Amendment Period. Notwithstanding anything to the contrary contained herein, at all times during the Amendment Period and continuing thereafter until the Post-Amendment Period Compliance Date, the Borrower shall not, and shall not permit any other Loan Party or any other Subsidiary or Unconsolidated Affiliate to do any of the following without the prior written consent of the Requisite Lenders: (a) incur any additional unsecured Indebtedness (including, without limitation, any increase in the Commitments pursuant to Section 2.15), other than (i) borrowings of Loans in accordance with the terms hereof, (ii) pursuant to aone or more Stimulus TransactionTransactions, (iii) any other incurrenceissuance by the Borrower or any Subsidiary or Unconsolidated Affiliate of secured orof unsecured Indebtedness, in each casenotes pursuant to a Qualified Notes Issuance, provided that (A) any such Indebtedness has an initial term of at least three (3) years, (B) no scheduled principal repayments or other mandatory prepayments in respect of such Indebtedness are required to be paid, nor will be paid, by the Borrower within the first three (3) years following the date of incurrence thereof (other than, in the case of Nonrecourse Indebtedness, principal repayments scheduled over a period of fifteen (15) years or more), (C) the proceeds thereof are applied in accordance with Section 2.7(b)(iii)(B), and (DB) no Default or Event of Default has occurred and is continuing or would result therefrom, (E) if any such Indebtedness is secured by a mortgage, deed of trust, deed to secure debt or other similar instrument or agreement creating a Lien on Property, such Indebtedness shall be Nonrecourse Indebtedness, and (F) if any issuance of notes by the Borrower in reliance on this clause (iii) is secured by a pledge of the Borrower’s equity interests in one or more Subsidiaries of the Borrower, within 15 days of the date of issuance of such pledge, the Borrower shall deliver to the Administrative Agent a pledge agreement in form and substance satisfactory to the Administrative Agent granting as security for the Obligations an equal and ratable Lien in favor of the Administrative Agent, for the benefit of the Lenders, on all such equity interests pledged in connection with such issuance of notes, together with all other schedules, supplements, instruments, certificates, intercreditor agreements, filings, opinions or information in connection therewith as required by any such pledge agreement or as reasonably requested by the Administrative Agent, and (iv) subject to Section 7.13, the Guarantee by any Subsidiary of the Borrower of any issuance of notes by the Borrower pursuant to the foregoing clause (iii).and (iv) any other incurrence by the Borrower or any Subsidiary of unsecured Indebtedness, provided that (A) the proceeds thereof are applied in accordance with Section 2.7(b)(iii)(B), (B) no Default or Event of Default has occurred and is continuing or would result therefrom, and (C) unless the Borrower is not in compliance with the Amendment Period Incurrence Conditions, at the time of incurrence or as a result of the application of subclause (A) of this clause (iv), no Loans or Term Loans remain outstanding, and all Pari Passu Obligations have been repaid in full (or with respect to any issued but undrawn amount of an outstanding Letter of Credit, the amount thereof has been paid to the Administrative Agent for deposit into the Letter of Credit Collateral Account); (b) acquire any real property or make any other Investments of any kind (other than cash, Cash Equivalents and similar investments),, other than: (i) renovations, repositionings or improvements to ▇▇▇▇▇ capital expenditures in respect of any Property, (ii) leasing and tenant improvement costs to be paid by the Borrower or its Subsidiaries (or its Ownership Share thereof to be paid by Unconsolidated Affiliates), (iii) maintenance capital expenditures and repairs to be paid by Borrower or its Subsidiaries (or its Ownership Share thereof to be paid by Unconsolidated Affiliates), and (ivcollectively, in an aggregate amount not to exceed $250,000,000 in any calendar year (to be automatically increased to $350,000,000 for the calendar year in which the Term Loans and all other “Obligations” under and as defined in the Term Loan Agreement are discharged and repaid in full and for each calendar year thereafter), (ii) if Five Star conducts an equity offering, the acquisition by the Borrower of such minimum number of additional shares of Five Star as would permit the Borrower to retain pro rata ownership of 3433.9% of Five Star, and (iii) acquisitions of any properties in the proximity of, and accretive to, existing real property assets of the Borrower and its Subsidiaries in an aggregate amount not to exceed $50,000,000 in any calendar year (the foregoing clauses (i) through (iviii), collectively, the “Permitted Capital Expenditures”); (c) make any Restricted Payments, provided that (i) the Borrower may declare and make cash distributions to its shareholders in an aggregate amount not to exceed the minimum amount necessary for the Borrower to remain in compliance with Section 7.11. and to avoid the imposition of income or excise taxes imposed under Sections 857(b)(1), 857(b)(3) and 4981 of the Internal Revenue Code, (ii) the Borrower shall be permitted to make Restricted Payments of not more than $0.01 per share in cash to the holders of its capital stock following the end of each fiscal quarter of Borrower, and (iii) any Subsidiary or Unconsolidated Affiliate may make Restricted Payments to the Borrower or any Subsidiary of the Borrower (and, in the case of any Subsidiary that is not a Wholly Owned Subsidiary, to each other owner of equity interests in such Subsidiary pro rata based on such owner’s Ownership Share or as otherwise required by the terms of the organizational documents of such Subsidiary) (the foregoing clauses (i) through (iii), collectively, the “Permitted Restricted Payments”); and (d) take any action, or refrain from taking any action, that would be prohibited during a Default or Event of Default, including, without limitation, mergers, liquidations, liens, encumbrances, releases, and certain transfers in each case which would otherwise be permitted hereunder, other than (i) the borrowing of Revolving Loans or Swingline Loans and other Indebtedness otherwise permitted under Section 9.12(a), (ii) the issuance, extension or amendment of any Letter of Credit otherwise permitted hereunder, (iii) requesting a Conversion or Continuation of LIBOR Loans in accordance with Sections 2.8 and 2.9, as applicable, (iv) dispositions of property or other Investments, in each case, pursuant to an arm’s-length third party transactions in the ordinary course of business, and (v) Permitted Capital Expenditures, (vi) Permitted Restricted Payments, and (vii) the granting of any Liens on assets to the extent securing any Indebtedness permitted under Section 9.12(a).; and (e) use the proceeds of any Loans or other Credit Event to directly or indirectly repay any Indebtedness other than (i) first, the repayment or optional redemption of the 6.75% Senior Notes, to the full extent thereof, and (ii) second, the repayment of the Term Loans and any other “Obligations” under and as defined in the Term Loan Agreement.
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Amendment Period. Notwithstanding anything to the contrary contained herein, at all times during the Amendment Period and continuing thereafter until the Post-Amendment Period Compliance Date, the Borrower shall not, and shall not permit any other Loan Party or any other Subsidiary or Unconsolidated Affiliate to do any of the following without the prior written consent of the Requisite Lenders:
(a) incur any additional unsecured Indebtedness (including, without limitation, any increase in the Commitments pursuant to Section 2.15), other than (i) borrowings of Loans in accordance with the terms hereofhereof[intentionally omitted], (ii) pursuant to aone one or more Stimulus TransactionTransactionsTransactions, (iii) any other incurrenceissuance issuance by the Borrower or any Subsidiary or Unconsolidated Affiliate of secured orof unsecured Indebtedness, in each casenotes notes pursuant to a Qualified Notes Issuance, provided that (A) any such Indebtedness has an initial term of at least three (3) years, (B) no scheduled principal repayments or other mandatory prepayments in respect of such Indebtedness are required to be paid, nor will be paid, by the Borrower within the first three (3) years following the date of incurrence thereof (other than, in the case of Nonrecourse Indebtedness, principal repayments scheduled over a period of fifteen (15) years or more), (C) the proceeds thereof are applied in accordance with Section 2.7(b)(iii)(B), ) and (DBB) no Default or Event of Default has occurred and is continuing or would result therefrom, (E) if any such Indebtedness is secured by a mortgage, deed of trust, deed to secure debt or other similar instrument or agreement creating a Lien on Property, such Indebtedness shall be Nonrecourse Indebtedness, and (F) if any issuance of notes by the Borrower in reliance on this clause (iii) is secured by a pledge of the Borrower’s equity interests in one or more Subsidiaries of the Borrower, within 15 days of the date of issuance of such pledge, the Borrower shall deliver to the Administrative Agent a pledge agreement in form and substance satisfactory to the Administrative Agent granting as security for the Obligations an equal and ratable Lien in favor of the Administrative Agent, for the benefit of the Lenders, on all such equity interests pledged in connection with such issuance of notes, together with all other schedules, supplements, instruments, certificates, intercreditor agreements, filings, opinions or information in connection therewith as required by any such pledge agreement or as reasonably requested by the Administrative Agent, and (iv) subject to Section 7.13, the Guarantee by any Subsidiary of the Borrower of any issuance of notes by the Borrower pursuant to the foregoing clause (iii).and (iv) any other incurrence by the Borrower or any Subsidiary of unsecured Indebtedness, provided that (A) the proceeds thereof are applied in accordance with Section 2.7(b)(iii)(B), (B) no Default or Event of Default has occurred and is continuing or would result therefrom, and (C) unless the Borrower is not in compliance with the Amendment Period Incurrence Conditions, at the time of incurrence or as a result of the application of subclause (A) of this clause (iv), no Loans or Term Loans remain outstanding, and all Pari Passu Obligations have been repaid in full (or with respect to any issued but undrawn amount of an outstanding Letter of Credit, the amount thereof has been paid to the Administrative Agent for deposit into the Letter of Credit Collateral Account);
(b) acquire any real property or make any other Investments of any kind (other than cash, Cash Equivalents and similar investments),kind, other than: (i) renovations, repositionings or improvements to ▇▇▇▇▇ and capital expenditures in respect of any Property, (ii) leasing and tenant improvement costs to be paid by the Borrower or its Subsidiaries (or its Ownership Share thereof to be paid by Unconsolidated Affiliates), (iii) maintenance capital expenditures and repairs to be paid by Borrower or its Subsidiaries (or its Ownership Share thereof to be paid by Unconsolidated Affiliates), and (ivcollectivelycollectively, in an aggregate amount not to exceed $250,000,000 400,000,000 in any calendar year (to be automatically increased to $350,000,000 for the calendar year in which the Term Loans and all other “Obligations” under and as defined in the Term Loan Agreement are discharged and repaid in full and for each calendar year thereafter)year, (ii) if Five Star AlerisLife conducts an equity offering, the acquisition by the Borrower of such minimum number of additional shares of Five Star AlerisLife as would permit the Borrower to retain pro rata ownership of 3433.933.9% of Five StarAlerisLife, and (iii) acquisitions of any properties in the proximity of, and accretive to, existing real property assets of the Borrower and its Subsidiaries in an aggregate amount not to exceed $50,000,000 in any calendar year year, and (iv) acquisitions of real property assets in an aggregate amount not to exceed $500,000,000the acquisition by any Loan Party of real property to the extent such Loan Party is contractually bound (in the sole discretion of the applicable third party) to acquire such real property pursuant to the terms of a ground lease in existence and as in effect on the Fifth Amendment Effective Date (the foregoing clauses (i) through (iviii), collectively, the “Permitted Capital Expenditures”);
(c) make any Restricted Payments, provided that (i) the Borrower may declare and make cash distributions to its shareholders in an aggregate amount not to exceed the minimum amount necessary for the Borrower to remain in compliance with Section 7.11. and to avoid the imposition of income or excise taxes imposed under Sections 857(b)(1), 857(b)(3) and 4981 of the Internal Revenue Code, (ii) the Borrower shall be permitted to make Restricted Payments of not more than $0.01 per share in cash to the holders of its capital stock following the end of each fiscal quarter of Borrower, and (iii) any Subsidiary or Unconsolidated Affiliate may make Restricted Payments to the Borrower or any Subsidiary of the Borrower (and, in the case of any Subsidiary that is not a Wholly Owned Subsidiary, to each other owner of equity interests in such Subsidiary pro rata based on such owner’s Ownership Share or as otherwise required by the terms of the organizational documents of such Subsidiary) (the foregoing clauses (i) through (iii), collectively, the “Permitted Restricted Payments”); and;
(d) take any action, or refrain from taking any action, that would be prohibited during a Default or Event of Default, including, without limitation, (x) any increase in the Commitments pursuant to Section 2.15, and (y) mergers, liquidations, liens, encumbrances, releases, and certain transfers in each case which would otherwise be permitted hereunder, other than (i) the borrowing of Revolving Loans or Swingline Loans and other Indebtedness otherwise permitted under Section 9.12(a), (ii) the issuance, extension or amendment of any Letter of Credit otherwise permitted hereunder, (iii) requesting a Conversion or Continuation of LIBOR LIBORSOFR Loans in accordance with Sections 2.8 and 2.9, as applicable, (iviviii) dispositions of property or other Investments, in each case, pursuant to an arm’s-length third party transactions in the ordinary course of business, and (vviv) Permitted Capital Expenditures, (vi) Permitted Restricted Payments, and (vii) the granting of any Liens on assets to the extent securing any Indebtedness permitted under Section 9.12(a).; and
(e) use the proceeds of any Loans or other Credit Event to directly or indirectly repay any Indebtedness other than (i) first, the repayment or optional redemption of the 6.75% Senior Notes, to the full extent thereof, and (ii) second, the repayment of the Term Loans and any other “Obligations” under and as defined in the Term Loan Agreement.
Appears in 1 contract
Amendment Period. Notwithstanding anything to the contrary contained herein, at all times during the Amendment Period and continuing thereafter until the Post-Amendment Period Compliance DatePeriod, the Borrower shall not, and shall not permit any other Loan Party or any other Subsidiary or Unconsolidated Affiliate to do any of the following without the prior written consent of the Requisite Lenders:
(a) incur any additional unsecured Indebtedness (including, without limitation, any increase in the Commitments pursuant to Section 2.15), other than (i) borrowings of Loans in accordance with the terms hereof, (ii) pursuant to aone or more a Stimulus TransactionTransactionsTransaction, (iii) any other incurrenceissuance incurrence by the Borrower or any Subsidiary or Unconsolidated Affiliate of secured orof or unsecured Indebtedness, in each casenotes pursuant to a Qualified Notes Issuancecase, provided that (A) any such Indebtedness has an initial term of at least three (3) years, (B) no scheduled principal repayments or other mandatory prepayments in respect of such Indebtedness are required to be paid, nor will be paid, by the Borrower within the first three (3) years following the date of incurrence thereof (other than, in the case of Nonrecourse Indebtedness, principal repayments scheduled over a period of fifteen (15) years or more), (C) the proceeds thereof are applied in accordance with Section 2.7(b)(iii)(B), and (DBD) no Default or Event of Default has occurred and is continuing or would result therefrom, (E) if any such Indebtedness is secured by a mortgage, deed of trust, deed to secure debt or other similar instrument or agreement creating a Lien on Property, such Indebtedness shall be Nonrecourse Indebtedness, and (F) if any issuance of notes by the Borrower in reliance on this clause (iii) is secured by a pledge of the Borrower’s equity interests in one or more Subsidiaries of the Borrower, within 15 days of the date of issuance of such pledge, the Borrower shall deliver to the Administrative Agent a pledge agreement in form and substance satisfactory to the Administrative Agent granting as security for the Obligations an equal and ratable Lien in favor of the Administrative Agent, for the benefit of the Lenders, on all such equity interests pledged in connection with such issuance of notes, together with all other schedules, supplements, instruments, certificates, intercreditor agreements, filings, opinions or information in connection therewith as required by any such pledge agreement or as reasonably requested by the Administrative Agent, and (iv) subject to Section 7.13, the Guarantee by any Subsidiary of the Borrower of any issuance of notes by the Borrower pursuant to the foregoing clause (iii).and (iv) any other incurrence by the Borrower or any Subsidiary of unsecured Indebtedness, provided that (A) the proceeds thereof are applied in accordance with Section 2.7(b)(iii)(Biii), (B) no Default or Event of Default has occurred and is continuing or would result therefrom, and (C) unless the Borrower is not in compliance with the Amendment Period Incurrence Conditions, at the time of incurrence or as a result of the application of subclause (A) of this clause (iv), no Loans or Term Loans remain outstanding, and all Pari Passu Obligations have been repaid in full (or with respect to any issued but undrawn amount of an outstanding Letter of Credit, the amount thereof has been paid to the Administrative Agent for deposit into the Letter of Credit Collateral Account);.
(b) acquire any real property or make any other Investments of any kind (other than cash, Cash Equivalents and similar investments),, other than: (i) renovations, repositionings or improvements to ▇▇▇▇▇ capital expenditures or in respect of any Property, (ii) leasing and tenant improvement costs to be paid by the Borrower or its Subsidiaries (or its Ownership Share thereof to be paid by Unconsolidated Affiliates), (iii) maintenance capital expenditures and repairs to be paid by Borrower or its Subsidiaries (or its Ownership Share thereof to be paid by Unconsolidated Affiliates), and (ivcollectively, in an aggregate amount not to exceed $250,000,000 in any calendar year (to be automatically increased to $350,000,000 for the calendar year in which the Term Loans and all other “Obligations” under and as defined in the Term Loan Agreement are discharged and repaid in full and for each calendar year thereafter), (iiiv) if Five Star conducts an equity offering, the acquisition by the Borrower of such minimum number of additional shares of Five Star as would permit the Borrower to retain pro rata ownership of 3433.934% of Five Star, and (iii) acquisitions of any properties in the proximity of, and accretive to, existing real property assets of the Borrower and its Subsidiaries in an aggregate amount not to exceed $50,000,000 in any calendar year Star (the foregoing clauses (i) through (iviiiiv), collectively, the “Permitted Capital Expenditures”);
(c) make any Restricted Payments, provided that (i) the Borrower may declare and make cash distributions to its shareholders in an aggregate amount not to exceed the minimum amount necessary for the Borrower to remain in compliance with Section 7.11. and to avoid the imposition of income or excise taxes imposed under Sections 857(b)(1), 857(b)(3) and 4981 of the Internal Revenue Code, (ii) the Borrower shall be permitted to make Restricted Payments of not more than $0.01 per share in cash to the holders of its capital stock following the end of each fiscal quarter of Borrower, and (iii) any Subsidiary or Unconsolidated Affiliate may make Restricted Payments to the Borrower or any Subsidiary of the Borrower (and, in the case of any Subsidiary that is not a Wholly Owned Subsidiary, to each other owner of equity interests in such Subsidiary pro rata based on such owner’s Ownership Share or as otherwise required by the terms of the organizational documents of such SubsidiaryShare) (the foregoing clauses (i) through (iii), collectively, the “Permitted Restricted Payments”); and
(d) take any action, or refrain from taking any action, that would be prohibited during a Default or Event of Default, including, without limitation, mergers, liquidations, liens, encumbrances, releases, and certain transfers in each case which would otherwise be permitted hereunder, other than (i) the borrowing of Revolving Loans or Swingline Loans and other Indebtedness otherwise permitted under Section 9.12(a), (ii) the issuance, extension or amendment of any Letter of Credit otherwise permitted hereunder, (iii) requesting a Conversion or Continuation of LIBOR Loans in accordance with Sections 2.8 and 2.9, as applicable, (iv) dispositions of property or other Investments, in each case, pursuant to an arm’s-length third party transactions in the ordinary course of business, and (v) Permitted Capital Expenditures, (vi) Permitted Restricted Payments, and (vii) the granting of any Liens on assets to the extent securing any Indebtedness permitted under Section 9.12(a).; and
(e) use the proceeds of any Loans or other Credit Event to directly or indirectly repay any Indebtedness other than (i) first, the repayment or optional redemption of the 6.75% Senior Notes, to the full extent thereof, and (ii) second, the repayment of the Term Loans and any other “Obligations” under and as defined in the Term Loan Agreement.
Appears in 1 contract
Amendment Period. Notwithstanding anything to the contrary contained herein, at all times during the Amendment Period and continuing thereafter until the Post-Amendment Period Compliance DatePeriod, the Borrower shall not, and shall not permit any other Loan Party or any other Subsidiary or Unconsolidated Affiliate to do any of the following without the prior written consent of the Requisite Lenders:
(a) incur any additional unsecured Indebtedness (including, without limitation, any increase in the Commitments additional Loans pursuant to Section 2.15), other than (i) borrowings of Loans under and as defined in accordance with the terms hereofExisting Credit Agreement, (ii) pursuant to aone or more a Stimulus TransactionTransactionsTransaction, (iii) any other incurrenceissuance incurrence by the Borrower or any Subsidiary or Unconsolidated Affiliate of secured orof or unsecured Indebtedness, in each casenotes pursuant to a Qualified Notes Issuancecase, provided that (A) any such Indebtedness has an initial term of at least three (3) years, (B) no scheduled principal repayments or other mandatory prepayments in respect of such Indebtedness are required to be paid, nor will be paid, by the Borrower within the first three (3) years following the date of incurrence thereof (other than, in the case of Nonrecourse Indebtedness, principal repayments scheduled over a period of fifteen (15) years or more), (C) the proceeds thereof are applied in accordance with Section 2.7(b)(iii)(B)) of the Existing Credit Agreement as in effect on the First Amendment Effective Date, and (DBD) no Default or Event of Default has occurred and is continuing or would result therefrom, (E) if any such Indebtedness is secured by a mortgage, deed of trust, deed to secure debt or other similar instrument or agreement creating a Lien on Property, such Indebtedness shall be Nonrecourse Indebtedness, and (F) if any issuance of notes by the Borrower in reliance on this clause (iii) is secured by a pledge of the Borrower’s equity interests in one or more Subsidiaries of the Borrower, within 15 days of the date of issuance of such pledge, the Borrower shall deliver to the Administrative Agent a pledge agreement in form and substance satisfactory to the Administrative Agent granting as security for the Obligations an equal and ratable Lien in favor of the Administrative Agent, for the benefit of the Lenders, on all such equity interests pledged in connection with such issuance of notes, together with all other schedules, supplements, instruments, certificates, intercreditor agreements, filings, opinions or information in connection therewith as required by any such pledge agreement or as reasonably requested by the Administrative Agent, and (iv) subject to Section 7.13, the Guarantee by any Subsidiary of the Borrower of any issuance of notes by the Borrower pursuant to the foregoing clause (iii).and (iv) any other incurrence by the Borrower or any Subsidiary of unsecured Indebtedness, provided that (A) the proceeds thereof are applied in accordance with Section 2.7(b)(iii)(Biii), (B) no Default or Event of Default has occurred and is continuing or would result therefrom, and (C) unless the Borrower is not in compliance with the Amendment Period Incurrence Conditions, at the time of incurrence or as a result of the application of subclause (A) of this clause (iv), no Loans or Term Loans remain outstanding, and all Pari Passu Obligations have been repaid in full (or with respect to any issued but undrawn amount of an outstanding Letter of Credit, the amount thereof has been paid to the Administrative Agent for deposit into the Letter of Credit Collateral Account);.
(b) acquire any real property or make any other Investments of any kind (other than cash, Cash Equivalents and similar investments),, other than: (i) renovations, repositionings or improvements to ▇▇▇▇▇ capital expenditures or in respect of any Property, (ii) leasing and tenant improvement costs to be paid by the Borrower or its Subsidiaries (or its Ownership Share thereof to be paid by Unconsolidated Affiliates), (iii) maintenance capital expenditures and repairs to be paid by Borrower or its Subsidiaries (or its Ownership Share thereof to be paid by Unconsolidated Affiliates), and (ivcollectively, in an aggregate amount not to exceed $250,000,000 in any calendar year (to be automatically increased to $350,000,000 for the calendar year in which the Term Loans and all other “Obligations” under and as defined in the Term Loan Agreement are discharged and repaid in full and for each calendar year thereafter), (iiiv) if Five Star conducts an equity offering, the acquisition by the Borrower of such minimum number of additional shares of Five Star as would permit the Borrower to retain pro rata ownership of 3433.934% of Five Star, and (iii) acquisitions of any properties in the proximity of, and accretive to, existing real property assets of the Borrower and its Subsidiaries in an aggregate amount not to exceed $50,000,000 in any calendar year Star (the foregoing clauses (i) through (iviiiiv), collectively, the “Permitted Capital Expenditures”);
(c) make any Restricted Payments, provided that (i) the Borrower may declare and make cash distributions to its shareholders in an aggregate amount not to exceed the minimum amount necessary for the Borrower to remain in compliance with Section 7.11. and to avoid the imposition of income or excise taxes imposed under Sections 857(b)(1), 857(b)(3) and 4981 of the Internal Revenue Code, (ii) the Borrower shall be permitted to make Restricted Payments of not more than $0.01 per share in cash to the holders of its capital stock following the end of each fiscal quarter of Borrower, and (iii) any Subsidiary or Unconsolidated Affiliate may make Restricted Payments to the Borrower or any Subsidiary of the Borrower (and, in the case of any Subsidiary that is not a Wholly Owned Subsidiary, to each other owner of equity interests in such Subsidiary pro rata based on such owner’s Ownership Share or as otherwise required by the terms of the organizational documents of such SubsidiaryShare) (the foregoing clauses (i) through (iii), collectively, the “Permitted Restricted Payments”); and
(d) take any action, or refrain from taking any action, that would be prohibited during a Default or Event of Default, including, without limitation, mergers, liquidations, liens, encumbrances, releases, and certain transfers in each case which would otherwise be permitted hereunder, other than (i) the borrowing of Revolving Loans or Swingline Loans and other Indebtedness otherwise permitted under Section 9.12(a), (ii) the issuance, extension or amendment of any Letter of Credit otherwise permitted hereunder, (iii) requesting a Conversion or Continuation of LIBOR Loans in accordance with Sections 2.8 and 2.9, as applicable, (iviii) dispositions of property or other Investments, in each case, pursuant to an arm’s-length third party transactions in the ordinary course of business, and (viv) Permitted Capital Expenditures, (viv) Permitted Restricted Payments, and (viivi) the granting of any Liens on assets to the extent securing any Indebtedness permitted under Section 9.12(a).; and
(e) use the proceeds of any Loans or other Credit Event to directly or indirectly repay any Indebtedness other than (i) first, the repayment or optional redemption of the 6.75% Senior Notes, to the full extent thereof, and (ii) second, the repayment of the Term Loans and any other “Obligations” under and as defined in the Term Loan Agreement.
Appears in 1 contract
Amendment Period. Notwithstanding anything to the contrary contained herein, at all times during the Amendment Period and continuing thereafter until the Post-Amendment Period Compliance Date, the Borrower shall not, and shall not permit any other Loan Party or any other Subsidiary or Unconsolidated Affiliate to do any of the following without the prior written consent of the Requisite Lenders:
(a) incur any additional unsecured Indebtedness (including, without limitation, any increase in the Commitments pursuant to Section 2.15), other than (i) borrowings of Loans in accordance with the terms hereof, (ii) pursuant to aone one or more Stimulus TransactionTransactionsTransactions, (iii) any other incurrenceissuance issuance by the Borrower or any Subsidiary or Unconsolidated Affiliate of secured orof unsecured Indebtedness, in each casenotes notes pursuant to a Qualified Notes Issuance, provided that (A) any such Indebtedness has an initial term of at least three (3) years, (B) no scheduled principal repayments or other mandatory prepayments in respect of such Indebtedness are required to be paid, nor will be paid, by the Borrower within the first three (3) years following the date of incurrence thereof (other than, in the case of Nonrecourse Indebtedness, principal repayments scheduled over a period of fifteen (15) years or more), (C) the proceeds thereof are applied in accordance with Section 2.7(b)(iii)(B), ) and (DBB) no Default or Event of Default has occurred and is continuing or would result therefrom, (E) if any such Indebtedness is secured by a mortgage, deed of trust, deed to secure debt or other similar instrument or agreement creating a Lien on Property, such Indebtedness shall be Nonrecourse Indebtedness, and (F) if any issuance of notes by the Borrower in reliance on this clause (iii) is secured by a pledge of the Borrower’s equity interests in one or more Subsidiaries of the Borrower, within 15 days of the date of issuance of such pledge, the Borrower shall deliver to the Administrative Agent a pledge agreement in form and substance satisfactory to the Administrative Agent granting as security for the Obligations an equal and ratable Lien in favor of the Administrative Agent, for the benefit of the Lenders, on all such equity interests pledged in connection with such issuance of notes, together with all other schedules, supplements, instruments, certificates, intercreditor agreements, filings, opinions or information in connection therewith as required by any such pledge agreement or as reasonably requested by the Administrative Agent, and (iv) subject to Section 7.13, the Guarantee by any Subsidiary of the Borrower of any issuance of notes by the Borrower pursuant to the foregoing clause (iii).and (iv) any other incurrence by the Borrower or any Subsidiary of unsecured Indebtedness, provided that (A) the proceeds thereof are applied in accordance with Section 2.7(b)(iii)(B), (B) no Default or Event of Default has occurred and is continuing or would result therefrom, and (C) unless the Borrower is not in compliance with the Amendment Period Incurrence Conditions, at the time of incurrence or as a result of the application of subclause (A) of this clause (iv), no Loans or Term Loans remain outstanding, and all Pari Passu Obligations have been repaid in full (or with respect to any issued but undrawn amount of an outstanding Letter of Credit, the amount thereof has been paid to the Administrative Agent for deposit into the Letter of Credit Collateral Account);
(b) acquire any real property or make any other Investments of any kind (other than cash, Cash Equivalents and similar investments),kind, other than: (i) renovations, repositionings or improvements to ▇▇▇▇▇ and capital expenditures in respect of any Property, (ii) leasing and tenant improvement costs to be paid by the Borrower or its Subsidiaries (or its Ownership Share thereof to be paid by Unconsolidated Affiliates), (iii) maintenance capital expenditures and repairs to be paid by Borrower or its Subsidiaries (or its Ownership Share thereof to be paid by Unconsolidated Affiliates), and (ivcollectivelycollectively, in an aggregate amount not to exceed $250,000,000 in any calendar year (to be automatically increased to $350,000,000 for the calendar year in which the Term Loans and all other “Obligations” under and as defined in the Term Loan Agreement are discharged and repaid in full and for each calendar year thereafter), (ii) if Five Star conducts an equity offering, the acquisition by the Borrower of such minimum number of additional shares of Five Star as would permit the Borrower to retain pro rata ownership of 3433.933.9% of Five Star, and (iii) acquisitions of any properties in the proximity of, and accretive to, existing real property assets of the Borrower and its Subsidiaries in an aggregate amount not to exceed $50,000,000 in any calendar year (the foregoing clauses (i) through (iviiiiii), collectively, the “Permitted Capital Expenditures”);
(c) make any Restricted Payments, provided that (i) the Borrower may declare and make cash distributions to its shareholders in an aggregate amount not to exceed the minimum amount necessary for the Borrower to remain in compliance with Section 7.11. and to avoid the imposition of income or excise taxes imposed under Sections 857(b)(1), 857(b)(3) and 4981 of the Internal Revenue Code, (ii) the Borrower shall be permitted to make Restricted Payments of not more than $0.01 per share in cash to the holders of its capital stock following the end of each fiscal quarter of Borrower, and (iii) any Subsidiary or Unconsolidated Affiliate may make Restricted Payments to the Borrower or any Subsidiary of the Borrower (and, in the case of any Subsidiary that is not a Wholly Owned Subsidiary, to each other owner of equity interests in such Subsidiary pro rata based on such owner’s Ownership Share or as otherwise required by the terms of the organizational documents of such Subsidiary) (the foregoing clauses (i) through (iii), collectively, the “Permitted Restricted Payments”); and;
(d) take any action, or refrain from taking any action, that would be prohibited during a Default or Event of Default, including, without limitation, mergers, liquidations, liens, encumbrances, releases, and certain transfers in each case which would otherwise be permitted hereunder, other than (i) the borrowing of Revolving Loans or Swingline Loans and other Indebtedness otherwise permitted under Section 9.12(a), (ii) the issuance, extension or amendment of any Letter of Credit otherwise permitted hereunder, (iii) requesting a Conversion or Continuation of LIBOR Loans in accordance with Sections 2.8 and 2.9, as applicable, (iv) dispositions of property or other Investments, in each case, pursuant to an arm’s-length third party transactions in the ordinary course of business, and (v) Permitted Capital Expenditures, (vi) Permitted Restricted Payments, and (vii) the granting of any Liens on assets to the extent securing any Indebtedness permitted under Section 9.12(a).; and
(e) use the proceeds of any Loans or other Credit Event to directly or indirectly repay any Indebtedness other than (i) first, the repayment or optional redemption of the 6.75% Senior Notes, to the full extent thereof, and (ii) second, the repayment of the Term Loans and any other “Obligations” under and as defined in the Term Loan Agreement.
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Amendment Period. Notwithstanding anything to the contrary contained herein, at all times during the Amendment Period and continuing thereafter until the Post-Amendment Period Compliance Date, the Borrower shall not, and shall not permit any other Loan Party or any other Subsidiary or Unconsolidated Affiliate to do any of the following without the prior written consent of the Requisite Lenders:
(a) incur any additional unsecured Indebtedness (including, without limitation, any increase in the Commitments additional Loans pursuant to Section 2.15), other than (i) borrowings of Revolving Loans in under and as defined inin accordance with the terms hereofof the Existing Credit Agreement, (ii) pursuant to aone or more Stimulus TransactionTransactions, (iii) any other incurrenceissuance by the Borrower or any Subsidiary or Unconsolidated Affiliate of secured orof unsecured Indebtedness, in each casenotes pursuant to a Qualified Notes Issuance, provided that (A) any such Indebtedness has an initial term of at least three (3) years, (B) no scheduled principal repayments or other mandatory prepayments in respect of such Indebtedness are required to be paid, nor will be paid, by the Borrower within the first three (3) years following the date of incurrence thereof (other than, in the case of Nonrecourse Indebtedness, principal repayments scheduled over a period of fifteen (15) years or more), (C) the proceeds thereof are applied in accordance with Section 2.7(b)(iii)(B)2.7(bd)(iiii)(B) of the Existing Credit Agreement as in effect on the First Amendment Effective Date, and (DB) no Default or Event of Default has occurred and is continuing or would result therefrom, (E) if any such Indebtedness is secured by a mortgage, deed of trust, deed to secure debt or other similar instrument or agreement creating a Lien on Property, such Indebtedness shall be Nonrecourse Indebtedness, and (F) if any issuance of notes by the Borrower in reliance on this clause (iii) is secured by a pledge of the Borrower’s equity interests in one or more Subsidiaries of the Borrower, within 15 days of the date of issuance of such pledge, the Borrower shall deliver to the Administrative Agent a pledge agreement in form and substance satisfactory to the Administrative Agent granting as security for the Obligations an equal and ratable Lien in favor of the Administrative Agent, for the benefit of the Lenders, on all such equity interests pledged in connection with such issuance of notes, together with all other schedules, supplements, instruments, certificates, intercreditor agreements, filings, opinions or information in connection therewith as required by any such pledge agreement or as reasonably requested by the Administrative Agent, and (iv) subject to Section 7.13, the Guarantee by any Subsidiary of the Borrower of any issuance of notes by the Borrower pursuant to the foregoing clause (iii).and iii). and (iv) any other incurrence by the Borrower or any Subsidiary of unsecured Indebtedness, provided that (A) the proceeds thereof are applied in accordance with Section 2.7(b)(iii)(B2.7(d)(i)(B), (B) no Default or Event of Default has occurred and is continuing or would result therefrom, and (C) unless the Borrower is not in compliance with the Amendment Period Incurrence Conditions, at the time of incurrence or as a result of the application of subclause (A) of this clause (iv), no Loans or Term Revolving Loans remain outstanding, and all Pari Passu Obligations have been repaid in full (or with respect to any issued but undrawn amount of an outstanding Letter of Credit, the amount thereof has been paid to the Revolving Administrative Agent for deposit into the Letter of Credit Collateral AccountAccount (as defined in the Existing Credit Agreement) in accordance with the terms of the Existing Credit Agreement);
(b) acquire any real property or make any other Investments of any kind (other than cash, Cash Equivalents and similar investments),, other than: (i) renovations, repositionings or improvements to ▇o▇▇▇▇ capital expenditures in respect of any Property, (ii) leasing and tenant improvement costs to be paid by the Borrower or its Subsidiaries (or its Ownership Share thereof to be paid by Unconsolidated Affiliates), (iii) maintenance capital expenditures and repairs to be paid by Borrower or its Subsidiaries (or its Ownership Share thereof to be paid by Unconsolidated Affiliates), and (ivcollectively, in an aggregate amount not to exceed $250,000,000 in any calendar year (to be automatically increased to $350,000,000 for the calendar year in which the Term Loans and all other “Obligations” under and as defined in the Term Loan Agreement are discharged and repaid in full and for each calendar year thereafter)year, (ii) if Five Star conducts an equity offering, the acquisition by the Borrower of such minimum number of additional shares of Five Star as would permit the Borrower to retain pro rata ownership of 3433.9% of Five StarStar , and (iii) acquisitions of any properties in the proximity of, and accretive to, existing real property assets of the Borrower and its Subsidiaries in an aggregate amount not to exceed $50,000,000 in any calendar year (the foregoing clauses (i) through (iviii), collectively, the “Permitted Capital Expenditures”);
(c) make any Restricted Payments, provided that (i) the Borrower may declare and make cash distributions to its shareholders in an aggregate amount not to exceed the minimum amount necessary for the Borrower to remain in compliance with Section 7.11. and to avoid the imposition of income or excise taxes imposed under Sections 857(b)(1), 857(b)(3) and 4981 of the Internal Revenue Code, (ii) the Borrower shall be permitted to make Restricted Payments of not more than $0.01 per share in cash to the holders of its capital stock following the end of each fiscal quarter of Borrower, and (iii) any Subsidiary or Unconsolidated Affiliate may make Restricted Payments to the Borrower or any Subsidiary of the Borrower (and, in the case of any Subsidiary that is not a Wholly Owned Subsidiary, to each other owner of equity interests in such Subsidiary pro rata based on such owner’s Ownership Share or as otherwise required by the terms of the organizational documents of such Subsidiary) (the foregoing clauses (i) through (iii), collectively, the “Permitted Restricted Payments”); and
(d) take any action, or refrain from taking any action, that would be prohibited during a Default or Event of Default, including, without limitation, mergers, liquidations, liens, encumbrances, releases, and certain transfers in each case which would otherwise be permitted hereunder, other than (i) the borrowing of Revolving Loans or Swingline Loans and other Indebtedness otherwise permitted under Section 9.12(a), (ii) the issuance, extension or amendment of any Letter of Credit otherwise permitted hereunder, (iii) requesting a Conversion or Continuation of LIBOR Loans in accordance with Sections 2.8 and 2.9, as applicable, (iviii) dispositions of property or other Investments, in each case, pursuant to an arm’s-length third party transactions in the ordinary course of business, and (viv) Permitted Capital Expenditures, (viv) Permitted Restricted Payments, and (viivi) the granting of any Liens on assets to the extent securing any Indebtedness permitted under Section 9.12(a).; and
(e) use the proceeds of any Loans or other Credit Event to directly or indirectly repay any Indebtedness other than (i) first, the repayment or optional redemption of the 6.75% Senior Notes, to the full extent thereof, and (ii) second, the repayment of the Term Loans and any other “Obligations” under and as defined in the Term Loan Agreement.
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Amendment Period. Notwithstanding anything to the contrary contained herein, at all times during the Amendment Period and continuing thereafter until the Post-Amendment Period Compliance Date, the Borrower shall not, and shall not permit any other Loan Party or any other Subsidiary or Unconsolidated Affiliate to do any of the following without the prior written consent of the Requisite Lenders:
(a) incur any additional unsecured Indebtedness (including, without limitation, any increase in the Commitments pursuant to Section 2.15), other than (i) borrowings of Loans in accordance with the terms hereof, (ii) pursuant to aone one or more Stimulus TransactionTransactionsTransactions, (iii) any other incurrenceissuance issuance by the Borrower or any Subsidiary or Unconsolidated Affiliate of secured orof unsecured Indebtedness, in each casenotes notes pursuant to a Qualified Notes Issuance, provided that (A) any such Indebtedness has an initial term of at least three (3) years, (B) no scheduled principal repayments or other mandatory prepayments in respect of such Indebtedness are required to be paid, nor will be paid, by the Borrower within the first three (3) years following the date of incurrence thereof (other than, in the case of Nonrecourse Indebtedness, principal repayments scheduled over a period of fifteen (15) years or more), (C) the proceeds thereof are applied in accordance with Section 2.7(b)(iii)(B), ) and (DBB) no Default or Event of Default has occurred and is continuing or would result therefrom, (E) if any such Indebtedness is secured by a mortgage, deed of trust, deed to secure debt or other similar instrument or agreement creating a Lien on Property, such Indebtedness shall be Nonrecourse Indebtedness, and (F) if any issuance of notes by the Borrower in reliance on this clause (iii) is secured by a pledge of the Borrower’s equity interests in one or more Subsidiaries of the Borrower, within 15 days of the date of issuance of such pledge, the Borrower shall deliver to the Administrative Agent a pledge agreement in form and substance satisfactory to the Administrative Agent granting as security for the Obligations an equal and ratable Lien in favor of the Administrative Agent, for the benefit of the Lenders, on all such equity interests pledged in connection with such issuance of notes, together with all other schedules, supplements, instruments, certificates, intercreditor agreements, filings, opinions or information in connection therewith as required by any such pledge agreement or as reasonably requested by the Administrative Agent, and (iv) subject to Section 7.13, the Guarantee by any Subsidiary of the Borrower of any issuance of notes by the Borrower pursuant to the foregoing clause (iii).and (iv) any other incurrence by the Borrower or any Subsidiary of unsecured Indebtedness, provided that (A) the proceeds thereof are applied in accordance with Section 2.7(b)(iii)(B), (B) no Default or Event of Default has occurred and is continuing or would result therefrom, and (C) unless the Borrower is not in compliance with the Amendment Period Incurrence Conditions, at the time of incurrence or as a result of the application of subclause (A) of this clause (iv), no Loans or Term Loans remain outstanding, and all Pari Passu Obligations have been repaid in full (or with respect to any issued but undrawn amount of an outstanding Letter of Credit, the amount thereof has been paid to the Administrative Agent for deposit into the Letter of Credit Collateral Account);
(b) acquire any real property or make any other Investments of any kind (other than cash, Cash Equivalents and similar investments),kind, other than: (i) renovations, repositionings or improvements to ▇▇▇▇▇ and capital expenditures in respect of any Property, (ii) leasing and tenant improvement costs to be paid by the Borrower or its Subsidiaries (or its Ownership Share thereof to be paid by Unconsolidated Affiliates), (iii) maintenance capital expenditures and repairs to be paid by Borrower or its Subsidiaries (or its Ownership Share thereof to be paid by Unconsolidated Affiliates), and (ivcollectivelycollectively, in an aggregate amount not to exceed $250,000,000 250,000,000400,000,000 in any calendar year (to be automatically increased to $350,000,000 for the calendar year in which the Term Loans and all other “Obligations” under and as defined in the Term Loan Agreement are discharged and repaid in full and for each calendar year thereafter), (ii) if Five Star Star, (ii) if AlerisLife conducts an equity offering, the acquisition by the Borrower of such minimum number of additional shares of Five Star StarAlerisLife as would permit the Borrower to retain pro rata ownership of 3433.933.9% of Five Star, and (AlerisLife, (iii) acquisitions of any properties in the proximity of, and accretive to, existing real property assets of the Borrower and its Subsidiaries in an aggregate amount not to exceed $50,000,000 in any calendar year year, and (iv) acquisitions of real property assets in an aggregate amount not to exceed $500,000,000 (the foregoing clauses (i) through (iviiiiiiiv), collectively, the “Permitted Capital Expenditures”);
(c) make any Restricted Payments, provided that (i) the Borrower may declare and make cash distributions to its shareholders in an aggregate amount not to exceed the minimum amount necessary for the Borrower to remain in compliance with Section 7.11. and to avoid the imposition of income or excise taxes imposed under Sections 857(b)(1), 857(b)(3) and 4981 of the Internal Revenue Code, (ii) the Borrower shall be permitted to make Restricted Payments of not more than $0.01 per share in cash to the holders of its capital stock following the end of each fiscal quarter of Borrower, and (iii) any Subsidiary or Unconsolidated Affiliate may make Restricted Payments to the Borrower or any Subsidiary of the Borrower (and, in the case of any Subsidiary that is not a Wholly Owned Subsidiary, to each other owner of equity interests in such Subsidiary pro rata based on such owner’s Ownership Share or as otherwise required by the terms of the organizational documents of such Subsidiary) (the foregoing clauses (i) through (iii), collectively, the “Permitted Restricted Payments”); and;
(d) take any action, or refrain from taking any action, that would be prohibited during a Default or Event of Default, including, without limitation, mergers, liquidations, liens, encumbrances, releases, and certain transfers in each case which would otherwise be permitted hereunder, other than (i) the borrowing of Revolving Loans or Swingline Loans and other Indebtedness otherwise permitted under Section 9.12(a), (ii) the issuance, extension or amendment of any Letter of Credit otherwise permitted hereunder, (iii) requesting a Conversion or Continuation of LIBOR Loans in accordance with Sections 2.8 and 2.9, as applicable, (iv) dispositions of property or other Investments, in each case, pursuant to an arm’s-length third party transactions in the ordinary course of business, and (v) Permitted Capital Expenditures, (vi) Permitted Restricted Payments, and (vii) the granting of any Liens on assets to the extent securing any Indebtedness permitted under Section 9.12(a).; and
(e) use the proceeds of any Loans or other Credit Event to directly or indirectly repay any Indebtedness other than (i) first, the repayment or optional redemption of the 6.75% Senior Notes, to the full extent thereof, and (ii) second, the repayment of the Term Loans and any other “Obligations” under and as defined in the Term Loan Agreement.
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