Common use of Funding Obligations Clause in Contracts

Funding Obligations. Following a request from Indemnitee pursuant to Section 12.1 to establish the Trust with respect to a particular Proceeding, the Company will, from time to time upon written request of Indemnitee, fund the Trust in an amount sufficient to satisfy any and all Expenses and Losses reasonably anticipated at the time of such request to be incurred by or on behalf of Indemnitee in connection with such Proceeding, provided, however, that the aggregate amount that the Company may be required to fund in the Trust with respect to such Proceeding will not, in any event, exceed $ ; and, provided, further, that the aggregate amount that the Company may be required to fund in all Trusts with respect to all Proceedings for which the Company may be required to indemnify Indemnitee will not, in any event, exceed $ . The amount or amounts to be deposited in the Trust pursuant to the foregoing obligation will be determined by mutual agreement of Indemnitee and the Company, and if they are unable to reach such agreement, then by Independent Counsel (selected as provided in Section 6.3). The terms of the Trust will provide that (i) except upon prior written consent of Indemnitee, the Trust will not be revoked or the principal thereof invaded, (ii) the trustee will advance to Indemnitee, within five (5) business days of a written request by Indemnitee, any and all Expenses (and Indemnitee hereby agrees to execute the Undertaking contemplated by Section 4.1, if required at the time any request for an Expense Advance is submitted to the trustee), (iii) the Trust will continue to be funded by the Company in accordance with the funding obligations set forth in this Section 12.2, (iv) the trustee will promptly pay to Indemnitee any amounts to which Indemnitee is entitled to indemnification pursuant to this Agreement or otherwise and (v) all unexpended funds in the Trust will revert to the Company upon a final determination by the person, persons or entity making a determination of entitlement to indemnification pursuant to Article 6 or a court or arbitrator presiding over an action commenced pursuant to Article 8, as the case may be, that Indemnitee has been fully indemnified with respect to the Proceeding giving rise to the establishment of the Trust.

Funding Obligations. Following a request from Indemnitee pursuant (a) If, at any time after the date of this Agreement until the third anniversary of the date of this Agreement (the "Funding Term"), subject to Section 12.1 to establish the Trust with respect to a particular Proceedingother provisions of this Agreement, the Company will, from time Corporation has insufficient cash to time upon written request of Indemnitee, fund the Trust payment in full of any dividends required to be paid on the Series A Preferred Stock under the Corporation's Amended and Restated Certificate of Incorporation (the "Amended Charter") during the Funding Term (a "Dividend Deficit"), the Corporation shall provide written notice (a "Funding Notice") to Highstar and ASC of such Dividend Deficit, which notice shall also state that the Corporation is drawing upon the Contingent Equity Facility in the amount of such deficit not in excess of the Maximum Funding Obligation Amount (after taking into account all prior contributions pursuant hereto). Promptly upon receipt of such Funding Notice and confirmation by Highstar of such deficit, Highstar shall make a capital contribution to the Corporation in an amount sufficient equal to satisfy any and all Expenses and Losses reasonably anticipated at the time amount of such request to be incurred by or on behalf Dividend Deficit, not in excess of Indemnitee in connection with such Proceeding, provided, however, that the aggregate amount that the Company may be required to fund in the Trust with respect to such Proceeding will not, in any event, exceed $ ; and, provided, further, that the aggregate amount that the Company may be required to fund in Maximum Funding Obligation Amount (after taking into account all Trusts with respect to all Proceedings for which the Company may be required to indemnify Indemnitee will not, in any event, exceed $ . The amount or amounts to be deposited in the Trust prior contributions pursuant to the foregoing obligation will be determined by mutual agreement of Indemnitee and the Company, and if they are unable to reach such agreement, then by Independent Counsel hereto) (selected as provided in Section 6.3a "Funding Obligation"). The terms Corporation shall be permitted to draw upon the Contingent Equity Facility on one or more occasions during the Funding Term, but the aggregate of all prior contributions pursuant hereto and the drawing then being made may not exceed the Maximum Funding Obligation Amount. (b) In the event that a Dividend Deficit occurs during the Funding Term and the Corporation has not provided a Funding Notice to Highstar within ten (10) days prior to the Series A Dividend Payment Date (as defined in the Amended Charter), ASC shall be entitled to provide to Highstar a Funding Notice, in which case Highstar shall, promptly upon receipt of such Funding Notice and confirmation by Highstar of such deficit, make a capital contribution to the Corporation in an amount equal to the amount of such Dividend Deficit up to the Maximum Funding Obligation Amount (after taking into account all prior contributions pursuant hereto). (c) Effective upon the first anniversary of the Trust will provide that (i) except upon prior written consent of Indemniteedate hereof, the Trust will not Maximum Funding Obligation Amount shall be revoked or the principal thereof invaded, reduced by fifty percent (ii50%). (d) the trustee will advance to Indemnitee, within five (5) business days of a written request All amounts contributed by Indemnitee, any and all Expenses (and Indemnitee hereby agrees to execute the Undertaking contemplated by Section 4.1, if required at the time any request for an Expense Advance is submitted Highstar to the trustee), (iii) the Trust will continue to Corporation shall be funded applied by the Company in accordance with the funding obligations set forth in this Section 12.2, (iv) the trustee will promptly pay to Indemnitee any amounts to which Indemnitee is entitled to indemnification pursuant to this Agreement or otherwise and (v) all unexpended funds in the Trust will revert Corporation solely to the Company upon a final determination by payment of dividends on the person, persons or entity making a determination of entitlement to indemnification pursuant to Article 6 or a court or arbitrator presiding over an action commenced pursuant to Article 8, as the case may be, that Indemnitee has been fully indemnified with respect to the Proceeding giving rise to the establishment shares of the TrustSeries A Preferred Stock. The Corporation shall not enter into any agreement (including any credit agreement or other agreement relating to indebtedness for money borrowed) which limits the ability of the Corporation to apply the funds contributed by Highstar hereunder.

Funding Obligations. Following a request from Indemnitee pursuant to Section 12.1 to establish (a) Within thirty (30) days following the Trust with respect to a particular Proceedingend of each Calendar Quarter during the Reimbursement Period, the Company willshall provide to the Administrative Agent a report and invoice for such Calendar Quarter (or applicable portion thereof, from time in the case of the Calendar Quarter during which the Reimbursement Period ends) reflecting in reasonable detail all Program Expenses incurred in such Calendar Quarter and Company’s good faith calculation of the Quarterly Funding Amount for such Calendar Quarter. Subject to time upon written request of Indemnitee, fund the Trust Commitments not having been terminated or suspended in an amount sufficient to satisfy any and all Expenses and Losses reasonably anticipated at the time accordance with Section 8.2 as of such request date, each Lender shall disburse to be incurred by or on behalf of Indemnitee in connection with such ProceedingAdministrative Agent, provided, however, that the aggregate amount that the Company may be required for distribution to fund in the Trust with respect to such Proceeding will not, in any event, exceed $ ; and, provided, further, that the aggregate amount that the Company may be required to fund in all Trusts with respect to all Proceedings for which the Company may be required to indemnify Indemnitee will not, in any event, exceed $ . The amount or amounts to be deposited in the Trust pursuant to the foregoing obligation will be determined by mutual agreement of Indemnitee and the Company, and if they are unable on a Calendar Quarter basis in arrears, its Pro Rata Share of such Quarterly Funding Amount within fifteen (15) Business Days following Administrative Agent’s receipt from Company of such invoice therefor following the Calendar Quarter to reach which such agreementQuarterly Funding Amount relates; provided that, then by Independent Counsel (selected as provided in Section 6.3). The terms no event will the aggregate of the Trust will provide that (i) except upon prior written consent of Indemnitee, the Trust will not be revoked or the principal thereof invaded, (ii) the trustee will advance to Indemnitee, within five (5) business days of a written request by Indemnitee, any and all Expenses (and Indemnitee hereby agrees to execute the Undertaking contemplated by Section 4.1, if required at the time any request for an Expense Advance is submitted to the trustee), (iii) the Trust will continue Quarterly Funding Amounts to be funded by the Lenders hereunder exceed One Hundred and Seventy-Five Million Dollars ($175,000,000). Upon receipt of such Quarterly Funding Amount, Administrative Agent shall credit such Quarterly Funding Amount to Company’s account. (b) Notwithstanding anything to the contrary herein, no Quarterly Funding Amounts shall be funded by the Lenders following the occurrence of a Liquidity Event or following the date on which Company pays the Discharge Amount to Administrative Agent for distribution to the Lenders as contemplated by Section 8.2, if applicable, regardless of whether any Program Expenses were incurred by Company and unreimbursed by the Lenders prior to such date. For clarity, Lenders are only required to fund Program Expenses in accordance with a given Calendar Quarter up to the funding obligations set forth in this Section 12.2Quarterly Funding Amount for such Calendar Quarter. (c) The Administrative Agent may, (iv) and at the trustee will promptly pay to Indemnitee any amounts to which Indemnitee is entitled to indemnification pursuant to this Agreement direction of Required Lenders shall, suspend or otherwise and (v) all unexpended funds terminate the Lenders’ remaining Commitments in the Trust will revert to event that the Company upon a final determination by shall fail to use Commercially Reasonable Efforts, consistently applied throughout the personterm of this Agreement, persons to Develop and Commercialize the Product or entity making a determination an Event of entitlement to indemnification pursuant to Article 6 Default occurs and is continuing under Section 8.1(a), Section 8.1(f) or a court or arbitrator presiding over an action commenced pursuant to Article 8Section 8.1(g); provided, as that the remaining Commitments shall terminate automatically in the case may be, that Indemnitee has been fully indemnified with respect of an Event of Default relating to the Proceeding giving rise to the establishment of the TrustCompany under Section 8.1(f) or Section 8.1(g).

Funding Obligations. Following a request from Indemnitee pursuant to Section 12.1 to establish the Trust with respect to a particular Proceeding, the Company will, from time to time upon written request of Indemnitee, fund the Trust in an amount sufficient to satisfy any and all Expenses and Losses reasonably anticipated at the time of such request to be incurred by or on behalf of Indemnitee in connection with such Proceeding, provided, however, that the aggregate amount that the Company may be required to fund in the Trust with respect to such Proceeding will not, in any event, exceed $ ; and, provided, further, that the aggregate amount that the Company may be required to fund in all Trusts with respect to all Proceedings for which the Company may be required to indemnify Indemnitee will not, in any event, exceed $ . The amount or amounts to be deposited in the Trust pursuant to the foregoing obligation will be determined by mutual agreement of Indemnitee and the Company, and if they are unable to reach such agreement, then by Independent Counsel (selected as provided in Section 6.3)Counsel. The terms of the Trust will provide that (i) except upon prior written consent of Indemnitee, the Trust will not be revoked or the principal thereof invaded, (ii) the trustee will advance to Indemnitee, within five (5) ten business days of a written request by Indemnitee, any and all Expenses (and Indemnitee hereby agrees to execute the Undertaking contemplated by Section 4.1, if required at the time any request for an Expense Advance is submitted to the trustee), (iii) the Trust will continue to be funded by the Company in accordance with the funding obligations set forth in this Section 12.2, (iv) the trustee will promptly pay to Indemnitee any amounts to which Indemnitee is entitled to indemnification pursuant to this Agreement or otherwise and (v) all unexpended funds in the Trust will revert to the Company upon a final determination by mutual agreement of Indemnitee and the personCompany, persons or entity making a determination of entitlement or, if they are unable to indemnification pursuant to Article 6 reach such agreement, then by Independent Counsel, or a court or arbitrator presiding over an action commenced pursuant to Article 8VIII, as the case may beif applicable, that Indemnitee has been fully indemnified with respect to the Proceeding giving rise to the establishment of the Trust.

Funding Obligations. Following a request from Indemnitee pursuant to Section 12.1 to establish the Trust with respect to a particular Proceeding, the Company will, from time to time upon written request of Indemnitee, fund the Trust in an amount sufficient to satisfy any and all Expenses and Losses reasonably anticipated at the time of such request to be incurred by or on behalf of Indemnitee in connection with such Proceeding, ,; provided, however, that the aggregate amount that the Company may be required to fund in the Trust with respect to such Proceeding will not, in any event, exceed $ $1,000,000; and, provided, further, that the aggregate amount that the Company may be required to fund in all Trusts with respect to all Proceedings for which the Company may be required to indemnify Indemnitee will not, in any event, exceed $ $5,000,000. The amount or amounts to be deposited in the Trust pursuant to the foregoing obligation will be determined by mutual agreement of Indemnitee and the Company, and if they are unable to reach such agreement, then by Independent Counsel (selected as provided in Section 6.3). The terms of the Trust will provide that (i) except upon prior written consent of Indemnitee, the Trust will not be revoked or the principal thereof invaded, (ii) the trustee will advance to Indemnitee, within five (5) business days of a written request by Indemnitee, any and all Expenses (and Indemnitee hereby agrees to execute the Undertaking contemplated by Section 4.1, if required at the time any request for an Expense Advance is submitted to the trustee), (iii) the Trust will continue to be funded by the Company in accordance with the funding obligations set forth in this Section 12.2, (iv) the trustee will promptly pay to Indemnitee any amounts to which Indemnitee is entitled to indemnification pursuant to this Agreement or otherwise and (v) all unexpended funds in the Trust will revert to the Company upon a final determination by the person, persons or entity making a determination of entitlement to indemnification pursuant to Article 6 or a court or arbitrator presiding over an action commenced pursuant to Article 8, as the case may be, that Indemnitee has been fully indemnified with respect to the Proceeding giving rise to the establishment of the Trust.

Funding Obligations. Following a request from Indemnitee pursuant to Section 12.1 to establish the Trust with respect to a particular Proceeding, the Company will, from time to time upon written request of Indemnitee, fund the Trust in an amount sufficient to satisfy any and all Expenses and Losses reasonably anticipated at the time of such request to be incurred by or on behalf of Indemnitee in connection with such Proceeding, provided, however, that the aggregate amount that the Company may be required to fund in the Trust with respect to such Proceeding will not, in any event, exceed $ [$100,000]; and, provided, further, that the aggregate amount that the Company may be required to fund in all Trusts with respect to all Proceedings for which the Company may be required to indemnify Indemnitee will not, in any event, exceed $ [$250,000]. The amount or amounts to be deposited in the Trust pursuant to the foregoing obligation will be determined by mutual agreement of Indemnitee and the Company, and if they are unable to reach such agreement, then by Independent Counsel (selected as provided in Section 6.3). The terms of the Trust will provide that (i) except upon prior written consent of Indemnitee, the Trust will not be revoked or the principal thereof invaded, (ii) the trustee will advance to Indemnitee, within five ten (510) business days of a written request by Indemnitee, any and all Expenses (and Indemnitee hereby agrees to execute the Undertaking contemplated by Section 4.1, if required at the time any request for an Expense Advance is submitted to the trustee), (iii) the Trust will continue to be funded by the Company in accordance with the funding obligations set forth in this Section 12.2, (iv) the trustee will promptly pay to Indemnitee any amounts to which Indemnitee is entitled to indemnification pursuant to this Agreement or otherwise and (v) all unexpended funds in the Trust will revert to the Company upon a final determination by the person, persons or entity making a determination of entitlement to indemnification pursuant to Article 6 or a court or arbitrator presiding over an action commenced pursuant to Article 8, as the case may be, that Indemnitee has been fully indemnified with respect to the Proceeding giving rise to the establishment of the Trust.