Common use of Recapture of Benefits Clause in Contracts

Recapture of Benefits. It is understood and agreed by the parties to this Agreement that the Agency is entering into this Agreement in order to provide Financial Assistance to the Lessee for the Project and to accomplish the public purposes of the Act. In consideration therefor, the Lessee hereby agrees as follows: (a) If there shall occur a Recapture Event during the Recapture Period, the Lessee shall pay to the Agency as a return of Financial Assistance conferred by the Agency, a recapture amount (the “Recapture Amount”) equal to the product of (y) all Benefits realized by the Lessee and (z) the recapture percentage below (the “Recapture Percentage”) for the period during which the Recapture Event occurs, as determined by the Agency: (i) if the Recapture Event occurs during the period commencing on the Commencement Date and ending on the day before the third anniversary of the Operations Commencement Date, the Recapture Percentage is 130%; (ii) if the Recapture Event occurs during the period commencing on the third anniversary of the Operations Commencement Date and ending on the day before the fourth anniversary of the Operations Commencement Date, the Recapture Percentage is 120%; (iii) if the Recapture Event occurs during the period commencing on the fourth anniversary of the Operations Commencement Date and ending on the day before the fifth anniversary of the Operations Commencement Date, the Recapture Percentage is 110%; (iv) if the Recapture Event occurs during the period commencing on the fifth anniversary of the Operations Commencement Date and ending on the day before the sixth anniversary of the Operations Commencement Date, the Recapture Percentage is 100%; or (v) if the Recapture Event occurs during the period commencing on the sixth anniversary of the Operations Commencement Date and ending on or before the tenth anniversary of the Operations Commencement Date, the Recapture Percentage is 100% minus the product of (y) 1.666% and (z) the number of months elapsed since the sixth anniversary of the Operations Commencement Date. (b) Interest on any Recapture Amount due pursuant to the provisions of Section 5.4(a) shall accrue at a rate equal to the higher of nine percent (9%) per annum, or the amount of interest and penalties imposed by the Act or other law, from the date that the Recapture Event occurred until the date of repayment of the Recapture Amount to the Agency. (c) Notwithstanding the foregoing, with respect to State Sales Tax Savings, the computation of the amount of State Sales Tax Savings to be recaptured shall equal the greater of the amount determined pursuant to this Section 5.4 and the amount due to the State pursuant to the Special Provisions. (d) For purposes of this Section 5.4, demand for payment by the Agency shall be made in accordance with the notice requirements of this Agreement and the due date for payment shall be not less than seven (7) Business Days from the date of the notice. (e) The Lessee shall furnish the Agency with written notification of any Recapture Event within ten (10) days of its occurrence and shall subsequently provide to the Agency in writing any additional information that the Agency may request. (f) The provisions of this Section 5.4 shall survive the termination of this Agreement for any reason whatsoever, notwithstanding any provision of this Agreement to the contrary.

Recapture of Benefits. It is understood and agreed by the parties to this Agreement that the Agency is entering into this Agreement in order to provide Financial Assistance to the Lessee for the Project and to accomplish the public purposes of the Act. In consideration therefor, the Lessee hereby agrees as follows: (a) If there shall occur a Recapture Event during the Recapture Period, the Lessee shall pay to the Agency as a return of Financial Assistance conferred by the Agency, a recapture amount (the “Recapture Amount”) equal to the product of (y) all Benefits realized by the Lessee and the Sublessee and (z) the recapture percentage below (the “Recapture Percentage”) for the period during which the Recapture Event occurs, as determined by the Agency: (i) if the Recapture Event occurs during the period commencing on the Commencement Date and ending on the day before the third anniversary of the Operations Commencement Date, the Recapture Percentage is 130%; (ii) if the Recapture Event occurs during the period commencing on the third anniversary of the Operations Commencement Date and ending on the day before the fourth anniversary of the Operations Commencement Date, the Recapture Percentage is 120%; (iii) if the Recapture Event occurs during the period commencing on the fourth anniversary of the Operations Commencement Date and ending on the day before the fifth anniversary of the Operations Commencement Date, the Recapture Percentage is 110%; (iv) if the Recapture Event occurs during the period commencing on the fifth anniversary of the Operations Commencement Date and ending on the day before the sixth anniversary of the Operations Commencement Date, the Recapture Percentage is 100%; or (v) if the Recapture Event occurs during the period commencing on the sixth anniversary of the Operations Commencement Date and ending on or before the tenth anniversary of the Operations Commencement Date, the Recapture Percentage is 100% minus the product of (y) 1.666% and (z) the number of months elapsed since the sixth anniversary of the Operations Commencement Date. (b) Interest on any Recapture Amount due pursuant to the provisions of Section 5.4(a) shall accrue at a rate equal to the higher of nine percent (9%) per annum, or the amount of interest and penalties imposed by the Act or other law, from the date that the Recapture Event occurred until the date of repayment of the Recapture Amount to the Agency. (c) Notwithstanding the foregoing, with respect to State Sales Tax Savings, the computation of the amount of State Sales Tax Savings to be recaptured shall equal the greater of the amount determined pursuant to this Section 5.4 and the amount due to the State pursuant to the Special Provisions. (d) For purposes of this Section 5.4, demand for payment by the Agency shall be made in accordance with the notice requirements of this Agreement and the due date for payment shall be not less than seven (7) Business Days from the date of the notice. (e) The Lessee shall furnish the Agency with written notification of any Recapture Event within ten (10) days of its occurrence and shall subsequently provide to the Agency in writing any additional information that the Agency may request. (f) The provisions of this Section 5.4 shall survive the termination of this Agreement for any reason whatsoever, notwithstanding any provision of this Agreement to the contrary.

Recapture of Benefits. It is understood and agreed by the parties to this Agreement that the Agency is entering into this Agreement in order to provide Financial Assistance to the Lessee for the Project and to accomplish the public purposes of the Act. In consideration therefor, the Lessee hereby agrees as follows: (a) If there shall occur a Recapture Event during the Recapture Period, the Lessee shall pay to the Agency as a return of Financial Assistance conferred by the Agency, a recapture amount (the “Recapture Amount”) equal to the product of (y) all Benefits realized by the Lessee and (z) the recapture percentage below (the “Recapture Percentage”) for the period during which the Recapture Event occurs, as determined by the Agency: (i) if the Recapture Event occurs during the period commencing on the Commencement Date and ending on the day before the third anniversary of the Operations Commencement Date, the Recapture Percentage is 130%; (ii) if the Recapture Event occurs during the period commencing on the third anniversary of the Operations Commencement Date and ending on the day before the fourth anniversary of the Operations Commencement Date, the Recapture Percentage is 120%; (iii) if the Recapture Event occurs during the period commencing on the fourth anniversary of the Operations Commencement Date and ending on the day before the fifth anniversary of the Operations Commencement Date, the Recapture Percentage is 110%; (iv) if the Recapture Event occurs during the period commencing on the fifth anniversary of the Operations Commencement Date and ending on the day before the sixth anniversary of the Operations Commencement Date, the Recapture Percentage is 100%; or (v) if the Recapture Event occurs during the period commencing on the sixth anniversary of the Operations Commencement Date and ending on or before the tenth anniversary of the Operations Commencement Date, the Recapture Percentage is 100% minus the product of (y) 1.666% and (z) the number of months elapsed since the sixth anniversary of the Operations Commencement Date. (b) Interest on any Recapture Amount due pursuant to the provisions of Section 5.4(a) shall accrue at a rate equal to the higher of nine percent (9%) per annum, or the amount of interest and penalties imposed by the Act or other law, from the date that the Recapture Event occurred until the date of repayment of the Recapture Amount to the Agency. (c) Notwithstanding the foregoing, with respect to State Sales Tax Savings, the computation of the amount of State Sales Tax Savings to be recaptured shall equal the greater of the amount determined pursuant to this Section 5.4 and the amount due to the State pursuant to the Special Provisions. (d) For purposes of this Section 5.4, demand for payment by the Agency shall be made in accordance with the notice requirements of this Agreement and the due date for payment shall be not less than seven (7) Business Days from the date of the notice. (e) The Lessee shall furnish the Agency with written notification of any Recapture Event within ten (10) days of its occurrence and shall subsequently provide to the Agency in writing any additional information that the Agency may request. (f) The provisions of this Section 5.4 shall survive the termination of this Agreement for any reason whatsoever, notwithstanding any provision of this Agreement to the contrary.

Recapture of Benefits. It is understood and agreed by the parties to this Agreement that the Agency is entering into this Agreement in order to provide Financial Assistance to the Lessee for the Project and to accomplish the public purposes of the Act. In consideration therefor, the Lessee hereby agrees as follows: (a) If there shall occur a Recapture Event during the Recapture Period, the Lessee shall pay to the Agency as a return of Financial Assistance conferred by the Agency, a recapture amount (the “Recapture Amount”) equal to the product of (y) all Benefits realized by the Lessee and (z) the recapture percentage below (the “Recapture Percentage”) for the period during which the Recapture Event occurs, as determined by the Agency: (i) if the Recapture Event occurs during the period commencing on the Commencement Date and ending on the day before the third anniversary of the Operations Commencement Date, the Recapture Percentage is 130%; (ii) if the Recapture Event occurs during the period commencing on the third anniversary of the Operations Commencement Date and ending on the day before the fourth anniversary of the Operations Commencement Date, the Recapture Percentage is 120%; (iii) if the Recapture Event occurs during the period commencing on the fourth anniversary of the Operations Commencement Date and ending on the day before the fifth anniversary of the Operations Commencement Date, the Recapture Percentage is 110%; (iv) if the Recapture Event occurs during the period commencing on the fifth anniversary of the Operations Commencement Date and ending on the day before the sixth anniversary of the Operations Commencement Date, the Recapture Percentage is 100%; or (v) if the Recapture Event occurs during the period commencing on the sixth anniversary of the Operations Commencement Date and ending on or before the tenth anniversary of the Operations Commencement Date, the Recapture Percentage is 100% minus the product of (y) 1.666% and (z) the number of months elapsed since the sixth anniversary of the Operations Commencement Date. (b) Interest on any Recapture Amount due pursuant to the provisions of Section 5.4(a) shall accrue at a rate equal to the higher of nine percent (9%) per annum, or the amount of interest and penalties imposed by the Act or other law, from the date that the Recapture Event occurred until the date of repayment of the Recapture Amount to the Agency.. 4847-2060-1807 B-1 (c) Notwithstanding the foregoing, with respect to State Sales Tax Savings, the computation of the amount of State Sales Tax Savings to be recaptured shall equal the greater of the amount determined pursuant to this Section 5.4 and the amount due to the State pursuant to the Special Provisions. (d) For purposes of this Section 5.4, demand for payment by the Agency shall be made in accordance with the notice requirements of this Agreement and the due date for payment shall be not less than seven (7) Business Days from the date of the notice. (e) The Lessee shall furnish the Agency with written notification of any Recapture Event within ten (10) days of its occurrence and shall subsequently provide to the Agency in writing any additional information that the Agency may request. (f) The provisions of this Section 5.4 shall survive the termination of this Agreement for any reason whatsoever, notwithstanding any provision of this Agreement to the contrary.

Recapture of Benefits. It is understood and agreed by the parties to this Agreement that the Agency is entering into this Agreement in order to provide Financial Assistance to the Lessee for the Project and to accomplish the public purposes of the Act. In consideration therefor, the Lessee hereby agrees as follows: (a) If there shall occur a Recapture Event during the Recapture Period, the Lessee shall pay to the Agency as a return of Financial Assistance conferred by the Agency, a recapture amount (the “Recapture Amount”) equal to the product of (y) all Benefits realized by the Lessee and (z) the recapture percentage below (the “Recapture Percentage”) for the period during which the Recapture Event occurs, as determined by the Agency: (i) if the Recapture Event occurs during the period commencing on the Commencement Date and ending on the day before the third anniversary of the Operations Commencement Date, the Recapture Percentage is 130%; (ii) if the Recapture Event occurs during the period commencing on the third anniversary of the Operations Commencement Date and ending on the day before the fourth anniversary of the Operations Commencement Date, the Recapture Percentage is 120%; (iii) if the Recapture Event occurs during the period commencing on the fourth anniversary of the Operations Commencement Date and ending on the day before the fifth anniversary of the Operations Commencement Date, the Recapture Percentage is 110%; (iv) if the Recapture Event occurs during the period commencing on the fifth anniversary of the Operations Commencement Date and ending on the day before the sixth anniversary of the Operations Commencement Date, the Recapture Percentage is 100%; or (v) if the Recapture Event occurs during the period commencing on the sixth anniversary of the Operations Commencement Date and ending on or before the tenth anniversary of the Operations Commencement Date, the Recapture Percentage is 100% minus the product of (y) 1.666% and (z) the number of months elapsed since the sixth anniversary of the Operations Commencement Date. (b) Interest on any Recapture Amount due pursuant to the provisions of Section 5.4(a) shall accrue at a rate equal to the higher of nine percent (9%) per annum, or the amount of interest and penalties imposed by the Act or other law, from the date that the Recapture Event occurred until the date of repayment of the Recapture Amount to the Agency. (c) Notwithstanding the foregoing, with respect to State Sales Tax Savings, the computation of the amount of State Sales Tax Savings to be recaptured shall equal the greater of the amount determined pursuant to this Section 5.4 and the amount due to the State pursuant to the Special Provisions. (d) For purposes of this Section 5.4, demand for payment by the Agency shall be made in accordance with the notice requirements of this Agreement and the due date for payment shall be not less than seven (7) Business Days from the date of the notice. (e) The Lessee shall furnish the Agency with written notification of any Recapture Event within ten (10) days of its occurrence and shall subsequently provide to the Agency in writing any additional information that the Agency may requestrequest with respect to such Recapture Event. (f) Notwithstanding the foregoing provisions of this Section 5.4, and without limiting any rights to liquidated damages under the Collaboration Agreement or the Agency’s rights to recapture of Benefits from the original Lessee or the Guarantor, if a Recapture Event occurs: (i) under clause (iv) of the definition of a Recapture Event as a result of a Foreclosure Event in connection with a Mezzanine Loan the Agency’s remedies shall be limited to a termination of this Agreement and the Company Lease and the Agency hereby releases the Mezzanine Lender from the obligation to pay recapture of the Benefits; or (ii) under clause (v) of the definition of Recapture Event (and without limiting the Agency’s right under clause (iv) of the definition of Recapture Event) as a result of the Lessee’s sale of the Facility Realty and the purchaser’s failure to assume the obligations of Deerfield under the Collaboration Agreement, and Deerfield’s failure to pay liquidated damages to NYCEDC in accordance with the terms of the Collaboration Agreement immediately upon the sale of Facility Realty, then the Agency’s remedies shall be limited to a termination of this Agreement and the Company Lease and shall not include recapture of the Benefits. (g) The provisions of this Section 5.4 shall survive the termination of this Agreement for any reason whatsoever, notwithstanding any provision of this Agreement to the contrary.