Cure Rights In the event any monetary default beyond applicable notice and grace periods or non-monetary default beyond applicable notice and grace periods shall exist with respect to the Mortgage Loan, then, upon notice from the Lead Securitization Note Holder (or the Servicer on its behalf) (a “Cure Option Notice”) of the occurrence of such default beyond applicable notice and grace periods (which notice the Lead Securitization Note Holder (or the Servicer on its behalf) shall promptly give to the Note B Holder upon receipt of knowledge thereof), each Note B Holder shall have the right, exercisable by each Note B Holder giving written notice of its intent to cure a default within five (5) Business Days after receipt of the Cure Option Notice, to cure such default (and if each of the Note B-1 Holder, the Note B-2 Holder, the Note B-3 Holder or the Note B-4 Holder, or any combination thereof, provide such notice, then such Note B Holders collectively, on a pro rata basis shall have the right to cure such default); provided, in the event a Note B Holder has elected to cure any default, the default must be cured by such Note B Holder within, in the case of a monetary default, ten (10) Business Days after receipt of such Cure Option Notice and, in the case of a non-monetary default, thirty (30) days after receipt of such Cure Option Notice. If a Note B Holder is attempting to cure a non-monetary default, the foregoing cure period of thirty (30) days may be extended for an additional sixty (60) days (for a total of up to ninety (90) days), but only for so long as (i) such Note B Holder is diligently and expeditiously proceeding to cure such non-monetary default, (ii) such Note B Holder makes all Cure Payments that it is permitted to make in accordance with this Section, (iii) such non-monetary default is not the result of a bankruptcy of the Borrower or other insolvency related event, and no bankruptcy commences or other insolvency related event occurs during the period that such Note B Holder is otherwise permitted to cure a non-monetary default in accordance with this Section and (iv) there is no material adverse effect on the Borrower, the Property or the value of the Mortgage Loan as a result of such non-monetary default or the attempted cure thereof. If a Note B Holder elects to cure a default that can be cured by the payment of money (each such payment, a “Cure Payment”), such Note B Holder shall make such Cure Payment as directed by the Lead Securitization Note Holder (or the Servicer on its behalf) and each such Cure Payment shall include all costs, expenses, losses, liabilities, obligations, damages, penalties, and disbursements imposed on, incurred by or asserted against each Note A Holder (including, without limitation, all unreimbursed Advances (without regard to whether such Advance would be a “nonrecoverable advance”) and any interest charged thereon at the Advance Rate, and any unpaid Special Servicing Fees with respect to the Mortgage Loan, but excluding any default interest and Penalty Charges) related to the default and incurred during the period of time from the expiration of the grace period for such default under the Mortgage Loan until such Cure Payment is made or such other cure is otherwise effected. The right of a Note B Holder to reimbursement of any Cure Payment shall be as set forth in Section 5 and Section 6, as applicable. So long as a default exists that is being cured by a Note B Holder pursuant to this Section 11(b) and the cure period has not expired and such Note B Holder is permitted to cure under the terms of this Section 11(b), the Lead Securitization Note Holder (or the Servicer on its behalf) and the Trustee shall not treat such default as a default or a Triggering Event of Default (i) for purposes of Section 5 or Section 6; (ii) for purposes of accelerating the Mortgage Loan, modifying, amending or waiving any
Cure Right In the event that Holdings fails to comply with the requirements of the financial covenant set forth in Section 7.03(a) or 7.03(b), during the period from the date that is 60 days prior to and until the expiration of the 10th Business Days after the date on which financial statements are required to be delivered with respect to the applicable fiscal quarter hereunder, Holdings shall have the right to (a) issue Permitted Cure Equity for cash or otherwise receive cash contributions to the capital of Holdings or (b) incur Additional Second Lien Indebtedness, and to have all of such cash contributions and Additional Second Lien Indebtedness deemed, for purposes of said Sections, to be both Revenue and EBITDA for such fiscal quarter (and for the avoidance of doubt, only for such fiscal quarter), including for purposes of calculating compliance with such Sections as of the last day of any subsequent fiscal quarter (the “Cure Right”); provided that (i) such proceeds are actually received by Holdings during the period from the date that is 60 days prior to and until the expiration of the 10th Business Days after the date on which financial statements are required to be delivered with respect to such fiscal quarter hereunder, (ii) the Cure Right shall not be exercised more than five (5) times during the term of the Loans, (iii) the Cure Right shall not be exercised in consecutive fiscal quarters, (iv) such proceeds shall be applied to prepay the Loans in accordance with Section 2.06(c)(v) and (v) each such Permitted Cure Equity or Additional Second Lien Indebtedness shall be designated at the time of issuance or incurrence for application under the “Cure Right” pursuant to this Section 9.02. If, after giving effect to the treatment of such cash contributions or Additional Second Lien Indebtedness as Revenue and EBITDA, Holdings is in compliance with the financial covenant set forth in Sections 7.03(a) and 7.03(b), Holdings shall be deemed to have satisfied the requirements of each such Section as of the relevant date of determination with the same effect as though there had been no failure to comply on such date, and the applicable breach or default of such Section 7.03(a) and/or Section 7.03(b) that had occurred shall be deemed cured for purposes of this Agreement. The parties hereby acknowledge that this Section may not be relied on for purposes of calculating any financial ratios other than as applicable to Sections 7.03(a) and 7.03(b).
Future Rights For so long as any of the Secured Obligations shall remain outstanding, or, if earlier, until Lender shall have released or terminated, in whole but not in part, its interest in the Trademark Collateral, if and when Debtor shall obtain rights to any new Trademarks, or any reissue, renewal or extension of any Trademarks, the provisions of SECTION 2 shall automatically apply thereto and Debtor shall give to Lender prompt notice thereof. Debtor shall do all things reasonably deemed necessary by Lender in the exercise of its discretion to ensure the validity, perfection, priority and enforceability of the security interests of Lender in such future acquired Trademark Collateral. If Debtor refuses to execute and deliver, or fails timely to execute and deliver, any of the documents it is requested to execute and deliver by Lender in connection herewith, Debtor hereby authorizes Lender to modify, amend or supplement the Schedules hereto and to re-execute this Agreement from time to time on Debtor's behalf and as its attorney-in-fact to include any future Trademarks which are or become Trademark Collateral and to cause such re-executed Agreement or such modified, amended or supplemented Schedules to be filed with the PTO.
Equity Cure Notwithstanding anything to the contrary contained in this ARTICLE 7, in the event that the Borrower fails to comply with the requirements of Section 6.22 as of the end of any relevant fiscal quarter, the Borrower shall have the right (the “Cure Right”) (at any time during such fiscal quarter or thereafter until the date that is 15 days after the date the Compliance Certificate is required to be delivered pursuant to Section 6.1(e) for such fiscal quarter) to issue common Equity Interests for cash or otherwise receive cash contributions to its common equity (the “Cure Amount”), and thereupon the Borrower’s compliance with Section 6.22 shall be recalculated giving effect to the following pro forma adjustment: Consolidated EBITDA shall be increased (notwithstanding the absence of an addback in the definition of “Consolidated EBITDA”), solely for the purposes of determining compliance with Section 6.22 hereof, including determining compliance with Section 6.22 hereof as of the end of such fiscal quarter and applicable subsequent periods that include such fiscal quarter, by an amount equal to the Cure Amount. If, after giving effect to the foregoing recalculations (but not, for the avoidance of doubt, taking into account any immediate repayment of Indebtedness in connection therewith), the requirements of Section 6.22 shall be satisfied, then the requirements of Section 6.22 shall be deemed satisfied as of the end of the relevant fiscal quarter with the same effect as though there had been no failure to comply therewith at such date, and the applicable breach or default of Section 6.22 that had occurred shall be deemed cured for the purposes of this Agreement. Notwithstanding anything herein to the contrary, (v) in each four (4) consecutive fiscal quarter period of the Borrower there shall be no more than two (2) fiscal quarters (which may be consecutive) in which the Cure Right is exercised, (w) during the term of this Agreement, the Cure Right shall not be exercised more than five (5) times, (x) the Cure Amount shall be no greater than the amount required for purposes of complying with Section 6.22, (y) upon the Administrative Agent’s receipt of a notice from the Borrower that it intends to exercise the Cure Right (a “Notice of Intent to Cure”), until the 15th day following the date of delivery of the Compliance Certificate under Section 6.1(e) to which such Notice of Intent to Cure relates, none of the Administrative Agent nor any Lender shall exercise the right to accelerate the Loans or terminate the Revolving Credit Commitments and neither the Administrative Agent nor any other Lender or secured party shall exercise any right to foreclose on or take possession of the Collateral solely on the basis of an Event of Default having occurred and being continuing under Section 6.22 and (z) the Cure Amount received pursuant to any exercise of the Cure Right shall be counted only as Consolidated EBITDA and solely for the purpose of compliance with Section 6.22 and shall be disregarded for purposes of determining any financial ratio-based conditions, pricing or any available basket (in reliance upon the Available Amount, Growth Amount or otherwise) under this Agreement.
Subsequent Equity Issuances The Company shall not deliver any Sales Notice hereunder (and any Sales Notice previously delivered shall not apply during such three Business Days) for at least three (3) Business Days prior to any date on which the Company or any Subsidiary offers, sells, issues, contracts to sell, contracts to issue or otherwise disposes of, directly or indirectly, any other shares of Common Stock or any Common Stock Equivalents (other than the Shares), subject to Manager’s right to waive this obligation, provided that, without compliance with the foregoing obligation, the Company may issue and sell Common Stock pursuant to any employee equity plan, stock ownership plan or dividend reinvestment plan of the Company in effect at the Execution Time and the Company may issue Common Stock issuable upon the conversion or exercise of Common Stock Equivalents outstanding at the Execution Time.
Put Right At any time after November 15, 2009 and prior to November 15, 2013, any Partner who has held Units for at least three years (the “Put Partner”) shall have the right to request that the Partnership redeem all of such Units. Such request shall be made in writing, state a requested date for the redemption (the “Requested Redemption Date”) and be delivered to the General Partner at least 60 calendar days in advance of the Requested Redemption Date. The General Partner shall determine whether the Partnership has sufficient funds to grant the request, which determination shall be made prior to the Requested Redemption Date in the sole discretion of the General Partner. If the General Partner determines that sufficient funds are available, the request shall be granted, and the Partnership shall transfer and deliver to the Put Partner no sooner than the Requested Redemption Date, but no later than 60 calendar days thereafter, 92% of the Unreturned Invested Capital of the Put Partner with respect to the redeemed Units determined as of the Requested Redemption Date; provided that the sum of the percentage interests in Partnership capital or profits transferred during the taxable year of the Partnership does not exceed 9% of the total interests in partnership capital or profits as determined in the sole discretion of the General Partner. Notwithstanding the foregoing, at no time during any 12-month period may the number of Units redeemed by the Partnership exceed 2% of the number of Units outstanding at the beginning of such 12-month period unless such redemption is otherwise deemed to be a disregarded transfer for purposes of determining whether the Partnership is a publicly traded partnership pursuant to Regulations Section 1.7704-1 as determined in the sole discretion of the General Partner. If the General Partner determines that sufficient funds are not available, or if the requested redemption would cause the number of Units redeemed by the Partnership to exceed 2% of the number of Units outstanding at the beginning of such 12-month period, the Partnership shall either (i) decline to perform the requested redemption or (ii) perform the requested redemption solely to the extent such redemption does not violate the provisions of Section 9.3 or this Section 9.4, to be decided in the sole discretion of the General Partner. Each Put Partner covenants and agrees with the Partnership and the General Partner that all Units delivered in connection with the exercise of the put right under this Section 9.4 shall be delivered to the Partnership or the General Partner, respectively, free and clear of all liens, encumbrances, liabilities, claims or charges of any kind and, notwithstanding anything contained herein to the contrary, neither the Partnership nor the General Partner shall be under any obligation to acquire any Put Partner’s Units, (1) to the extent that any such Units are subject to any liens, encumbrances, liabilities, claims or charges of any kind or (2) in the event that any such Put Partner shall fail to give the General Partner adequate assurances that such Units are not subject to any such liens, encumbrances, liabilities, claims or charges of any kind or shall fail to agree to fully indemnify the General Partner from any such liens, encumbrances, liabilities, claims or charges of any kind as well as any costs and expenses relating to the Put Partner’s Units or the exercise of the put right. Each Put Partner further agrees that, in the event any state or local transfer tax is payable as a result of the transfer of its Units to the Partnership or General Partner, respectively, each such Put Partner shall assume and pay such transfer tax. Table of Contents
Subsequent Equity Sales (a) From the date hereof until 90 days after the Closing Date, neither the Company nor any Subsidiary shall issue, enter into any agreement to issue or announce the issuance or proposed issuance of any shares of Common Stock or Common Stock Equivalents.
Equity Consideration OREXIGEN shall issue to DUKE eight hundred eighty five thousand, two hundred and forty-nine (885,249) shares of OREXIGEN common stock as represent, on a FULLY DILUTED BASIS, an amount not less than [***] percent ([***]%) of OREXIGEN’s common stock outstanding at the time of execution of this AGREEMENT (hereinafter referred to as “DUKE STOCK”). OREXIGEN shall issue DUKE STOCK directly to DUKE in the name of “Duke University” and shall deliver the DUKE STOCK to DUKE within thirty (30) days of the EFFECTIVE DATE. It is understood and agreed that [***] shall promptly reimburse [***] for any out-of-pocket costs (not to exceed [***] dollars ($[***]) incurred by [***] in effecting such transfer of DUKE STOCK to DUKE. It is further understood and agreed that, notwithstanding anything to the contrary in this AGREEMENT, such DUKE STOCK is non-refundable. It is understood and acknowledged that DUKE shall be treated as a founder of OREXIGEN and that the DUKE STOCK will be subject to the terms and conditions provided for in OREXIGEN’s Certificate of Incorporation and Bylaws, which are attached as APPENDIX B, and also subject to the Right of First Refusal and Co-Sale Agreement by and among OREXIGEN, DUKE, and other THIRD PARTY signatories thereto, the form of which is attached as APPENDIX F (the “RIGHT OF FIRST REFUSAL AGREEMENT”), and will be marketable by DUKE under the same conditions and subject to the same limitations as are the restricted shares of common stock of OREXIGEN held by any founder or equivalent. Subject to the prior sentence, as well as restrictions on transfer set forth in the Right of First Refusal Agreement and the Securities Act of 1933, as amended, OREXIGEN will permit and promptly effect any request from DUKE to transfer any of the DUKE STOCK to any persons as DUKE will direct, and OREXIGEN, DUKE and such persons will execute such documents and instruments as are reasonably necessary to effect such transfer. In connection with the issuance of the DUKE STOCK, DUKE shall execute a Common Stock Purchase Agreement for the DUKE STOCK, in the form attached as APPENDIX E and the Right of First Refusal Agreement in the form attached as APPENDIX F. In the event that the Right of First Refusal Agreement is amended without the consent of Duke, Duke shall retain all rights set forth in Section 1 thereof regarding rights of first refusal as if such agreement had not been so amended. In addition, DUKE shall have the rights of a “Majority Holder” as set forth in Sections 2.1 and 2.2 of the Investors’ Rights Agreement by and among OREXIGEN and other THIRD PARTY signatories thereto, the form of which is attached as APPENDIX G (the “INVESTORS’ RIGHTS AGREEMENT”), so long as DUKE meets the definition of a “Major Holder” under the INVESTORS’ RIGHTS AGREEMENT and there has been no termination of the covenants of OREXIGEN pursuant to Section 2.3 thereunder. DUKE shall not be made a party to the INVESTORS’ RIGHTS AGREEMENT, but shall be conferred the benefits of a Majority Holder under Sections 2.1 and 2.2 of the INVESTORS’ RIGHTS AGREEMENT by the independent provisions of this Section 3.01(a).
