Common use of Excluded Payments Clause in Contracts

Excluded Payments. The Parties recognize that it is possible that Astellas may deposit into the Joint Concentration Account amounts that are Excluded Payments. Accordingly the remainder of this Section 3.9 shall apply where Astellas has deposited into the Joint Concentration Account any Excluded Payment. (a) In connection with the delivery of any Royalty Report or CVT Officer’s Certificate under Section 3.2 or Section 3.3, as applicable, that includes an Excluded Payment, the Parties’ Primary Contacts will discuss the amount of such Excluded Payment and attempt to agree in writing on the portion of the amount deposited by Astellas into the Joint Concentration Account that correctly represents an actual Excluded Payment, and the amount thereof (any such agreed upon amount being referred to herein as the “Agreed-On Excluded Payment Amount”). (b) To the extent the Parties’ Primary Contacts are unable to agree on the correct amount of any Excluded Payment (any such disputed amounts being referred to as the “Disputed Excluded Payment Amounts”), within [****] following delivery of the applicable Royalty Report or CVT Officer’s Certificate under Section 3.2 or Section 3.3, [****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions. as applicable, each Party shall designate an executive officer to discuss the matter with an executive officer of the other Party and attempt to reach agreement in writing on the Agreed-On Excluded Payment Amount within [****] following the end of the prior [****] period (and, if they agree upon the same during such period, such amount shall no longer be Disputed Excluded Payment Amounts but shall become Agreed-On Excluded Payment Amounts). (c) With respect to the amount of any Agreed-On Excluded Payment Amount deposited into the Joint Concentration Account, the Parties agree that, subject to TPG-Axon’s rights with respect to Account Instructions during a CVT Event of Default as set forth in Section 3.1, the Final Instructions shall require JPMorgan to transfer one hundred percent (100%) of the Agreed-On Excluded Payment Amount from the Joint Concentration Account into the CVT Concentration Account before effecting any other transfer from the Joint Concentration Account provided for in such Final Instructions. (d) In the event Disputed Excluded Payment Amounts exist following the expiration of the applicable time period(s) utilized by the Parties under Sections 3.9(a) and (b), each Party is free to pursue a resolution of such dispute with the other Party, along with any related matters, in the judicial system (without having to comply with the dispute resolution procedures set forth in Section 9.2) or to otherwise exercise any right or remedy such Party may have against the other Party pursuant to this Agreement.

Excluded Payments. The Parties recognize that it is possible that Astellas may deposit into the Joint Concentration Account amounts that are Excluded Payments. Accordingly the remainder provisions of this Section 3.9 2.12 shall apply where Astellas has deposited into solely following the Joint Concentration Account any Excluded Payment. Discharge of Priority Bridge Obligations. Notwithstanding anything to the contrary in this Article II (a) In connection with but subject to the delivery Discharge of any Royalty Report Priority Bridge Obligations and the proviso set forth below to this Section 2.12), the provisions of this Article II shall not apply to regularly scheduled principal and interest payments on the First Lien Obligations, mandatory prepayments, fees, indemnity payments and expense reimbursement obligations, in each case, payable pursuant to the terms of the Existing Notes Documents, the FP Notes Documents or CVT Officer’s Certificate under Section 3.2 or Section 3.3the Additional First Lien Documents, as applicable, that includes an Excluded Paymentand voluntary prepayments, redemptions, offers for redemption or other acquisitions for value of First Lien Obligations and, in each case of this Section 2.12, are not pursuant to the application of Proceeds contemplated by this Article II, so long as such enforcement or receipt is not the direct or indirect result of the exercise by any First Lien Secured Party of any exercise of rights or remedies or any action or distribution in contravention of this Agreement of any Lien in Shared Collateral; provided, however, that, in the event of either a Mandatory Prepayment or Voluntary Prepayment in accordance with the provisions of any Secured First Lien Document, the Parties’ Primary Contacts will discuss the amount proceeds of such Excluded Payment and attempt Mandatory Prepayment or Voluntary Prepayment, to agree the extent not resulting from a Waterfall Distribution Event or constituting Declined Proceeds (as defined in writing the FP NPA), shall be applied on a pro rata basis (as determined on the portion date of the amount deposited by Astellas into the Joint Concentration Account that correctly represents an actual Excluded Payment, and the amount thereof (any such agreed upon amount being referred Mandatory Prepayment or Voluntary Prepayment by reference to herein as the “Agreed-On Excluded Payment Amount”). (b1) To the extent the Parties’ Primary Contacts are unable to agree on the correct amount of any Excluded Payment (any such disputed amounts being referred to as the “Disputed Excluded Payment Amounts”), within [****] following delivery of the applicable Royalty Report or CVT Officer’s Certificate under Section 3.2 or Section 3.3, [****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions. as applicableExisting Notes Secured Parties, each Party shall designate an executive officer to discuss the matter outstanding principal amount owing under the Existing Notes Documents and (2) with an executive officer of the other Party and attempt to reach agreement in writing on the Agreed-On Excluded Payment Amount within [****] following the end of the prior [****] period (and, if they agree upon the same during such period, such amount shall no longer be Disputed Excluded Payment Amounts but shall become Agreed-On Excluded Payment Amounts). (c) With respect to the FP Notes Secured Parties, the sum of (A) the outstanding principal amount owing under the FP Notes Documents and (B) the amount of any Agreed-On Excluded Payment Amount deposited into Call Premium, if any, that may be payable to the Joint Concentration AccountFP Notes Secured Parties in connection with such Mandatory Prepayment or Voluntary Prepayment pursuant to Section 2.07(d) of the FP NPA), to the Parties agree that, subject to TPG-Axon’s rights payment in cash of (x) with respect to Account Instructions during a CVT Event of Default as set forth in Section 3.1the Existing Notes Secured Parties, the Final Instructions outstanding principal amount owing to the Existing Notes Secured Parties under the Existing Notes Documents and all accrued but unpaid interest on such principal amount repaid and (y) with respect to the FP Notes Secured Parties, the outstanding principal amount owing to the FP Notes Secured Parties under the FP Notes Documents, all accrued but unpaid interest on such principal amount repaid and any Call Premium, if any, payable on such principal amount repaid. If, following the Discharge of Priority Bridge Obligations and despite the provisions of this Section 2.12(a), any First Lien Secured Party shall require JPMorgan to transfer one hundred percent (100%) receive any payment or other recovery in excess of its portion of payments on account of the Agreed-On Excluded Payment Amount from the Joint Concentration Account into the CVT Concentration Account before effecting any other transfer from the Joint Concentration Account provided for First Lien Obligations to which it is then entitled in such Final Instructions. (d) In the event Disputed Excluded Payment Amounts exist following the expiration of the applicable time period(s) utilized by the Parties under Sections 3.9(a) and (baccordance with this Section 2.12(a), each such First Lien Secured Party is free to pursue a resolution shall hold such payment or recovery in trust for the benefit of such dispute all First Lien Secured Parties for distribution in accordance with the other Party, along with any related matters, in the judicial system (without having to comply with the dispute resolution procedures set forth in this Section 9.2) or to otherwise exercise any right or remedy such Party may have against the other Party pursuant to this Agreement2.12(a).