event of Default, Unmatured Servicer Default or Servicer Default shall have occurred and be continuing, neither (x) each Collateral Quality Test is satisfied, (y) the Borrower nor Minimum Equity Test is satisfied and (z) the Trust shall make Advances Outstanding do not exceed the lower of the Borrowing Base and the Maximum Availability (as evidenced by delivery of a borrowing base certificate setting forth such calculation), (B) amounts paid to it pursuant to Section 8.3(a) on the applicable Distribution Date, (C) the proceeds of any Distributions other than Advance on the minimum Distributions applicable Advance Date, but only if none of the proceeds from such Advance are needed by the Borrower to settle the Trust acquisition of any Eligible Collateral Obligation and (D) any asset that the Borrower has been directed to divest pursuant to Section 10.28.
(b) Prior to foreclosure by the Trust required Facility Agent upon any Collateral pursuant to Section 13.3(c), nothing in this Section 10.16 or otherwise in this Agreement shall restrict (i) the Servicer from exercising any Warrant Assets issued to it by Obligors from time to time or (ii) Borrower from exercising any Warrant Assets issued to it by Obligors from time to time to the extent funds are available to Borrower under the Code Section 8.3(a) or made available to maintain the REIT Status of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; and
(d) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectlyBorrower.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Vista Credit Strategic Lending Corp.)
Distributions. Neither the Borrower nor the Trust shall make any Distributions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted];
(b) The Borrower and the Trust shall not make any Distribution if such Distribution is in excess of the amount which, when added to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust and (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case (A) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;
(c) In the event that an Event of Default (a) the Seller shall not have objected to the amount claimed by a Buyer Indemnified Party for indemnification with respect to any Loss set forth in a notice provided in accordance with Section 9.04(a) or (b) the Seller shall have occurred delivered notice of a disagreement as to the amount of any indemnification requested by a Buyer Indemnified Party and be continuingeither (i) the Seller and such Buyer Indemnified Party shall have, neither subsequent to the Borrower nor giving of such notice, mutually agreed that the Trust Seller is obligated to indemnify such Buyer Indemnified Party for a specified amount or (ii) a final nonappealable judgment shall make any Distributions other than the minimum Distributions have been rendered by the Borrower court having jurisdiction over the matters relating to such claim by such Buyer Indemnified Party for indemnification from the Seller, the Seller shall return to the Trust Buyer Purchase Shares, or if such shares are subsequently converted into Common Stock, then shares of Common Stock, the value of which shall be deemed to be the greater of (i) $9,104.89 per Purchase Share (such amount being assigned to the number of shares of Common Stock such Purchase share is subsequently converted into) and (ii) (if the Purchase Shares have been converted into Common Stock) the average volume weighted average price of the Common Stock for the thirty day period prior to the final resolution of the applicable indemnification or other claim.
(b) In the event that (a) the Buyer shall not have objected to the amount claimed by a Seller Indemnified Party for indemnification with respect to any Loss set forth in a notice provided in accordance with Section 9.04(a) or (b) the Buyer shall have delivered notice of a disagreement as to the amount of any indemnification requested by a Seller Indemnified Party and either (i) the Buyer and such Seller Indemnified Party shall have, subsequent to the giving of such notice, mutually agreed that the Buyer is obligated to indemnify such Seller Indemnified Party for a specified amount or (ii) a final nonappealable judgment shall have been rendered by the Trust required under court having jurisdiction over the Code matters relating to maintain such claim by such Seller Indemnified Party for indemnification from the REIT Status Buyer, the Buyer shall issue to the Seller additional shares of Series D-1 Preferred Stock, or if such shares have all been subsequently converted into Common Stock, then shares of Common Stock, the value of which shall be deemed to be the greater of (i) $9,104.89 per Purchase Share (such amount being assigned to the number of shares of Common Stock such Purchase share is subsequently converted into) and (ii) (if the Purchase Shares have been converted into Common Stock) the average volume weighted average price of the Trust, as evidenced by a certification Common Stock for the thirty day period prior to the final resolution of the principal financial applicable indemnification or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; and
(d) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectlyother claim.
Appears in 1 contract
Sources: Asset Purchase Agreement (OncBioMune Pharmaceuticals, Inc)
Distributions. Neither the Borrower nor the Trust shall make any Distributions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted];
(b) The Borrower and the Trust shall not make any Distribution if such Distribution is in excess of the amount which, when added to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust and (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case (A) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;
(c) In the event that Unless an Event of Default or Trigger Event shall have occurred and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust Pledgor shall be entitled to make receive, retain and distribute any Distributions and all distributions paid in respect of the Collateral in compliance with the terms of the Intercreditor Agreement; provided, that any and all
(i) distributions paid or payable in respect of any Collateral (whether paid in cash, securities or other property) in connection with the repurchase of common a partial or preferred stock total liquidation or dissolution of the Trust at Partnership (other than in connection with any time after deemed liquidation on account of a termination of the Partnership under Section 708(b)(1)(B) of the Code), and
(ii) distributions of all property (whether cash, securities or other property) paid, payable or otherwise distributed in redemption of, or in exchange for, the property described in Section 2(a) above, shall be, and shall be forthwith delivered to the Collateral Agent to hold as, Collateral and shall, if received by the Pledgor, be received in trust for the benefit of the Collateral Agent, be segregated from the other property or funds of the Pledgor and be forthwith delivered to the Collateral Agent as Collateral in the same form as so received (with any necessary endorsement). Upon the occurrence and during the continuance of an Event of Default or Trigger Event, all rights of the Pledgor to receive the distributions which it would otherwise be authorized to receive and retain pursuant to the preceding sentence shall cease and all such rights shall thereupon become vested in the Collateral Agent which shall thereupon have occurred the sole right to receive and be continuinghold as Collateral such distributions; and
(d) Notwithstanding the foregoingprovided, at any time that if and when an Event of Default or Trigger Event is cured in accordance with the applicable provisions of the Financing Documents, all rights of the Pledgor shall have occurred be restored and the maturity Collateral Agent shall promptly turn over to the Pledgor all distributions so received during the period of the Obligations has been accelerated, neither continuance of the Borrower nor applicable Event of Default or Trigger Event(less the Trust shall make any Distributions whatsoever, directly or indirectlyamount thereof applied by the Collateral Agent in accordance with Section 12(c) below).
Appears in 1 contract
Sources: General Partner Pledge and Security Agreement (Panda Interfunding Corp)
Distributions. Neither The Interim Target Product Revenues and the Borrower nor the Trust Target Product Revenues shall make any Distributions which would cause it to violate any be assessed on a cumulative basis by Acquiror as of the following covenants:
(a) [Intentionally Deleted];
(b) The Borrower final day of each of the Interim Revenue Period and the Trust Target Revenue Period, respectively. If and to the extent (1) Interim Target Product Revenues would result in the issuance of Interim Additional Consideration Shares (determined pursuant to the definition of such term above) and/or (2) Target Product Revenues would result in the issuance of Final Additional Consideration Shares (determined pursuant to the definition of such term above), then as soon as practicable, which shall not make any Distribution if such Distribution is in excess be sooner than the 15th business day nor later than the 30th business day following the earlier of the amount which, when added to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance the resolution of common equity or Preferred Equity of the Borrower or the Trust and any dispute pursuant to Section 1.6(c)(iii), (ii) repurchase common stock issued by the Trust in an amount not exceeding expiration of the limit set forth in §8.3(j)(ii), so long as in either case (Atime period during which the Stockholder Representative may deliver the Dispute Notice pursuant to Section 1.6(c)(ii) no Event of Default shall have occurred and be continuing on without the date delivery of any such repurchase Dispute Notice or redemption(iii) the written and unconditional waiver by the Stockholder Representative of the time period during which the Stockholder Representative may deliver the Dispute Notice pursuant to Section 1.6(c)(ii), (B) no Default Acquiror shall issue or Event caused to be issued to the Former Target Stockholders the requisite number of Default Interim Additional Consideration Shares or Final Additional Consideration Shares, as applicable, which shall occur be issuable to Former Target Stockholders in accordance with the Interim Additional Consideration Exchange Ratio and/or the Final Additional Consideration Exchange Ratio. Each date on which such Additional Consideration Shares are issued to the Former Target Stockholders is referred to herein as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a “Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;
(c) In the event that an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; and
(d) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectlyDate.”
Appears in 1 contract
Distributions. Neither the Borrower nor the Trust shall make any Distributions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted];
(b) The Borrower and the Trust shall not make any Distribution if such Distribution is in excess of the amount which, when added to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust and (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case (A) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;
(c) In the event that any Non-Capital Distribution is to be paid on or with respect to the Pledged Interests at a time when no Event of Default has occurred and is continuing, such Non-Capital Distribution shall be paid directly to the Pledgor; provided that Pledgor shall hold such Non-Capital Distribution in trust and promptly, and in no event more than three (3) Business Days after receipt thereof by Pledgor, pay such Non-Capital Distribution to Pledgee in an amount equal to the amount of interest (the "Interest Amount") that has accrued since the date of the immediately preceding Non-Capital Distribution (or, in the case of the first such Non-Capital Distribution, since September 1, 1995) to the date of such Non-Capital Distribution at the rate of 5.5% per annum, on a principal amount equal to the Pledge Amount, as such Pledge Amount may change from time to time pursuant to this Pledge and Security Agreement. Unless and until an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust Pledgor shall be entitled to make any receive, retain and apply Non-Capital Distributions in connection with the repurchase of common or preferred stock excess of the Trust at Interest Amount free and clear of the lien of this Pledge and Security Agreement and shall not be obligated to pay or invest such amounts to or in any time Person (and, if Pledgee shall receive any Non-Capital Distribution after an September 1, 1995, any portion of such Non-Capital Distribution in excess of the Interest Amount shall, if no Event of Default shall have occurred and be continuing; and, be promptly returned by Pledgee to Pledgor). Any Non-Capital Distributions paid to Pledgee in accordance with this Pledge and Security Agreement shall be applied by Pledgee to pay accrued and unpaid interest on the Loan and shall be deemed to be a contribution by the affiliates of Pledgor that are partners in Borrower to the capital of Borrower.
(db) Notwithstanding the foregoingAll Capital Distributions shall be held in trust by Pledgor and promptly, at any time when an Event of Default shall have occurred but in no event more than three (3) Business Days after receipt thereof by Pledgor, paid or delivered to Pledgee and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectlyheld by Pledgee as Collateral pursuant to this Pledge and Security Agreement."
Appears in 1 contract
Distributions. Neither To the Borrower nor extent permitted by applicable Law and hereunder, distributions to Members may be declared by the Trust Manager out of funds legally available therefor in such amounts and on such terms (including the payment dates of such distributions) as the Manager shall make any Distributions which would cause it determine using such record date as the Manager may designate; such distribution shall be made to violate any the Members as of the close of business on such record date in the following covenantspriority:
(ai) [Intentionally Deleted]In the Manager’s discretion, out of the accumulated Profits of the Company since the Effective Time that have not previously been distributed under this Section 5.1(a)(i), all or a portion of the Unpaid Series 4 Priority Return in respect of the Series 4 Preferred Units;
(bii) The Borrower and In the Trust shall not make any Distribution if such Distribution is in excess Manager’s discretion, out of the amount which, when added to accumulated Profits of the amount of all other Distributions paid in Company since the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in Series 8 Exchange Time that have not previously been distributed under this §8.7(bSection 5.1(a)(ii), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity all or Preferred Equity a portion of the Borrower or Unpaid Series 8 Priority Return in respect of the Trust and (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case (A) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity AgreementSeries 8 Preferred Units;
(ciii) In Thereafter, on a pro rata basis in accordance with the event number of Units owned by each Member (except that an Event repurchases or exchanges made in accordance with Section 3.4(c) or payments made in accordance with Section 6.4 need not be on a pro rata basis) in accordance with the number of Default shall have occurred and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions Units owned by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status each Member as of the Trust, as evidenced by a certification close of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agentbusiness on such record date; provided, however, that neither Borrower nor in the Trust case of distributions under clauses (i) and (ii) hereof, the Company shall have the obligation to make distributions pursuant to Section 6.4; and provided further that, notwithstanding any other provision herein to the contrary, no distributions shall be entitled made to make any Distributions Member to the extent such distribution would render the Company insolvent and provided further, that no distribution shall be made to the holders of Common Units pursuant to this Section 5.1(a) in connection respect thereof unless and until all distributions to the holders of Preferred Units have been made in accordance with the repurchase of common or preferred stock Section 3.7. For purposes of the Trust at any time after an Event foregoing sentence, insolvency means the inability of Default shall have occurred and be continuing; and
(d) Notwithstanding the foregoing, at any time Company to meet its payment obligations when an Event due. Promptly following the designation of Default shall have occurred a record date and the maturity declaration of a distribution pursuant to this Section 5.1, the Manager shall give notice to each Member of the Obligations has been acceleratedrecord date, neither the Borrower nor amount and the Trust shall make any Distributions whatsoever, directly or indirectlyterms of the distribution and the payment date thereof.
Appears in 1 contract
Distributions. Neither the Borrower nor the Trust GKK shall make any Distributions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted];
(b) The Neither the Borrower and the Trust nor GKK shall not make any Distribution if such Distribution is in excess of the amount which, when added to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five one hundred percent (95100%) of their respective its Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing provided that Borrower may declare and pay cash Distributions to GKK and other holders of partnership interests in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) extent necessary for GKK (i) redeem existing Preferred Equity with proceeds to be able to make, and GKK shall be permitted to make, Distributions to its shareholders in such amounts as are necessary (x) to maintain the REIT Status of GKK (as reasonably evidenced by GKK to Agent) and (y) from an issuance amounts not included in the calculation of common equity or Preferred Equity Funds from Operations, to avoid the payment of taxes imposed under Code Section 857(b)(1) and 4981 of the Borrower or the Trust Code and (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(iito pay any taxes imposed under Sections 857(b)(3), so long (4), (5), (6) or (7) of the Code; provided further that no Default or Event of Default shall occur as a result of any such Distribution;
(b) Notwithstanding the terms of §8.7(a), Borrower may make Distributions to GKK, and GKK may make Distributions in either case order to repurchase or otherwise redeem up to an aggregate amount of $75,000,000.00 of equity securities of GKK, provided that such Distributions to repurchase or otherwise redeem such equity securities shall only be made in the event that (Ai) no Default or Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, redemption and (Bii) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;
(c) In the event that an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; and
(dc) Notwithstanding the foregoing, at any time when an a Default under §12.1(a) or (b), any Default under §12.1(c) relating to a Default under §§9.1 through 9.6 or Event of Default shall have occurred and the maturity of the Obligations has been acceleratedis continuing, neither the Borrower nor the Trust GKK shall make any Distributions whatsoever, directly or indirectly.
Appears in 1 contract
Distributions. Neither (a) Except for the Borrower nor Special Distribution, the Trust shall make any Distributions which would cause it Common Distribution and distributions pursuant to violate any Section 8.2 in connection with the dissolution and liquidation of the Partnership, the General Partner shall cause the Partnership to distribute all Net Cash Flow to the Partners from time to time as determined by the General Partner, but in any event not less frequently than quarterly, in such amounts as the General Partner shall determine, and in the following covenantspriority:
(ai) [Intentionally Deleted];First, to the extent that the amount of cash distributed to the General Partner for all prior Quarters pursuant to Section 6.2(a)(ii) (other than the immediately preceding Quarter) was less than the Preferred Distribution for each of the outstanding Preferred Units for all such Quarters, and such deficiency was not previously distributed pursuant to this subsection (i) or paid as part of a Preferred Unit Redemption Amount (a "Preferred Distribution Shortfall"), Net Cash Flow shall be distributed to the General Partner in an amount equal to such Preferred Distribution Shortfall for all such prior Quarters.
(ii) Second, Net Cash Flow shall be distributed to the General Partner on the Partnership Payment Date in an amount equal to the Preferred Distribution for the immediately preceding Quarter for each outstanding Preferred Unit then held by the General Partner.
(iii) Third, to the extent the amount of cash distributed to the Partners holding Convertible Preferred Units pursuant to Section 6.2(a)(iv) for all prior Quarters (other than the immediately preceding Quarter) was less than the Convertible Preferred Distribution for each of the outstanding Convertible Preferred Units for all such Quarters, and such deficiency was not previously distributed pursuant to this subsection (iii) or paid as part of Convertible Preferred Unit Redemption Amount (a "Convertible Preferred Distribution Shortfall"), Net Cash Flow shall be distributed to the Partners holding Convertible Preferred Units, pro rata in accordance with their respective Convertible Preferred Units, in an amount equal to such Convertible Preferred Distribution Shortfall for all such prior Quarters.
(iv) Fourth, Net Cash Flow shall be distributed to the Partners holding Convertible Preferred Units on the Partnership Payment Date in an amount equal to the Convertible Preferred Distribution for the immediately preceding Quarter for each outstanding Convertible Preferred Unit then held by the Partners holding Convertible Preferred Units, pro rata in accordance with their respective Convertible Preferred Units.
(v) Fifth, to the extent that the amount of cash distributed to Partners pursuant to Section 6.2(a)(vi) for all prior Quarters (other than the immediately preceding Quarter) was less than the Series C Preferred Distribution for each of the outstanding Series C Preferred Units for all such Quarters, and such deficiency was not previously distributed pursuant to this subsection (v) or paid as part of a Series C Preferred Unit Redemption Amount (a "Series C Preferred Distribution Shortfall"), Net Cash Flow in an amount equal to such Series C Preferred Distribution Shortfall for all such prior quarters shall be distributed to the Partners holding Series C Preferred Units on the Partnership Payment Date for the immediately preceding Quarter, pro rata, in accordance with their respective Series C Preferred Units.
(vi) Sixth, Net Cash Flow shall be distributed to the Partners holding Series C Preferred Units in an amount equal to the Series C Preferred Distribution for the immediately preceding Quarter for each outstanding Series C Preferred Unit, pro rata, in accordance with their respective Series C Preferred Units.
(vii) Seventh, the balance of any Net Cash Flow to be distributed, if any, shall be distributed to the Partners holding Common Units on the Partnership Payment Date with respect to the immediately preceding Quarter, pro rata in accordance with their respective Common Units.
(b) The Borrower and On June 9, 1998, the Trust shall not make any Distribution if such Distribution is in excess Partnership formally declared a cash distribution of the amount which, when added to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing $0.50 per outstanding Common Unit and Series C Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust Unit and (ii) repurchase common stock issued by $0.60 per outstanding Convertible Preferred Unit, in each case to each holder of record of Common Units, Convertible Preferred Units and Series C Preferred Units as of the Trust in an amount not exceeding close of the limit set forth in §8.3(j)(iitransfer books of the Partnership immediately prior to the Merger (the "Special Distribution"), so long as in either case (A) no Event of Default shall have occurred and be continuing on the . The payment date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) Special Distribution shall be less than fifty percent (50%). Notwithstanding the foregoingon June 15, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;1998.
(c) In the event that an Event of Default shall have occurred and be continuingOn June 15, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status 1998 immediately after consummation of the TrustMerger, the Partnership formally declared the distribution of each issued and outstanding common unit of Horizon Group Properties, L.P. (each, an "HGP Common Unit") to each holder of record of Common Units, Convertible Preferred Units and Series C Preferred Units as evidenced by a certification of the principal financial or accounting officer close of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock transfer books of the Trust at any time Partnership immediately after an Event of Default shall have occurred and be continuing; and
(d) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred and the maturity consummation of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectly.Merger such that (i) for every twenty (20)
Appears in 1 contract
Distributions. Neither the Borrower nor the Trust (a) The Partnership shall make distributions to the Partners of any Distributions which would cause it Cash Available for Distribution from time to violate time as determined by the General Partner, in its sole and absolute discretion. Any such distributions, and any distributions to be made to the Partners in connection with the liquidation of the Partnership, shall be made in accordance with the following covenantspriorities:
(ai) [Intentionally Deleted];
(b) The Borrower and the Trust shall not make any Distribution if such Distribution is in excess of the amount whichfirst, when added to the amount of all other Distributions paid in the same fiscal quarter and event the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust and (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case (A) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) Capital Priority Amounts with respect to any repurchase of common stock pursuant to §8.7(b)(ii)Partners are greater than zero, prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant Partners to the Tax Indemnity Agreementextent of and in proportion to their respective Capital Priority Amounts, until such amounts are reduced to zero;
(cii) In second, in the event that an Event of Default shall have occurred and be continuingthe Undistributed Prior Profit Amounts with respect to any Partners are greater than zero, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to such Partners to the Trust extent of and by the Trust required under the Code in proportion to maintain the REIT Status of the Trusttheir respective Undistributed Prior Profit Amounts, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance until such amounts are reduced to Agentzero; provided, however, that neither Borrower nor if there are Undistributed Prior Profit Amounts attributable to more than one Valuation Date and the Trust amount to be distributed hereunder is less than the aggregate Undistributed Prior Profit Amounts, then the distribution hereunder shall be entitled made in the order that such Undistributed Prior Profit Amounts arose, so that the Undistributed Prior Profit Amounts from the earliest Valuation Date shall be reduced to make any Distributions zero before distributions are made with respect to Undistributed Prior Profit Amounts attributable to subsequent Valuation Dates, and so on;
(iii) third, to the Partners, to the extent of and in connection with proportion to the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuingremaining positive balances in their Capital Accounts; and
(div) thereafter, to the Partners other than any Withdrawn Limited Partners, pro rata in proportion to their respective Percentage Interests. Notwithstanding the foregoingforegoing provisions of this Section 3.04(a), at any time when the General Partner shall cause the Partnership to distribute to each Partner, without regard to the priorities set forth above, an Event amount of Default shall have occurred the Partnership’s Cash Available for Distribution (to the extent thereof) equal to the product of (x) forty percent (40%) multiplied by (y) the Partnership’s estimated net taxable income allocable to such Partner for such period, as determined by the General Partner in consultation with the accountants who prepare the Partnership’s federal partnership information return (Form 1065) for such period, in proportion to the estimated amount of such net taxable income allocable to each Partner, and the maturity amount so distributed to each Partner (the “Tax Distribution Amount”) shall be treated as having been received pursuant to the appropriate provisions set forth above for all purposes of this Agreement, including the determination of the Obligations has been acceleratedPartner’s Capital Priority Amount, neither and Undistributed Prior Profit Amounts, as the Borrower nor case may be. In the Trust event any distributions are made pursuant to the preceding sentence and, as a result, any Partners receive distributions in amounts less than the amounts they would have received without giving effect to the preceding sentence, then distributions for subsequent periods pursuant to this Section 3.04(a) shall make any Distributions whatsoeverbe made on a priority basis so as to cause such Partners to receive, directly as quickly as possible, the amount of distributions they would have received had the distributions required by the preceding sentence not occurred, subject always to the requirements under the preceding sentence with respect to the distribution of Tax Distribution Amounts for such subsequent periods.
(b) Any amount distributed pursuant to Section 3.04(a)(i) (or indirectlydeemed distributed pursuant to such section) shall be applied first to reduce each Partner’s outstanding Unrecovered Partner Priority Return and after each Partner’s Unrecovered Partner Priority Return is reduced to zero, then to reduce each Partner’s Net Invested Capital.
Appears in 1 contract
Distributions. Neither On a quarterly basis, and more often as the Borrower nor Managing Member may determine in its sole discretion, the Trust shall make any Distributions which would cause it Company: (i) will distribute to violate any the Members Net Cash Flow of the Company; and (ii) may distribute other assets of the Company as determined by the Managing Member in its sole discretion, such distribution not to be unreasonably withheld (the amount of any such distribution of Net Cash Flow or other assets of the Company, the “Distributable Amount”). The Company will not distribute Net Cash Flow unless the Managing Member determines in its reasonable discretion that (x) such Net Cash Flow or portion thereof proposed to be distributed is held by the Company in the form of cash and (y) such cash is not needed by the Company for the payment of expenses. Unless otherwise unanimously agreed by the Members, Net Cash Flow and Operating Cash Flow of the Company will be calculated and distributed separately for each Pool, and will be distributed to the Members in the following covenantsorder of priorities:
(a) [Intentionally Deleted]First, 100 percent of such Distributable Amount will be distributed to the Members, in proportion to and to the extent of their respective then outstanding Unsatisfied Preferred Returns;
(b) The Borrower and the Trust shall not make Next, 100 percent of any Distribution if such Distribution is in excess of the amount which, when added remaining Distributable Amount will be distributed to the amount of all other Distributions paid Members in proportion to and to the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) extent of their respective Funds from Operations for then outstanding Unreturned Capital Contributions; and
(c) Thereafter, the four (4) consecutive fiscal quarters ending prior balance of any remaining Distributable Amount will be distributed * * * % to the quarter Members in which such Distribution is paid; provided, however, notwithstanding the foregoing proportion to their Percentage Interests and * * * % to Black Ridge in this §8.7(b), Borrower and the Trust may, subject respect of its Management Participation Interest. The Members intend that nonliquidating distributions to the limitations set forth in this Agreement (including specificallyMembers under Section 7.1 be separately calculated with respect to each Pool. For the avoidance of doubt, but without limitation, those contained in §8.7(b)the Members intend that distributions under Section 7.1(a) (iand 7.1(b) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity be calculated by allocating to each Pool its proper share of the Borrower or the Trust Unsatisfied Preferred Returns and (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case (A) no Event Unreturned Capital Contributions of Default shall have occurred and be continuing on the date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemptionMember, and (Cthat distributions may accordingly be made to the Members pursuant to Section 7.1(c) with respect to any repurchase a given Pool even though there remain Unsatisfied Preferred Returns and Unreturned Capital Contributions with respect to other Pools. The Management Participation Interest has been structured to satisfy the requirements of common stock pursuant Rev. Proc. 93-27 to §8.7(b)(iibe treated as a profits interest thereunder, and for avoidance of doubt, the Members intend the provisions of Section 7.1(a), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchaseb) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;
and (c) In to satisfy the event that an Event requirement of Default shall have occurred and be continuingsuch revenue procedure that, neither if the Borrower nor Company were liquidated immediately following the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status issuance of the TrustManagement Participation Agreement, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; and
(d) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred its debts repaid and the maturity of the Obligations has been acceleratednet remaining proceeds distributed to Merced pursuant to Section 7.1(a) and (b), neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectlythere would be no remaining proceeds available for distribution to Black Ridge under Section 7.1(c).
Appears in 1 contract
Sources: Limited Liability Company Agreement (Black Ridge Oil & Gas, Inc.)
Distributions. Neither the Borrower nor the Trust shall EPR will not make any Distributions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted];
(b) The Borrower and the Trust shall EPR will not make pay any Distribution if such Distribution is in excess of to its shareholders the amount of which, when added to the amount of all other Distributions paid by it in the same fiscal quarter and the three immediately preceding three (3) fiscal quarters quarters, would exceed ninety-five ninety percent (9590%) of their respective Funds from Operations its FFO before preferred distributions for such period; provided that EPR shall be permitted to pay an amount in excess of such limit if necessary to permit EPR to maintain its REIT Status, as evidenced by a certification of the four (4) consecutive fiscal quarters ending prior chief financial officer of EPR containing calculations in reasonable detail reasonably satisfactory in form and substance to the quarter in which such Distribution is paid; providedAgent. Notwithstanding the foregoing, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust EPR may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) make Distributions (which shall not be included in the ninety percent (90%) FFO test set forth in the preceding sentence) in order to enable EPR to repurchase common shares of EPR and the right to redeem any then outstanding preferred shares in accordance with their terms so long as (i) redeem existing Preferred Equity with proceeds from an issuance of common equity any such repurchase or Preferred Equity of the Borrower or the Trust and redemption is made in EPR’s prudent business judgment, (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case (A) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, redemption and (Biii) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;
(cb) In the event that an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust EPR shall not make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status of the TrustEPR, as evidenced by a certification of the principal chief financial or accounting officer of the Trust EPR containing calculations in reasonable detail reasonably satisfactory in form and substance to the Agent; provided, however, that neither Borrower nor the Trust EPR shall not be entitled to make any Distributions Distribution in connection with the repurchase of common or preferred stock of the Trust Borrower at any time after an Event of Default shall have occurred and be continuing; and
(dc) Notwithstanding In the foregoing, at any time when event that an Event of Default shall have occurred and be continuing and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust EPR shall not make any Distributions whatsoever, either directly or indirectly.
Appears in 1 contract
Sources: Master Credit Agreement (Entertainment Properties Trust)
Distributions. Neither the Borrower nor the Trust shall make any Distributions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted];
(b) The Borrower and the Trust shall not declare or make any Distribution if such Distribution is in excess of the amount which, when added to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance payment of common any distribution on or in respect of any equity interests, or Preferred Equity of the Borrower or the Trust and (ii) repurchase common stock issued by any payment on account of the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii)purchase, redemption, retirement or acquisition of any option, warrant or other right to acquire such equity interests; provided that so long as as, in either each case (A) both before and immediately after giving effect thereto, no Event of Default or Unmatured Event of Default shall have occurred and be continuing (other than in the case of clause (C) below), the Borrower may make a distribution:
(A) of amounts paid to it pursuant to Section 8.3(a) on the date of any such repurchase or redemption, applicable Distribution Date;
(B) no Default or Event of Default shall occur as a result the proceeds of any Advance on the applicable Advance Date, but only if none of the proceeds from such repurchase Advance are needed to settle the acquisition of any Eligible Collateral Obligation;
(C) of any asset that the Facility Agent requires that the Borrower dispose of as provided in Section 10.29; and
(D) other than amounts paid to it pursuant to Section 8.3(a), during any Distribution Period, (1) of an aggregate amount of Principal Collections or redemptionproceeds of any Advance (excluding any such amounts to be applied to the acquisition of any Eligible Collateral Obligations) not to exceed 25.0% of the daily average of the Aggregate Eligible Collateral Obligation Amount during the related Distribution Period, and (C2) with respect to any repurchase Permitted RIC Distribution; provided further that in the case of common stock pursuant to §8.7(b)(iiany distribution or payment under clause (D) of this Section 10.16(a), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (immediately after giving effect to such repurchasedistribution or payment (i) each Collateral Quality Test is and will remain satisfied, (ii) the Minimum Diversification Condition is and will remain satisfied, and (iii) as certified in writing by Borrower and Servicer to the Administrative Agent (with a copy to each Lender and the Collateral Agent), sufficient proceeds remain for all payments to be made pursuant to Section 8.3(a)(ii) (other than clauses (H) (solely to the extent no amounts are due and payable to any Secured Party), (I) or (J) thereof) on the following Distribution Date.
(b) Prior to foreclosure by the Facility Agent upon any Collateral pursuant to Section 13.3(c), nothing in this Section 10.16 or otherwise in this Agreement shall be less than fifty percent (50%). Notwithstanding the foregoing, restrict the Borrower may pay a Distribution from exercising any Warrant Assets issued to its partners of sums received it by it pursuant Obligors from time to time to the Tax Indemnity Agreement;
(c) In the event that an Event of Default shall have occurred and be continuing, neither extent funds are available to the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower under Section 8.3(a) or made available to the Trust and by the Trust required under the Code to maintain the REIT Status of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; and
(d) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectlyBorrower.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Silver Point Specialty Lending Fund)
Distributions. Neither the Borrower nor the Trust shall Directly or indirectly, make or declare any Distributions which would cause it Restricted Payment or incur any obligation (contingent or otherwise) to violate any of the following covenantsdo so, except for Restricted Payments:
(a) [Intentionally Deleted]from proceeds of the Loans in accordance with Section 5.1;
(b) The Borrower and the Trust shall not make from a Managing Member to Borrower;
(c) to Member from Excluded Revenues; and
(d) on any Distribution if such Distribution is in excess of the amount which, when added to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust and (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii)Scheduled Payment Date, so long as in either case (A) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, (Bi) no Default or Event of Default shall occur as has occurred and is continuing or would be caused thereby, (ii) no Sweep Event has occurred and is continuing (or if a result of any Sweep Event has occurred, it is not prior to the second fiscal quarter following the date such repurchase or redemptionSweep Event was remedied, it being understood and (C) agreed that a Bankruptcy Event with respect to any repurchase of common stock pursuant to §8.7(b)(iiSolarCity cannot be remedied), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that (iii) no Subject Fund Sweep Event has 91 Kronor Loan Agreement [***] Confidential treatment has been requested for the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. occurred and, after giving effect to such repurchaseany prepayments made pursuant to Section 2.1(f)(ii), is continuing, (iv) shall be less than fifty percent the Borrower, after giving effect to any prepayments made pursuant to Section 2.1(f)(ii), is in compliance with the Borrowing Base Requirements, (50%). Notwithstanding the foregoing, v) the Borrower may pay a Distribution is in compliance with the terms of Section 5.11(c) hereof, (vi) all Accounts have been funded in the minimum amounts required under the CADA, (vii) no amounts that are to its partners have been deposited in the Prepayment Account (as defined in the CADA) as of sums received by it such Scheduled Payment Date pursuant to Section 3.2(a) of the Tax Indemnity Agreement;
CADA are on deposit in the Revenue Account, and (cviii) In the Borrower has certified in writing to the Administrative Agent that it is not aware of any event or circumstance that an would reasonably be considered likely to cause or result in the occurrence of a Default or Event of Default shall have occurred and be continuingwithin 30 days from such Scheduled Payment Date, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the from Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; and
(d) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectlyMember from Excess Cash Flow.
Appears in 1 contract
Sources: Loan Agreement (Solarcity Corp)
Distributions. Neither From and after the Second Amendment Date and until the commencement of the Distributions Covenant Commencement Quarter, neither the Borrower nor the Trust REIT shall make any Distributions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted];
(b) The Borrower and the Trust shall not make pay any Distribution if such Distribution is in excess of the amount which, when added to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four owners (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) other than (i) redeem existing Preferred Equity Distributions in compliance with proceeds from an issuance the terms and conditions of common equity or Preferred Equity of the Borrower or the Trust this Agreement and (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case (A) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a exists or would result of any such repurchase or redemptiontherefrom, and (Cii) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant Distributions in an amount equal to the Tax Indemnity Agreement;
(c) In the event that an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust distributions required under the Code to maintain the REIT Status of the TrustREIT, as evidenced by a certification of the principal financial or accounting officer of the Trust REIT containing calculations in reasonable detail reasonably satisfactory in form and substance to the Agent, in each case, in compliance with the terms and conditions of this Agreement, and (iii) Distributions expressly permitted pursuant to the third (3rd) sentence of this §8.7(a)). From and after the commencement of the Distributions Covenant Commencement Quarter, neither Borrower nor REIT shall pay any Distribution (other than any Distribution expressly permitted pursuant to the third (3rd) sentence of this §8.7(a)) to their respective owners to the extent that the aggregate amount of such Distributions paid in any fiscal quarter would exceed the Distributions Limit; provided, provided however, that neither Borrower nor the Trust period of measurement under this second (2nd) sentence of §8.7(a) shall commence with the Distributions Covenant Commencement Quarter, and until such time as four (4) full fiscal quarters have elapsed after the commencement of the Distributions Covenant Commencement Quarter, the aggregate amount of such permitted Distributions and such Person’s Modified FFO shall be entitled determined by using only the fiscal quarters that have elapsed from and after the Distributions Covenant Commencement Quarter and annualizing such amounts in a manner reasonably acceptable to the Agent, and provided, further, that the limitations contained in this second (2nd) sentence of §8.7(a) shall not preclude the Borrower or REIT from making Distributions in an amount (i) equal to the minimum distributions required under the Code to maintain the REIT Status of REIT and (ii) to avoid the payment of federal or state income or excise tax, in each case, as evidenced by a certification of the principal financial officer or accounting officer of REIT containing calculations in detail reasonably satisfactory in form and substance to the Agent; “Distributions Covenant Commencement Quarter” shall mean the first full fiscal quarter commencing after February 10, 2021 that is designated as the Distributions Covenant Commencement Quarter in accordance with the Distribution Trigger Conditions (and provided the Distribution Trigger Conditions shall have been satisfied with respect to such fiscal quarter). Notwithstanding the foregoing, so long as no Event of Default has occurred and is continuing or would result therefrom, including an Event of Default related to any financial covenant set forth in this Agreement, (i) the Borrower and REIT may request the Majority Lenders’ consent to a Distribution that is not a Distribution permitted by the immediately preceding sentence, which consent shall be granted or withheld in the sole, but good faith, business judgment of the Majority Lenders, (ii) from and after the commencement of the Distributions Covenant Commencement Quarter, the Borrower and REIT may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue (occurring in under thirty (30) days) of new Equity Interests, (iii) 119 the Borrower, REIT and each Subsidiary may make payments in lieu of the issuance of fractional shares representing insignificant interests in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of REIT, the Borrower or any Subsidiary, (iv) the Borrower, REIT and each Subsidiary may make non-cash Distributions in connection with the repurchase implementation of common or preferred pursuant to any retirement, health, stock option and other benefit plans, bonus plans, performance-based incentive plans, and other similar forms of compensation for the benefit of the Trust at directors, officers and employees of REIT, the Borrower and the Subsidiaries, (v) from and after the commencement of the Distributions Covenant Commencement Quarter, REIT may, and the Borrower may make Distributions to allow REIT to, make payments for share repurchase programs in connection with the listing of REIT on an exchange, provided that such payments shall be made within ninety (90) days of such listing and shall not exceed $300,000,000.00 in the aggregate (which limit shall not include payments, if any, made pursuant to §8.7(a)(vii) below), (vi) the Borrower or any time Guarantor may make any Distribution of non-core assets (or the Equity Interest of any Subsidiary of which the sole assets are non-core assets) acquired as permitted under §§8.3(o) or 8.4 provided that (A) such Distribution shall be made within one year of such acquisition, (B) immediately prior thereto, and immediately thereafter and after an giving effect thereto, no Default or Event of Default shall have has occurred or would result therefrom and be continuing; and
(dC) Notwithstanding the foregoingBorrower, REIT and their respective Subsidiaries, as applicable, will remain in pro forma compliance with the covenants set forth in §9 after giving effect to such Distribution, (vii) from and after the commencement of the Distributions Covenant Commencement Quarter, REIT may, and the Borrower may make Distributions to allow REIT to, at any time when an Event of Default time, make payments for share repurchases not to exceed $50,000,000.00 in the aggregate (which limit shall not include payments, if any, made pursuant to §8.7(a)(v) above), so long as, after giving effect to any such payment(s) made pursuant to this §8.7(a)(vii), in each case after such payment(s) are made, (A) the Borrower shall have occurred Unrestricted Cash and Cash Equivalents of at least Thirty Million and No/100 Dollars ($30,000,000.00), and (B) the maturity ratio of Consolidated Total Indebtedness to Consolidated Total Asset Value (expressed as a percentage), determined as of the Obligations has been accelerateddate such payment is made after giving effect thereto, neither shall not exceed fifty-five percent (55%), provided, that within five (5) Business Days after the making of any payment(s) pursuant to this §8.7(a)(vii), the Borrower nor shall deliver to the Trust Agent a Compliance Certificate, which Compliance Certificate shall include (in addition to the items included in the form of Compliance Certificate attached as Exhibit I hereto) in reasonable detail computations evidencing compliance with the covenants set forth in clauses (A) and (B) of this §8.7(a)(vii), (viii) in connection with the initial listing of REIT’s common stock on an exchange and continuing thereafter so long as REIT’s common stock is listed on such exchange, the Borrower shall be permitted to issue LTIP Units to Advisor pursuant to an Outperformance Agreement; provided that any further distributions with respect thereto shall be subject to the limits on Distributions set forth in this §8.7, and (ix) the Borrower and REIT shall be permitted to make Distributions to the Special Limited Partner in respect of the Incentive Listing Note consisting of (i) the issuance of operating partnership units of the Borrower or common stock of REIT to the Special Limited Partner upon the conversion of the Incentive Listing Note (other than any Permitted Incentive Listing Note Distribution), and (ii) from and after the commencement of the Distributions whatsoeverCovenant Commencement Quarter, directly or indirectlyPermitted Incentive Listing Note Distributions which in the aggregate shall not exceed $100,000,000. For purposes of this §8.7(a), Distributions shall not include any Dividend Reinvestment Proceeds. For the avoidance of doubt, this §8.7 shall have no effect for the period commencing on and including April 1, 2020 and ending on and including June 30, 2020.
Appears in 1 contract
Sources: Senior Secured Credit Agreement (Healthcare Trust, Inc.)
Distributions. Neither the Borrower nor the Trust shall make any Distributions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted];
(b) The Borrower and the Trust shall not declare or make (i) payment of any Distribution if such Distribution is distribution on or in excess respect of any equity interests, or (ii) any payment on account of the amount whichpurchase, when added redemption, retirement or acquisition of any option, warrant or other right to acquire such equity interests; provided that the amount Borrower may make a distribution of all other Distributions paid (A) on any Business Day during the Revolving Period in the same fiscal quarter accordance with Section 8.3(b)Section 8.3(b) (1) Interest Collections, (2) any Principal Collections or proceeds of any Loan, and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) any Collateral Obligations or other assets of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter Borrower, in which such Distribution is paid; providedeach case, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations as set forth in this Agreement clauses (including specifically, but without limitation, those contained in §8.7(b)A)(1) through (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust and (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(iiA)(3), so long as in either case (A) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (if after giving effect to such repurchasedistribution, (v) shall be less than fifty percent (50%). Notwithstanding the foregoing, as certified in writing by the Borrower may pay and Collateral Manager to the Agent (with a Distribution copy to its partners of sums received by it each Lender Agent), sufficient proceeds remain for all payments to be made pursuant to Section 8.3(a)Section 8.3(a)(i) (other than clause (N) thereof) and/or pursuant to Section 8.3(a)(ii) (other than clauses (I) and (J) thereof), as applicable, on the Tax Indemnity Agreement;
next Distribution Date, (cw) In the event that an no Unmatured Event of Default, Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default shall have occurred and be continuing, neither and (x) the Borrower nor Borrowing Base Condition is satisfied, (B) amounts paid (or released or distributed) to it pursuant to Section 8.3(a)Section 8.3(a) on the Trust applicable Distribution Date, (C) the proceeds of any Loan on the applicable Loan Date, if after giving effect to such distribution under this clause (C), (x) no Unmatured Event of Default, Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default shall make any Distributions other than have occurred and be continuing or (y) the minimum Distributions Borrowing Base Condition is satisfied, but only if such Loan is made in respect of an Eligible Collateral Obligation acquired by the Borrower prior to such Loan Date if such Eligible Collateral Obligation was identified on the Trust and by related Asset Approval Request as an asset with respect to which the Trust required under the Code to maintain the REIT Status of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled intends to make any Distributions a future distribution pursuant to this Section 10.16(a)(C) on such Loan Date and (D) in connection with a Permitted Securitization if after giving effect to such distribution, (v) as certified in writing by the repurchase Borrower and Collateral Manager to the Agent (with a copy to each Lender Agent), sufficient proceeds remain for all payments to be made pursuant to Section 8.3(a)Section 8.3(a) (other than clause (N) thereof) on the next Distribution Date, (w) no Unmatured Event of common Default, Event of Default, Unmatured Collateral Manager Event of Default or preferred stock of the Trust at any time after an Collateral Manager Event of Default shall have occurred and be continuing; and
, and (dx) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectlyBorrowing Base Condition is satisfied.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Blue Owl Capital Corp)
Distributions. Neither The Borrower shall not make, or permit any ------------- of its Subsidiaries to make, any Distributions (other than a dividend or other distribution of any shares of common Stock of the Borrower nor subject to the Trust shall make any Distributions which would cause it to violate any Parent's pledge under the Parent Pledge Agreement) in respect of the following covenantsBorrower's Stock or any Subordinated Debt of the Borrower, except that the Borrower may:
(a) [Intentionally Deleted];
(b) The Borrower and the Trust shall not make any Distribution if such Distribution is pay interest in excess respect of the amount which, when added Subordinated Debt owing to the amount Grandparent or any of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specificallyits Subsidiaries, but without limitation, those contained in §8.7(b)) only if:
(i) redeem existing Preferred Equity with proceeds from an issuance at the time of common equity or Preferred Equity of the Borrower or the Trust and (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case (A) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoingpayment, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;
(c) In the event that an Event of no Default shall have occurred and be continuing, neither the Borrower nor the Trust and
(ii) interest on such Subordinated Debt shall make any Distributions other than the minimum Distributions accrue at a rate per annum not exceeding a fixed rate of ***** per annum (or, if approved by the Borrower Required Lenders, such higher rate as is consistent with then-available market rates); -------------------------------------------------------------------------------- ***** Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the Trust omitted portions.
(b) repay or prepay principal owing in respect of Subordinated Debt owing to the Grandparent or any of its Subsidiaries, but only if:
(i) at the time of and by the Trust required under the Code after giving effect to maintain the REIT Status of the Trustsuch repayment or prepayment, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of no Default shall have occurred and be continuing; ,
(ii) the aggregate principal amount of all such Subordinated Debt that is being repaid or prepaid at such time shall not exceed the sum of:
(A) the difference, if any, between:
(1) the maximum aggregate principal amount of the Loans that could then be outstanding at such time under (S)2.01, and
(d2) Notwithstanding the foregoingsum of:
(I) the aggregate principal amount of the Loans that are actually outstanding at such time, at any time when an Event and
(II) the aggregate principal amount of Default such Subordinated Debt that shall have occurred been repaid or prepaid after the date of this Agreement and is allocable to amounts that may be distributed pursuant to this clause (A),
(B) the maturity difference, if any, between:
(1) the maximum aggregate principal amount of the Obligations has Indebtedness that could then be outstanding at such time under other Permitted Loan Agreements, and
(2) the sum of:
(I) the aggregate principal amount of the Indebtedness that is actually outstanding thereunder at such time, and
(II) the aggregate principal amount of such Subordinated Debt that shall have been acceleratedrepaid or prepaid after the date of this Agreement and is allocable to amounts that may be distributed pursuant to this clause (B), neither and
(C) the amount equal to:
(1) the aggregate principal amount of such Subordinated Debt that shall have been loaned to the Borrower nor within the Trust ***** days preceding the date of such repayment or prepayment, minus
(2) the aggregate principal amount of such Subordinated Debt that shall make any Distributions whatsoever, directly have been repaid within the ***** days preceding the date of such repayment or indirectly.prepayment and is allocable to amounts that may be distributed pursuant to this clause (C); provided that: --------
Appears in 1 contract
Sources: Loan Agreement (Omnipoint Corp \De\)
Distributions. Neither the Borrower nor the Trust shall make any Distributions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted];Immediately after the Company receives any Capital Contributions of Equalization Expenses attributable to a Member’s Pre-Effective Date Expenditures, as required under Section 7.1(a)(iii), the Board of Managers shall cause the Company to distribute an amount equal to such Capital Contributions to the Member that incurred the Pre-Effective Date Expenditures to which the Capital Contributions of Equalization Expenses are attributable. Distributions pursuant to this Section 8.5(a) shall be treated as a reimbursement of preformation expenditures within the meaning of Treasury Regulation Section 1.707-4(d).
(b) The Borrower and Following the Trust shall not make any Distribution if such Distribution is in excess end of each month of the amount which, when added to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust mayCompany, subject to the limitations last sentence of this Section 8.5, notwithstanding anything to the contrary set forth in this Agreement Agreement, the Board of Managers shall cause the Company to distribute to the Members, in accordance with the Members’ applicable Percentage Interests, an amount equal to one hundred percent (including specifically, but without limitation, those contained in §8.7(b)100%) of all Available Cash provided that ▇▇▇’s Percentage Interest share of such Available Cash (the “WGL Distributions”) shall be further apportioned between WGL and ▇▇▇▇ Carryco and distributed as follows:
(i) redeem existing Preferred Equity with proceeds from an issuance prior to the occurrence of common equity or Preferred Equity of the Borrower or the Trust a Dissolution Event, [*****]% to WGL and [*****]% to ▇▇▇▇ Carryco, and
(ii) repurchase common stock issued by upon and following the Trust in an amount not exceeding occurrence of a Dissolution Event, 100% to WGL until the limit set forth in §8.3(j)(ii), so long as in either case (A) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemptionWGL Preference Amount is reduced to $0, and (C) thereafter [*****]% to WGL and [*****]% to ▇▇▇▇ Carryco. All distributions required to be made under this Agreement shall be made subject to Sections 18–607 and 18–804 of the Act, as applicable, and, if the Company is dissolved and liquidated in accordance with respect the provisions of Section 10.1, then in addition to any repurchase the distribution of common stock Equalization Expenses and Available Cash pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoing, all of the Borrower may pay a Distribution other assets of the Company shall be distributed to each Member in accordance with such Member’s applicable Percentage Interest and the other applicable terms and provisions of this Agreement; provided that distributions in kind shall be distributed as if such property had been sold for an amount of cash equal to its partners of sums received by it pursuant to the Tax Indemnity Agreement;
(c) In the event that an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions Fair Market Value as reasonably determined by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status Board of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; and
(d) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectlyManagers.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Washington Gas Light Co)
Distributions. Neither the Borrower nor the Trust shall The Parent may not make or declare payment of any Distributions which would cause it to violate any of the following covenantsDistribution unless:
(a) [Intentionally Deleted];
(b) The Borrower 29.4.1 the Parent and the Trust shall not make any Distribution if such Distribution is its consolidated Subsidiaries are in excess of the amount which, when added to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninetyPro-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust and (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case (A) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (Forma Compliance after giving effect to such repurchaseDistribution with Clause 28 (Financial Covenants) shall be less than fifty percent (50%). Notwithstanding in each case recomputed as at the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;
(c) In the event that an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status last day of the Trust, as evidenced by a certification most recently ended fiscal quarter of the principal financial Parent as if such Distribution had occurred on the first day of each relevant period for testing such compliance; and
29.4.2 no Default is continuing or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agentwould result therefrom; provided, however, that neither Borrower nor the Trust shall be entitled Parent may not (unless with the prior written consent of the Agent (acting on the instructions of the Majority Lenders)) make or declare payment of any Distribution during the Restricted Period except for:
(a) Distributions of the Parent, other than as permitted pursuant to make clauses (b) through (d) below, up to a maximum aggregate amount (payable by the Parent pursuant to this clause (a)) not exceeding $1,000,000 (or its currency equivalent) in any Distributions calendar year during the Restricted Period PROVIDED THAT the payment of any Distribution after the date of declaration of such Distribution is permitted if, at the date of declaration of such Distribution, such payment would have complied with this paragraph (a);
(b) the redemption, repurchase, retirement, defeasance or other acquisition of Equity Interests of the Parent in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Parent) of, Equity Interests of the Parent;
(c) Repurchases of Equity Interests deemed to occur upon the cashless exercise of stock options;
(d) Repurchases of Equity Interests occurring in connection with the repurchase delivery to Parent of common Equity Interests of Parent in satisfaction of indemnification obligations of a party to a business or preferred stock of the Trust at asset acquisition agreement. and provided further that any time after an Event of Default shall have occurred and be continuing; and
Distributions made pursuant to paragraphs (b) to (d) Notwithstanding (inclusive) above are made on a cashless or net cash neutral basis.
2.25 Clause 29.8 (Acquisitions) shall be amended by deleting the foregoing, at any time when an Event of Default shall have occurred current Clause 29.8 in its entirety and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectly.replacing it with a new clause 29.8 as follows:-
Appears in 1 contract
Sources: Multicurrency Facility Agreement (Gulfmark Offshore Inc)
Distributions. Neither the The Borrower nor the Trust shall will not make any Distributions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted];
(b) The Borrower and the Trust shall will not make pay any Distribution if such Distribution is in excess of to its shareholders the amount of which, when added to the amount of all other Distributions paid by it in the same fiscal quarter and the three immediately preceding three (3) fiscal quarters quarters, would exceed ninety-five percent (95%) of their respective its Funds from Operations for such period; provided that the four (4) consecutive fiscal quarters ending prior Borrower shall be permitted to pay an amount in excess of such limit if necessary to permit the Borrower to maintain its REIT Status, as evidenced by a certification of the chief financial officer of the Borrower containing calculations in reasonable detail reasonably satisfactory in form and substance to the quarter in which such Distribution is paid; provided, however, notwithstanding Agent. Notwithstanding the foregoing in this §8.7(b)foregoing, Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b(S)8.3(n) and (S)8.7(b)) make Distributions (which shall not be included in the ninety-five percent (95%) Funds from Operations test set forth in the preceding sentence) in order to enable Borrower to repurchase common stock of Borrower so long as (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust and any such repurchase is made in Borrower's prudent business judgment, (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case (A) no Default or Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, and (Biii) no Default or Event of Default shall occur as a result of any such repurchase or redemptionrepurchase;
(b) In the event that an Event of Default shall have occurred and be continuing, the Borrower shall not make any Distributions other than the minimum Distributions required under the Code to maintain the REIT Status of Borrower, as evidenced by a certification of the chief financial officer of the Borrower containing calculations in reasonable detail reasonably satisfactory in form and (C) substance to the Agent; provided, however, that Borrower shall not be entitled to make any Distribution in connection with respect to any the repurchase of common stock pursuant to §8.7(b)(ii), prior to of Borrower at any such repurchase Borrower time an Event of Default shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall occurred and be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;continuing; and
(c) In the event that an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; and
(d) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred continuing and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall not make any Distributions whatsoever, either directly or indirectly.
Appears in 1 contract
Distributions. Neither [***] Certain information in this document has been omitted and filed separately with the Borrower nor Securities and Exchange Commission. Confidential treatment has been requested with respect to the Trust shall make any Distributions which would cause it to violate any of the following covenants:omitted portions.
(a) [Intentionally Deleted]Each of the Company and each Stockholder hereby agrees that upon (x) a Change in Control involving (i) a sale of all or substantially all of the consolidated assets of the Company and the Company Subsidiaries, (ii) a merger, consolidation, recapitalization, or reorganization of the Company involving 100% of the Capital Stock, or (iii) the Transfer of 100% of the Capital Stock, (y) a Drag-along Sale or (z) a dissolution, liquidation or winding of the Company (each of the events in clauses (x), (y) and (z), a “Trigger Event”), any net proceeds received by the Company from third parties and/or any distributions from the Company (the “Sale Proceeds”), whether in the form of cash, securities or other types of assets, shall be distributed in the following manner, and each Stockholder hereby agrees to take all action, provide all approvals and execute all agreements, including any purchase or acquisition agreement, in order to cause the Sale Proceeds to be distributed in the following manner:
(i) (A) all indebtedness for borrowed money of the Company shall be repaid, and (B) (1) each Stockholder’s Debt Commitments minus (2) all Distributions received by such Stockholder with respect to such Debt Commitments prior to such time plus (3) the amount of accrued and unpaid interest on its Debt Commitments (to the extent the Sale Proceeds are insufficient to make the payment pursuant to this clause (i)(B), then each Stockholder shall receive its ratable share of the Sale Proceeds); in each case, in the order of priority of such indebtedness, including the Debt Commitments, shall be repaid;
(ii) each Stockholder shall receive an amount equal to (A) its Equity Commitment minus (B) all Distributions with respect to such Equity Commitments received by such Stockholder prior to such time (excluding, for the avoidance of doubt, any Distributions deducted in clause (i)(B)(2)) plus (C) the amount of the Pernix Promote paid with respect to any Distributions deducted pursuant to the foregoing clause (ii)(B); provided that (x) for the avoidance of doubt, if the foregoing number is a negative number with respect to any Stockholder, such Stockholder shall not receive an amount pursuant to this clause (ii) and such negative number shall be added to the total amount of the Sale Proceeds for purposes of clause (iii) below and (y) to the extent the Sale Proceeds are insufficient to make such payment, then each Stockholder shall receive its ratable share of the remaining Sale Proceeds after deducting the amount in clause (i) above;
(iii) Pernix shall receive 10% of the remaining Sale Proceeds after deducting the amounts in clauses (i) and (ii) above (the “Pernix Promote”); and
(iv) each Stockholder (including Pernix) shall receive its ratable share of the remaining Sale Proceeds after deducting the amounts in clause (i) and (ii) above and the Pernix Promote on a pro rata basis.
(b) The Borrower and the Trust shall not make any Distribution if such Distribution is in excess Each of the amount which, when added Company and each Stockholder hereby agrees to the amount of all other Distributions paid discuss in good faith an appropriate payment to be made to Pernix in the same fiscal quarter event of a Change of Control that does not constitute a Trigger Event, and the preceding three (3appropriate modifications to Section 5.05(a) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing connection therewith. [***] Certain information in this §8.7(b), Borrower document has been omitted and filed separately with the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust Securities and (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case (A) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) Exchange Commission. Confidential treatment has been requested with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;omitted portions.
(c) In Each of the event Company and each Stockholder hereby agrees that, prior to a Trigger Event, at such time that (A) each Stockholder has received an Event amount equal to its Invested Amount from Distributions and (B) all indebtedness of Default shall have occurred the Company has been repaid, including the Debt Commitments and be continuingall accrued and unpaid interest on such Debt Commitments, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower then notwithstanding anything to the Trust contrary herein, (1) Pernix shall receive 10% of any subsequent Distribution, and by (2) each Stockholder (including Pernix) shall receive its ratable share of any such remaining Distribution, after deducting the Trust required under the Code to maintain the REIT Status of the Trustamount in clause (1), as evidenced by on a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; andpro rata basis.
(d) Notwithstanding Pernix hereby agrees that, to the foregoingextent that at such time it is entitled to receive the Pernix Promote, at Pernix or its Affiliate is in default of any time when an Event of Default obligation to make payment to the Company pursuant to the Services Agreement, as finally determined in accordance with Section 8.11, then the Company shall have occurred and the maturity right to set off against the Pernix Promote any such defaulted payments under the Services Agreement.
(e) Pernix’s right to receive the Pernix Promote pursuant to this Section 5.05 shall terminate upon the date that is the six-month anniversary of the Obligations has been accelerateddate of the termination or expiration of the Services Agreement for any reason in accordance with its terms; provided that nothing in this Section 5.05(e) shall impair or affect Pernix’s rights pursuant to this Section 5.05 if the Company or any Stockholder has, neither prior to such termination or expiration of the Borrower nor Services Agreement, entered into a definitive agreement that would result in a Trigger Event occurring upon the Trust shall make any Distributions whatsoever, directly or indirectlyconsummation of the transactions contemplated by such agreement.
(f) An example of the calculation of distributions in accordance with the provisions of this Section 5.05 is set forth on Exhibit C hereto.
Appears in 1 contract
Sources: Stockholders Agreement (Pernix Therapeutics Holdings, Inc.)
Distributions. Neither the Borrower nor the Trust shall make any Distributions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted];
(b) The Borrower and the Trust Pointer HoldCo shall not make any Distribution if such or any payment, in cash or in kind, to any Powerfleet Group Company, except for the following (the “Permitted Distributions”):
(a) any amounts not required to be applied in prepayment of the Facilities in accordance with Clause 8.4 (Prepayment in case of Pointer Distribution proceeds – Cash Sweep) and eligible for Distribution pursuant to Clause 21.12; provided the following conditions are met:
(i) the proposed Distribution is in excess made on or about an Examination Date with respect to the annual financial statements of the amount whichBorrowers, when added or, if otherwise – the Borrowers delivered to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of Lender their respective Funds from Operations most recent reviewed consolidated financial statements for the four (4) consecutive fiscal quarters last Financial Quarter ending not earlier than 90 days prior to the quarter in which date of Distribution, and their unaudited non-consolidated financial statements for such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust and date.
(ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case proposed Distribution is permitted under any applicable law;
(A) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, (Biii) no Default is continuing or Event of Default shall occur as a would result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that from the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreementproposed Permitted Distribution;
(civ) In following the event that Distribution, Pointer HoldCo’s Net Debt to EBITDA ratio shall not exceed 2.5, based on its most recent consolidated financial statements;
(v) [reserved];
(vi) an Event of Default shall have occurred and amount in NIS equal to US $10,000,000 (to be continuing, neither converted to NIS in accordance with the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status of the Trust, as evidenced by a certification applicable USD Exchange Rate) of the principal financial or accounting officer amounts of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make outstanding Loans under any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall Term Loan Facilities have occurred and be continuingbeen prepaid prior to such Distribution; and
(dvii) Notwithstanding Pointer HoldCo delivers to the foregoingLender a Distribution Compliance Certificate five Business Days prior to the date of such Permitted Distribution (or later, at any time when an Event of Default shall have occurred if so agreed by the Lender).
(b) amounts sufficient to fund administrative costs, directors’ remuneration, taxes, professional fees and the maturity like reasonably incurred by any direct or indirect holding company of Pointer HoldCo, in each case to the Obligations has been acceleratedextent referable to acting as a holding company of Pointer HoldCo or the Group, neither the Borrower nor the Trust shall make and in a total amount not to exceed US$2,000,000 in any Distributions whatsoever, directly or indirectlyFinancial Year of Pointer HoldCo.
Appears in 1 contract
Sources: Credit Agreement (PowerFleet, Inc.)
Distributions. Neither the Borrower nor the Trust shall make will not pay any Distributions which would cause it to violate any of the following covenantsdividends or distributions except that:
(ai) [Intentionally Deleted]Borrower may pay special capital gain distributions, if any;
(b) The Borrower and the Trust shall not make any Distribution if such Distribution is in excess of the amount which, when added to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust and (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), so So long as in either case (A) no Event of Default shall have occurred and be continuing on the date of any such repurchase TMC qualifies, or redemption, (B) no Default or Event of Default shall occur has taken all actions necessary to qualify as a result REIT, during any fiscal year of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoingTMC, the Borrower may pay cash dividends to TMC and other holders of OP Units with respect to any one (1) year period ending on the last day of a Distribution fiscal quarter to the extent necessary for TMC to distribute, and TMC may so distribute, cash dividends to its partners shareholders in an aggregate amount not to exceed the greater of sums received by it pursuant to the Tax Indemnity Agreement;(A) Permitted REIT Distributions or (B) 75% of FFO.
(ciii) In Notwithstanding the foregoing, in the event that (A) an Event of Default shall have occurred and be continuingunder SECTION 10.1(a), neither the (f) (as to Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the or TMC) or (g) (as to Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status of the Trustor TMC) or would exist immediately after giving effect thereto, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after (B) an Event of Default shall have occurred and be continuing; and
with respect to this SECTION 9.12 or would exist immediately after giving effect thereto, or (dC) Notwithstanding the foregoing, at any time when an other Event of Default shall have occurred and the maturity of the Obligations has have been accelerated, neither Borrower will not pay any dividends or distributions except (X) so long as TMC qualifies, or has taken all actions necessary to qualify as a REIT, during any fiscal year of TMC, the Borrower nor may pay cash dividends to TMC and other holders of the Trust shall make OP Units with respect to any Distributions whatsoeverperiod ending on a date set forth above to the extent necessary for TMC to distribute, directly or indirectlyand TMC may so distribute, cash dividends to its shareholders in an aggregate amount not to exceed the Permitted REIT Distributions, and (Y) Borrower and TMC may pay cash dividends sufficient only to pay the minimum dividends payable to the holders of the Series A Preferred Interests.
Appears in 1 contract
Distributions. Neither the Borrower nor the Trust shall make any Distributions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted];Make any Distribution if a Default or an Event of Default then exists or if an Event of Default or Default would result therefrom; or
(b) The At all times the Consolidated Interest Coverage Ratio is less than 2:00 to 1:00, (i) retire, redeem, purchase or otherwise acquire for value (other than for capital stock of the same type of the Borrower and or any of its Consolidated Subsidiaries) any shares of capital stock LA\4060806.14 or any warrant or right to acquire shares of capital stock or any other equity security issued by the Trust shall not Borrower or any of its Consolidated Subsidiaries; or (ii) make any Distribution if such Distribution is Investment in excess any holder of 5% or more of the amount which, when added to the amount of all capital stock (or other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%equity securities) of their respective Funds from Operations for the four Borrower or any of its Consolidated Subsidiaries, if a purpose of such Investment is to avoid the restrictions set forth in subclause (4i) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paidabove; provided, however, notwithstanding that the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations restrictions set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)Section 6.12(b) shall not apply if all of the following conditions are met:
(i) redeem existing Preferred Equity with proceeds from an issuance of common equity Unrestricted Cash (calculated on a pro forma basis after giving effect to such retirement, redemption, purchase, acquisition or Preferred Equity of Investment) equals or exceeds the Borrower or the Trust and Commitment;
(ii) repurchase common stock issued by Total Outstandings (excluding the Trust in an aggregate undrawn face amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case of outstanding Letters of Credit) are zero; and
(A) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, (Biii) no Default or Event of Default shall occur as a then exists or would result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;therefrom.
(c) In Notwithstanding the event that an Event foregoing provisions of Default shall have occurred this Section 6.12, Section 6.12 does not prohibit:
(i) retirements, redemptions, purchases, or other acquisitions for value of capital stock, warrants or rights to acquire shares of capital stock or other equity securities (x) from or with employees, officers or directors or former employees, officer or directors (or their estates or beneficiaries under their estates) of Borrower and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions its Subsidiaries in connection with Borrower’s equity incentive plans or other benefit plans or upon death, disability, retirement, severance or termination or pursuant to any agreement under which the capital stock or other securities were issued or any employment agreement, (y) in connection with cashless exercises of options, warrants or other rights to acquire capital stock or other equity securities, or (z) in lieu of fractional shares;
(ii) the purchase of call options or call spreads by Borrower or its Subsidiaries in connection with any convertible securities offering of Subordinated Obligations by Borrower, together with the repurchase of common shares of capital stock or preferred stock settlement for cash (in whole or in part) as may be required by the terms of such options or spreads;
(iii) a Distribution made (x) to Borrower or to a Guarantor Subsidiary by any of their respective Subsidiaries or (y) to a wholly-owned Subsidiary of Borrower by any Subsidiary that is not a Loan Party;
(iv) the payment of any Distribution within 60 days after the date of declaration thereof so long as such Distribution was permitted by the provisions of this Agreement at the time of its declaration; or
(v) the making of cash payments in connection with any conversion of convertible securities of the Trust at any time after an Event of Default shall have occurred and be continuing; and
(d) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectly.Borrower. LA\4060806.14
Appears in 1 contract
Sources: Revolving Loan Agreement (Kb Home)
Distributions. Neither the Borrower nor the Trust shall make any Distributions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted];The holder of the Award OPP Units shall be entitled to receive distributions with respect to such Award OPP Units to the extent provided for in the Partnership Agreement as modified hereby.
(b) The Borrower and Distribution Participation Date (as defined in the Trust shall not make any Distribution if such Distribution is in excess of Partnership Agreement) for the amount which, when added Final OPP Unit Equivalent (to the amount extent provided in Section 6(c) below) shall be the Final Valuation Date, except that if the provisions of all other Distributions paid Section 4(b) hereof become applicable to the Grantee, the Distribution Participation Date for the Grantee shall be accelerated to the date the calculations provided in Section 3 hereof are performed with respect to the same fiscal quarter and Award OPP Units that are no longer subject to forfeiture pursuant to Section 4(b) hereof.
(c) Following each applicable Distribution Participation Date, the preceding three (3) fiscal quarters would exceed ninety-five Grantee shall be entitled to receive one hundred percent (95100%) of their respective Funds from Operations for the four same distributions payable with respect to Class A Units on the Final OPP Unit Equivalent.
(4d) consecutive fiscal quarters ending prior to Each Award OPP Unit shall be considered a Special LTIP Unit (as defined in the quarter in which Partnership Agreement) and as such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) the: (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of LTIP Unit Initial Sharing Percentage (as defined in the Borrower or the Trust Partnership Agreement) shall be ten percent (10%) and (ii) repurchase common stock issued by the Trust Award OPP Units shall not be entitled to receive distributions prior to the applicable Distribution Participation Date. On the applicable Distribution Participation Date, Award OPP Units shall be entitled to a Special LTIP Unit Distribution (as defined in an amount not exceeding the limit set forth Partnership Agreement) to the extent provided in §8.3(j)(ii), so long the Partnership Agreement. The Distribution Measurement Date (as defined in either case (A) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (CPartnership Agreement) with respect to any repurchase the Award OPP Units shall be the Effective Date and all of common stock the Award OPP Units granted pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) this Agreement shall be less than fifty percent deemed to have been issued as part of the Same Award (50%as defined in the Partnership Agreement). Notwithstanding .
(e) For the foregoingavoidance of doubt, after the Borrower may pay a applicable Distribution to its partners of sums received by it Participation Date, Award OPP Units, both vested and (until and unless forfeited pursuant to the Tax Indemnity Agreement;
(cSection 3(d) In the event that an Event of Default shall have occurred and be continuing4(g) hereof) unvested, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions receive the same distributions payable with respect to Class A Units if the payment date for such distributions is after the applicable Distribution Participation Date, even though the record date for such distributions is before the applicable Distribution Participation Date.
(f) All distributions paid with respect to Award OPP Units, whether at the rate provided in connection with Sections 6(d) hereof prior to the repurchase of common applicable Distribution Participation Date or preferred stock at the rate provided in Sections 6(c) hereof after the applicable Distribution Participation Date, shall be fully vested and non-forfeitable when paid, regardless of the Trust at any time after an Event of Default shall fact that the underlying 2016 OPP Units may be subject to forfeiture or have occurred not yet become, or never become, vested pursuant to Sections 3 and be continuing; and
(d) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectly4 hereof.
Appears in 1 contract
Sources: 2016 Outperformance Plan Award Agreement (Vornado Realty Lp)
Distributions. Neither the Borrower nor the Trust shall make any Distributions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted];Within 45 days after the end of -------------- each Fiscal Quarter, the Company shall distribute to the Members (the date of such distribution being a "Distribution ------------ Date") an amount in cash (the "Tax Distribution Amount") determined as follows: ---- -----------------------
(bi) The Borrower maximum Tax Liability of each Member with respect to its allocable portion (as provided in Section 6.03) of the Company's estimated taxable income for such Fiscal Quarter shall be determined, based upon the highest aggregate marginal statutory Federal, state and local income tax rate (determined taking into account the Trust deductibility, to the extent allowed, of income-based taxes paid to governmental entities) to which any Member may be subject for the related Fiscal Year (and excluding any deferred taxes) (the "Aggregate Tax Rate"). ------------------
(ii) If the Tax Liability determined in clause (i) is positive with respect to either Member, there shall be a cash distribution to each of the Members, in accordance with their Percentage Interests, of an aggregate amount such that neither Member shall receive less than its Tax Liability.
(iii) In the event that the Tax Liability with respect to a Fiscal Quarter, determined pursuant to clause (i) above, is negative with respect to each Member, such negative Tax Liability shall not make give rise to a payment obligation on the part of either Member, but shall be carried forward and shall offset the positive Tax Liability of the Members in succeeding Fiscal Quarters.
(iv) Following a determination by the Company of the Company's actual net taxable income with respect to a Fiscal Year, the maximum Tax Liability of each Member with respect to its allocable portion (as provided in Section 6.03) of the Company's net taxable income for such Fiscal Year shall be determined, based upon the Aggregate Tax Rate. If the maximum Tax Liability of any Distribution if such Distribution Member for the Fiscal Year is in excess of the amount which, when added cash distributions previously made to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations Member for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust and Fiscal Year under clause (ii) repurchase common stock issued by above and subsection (b) below, the Trust Company shall make a cash distribution to all the Members, in accordance with their Percentage Interests, of an aggregate amount not exceeding such that the limit set forth in §8.3(j)(ii), so long as in either case (A) no Event excess is eliminated for all the Members. Such distribution shall be made within 45 days of Default shall have occurred and be continuing on the date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;Company's actual net taxable income is determined.
(cv) In the event that an Event of Default shall have occurred and be continuingthe Company Independent Auditors determine pursuant to Section 7.02(d) that the Company's actual net taxable income with respect to a Fiscal Year is greater than the amount determined by the Company pursuant to clause (iv) above, neither the Borrower nor the Trust Company shall make any Distributions other a determination of the amount of cash, if any, required to be distributed to the Members, in accordance with their Percentage Interests, such that, after taking into account cash distributions previously made to a Member under clause (ii) above and subsection (b) below, no Member shall receive less than its Tax Liability for such Fiscal Year based on such higher net taxable income amount. The Company shall, within 15 days after the determination is made, distribute such additional amount of cash to the Members, in accordance with their Percentage Interests.
(vi) In the event that the Company Independent Auditors determine pursuant to Section 7.02(d) that the Company's actual net taxable income with respect to a Fiscal Year is less than the minimum Distributions amount determined by the Borrower Company pursuant to clause (iv) above, a determination shall be made of the excess Tax Distribution Amount that was distributed to the Trust Members in respect of such Fiscal Year based on the Company's determination of its actual net taxable income and the Company shall deduct from the next Tax Distribution Amount payable to the Members pursuant to this Section 5.01, the amount of such excess distribution.
(c) The Company shall prepare and distribute to each Member within 45 days after the end of each Fiscal Quarter a statement (a "Distributions ------------- Calculation Statement") setting forth the calculations (in reasonable detail) --------------------- used by the Trust required under Company for purposes of distributions pursuant to this Section 5.01 of (i) the Code to maintain Tax Distribution Amount for each Member for such Fiscal Quarter, (ii) the REIT Status amount of Distributable Cash for such Fiscal Quarter and (iii) the Trust, as evidenced by a certification allocation of such Distributable Cash between the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; and
(d) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectlyMembers.
Appears in 1 contract
Distributions. Neither (a) Subject to the Borrower nor Act, Section 5.3, and the Trust right of the Board of Managers to suspend the payment of the GM Preferred Accrued Distribution Amount with respect to any one or more Fiscal Quarters with the consent of the Majority GM Preferred Holders, Distributions of the GM Preferred Accrued Distribution Amount with respect to the immediately preceding Fiscal Quarter shall be made in cash, except as otherwise may be permitted pursuant to Section 5.5, to the GM Preferred Holders no later than the tenth Business Day following (x) with respect to the first three Fiscal Quarters in each Fiscal Year, the delivery of the financial statements required to be delivered by the Company pursuant to Section 4.5(a)(iii) with respect to such Fiscal Quarter, and (y) with respect to the fourth Fiscal Quarter in each Fiscal Year, the delivery of the financial statements required to be delivered by the Company pursuant to Section 4.5(a)(v) with respect to such Fiscal Year, in each case, ratably among such GM Preferred Holders in proportion to the aggregate GM Preferred Accrued Distribution Amount with respect to the GM Preferred Membership Interests then held by each such GM Preferred Holder either (1) immediately prior to such Distribution or, if applicable, (2) on the record date set by the Board of Managers pursuant to Section 7.9 with respect to such Distribution; provided that the Board of Managers may reduce any such Distribution to the extent required to avoid a reduction of the equity capital of the Company below the Required Capital Amount, as determined in good faith by the Board of Managers. The Company shall use its commercially reasonable efforts to give written notice to each GM Preferred Holder at least three Business Days prior to any Distribution pursuant to this Section 5.1(a). Notwithstanding the other provisions of this Agreement, in the event that the Company fails to make the full amount of Distributions of the GM Preferred Accrued Distribution Amount pursuant to this Section 5.1(a) with respect to any Fiscal Quarter, then the Company shall not make any Distributions which would cause it pursuant to violate (1) Section 5.1(d) and (2) Section 5.2, in each case, until such time as the Company has made a full Distribution of the GM Preferred Accrued Distribution Amount pursuant to this Section 5.1(a) with respect to a subsequent Fiscal Quarter.
(b) Subject to the Act and subject to Section 5.3, Distributions of the Class E Preferred Accrued Distribution Amount shall be payable when, as and if declared by the Board of Managers in cash, in arrears, on a Class E Preferred Payment Distribution Date, ratably among such Class E Preferred Membership Interests then held by the Class E Preferred Holder, either (i) immediately prior to such Distribution, or (ii) if applicable, on the record date set by the Board of Managers pursuant to Section 7.9 with respect to such Distribution.
(c) [Reserved.]
(d) Subject to the Act, and except as set forth in the last sentence of Section 5.1(a), Section 5.2, and Section 5.3 at any time after the Fiscal Quarter ended December 31, 2008, Distributions shall be made when, as and if declared by the Board of Managers, and distributed in the following amounts and order of priority:
(i) first, to the Common Holders, ratably among such Common Holders based on the Company Interest of each such Common Holder either (A) immediately prior to such Distribution or, if applicable, (B) on the record date set by the Board of Managers pursuant to Section 7.9 with respect to such Distribution, until such Common Holders have received (1) a return of the Agreed Initial Value (taking into account all prior Distributions) plus (2) an amount equal to a ten percent (10%) per annum compound rate of return on the Agreed Initial Value outstanding from time to time after reduction for amounts Distributed to the Common Holders hereunder (disregarding Distributions of the Tax Amount) (the “Hurdle Rate”), provided that for the purpose of computing whether or not the Agreed Initial Value and an amount equal to the Hurdle Rate has been received by the Common Holders, Distributions to the Common Holders to the extent of the Tax Amount shall be disregarded; and
(ii) thereafter, to the Class C-1 Holders and Common Holders based on the Total Interest of each such Class C-1 Holder and Common Holder either (A) immediately prior to such Distribution or, if applicable, (B) on the record date set by the Board of Managers pursuant to Section 7.9 with respect to such Distribution; provided, that to the extent any of the following covenantsManagement Units issued by Management Company are not vested, then that portion of the Distributable Amount that would otherwise have been made to the Class C-1 Holders with respect to that portion of Class C-1 Membership Interests equivalent to the Management Units that are not vested at such time shall be held by the Company and shall not be distributed to the Class C-1 Holders until such time as such Management Units are vested.
(i) Notwithstanding the other provisions of this Section 5.1, Distributions equal to the amount of income taxes that are payable by Management Company on income allocated to Management Company pursuant to Article VI hereof on account of the Class C Membership Interests held by Management Company as determined by the Board of Managers in good faith, shall be made from time to time to the Management Company to the extent the Distributions to Management Company pursuant to this Section 5.1 are otherwise insufficient to pay such income taxes. The aggregate amount of such payments pursuant to this Section 5.1(e)(i) shall be deducted from the next amounts to be Distributed to the Class C-1 Holders pursuant Section 5.1(d)(ii), and the aggregate amount to be Distributed to all Members pursuant to Section 5.1(d)(ii) shall be increased by such deducted amount.
(ii) With respect to any taxable period during which the Company continues to be classified as a partnership for federal income tax purposes, the Company shall periodically make tax distributions on Junior Membership Interests to the extent determined to be reasonably necessary by the Board of Managers (“Tax Distributions”) as follows (it being understood that on December 28, 2008 the Board adopted resolutions determining that (x) Tax Distributions with respect to the cancellation of debt income pursuant to clause (A)(1)(b) and the corresponding Tax Distributions pursuant to clause (A)(2) are reasonably necessary and (y) Tax Distributions for the fiscal year 2009 pursuant to clause (A)(1)(a) and the corresponding Tax Distributions pursuant to clause (A)(2), unless GMAC experiences an unforeseen adverse financial condition as determined by the Board, are reasonably necessary):
(1) For the Class A Holders, pro rata- the sum of:
(a) [Intentionally Deleted];The amount of Federal, state, and local income taxes (net of credits) that would be payable by the Class A Holders at an effective tax rate reasonably determined by the Board on the items of net taxable income allocable to such Class A Holder under Article VI with respect to all taxable periods (or portions thereof) beginning on or after January 1, 2009 (as reported on the applicable Internal Revenue Service Schedule K-1) as reasonably determined by the Board of Managers; plus
(b) The Borrower amount determined by dividing:
(i) The actual aggregate Federal, state, and local income tax actually payable by the Blocker Corps established by affiliates of FIM with respect to (A) cancellation of debt income (and related income items) resulting from the Company’s bond exchanges commenced November 20, 2008, and (B) the taxable gains resulting from the change in COLT LLC’s federal tax election, allocated to the Class A Holders (taking into account the impact of any Section 754 election, operating losses, net operating losses, and other tax attributes), by
(ii) The aggregate indirect Company Interest of such Blocker Corps relative to the Class A Holders as a group with respect to such income, as reasonably determined by the Board of Managers; and
(2) For the Class B Holders, pro rata: the sum of the amounts set forth in clauses (1)(a) and (b) above multiplied by the aggregate Company Interest of the Class B Holders divided by the aggregate Company Interest of the Class A Holders, as reasonably determined by the Board of Managers.
(B) The Tax Distributions to the Class A Holders and the Trust shall not make any Distribution if such Distribution is Class B Holders referred to in excess of the amount whichclause A above are, when added to the amount of in all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust mayevents, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity the approval of the Borrower or United States Treasury by and through the Trust President’s Designee (as defined in H.R. 7321) and (ii) repurchase common stock issued the Company continuing to meet the minimum amount of equity capital sufficient to satisfy the requirements of the U.S. Bank Holding Company Act of 1956, as amended, or other applicable banking regulations. The President’s Designee has complete discretion to approve or reduce, in whole or in part, any such Tax Distributions and any such action by the Trust President’s Designee is binding on all parties without further review or appeal.
(iii) Any amounts distributed with respect to a Membership Interest pursuant to Section 5.1(e)(ii) shall reduce the amounts that would otherwise be distributable to the holder of such Membership Interest under this Agreement and shall be treated as an advance thereof.
(f) Distributions pursuant to Section 5.1(d) shall be made in an amount not exceeding cash, except as otherwise contemplated by the limit set forth in §8.3(j)(ii)second proviso of Section 5.1(d) or as otherwise may be permitted pursuant to Section 5.5, so long as in either case (A) no Event later than the tenth Business Day following the delivery of Default shall have occurred and the financial statements required to be continuing on delivered by the date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (CCompany pursuant to Section 4.5(a)(iii) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value Fiscal Quarter.
(after giving effect to such repurchaseg) shall be less than fifty percent (50%). Notwithstanding the foregoingother provisions of this Section 5.1, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;
(c) In in the event that an Event of Default shall have occurred and any Distribution (or portion thereof) that is required to be continuingmade pursuant to this Section 5.1 would, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status based on a good faith determination of the TrustBoard of Managers, as evidenced by result in a certification reduction of the principal financial or accounting officer equity capital of the Trust containing calculations Company below the Required Capital Amount, then such Distribution (or such portion) shall not be made unless it has been approved in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock writing by at least a majority of the Trust at any time after an Event of Default shall have occurred and be continuing; and
(d) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectlyIndependent Managers.
Appears in 1 contract
Sources: Limited Liability Company Operating Agreement (Gmac LLC)
Distributions. Neither the Borrower shall not, nor the Trust shall make it permit any Distributions which would cause it to violate any of the following covenants:
Subsidiary to, (a) [Intentionally Deleted];
repurchase or redeem any class of stock or other Equity Interest other than repurchases described in clause (c) of the defined term “Permitted Investments”; (b) The declare or pay any cash dividend or make a cash distribution on any class of stock or other Equity Interest, except that a Subsidiary of Borrower and may pay dividends or make distributions to Borrower or a Subsidiary of Borrower; (c) lend money to any employees, officers or directors or guarantee the Trust shall not make payment of any Distribution if such Distribution is loans granted by a third party in excess of the amount which, when added to the amount of all other Distributions paid $500,0001,500,000 in the same fiscal quarter and aggregate; or (d) waive, release or forgive any Indebtedness owed by any employees, officers or directors in excess of $500,0001,500,000 in the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust and (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case (A) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%)aggregate. Notwithstanding the foregoing, and for the Borrower may pay avoidance of doubt, this Section 7.7 shall not prohibit (i) the conversion by holders of (including any cash payment upon conversion), or required payment of any principal or premium on (including, for the avoidance of doubt, in respect of a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;
(c) In the event that an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions repurchase in connection with the repurchase redemption of Permitted Convertible Debt upon satisfaction of a condition related to the stock price of Borrower’s common stock) or preferred stock required payment of any interest with respect to, any Permitted Convertible Debt in each case, in accordance with the terms of the Trust at indenture governing such Permitted Convertible Debt or (ii) the entry into (including the payment of premiums in connection therewith) or any time after an Event required payment with respect to, or required early unwind or settlement of, any Permitted Bond Hedge Transaction or Permitted Warrant Transaction, in each 212788652 v9 case, in accordance with the terms of Default shall have occurred and be continuing; and
(d) the agreement governing such Permitted Bond Hedge Transaction or Permitted Warrant Transaction. Notwithstanding the foregoing, at any time when Borrower may repurchase, exchange or induce the conversion of Permitted Convertible Debt by delivery of shares of Borrower’s common stock and/or a different series of Permitted Convertible Debt and/or by payment of cash (in an Event amount that does not exceed the proceeds received by Borrower from the substantially concurrent issuance of Default shall have occurred and shares of Borrower’s common stock and/or Refinancing Convertible Notes plus the maturity net cash proceeds, if any, received by Borrower pursuant to the related exercise or early unwind or termination of the Obligations has been acceleratedrelated Permitted Bond Hedge Transactions and Permitted Warrant Transactions, neither if any, pursuant to the immediately following proviso); provided that, for the avoidance of doubt, substantially concurrently with, or a commercially reasonable period of time before or after, the related settlement date for the Permitted Convertible Debt that are so repurchased, exchanged or converted, Borrower nor may exercise or unwind or terminate early (whether in cash, shares or any combination thereof) the Trust shall make any Distributions whatsoeverportion of the Permitted Bond Hedge Transactions and Permitted Warrant Transactions, directly if any, corresponding to such Permitted Convertible Debt that are so repurchased, exchanged or indirectlyconverted.
Appears in 1 contract
Sources: Loan and Security Agreement (Seres Therapeutics, Inc.)
Distributions. Neither the Borrower nor the Trust (a) Certain priority distributions shall make any Distributions which would cause it to violate any of the following covenantsbe made as follows:
(a1) [Intentionally Deleted];upon receipt of a $1,500,000 development fee payable by Carbontronics Synfuels pursuant to the Purchase Agreement, such funds shall be forthwith distributed in equal 1/3 payments to ▇.▇. ▇▇▇▇ Capital, Carbon Resources and Meridian Energy. Such distribution shall be made by the Company promptly upon receipt of payment received under the Purchase Agreement.
(b2) The Borrower It is expressly agreed that Gencor shall be obligated to fulfill only the requirements for completion and the Trust shall not make any Distribution if such Distribution is in excess acceptance of the amount which, when added to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations a Project as set forth in this Agreement (including specificallythe EPC Agreements to which Gencor has previously agreed, but without limitation, those contained in §8.7(b)and Gencor has no obligation to comply with Section 3.1(g) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower Partnership Agreement, or the Trust and any provision of other documents related to these transactions, which section or provision addresses or establishes standards for determining Project completion or performance or whether a Project has been placed in-service (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case (A) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%Section 29). Notwithstanding the foregoing, Gencor reasonably expects that the Borrower may pay a Distribution Projects will satisfy, and will use its best efforts to its partners cause the Projects to satisfy the conditions set forth in Section 3.1(g)(i) - (iii) of sums received by it pursuant the Partnership Agreement.
(b) Subject to Section 4.4(a), distributions to the Tax Indemnity Agreement;Members shall be made pro rata according to each Member’s Percentage.
(c) In Unless each of the event that an Event Members otherwise agrees to the contrary, all net cash flow available for distribution shall be distributed to the Members promptly following the end of Default shall have occurred and be continuing, neither each fiscal quarter of the Borrower nor the Trust shall make any Distributions Company. Immediately prior to a distribution of property other than cash, the minimum Distributions Capital Accounts shall be adjusted as provided in Treasury Regulation 1.704-1(b)(2)(iv)(f).
Section 6.1 is hereby amended by deleting, in line 4, the Borrower words “by a majority vote” and by inserting in lieu thereof the words “by vote in accordance with Section 6.5(b).”
8. The caption, and the lead-in to the Trust and by the Trust required under the Code to maintain the REIT Status first sentence of Section 6.2(a) of the TrustOperating Agreement, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection commencing with the repurchase of common or preferred stock of words “Until such time” in the Trust at any time after an Event of Default shall have occurred second line thereof, and be continuing; and
(d) Notwithstanding ending with the foregoingwords “do the following:”, at any time when an Event of Default shall have occurred in the tenth line thereof, is deleted in its entirety and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectly.following substituted in lieu thereof:
Appears in 1 contract
Sources: Limited Liability Company Operating Agreement (Gencor Industries Inc)
Distributions. Neither the Borrower nor the Trust shall make any Distributions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted];Subject to Section 5.3(b) hereof, from and after the date hereof, within thirty (30) days after the end of each fiscal quarter, the General Partner shall, based on the unaudited financial statements for such fiscal quarter prepared in accordance with Section 9.3 hereof (after approval thereof by the General Partner), cause the Partnership (X) to distribute to the General Partner the amount of income and gain allocated to the General Partner for such fiscal quarter pursuant to Section 5.2(c)(i) and (ii), minus any losses and deductions allocated to the General Partner under Section 5.2(d)(iii), and (Y) to distribute to the Limited Partners the amount of any income and gain allocated to the Limited Partners under Section 5.2(c)(iii), minus any losses and deductions allocated to the Limited Partners under Section 5.2(d)(ii). Within ninety-five (95) days after the end of each fiscal year of the Partnership, the General Partner shall, based on the audited financial statements prepared in accordance with Section 9.3 hereof, cause the Partnership to make a distribution of (i) the remaining amounts, if any, for the preceding fiscal year not previously distributed, in accordance with the foregoing clauses (X) and (Y) of this Section 5.3(a) and (ii) the amount of any income and gain allocated to the Limited Partners under Section 5.2(c)(iv). In the event that, in connection with the preparation of audited financial statements or otherwise it shall be determined that any prior distributions were not made in the proper amounts, the General Partner shall be authorized to increase or decrease one or more subsequent distributions in such manner and to such extent as it shall deem necessary or appropriate.
(b) The Borrower and the Trust shall not make any Distribution if such Distribution is in excess of the amount which, when added to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust General Partner may, subject from time to the limitations set forth in this Agreement (including specificallytime and with a Majority Vote, but reserve and refrain from making a distribution that is otherwise required under Section 5.3(a) for Partnership purposes, including, without limitation, those contained to increase the net worth of the Partnership.
(c) Except as otherwise set forth herein, all other amounts or proceeds available for distribution, if any, shall be distributed to the Partners at such time as may be determined by the General Partner in §8.7(b)) its sole discretion provided that any such distribution shall be made among the Partners (i) redeem existing Preferred Equity in accordance with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust positive balances (if any) in their respective Capital Accounts (as determined immediately prior to such distribution) until all such positive Capital Account balances have been reduced to zero, and (ii) repurchase common stock issued by thereafter among all Partners in accordance with their respective number of Vested Partnership Points at the Trust in an amount not exceeding time of such distribution.
(d) Notwithstanding any other provision herein to the limit set forth in §8.3(j)(ii)contrary, so long as in either case if any Limited Partner has received a distribution under Section 5.3
(Aa) no Event of Default shall have occurred and be continuing during a fiscal year and, based on the date audited financial statements prepared in accordance with Section 9.3 hereof, there are at the end of such fiscal year any unrecovered excess deductions, such repurchase or redemptionthat the General Partner will be entitled to an allocation pursuant to Section 5.2(c)(ii) at the time of the next allocation of gross income of the Partnership, then the Limited Partners shall promptly (Band in any event within ninety-five (95) no Default or Event days after the end of Default shall occur as a result such fiscal year of any the Partnership) contribute to the Partnership in accordance with (and in proportion to) the aggregate amount of distributions received by such repurchase or redemptionLimited Partner under Section 5.3(a) with respect to such fiscal year, and (Ccash in the aggregate amount of such unrecovered excess deductions. The obligation of each Limited Partner to make contributions to the Partnership pursuant to this Section 5.3(d) with respect to any repurchase fiscal year shall be limited to the aggregate amount of common stock pursuant to §8.7(b)(ii), prior to any distributions received by such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect Limited Partner under Section 5.3(a) with respect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;
(c) In the event that an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; and
(d) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectlyfiscal year.
Appears in 1 contract
Sources: Limited Partnership Agreement (Affiliated Managers Group Inc)
Distributions. Neither the Borrower nor the Trust shall make any Distributions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted];Except with respect to the liquidation of the Partnership and subject to the priority set forth in Sections 6.2(b) and (c), the Managing General Partner shall cause the Partnership to distribute all or a portion of Net Operating Cash Flow to the Partners who are such on the relevant Partnership Record Date from time to time as determined by the Managing General Partner, but in any event not less frequently than quarterly, in such amounts as the Managing General Partner shall
(b) The Borrower Except to the extent Net Operating Cash Flow is distributed pursuant to Section 6.2(c), and except with respect to the Trust shall not make any Distribution if such Distribution is in excess liquidation of the amount whichPartnership, when added distributions of Net Operating Cash Flow shall be made in the following order of priority;
(i) First, to the extent that the amount of all other Distributions paid Net Operating Cash Flow distributed to the holder of Preferred Units for any prior quarter was less than the Preferred Distribution Requirement for such quarter, and has not been subsequently distributed pursuant to this Section 6.2(b)(i) (a "Preferred Distribution Shortfall"), Net Operating Cash Flow shall be distributed to the holder of Preferred Units in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations an amount necessary to satisfy such Preferred Distribution Shortfall for the four (4) consecutive fiscal quarters ending current and all prior Partnership Fiscal Years. In the event that the Net Operating Cash Flow distributed for a particular quarter is less than the Preferred Distribution Shortfall, then all Net Operating Cash Flow for the current quarter shall be distributed to the quarter in which such Distribution is paid; providedholder of Preferred Units.
(ii) Second, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject Net Operating Cash Flow shall be distributed to the limitations set forth holder of Preferred Units in an amount equal to the Preferred Distribution Requirement for the then current quarter for each outstanding Preferred Unit. In the event that the amount of Net Operating Cash Flow distributed for a particular quarter pursuant to this Agreement subparagraph (including specificallyb)(ii) is less than the Preferred Distribution Requirement for such quarter, but without limitationthen all such Net Operating Cash Flow for such quarter shall be distributed to the holder of Preferred Units.
(iii) The balance of the Net Operating Cash Flow to be distributed, those contained if any, shall be distributed to holders of Partnership Units, in §8.7(b)) proportion to their ownership of Partnership Units.
(i) redeem existing If in any quarter the Partnership redeems any outstanding Preferred Equity Units, unless and except to the extent that such redemption is effected out of borrowed funds, Capital Contributions or other sources, Net Operating Cash Flow shall be distributed to the Managing General Partner in an amount equal to the applicable Preferred Redemption Amount for the Preferred Units being redeemed before being distributed pursuant to Section 6.2(b).
(ii) Notwithstanding anything to the contrary contained in this Section 6.2, the distribution of Net Operating Cash Flow with proceeds from an issuance of common equity or Preferred Equity respect to a Partnership Unit acquired during a fiscal quarter of the Borrower or Partnership shall be an amount equal to the Trust product of (i) the amount of Net Operating Cash Flow otherwise distributable to a Partnership Unit held during such fiscal quarter and (ii) repurchase common stock issued by (a) the Trust number of days remaining in an amount not exceeding the limit set forth in §8.3(j)(ii)such fiscal quarter, so long determined as in either case (A) no Event of Default shall have occurred and be continuing on the date such Partnership Unit was acquired, divided by (b) the total number of any days in such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;
(c) In the event that an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower to the Trust and by the Trust required under the Code to maintain the REIT Status of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; andfiscal quarter.
(d) Notwithstanding the foregoingprovision of the first sentence of Section 6.2(a), at any time when an Event of Default (i) the Managing General Partner shall have occurred use its best efforts to cause the Partnership to distribute sufficient amounts, in accordance with Section 6.2(a) above, to enable the Managing General Partner and the maturity Non-Managing General Partners to pay shareholder dividends that will (A) satisfy the REIT Requirements, and (B) avoid any federal income or excise tax liability of the Obligations has been acceleratedManaging General Partner or any of the Non-Managing General Partners; and (ii) in the event of a Covered Sale which occurs on a date on or after August 9, neither 1996, and before but not including August 9, 2001, and which gives rise to a special allocation of taxable income or gain to one or more Limited Partners pursuant to Section 6.1(e), (A) the Borrower nor Managing General Partner shall cause the Trust Partnership to distribute to all of the Partners, pro rata in accordance with ownership of Partnership Units, the Net Sale Proceeds therefrom up to an amount sufficient to enable each such Limited Partner, from the share of such distribution made to it, to pay in full any income tax liability, computed at the maximum applicable federal and state statutory rates, with respect to the income or gain so specially allocated and on the distribution required by this Section 6.2(d) (or, if any such Limited Partner is a partnership or Subchapter S corporation, to enable such Limited Partner to distribute sufficient amounts to its equity owners to enable such owners to pay in full any income tax liability, computed at the maximum applicable federal and state statutory rates, with respect to their share of such taxable income or gain and such distributions) and (B) if the amounts distributed to each such Limited Partner in accordance with the preceding clause (A) are insufficient to enable it to pay in full such income tax liabilities, the Managing General Partner shall make cause the Partnership to distribute sufficient funds from other sources to all of the Partners, pro rata in accordance with ownership of Partnership Units, in an amount sufficient to enable each such Limited Partner to pay in full such income tax liabilities and any Distributions whatsoeverincome tax liabilities of such Limited Partner(s) with respect to such additional distribution. As used in this Section 6.2, directly the term "Covered Sale" means a sale or indirectly.other taxable disposition of any Property described on Exhibit C.
Appears in 1 contract
Sources: Limited Partnership Agreement (Corporate Realty Consultants Inc)
Distributions. Neither The Borrower shall not nor shall the General Partner permit any of its Subsidiaries to, declare or pay any Distributions with respect to the Borrower nor the Trust shall make any Distributions which would cause it to violate or any of the following covenants:
(a) [Intentionally Deleted];
(b) The Borrower and the Trust shall not make any Distribution if such Distribution is in excess of the amount whichits Subsidiaries, when added to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) except that: (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity any Subsidiary of the Borrower may make Distributions to the Borrower or any Wholly-Owned Subsidiary of the Trust and Borrower; (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case (A) no Event of Default there shall have occurred and be continuing on the date of any such repurchase or redemption, (B) exist no Default or Event of Default shall occur as a result of any such repurchase or redemption, under Section 10.01 (and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%Distributions there 2 will exist no Default or Event of Default under Section 10.01). Notwithstanding the foregoing, the Borrower may pay a Distribution make cash Distributions to its partners the Partners at times and in amounts necessary for the Borrower to make tax distributions pursuant to Section 4.4(b) of sums received by it the Partnership Agreement of the Borrower; (iii) the Borrower may consummate the Refinancing Transaction on the Restatement Effective Date; (iv) the Borrower may consummate the Phase One Recapitalization Transaction on the Second Amendment Effective Date and the Phase Two Recapitalization Transaction on or before August 31, 1996; provided that any equity interests issued pursuant to the Tax Indemnity Agreement;
Phase Two Recapitalization Transaction which are subject or entitled to mandatory redemption provisions contained in the Partnership Agreement shall not be redeemed without the prior written consent of the Required Banks; (cv) In the event that an Event of Default shall have occurred and be continuing, neither the Borrower nor may repurchase up to $900,000 principal amount of the Trust shall make any Distributions other than Class A-3 Preferred Limited Partnership Interests (to the minimum Distributions by extent not repurchased in the Phase Two Recapitalization Transaction) at various times on or prior to December 15, 1996 in accordance with Section 3A.2(c)(iii) of the Partnership Agreement of the Borrower, amended and restated as of April 26, 1996; and (vi) the Borrower to may redeem Class B Preferred Limited Partnership Interests with a face amount of $3,386,250 on May 31, 1997 for an aggregate redemption price of not more than $3,535,075 (the Trust and by the Trust required under the Code to maintain the REIT Status of the Trust, as evidenced by a certification of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; and
(d) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectly"May 1997 Redemption").
Appears in 1 contract
Sources: Credit Agreement (Staff Leasing Inc)
Distributions. Neither the No Borrower nor the Trust shall and shall not permit any Subsidiary to, (a) make any Distributions which would cause it distribution or dividend (other than stock dividends), whether in cash or otherwise, to violate any of its equityholders, (b) purchase or redeem any of its equity interests or any warrants, options or other rights in respect thereof, (c) pay any management fees or similar fees to any of its equityholders or any Affiliate thereof, (d) pay or prepay interest on, principal of, premium, if any, redemption, conversion, exchange, purchase, retirement, defeasance, sinking fund or any other payment in respect of any Subordinated Debt except if, as and to the extent permitted by the applicable subordination agreement or subordination provisions governing the subordination of such Subordinated Debt in favor of the Obligations, or (e) set aside funds for any of the following covenants:
(a) [Intentionally Deleted];
(b) The Borrower and foregoing. Notwithstanding the Trust shall not make any Distribution if such Distribution is in excess of the amount whichforegoing, when added to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity any Borrower may pay dividends or Preferred Equity of the Borrower or the Trust and (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), make other distributions to its equityholders so long as in either case as, (A) no Unmatured Event of Default or Event of Default shall have occurred and be continuing on or would result from the date making of any such repurchase distribution or redemption, dividend payment and (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (immediately after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoingpayment, on a pro forma basis, the Borrower Borrowers will have at least $10,000,000 of Cash Equivalent Investments or cash on hand, and (ii) any Subsidiary may pay a Distribution to its partners of sums received by it pursuant dividends or make other distributions to the Tax Indemnity Agreement;applicable Borrower.”
(cp) In Section 9.13 of the event that an Event of Default shall have occurred Loan Agreement is amended by deleting the last sentence thereof in its entirety and be continuing, neither replacing it with the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower following: “Notwithstanding anything to the Trust and by the Trust required under the Code to maintain the REIT Status contrary in this Section 9.13, any immaterial Subsidiary may be dissolved or merged, in either case, in accordance with Section 8.2 of this Agreement.”
(q) Section 10.4 of the Trust, as evidenced by a certification Loan Agreement is deleted in its entirety.
(r) Section 11 of the principal financial or accounting officer Loan Agreement is amended by deleting the references to “$50,000” in Sections 11.5 and 11.8 thereof and replacing them with references to “$250,000".
(s) Section 12.6 of the Trust containing calculations Loan Agreement is amended and restated in reasonable detail satisfactory in form and substance its entirety to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; and
(d) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectly.read as follows:
Appears in 1 contract
Distributions. Neither the Borrower nor the Trust Guarantor shall make any Distributions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted];
(b) The Borrower and the Trust shall not make pay any Distribution to its partners if such Distribution is in excess of the amount which, when added to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective its Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b)foregoing, Borrower and the Trust Guarantor may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §ss.ss.8.3(l) and 8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the make Distributions in order to enable Borrower or the Trust and (ii) Guarantor to repurchase common or preferred stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), of Guarantor so long as in either case (Ai) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, and (Bii) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity AgreementAgreement dated as of May 10, 1996 between Atlantic Realty Trust and RPS Realty Trust;
(cb) In the event that an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust Guarantor shall make any Distributions other than the minimum Distributions by the Borrower to the Trust Guarantor and by the Trust Guarantor other than the minimum Distributions required under the Code to maintain the REIT Status of the TrustGuarantor, as evidenced by a certification of the principal financial or accounting officer of the Trust Guarantor containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust Guarantor shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust Guarantor at any time after an Event of Default shall have occurred and be continuing; and
(dc) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust Guarantor shall make any Distributions whatsoever, directly or indirectly.
Appears in 1 contract
Sources: Master Revolving Credit Agreement (Ramco Gershenson Properties Trust)
Distributions. Neither Except as otherwise provided in Section 13.2 regarding liquidation proceeds, or unless prohibited by the Borrower nor Act, Distributable Cash shall be distributed at such times as the Trust Managing Directors shall make any Distributions which would cause it to violate any of the following covenantsdetermine as follows:
(a) [Intentionally Deleted];First, on or before April 1st of the year following each Fiscal Year, to each Member an amount equal to the product determined by multiplying (i) the Assumed Tax Rate (which rate shall be the same for each Member, irrespective of such member’s actual marginal tax rate and such Member’s actual tax circumstances) by (ii) the net taxable income allocated by the Company to such Member on IRS Form 1065 and Schedule K-1 for such Taxable Year, assuming that such Member carried forward any taxable loss or tax credit previously allocated by the Company to such Member (to the extent such carryforward has not been previously used to offset taxable income pursuant to this clause), taking into account the character of any loss carryover as a capital or ordinary loss minus tax credits previously allocated by the Company to such Member (to the extent such tax credits have not been previously used to offset such Member’s Tax Amount pursuant to this clause) (the “Tax Amount”). A Member’s Tax Amount shall be determined by the Managing Directors on the basis of figures set forth on IRS Form 1065 filed by the Company and the similar state or local forms filed by the Company but shall be subject to subsequent adjustment by the Managing Directors to take into account the results of any subsequent audit, litigation, settlement, amended return or the like. Amounts distributed pursuant to this Section 9.1(a) shall be treated as distributions of Distributable Cash for all purposes of this Agreement and shall be offset against and reduce any subsequent distributions of Distributable Cash made pursuant to Section 9.1(c) for the year of such distribution; and
(b) The Borrower and the Trust shall not make any Distribution Then, if such Distribution is Distributions in excess of the amount which, when added addition to the amount Distributions described in Section 9.1(a) are approved by the Managing Directors, the first $4,000,000 of all other Distributions paid in the same fiscal quarter and the preceding three Distributable Cash to WLP (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four avoidance of doubt, once WLP receives $4,000,000 in Distributions pursuant to this subsection (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(bb), Borrower and the Trust may, subject then it shall no longer be entitled to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust and (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case (A) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock Distributions pursuant to §8.7(b)(iithis subsection (b) at any other time), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity Agreement;.
(c) In Then, if Distributions in addition to the event that an Event of Default shall have occurred Distributions described in Section 9.1(a) and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions 9.1(b) are approved by the Borrower Managing Directors, the balance of Distributable Cash to the Trust and Members, pro rata in accordance with the Members’ respective number of Units held by the Trust required under the Code to maintain the REIT Status such Members, determined as of the Trust, as evidenced by a certification date of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; provided, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuing; and
(d) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectlysuch distribution.
Appears in 1 contract
Sources: Joint Venture Formation and Limited Liability Company Investment Agreement (American Well Corp)
Distributions. Neither From, after the Borrower nor Final Termination Date, and after a Without Cause Removal Event, Net Cash Flow will be distributed to Members per Section 6.1(a). From and after the Trust Final Termination Date after a For Cause Removal Event, all amounts required to be distributed to Manager in accordance with Section 6.1(a)(iv) shall make any Distributions which would cause it be held by the Company and delivered to violate any (x) Encore, following the Removal Date or (y) to Manager, upon a determination in the Arbitration Proceeding that a For Cause Removal Event did not occur. From and after the Final Termination Date after a For Cause Removal Event, subject to Company holding Section 6.1(a)(iv) distributions in accordance with the preceding sentence, Net Cash Flow will be distributed to the Members as follows in lieu of the following covenants:Section 6.1(a): - 41 - Caliber/Encore: Behavioral Health JV Op Agreement
(ai) [Intentionally Deleted]first, 100% to the Contributing Members, if any, in an amount equal to any Additional LP Return owed in accordance with this Agreement (which Additional LP Returns would in each case be paid to Contributing Members out of and reduce distributions and fees otherwise payable to Non-Contributing Members as provided in Section 3.7);
(bii) The Borrower and the Trust shall not make any Distribution if such Distribution is in excess of the amount whichsecond, when added 100% to the amount of Members pro-rata and in proportion to its respective Unpaid Preferred Return until all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior Unpaid Preferred Return then owed to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust and (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), so long as in either case (A) no Event of Default shall have occurred and be continuing on the date of any such repurchase or redemption, (B) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase Borrower shall have delivered to Agent pro forma evidence reasonably satisfactory to Agent that the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall be less than fifty percent (50%). Notwithstanding the foregoing, the Borrower may pay a Distribution to its partners of sums received by it pursuant to the Tax Indemnity AgreementMembers equals zero;
(ciii) In the event that an Event of Default shall have occurred and be continuingthird, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by the Borrower 100% to the Trust and by the Trust required under the Code all Members pro-rata in proportion to maintain the REIT Status its respective Unreturned Capital Contributions until such time all Unreturned Capital Contributions of the TrustMembers equals zero;
(iv) fourth, as evidenced by a certification 100% to Encore until it has received its pro-rata share of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to Agent; providedall Net Cash Flow derived from Carried Interest Proceeds during such period, however, that neither Borrower nor the Trust shall be entitled to make any Distributions in connection with the repurchase of common or preferred stock of the Trust at any time after an Event of Default shall have occurred and be continuingif any; and
(dv) Notwithstanding thereafter, 100% to the Members in proportion to its respective share of aggregate Capital Contributions to the Company through such date. See Schedule 6.1 for an example of the above distribution. Upon the occurrence of the foregoing, at any time when an Event appropriate adjustments will be made to the allocation, distribution, Capital Account, and other provisions of Default shall have occurred this Agreement to give effect to the revision to Section 6.1(a) described above. Subject to the foregoing, from and after the maturity Final Removal Date following a For Cause Removal Event, Section 6.1 will be applied as amended above for purposes of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectlydefinition of Target Capital Account (relating to allocations of Profit under Section 5.1).
Appears in 1 contract
Sources: Limited Liability Company Agreement (CaliberCos Inc.)
Distributions. Neither the (a) The Borrower nor the Trust shall will not make any Distributions which would cause it to violate any of the following covenants:
(a) [Intentionally Deleted];
(b) The Borrower and the Trust shall not make any Distribution if such Distribution is in excess of the amount which, when added to the amount of all other Distributions paid in the same fiscal quarter and the preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of their respective Funds from Operations for the four (4) consecutive fiscal quarters ending prior to the quarter in which such Distribution is paid; provided, however, notwithstanding the foregoing in this §8.7(b), Borrower and the Trust may, subject to the limitations set forth in this Agreement (including specifically, but without limitation, those contained in §8.7(b)) (i) redeem existing Preferred Equity with proceeds from an issuance of common equity or Preferred Equity of the Borrower or the Trust and (ii) repurchase common stock issued by the Trust in an amount not exceeding the limit set forth in §8.3(j)(ii), except that so long as in either case (A) no Default or Event of Default shall have occurred and be continuing on and none would result therefrom the date of any such repurchase or redemption, Borrower may make Distributions provided that (Bi) no Default or Event of Default shall occur as a result of any such repurchase or redemption, and (C) with respect to any repurchase of common stock pursuant to §8.7(b)(ii), prior to any such repurchase the Borrower shall have delivered to the Administrative Agent a certificate of the appropriate officer of the Borrower demonstrating on a pro forma evidence reasonably satisfactory basis (based on the most recently ended fiscal quarter for which financial statements have been prepared and including any new issuances of equity since the end of such fiscal quarter) after giving effect to Agent any such Distributions that the ratio of Consolidated Total Liabilities Funded Indebtedness to Consolidated Total Adjusted Asset Value (after giving effect to such repurchase) shall EBITDA will be less than fifty 2.75 to 1.00 and (ii) the sum of aggregate amount of all Distributions made during the four fiscal quarters immediately preceding such Distribution plus the amount of such Distribution does not exceed the lesser of (A) thirty-three percent (5033%). Notwithstanding ) of the foregoingcumulative quarterly Consolidated Net Income for such four fiscal quarters as demonstrated by the Compliance Certificate with respect to such period delivered in accordance with Section 11.4(e) hereof and (B) $1,500,000.
(b) None of the Borrower's Subsidiaries shall make any Distributions, except that any Subsidiary of the Borrower may pay a Distribution make Distributions to its partners of sums received by it pursuant to the Tax Indemnity Agreement;
(ci) In the event that an Event of Default shall have occurred and be continuing, neither the Borrower nor the Trust shall make any Distributions other than the minimum Distributions by or (ii) a Subsidiary of the Borrower to which is the Trust and by the Trust required under the Code to maintain the REIT Status owner of the Trust, as evidenced by a certification capital stock of the principal financial or accounting officer of the Trust containing calculations in reasonable detail satisfactory in form and substance to AgentSubsidiary making such Distribution; provided, however, that neither non-wholly-owned Subsidiaries of the Borrower nor may make Distributions on a pro rata basis among the Trust holders of its equity interests.
(c) The Borrower shall be entitled not, and shall not permit any of its Subsidiaries to, create or permit to make exist any Distributions restriction (other than that contained in connection with Section 12.4(b) hereof) on the repurchase ability of common or preferred any Subsidiary of the Borrower to pay dividends to the Borrower or, in the case of a Subsidiary which is not directly owned by the Borrower, the Subsidiary of the Borrower that is the direct owner of the capital stock of the Trust at any time after an Event of Default shall have occurred and be continuing; and
(d) Notwithstanding the foregoing, at any time when an Event of Default shall have occurred and the maturity of the Obligations has been accelerated, neither the Borrower nor the Trust shall make any Distributions whatsoever, directly or indirectlysuch Subsidiary.
Appears in 1 contract