Common use of Equity Issuances Clause in Contracts

Equity Issuances. No later than five (5) Business Days following the date of receipt by the Borrower of any Net Equity Proceeds, the Borrower shall prepay the Obligations in an aggregate amount equal to 75% (the “Equity Percentage”) of such Net Equity Proceeds; provided, however, that so long as no Default or Event of Default shall have occurred and be continuing, the Borrower shall have the option upon written notice stating its intention to the Administrative Agent and each Lender (or by filing materials with the SEC stating Borrower’s intention and contemporaneously delivering such materials to the Administrative Agent and each Lender) within ten (10) Business Days of receipt of such Net Equity Proceeds, directly or through one or more Credit Party, to (A) invest or commit to invest such Net Equity Proceeds (x) in investments permitted pursuant to Section 6.7(g) or (k) within six (6) months from the date of receipt of such Net Equity Proceeds; or (y) in long term productive assets of the general type used in the business of the Credit Parties, including through Acquisitions permitted hereunder, in each case, within one (1) year of receipt of such Net Equity Proceeds or (B) to fund the Target’s activities within six (6) months from the date of receipt of such Net Equity Proceeds, provided that, in the case of investments described in clause (A)(x) above, if any amount is so committed to be reinvested but is not so reinvested within six (6) months from the date of receipt of such Net Equity Proceeds, or in the case of investments described in clause (A)(y) above, if any amount is so committed to be reinvested within such one-year period, but is not reinvested within such one-year period after the receipt of such Net Equity Proceeds or as described in clause (B), within six (6) months from the date of receipt of such Net Equity Proceeds, then, in each case, the Borrower shall use 75% of the unused portion of such Net Equity Proceeds to repay the Obligations in accordance with this Section 2.8(g) without giving further effect to such reinvestment right.

Equity Issuances. No later than five (5a) Business Days following The Company shall not (i) issue any equity or equity-related securities that are or can rank pari passu with or senior to the date Preferred Stock, in each case according to the Company’s Articles of receipt Incorporation or (ii) incur any indebtedness, including indebtedness to fund pre-development costs, except as provided in Section 4(c) below. (b) If the Other Company Parties, which for clarity in this section will not include the Company or any of its subsidiaries, shall incur any indebtedness or issue any equity securities, the proceeds of which will be utilized (i) to compete with the Xxxxx Project or (ii) to fund directly or indirectly any development by the Borrower of Xxxxx Project (“Xxxxx Proceeds”), in each case except for indebtedness permitted under Section 4(c) below or as consented to in writing by the Cartesian Investors prior to any Net Equity Proceedssuch sale or incurrence, the Borrower shall prepay the Obligations in an aggregate amount of Xxxxx Proceeds equal to 75% or greater than $150,000,000, then on or before November 25, 2019, the Cartesian Investors will have the right to put all or any portion of any series of Preferred Stock and a corresponding portion of shares of Common Stock or other shares of the Company, if any, into which such Preferred Stock have been converted by the Cartesian Investors (the “Equity PercentagePut Shares”) to the Company for repurchase by the Company (the “Put Right”), at a price equal to the greater of (i) the fair market value of such Net Equity Proceeds; providedPut Shares (as determined below) or (ii) $75,000,000 (clause (i) or (ii), howeveras applicable, the “Put Value”) with each holder of Put Shares receiving a portion of the Put Value equal to the number of Put Shares surrendered by such holder on the date of repurchase by the Company (on an as converted basis in relation to any shares of the applicable series of Preferred Stock) divided by the aggregate number of shares of Common Stock received upon conversion of the Preferred Stock and available, on an as converted basis, in respect of the Preferred Stock. The Put Right shall be exercisable by the Cartesian Investors providing written notice to the Company stating the exercise of the Put Right, and requesting payment for the Put Shares with reasonable instructions for payment, which notice may be delivered at any time subsequent to the Xxxxx Proceeds exceeding $150,000,000 but in any case must be received by the Company no later than twenty (20) Business Days prior to November 25, 2019. If the Company does not receive notice from the Cartesian Investors prior to the start of such twenty (20) Business-Day period, then the Put Right shall expire without exercise. The Company will undertake to complete the repurchase of the Put Shares as promptly as possible after receipt of notice of the exercise of the Put Right, provided that if the Company satisfies the exercise of a Put Right prior to November 25, 2019, it shall be entitled to discount the payment due under such Put Right at an annual discount rate of 5%. The fair market value of the Put Shares shall be determined as of the date immediately prior to the applicable Other Company Party taking the applicable action that triggers the Put Right and shall be determined by two third-party appraisers, each of which shall be a member of an independent, nationally recognized investment banking firm, accounting firm or consulting firm that has no conflicts with respect to such engagement as reasonably determined by the Company, the Cartesian Investors, one of which shall be selected by the Company and the other of which shall be selected by the Cartesian Investors. Each appraiser shall, within sixty (60) days of appointment, separately investigate and determine the fair market value of one share of each class of the Put Shares, and the per share price to be paid by the Company pursuant to this Section 4(b) shall be the average of the two prices determined by the appraisers. Such per share price determination for each class of Put Shares shall be deemed to be final and binding on the parties in relation to such Put Right. The Company shall bear the costs of the foregoing appraisals. (c) Notwithstanding the foregoing, the Company or any Other Company Party may incur Senior Secured Debt or Junior Subordinated Debt to (i) finance the construction costs of the Xxxxx Project so long as no Default such Senior Secured Debt or Event Junior Subordinated Debt is in the form of Default shall have occurred and be continuinga bridge loan, the Borrower shall have the construction loan, mini-perm loan, bond sale or financing or convertible loan with an option upon written notice stating its intention to the Administrative Agent and each Lender (or by filing materials with the SEC stating Borrower’s intention and contemporaneously delivering convert such materials to the Administrative Agent and each Lender) within ten (10) Business Days loan into Shares of receipt of such Net Equity Proceeds, directly or through one or more Credit Party, to (A) invest or commit to invest such Net Equity Proceeds (x) in investments permitted pursuant to Section 6.7(g) or (k) within six (6) months from the date of receipt of such Net Equity Proceeds; or (y) in long term productive assets Common Stock of the general type used in Company, (ii) refinance the business of the Credit Parties, including through Acquisitions permitted hereunder, in each case, within one (1) year of receipt of such Net Equity Proceeds or (B) to fund the Target’s activities within six (6) months from the date of receipt of such Net Equity Proceeds, provided that, in the case of investments indebtedness described in clause (A)(x) above, if any amount is so committed to be reinvested but is not so reinvested within six (6) months from the date of receipt of such Net Equity Proceeds, or in the case of investments described in clause (A)(y) above, if any amount is so committed to be reinvested within such one-year period, but is not reinvested within such one-year period after the receipt of such Net Equity Proceeds or as described in clause (Bi), within six and (6iii) months from fund the date of receipt of such Net Equity ProceedsCompany’s subsequent ongoing operations, then, in each case, the Borrower shall use 75% working capital requirements and expansion of the unused portion of such Net Equity Proceeds to repay the Obligations in accordance with this Section 2.8(g) without giving further effect to such reinvestment rightXxxxx Project.

Equity Issuances. No later than five One hundred percent (5100%) Business Days following of the date of receipt Net Cash Proceeds received by the Principal Borrower of any Net Equity Proceeds, from a Public Offering meeting the Borrower conditions in Section 2.16 shall prepay the Obligations in an aggregate amount equal to 75% be applied promptly upon (the “Equity Percentage”) of such Net Equity Proceeds; provided, however, that so long as no Default or Event of Default shall have occurred and be continuing, the Borrower shall have the option upon written notice stating its intention to the Administrative Agent and each Lender (or by filing materials with the SEC stating Borrower’s intention and contemporaneously delivering such materials to the Administrative Agent and each Lender) within ten (10) Business Days of receipt of such Net Equity Proceeds, directly or through one or more Credit Party, to (A) invest or commit to invest such Net Equity Proceeds (x) in investments permitted pursuant to Section 6.7(g) or (k) within six (6) months from the date of receipt of such Net Equity Proceeds; or (y) in long term productive assets of the general type used in the business of the Credit Parties, including through Acquisitions permitted hereunderand, in each any case, within one (1) year Business Day following) receipt thereof, to the prepayment of receipt the Outstanding Amount of the Loans and any L/C Borrowings. Prepayments made pursuant to this clause (b)(i) shall be applied first to the Outstanding Amount under the Term A Facility and then to the Revolving Credit Facility on a pro rata basis based on the Outstanding Amount with respect each such Net Equity Proceeds or (B) to fund the Target’s activities within six (6) months from Facility as of the date of receipt such prepayment; provided, however, that the Borrowers shall not be required to reduce the Outstanding Amount to an amount less than the NY Maximum Principal Amount as a result of such prepayment (provided, further, that any excess Net Equity Proceeds, provided that, in the case of investments described in clause (A)(x) above, if any amount is so committed to be reinvested but is not so reinvested within six (6) months Cash Proceeds resulting from the date application of receipt of such Net Equity Proceedsthis proviso shall, or in the case of investments described in clause (A)(y) abovefirst, if be used to Cash Collateralize any amount is so committed to be reinvested within such onethen-year period, but is not reinvested within such one-year period after the receipt of such Net Equity Proceeds or as described in clause (B), within six (6) months from the date of receipt of such Net Equity Proceeds, then, in each case, the Borrower shall use 75% of the unused portion of such Net Equity Proceeds to repay the Obligations existing L/C Borrowings in accordance with the provisions of this clause (b)(i) and second, be retained by the Borrowers as working capital. Prepayments of the Term A Facility made pursuant to this Section 2.8(g2.05(b)(i) without giving further effect shall permanently reduce availability under the Term A Facility (subject to subsequent increases in such reinvestment rightFacility pursuant to the terms of Section 2.15 hereof); provided, that any portion of the Term A Facility which is prepaid as a result of the application of this Section 2.05(b)(i) (the “Convertible Term A Prepaid Principal”) shall be converted to Revolving Credit Commitments pursuant to and in accordance with the provisions of Section 2.16. Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b)(i), first, shall be applied ratably to the outstanding L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; provided, however, that the Borrowers shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i) unless after the prepayment in full of the outstanding Revolving Credit Loans and Swing Line Loans the L/C Obligations exceed the Letter of Credit Sublimit and then, only such excess.

Equity Issuances. No later than five (5) Business Days following the date of receipt by the Borrower of any Net Equity Proceeds, the Borrower shall prepay the Obligations in an aggregate amount equal to 7550% (the “Equity Percentage”) of such Net Equity Proceeds; provided, however, that so long as no Default or Event of Default shall have occurred and be continuing, the Borrower shall have the option upon written notice stating its intention to the Administrative Agent and each Lender (or by filing materials with the SEC stating Borrower’s intention and contemporaneously delivering such materials to the Administrative Agent and each Lender) within ten (10) Business Days of receipt of such Net Equity Proceeds, directly or through one or more Credit Party, to (A) invest or commit to invest such Net Equity Proceeds (x) in investments permitted pursuant to Section 6.7(g) or (k) within six (6) months from the date of receipt of such Net Equity Proceeds; or (y) in long term productive assets of the general type used in the business of the Credit Parties, including through Acquisitions permitted hereunder, in each case, within one (1) year of receipt of such Net Equity Proceeds or (B) to fund the Target’s activities within six (6) months from the date of receipt of such Net Equity Proceeds, provided that, in the case of investments described in clause (A)(xx) above, if any amount is so committed to be reinvested but is not so reinvested within six (6) months from the date of receipt of such Net Equity Proceeds, or in the case of investments described in clause (A)(yy) above, if any amount is so committed to be reinvested within such one-year period, but is not reinvested within such one-year period after the receipt of such Net Equity Proceeds or as described in clause (B), within six (6) months from the date of receipt of such Net Equity Proceeds, then, in each case, the Borrower shall use 7550% of the unused portion of such Net Equity Proceeds to repay the Obligations in accordance with this Section 2.8(g) without giving further effect to such reinvestment right.

Equity Issuances. No later than five (5) Business Days following If, at any time, on and after the date First Amendment Date and prior to the last day of receipt by the Borrower of any Net Equity ProceedsRestriction Period, the Parent, the Borrower shall or any Subsidiary thereof receives cash proceeds from any Equity Issuances (other than, with respect to Equity Issuances, as provided in the final sentence of this clause (b)(iv)), the Borrower shall, in accordance with clause (v) below, prepay the Obligations Revolving Loans and Swingline Loans and Cash Collateralize the Letter of Credit Liabilities (without a permanent reduction in the Revolving Commitments) in an aggregate amount equal to 75% (the “Equity Percentage”) amount of such Net Equity Proceeds; providedcash proceeds, however, that so long as no Default or Event net of Default shall have occurred underwriting discounts and be continuingcommissions and other reasonable costs and expenses associated therewith (to the extent not paid to an Affiliate of the Parent, the Borrower shall have the option upon written notice stating or its intention to the Administrative Agent Subsidiaries), including reasonable legal fees and each Lender expenses, within three (or by filing materials with the SEC stating Borrower’s intention and contemporaneously delivering such materials to the Administrative Agent and each Lender) within ten (103) Business Days of the Parent’s, the Borrower’s or such Subsidiary’s receipt of such Net cash proceeds. Notwithstanding the foregoing the net proceeds of Equity Proceeds, directly Issuances shall not be required to be used to prepay such amounts if (i) the proceeds of such Equity Issuances are promptly applied to acquisitions of Unencumbered Properties (or through one the Equity Interests of a direct or more Credit Party, to (Aindirect owner of an Unencumbered Property) invest or commit to invest such Net Equity Proceeds (x) in investments as permitted pursuant to Section 6.7(g10.15(e)(iii)(C) (for the avoidance of doubt, the amount of such Equity Issuance proceeds excluded from the Equity Issuance mandatory prepayment under this clause (i) shall not exceed the lesser of (x) the amount of the Equity Issuances applied to purchase Investments permitted under Section 10.15(e)(iii)(C) and (y) the remaining amount available for Investments under Section 10.15(e)(iii)(C)) or (kii) within six (6A) months from subject to the date immediately following sentence, both at the time of receipt any Equity Issuance and after giving effect to any purchase of such Net Equity Proceeds; or (y) in long term productive assets of the general type used in the business of the Credit Parties, including through Acquisitions permitted hereunder, in each case, within one (1) year of receipt of such Net Equity Proceeds or (B) to fund the Target’s activities within six (6) months from the date of receipt of such Net Equity Proceeds, provided that, in the case of investments described in clause (A)(x) above, if any amount is so committed to be reinvested but is not so reinvested within six (6) months from the date of receipt of such Net Equity Proceeds, or in the case of investments described in clause (A)(y) above, if any amount is so committed to be reinvested within such one-year period, but is not reinvested within such one-year period after the receipt of such Net Equity Proceeds or Properties as described in clause (B) below, Availability is equal to or greater than $225,000,000 and (B) the proceeds of Equity Issuances are either (1) retained as unrestricted cash on the balance sheet of the Borrower, (2) applied to the purchase of one or more Unencumbered Properties or (3) applied to the purchase of one or more other Properties; provided that, with respect to this clause (3), within six (6x) months from any debt incurred or assumed in connection with the date of receipt purchase of such Net Properties is Nonrecourse Indebtedness and (y) the aggregate amount of net proceeds from all Equity Proceeds, then, in each case, the Borrower shall use 75% of the unused portion of such Net Equity Proceeds to repay the Obligations Issuances applied in accordance with this clause (3) shall not exceed $100,000,000 (subject to compliance with Section 2.8(g10.15(e)(iv)) without (clauses (1) – (3) of this clause (ii)(B) are collectively referred to as the “Equity Payment Exclusions”). Notwithstanding clause (ii)(A) above, if Availability at the time of any Equity Issuance is less than $225,000,000 or would be less than $225,000,000 after giving further effect to any purchase of Properties as described in clause (ii)(B) above, if the Borrower repays Revolving Loans and/or Swingline Loans with the proceeds of such reinvestment rightEquity Issuance and, so long as after giving effect to any such repayment and any purchase of Properties as described in clause (ii)(B) above Availability is equal to or greater than $225,000,000, any remaining proceeds of such Equity Issuance may be applied in accordance with the Equity Payment Exclusions.

Equity Issuances. No later than five Prior to the Forbearance Period Termination Date, Borrower shall have successfully completed one or more issuances of common and/or preferred stock or rights to purchase common and/or preferred stock on terms and conditions satisfactory to the Administrative Agent (5) Business Days following together with the date of receipt by the Borrower of any Net Equity ProceedsInterim Issuance, the “Equity Issuances”) pursuant to which Borrower shall prepay the Obligations have received total gross proceeds of at least $150,000,000, which result in an aggregate amount equal to 75% Borrower’s receipt of Net Proceeds of at least $140,000,000 (the “Equity PercentageIssuance Net Proceeds”), in consideration of such issuances, and such Equity Issuance Net Proceeds shall have been applied as follows: (a) if the Forbearance Period Termination Date has not been automatically extended or has been automatically extended to April 30, 2009 pursuant to clause (b)(i) of such the definition of “Forbearance Period Termination Date”, then (i) the first $100,000,000 of Equity Issuance Net Proceeds to payment of the Obligations, (ii) the next $40,000,000 of Equity Proceeds; provided, however, that so long as no Default or Event of Default shall have occurred and Issuance Net Proceeds to be continuing, retained by the Borrower shall have as working capital, and (iii) all remaining Equity Issuance Net Proceeds to payment of the option upon written notice stating its intention Obligations then outstanding, (b) if the Forbearance Period Termination Date has been extended to May 15, 2009 pursuant to clause (b)(ii) of the Administrative Agent and each Lender definition of “Forbearance Period Termination Date”, then (or by filing materials i) fifty (50%) percent of the Equity Issuance Net Proceeds of the Interim Issuance to payment of the Obligations with a corresponding automatic reduction in the SEC stating Borrower’s intention and contemporaneously delivering such materials to Borrowing Base (but not below the Administrative Agent and each Lender) within ten (10) Business Days of receipt of such Net Equity Proceeds, directly or through one or more Credit Party, to (A) invest or commit to invest such Net Equity Proceeds (xthen existing Conforming Borrowing Base) in investments permitted pursuant to accordance with Section 6.7(g2.6(c) or (k) within six (6) months from the date of receipt of such Net Equity Proceeds; or (y) in long term productive assets of the general type used in the business of the Credit PartiesAgreement, including through Acquisitions permitted hereunder(ii) fifty (50%) percent of the Equity Issuance Net Proceeds of the Interim Issuance to the Borrower to be retained as working capital up to a maximum of $40,000,000 of the Equity Issuance Net Proceeds, and (iii) all remaining Equity Issuance Net Proceeds to payment of the Obligations then outstanding, and (c) if the Forbearance Period Termination Date has been extended to June 15, 2009 pursuant to the last sentence in each casethe definition of “Forbearance Period Termination Date”, within one then all Equity Issuance Net Proceeds received after the Signing Date with respect to Equity Issuances other than the Interim Issuance shall be applied (1i) year first to the payment of receipt of the Obligations until such Equity Issuance Net Proceeds together with the Equity Issuance Net Proceeds or (B) to fund the Target’s activities within six (6) months received by Borrower from the date of receipt of such Net Equity ProceedsInterim Issuance and applied to reduce the Obligations total $100,000,000, provided that(ii) second, in the case of investments described in clause (A)(x) above, if any amount is so committed to be reinvested but is not so reinvested within six (6) months retained by the Borrower as working capital, until such Equity Issuance Net Proceeds together with the Equity Issuance Net Proceeds received by Borrower from the date of receipt of such Interim Issuance and not applied to reduce the Obligations total $40,000,000, and (iii) all remaining Equity Issuance Net Equity Proceeds, or in the case of investments described in clause (A)(y) above, if any amount is so committed Proceeds to be reinvested within such one-year period, but is not reinvested within such one-year period after the receipt of such Net Equity Proceeds or as described in clause (B), within six (6) months from the date of receipt of such Net Equity Proceeds, then, in each case, the Borrower shall use 75% payment of the unused portion of such Net Equity Proceeds to repay the Obligations in accordance with this Section 2.8(g) without giving further effect to such reinvestment rightthen outstanding.

Equity Issuances. No later than five (5a) Business Days following From and after the date Closing, so long as TPG Persons Beneficially Own, in the aggregate, at least 25% of receipt by the Borrower Original Number of any Net Equity ProceedsCombined Shares, the Borrower Company and each of its Subsidiaries shall prepay not, without the Obligations prior written approval of the Investor, issue or sell any Equity Interests of the Company or any Subsidiary or any Derivative Securities in an a transaction or series of related transactions (such transaction or series of related transactions, a "10% Transaction") as a direct or indirect result of which any Person (other than any institutionally managed, public held mutual fund registered with the Commission) or Group would have, or have the right to acquire, Beneficial Ownership of Equity Interests representing 10% or more of the aggregate amount equal to 75% (Voting Power of the “Equity Percentage”) then-outstanding Voting Securities of the Company or any such Net Equity ProceedsSubsidiary; provided, however, that so long as no Default or Event the Company may issue its Equity Interests in a 10% Transaction without any such approval if (i) the consideration to be received by the Company in such transaction is solely in the form of Default shall have occurred cash, (ii) the transaction is completed pursuant to a Purchase Agreement, and be continuing, (iii) the Borrower shall have the option upon written notice stating its intention to the Administrative Agent and each Lender (or by filing materials Company has complied with the SEC stating Borrower’s intention procedures set forth in Section 7.11(b) hereof with respect to such transaction; and contemporaneously delivering such materials to provided further, that, notwithstanding the Administrative Agent and each Lender) within ten (10) Business Days of receipt of such Net Equity Proceeds, directly or through one or more Credit Party, to (A) invest or commit to invest such Net Equity Proceeds (x) in investments foregoing any transaction expressly permitted pursuant to Section 6.7(g6.02 hereof shall not constitute a 10% Transaction. (i) Prior to any offer or sale by the Company of any of its Equity Interests (k) within six (6) months from the date of receipt of such Net Equity Proceeds; or (y"Covered Securities") in long term productive assets a 10% Transaction, the Company shall give written notice (a "Proposed Sale Notice") to the Investor of the general type used in Company's desire to sell the business Covered Securities, which notice shall identify (A) the number of the Credit PartiesCovered Securities, including through Acquisitions permitted hereunder, in each case, within one (1) year of receipt of such Net Equity Proceeds or (B) the terms of the Covered Securities and (C) any other material terms and conditions of the proposed offer or sale (other than a proposed sale price). The date on which such Proposed Sale Notice is given is referred to fund herein as the Target’s activities within six "Notice Date." On and prior to the Solicitation Date with respect to any Covered Securities, and following the Solicitation Date if the Company shall have delivered an Acceptance Notice with respect to such Covered Securities, the Company shall not, shall not permit any of its Subsidiaries or Affiliates to, and shall not authorize or permit any of its or their Representatives to, directly or indirectly, solicit or encourage the submission of any proposal from any Person (6) months from other than the date of receipt Investor and its Affiliates), participate in any discussion or negotiations with any Person (other than the Investor and its Affiliates), or authorize, engage in or enter any agreement or understanding with any Person (other than the Investor and its Affiliates), with respect to the issuance or sale of such Net Equity ProceedsCovered Securities. (ii) The Investor shall have forty days following the Notice Date (the "Response Period") to notify the Company in writing (such notification, provided thatan "Offer to Purchase") of its offer, or an offer by any of its Affiliates, to purchase in cash all (but not less than all) of the Covered Securities referred to in the relevant Proposed Sale Notice. During the Response Period, if requested by the Investor or any of its Affiliates, the Company shall negotiate in good faith with the Investor or such Affiliate with respect to the terms of a proposed purchase of Covered Securities by the Investor or such Affiliate. Any Offer to Purchase shall set forth a proposed cash purchase price for such Covered Securities (the "Investor Price") and the proposed closing date for the purchase and may include other material terms and conditions of the proposed purchase. The Investor shall not be obligated to deliver an Offer to Purchase, and if an Offer to Purchase is not given prior to the end of the Response Period, the Investor shall be deemed to have declined to purchase such Covered Securities. (iii) The Company shall have ten days following the delivery of an Offer to Purchase to accept the offer made by the Investor or its Affiliates to purchase all (but not less than all) of the Covered Securities on the terms and subject to the conditions set forth in the Offer to Purchase by giving the Investor written notice to that effect (an "Acceptance Notice"). If, in accordance with the case terms of investments described the preceding sentence, the Company accepts the offer made by the Investor or its Affiliates to purchase such Covered Securities on the terms and subject to the conditions set forth in clause the Offer to Purchase, the closing for such transaction shall take place at a time and place reasonably acceptable to the Investor and the Company. If the Company does not give an Acceptance Notice in accordance with the terms of the first sentence of this paragraph, the Company shall be deemed to have rejected the offer set forth in the relevant Offer to Purchase. (A)(xiv) aboveIf the Company has complied with the foregoing provisions of this Section 7.11(b) and shall not have given an Acceptance Notice with respect to any Covered Securities following the Solicitation Date with respect to such Covered Securities, the Company may enter into a Purchase Agreement with any other Person with respect to all (but not less than all) of such Covered Securities within 40 days following such Solicitation Date (or within 60 days following such Solicitation Date, if any amount such Purchase Agreement constitutes a customary underwriting agreement (an "Underwriting Agreement") that contemplates a bona fide offering of the Covered Securities to the public that is so committed registered under the Securities Act) and sell all (but not less than all) of the Covered Securities pursuant to be reinvested but such Purchase Agreement within 70 days following such Solicitation Date (or within 100 days following such Solicitation Date if such sale is not so reinvested within six made pursuant to an Underwriting Agreement and constitutes a bona fide offering of the Covered Securities to the public that is registered under the Securities Act); provided that (6i) months from the date of receipt of purchase price for such Net Equity Proceeds, or Covered Securities in the case of investments described in clause (A)(y) above, if any amount such sale is so committed to be reinvested within such one-year period, but is not reinvested within such one-year period after the receipt of such Net Equity Proceeds or as described in clause (B), within six (6) months from the date of receipt of such Net Equity Proceeds, then, in each case, the Borrower shall use 75at least 105% of the unused portion related Investor Price, if any, and (ii) the terms and conditions of such Net Equity Proceeds sale are otherwise not materially worse for the Company than those set forth in the related Offer to repay Purchase. If the Obligations in accordance Company has not executed a Purchase Agreement with respect to such Covered Securities within 40 days or 60 days, as the case may be, following the relevant Solicitation Date, or has not completed a sale of all of such Covered Securities within 70 days or 100 days, as the case may be, following the relevant Solicitation Date, the Company shall no longer be permitted to sell such Covered Securities without again fully complying with all the provisions of this Section 2.8(g) without giving further 7.11, and all the restrictions contained in this Section 7.11 shall again be in effect with respect to such reinvestment rightCovered Securities.

Equity Issuances. No later than five If on any date (5an "Equity Receipt Date") Business Days following on or after the date of receipt by the Borrower of Closing Date Vencor receives any Net Cash Proceeds from any Equity ProceedsIssuance, Vencor shall promptly provide notice thereof to the Administrative Agent, which notice shall specify the amount of the Net Cash Proceeds received with respect thereto, the Borrower shall prepay the Obligations in an aggregate amount equal to 75% (the “Equity Percentage”) of such Net Cash Proceeds (the "Designated Equity Proceeds") and the date on which such Designated Equity Proceeds were received. Such Designated Equity Proceeds shall be applied as follows: (i) Vencor may during the six-month period following any Equity Receipt Date deliver to the Administrative Agent one or more definitive executed agreements for an Acquisition by Vencor or any of its Subsidiaries of one or more Healthcare Facilities, together in each instance with a certificate describing in reasonable detail the purchase price of such Acquisition (a "Proposed Purchase Price") and identifying the related pool of Designated Equity Proceeds proposed to be used to fund such Proposed Purchase Price. (ii) Within three Business Days after the end of such six-month period, an amount equal to the lesser of (A) 66 2/3% of the original amount of such Designated Equity Proceeds and (B) the original amount of such Designated Equity Proceeds less the aggregate Proposed Purchase Prices certified with respect thereto pursuant to clause (i), shall be transferred from Vencor to the Borrower as an equity contribution. Concurrently with such transfer but subject to subsection (d) below, the Commitments shall automatically be permanently reduced (but not to below $75,000,000) in an amount equal to the amount so transferred and a portion of such amount shall be applied to prepay Loans and Swingline Loans to the extent the outstanding principal amount of the Loans and Swingline Loans exceeds the Commitments as so reduced. Notwithstanding the foregoing, the amount by which the Commitments are to be reduced shall be reduced by any amount of such Designated Equity Proceeds that have been or concurrently are being used to repay principal of the PIP Claim and any interest accrued with respect thereto through the date of repayment. If the aggregate Commitments have previously been or concurrently are being permanently reduced to $75,000,000: (1) the Borrower may, if it so elects, make a further permanent reduction in the Commitments in an amount up to the amount transferred to the Borrower and not applied as provided in the foregoing provisions of this clause (b) and a portion of such amount transferred shall be applied to prepay Loans and Swingline Loans to the extent the outstanding principal amount of the Loans and Swingline Loans exceeds the Commitments as so reduced; provided, however, that so long as no Default or and (2) unless an Event of Default of the type described in Section 8.01(a) shall have occurred and be continuingcontinuing or a Payment Blockage Period shall then be in effect, any amount transferred to the Borrower not applied as provided in the foregoing provisions of this clause (b), shall be applied to prepay loans under the Senior Secured Credit Agreement until they have been paid in full. (iii) No later than the option upon written notice stating its intention first anniversary of such Equity Receipt Date Vencor shall deliver a certificate to the Administrative Agent specifying the actual amounts paid during such one-year period as the purchase price of any such Acquisition certified with respect thereto pursuant to clause (i) (an "Actual Purchase Price"), and each Lender within three Business Days thereafter an amount equal to (A) 66 2/3% of the original amount of such Designated Equity Proceeds less (B) the aggregate Actual Purchase Prices, shall be transferred from Vencor to the Borrower as an equity contribution. Concurrently with such transfer but subject to subsection (d) below, the Commitments shall automatically be permanently reduced (but not to below $75,000,000) in an amount equal to the amount so transferred and a portion of such amount shall be applied to prepay Loans and Swingline Loans to the extent the outstanding principal amount of the Loans and Swingline Loans exceeds the Commitments as so reduced. Notwithstanding the foregoing, the amount by which the Commitments are to be reduced shall be reduced by, without double counting, any amount of such Designated Equity Proceeds that have been (x) or by filing materials concurrently are being used to repay principal of the PIP Claim and any interest accrued with respect thereto through the SEC stating Borrower’s intention date of repayment or (y) used to prepay loans under the Senior Secured Credit Agreement (which prepayment may be made only if the Commitments have previously been permanently reduced to no more than $75,000,000). If the aggregate Commitments have previously been or concurrently are being permanently reduced to $75,000,000: (1) the Borrower may, if it so elects, make a further permanent reduction in the Commitments in an amount up to the amount transferred to the Borrower and contemporaneously delivering not applied as provided in the foregoing provisions of this clause (b) and a portion of such materials amount transferred shall be applied to prepay Loans and Swingline Loans to the extent the outstanding principal amount of the Loans and Swingline Loans exceeds the Commitments as so reduced; and (2) unless an Event of Default of the type described in Section 8.01(a) shall have occurred and be continuing or a Payment Blockage Period shall then be in effect, any amount transferred to the Borrower not applied as provided in the foregoing provisions of this clause (b), shall be applied to prepay loans under the Senior Secured Credit Agreement until they have been paid in full. (iv) In addition, Vencor may during the one-year period following such Equity Receipt Date deliver to the Administrative Agent and each Lender) within ten (10) Business Days of receipt of such Net Equity Proceeds, directly or through one or more Credit Partydefinitive executed agreements, in addition to any agreements delivered pursuant to clause (A) invest i), for an Acquisition by Vencor or commit to invest such Net any of its Subsidiaries of one or more Healthcare Facilities, together in each instance with a certificate describing in reasonable detail the Proposed Purchase Price and identifying the related pool of Designated Equity Proceeds (x) in investments permitted pursuant proposed to Section 6.7(g) or (k) within six (6) months from the date of receipt of such Net Equity Proceeds; or (y) in long term productive assets of the general type be used in the business of the Credit Parties, including through Acquisitions permitted hereunder, in each case, within one (1) year of receipt of such Net Equity Proceeds or (B) to fund such Proposed Purchase Price. (v) Within three Business Days after the Target’s activities within six (6) months from the date end of receipt of such Net Equity Proceeds, provided that, in the case of investments described in clause (A)(x) above, if any amount is so committed to be reinvested but is not so reinvested within six (6) months from the date of receipt of such Net Equity Proceeds, or in the case of investments described in clause (A)(y) above, if any amount is so committed to be reinvested within such one-year period, but is not reinvested within such one-year period after an amount equal to (A) the receipt original amount of such Net Designated Equity Proceeds or as described in less (B) the sum of (1) the aggregate Proposed Purchase Prices certified with respect thereto pursuant to clause (Bi) (to the extent the Actual Purchase Price has not been determined with respect thereto) or clause (iv) and (2) the aggregate related Actual Purchase Prices determined pursuant to clause (iii), within six shall be transferred from Vencor to the Borrower as an equity contribution. Concurrently with such transfer but subject to subsection (6d) months from below, the Commitments shall automatically be permanently reduced (but not to below $75,000,000) in an amount equal to the amount so transferred and a portion of such amount shall be applied to prepay Loans and Swingline Loans to the extent the outstanding principal amount of the Loans and Swingline Loans exceeds the Commitments as so reduced. Notwithstanding the foregoing, the amount by which the Commitments are to be reduced shall be reduced by, without double counting, any amount of such Designated Equity Proceeds that have been (x) or concurrently are being used to repay principal of the PIP Claim and any interest accrued with respect thereto through the date of receipt of such Net Equity Proceeds, then, in each case, repayment or (y) used to prepay loans under the Borrower shall use 75% of Senior Secured Credit Agreement (which prepayment may be made only if the unused portion of such Net Equity Proceeds Commitments have previously been permanently reduced to repay no more than $75,000,000). If the Obligations in accordance with this Section 2.8(g) without giving further effect aggregate Commitments have previously been or concurrently are being permanently reduced to such reinvestment right.$75,000,000:

Equity Issuances. No later Upon the sale or issuance by the Borrower or any of its Subsidiaries of any of its Equity Interests (other than and any sales or issuances of Equity Interests to another Loan Party), the Borrower shall prepay an aggregate principal amount of the Loans equal to 50% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by the Borrower or such Subsidiary (such prepayments to be applied as set forth in clause (vii) below); provided that, with respect to any Net Cash Proceeds realized from an issuance of Equity Interests as described in this Section 2.05(b)(iv), at the election of the Borrower, the Borrower may prepay Indebtedness outstanding under the Subordinated Notes so long as (A) the Borrower shall have notified the Administrative Agent on or prior to the date of such issuance of its intent to prepay such Indebtedness, (B) the Borrower is in compliance (calculated on a pro forma basis after giving effect to such prepayment) with the financial covenants set forth in Section 7.11 (as certified by the Borrower in writing to the Administrative Agent), (C) within five (5) Business Days following after the receipt of such Net Cash Proceeds, such prepayment shall have been made to the Subordinated Noteholders (as certified by the Borrower in writing to the Administrative Agent) and (D) no Default shall have occurred and be continuing as of the date of receipt by the Borrower of any Net Equity Proceeds, the Borrower shall prepay the Obligations in an aggregate amount equal to 75% (the “Equity Percentage”) of such Net Equity Proceeds; provided, however, prepayment or would result therefrom and provided further that so long as no Default or Event of Default shall have has occurred and be is continuing, the Borrower no prepayment shall have the option upon written notice stating its intention to the Administrative Agent and each Lender (or by filing materials with the SEC stating Borrower’s intention and contemporaneously delivering such materials to the Administrative Agent and each Lender) within ten (10) Business Days of receipt of such Net Equity Proceeds, directly or through one or more Credit Party, to (A) invest or commit to invest such Net Equity Proceeds (x) in investments permitted pursuant to Section 6.7(g) or (k) within six (6) months be required from the date Net Cash Proceeds of receipt any sale or issuance of such Net Equity Proceeds; or (y) in long term productive assets Interests the proceeds of the general type which are used in the business of the Credit Parties, including through Acquisitions permitted hereunder, in each case, within one (1) year of receipt of such Net Equity Proceeds or (B) to fund the Target’s activities within six (6) months from the date of receipt of such Net Equity Proceeds, provided that, in the case of investments described in clause (A)(x) above, if any amount is so committed to be reinvested but is not so reinvested within six (6) months from the date of receipt of such Net Equity Proceeds, or in the case of investments described in clause (A)(y) above, if any amount is so committed to be reinvested within such one-year period, but is not reinvested within such one-year period after the receipt of such Net Equity Proceeds or as described in clause (B), within six (6) months from the date of receipt of such Net Equity Proceeds, then, in each case, the Borrower shall use 75% of the unused portion of such Net Equity Proceeds to repay the Obligations in accordance with this Section 2.8(g) without giving further effect to such reinvestment right.finance a Permitted Acquisition. CHL:45705.8

Equity Issuances. No later than five (5) Business Days following If, at any time, on and after the date First Amendment Date and prior to the last day of receipt by the Borrower of any Net Equity ProceedsRestriction Period, the Parent, the Borrower shall or any Subsidiary thereof receives cash proceeds from any Equity Issuances (other than, with respect to Equity Issuances, as provided in the final sentence of this clause (b)(iiiiv)), the Borrower shall, in accordance with clause (ivv) below, prepay the Obligations Term Loans, prepay the Revolving Loans and Swingline Loans and Cash Collateralize the Letter of Credit Liabilities (without a permanent reduction in the Revolving Commitments) and prepay the Existing Term Loan (to an amount not less than the Existing Term Loan Floor) in an aggregate amount equal to 75% (the “Equity Percentage”) amount of such Net Equity Proceeds; providedcash proceeds, however, that so long as no Default or Event net of Default shall have occurred underwriting discounts and be continuingcommissions and other reasonable costs and expenses associated therewith (to the extent not paid to an Affiliate of the Parent, the Borrower shall have the option upon written notice stating or its intention to the Administrative Agent Subsidiaries), including reasonable legal fees and each Lender expenses, within three (or by filing materials with the SEC stating Borrower’s intention and contemporaneously delivering such materials to the Administrative Agent and each Lender) within ten (103) Business Days of the Parent’s, the Borrower’s or such Subsidiary’s receipt of such Net cash proceeds. Notwithstanding the foregoing, (A)(I) if the net proceeds of Equity Proceeds, directly or through one or more Credit Party, Issuances shall not be required to be used to prepay such amounts if (A) invest or commit subject to invest such Net the immediately following sentence, both at the time of any Equity Proceeds (x) in investments permitted pursuant Issuance and after giving effect to Section 6.7(g) or (k) within six (6) months from the date theany purchase of receipt of such Net Equity Proceeds; or (y) in long term productive assets of the general type used in the business of the Credit Parties, including through Acquisitions permitted hereunder, in each case, within one (1) year of receipt of such Net Equity Proceeds or (B) to fund the Target’s activities within six (6) months from the date of receipt of such Net Equity Proceeds, provided that, in the case of investments Unencumbered Properties as described in clause (A)(xIIB) below, Availability is equal to or greater than $300,000,000225,000,000 and (IIB) the proceeds of Equity Issuances are either (1) retained as unrestricted cash on the balance sheet of the Borrower or, (2) applied within 30 days (or such longer period as agreed to by the Administrative Agent) of the receipt thereof to the purchase of one or more Unencumbered Properties or (B)(I) if both3) applied to the purchase of one or more other Properties; provided that, with respect to this clause (3), (x) any debt incurred or assumed in connection with the purchase of such Properties is Nonrecourse Indebtedness and (y) the aggregate amount of net proceeds from all Equity Issuances applied in accordance with this clause (3) shall not exceed $100,000,000 (subject to compliance with Section 10.15(e)(iv)) (clauses (1) – (3) are collectively referred to as the “Equity Payment Exclusions”). Notwithstanding clause (A) above, if Availability at the time of any amount is so committed Equity Issuance andis less than $225,000,000 or would be less than $225,000,000 after giving effect to be reinvested but is not so reinvested within six (6) months from the date theany purchase of receipt of such Net Equity Proceeds, or in the case of investments Properties as described in clause (A)(yII) below, Availability equals $400,000,000, (II) the proceeds of Equity Issuances are applied within 30 days (or such longer period as agreed to by the Administrative Agent) of the receipt thereof to the purchase of one or more Properties and (III) the aggregate amount of net proceeds from an Equity Issuance applied in accordance with clause (B)(II) do not exceed an amount equal to $300,000,000 minus the principal amount of Permitted Assumed Debt, the net proceeds of such Equity Issuances so applied in accordance with clause (A) and (B) above shall not be required to be used to prepay Indebtedness as otherwise required by this clause (b)(iii).B) above, if any amount is so committed to be reinvested within such one-year period, but is not reinvested within such one-year period after the receipt Borrower repays Revolving Loans and/or Swingline Loans with the proceeds of such Net Equity Proceeds or Issuance and, so long as after giving effect to any such repayment and any purchase of Properties as described in clause (B)) above Availability is equal to or greater than $225,000,000, within six (6) months from the date of receipt any remaining proceeds of such Net Equity Proceeds, then, in each case, the Borrower shall use 75% of the unused portion of such Net Equity Proceeds to repay the Obligations Issuance may be applied in accordance with this Section 2.8(g) without giving further effect to such reinvestment rightthe Equity Payment Exclusions.

Equity Issuances. No later than five Except as provided below, in the event that the Company proposes to issue Units, or rights, options or warrants exercisable to purchase Units, or securities convertible into Units (5) Business Days following the date of receipt by the Borrower of any Net collectively “Equity ProceedsSecurities”), the Borrower following provisions shall prepay apply: (a) Each time the Obligations in an aggregate amount equal Company proposes to 75% (the “issue any Equity Percentage”) of such Net Equity Proceeds; provided, however, that so long as no Default or Event of Default shall have occurred and be continuingSecurities, the Borrower Company shall have the option upon written deliver a notice to each Member stating its intention to issue the Administrative Agent Equity Securities and each Lender (or by filing materials with the SEC stating Borrower’s intention price and contemporaneously delivering such materials terms upon which it proposes to issue the Administrative Agent and each Lender) within ten (10) Business Days of receipt of such Net Equity Proceeds, directly or through one or more Credit Party, to (A) invest or commit to invest such Net Equity Proceeds (x) in investments permitted pursuant to Section 6.7(g) or (k) within six (6) months from the date of receipt of such Net Equity Proceeds; or (y) in long term productive assets of the general type used in the business of the Credit Parties, including through Acquisitions permitted hereunder, in each case, within one (1) year of receipt of such Net Equity Proceeds or (B) to fund the Target’s activities within six (6) months from the date of receipt of such Net Equity Proceeds, provided that, in the case of investments described in clause (A)(x) above, if any amount is so committed to be reinvested but is not so reinvested within six (6) months from the date of receipt of such Net Equity Proceeds, or in the case of investments described in clause (A)(y) above, if any amount is so committed to be reinvested within such one-year period, but is not reinvested within such one-year period Securities. Within 10 days after the receipt of such Net notice, each Member may elect to purchase, on the same terms and conditions as set forth in the notice, up to that portion of the Equity Proceeds or Securities to be issued as described in clause (B), within six (6) months from is equal to the proportion that the number of Units issued and outstanding and held by the Member on the date of receipt such notice bears to the total number of such Net Units of the Company then issued and outstanding. (b) If a Member elects to purchase his or its portion of the Equity ProceedsSecurities, then, he or it shall be required to do so within the later of the date set forth in each casethe Company notice or 10 days after the Member has elected to purchase Equity Securities. If a Member fails to elect to purchase his or its portion of the Equity Securities within the 10 day period, the Borrower shall use 75% Company may proceed to offer the Equity Securities to any third party on terms no more favorable than as set forth in the notice. If the Company fails to complete the sale of Equity Securities on such basis within 120 days of the unused portion date of such Net its original notice, the right provided hereunder to the Members shall be deemed to be revived; and the Equity Proceeds Securities shall not be offered unless first reoffered to repay the Obligations Members in accordance with this Section 2.8(gprovision. (c) If the proposed sale of Equity Securities is to be made at a price of less than the Floor Price, DGC&F may elect not to purchase its portion of the Equity Securities and to receive from the Company additional Units, without the payment of additional consideration therefor, such that its ownership of Units is increased by multiplying the existing number of Units owned by DGC&F by the following fraction: OBF  (AC / FP) where: OPF= the number of Units outstanding on a fully diluted basis after giving further pro forma effect to the proposed issuance of Units OBF= the number of Units outstanding on a fully diluted basis before the proposed issuance of Units AC= the aggregate dollar consideration to be paid to the Company in connection with the proposed issuance of Units FP= the Floor Price then in effect. The “Floor Price” is currently $5.01 per Unit (computed by dividing DGC&F’s Capital Contribution of $100,000 by the 19,950 Units received by it in consideration therefor). Upon any issuance of additional Units to DGC&F in connection with this subsection, the Floor Price will be recomputed after giving effect to such reinvestment rightissuance. (d) The rights set forth in this Section 3.05 shall not be applicable to (i) the offer and sale of Units to be issued in connection with a bona fide underwritten public offering, (ii) the issuance of Units in connection with a split or combination,