Issuance of Additional Securities Such Grantor will not permit or suffer the issuer of an Equity Interest constituting Pledged Collateral owned by it to issue additional Equity Interests, any right to receive the same or any right to receive earnings, except to such Grantor.
Upon Issuance of Additional Securities Upon the issuance by the General Partner of any Additional Securities (including pursuant to the General Partner’s distribution reinvestment plan) other than to all holders of REIT Shares, the General Partner shall contribute any net proceeds from the issuance of such Additional Securities and from any exercise of rights contained in such Additional Securities, directly and through the General Partner, to the Partnership in return for, as the General Partner may designate, Partnership Interests or rights, options, warrants or convertible or exchangeable securities of the Partnership having designations, preferences and other rights such that their economic interests are substantially similar to those of the Additional Securities; provided, however, that the General Partner is allowed to issue Additional Securities in connection with an acquisition of assets that would not be owned directly or indirectly by the Partnership, but if and only if, such acquisition and issuance of Additional Securities have been approved and determined to be in or not opposed to the best interests of the General Partner and the Partnership; provided further, that the General Partner is allowed to use net proceeds from the issuance and sale of such Additional Securities to repurchase REIT Shares pursuant to a share repurchase plan. Without limiting the foregoing, the General Partner is expressly authorized to issue Additional Securities for less than fair market value, and to cause the Partnership to issue to the General Partner corresponding Partnership Interests, so long as the General Partner concludes in good faith that such issuance is in the best interests of the General Partner and the Partnership. Without limiting the foregoing, if the General Partner issues REIT Shares of any Class for a cash purchase price and contributes all of the net proceeds of such issuance to the Partnership as required hereunder, the General Partner shall be issued a number of additional Partnership Units having the same Class designation as the issued REIT Shares equal to the number of such REIT Shares of that Class issued by the General Partner the proceeds of which were so contributed.
Additional Securities If such Pledgor shall receive by virtue of its being, becoming or having been the owner of any Pledged Collateral, any (i) certificate, including without limitation, any certificate representing a dividend or distribution in connection with any increase or reduction of capital, reclassification, merger, consolidation, sale of assets, combination of shares or membership or equity interests, stock splits, spin-off or split-off, promissory notes or other instrument; (ii) option or right, whether as an addition to, substitution for, or an exchange for, any Pledged Collateral or otherwise; (iii) dividends payable in securities; or (iv) distributions of securities or other equity interests in connection with a partial or total liquidation, dissolution or reduction of capital, capital surplus or paid-in surplus, such Pledgor shall receive such certificate, instrument, option, right or distribution in trust for the benefit of the Administrative Agent, shall segregate it from such Pledgor’s other property and shall deliver it forthwith to the Administrative Agent in the exact form received together with any necessary endorsement and/or appropriate stock power duly executed in blank, substantially in the form provided in Exhibit 4(a), to be held by the Administrative Agent as Pledged Collateral and as further collateral security for the Secured Obligations.
Issuance of Additional Units (i) After the Effective Date, the Partnership may issue additional Preferred Units to the Institutional Investor and the Intrepid Investor in accordance with the terms of this Section 3.1(c)(i) and Section 3.1(c)(iii) with a purchase price for each such Preferred Unit of $1,000 per Preferred Unit, as determined by the General Partner and subject to the limitations contained in the GP LLC Agreement. Prior to issuing any such Preferred Units, the General Partner shall send a written notice notifying the Institutional Investor and the Intrepid Investor of the number of additional Preferred Units the Partnership desires to issue. Upon receipt of such notice, the Intrepid Investor shall have ten (10) Business Days to elect to participate in such issuance (the “Intrepid Election Period”). The Intrepid Investor may purchase up to three percent (3.0%) of such additional Preferred Units by delivering written notice to the General Partner and the Institutional Investor prior to the end of the Intrepid Election Period, which notice shall be irrevocable and shall identify how many of the additional Preferred Units the Intrepid Investor desires to purchase. If the Intrepid Investor fails to deliver such written notice to the General Partner and the Institutional Investor prior to the end of the Intrepid Election Period irrevocably committing the Intrepid Investor to purchase three percent (3%) of such additional Preferred Units in the issuance (or at least such lesser amount that would result in the Intrepid Investor owning not more than a total of 24,000 Preferred Units in the aggregate after giving effect to the purchase), then the Intrepid Investor shall not be permitted to participate in such issuance.
(ii) If, after the Effective Date, (A) an event of default or borrowing base deficiency (or analogous term or event) under any Senior Debt Agreement or any other agreements governing any material Indebtedness of any of the Partnership or its Subsidiaries (including, without limitation, any Replacement Credit Agreement) has occurred and such event of default remains uncured by the Partnership or other Subsidiary, as applicable, then for ten (10) Business Days following receipt by the General Partner of notice of such event or default or (B) any Senior Debt Agreement, Replacement Credit Agreement or any other agreements governing any material Indebtedness of any of the Partnership or its Subsidiaries prohibits either the payment by the Partnership of any Tax Distributions or, following the date that is 12 months following the Effective Date, Distributions in cash on the Preferred Units pursuant to Section 4.1(b) and such prohibition persists for ten (10) Business Days after the date such Distribution is due to be paid, then, the Institutional Investor shall have the right, in its sole discretion, to elect to cause the Partnership to issue additional Preferred Units, which number of Preferred Units shall be determined by the Institutional Investor and the Intrepid Investor in accordance with this Section 3.01(c)(ii) and Section 3.01(c)(iii) in its sole discretion following consultation with the Board, to the Institutional Investor and the Intrepid Investor on the same terms and conditions that the Preferred Units were issued to the Institutional Investor on the Effective Date. In order to exercise such right, the Institutional Investor shall deliver a written notice (an “Additional Preferred Units Notice”) to the General Partner and to the Intrepid Investor setting forth the request and the number of Preferred Units to be issued by the Partnership. Upon receipt of the Additional Preferred Units Notice for a period of ten (10) Business Days after receiving such notice, the Intrepid Investor may elect to purchase up to three percent (3%) of the number of Preferred Units identified in the Additional Preferred Units Notice by delivering a written notice to the General Partner and the Institutional Investor notifying them of such election and irrevocably committing to purchase an identified number of Preferred Units. After the conclusion of such ten (10) Business Days, the General Partner and the Board shall be required to cause the Partnership (x) to enter into a purchase agreement with the Institutional Investor and, if the Intrepid Investor elects to participate, the Intrepid Investor, in substantially the same form attached hereto as Exhibit A (with any such changes to the extent the parties thereto may mutually agree) and (y) to issue the number of Preferred Units set forth in the Additional Preferred Units Notice within twenty (20) Business Days of receipt of the Additional Preferred Units Notice in accordance with such Securities Purchase Agreement. The Partnership shall use the proceeds from the issuance of such Preferred Units to the Institutional Investor and, if the Intrepid Investor elected to participate, the Intrepid Investor, solely to apply to outstanding Indebtedness of the Partnership and its Subsidiaries under the Senior Debt Agreements or any other agreements governing any material Indebtedness of the Partnership or any of its Subsidiaries (including a Replacement Credit Agreement) so as to remedy the applicable condition(s) described in clauses (A) and (B) of this Section 3.1(c)(ii).
(iii) If (A) additional Preferred Units are to be issued pursuant to Section 3.1(c)(i) or Section 3.1(c)(ii) at any time during the period commencing on the Effective Date and ending on the second anniversary of the Effective Date, (B) the total number of Preferred Units then outstanding is not in excess of 800,000 Preferred Units and (C) the Intrepid Investor does not elect to purchase three percent (3.0%) of the proposed issuance (whether by failing to respond or expressly declining to participate), then the Institutional Investor shall have ten (10) Business Days after such failure or refusal by the Intrepid Investor to deliver to the Intrepid Investor a written election notice, which shall be irrevocable (a “Purchase Notice”), stating that the Institutional Investor commits to purchase the Preferred Units held by the Intrepid Investor and its Permitted Transferees, if any, at a price per Preferred Unit equal to the lesser of (1) $650.00 and (2) sixty-five percent (65.0%) of the fair market value of a Preferred Unit, payable in cash or immediately available funds; provided, however, in no event will the Institutional Investor have the right to so purchase Preferred Units from the Intrepid Investor and its Permitted Transferees, if any, pursuant to the Purchase Election if the Intrepid Investor and its Permitted Transferees, if any, (X) then own not less than a total of 24,000 Preferred Units in the aggregate (including any Preferred Units proposed by Intrepid to be purchased concurrently with such proposed issuance) or (Y) has or have elected to purchase a number of additional Preferred Units such that the total number of Preferred Units that will be owned after giving effect to such purchase(s) by the Intrepid Investor and its Permitted Transferee(s), if any, will not be less than 24,000. The closing of the purchase by the Institutional Investor from the Intrepid Investor and its Permitted Transferee(s), if any, of the Preferred Units owned by the Intrepid Investor and such Permitted Transferee(s) shall occur within ten (10) Business Days after delivery of the Purchase Notice to the Intrepid Investor.
(iv) At any time following the Effective Date, the Partnership may issue Common Units, as determined by the General Partner.
Issuance of Additional Shares (a) If the Company shall, at any time or from time to time after the issuance of the Shares and until such time as the Purchaser no longer owns any shares of Common Stock issued pursuant to this Agreement (including shares issued pursuant to this Section 5.3) or six (6) months after the date of this Agreement, whichever occurs first, issue shares of Common Stock, options to purchase or rights to subscribe for shares of Common Stock, securities by their terms convertible into, exercisable or exchangeable for shares of Common Stock, or options to purchase or rights to subscribe for such convertible, exercisable or exchangeable securities without consideration or for consideration per share (including, in the case of such options, rights, or securities, the additional consideration required to be paid to the Company upon exercise, conversion or exchange) less than the Effective Price Per Share (as hereinafter defined) (each such issuance, a “Triggering Issuance”), then (i) the Company shall issue to the Purchaser, for no additional consideration, such number of shares of Common Stock which when aggregated with the Shares issued hereunder to Purchaser prior to the applicable Triggering Issuance would result in an effective purchase price per share of Common Stock to the Purchaser (calculated by dividing the Purchase Price by such aggregate number of shares) equal to the effective price per share of Common Stock of the Triggering Issuance (calculated by dividing the total consideration received by the Company for such issuance (as determined below) divided by the number of shares issued (as determined below)), and (ii) the Effective Price Per Share shall be adjusted to equal the effective price per share of Common Stock of the Triggering Issuance. “Effective Price Per Share” shall mean $8.00, as subsequently adjusted pursuant to this Section 5.3. Notwithstanding the foregoing, a Triggering Issuance shall not include any options to purchase shares of Common Stock (or any shares issued in connection therewith) or other form of incentive equity granted or issued under the Company’s 2009 Equity Compensation Plan, or any shares of Common Stock issued to a strategic partner or licensee in connection with a joint venture, strategic alliance, licensing agreement, or other similar form of agreement.