Additional Termination Events. The occurrence of any of the following shall constitute an Additional Termination Event with respect to which (1) Counterparty shall be the sole Affected Party and (2) the Transaction shall be the sole Affected Transaction; provided that with respect to any of the following Additional Termination Events described in clauses (i) or (ii) below, Dealer may choose to treat one or more parts of the Transaction as the sole Affected Transaction and either to terminate each such part on different days or to calculate the amount owing in connection with such Additional Termination Event by reference to a Share price determined over a period not to exceed 50 Exchange Business Days, and, upon termination of an Affected Transaction, a Transaction with a Number of Warrants equal to the unaffected number of Warrants shall be treated for all purposes as the Transaction, which shall remain in full force and effect and, for the avoidance of doubt, shall be subject to all relevant provisions and adjustments as if an Additional Termination Event had not occurred; and, provided further, that, without limiting the foregoing, notwithstanding the provisions of Section 6(b)(iv) of the Agreement, Counterparty shall also have the right to designate an Early Termination Date with respect to the Additional Termination Event described in clause (ii) below if Counterparty (x) provides a certificate that includes a representation that Counterparty is not, as of the date of such certificate, aware of any material non-public information concerning itself or the Shares (where “material” shall have the meaning set forth in paragraph 5(o) below) and (y) satisfies such other conditions, including making additional representations and warranties, relating to securities law and other issues as requested by the Calculation Agent: (i) if at any time Dealer is unable, or reasonably determines that it is inadvisable, to hedge its obligations pursuant to this Transaction in the public market without registration under the Securities Act or as a result of any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer); (ii) if at any time an Early Termination Date is designated with respect to the transaction relating to the Convertible Notes described in the confirmation between the parties hereto regarding the Bond Hedge Transaction dated November 6, 2018 (Reference Number(s): [____]) (the “Bond Hedge Transaction”) or the Bond Hedge Transaction is otherwise cancelled or terminated prior to its expiration for any reason; or (iii) if at any time Dealer receives a Par Value Notice, unless the Calculation Agent shall have determined that the applicable Par Value Event would not result in the amount of the Premium being less than the aggregate par value of the Maximum Amount of Shares following such event (a “Par Value ATE”); provided that, notwithstanding anything to the contrary in the Agreement, Dealer shall designate an Early Termination Date in respect of a Par Value ATE no later than the anticipated record or other effective date of such event specified in the Par Value Notice.
Appears in 1 contract
Additional Termination Events. The occurrence of any of the following shall constitute an Additional Termination Event with respect to which (1) Counterparty shall be the sole Affected Party and (2) the Transaction shall be the sole Affected Transaction; provided that with respect to any of the following Additional Termination Events described in clauses (i) or (ii) below, Dealer may choose to treat one or more parts of the Transaction as the sole Affected Transaction and either to terminate each such part on different days or to calculate the amount owing in connection with such Additional Termination Event by reference to a Share price determined over a period not to exceed 50 Exchange Business Days, and, upon termination of an Affected Transaction, a Transaction with a Number of Warrants equal to the unaffected number of Warrants shall be treated for all purposes as the Transaction, which shall remain in full force and effect and, for the avoidance of doubt, shall be subject to all relevant provisions and adjustments as if an Additional Termination Event had not occurred; and, provided further, that, without limiting the foregoing, notwithstanding the provisions of under Section 6(b)(iv5(b)(v) of the Agreement, Counterparty shall also have the right to designate an Early Termination Date with respect to the Additional Termination Event described in clause (ii) below if Counterparty (x) provides a certificate that includes a representation that Counterparty is not, as of the date of such certificate, aware of any material non-public information concerning itself or the Shares (where “material” shall have the meaning set forth in paragraph 5(o) below) and (y) satisfies such other conditions, including making additional representations and warranties, relating to securities law and other issues as requested by the Calculation Agent:.
(i) if at any time Dealer is unable, or reasonably determines that it is inadvisable, to hedge its obligations pursuant to this Transaction in the public market without registration The occurrence of an Optional Termination under the Securities Act or as a result of any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer);
(ii) if at any time an Early Termination Date is designated with respect to the transaction relating to the Convertible Notes described in the confirmation between the parties hereto regarding the Bond Hedge Transaction dated November 6, 2018 (Reference Number(s): [____]) (the “Bond Hedge Transaction”) or the Bond Hedge Transaction is otherwise cancelled or terminated prior to its expiration for any reason; or
(iii) if at any time Dealer receives a Par Value Notice, unless the Calculation Agent shall have determined that the applicable Par Value Event would not result in the amount Section 10.01 of the Premium being less than the aggregate par value of the Maximum Amount of Shares following such event (a “Par Value ATE”); provided that, notwithstanding Pooling and Servicing Agreement. Notwithstanding anything to the contrary in the Agreement, Dealer shall designate an the Early Termination Date with respect to this Additional Termination Event shall be the Optional Termination Date designated under the Pooling and Servicing Agreement.
(ii) Any of the Grantor Trust Agreement, the Pooling and Servicing Agreement or any other instrument or agreement relating to the issuance of the Class 6 A-3 Floating Rate Certificates (collectively, the "Transaction Documents") shall have been amended or modified without the prior written consent of Party A if the result of such amendment or modification is (a) to increase or reduce or change the priority of payment of any amount stated to be payable by either party under the Transaction; (b) accelerate or postpone the scheduled date of any payment under the Transaction, (c) affect the calculation of any amount that would have been payable upon an early termination of the Transaction, (d) release a party from any of its obligations under the Transaction; or (e) modify any of the definitions in respect any of the Transaction Documents which would have the affect of any of the foregoing.
(iii) 30 days following a Downgrade Event if Party A has not taken action that prevents the downgrading of the Class 6 A-3 Floating Rate Certificates below the rating of such Certificates by Xxxxx'x Investors Service, Inc. ("Moody's") immediately prior to the Downgrade Event.
(iv) A payment default on the Class 6 A-3 REMIC Certificates that is caused by the failure of a Par Value ATE no later than party to the anticipated record or other effective date of Pooling and Servicing Agreement to make a payment when due, provided that any cure period for such event specified default provided in the Par Value NoticePooling and Servicing Agreement has expired.
(v) The termination or dissolution of the Trust for any reason whatsoever, including a termination pursuant to Section 9.01 of the Grantor Trust Agreement.
Appears in 1 contract
Samples: Isda Master Agreement (Credit Suisse First Boston Mortgage Securities Corp)
Additional Termination Events. The occurrence of any following Additional Termination Events will apply, in each case with respect to Party B as the sole Affected Party (unless otherwise provided below):
(i) Each of the following shall constitute an Additional Termination Event with respect to which (1) Counterparty shall be the Party A as sole Affected Party:
(a) An S&P Collateralization Event has occurred and is continuing and Party A has failed to comply with or perform any obligation to be complied with or performed by Party A in accordance with the "Downgrade Provisions" as set forth in Part 5(b)(2) and (2) the Transaction shall be the sole Affected Transaction; provided that with respect to any of the following Additional Termination Events described in clauses (i) or (ii) below, Dealer may choose to treat one or more parts of the Transaction as the sole Affected Transaction and either to terminate each such part on different days or to calculate the amount owing in connection with such Additional Termination a Ratings Event by reference to a Share price determined over a period not to exceed 50 Exchange Business Days, and, upon termination of an Affected Transaction, a Transaction with a Number of Warrants equal to the unaffected number of Warrants shall be treated for all purposes as the Transaction, has neither occurred nor is continuing. Any event which shall remain in full force and effect and, for the avoidance of doubt, shall be subject to all relevant provisions and adjustments as if constitutes an Additional Termination Event pursuant to this Section 1(h)(i)(a) shall not constitute an Event of Default.
(b) A Moody's Collateralization Event has occurred and is continuing, and Party A has failed to comply with or perform any obligation to deliver collateral under the Credit Support Annex and 30 Local Business Days or more have elapsed since the last time that no Moody's Collateralization Event had occurred and was continuing. Any event which constitutes an Additional Termination Event pursuant to this Section 1(h)(i)(b) shall not occurred; andconstitute an Event of Default (unless such event constitutes a failure to post collateral pursuant to the terms of the Credit Support Annex in breach of Part 5(b)(4)).
(c) A Fitch Collateralization Event has occurred and is continuing and Party A has failed to comply with or perform any obligation to be complied with or performed by Party A in accordance with the "Downgrade Provisions" as set forth in Part 5(b)(2) and a Ratings Event has neither occurred nor is continuing. Any event which constitutes an Additional Termination Event pursuant to this Section 1(h)(i)(c) shall not constitute an Event of Default (unless such event constitutes a failure to post collateral pursuant to the terms of the Credit Support Annex in breach of Part 5(b)(4)).
(d) A Ratings Event has occurred and is continuing and Party A has failed to comply with or perform any obligation to be complied with or performed by Party A in accordance with the “Downgrade Provisions” as set forth in Part 5(b)(4) and in the case of a Moody's Ratings Event (i) at least one Eligible Replacement has made a Live Bid to be the transferee of a transfer to be made in accordance with the terms hereof and/or (ii) at least one entity that satisfies the Hedge Counterparty Ratings Requirements is able to provide an Eligible Guarantee in respect of all of Party A’s present and future obligations under this Agreement subject to the satisfaction of the S&P Ratings Condition. The failure by Party A to comply with or perform any obligation (other than the obligation to post collateral pursuant to the terms of the Credit Support Annex) to be complied with or performed by Party A in accordance with the “Downgrade Provisions” as set forth in Part 5(b)(4) will constitute an Additional Termination Event and not an Event of Default.
(ii) The Pooling and Servicing Agreement, provided furtherdated as of 1 January, that2007, by and among DLJ Mortgage Capital, Inc. as the Seller, Asset Backed Securities Corporation as the Depositor, Select Portfolio Servicing, Inc. as the Servicer, OfficeTiger Global Real Estate Services Inc. as the Loan Performance Advisor and U.S. Bank National Association as the Trustee (the PSA or the Pooling and Servicing Agreement) or other transaction document is amended or modified (other than an amendment or modification solely to accommodate replacement agents to the transaction, e.g., Servicer, Loan Performance Advisor) without limiting the foregoingprior written consent of Party A, where such consent is required under the terms of the PSA (such consent not to be unreasonably withheld). For all purposes hereunder, including in the Credit Support Annex and each Confirmation, "Trustee" shall mean the trustee for the Supplemental Interest Trust under the PSA.
(iii) The termination of the Trust pursuant to Article IX of the PSA, provided, however, that notwithstanding the provisions of Section 6(b)(iv) of the this Agreement, Counterparty shall also have the right to designate an Early Termination Date with respect to the Additional Termination Event described in clause (ii) below if Counterparty (x) provides a certificate that includes a representation that Counterparty is not, as of the date of such certificate, aware of any material non-public information concerning itself or the Shares (where “material” shall have the meaning set forth in paragraph 5(o) below) and (y) satisfies such other conditions, including making additional representations and warranties, relating to securities law and other issues as requested by the Calculation Agent:
(i) if at any time Dealer is unable, or reasonably determines that it is inadvisable, to hedge its obligations pursuant to this Transaction in the public market without registration under the Securities Act or as a result of any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer);
(ii) if at any time an Early Termination Date is designated with respect to the transaction relating to the Convertible Notes described in the confirmation between the parties hereto regarding the Bond Hedge Transaction dated November 6, 2018 (Reference Number(s): [____]) (the “Bond Hedge Transaction”) or the Bond Hedge Transaction is otherwise cancelled or terminated prior to its expiration for any reason; or
(iii) if at any time Dealer receives a Par Value Notice, unless the Calculation Agent shall have determined that the applicable Par Value Event would not result in the amount of the Premium being less than the aggregate par value of the Maximum Amount of Shares following such event (a “Par Value ATE”); provided that, notwithstanding anything to the contrary in the Agreement, Dealer shall either party may designate an Early Termination Date in respect of this Additional Termination Event.
(iv) Upon the occurrence of a Par Value ATE no later than Swap Disclosure Event (as defined in Part 5(u) below) Party A has not, within 10 days after such Swap Disclosure Event, complied with any of the anticipated record or other effective date provisions set forth in Part 5(u)(iii) below. For all purposes of such event specified this Agreement, Party A shall be the sole Affected Party with respect to the occurrence of an Additional Termination Event described in the Par Value Noticethis Part 1(h)(iv).
Appears in 1 contract
Samples: Swap Schedule (Asset Backed Securities Corp Home Equity Loan Trust, Series RFC 2007-He1)
Additional Termination Events. The occurrence of any following Additional Termination Events will apply, in each case with respect to Party B as the sole Affected Party (unless otherwise provided below):
(i) Each of the following shall constitute an Additional Termination Event with respect to which (1) Counterparty shall be the Party A as sole Affected Party:
(a) An S&P Collateralization Event has occurred and is continuing and Party A has failed to comply with or perform any obligation to be complied with or performed by Party A in accordance with the "Downgrade Provisions" as set forth in Part 5(b)(2) and (2) the Transaction shall be the sole Affected Transaction; provided that with respect to any of the following Additional Termination Events described in clauses (i) or (ii) below, Dealer may choose to treat one or more parts of the Transaction as the sole Affected Transaction and either to terminate each such part on different days or to calculate the amount owing in connection with such Additional Termination a Ratings Event by reference to a Share price determined over a period not to exceed 50 Exchange Business Days, and, upon termination of an Affected Transaction, a Transaction with a Number of Warrants equal to the unaffected number of Warrants shall be treated for all purposes as the Transaction, has neither occurred nor is continuing. Any event which shall remain in full force and effect and, for the avoidance of doubt, shall be subject to all relevant provisions and adjustments as if constitutes an Additional Termination Event pursuant to this Section 1(h)(i)(a) shall not constitute an Event of Default (unless such event constitutes a breach of Part 5(b)(4)).
(b) A Moody's Collateralization Event has occurred and is continuing, and Party A has failed to comply with or perform any obligation to deliver collateral under the Credit Support Annex and no more than 30 Local Business Days have elapsed since the last time that no Moody's Ratings Event had not occurred; and, provided further, that, without limiting the foregoing, notwithstanding the provisions of Section 6(b)(iv) of the Agreement, Counterparty shall also have the right to designate occurred and was continuing. Any event which constitutes an Early Termination Date with respect to the Additional Termination Event described pursuant to this Section 1(h)(i)(b) shall not constitute an Event of Default (unless such event constitutes breach of Part 5(b)(4)).
(c) A Ratings Event has occurred and is continuing and Party A has failed to comply with or perform any obligation to be complied with or performed by Party A in clause accordance with the "Downgrade Provisions" as set forth in Part 5(b)(4) and (i) at least one Eligible Replacement has made a Live Bid to be the transferee of a transfer to be made in accordance with the terms hereof and/or (ii) below if at least one entity that satisfies the Hedge Counterparty Ratings Requirements is able to provide an Eligible Guarantee in respect of all of Party A's present and future obligations under this Agreement satisfying the requirements set forth under Part 5(b) hereof. The failure by Party A to comply with or perform any obligation (x) provides a certificate that includes a representation that Counterparty is not, as other than the obligation to post collateral pursuant to the terms of the date of such certificate, aware of any material non-public information concerning itself Credit Support Annex) to be complied with or performed by Party A in accordance with the Shares (where “material” shall have the meaning "Downgrade Provisions" as set forth in paragraph 5(oPart 5(b)(4) below) will constitute an Additional Termination Event and (y) satisfies such other conditions, including making additional representations and warranties, relating to securities law and other issues as requested by the Calculation Agent:
(i) if at any time Dealer is unable, or reasonably determines that it is inadvisable, to hedge its obligations pursuant to this Transaction in the public market without registration under the Securities Act or as a result not an Event of any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer);Default.
(ii) if at any time an Early Termination Date is designated with respect The Series Supplement dated as of October 30, 2006 to the Standard Terms of Pooling and Servicing Agreement dated as of March 1, 2006 among Residential Accredit Loans, Inc. as Depositor, Residential Funding Company, LLC as Master Servicer, and Deutsche Bank Trustee Company Americas as Trustee as amended and supplemented from time to time (such Series Supplement together with such Standard Terms, the PSA or the POOLING AND SERVICING AGREEMENT) or other transaction relating document is amended or modified (other than an amendment or modification solely to accommodate replacement agents to the Convertible Notes described transaction, e.g., servicer, manager) without the prior written consent of Party A, where such consent is required under the terms of the PSA (such consent not to be unreasonably withheld). For all purposes hereunder, including in the confirmation between Credit Support Annex and each Confirmation, "Trustee" shall mean the parties hereto regarding trustee for the Bond Hedge Transaction dated November 6, 2018 (Reference Number(s): [____]) (Supplemental Interest Trust Trustee under the “Bond Hedge Transaction”) or the Bond Hedge Transaction is otherwise cancelled or terminated prior to its expiration for any reason; or
(iii) if at any time Dealer receives a Par Value Notice, unless the Calculation Agent shall have determined that the applicable Par Value Event would not result in the amount of the Premium being less than the aggregate par value of the Maximum Amount of Shares following such event (a “Par Value ATE”); provided that, notwithstanding anything to the contrary in the Agreement, Dealer shall designate an Early Termination Date in respect of a Par Value ATE no later than the anticipated record or other effective date of such event specified in the Par Value NoticePSA.
Appears in 1 contract
Additional Termination Events. The occurrence (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of any which a “Notice of Conversion” (as defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant converting Holder:
(A) Counterparty may, within ten Scheduled Trading Days of the following “Conversion Date” (as defined in the Indenture) for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”) and the anticipated settlement date, and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); provided that any such Early Conversion Notice shall contain a written representation by Counterparty to Dealer that Counterparty is not, on the date of such Early Conversion Notice, in possession of any material nonpublic information with respect to Counterparty or the Shares; provided further that the provisions of this Section 9(h)(i) shall not apply to any Affected Convertible Note (i) with respect to which Counterparty has elected the “Exchange in Lieu of Conversion” option pursuant to Section 14.12 of the Indenture and (1ii) that has been accepted by the designated financial institution pursuant to Section 14.12 of the 12 Include for Dealer. Indenture, except to the extent that Counterparty notifies Dealer, within ten Scheduled Trading Days of the then applicable conversion settlement date determined pursuant to Section 14.02(i) of the Indenture, that (x) such financial institution has failed to pay or deliver, as the case may be, the consideration due upon conversion of such Affected Convertible Note, or (y) such Affected Convertible Note is subsequently resubmitted to Counterparty for conversion in accordance with the terms of the Indenture;
(B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be on or as promptly as reasonably practicable after the related conversion settlement date for such Early Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes [minus the “Affected Number of Options” (as defined in the Base Call Option Confirmation letter agreement dated March [__], 2021 between Dealer and Counterparty (the “Base Call Option Confirmation”), if any, that relate to such Affected Convertible Notes]13 and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty shall be were the sole Affected Party and (2) the Transaction shall be the sole Affected Transaction; provided that with respect to any of the following such Additional Termination Events described in clauses Event and (iz) or (ii) below, Dealer may choose to treat one or more parts the terminated portion of the Transaction as were the sole Affected Transaction and either to terminate each such part on different days or to calculate the amount owing in connection with such Additional Termination Event by reference to a Share price determined over a period not to exceed 50 Exchange Business Days, and, upon termination of an Affected Transaction, a Transaction with a Number of Warrants equal to the unaffected number of Warrants shall be treated for all purposes as the Transaction, which shall remain in full force and effect (and, for the avoidance of doubt, shall be subject to all relevant provisions and adjustments as if an Additional Termination Event had not occurred; and, provided further, that, without limiting the foregoing, notwithstanding the provisions of Section 6(b)(iv9(l) shall apply to any amount that is payable by Dealer to Counterparty pursuant to this Section 9(h)(i) as if Counterparty were not the Affected Party);
(D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty shall also have the right to designate an Early Termination Date with respect leading thereto had not occurred, (y) no adjustments to the Additional Termination Event described Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and
(E) the Transaction shall remain in clause full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options.
(ii) below if Within ten Scheduled Trading Days following any Repurchase Event (as defined below), Counterparty may notify Dealer of such Repurchase Event and the aggregate principal amount of Convertible Notes subject to such Repurchase Event (x) provides any such notice, a certificate “Convertible Notes Repurchase Notice”); provided that includes any such Convertible Notes Repurchase Notice shall contain a written representation by Counterparty to Dealer that Counterparty is not, as of on the date of such certificateConvertible Notes Repurchase Notice, aware in possession of any material non-public nonpublic information concerning itself or the Shares (where “material” shall have the meaning set forth in paragraph 5(o) below) and (y) satisfies such other conditions, including making additional representations and warranties, relating to securities law and other issues as requested by the Calculation Agent:
(i) if at any time Dealer is unable, or reasonably determines that it is inadvisable, to hedge its obligations pursuant to this Transaction in the public market without registration under the Securities Act or as a result of any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer);
(ii) if at any time an Early Termination Date is designated with respect to Counterparty or the transaction relating to the Shares. The receipt by Dealer from Counterparty of any Convertible Notes described Repurchase Notice shall constitute an Additional Termination Event as provided in the confirmation between the parties hereto regarding the Bond Hedge Transaction dated November 6, 2018 (Reference Number(s): [____]) (the “Bond Hedge Transaction”) or the Bond Hedge Transaction is otherwise cancelled or terminated prior to its expiration for this Section 9(h)(ii). Upon receipt of any reason; or
(iii) if at any time Dealer receives a Par Value such Convertible Notes Repurchase Notice, unless the Calculation Agent shall have determined that the applicable Par Value Event would not result in the amount of the Premium being less than the aggregate par value of the Maximum Amount of Shares following such event (a “Par Value ATE”); provided that, notwithstanding anything to the contrary in the Agreement, Dealer shall designate an Early Termination Date in respect of a Par Value ATE no later than the anticipated record or other effective date Exchange Business Day following receipt of such event specified Convertible Notes Repurchase Notice (which Exchange Business Day shall be on or as promptly as reasonably practicable after the related repurchase settlement date for the relevant 13 Include in the Par Value NoticeAdditional Call Option Confirmation only.
Appears in 1 contract
Additional Termination Events. The occurrence (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of any which a “Notice of Conversion” (as defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant converting Holder:
(A) Counterparty may, within five Scheduled Trading Days of the following “Conversion Date” (as defined in the Indenture) for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”) and the anticipated settlement date, and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); provided that any such Early Conversion Notice shall contain a representation and warranty that Counterparty is not, on the date thereof, aware of any material nonpublic information with respect to Counterparty or the Shares, in respect of the delivery of such Early Conversion Notice; provided further that the provisions of this Section 9(h)(i) shall not apply to any Affected Convertible Note (i) with respect to which Counterparty has elected the “Exchange in Lieu of Conversion” option pursuant to Section [14.12] of the Indenture and (1ii) that has been accepted by the designated financial institution pursuant to Section [14.12] of the Indenture, except to the extent that Counterparty notifies Dealer, within ten Scheduled Trading Days of the then applicable conversion settlement date determined pursuant to Section [14.02(c)] of the Indenture, that (x) such financial institution has failed to pay or deliver, as the case may be, the consideration due upon conversion of such Affected Convertible Note, or (y) such Affected Convertible Note is subsequently resubmitted to Counterparty for conversion in accordance with the terms of the Indenture;
(B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be on or as promptly as reasonably practicable after the related conversion settlement date for such Early Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes [minus the “Affected Number of Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Affected Convertible Notes] and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty shall be were the sole Affected Party and (2) the Transaction shall be the sole Affected Transaction; provided that with respect to any of the following such Additional Termination Events described in clauses Event and (iz) or (ii) below, Dealer may choose to treat one or more parts the terminated portion of the Transaction as were the sole Affected Transaction and either to terminate each such part on different days or to calculate the amount owing in connection with such Additional Termination Event by reference to a Share price determined over a period not to exceed 50 Exchange Business Days, and, upon termination of an Affected Transaction, a Transaction with a Number of Warrants equal to the unaffected number of Warrants shall be treated for all purposes as the Transaction, which shall remain in full force and effect (and, for the avoidance of doubt, the provisions of Section 9(l) shall apply to any amount that is payable by Dealer to Counterparty pursuant to this Section 9(h)(i) as if Counterparty were not the Affected Party);
(D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and
(E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options.
(ii) Within five Scheduled Trading Days following any Repurchase Event (as defined below), Counterparty may notify Dealer of such Repurchase Event and the aggregate principal amount of Convertible Notes subject to all relevant provisions such Repurchase Event (any such notice, a “Convertible Notes Repurchase Notice”); provided that any such Convertible Notes Repurchase Notice shall contain a representation and adjustments as if warranty that Counterparty is not, on the date thereof, aware of any material nonpublic information with respect to Counterparty or the Shares, in respect of the delivery of such Convertible Notes Repurchase Notice. The receipt by Dealer from Counterparty of any Convertible Notes Repurchase Notice shall constitute an Additional Termination Event had not occurred; andas provided in this Section 9(h)(ii). Upon receipt of any such Convertible Notes Repurchase Notice, provided further, that, without limiting Dealer shall designate an Exchange Business Day following receipt of such Convertible Notes Repurchase Notice (which Exchange Business Day shall be on or as promptly as reasonably practicable after the foregoing, notwithstanding related repurchase settlement date for the provisions of Section 6(b)(ivrelevant Repurchase Event) of the Agreement, Counterparty shall also have the right to designate as an Early Termination Date with respect to the Additional Termination Event described portion of the Transaction corresponding to a number of Options (the “Repurchase Options”) equal to the lesser of (A) the aggregate principal amount of such Convertible Notes specified in clause such Convertible Notes Repurchase Notice, divided by USD 1,000 [minus (iiy) below the number of Repurchase Options (as defined in the Base Call Option Confirmation), if Counterparty any, that relate to such Convertible Notes], and (xB) provides a certificate that includes a representation that Counterparty is not, the Number of Options as of the date Dealer designates such Early Termination Date and, as of such certificatedate, aware the Number of any material non-public information concerning itself or the Shares (where “material” Options shall have the meaning set forth in paragraph 5(o) below) and (y) satisfies such other conditions, including making additional representations and warranties, relating to securities law and other issues as requested be reduced by the Calculation Agent:
number of Repurchase Options. Any payment hereunder with respect to such termination (ithe “Repurchase Unwind Payment”) if at any time Dealer is unable, or reasonably determines that it is inadvisable, to hedge its obligations shall be calculated pursuant to this Transaction in Section 6 of the public market without registration under the Securities Act or Agreement as a result of any legal, regulatory or self-regulatory requirements or related policies and procedures if (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer);
(ii1) if at any time an Early Termination Date is had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the number of Repurchase Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination Event, (3) no adjustments to the transaction relating Conversion Rate have occurred pursuant to an Excluded Provision, (4) the corresponding Convertible Notes remaining outstanding, (5) the relevant Repurchase and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred and (6) the terminated portion of the Transaction were the sole Affected Transaction. “Repurchase Event” means that (i) any Convertible Notes are repurchased or redeemed (whether pursuant to [Section 15.02] of the Indenture or otherwise) by Counterparty or any of its subsidiaries, (ii) any Convertible Notes are delivered to Counterparty in exchange for delivery of any property or assets of Counterparty or any of its subsidiaries (howsoever described), (iii) any principal of any of the Convertible Notes is repaid prior to the final maturity date of the Convertible Notes (other than upon acceleration of the Convertible Notes described in Section 9(h)(iii)), or (iv) any Convertible Notes are exchanged by or for the confirmation between benefit of the parties hereto regarding Holders (as defined in the Bond Hedge Transaction dated November 6, 2018 (Reference Number(s): [____]Indenture) (the “Bond Hedge Transaction”) or the Bond Hedge Transaction is otherwise cancelled or terminated prior to its expiration thereof for any reasonother securities of Counterparty or any of its Affiliates (or any other property, or any combination thereof) pursuant to any exchange offer or similar transaction; or
(iii) if at provided that any time Dealer receives a Par Value Notice, unless conversion of Convertible Notes pursuant to the Calculation Agent shall have determined that the applicable Par Value Event would not result in the amount terms of the Premium being less than the aggregate par value of the Maximum Amount of Shares following such event (Indenture shall not constitute a “Par Value ATE”); provided that, notwithstanding anything to the contrary in the Agreement, Dealer shall designate an Early Termination Date in respect of a Par Value ATE no later than the anticipated record or other effective date of such event specified in the Par Value NoticeRepurchase Event.
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Additional Termination Events. The occurrence (i) Notwithstanding anything to the contrary in this Confirmation, if an event of any default with respect to Counterparty occurs that results in the acceleration of the following Convertible Notes pursuant to the terms of the Convertible Notes as set forth in Section 6.01 of the Indenture, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to which such Additional Termination Event, (1A) Counterparty shall be deemed to be the sole Affected Party and Party, (2B) the Transaction shall be the sole Affected Transaction; provided that with respect to any of the following Additional Termination Events described in clauses (i) or (ii) below, Dealer may choose to treat one or more parts of the Transaction as the sole Affected Transaction and either to terminate each such part on different days or to calculate the amount owing in connection with such Additional Termination Event by reference to a Share price determined over a period not to exceed 50 Exchange Business Days, and, upon termination of an Affected Transaction, a Transaction with a Number of Warrants equal to the unaffected number of Warrants (C) Dealer shall be treated for all purposes as the Transaction, which shall remain in full force and effect and, for the avoidance of doubt, shall be subject to all relevant provisions and adjustments as if an Additional Termination Event had not occurred; and, provided further, that, without limiting the foregoing, notwithstanding the provisions of Section 6(b)(iv) of the Agreement, Counterparty shall also have the right party entitled to designate an Early Termination Date with respect pursuant to Section 6(b) of the Additional Termination Event described in clause Agreement.
(ii) below if Promptly (and in any event within five Scheduled Trading Days) following any Repurchase Event (as defined below), Counterparty may notify Dealer in writing of such Repurchase Event and the number of Convertible Notes subject to such Repurchase Event (any such notice, a “Repurchase Notification”); provided that any “Repurchase Notification” delivered to Dealer pursuant to the Base Call Option Confirmation shall be deemed to be a Repurchase Notification pursuant to this Confirmation and the terms of such Repurchase Notification shall apply, mutatis mutandis, to this Confirmation. Notwithstanding anything to the contrary in this Confirmation, the receipt by Dealer from Counterparty of (x) provides any Repurchase Notification, within the applicable time period set forth in the preceding sentence, and (y) a certificate that includes a written representation that and warranty by Counterparty is notthat, as of the date of such certificateRepurchase Notification, aware Counterparty is not in possession of any material non-public information concerning itself regarding Counterparty or the Shares (where “material” Shares, shall have the meaning set forth constitute an Additional Termination Event as provided in paragraph 5(o) below) and (y) satisfies such other conditions, including making additional representations and warranties, relating to securities law and other issues as requested by the Calculation Agent:
(i) if at any time Dealer is unable, or reasonably determines that it is inadvisable, to hedge its obligations pursuant to this Transaction in the public market without registration under the Securities Act or as a result paragraph. Upon receipt of any legal, regulatory or self-regulatory requirements or such Repurchase Notification and the related policies written representation and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer);
(ii) if at any time an Early Termination Date is designated with respect to the transaction relating to the Convertible Notes described in the confirmation between the parties hereto regarding the Bond Hedge Transaction dated November 6, 2018 (Reference Number(s): [____]) (the “Bond Hedge Transaction”) or the Bond Hedge Transaction is otherwise cancelled or terminated prior to its expiration for any reason; or
(iii) if at any time Dealer receives a Par Value Notice, unless the Calculation Agent shall have determined that the applicable Par Value Event would not result in the amount of the Premium being less than the aggregate par value of the Maximum Amount of Shares following such event (a “Par Value ATE”); provided that, notwithstanding anything to the contrary in the Agreementwarranty, Dealer shall promptly designate an Early Termination Date in respect of a Par Value ATE no later than the anticipated record or other effective date of such event specified in the Par Value Notice.Exchange Business Day following receipt
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Additional Termination Events. The occurrence of any Each of the following shall will constitute an Additional Termination Event with respect to which (1) Counterparty shall be the sole Affected Party and (2) the Transaction shall be the sole Affected Transaction; provided that with respect to any of the following Additional Termination Events described in clauses (i) or (ii) below, Dealer may choose to treat one or more parts of the Transaction as the sole Affected Transaction and either to terminate each such part on different days or to calculate the amount owing in connection with such Additional Termination Event by reference to a Share price determined over a period not to exceed 50 Exchange Business Days, and, upon termination of an Affected Transaction, a Transaction with a Number of Warrants equal to the unaffected number of Warrants shall be treated for all purposes as the Transaction, which shall remain in full force and effect and, for the avoidance of doubt, shall be subject to all relevant provisions and adjustments as if an Additional Termination Event had not occurred; and, provided further, that, without limiting the foregoing, notwithstanding the provisions of Section 6(b)(iv) of the Agreement, Counterparty shall also have the right to designate an Early Termination Date with respect to the Additional Termination Event described in clause (ii) below if Counterparty (x) provides a certificate that includes a representation that Counterparty is not, as of the date of such certificate, aware of any material non-public information concerning itself or the Shares (where “material” shall have the meaning set forth in paragraph 5(o) below) and (y) satisfies such other conditions, including making additional representations and warranties, relating to securities law and other issues as requested by the Calculation AgentEvent:
(i) if at any time Dealer is unable, or reasonably determines Party A receives notice from the Credit Support Provider in respect of Party B that it is inadvisableintends to revoke the Credit Support Document with respect to Party B provided in favor of Party A. For the purposes of the foregoing Additional Termination Event, to hedge its obligations pursuant to this Transaction in the public market without registration under the Securities Act or as a result of any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer);Affected Party will be Party B.
(ii) if at At any time an Early Termination Date is designated time, the rating issued by Standard & Poor’s Rating Services, a division of The McGraw Hill Companies, Inc. (“S&P”) or Xxxxx’x Investors Service, Inc. (“Moody’s ”) with respect to the transaction relating long-term unsecured, unsubordinated debt securities and the short-term unsecured debt securities (together “Debt Securities”) of Party A or, with respect to Party B, the Convertible Notes described Credit Support Provider of Party B (in which case the applicable party, as between Party A or Party B, will be the Affected Party) is below “A-“ and “A-1,” in the confirmation between the parties hereto regarding the Bond Hedge Transaction dated November 6case of S&P, 2018 (Reference Number(s): [____]) (the or is below “Bond Hedge TransactionA3” and “P-1”) or the Bond Hedge Transaction is otherwise cancelled or terminated prior to its expiration for any reason; or
(iii) if at any time Dealer receives a Par Value Notice, unless the Calculation Agent shall have determined that the applicable Par Value Event would not result in the amount case of the Premium being less than the aggregate par value of the Maximum Amount of Shares following such event Moody’s, or ceases to be rated by Moody’s or S&P (a “Par Value ATERatings Event”); provided that, notwithstanding anything then Party B, where Party A is the Affected Party, or Party A, where the Party B is the Affected Party, (such party, as the case may be, the Non-Affected Party), will have the right, (A) by written notice, to request that the Affected Party transfer all its rights and obligations under all Affected Transactions within 30 days after the date of effectiveness of such notice to a third party acceptable to the contrary Non-Affected Party, the Debt Securities of which third party are rated “AA-” and “A-l” or above in the Agreementcase of S&P and “Aa3” and “P-l” or above in the case of Moody’s, Dealer shall designate (B) to give notice of an Early Termination Date in respect of all Affected Transactions or (C) to take neither of the actions specified in clauses (A) and (B) of this paragraph, in which case such failure or delay on the part of the Non-Affected Party in exercising any of such rights) shall not operate as a Par Value ATE no later waiver thereof nor preclude any further exercise of such rights. The Affected Party will pay all reasonable costs (including all legal fees) incurred by the Non-Affected Party in connection with any transfer effected pursuant to Part 1(g)(ii)(A) above. In the event a transfer as requested by the Non-Affected Party pursuant to clause (A) of this paragraph has not been effected with respect to all Affected Transactions within 30 days after the date of effectiveness of the notice described therein, then the Non-Affected Party may, provided the Ratings Event is still continuing, designate a day not earlier than the anticipated record day such notice is effective under this Agreement as an Early Termination Date in respect of all Affected Transactions. If one of the foregoing credit rating agencies ceases to be in the business of rating Debt Securities and such business is not continued by a successor or other effective date assign of such event agency (the “Discontinued Agency”), Party A and Party B shall jointly (1) select a nationally-recognized credit rating agency in substitution thereof and (2) agree on the rating level issued by such substitute agency that is equivalent to the ratings specified herein of the Discontinued Agency, whereupon such substitute agency and equivalent rating shall replace the Discontinued Agency and the rating level thereof for the purposes of this Agreement. If at any time all of the agencies specified herein with respect to a party have become Discontinued Agencies and Party A and Party B have not previously agreed in good faith on at least one agency and equivalent rating in substitution for each Discontinued Agency and the Par Value Noticeapplicable rating thereof, the Ratings Event provisions of this Part l(g)(ii) shall cease to apply to the parties.
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Samples: Master Agreement (Access Integrated Technologies Inc)
Additional Termination Events. The occurrence (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of any which a Notice of Conversion that is effective as to Counterparty has been delivered by the relevant converting Holder:
(A) Counterparty shall, within seven Scheduled Trading Days of the following Conversion Date for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”), and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i)[, and any Early Conversion Notice delivered to Dealer pursuant to the Base Call Option Confirmation shall be deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]36; provided that any such Early Conversion Notice shall contain a written representation by Counterparty to Dealer that (i) Counterparty is not, on the date of the Early Conversion Notice, in possession of any material non-public information with respect to Counterparty or the Shares or (ii) such decision to terminate has been made pursuant to a plan in compliance with the requirements of Rule 10b5-1 entered into by Counterparty at a time when Counterparty was not in possession of any material non-public information with respect to Counterparty or the Shares; provided further that the provisions of this Section 9(i)(i) shall not apply to any Affected Convertible Note (i) with respect to which Counterparty has elected the “Exchange in Lieu of Conversion” option pursuant to Section [__] of the Supplemental Indenture and (ii) that has been accepted by the designated financial institution pursuant to Section [__] of the Supplemental Indenture, except to the extent that Counterparty notifies Dealer, within five Scheduled Trading Days of the then applicable conversion settlement date determined pursuant to Section [__] of the Supplemental Indenture, that (x) such financial institution has failed to pay or deliver, as the case may be, the consideration due upon conversion of such Affected Convertible Note, or (y) such Affected Convertible Note is subsequently resubmitted to Counterparty for conversion in accordance with the terms of the Supplemental Indenture; 36 Include in Additional Call Option Confirmation only.
(B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be no earlier than the later of (x) one Scheduled Trading Day following the Conversion Date for such Early Conversion and (y) the date on which Counterparty provides the written notice described in Section 9(i)(i)(A) above) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes [minus the “Affected Number of Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Affected Convertible Notes]37 and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction; provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable Percentage, multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid (if any) to the Holder (as such term is defined in the Supplemental Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note and (ii) the number of Shares delivered (if any) to the Holder (as such term is defined in the Supplemental Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note (including for such purposes taking into account any applicable adjustments to the Conversion Rate pursuant to Section [__]38 of the Supplemental Indenture), multiplied by the Applicable Limit Price, minus (y) USD 1,000;
(D) Counterparty shall notify Dealer (which notice may, for the avoidance of doubt, be by email) of the amount of cash, if any, paid to the Holder and the number of Shares, if any, delivered to the Holder, in each case as described in clause (3) of the foregoing Section 9(i)(i)(C), prior to relevant Early Termination Date;
(E) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and
(F) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options.
(ii) Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section [__]39 of the Supplemental Indenture and such event of default results in the Convertible Notes being accelerated and declared due and payable, then such event of default shall constitute an Additional Termination Event applicable to the Transaction 37 Include in Additional Call Option Confirmation only. 38 Include cross-reference to the Supplemental Indenture section with make-whole adjustments to the Conversion Rate. 39 Include cross-reference to the Supplemental Indenture section related to Event of Default. and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party and Party, (2B) the Transaction shall be the sole Affected TransactionTransaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement (which Early Termination Date shall be on or as promptly as reasonably practicable after Dealer becomes aware of the occurrence of such acceleration).
(iii) Within seven Scheduled Trading Days following any Repayment Event (as defined below), Counterparty may, at its option, notify Dealer of such Repayment Event and the aggregate principal amount of Convertible Notes subject to such Repayment Event (any such notice, a “Repayment Notice”); provided that Counterparty shall timely provide a Repayment Notice in connection with any redemption of the Convertible Notes pursuant to the Supplemental Indenture. Any Repayment Notice shall contain a written representation by Counterparty to Dealer that (i) Counterparty is not, on the date of such such Repayment Notice, in possession of any material non-public information with respect to any of Counterparty or the following Additional Termination Events described in clauses (i) Shares or (ii) below, Dealer may choose such election to treat one or more parts of the Transaction as the sole Affected Transaction and either to terminate each such part on different days or to calculate the amount owing in connection with such Additional Termination Event by reference deliver a Repayment Notice has been made pursuant to a Share price determined over plan in compliance with the requirements of Rule 10b5-1 entered into by Counterparty at a period time when Counterparty was not in possession of any material non-public information with respect to exceed 50 Exchange Business Days, and, upon termination of an Affected Transaction, a Transaction with a Number of Warrants equal Counterparty or the Shares. [Any Repayment Notice delivered to Dealer pursuant to the unaffected number of Warrants Base Call Option Confirmation shall be treated for all purposes as deemed to be a Repayment Notice pursuant to this Confirmation and the Transactionterms of such Repayment Notice shall apply, which mutatis mutandis, to this Confirmation]40. The receipt by Dealer from Counterparty of any Repayment Notice shall remain in full force and effect and, for the avoidance of doubt, shall be subject to all relevant provisions and adjustments as if constitute an Additional Termination Event had not occurred; andas provided in this Section 9(i)(iii). Upon receipt of any such Repayment Notice, provided further, that, without limiting Dealer shall designate an Exchange Business Day following receipt of such Repayment Notice (which Exchange Business Day shall be on or as promptly as reasonably practicable after the foregoing, notwithstanding later of (x) the provisions of related repurchase settlement date for the relevant Repayment Event and (y) the date on which Counterparty provides the Repayment Notice described in this Section 6(b)(iv9(i)(iii)) of the Agreement, Counterparty shall also have the right to designate as an Early Termination Date with respect to the Additional Termination Event described in clause portion of the Transaction corresponding to a number of Options (iithe “Repayment Options”) below if Counterparty equal to the lesser of (A) [(x)] the aggregate principal amount of such Convertible Notes specified in such Repayment Notice, divided by USD 1,000, minus (y) provides a certificate the number of “Repayment Options” (as defined in the Base Call Option Confirmation), if any, that includes a representation that Counterparty is notrelate to such Convertible Notes]41, and (B) the Number of Options as of the date Dealer designates such Early Termination Date and, as of such certificatedate, aware the Number of Options shall be reduced by the number of Repayment Options. Any payment hereunder with respect to such termination (the “Repayment Unwind Payment”) shall be calculated pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the number of Repayment Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination Event, (3) no adjustments to the Conversion Rate have occurred pursuant to an Excluded Provision, (4) the corresponding Convertible Notes remain outstanding, (5) the relevant Repayment Event and any material non-public information concerning itself conversions, adjustments, agreements, payments, deliveries or the Shares (where “material” shall have the meaning set forth in paragraph 5(o) below) acquisitions by or on behalf of Counterparty leading thereto had not occurred and (y6) satisfies such other conditions, including making additional representations and warranties, relating to securities law and other issues as requested by the Calculation Agent:
terminated portion of the Transaction were the sole Affected Transaction. “Repayment Event” means that (i) if at any time Dealer is unable, Convertible Notes are repurchased or reasonably determines that it is inadvisable, to hedge its obligations pursuant to this Transaction redeemed (whether in the public market without registration under the Securities Act connection with or as a result of a fundamental change, howsoever defined, or in connection with a redemption of the Convertible Notes pursuant to the Supplemental Indenture or for any legalother reason) by Counterparty or any of its subsidiaries, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer);
(ii) if at any time an Early Termination Date is designated with respect Convertible Notes are delivered to the transaction relating to Counterparty in exchange for delivery of any property or assets of Counterparty or any of its subsidiaries (howsoever 40 Include for Additional Call Option Confirmation. 41 Include for Additional Call Option Confirmation. described), (iii) any principal of any of the Convertible Notes described is repaid prior to the final maturity date of the Convertible Notes (other than as a result of an acceleration of the Convertible Notes that results in an Additional Termination Event pursuant to Section 9(i)(ii)) or (iv) any Convertible Notes are exchanged by or for the benefit of the “Holders” (as defined in the confirmation between the parties hereto regarding the Bond Hedge Transaction dated November 6, 2018 (Reference Number(s): [____]Supplemental Indenture) (the “Bond Hedge Transaction”) or the Bond Hedge Transaction is otherwise cancelled or terminated prior to its expiration thereof for any reason; or
other securities of Counterparty or any of its subsidiaries (iiior any other property, or any combination thereof) if at pursuant to any time Dealer receives a Par Value Notice, unless the Calculation Agent shall have determined that the applicable Par Value Event would not result in the amount of the Premium being less than the aggregate par value of the Maximum Amount of Shares following such event (a “Par Value ATE”); provided that, notwithstanding exchange offer or similar transaction Notwithstanding anything to the contrary in the AgreementEquity Definitions, if, as a result of an Extraordinary Event, the Transaction would be cancelled or terminated (whether in whole or in part) pursuant to Article 12 of the Equity Definitions, an Additional Termination Event (with the Transaction (or portion thereof) being the Affected Transaction, Counterparty being the sole Affected Party and Dealer shall being the party entitled to designate an Early Termination Date pursuant to Section 6(h) of the Agreement) shall be deemed to occur, and, in respect lieu of a Par Value ATE no later than Sections 12.7, 12.8 and 12.9 of the anticipated record or other effective date Equity Definitions, Section 6 of the Agreement shall apply to such event specified in the Par Value NoticeAffected Transactions.
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Additional Termination Events. The occurrence (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of any which a “Notice of Conversion” (as defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant converting Holder:
(A) Counterparty shall, within five Scheduled Trading Days of the following “Conversion Date” (as defined in the Indenture) for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”) and the anticipated settlement date, and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i);
(B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be on or as promptly as reasonably practicable after the related conversion settlement date for such Early Conversion) with respect to which the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected 1 Possible language if relevant: [Role of Agent. As a broker-dealer registered with the Securities and Exchange Commission, [Agent Name] in its capacity as Agent will be responsible for (i) effecting the Transaction, (ii) issuing all required confirmations and statements to Dealer and Counterparty, (iii) maintaining books and records relating to the Transaction as required by Rules 17a-3 and 17a-4 under the Exchange Act and (iv) unless otherwise requested by Counterparty, receiving, delivering, and safeguarding Counterparty’s funds and any securities in connection with the Transaction, in compliance with Rule 15c3-3 under the Exchange Act. [Agent Name] is acting in connection with the Transaction solely in its capacity as Agent for Dealer and Counterparty pursuant to instructions from Dealer and Counterparty. [Agent Name] shall have no responsibility or personal liability to Dealer or Counterparty arising from any failure by Dealer or Counterparty to pay or perform any obligations hereunder, or to monitor or enforce compliance by Dealer or Counterparty with any obligation hereunder, including without limitation, any obligations to maintain collateral. Each of Dealer and Counterparty agrees to proceed solely against the other to collect or recover any securities or monies owing to it in connection with or as a result of the Transaction. [Agent Name] shall otherwise have no liability in respect of the Transaction, except for its gross negligence or willful misconduct in performing its duties as Agent.] Convertible Notes and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction (and, for the avoidance of doubt, the provisions of Section 10(l) shall apply to any amount that is payable by Dealer to Counterparty pursuant to this Section 10(h)(i)(C) as if Counterparty were not the Affected Party); provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable Percentage, multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion thereof and (ii) the number of Shares delivered (if any) to the Holder of an Affected Convertible Note upon conversion thereof, multiplied by the Applicable Limit Price on the settlement date for the cash to be paid and/or the Shares to be delivered to the Holders (as defined in the Indenture) of such Affected Convertible Note, minus (y) USD 1,000;
(D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and
(E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options.
(ii) Notwithstanding anything to the contrary in this Confirmation, if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the Indenture and such event of default results in the Convertible Notes being accelerated and declared due and payable, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party and Party, (2B) the Transaction shall be the sole Affected Transaction; provided that Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement (which Early Termination Date shall be on or as promptly as reasonably practicable after Dealer becomes aware of the occurrence of such acceleration).
(iii) Within five Scheduled Trading Days following any Repayment Event (as defined below) with respect to any Convertible Notes (the “Repayment Event Notes”), Counterparty shall notify Dealer of such Repayment Event and the aggregate principal amount of Convertible Notes subject to such Repayment Event (any such notice, a “Repayment Notice”); provided that any such Repayment Notice shall contain an acknowledgement by Counterparty of its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the following Additional Termination Events described Exchange Act and the rules and regulations thereunder, in clauses (i) or (ii) below, Dealer may choose to treat one or more parts respect of the Transaction as the sole Affected Transaction and either to terminate each delivery of such part on different days or to calculate the amount owing in connection with such Additional Termination Event Repayment Notice. The receipt by reference to a Share price determined over a period not to exceed 50 Exchange Business Days, and, upon termination Dealer from Counterparty of an Affected Transaction, a Transaction with a Number of Warrants equal to the unaffected number of Warrants any Repayment Notice shall be treated for all purposes as the Transaction, which shall remain in full force and effect and, for the avoidance of doubt, shall be subject to all relevant provisions and adjustments as if constitute an Additional Termination Event had not occurred; andas provided in this Section 10(h)(iii). Upon receipt of any such Repayment Notice, provided further, that, without limiting Dealer shall designate an Exchange Business Day following receipt of such Repayment Notice (which Exchange Business Day shall be on or as promptly as reasonably practicable after the foregoing, notwithstanding related repurchase settlement date for the provisions of Section 6(b)(ivrelevant repayment event) of the Agreement, Counterparty shall also have the right to designate as an Early Termination Date with respect to the Additional Termination Event described portion of the Transaction corresponding to a number of Options (the “Repayment Options”) equal to the lesser of (A) the aggregate principal amount of such Convertible Notes specified in clause such Repayment Notice, divided by USD 1,000, and (iiB) below if Counterparty (x) provides a certificate that includes a representation that Counterparty is not, the Number of Options as of the date Dealer designates such Early Termination Date and, as of such certificatedate, aware the Number of any material non-public information concerning itself or the Shares (where “material” Options shall have the meaning set forth in paragraph 5(o) below) and (y) satisfies such other conditions, including making additional representations and warranties, relating to securities law and other issues as requested be reduced by the Calculation Agent:
number of Repayment Options. Any payment hereunder with respect to such termination (ithe “Repayment Unwind Payment”) if at any time Dealer is unable, or reasonably determines that it is inadvisable, to hedge its obligations shall be calculated pursuant to this Transaction in Section 6 of the public market without registration under the Securities Act or Agreement as a result of any legal, regulatory or self-regulatory requirements or related policies and procedures if (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer);
(ii1) if at any time an Early Termination Date is had been designated with respect to the transaction relating to the Convertible Notes described in the confirmation between the parties hereto regarding the Bond Hedge Transaction dated November 6, 2018 (Reference Number(s): [____]) (the “Bond Hedge Transaction”) or the Bond Hedge Transaction is otherwise cancelled or terminated prior to its expiration for any reason; or
(iii) if at any time Dealer receives a Par Value Notice, unless the Calculation Agent shall have determined that the applicable Par Value Event would not result in the amount of the Premium being less than the aggregate par value of the Maximum Amount of Shares following such event (a “Par Value ATE”); provided that, notwithstanding anything to the contrary in the Agreement, Dealer shall designate an Early Termination Date in respect of a Par Value ATE Transaction having terms identical to the Transaction and a Number of Options equal to the number of Repayment Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination Event, (3) no later than adjustments to the anticipated record Conversion Rate have occurred pursuant to an Excluded Provision, (4) the corresponding Convertible Notes remain outstanding, (5) the relevant Repayment and any conversions, adjustments, agreements, payments, deliveries or other effective date acquisitions by or on behalf of such event specified in Counterparty leading thereto had not occurred and (6) the Par Value Noticeterminated portion of the Transaction were the sole Affected Transaction.
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Additional Termination Events. The occurrence (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of any which Counterparty has delivered an Early Unwind Notice (as defined below):
(A) the giving of the following such Early Unwind Notice shall constitute an Additional Termination Event as provided in this clause (i); provided that any such Early Unwind Notice shall contain an acknowledgment by Counterparty of its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act and the rules and regulations thereunder, in respect of the delivery of such Early Unwind Notice; provided further that the provisions of this Section 10(i)(i) shall not apply to any Affected Convertible Note (i) with respect to which Counterparty has elected the “Exchange in Lieu of Conversion” option pursuant to Section 14.12 of the Indenture and (1ii) that has been accepted by the designated financial institution pursuant to Section 14.12 of the Indenture, except to the extent that Counterparty notifies Dealer, within ten Scheduled Trading Days of the then applicable conversion settlement date determined pursuant to Section 14.02(c) of the Indenture, that (x) such financial institution has failed to pay or deliver, as the case may be, the consideration due upon conversion of such Affected Convertible Note, or (y) such Affected Convertible Note is subsequently resubmitted to Counterparty for Early Conversion in accordance with the terms of the Indenture;
(B) upon receipt of any such Early Unwind Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be on or as promptly as reasonably practicable after the related conversion settlement date for such Early Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes (as defined below) and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction (and, for the avoidance of doubt, the provisions of Section 10(m) shall apply to any amount that is payable by Dealer to Counterparty pursuant to this Section 10(i)(C) as if Counterparty were not the Affected Party);
(D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and
(E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options.
(ii) Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the Indenture and such event of default results in the Convertible Notes being accelerated and declared due and payable, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party and Party, (2B) the Transaction shall be the sole Affected TransactionTransaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement (which Early Termination Date shall be on or as promptly as reasonably practicable after Dealer becomes aware of the occurrence of such acceleration).
(iii) Within five Scheduled Trading Days following any Repayment Event (as defined below), Counterparty may notify Dealer of such Repayment Event and the aggregate principal amount of Convertible Notes subject to such Repayment Event (any such notice, a “Repayment Notice”); provided that with respect to any such Repayment Notice shall contain an acknowledgement by Counterparty of its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the following Additional Termination Events described Exchange Act and the rules and regulations thereunder, in clauses (i) or (ii) below, Dealer may choose to treat one or more parts respect of the Transaction delivery of such Repayment Notice and shall remake the representation set forth in Section 8(f) as of the sole Affected Transaction and either to terminate each date of such part on different days or to calculate the amount owing in connection with such Additional Termination Event Repayment Notice. The receipt by reference to a Share price determined over a period not to exceed 50 Exchange Business Days, and, upon termination Dealer from Counterparty of an Affected Transaction, a Transaction with a Number of Warrants equal to the unaffected number of Warrants any Repayment Notice shall be treated for all purposes as the Transaction, which shall remain in full force and effect and, for the avoidance of doubt, shall be subject to all relevant provisions and adjustments as if constitute an Additional Termination Event had not occurred; andas provided in this Section 10(i)(iii). Upon receipt of any such Repayment Notice, provided further, that, without limiting Dealer shall designate an Exchange Business Day following receipt of such Repayment Notice (which Exchange Business Day shall be on or as promptly as reasonably practicable after the foregoing, notwithstanding related repurchase settlement date for the provisions of Section 6(b)(ivrelevant repayment event) of the Agreement, Counterparty shall also have the right to designate as an Early Termination Date with respect to the Additional Termination Event described portion of the Transaction corresponding to a number of Options (the “Repayment Options”) equal to the lesser of (A) the aggregate principal amount of such Convertible Notes specified in clause such Repayment Notice, divided by USD 1,000, and (iiB) below if Counterparty (x) provides a certificate that includes a representation that Counterparty is not, the Number of Options as of the date Dealer designates such Early Termination Date and, as of such certificatedate, aware the Number of any material non-public information concerning itself or the Shares (where “material” Options shall have the meaning set forth in paragraph 5(o) below) and (y) satisfies such other conditions, including making additional representations and warranties, relating to securities law and other issues as requested be reduced by the Calculation Agent:
number of Repayment Options. Any payment hereunder with respect to such termination (ithe “Repayment Unwind Payment”) if at any time Dealer is unable, or reasonably determines that it is inadvisable, to hedge its obligations shall be calculated pursuant to this Transaction in Section 6 of the public market without registration under the Securities Act or Agreement as a result of any legal, regulatory or self-regulatory requirements or related policies and procedures if (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer);
(ii1) if at any time an Early Termination Date is had been designated with respect to the transaction relating to the Convertible Notes described in the confirmation between the parties hereto regarding the Bond Hedge Transaction dated November 6, 2018 (Reference Number(s): [____]) (the “Bond Hedge Transaction”) or the Bond Hedge Transaction is otherwise cancelled or terminated prior to its expiration for any reason; or
(iii) if at any time Dealer receives a Par Value Notice, unless the Calculation Agent shall have determined that the applicable Par Value Event would not result in the amount of the Premium being less than the aggregate par value of the Maximum Amount of Shares following such event (a “Par Value ATE”); provided that, notwithstanding anything to the contrary in the Agreement, Dealer shall designate an Early Termination Date in respect of a Par Value ATE Transaction having terms identical to the Transaction and a Number of Options equal to the number of Repayment Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination Event, (3) no later than adjustments to the anticipated record or other effective date of such event specified in Conversion Rate have occurred pursuant to an Excluded Provision, (4) the Par Value Notice.corresponding Convertible Notes remain outstanding, (5) the
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Additional Termination Events. The occurrence of any of the following shall constitute an Additional Termination Event with respect to which (1) Counterparty shall be the sole Affected Party and (2) the Transaction shall be the sole Affected Transaction; provided that with respect to any of the following Additional Termination Events described in clauses (i) or (ii) below, Dealer may choose to treat one or more parts of the Transaction as the sole Affected Transaction and either to terminate each such part on different days or to calculate the amount owing in connection with such Additional Termination Event by reference to a Share price determined over a period not to exceed 50 Exchange Business Days, and, upon termination of an Affected Transaction, a Transaction with a Number of Warrants equal to the unaffected number of Warrants shall be treated for all purposes as the Transaction, which shall remain in full force and effect and, for the avoidance of doubt, shall be subject to all relevant provisions and adjustments as if an Additional Termination Event had not occurred; and, provided further, that, without limiting the foregoing, notwithstanding the provisions of under Section 6(b)(iv5(b)(v) of the Agreement:
(a) (i) MLI is no longer able, Counterparty shall also have the right or it becomes more costly, to designate an Early Termination Date borrow (or maintain a borrowing of) Shares in connection with respect to the Additional Termination Event described in clause this Transaction, (ii) below if MLI notifies Counterparty of such inability or increased cost; and (iii) on or before the fifth Exchange Business Day following such notice, Counterparty fails to provide, either directly or indirectly, for a loan to MLI of either (x) provides a certificate that includes a representation that Counterparty is notthe Pledged Shares, as of pursuant to, and in accordance with, the date of such certificate, aware of any material non-public information concerning itself Securities Loan Agreement or the Shares (where “material” shall have the meaning set forth in paragraph 5(o) below) and (y) satisfies Shares (other than the Pledged Shares) that are freely tradable in an amount equal to the Number of Shares, upon terms consistent with then-applicable law. In the event that such an agreement is executed and the Pledged Shares or such other conditionsShares so borrowed, including making additional representations MLI shall adjust the terms of this Transaction accordingly (and warrantiesin its sole discretion) taking into account the costs incurred by MLI in borrowing (or maintaining a borrowing of) the Number of Shares.
(b) At any time after the loan of the Pledged Shares by Counterparty to MLI pursuant to the Securities Loan Agreement, Counterparty demands the return of the Pledged Shares pursuant to the Securities Loan Agreement and, at the time of such demand, MLI is not able, or it is more costly, to borrow (or maintain a borrowing of) Shares in connection with this Transaction.
(c) A registration statement, accompanied by Satisfactory Ancillary Documents, covering the delivery of the Loaned Shares (as defined in the Securities Loan Agreement) by MLI in connection with its hedging activities relating to securities law and other issues as requested by this Transaction, is not effective within 185 days from the Calculation Agent:
(i) if at any time Dealer is unable, or reasonably determines that it is inadvisable, to hedge its obligations pursuant to Trade Date of this Transaction in the public market without registration under the Securities Act or as a result of any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer);
(ii) if at any time an Early Termination Date is designated with respect to the transaction relating to the Convertible Notes described in the confirmation between the parties hereto regarding the Bond Hedge Transaction dated November 6, 2018 (Reference Number(s): [____]) (the “Bond Hedge Transaction”) or the Bond Hedge Transaction is otherwise cancelled or terminated prior to its expiration for any reason; or
(iii) if at any time Dealer receives a Par Value Notice, unless the Calculation Agent shall have determined that the applicable Par Value Event would not result in the amount of the Premium being less than the aggregate par value of the Maximum Amount of Shares following such event (a “Par Value ATE”); provided that, notwithstanding anything to the contrary in the Agreement, Dealer shall designate an Early Termination Date in respect of a Par Value ATE no later than the anticipated record or other effective date of such event specified in the Par Value Notice.
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Samples: Confirmation of Otc Transaction (Ixc Internet Services Inc)
Additional Termination Events. The occurrence (i) Notwithstanding anything to the contrary in this Confirmation, if an event of any default with respect to Counterparty occurs under the terms of the following Convertible Notes as set forth in Section 6.01 of the Indenture that results in an acceleration of the Convertible Notes pursuant to the terms of the Indenture, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to which such Additional Termination Event, (1A) Counterparty shall be deemed to be the sole Affected Party and Party, (2B) the Transaction shall be the sole Affected Transaction; Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement.
(ii) Promptly following any repurchase and cancellation of Convertible Notes, Counterparty shall notify Dealer in writing of such repurchase and cancellation and the number of Convertible Notes so repurchased and cancelled (any such notice, a “Repurchase Notice”). Notwithstanding anything to the contrary in this Confirmation, the receipt by Dealer from Counterparty of (x) any Repurchase Notice, within the applicable time period set forth in the preceding sentence, and (y) a written representation and warranty by Counterparty that, as of the date of such Repurchase Notice, Counterparty is not in possession of any material nonpublic information regarding Counterparty or the Shares, shall constitute an Additional Termination Event as provided that in this Section 9(h)(ii). Upon receipt of any such Repurchase Notice and the related written representation and warranty, Dealer shall promptly designate an Exchange Business Day following receipt of such Repurchase Notice (which in no event shall be earlier than the related settlement date for such Convertible Notes) as an Early Termination Date with respect to any the portion of this Transaction corresponding to a number of Options (the “Repurchase Options”) equal to the lesser of (A) the number of such Convertible Notes specified in such Repurchase Notice [minus the number of “Repurchase Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Convertible Notes]13 and (B) the Number of Options as of the following date Dealer designates such Early Termination Date and, as of such date, the Number of Options shall be reduced by the number of Repurchase Options. Any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to this Transaction and a Number of Options equal to the number of Repurchase Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination Events described in clauses Event and (i3) or (ii) below, Dealer may choose to treat one or more parts the terminated portion of the Transaction were the sole Affected Transaction.
(iii) Notwithstanding anything to the contrary in this Confirmation, the receipt by Dealer from Counterparty, within the applicable time period set forth opposite “Notice of Exercise” in Section 2, of any Notice of Exercise in respect of Options that relate to Convertible Notes as to which additional Shares would be added to the “Conversion Rate” (as defined in the Indenture) pursuant to Section 14.03 of the Indenture in connection with a “Make-Whole Fundamental Change” (as defined in the Indenture) (a “Make-Whole Notice”) shall constitute an Additional Termination Event as provided in this Section 9(h)(iii). Upon receipt of any such Notice of Exercise, Dealer shall designate an Exchange Business Day following such Additional Termination Event (which Exchange Business Day shall in no event be earlier than the related settlement date for such Convertible Notes) as an Early Termination Date with respect to the portion of the Transaction corresponding to a number of Options (the “Make-Whole Conversion Options”) equal to the lesser of (A) the number of such Options specified in such Notice of Exercise [minus the number of “Make-Whole Conversion Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Convertible Notes]14 and (B) the Number of Options as of the date Dealer designates such Early Termination Date and, as of such date, the Number of Options shall be reduced by the number of Make-Whole Conversion Options. Any payment hereunder with respect to such termination (the “Make-Whole Unwind Payment”) shall be calculated pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the number of Make-Whole Conversion Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (3) the terminated portion of the Transaction were the sole Affected Transaction and either to terminate each such part on different days or to calculate the amount owing in connection with such Additional Termination Event by reference to a Share price determined over a period not to exceed 50 Exchange Business Days, and, upon termination of an Affected Transaction, a Transaction with a Number of Warrants equal to the unaffected number of Warrants shall be treated for all purposes as the Transaction, which shall remain in full force and effect (and, for the avoidance of doubt, shall be subject in determining the amount payable pursuant to all relevant provisions and adjustments as if an Additional Termination Event had not occurred; and, provided further, that, without limiting the foregoing, notwithstanding the provisions of Section 6(b)(iv) 6 of the Agreement, Counterparty shall also have the right to designate an Early Termination Date with respect to the Additional Termination Event described in clause (ii) below if Counterparty (x) provides a certificate that includes a representation that Counterparty is not, as of the date of such certificate, aware of any material non-public information concerning itself or the Shares (where “material” shall have the meaning set forth in paragraph 5(o) below) and (y) satisfies such other conditions, including making additional representations and warranties, relating to securities law and other issues as requested by the Calculation Agent:
(i) if at any time Dealer is unable, or reasonably determines that it is inadvisable, to hedge its obligations pursuant to this Transaction in the public market without registration under the Securities Act or as a result of any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer);
(ii) if at any time an Early Termination Date is designated with respect to the transaction relating to the Convertible Notes described in the confirmation between the parties hereto regarding the Bond Hedge Transaction dated November 6, 2018 (Reference Number(s): [____]) (the “Bond Hedge Transaction”) or the Bond Hedge Transaction is otherwise cancelled or terminated prior to its expiration for any reason; or
(iii) if at any time Dealer receives a Par Value Notice, unless the Calculation Agent shall have determined not take into account any adjustments to the Option Entitlement that result from corresponding adjustments to the applicable Par Value Event would not result “Conversion Rate” (as defined in the amount of the Premium being less than the aggregate par value of the Maximum Amount of Shares following such event (a “Par Value ATE”); provided that, notwithstanding anything Indenture) pursuant to the contrary Section 13 Include in the Agreement, Dealer shall designate an Early Termination Date Additional Call Option Confirmation. 14 Insert in respect of a Par Value ATE no later than the anticipated record or other effective date of such event specified in the Par Value NoticeAdditional Call Option Confirmation only.
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Additional Termination Events. The occurrence (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of any which a “Notice of Conversion” (as defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant converting Holder:
(A) Counterparty may, within five Scheduled Trading Days of the following “Conversion Date” (as defined in the Indenture) for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”) and the anticipated settlement date, and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); provided that any such Early Conversion Notice shall contain a representation and warranty that Counterparty is not, on the date thereof, aware of any material nonpublic information with respect to Counterparty or the Shares, in respect of the delivery of such Early Conversion Notice; provided further that the provisions of this Section 9(h)(i) shall not apply to any Affected Convertible Note (i) with respect to which Counterparty has elected the “Exchange in Lieu of Conversion” option pursuant to Section [14.12] of the Indenture and (1ii) that has been accepted by the designated financial institution pursuant to Section [14.12] of the Indenture, except to the extent that Counterparty notifies Dealer, within ten Scheduled Trading Days of the then applicable conversion settlement date determined pursuant to Section [14.02(c)] of the Indenture, that (x) such financial institution has failed to pay or deliver, as the case may be, the consideration due upon conversion of such Affected Convertible Note, or (y) such Affected Convertible Note is subsequently resubmitted to Counterparty for conversion in accordance with the terms of the Indenture;
(B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be on or as promptly as reasonably practicable after the related conversion settlement date for such Early Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes [minus the “Affected Number of Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Affected Convertible Notes] and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty shall be were the sole Affected Party and (2) the Transaction shall be the sole Affected Transaction; provided that with respect to any of the following such Additional Termination Events described in clauses Event and (iz) or (ii) below, Dealer may choose to treat one or more parts the terminated portion of the Transaction as were the sole Affected Transaction and either to terminate each such part on different days or to calculate the amount owing in connection with such Additional Termination Event by reference to a Share price determined over a period not to exceed 50 Exchange Business Days, and, upon termination of an Affected Transaction, a Transaction with a Number of Warrants equal to the unaffected number of Warrants shall be treated for all purposes as the Transaction, which shall remain in full force and effect (and, for the avoidance of doubt, the provisions of Section 9(l) shall apply to any amount that is payable by Dealer to Counterparty pursuant to this Section 9(h)(i) as if Counterparty were not the Affected Party);
(D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and
(E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options.
(ii) Within five Scheduled Trading Days following any Repurchase Event (as defined below), Counterparty may notify Dealer of such Repurchase Event and the aggregate principal amount of Convertible Notes subject to all relevant provisions such Repurchase Event (any such notice, a “Convertible Notes Repurchase Notice”); provided that any such Convertible Notes Repurchase Notice shall contain a representation and adjustments as if warranty that Counterparty is not, on the date thereof, aware of any material nonpublic information with respect to Counterparty or the Shares, in respect of the delivery of such Convertible Notes Repurchase Notice. The receipt by Dealer from Counterparty of any Convertible Notes Repurchase Notice shall constitute an Additional Termination Event had not occurred; andas provided in this Section 9(h)(ii). Upon receipt of any such Convertible Notes Repurchase Notice, provided further, that, without limiting Dealer shall designate an Exchange Business Day following receipt of such Convertible Notes Repurchase Notice (which Exchange Business Day shall be on or as promptly as reasonably practicable after the foregoing, notwithstanding related repurchase settlement date for the provisions of Section 6(b)(ivrelevant Repurchase Event) of the Agreement, Counterparty shall also have the right to designate as an Early Termination Date with respect to the Additional Termination Event described portion of the Transaction corresponding to a number of Options (the “Repurchase Options”) equal to the lesser of (A) the aggregate principal amount of such Convertible Notes specified in clause such Convertible Notes Repurchase Notice, divided by USD 1,000 [minus (iiy) below the number of Repurchase Options (as defined in the Base Call Option Confirmation), if Counterparty any, that relate to such Convertible Notes], and (xB) provides a certificate that includes a representation that Counterparty is not, the Number of Options as of the date Dealer designates such Early Termination Date and, as of such certificatedate, aware the Number of any material non-public information concerning itself or the Shares (where “material” Options shall have the meaning set forth in paragraph 5(o) below) and (y) satisfies such other conditions, including making additional representations and warranties, relating to securities law and other issues as requested be reduced by the Calculation Agent:
number of Repurchase Options. Any payment hereunder with respect to such termination (ithe “Repurchase Unwind Payment”) if at any time Dealer is unable, or reasonably determines that it is inadvisable, to hedge its obligations shall be calculated pursuant to this Transaction in Section 6 of the public market without registration under the Securities Act or Agreement as a result of any legal, regulatory or self-regulatory requirements or related policies and procedures if (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer);
(ii1) if at any time an Early Termination Date is had been designated with respect to the transaction relating to the Convertible Notes described in the confirmation between the parties hereto regarding the Bond Hedge Transaction dated November 6, 2018 (Reference Number(s): [____]) (the “Bond Hedge Transaction”) or the Bond Hedge Transaction is otherwise cancelled or terminated prior to its expiration for any reason; or
(iii) if at any time Dealer receives a Par Value Notice, unless the Calculation Agent shall have determined that the applicable Par Value Event would not result in the amount of the Premium being less than the aggregate par value of the Maximum Amount of Shares following such event (a “Par Value ATE”); provided that, notwithstanding anything to the contrary in the Agreement, Dealer shall designate an Early Termination Date in respect of a Par Value ATE Transaction having terms identical to the Transaction and a Number of Options equal to the number of Repurchase Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination Event, (3) no later than adjustments to the anticipated record or other effective date of such event specified in the Par Value Notice.Conversion Rate have occurred pursuant to
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Additional Termination Events. The occurrence (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of any which a “Notice of Conversion” (as defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant converting Holder:
(A) Counterparty may, within ten Scheduled Trading Days of the following “Conversion Date” (as defined in the Indenture) for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”) and the anticipated settlement date, and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (g); provided that no such Early Conversion Notice shall be effective unless it contains the representation by Counterparty set forth in Section 8(f) as of the date of such Early Conversion Notice, provided further that the provisions of this Section 10(g)(i) shall not apply to any Affected Convertible Note (i) with respect to which Counterparty has elected the “Exchange in Lieu of Conversion” option pursuant to Section [5.08]39 of the Indenture and (1ii) that has been accepted by the designated financial institution pursuant to Section [5.08]40 of the Indenture, except to the extent that Counterparty notified Dealer, within ten Scheduled Trading Days of the then applicable conversion settlement date determined pursuant to Section [5.02]41 of the Indenture, that (x) such financial institution has failed to pay or deliver, as the case may be, the consideration due upon conversion of such Affected Convertible Note, or (y) such Affected Convertible Note is subsequently resubmitted to Counterparty for conversion in accordance with the terms of the Indenture;
(B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall correspond to a settlement date in respect of the Affected Number of Options (as defined below) that occurs on or as promptly as reasonably practicable after the related conversion settlement date for the Affected Convertible Notes for such Early Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes minus the “Affected Number of Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Affected Convertible Notes and (y) the Number of Options as of the Conversion Date for such Early Conversion; 39 Include cross-reference to Indenture section providing for exchange in lieu of conversion. 40 Include cross-reference to Indenture section providing for exchange in lieu of conversion. 41 Include cross-reference to Indenture section describing conversion procedures.
(C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction (and, for the avoidance of doubt, the provisions of Section 10(k) shall apply to any amount that is payable by Dealer to Counterparty pursuant to this Section 10(g)(i)(C) as if, solely for the purpose of electing the settlement method, Counterparty were not the Affected Party).
(D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding until their final maturity date; and
(E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options.
(ii) Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section [7.01] of the Indenture and such event of default results in the Convertible Notes being accelerated and declared due and payable, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party and Party, (2B) the Transaction shall be the sole Affected TransactionTransaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement (which Early Termination Date shall be on or as promptly as reasonably practicable after Dealer becomes aware of the occurrence of such acceleration).
(iii) Within ten Scheduled Trading Days following any Repayment Event (as defined below), Counterparty may notify Dealer in writing of such Repayment Event, in each case, including the aggregate principal amount of Convertible Notes (the “Repayment Convertible Notes”) subject to such Repayment Event (any such notice, a “Repayment Notice”); provided that with respect to any no such Repayment Notice shall be effective unless it contains the representation by Counterparty set forth in Section 8(f) as of the following Additional Termination Events described in clauses (i) or (ii) below, date of such Repayment Notice [; provided further that any “Repayment Notice” delivered to Dealer may choose to treat one or more parts of the Transaction as the sole Affected Transaction and either to terminate each such part on different days or to calculate the amount owing in connection with such Additional Termination Event by reference to a Share price determined over a period not to exceed 50 Exchange Business Days, and, upon termination of an Affected Transaction, a Transaction with a Number of Warrants equal pursuant to the unaffected number of Warrants Base Call Option Confirmation shall be treated for all purposes as deemed to be a Repayment Notice pursuant to this Confirmation and the Transactionterms of such Repayment Notice shall apply, which mutatis mutandis, to this Confirmation]42. The receipt by Dealer from Counterparty of any Repayment Notice shall remain in full force and effect and, for the avoidance of doubt, shall be subject to all relevant provisions and adjustments as if constitute an Additional Termination Event had not occurred; andas provided in this Section 10(g)(iii). Upon receipt of any such Repayment Notice, provided further, that, without limiting the foregoing, notwithstanding the provisions Dealer shall designate an Exchange Business Day following receipt of Section 6(b)(iv) of the Agreement, Counterparty shall also have the right to designate such Repayment Notice as an Early Termination Date with respect to the Additional Termination Event described in clause (ii) below if Counterparty (x) provides a certificate that includes a representation that Counterparty is not, as portion of the date Transaction corresponding to a number of such certificate, aware of any material non-public information concerning itself or the Shares (where “material” shall have the meaning set forth in paragraph 5(o) below) and (y) satisfies such other conditions, including making additional representations and warranties, relating to securities law and other issues as requested by the Calculation Agent:
(i) if at any time Dealer is unable, or reasonably determines that it is inadvisable, to hedge its obligations pursuant to this Transaction in the public market without registration under the Securities Act or as a result of any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer);
(ii) if at any time an Early Termination Date is designated with respect to the transaction relating to the Convertible Notes described in the confirmation between the parties hereto regarding the Bond Hedge Transaction dated November 6, 2018 (Reference Number(s): [____]) Options (the “Bond Hedge Transaction”) or the Bond Hedge Transaction is otherwise cancelled or terminated prior to its expiration for any reason; or
(iii) if at any time Dealer receives a Par Value Notice, unless the Calculation Agent shall have determined that the applicable Par Value Event would not result Repayment 42 Include in the amount of the Premium being less than the aggregate par value of the Maximum Amount of Shares following such event (a “Par Value ATE”); provided that, notwithstanding anything to the contrary in the Agreement, Dealer shall designate an Early Termination Date in respect of a Par Value ATE no later than the anticipated record or other effective date of such event specified in the Par Value NoticeAdditional Call Option Confirmation only.
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Additional Termination Events. The occurrence (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of any which a “Notice of Conversion” (as defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant converting Holder:
(A) Counterparty may, within ten Scheduled Trading Days of the following “Conversion Date” (as defined in the Indenture) for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”) and the anticipated settlement date, and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); provided that any such Early Conversion Notice shall contain a representation and warranty that Counterparty is not, on the date thereof, aware of any material nonpublic information with respect to Counterparty or the Shares, in respect of the delivery of such Early Conversion Notice; provided further that the provisions of this Section 9(h)(i) shall not apply to any Affected Convertible Note (i) with respect to which Counterparty has elected the “Exchange in Lieu of Conversion” option pursuant to Section [14.12] of the Indenture and (1ii) that has been accepted by the designated financial institution pursuant to Section [14.12] of the Indenture, except to the extent that Counterparty notifies Dealer, within ten Scheduled Trading Days of the then applicable conversion settlement date determined pursuant to Section [14.02(c)] of the Indenture, that (x) such financial institution has failed to pay or deliver, as the case may be, the consideration due upon conversion of such Affected Convertible Note, or (y) such Affected Convertible Note is subsequently resubmitted to Counterparty for conversion in accordance with the terms of the Indenture;
(B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be on or as promptly as reasonably practicable after the related conversion settlement date for such Early Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes [minus the “Affected Number of Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Affected Convertible Notes] and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty shall be were the sole Affected Party and (2) the Transaction shall be the sole Affected Transaction; provided that with respect to any of the following such Additional Termination Events described in clauses Event and (iz) or (ii) below, Dealer may choose to treat one or more parts the terminated portion of the Transaction as were the sole Affected Transaction and either to terminate each such part on different days or to calculate the amount owing in connection with such Additional Termination Event by reference to a Share price determined over a period not to exceed 50 Exchange Business Days, and, upon termination of an Affected Transaction, a Transaction with a Number of Warrants equal to the unaffected number of Warrants shall be treated for all purposes as the Transaction, which shall remain in full force and effect (and, for the avoidance of doubt, the provisions of Section 9(l) shall apply to any amount that is payable by Dealer to Counterparty pursuant to this Section 9(h)(i) as if Counterparty were not the Affected Party);
(D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and
(E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options.
(ii) Within ten Scheduled Trading Days following any Repurchase Event (as defined below), Counterparty may notify Dealer of such Repurchase Event and the aggregate principal amount of Convertible Notes subject to all relevant provisions such Repurchase Event (any such notice, a “Convertible Notes Repurchase Notice”); provided that any such Convertible Notes Repurchase Notice shall contain a representation and adjustments as if warranty that Counterparty is not, on the date thereof, aware of any material nonpublic information with respect to Counterparty or the Shares, in respect of the delivery of such Convertible Notes Repurchase Notice. The receipt by Dealer from Counterparty of any Convertible Notes Repurchase Notice shall constitute an Additional Termination Event had not occurred; andas provided in this Section 9(h)(ii). Upon receipt of any such Convertible Notes Repurchase Notice, provided further, that, without limiting Dealer shall designate an Exchange Business Day following receipt of such Convertible Notes Repurchase Notice (which Exchange Business Day shall be on or as promptly as reasonably practicable after the foregoing, notwithstanding related repurchase settlement date for the provisions of Section 6(b)(ivrelevant Repurchase Event) of the Agreement, Counterparty shall also have the right to designate as an Early Termination Date with respect to the Additional Termination Event described portion of the Transaction corresponding to a number of Options (the “Repurchase Options”) equal to the lesser of (A) the aggregate principal amount of such Convertible Notes specified in clause such Convertible Notes Repurchase Notice, divided by USD 1,000 [minus (iiy) below the number of Repurchase Options (as defined in the Base Call Option Confirmation), if Counterparty any, that relate to such Convertible Notes], and (xB) provides a certificate that includes a representation that Counterparty is not, the Number of Options as of the date Dealer designates such Early Termination Date and, as of such certificatedate, aware the Number of any material non-public information concerning itself or the Shares (where “material” Options shall have the meaning set forth in paragraph 5(o) below) and (y) satisfies such other conditions, including making additional representations and warranties, relating to securities law and other issues as requested be reduced by the Calculation Agent:
number of Repurchase Options. Any payment hereunder with respect to such termination (ithe “Repurchase Unwind Payment”) if at any time Dealer is unable, or reasonably determines that it is inadvisable, to hedge its obligations shall be calculated pursuant to this Transaction in Section 6 of the public market without registration under the Securities Act or Agreement as a result of any legal, regulatory or self-regulatory requirements or related policies and procedures if (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer);
(ii1) if at any time an Early Termination Date is had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the number of Repurchase Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination Event, (3) no adjustments to the transaction relating Conversion Rate have occurred pursuant to an Excluded Provision, (4) the corresponding Convertible Notes remaining outstanding, (5) the relevant Repurchase and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred and (6) the terminated portion of the Transaction were the sole Affected Transaction. “Repurchase Event” means that (i) any Convertible Notes are repurchased or redeemed (whether pursuant to [Section 15.02] of the Indenture or otherwise) by Counterparty or any of its subsidiaries, (ii) any Convertible Notes are delivered to Counterparty in exchange for delivery of any property or assets of Counterparty or any of its subsidiaries (howsoever described), (iii) any principal of any of the Convertible Notes is repaid prior to the final maturity date of the Convertible Notes (other than upon acceleration of the Convertible Notes described in Section 9(h)(iii)), or (iv) any Convertible Notes are exchanged by or for the confirmation between benefit of the parties hereto regarding Holders (as defined in the Bond Hedge Transaction dated November 6, 2018 (Reference Number(s): [____]Indenture) (the “Bond Hedge Transaction”) or the Bond Hedge Transaction is otherwise cancelled or terminated prior to its expiration thereof for any reasonother securities of Counterparty or any of its Affiliates (or any other property, or any combination thereof) pursuant to any exchange offer or similar transaction; or
(iii) if at provided that any time Dealer receives a Par Value Notice, unless conversion of Convertible Notes pursuant to the Calculation Agent shall have determined that the applicable Par Value Event would not result in the amount terms of the Premium being less than the aggregate par value of the Maximum Amount of Shares following such event (Indenture shall not constitute a “Par Value ATE”); provided that, notwithstanding anything to the contrary in the Agreement, Dealer shall designate an Early Termination Date in respect of a Par Value ATE no later than the anticipated record or other effective date of such event specified in the Par Value NoticeRepurchase Event.
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Additional Termination Events. The occurrence (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of any which a “Notice of Conversion” (as defined in the Supplemental Indenture) that is effective as to Counterparty has been delivered by the relevant converting Holder:
(A) Counterparty shall, within ten Scheduled Trading Days of the following “Conversion Date” (as defined in the Supplemental Indenture) for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”) and the anticipated settlement date, and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); provided that any such Early Conversion Notice shall contain an acknowledgment by Counterparty of its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act and the rules and regulations thereunder, in respect of the delivery of such Early Conversion Notice; provided further that the provisions of this Section 9(i)(i) shall not apply to any Affected Convertible Note (i) with respect to which Counterparty has elected the “Exchange in Lieu of Conversion” option pursuant to Section 9.12 of the Supplemental Indenture and (1ii) that has been accepted by the designated financial institution pursuant to Section 9.12 of the Supplemental Indenture, except to the extent that Counterparty notifies Dealer, within ten Scheduled Trading Days of the then applicable conversion settlement date determined pursuant to Section 9.02(i) of the Supplemental Indenture, that (x) such financial institution has failed to pay or deliver, as the case may be, the consideration due upon conversion of such Affected Convertible Note, or (y) such Affected Convertible Note is subsequently resubmitted to Counterparty for conversion in accordance with the terms of the Supplemental Indenture;
(B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be on or as promptly as reasonably practicable after the related conversion settlement date for such Early Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes [minus the “Affected Number of Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Affected Convertible Notes]15 and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty shall be were the sole Affected Party and (2) the Transaction shall be the sole Affected Transaction; provided that with respect to any of the following such Additional Termination Events described in clauses Event and (iz) or (ii) below, Dealer may choose to treat one or more parts the terminated portion of the Transaction as were the sole Affected Transaction and either to terminate each such part on different days or to calculate the amount owing in connection with such Additional Termination Event by reference to a Share price determined over a period not to exceed 50 Exchange Business Days, and, upon termination of an Affected Transaction, a Transaction with a Number of Warrants equal to the unaffected number of Warrants shall be treated for all purposes as the Transaction, which shall remain in full force and effect (and, for the avoidance of doubt, the provisions of Section 9(m) shall apply to any amount that is payable by Dealer to Counterparty pursuant to this Section 9(i)(i) as if Counterparty were not the Affected Party);
(D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and
(E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. 15 Include in Additional Call Option Confirmation only.
(ii) Within ten Scheduled Trading Days following any Repurchase Event (as defined below), Counterparty may notify Dealer of such Repurchase Event and the aggregate principal amount of Convertible Notes subject to all relevant provisions such Repurchase Event (any such notice, a “Convertible Notes Repurchase Notice”); provided that any such Convertible Notes Repurchase Notice shall contain an acknowledgment by Counterparty of its responsibilities under applicable securities laws, and adjustments as if in particular Section 9 and Section 10(b) of the Exchange Act and the rules and regulations thereunder, in respect of the delivery of such Convertible Notes Repurchase Notice. The receipt by Dealer from Counterparty of any Convertible Notes Repurchase Notice shall constitute an Additional Termination Event had not occurred; andas provided in this Section 9(i)(ii). Upon receipt of any such Convertible Notes Repurchase Notice, provided further, that, without limiting Dealer shall designate an Exchange Business Day following receipt of such Convertible Notes Repurchase Notice (which Exchange Business Day shall be on or as promptly as reasonably practicable after the foregoing, notwithstanding related repurchase settlement date for the provisions of Section 6(b)(ivrelevant Repurchase Event) of the Agreement, Counterparty shall also have the right to designate as an Early Termination Date with respect to the Additional Termination Event described portion of the Transaction corresponding to a number of Options (the “Repurchase Options”) equal to the lesser of (A) the aggregate principal amount of such Convertible Notes specified in clause such Convertible Notes Repurchase Notice, divided by USD 1,000 [minus (iiy) below the number of Repurchase Options (as defined in the Base Call Option Confirmation), if Counterparty any, that relate to such Convertible Notes]16, and (xB) provides a certificate that includes a representation that Counterparty is not, the Number of Options as of the date Dealer designates such Early Termination Date and, as of such certificatedate, aware the Number of any material non-public information concerning itself or the Shares (where “material” Options shall have the meaning set forth in paragraph 5(o) below) and (y) satisfies such other conditions, including making additional representations and warranties, relating to securities law and other issues as requested be reduced by the Calculation Agent:
number of Repurchase Options. Any payment hereunder with respect to such termination (ithe “Repurchase Unwind Payment”) if at any time Dealer is unable, or reasonably determines that it is inadvisable, to hedge its obligations shall be calculated pursuant to this Transaction in Section 6 of the public market without registration under the Securities Act or Agreement as a result of any legal, regulatory or self-regulatory requirements or related policies and procedures if (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer);
(ii1) if at any time an Early Termination Date is had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the number of Repurchase Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination Event, (3) no adjustments to the transaction relating Conversion Rate have occurred pursuant to an Excluded Provision, (4) the corresponding Convertible Notes remaining outstanding, (5) the relevant Repurchase and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred and (6) the terminated portion of the Transaction were the sole Affected Transaction. “Repurchase Event” means that (i) any Convertible Notes are repurchased or redeemed (whether pursuant to Section 10.01 of the Supplemental Indenture, Section 11.02 of the Supplemental Indenture or otherwise) by Counterparty or any of its subsidiaries, (ii) any Convertible Notes are delivered to Counterparty in exchange for delivery of any property or assets of Counterparty or any of its subsidiaries (howsoever described), (iii) any principal of any of the Convertible Notes is repaid prior to the final maturity date of the Convertible Notes (other than upon acceleration of the Convertible Notes described in Section 9(i)(iii)), or (iv) any Convertible Notes are exchanged by or for the confirmation between benefit of the parties hereto regarding Holders (as defined in the Bond Hedge Transaction dated November 6, 2018 (Reference Number(s): [____]Indenture) (the “Bond Hedge Transaction”) or the Bond Hedge Transaction is otherwise cancelled or terminated prior to its expiration thereof for any reasonother securities of Counterparty or any of its Affiliates (or any other property, or any combination thereof) pursuant to any exchange offer or similar transaction; or
(iii) if at provided that any time Dealer receives a Par Value Notice, unless conversion of Convertible Notes pursuant to the Calculation Agent shall have determined that the applicable Par Value Event would not result in the amount terms of the Premium being less than the aggregate par value of the Maximum Amount of Shares following such event (Indenture shall not constitute a “Par Value ATE”); provided that, notwithstanding anything to the contrary in the Agreement, Dealer shall designate an Early Termination Date in respect of a Par Value ATE no later than the anticipated record or other effective date of such event specified in the Par Value NoticeRepurchase Event.
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Additional Termination Events. The occurrence (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of any which a “Notice of Conversion” (as defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant converting Holder:
(A) Counterparty may, within five Scheduled Trading Days of the following “Conversion Date” (as defined in the Indenture) for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”) and the anticipated settlement date, and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); provided that any such Early Conversion Notice shall contain a representation and warranty that Counterparty is not, on the date thereof, aware of any material nonpublic information with respect to Counterparty or the Shares, in respect of the delivery of such Early Conversion Notice; provided further that the provisions of this Section 9(h)(i) shall not apply to any Affected Convertible Note (i) with respect to which Counterparty has elected the “Exchange in Lieu of Conversion” option pursuant to Section [14.12]36 of the Indenture and (1ii) that has been accepted by the designated financial institution pursuant to Section [14.12]37 of the Indenture, except to the extent that Counterparty notifies Dealer, within ten Scheduled Trading Days of the then applicable conversion settlement date determined pursuant to Section [14.02(c)]38 of the Indenture, that (x) such financial institution has failed to pay or deliver, as the case may be, the consideration due upon conversion of such Affected Convertible Note, or (y) such Affected Convertible Note is subsequently resubmitted to Counterparty for conversion in accordance with the terms of the Indenture; 35 Include for Dealer. 36 Insert cross reference to Indenture section relating to Exchange in Lieu of Conversion 37 Insert cross reference to Indenture section relating to Exchange in Lieu of Conversion 38 Insert reference to Indenture section relating to the Conversion Date
(B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be on or as promptly as reasonably practicable after the related conversion settlement date for such Early Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes [minus the “Affected Number of Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Affected Convertible Notes]39 and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty shall be were the sole Affected Party and (2) the Transaction shall be the sole Affected Transaction; provided that with respect to any of the following such Additional Termination Events described in clauses Event and (iz) or (ii) below, Dealer may choose to treat one or more parts the terminated portion of the Transaction as were the sole Affected Transaction and either to terminate each such part on different days or to calculate the amount owing in connection with such Additional Termination Event by reference to a Share price determined over a period not to exceed 50 Exchange Business Days, and, upon termination of an Affected Transaction, a Transaction with a Number of Warrants equal to the unaffected number of Warrants shall be treated for all purposes as the Transaction, which shall remain in full force and effect (and, for the avoidance of doubt, the provisions of Section 9(l) shall apply to any amount that is payable by Dealer to Counterparty pursuant to this Section 9(h)(i) as if Counterparty were not the Affected Party);
(D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and
(E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options.
(ii) Within five Scheduled Trading Days following any Repurchase Event (as defined below), Counterparty may notify Dealer of such Repurchase Event and the aggregate principal amount of Convertible Notes subject to all relevant provisions such Repurchase Event (any such notice, a “Convertible Notes Repurchase Notice”); provided that any such Convertible Notes Repurchase Notice shall contain a representation and adjustments as if warranty that Counterparty is not, on the date thereof, aware of any material nonpublic information with respect to Counterparty or the Shares, in respect of the delivery of such Convertible Notes Repurchase Notice. The receipt by Dealer from Counterparty of any Convertible Notes Repurchase Notice shall constitute an Additional Termination Event had not occurred; andas provided in this Section 9(h)(ii). Upon receipt of any such Convertible Notes Repurchase Notice, provided further, that, without limiting Dealer shall designate an Exchange Business Day following receipt of such Convertible Notes Repurchase Notice (which Exchange Business Day shall be on or as promptly as reasonably practicable after the foregoing, notwithstanding related repurchase settlement date for the provisions of Section 6(b)(ivrelevant Repurchase Event) of the Agreement, Counterparty shall also have the right to designate as an Early Termination Date with respect to the Additional Termination Event described portion of the Transaction corresponding to a number of Options (the “Repurchase Options”) equal to the lesser of (A) the aggregate principal amount of such Convertible Notes specified in clause such Convertible Notes Repurchase Notice, divided by USD 1,000 [minus (iiy) below the number of Repurchase Options (as defined in the Base Call Option Confirmation), if Counterparty any, that relate to such Convertible Notes]40, and (xB) provides a certificate that includes a representation that Counterparty is not, the Number of Options as of the date of Dealer designates such certificate, aware of any material non-public information concerning itself or the Shares (where “material” shall have the meaning set forth in paragraph 5(o) below) and (y) satisfies such other conditions, including making additional representations and warranties, relating to securities law and other issues as requested by the Calculation Agent:
(i) if at any time Dealer is unable, or reasonably determines that it is inadvisable, to hedge its obligations pursuant to this Transaction in the public market without registration under the Securities Act or as a result of any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer);
(ii) if at any time an Early Termination Date is designated and, as of such date, the Number of Options shall be reduced by the number of Repurchase Options. Any payment hereunder with respect to the transaction relating to the Convertible Notes described in the confirmation between the parties hereto regarding the Bond Hedge Transaction dated November 6, 2018 (Reference Number(s): [____]) such termination (the “Bond Hedge Transaction”) or the Bond Hedge Transaction is otherwise cancelled or terminated prior to its expiration for any reason; or
(iii) if at any time Dealer receives a Par Value Notice, unless the Calculation Agent shall have determined that the applicable Par Value Event would not result Xxxxxxxxxx 00 Include in the amount of the Premium being less than the aggregate par value of the Maximum Amount of Shares following such event (a “Par Value ATE”); provided that, notwithstanding anything to the contrary Additional Call Option Confirmation only. 40 Include in the Agreement, Dealer shall designate an Early Termination Date in respect of a Par Value ATE no later than the anticipated record or other effective date of such event specified in the Par Value NoticeAdditional Call Option Confirmation only.
Appears in 1 contract
Additional Termination Events. The occurrence (i) Notwithstanding anything to the contrary in this Confirmation, if an event of any default with respect to Counterparty occurs that results in the acceleration of the following Convertible Notes pursuant to the terms of the Convertible Notes as set forth in Section 6.01 of the Indenture, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to which such Additional Termination Event, (1A) Counterparty shall be deemed to be the sole Affected Party and Party, (2B) the Transaction shall be the sole Affected Transaction; provided that with respect Transaction and (C) Dealer shall be the party entitled to any designate an Early Termination Date pursuant to Section 6(b) of the Agreement.
(ii) Promptly (and in any event within five Scheduled Trading Days) following Additional Termination Events described in clauses (i) or any repurchase (ii) below, Dealer may choose to treat one or more parts of the Transaction as the sole Affected Transaction and either to terminate each such part on different days or to calculate the amount owing in connection with such Additional Termination Event by reference to a Share price determined over a period not to exceed 50 Exchange Business Days, and, upon termination of an Affected Transaction, a Transaction with a Number of Warrants equal to the unaffected number of Warrants shall be treated for all purposes as the Transaction, which shall remain in full force and effect andwhich, for the avoidance of doubt, shall be includes any exchange transaction) of Convertible Notes, including without limitation pursuant to Article 15 of the Indenture in connection with a “Fundamental Change” (as defined in the Indenture), (ii) any conversion of the Convertible Notes in exchange for delivery of any property or assets of Issuer or any of Issuer’s subsidiaries (howsoever described) (other than the delivery of conversion consideration pursuant to the terms of the Indenture), or (iii) any cancellation of Convertible Notes following any repurchase of Convertible Notes set forth in clause (i) for which no Repurchase Notice was previously delivered (any such event, a “Repurchase Event”), Counterparty, in the case of clause (i), may, and in the case of clauses (ii) and (iii), shall, notify Dealer in writing of such Repurchase Event and the number of Convertible Notes subject to all relevant provisions such Repurchase Event (any such notice, a “Repurchase Notice”)[; provided that any “Repurchase Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall deemed to be a Repurchase Notice pursuant to this Confirmation and adjustments the terms of such Repurchase Notice shall apply, mutatis mutandis, to this Confirmation]19. Notwithstanding anything to the contrary in this Confirmation, the receipt by Dealer from Counterparty of (x) any Repurchase Notice, within the applicable time period set forth in the preceding sentence, and (y) a written representation and warranty by Counterparty that, as if of the date of such Repurchase Notice, Counterparty is not in possession of any material non-public information regarding Counterparty or the Shares, shall constitute an Additional Termination Event had not occurred; andas provided in this paragraph. Upon receipt of any such Repurchase Notice and the related 18 To be included for broker-dealer. 19 Insert for Additional Call Option Confirmation. written representation and warranty, provided further, that, without limiting Dealer shall promptly designate an Exchange Business Day following receipt of such Repurchase Notice (which Exchange Business Day shall be on or as promptly as reasonably practicable after the foregoing, notwithstanding related repurchase settlement date for the provisions of Section 6(b)(ivrelevant Repurchase Event) of the Agreement, Counterparty shall also have the right to designate as an Early Termination Date with respect to the Additional Termination Event described portion of this Transaction corresponding to a number of Options (the “Repurchase Options”) equal to the lesser of (A) the number of such Convertible Notes specified in clause such Repurchase Notice [minus the number of “Repurchase Options” (iias defined in the Base Call Option Confirmation), if any, that relate to such Convertible Notes]20 and (B) below if Counterparty (x) provides a certificate that includes a representation that Counterparty is not, the Number of Options as of the date Dealer designates such Early Termination Date and, as of such certificatedate, aware the Number of any material non-public information concerning itself or the Shares (where “material” Options shall have the meaning set forth in paragraph 5(o) below) and (y) satisfies such other conditions, including making additional representations and warranties, relating to securities law and other issues as requested be reduced by the Calculation Agent:
(i) if at any time Dealer is unable, or reasonably determines that it is inadvisable, number of Repurchase Options. Any payment hereunder with respect to hedge its obligations such termination shall be calculated pursuant to this Transaction in Section 6 of the public market without registration under the Securities Act or Agreement as a result of any legal, regulatory or self-regulatory requirements or related policies and procedures if (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer);
(ii1) if at any time an Early Termination Date is had been designated in respect of a Transaction having terms identical to this Transaction and a Number of Options equal to the number of Repurchase Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination Event, (3) no adjustment to the transaction relating to “Conversion Rate” (as defined in the Indenture) for the Convertible Notes described in has occurred pursuant to any Excluded Provision, (4) the confirmation between corresponding Convertible Notes remaining outstanding as if the parties hereto regarding circumstances related to the Bond Hedge Repurchase Event had not occurred, (5) the relevant Repurchase Event and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, and (6) the terminated portion of the Transaction dated November 6, 2018 (Reference Number(s): [____]) (were the “Bond Hedge sole Affected Transaction”) or the Bond Hedge Transaction is otherwise cancelled or terminated prior to its expiration for any reason; or.
(iii) if at any time Dealer receives a Par Value Notice, unless the Calculation Agent shall have determined that the applicable Par Value Event would not result in the amount of the Premium being less than the aggregate par value of the Maximum Amount of Shares following such event (a “Par Value ATE”); provided that, notwithstanding Notwithstanding anything to the contrary in the AgreementEquity Definitions, if, as a result of an Extraordinary Event, the Transaction would be cancelled or terminated (whether in whole or in part) pursuant to Article 12 of the Equity Definitions, an Additional Termination Event (with the Transaction (or portion thereof) being the Affected Transaction, Counterparty being the sole Affected Party and Dealer shall being the party entitled to designate an Early Termination Date pursuant to Section 6(h) of the Agreement) shall be deemed to occur, and, in respect lieu of a Par Value ATE no later than Sections 12.7, 12.8 and 12.9 of the anticipated record or other effective date Equity Definitions, Section 6 of the Agreement shall apply to such event specified in the Par Value NoticeAffected Transaction.
Appears in 1 contract
Samples: Call Option Transaction (Ionis Pharmaceuticals Inc)
Additional Termination Events. The occurrence (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of any which a “Notice of Conversion” (as defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant converting Holder:
(A) Counterparty shall, within ten Scheduled Trading Days of the following “Conversion Date” (as defined in the Indenture) for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”) and the anticipated settlement date, and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); provided that any such Early Conversion Notice shall contain an acknowledgment by Counterparty of its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act and the rules and regulations thereunder, in respect of the delivery of such Early Conversion Notice; provided further that the provisions of this Section 9(h)(i) shall not apply to any Affected Convertible Note (i) with respect to which Counterparty has elected the “Exchange in Lieu of Conversion” option pursuant to Section 14.12 of the Indenture and (1ii) that has been accepted by the designated financial institution pursuant to Section 14.12 of the Indenture, except to the extent that Counterparty notifies Dealer, within ten Scheduled Trading Days of the then applicable conversion settlement date determined pursuant to Section 14.02(i) of the Indenture, that (x) such financial institution has failed to pay or deliver, as the case may be, the consideration due upon conversion of such Affected Convertible Note, or (y) such Affected Convertible Note is subsequently resubmitted to Counterparty for conversion in accordance with the terms of the Indenture;
(B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be on or as promptly as reasonably practicable after the related conversion settlement date for such Early Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty shall be were the sole Affected Party and (2) the Transaction shall be the sole Affected Transaction; provided that with respect to any of the following such Additional Termination Events described in clauses Event and (iz) or (ii) below, Dealer may choose to treat one or more parts the terminated portion of the Transaction as were the sole Affected Transaction and either to terminate each such part on different days or to calculate the amount owing in connection with such Additional Termination Event by reference to a Share price determined over a period not to exceed 50 Exchange Business Days, and, upon termination of an Affected Transaction, a Transaction with a Number of Warrants equal to the unaffected number of Warrants shall be treated for all purposes as the Transaction, which shall remain in full force and effect (and, for the avoidance of doubt, the provisions of Section 9(l) shall apply to any amount that is payable by Dealer to Counterparty pursuant to this Section 9(h)(i) as if Counterparty were not the Affected Party);
(D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and
(E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options.
(ii) Within ten Scheduled Trading Days following any Repurchase Event (as defined below), Counterparty may notify Dealer of such Repurchase Event and the aggregate principal amount of Convertible Notes subject to all relevant provisions such Repurchase Event (any such notice, a “Convertible Notes Repurchase Notice”); provided that any such Convertible Notes Repurchase Notice shall contain an acknowledgment by Counterparty of its responsibilities under applicable securities laws, and adjustments as if in particular Section 9 and Section 10(b) of the Exchange Act and the rules and regulations thereunder, in respect of the delivery of such Convertible Notes Repurchase Notice. The receipt by Dealer from Counterparty of any Convertible Notes Repurchase Notice shall constitute an Additional Termination Event had not occurred; andas provided in this Section 9(h)(ii). Upon receipt of any such Convertible Notes Repurchase Notice, provided further, that, without limiting Dealer shall designate an Exchange Business Day following receipt of such Convertible Notes Repurchase Notice (which Exchange Business Day shall be on or as promptly as reasonably practicable after the foregoing, notwithstanding related repurchase settlement date for the provisions of Section 6(b)(ivrelevant Repurchase Event) of the Agreement, Counterparty shall also have the right to designate as an Early Termination Date with respect to the Additional Termination Event described portion of the Transaction corresponding to a number of Options (the “Repurchase Options”) equal to the lesser of (A) the aggregate principal amount of such Convertible Notes specified in clause such Convertible Notes Repurchase Notice, divided by USD 1,000, and (iiB) below if Counterparty (x) provides a certificate that includes a representation that Counterparty is not, the Number of Options as of the date Dealer designates such Early Termination Date and, as of such certificatedate, aware the Number of any material non-public information concerning itself or the Shares (where “material” Options shall have the meaning set forth in paragraph 5(o) below) and (y) satisfies such other conditions, including making additional representations and warranties, relating to securities law and other issues as requested be reduced by the Calculation Agent:
number of Repurchase Options. Any payment hereunder with respect to such termination (ithe “Repurchase Unwind Payment”) if at any time Dealer is unable, or reasonably determines that it is inadvisable, to hedge its obligations shall be calculated pursuant to this Transaction in Section 6 of the public market without registration under the Securities Act or Agreement as a result of any legal, regulatory or self-regulatory requirements or related policies and procedures if (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer);
(ii1) if at any time an Early Termination Date is had been designated with respect to the transaction relating to the Convertible Notes described in the confirmation between the parties hereto regarding the Bond Hedge Transaction dated November 6, 2018 (Reference Number(s): [____]) (the “Bond Hedge Transaction”) or the Bond Hedge Transaction is otherwise cancelled or terminated prior to its expiration for any reason; or
(iii) if at any time Dealer receives a Par Value Notice, unless the Calculation Agent shall have determined that the applicable Par Value Event would not result in the amount of the Premium being less than the aggregate par value of the Maximum Amount of Shares following such event (a “Par Value ATE”); provided that, notwithstanding anything to the contrary in the Agreement, Dealer shall designate an Early Termination Date in respect of a Par Value ATE Transaction having terms identical to the Transaction and a Number of Options equal to the number of Repurchase Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination Event, (3) no later than adjustments to the anticipated record or other effective date of such event specified in Conversion Rate have occurred pursuant to an Excluded Provision, (4) the Par Value Notice.corresponding Convertible Notes remaining outstanding, (5) the relevant
Appears in 1 contract
Additional Termination Events. The occurrence of any of the following shall constitute an be Additional Termination Event Events with respect to which (1) Counterparty shall be is the sole Affected Party and (2subject to the proviso in clause (ii), (iv) and (v) below and Section 3(g)(vii) below) all Transactions under this Master Confirmation shall be Affected Transactions:
(i) (x) Dealer shall have received any notice from Counterparty with respect to a proposed amendment, modification, restatement, supplement, waiver or change to the Amended and Restated Limited Liability Company Agreement of the Units Issuer, dated as of May 18, 2016 (as amended, modified or supplemented from time to time, the “LLC Agreement”) or any Existing Investment Documents (as defined in the Issuer Agreement), the subject of which Dealer determines, in its reasonable discretion, would have a materially adverse effect on Dealer’s hedging positions with respect to the Transaction or Dealer’s ability to hedge its credit exposure or any economic, trading, or any other type of risk under the Transaction (after taking into account any transactions under any Loan Confirmation), (y) Dealer shall be have promptly notified Counterparty of such determination and (z) such proposed amendment, modification, restatement, supplement, waiver or change shall not have been revoked or otherwise modified to Dealer’s reasonable satisfaction prior to the effective date of the amendment, modification, restatement, supplement, waiver or change or any later date on which Dealer wishes to exercise its right to terminate the Transactions pursuant to this clause (i);
(ii) any “Additional Termination Event” with respect to which Counterparty is the sole Affected TransactionParty or any “Event of Default” with respect to which Counterparty is the sole Defaulting Party in each case that results in an Early Termination Date occurring or being designated thereunder under one or more Loan Confirmations; provided that if an Early Termination Date or other date of termination or cancellation occurs or is designated with respect to any a portion of the following Additional Termination Events described in clauses Revolving Loan Transactions under the Loan Confirmations, (ia) or (ii) below, Dealer may choose any payment made pursuant to treat one or more parts Section 6 of the Transaction as the sole Affected Transaction and either to terminate each such part on different days or to calculate the amount owing in connection with such Additional Termination Event by reference to a Share price determined over a period not to exceed 50 Exchange Business Days, and, upon termination of an Affected Transaction, a Transaction with a Number of Warrants equal to the unaffected number of Warrants Agreement shall be treated made on a proportional basis as if an Early Termination Date had been designated in respect of solely such corresponding portion of the Transactions and the Components (or portions thereof) thereof, and (b) for all purposes as the Transactionavoidance of doubt, which the Transactions shall remain in full force and effect andexcept that such Transactions shall be reduced by the corresponding Components (or portions thereof) included in such terminated portion;
(iii) any breach by Counterparty, Issuer or Units Issuer of any representation, warranty, covenant, obligation or other agreement under the Issuer Agreement that would reasonably be likely to have a material adverse effect on Dealer’s rights and remedies hereunder or under the Pledge Agreement or on Counterparty’s ability to perform Counterparty’s obligations under this Master Confirmation, the Agreement, the Loan Confirmations, the Pledge Agreement, any Supplemental Confirmation or any Transaction and if such breach has not been cured within 3 Local Business Days after notice of such breach to Counterparty unless Counterparty has delivered to Dealer by 5:00 p.m. (New York City time) on the third Local Business Day after notice of such breach to Counterparty evidence that Counterparty is actively taking reasonably diligent actions to cure such breach, in which case 10 Local Business Days after notice of such breach to Counterparty;
(iv) the submission by Counterparty of any “Exchange Notice” (as defined in the Exchange Agreement dated as of May 18, 2016, by and among the Issuer, the Units Issuer, CCH II, LLC and Advance/Xxxxxxxx Partnership (as amended, modified or supplemented from time to time, the “Exchange Agreement”)) in respect of any Collateral Units (as defined in the Pledge Agreement) without the consent of Dealer or except as expressly permitted under this Master Confirmation (including, for the avoidance of doubt, in connection with a Physical Settlement election); provided that it shall be subject to all relevant provisions and adjustments as if an Additional Termination Event had not occurred; andsolely with respect to a portion of the Transactions proportionate to the Collateral Units subject to such “Exchange Notice”, provided further, that, without limiting in accordance with Section 3(g)(vii) below;
(v) the foregoing, notwithstanding redemption by the provisions Units Issuer of any Collateral Units (as defined in the Pledge Agreement) pursuant to Section 6(b)(iv3.2(b)(iii) of the AgreementLLC Agreement or otherwise if Counterparty has not, Counterparty within 5 Local Business Days following such redemption, pledged to Dealer additional Units and/or Shares equal to the number of Collateral Units redeemed; provided that it shall also have the right to designate be an Early Additional Termination Date Event solely with respect to a portion of the Additional Termination Event described Transactions proportionate to such Collateral Units redeemed (and not replaced pursuant to this clause), in clause accordance with Section 3(g)(vii) below; and
(iivi) below if Counterparty shall have received notice from the Units Issuer pursuant to the Issuer Agreement that the Units Issuer will elect for the Collateral Units (xas defined in the Pledge Agreement) provides a certificate to be deemed “securities” (within the meaning of Article 8 of the Uniform Commercial Code of any jurisdiction), or Counterparty or Dealer otherwise becomes aware that includes a representation that such Collateral Units have become such “securities”, and, in each case, Dealer shall not have made reasonable arrangements with the Units Issuer or Counterparty is notto become, as upon such effectiveness, perfected by “control” within the meaning of such Code by the later of the date of the Collateral Units have become such certificate“securities” and the fifth Local Business Day following the date Counterparty receives such notice or becomes so aware, as applicable. Each party agrees to notify the other party promptly after becoming aware of any material non-public information concerning itself or the Shares (where that such Collateral Units have become such “material” shall have the meaning set forth in paragraph 5(o) below) and (y) satisfies such other conditions, including making additional representations and warranties, relating to securities law and other issues as requested by the Calculation Agent:
(i) if at any time Dealer is unable, or reasonably determines that it is inadvisable, to hedge its obligations pursuant to this Transaction in the public market without registration under the Securities Act or as a result of any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer);
(ii) if at any time an Early Termination Date is designated with respect to the transaction relating to the Convertible Notes described in the confirmation between the parties hereto regarding the Bond Hedge Transaction dated November 6, 2018 (Reference Number(s): [____]) (the “Bond Hedge Transactionsecurities.”) or the Bond Hedge Transaction is otherwise cancelled or terminated prior to its expiration for any reason; or
(iii) if at any time Dealer receives a Par Value Notice, unless the Calculation Agent shall have determined that the applicable Par Value Event would not result in the amount of the Premium being less than the aggregate par value of the Maximum Amount of Shares following such event (a “Par Value ATE”); provided that, notwithstanding anything to the contrary in the Agreement, Dealer shall designate an Early Termination Date in respect of a Par Value ATE no later than the anticipated record or other effective date of such event specified in the Par Value Notice.
Appears in 1 contract
Samples: Share Collar Transactions (Newhouse Broadcasting Corp)
Additional Termination Events. The occurrence of any following Additional Termination Events will apply, in each case with respect to Party B as the sole Affected Party (unless otherwise provided below):
(i) Each of the following shall constitute an Additional Termination Event with respect to which (1) Counterparty shall be the Party A as sole Affected Party:
(a) An S&P Collateralization Event has occurred and is continuing and Party A has failed to comply with or perform any obligation to be complied with or performed by Party A in accordance with the "Downgrade Provisions" as set forth in Part 5(b)(2) and (2) the Transaction shall be the sole Affected Transaction; provided that with respect to any of the following Additional Termination Events described in clauses (i) or (ii) below, Dealer may choose to treat one or more parts of the Transaction as the sole Affected Transaction and either to terminate each such part on different days or to calculate the amount owing in connection with such Additional Termination a Ratings Event by reference to a Share price determined over a period not to exceed 50 Exchange Business Days, and, upon termination of an Affected Transaction, a Transaction with a Number of Warrants equal to the unaffected number of Warrants shall be treated for all purposes as the Transaction, has neither occurred nor is continuing. Any event which shall remain in full force and effect and, for the avoidance of doubt, shall be subject to all relevant provisions and adjustments as if constitutes an Additional Termination Event pursuant to this Section 1(h)(i)(a) shall not constitute an Event of Default.
(b) A Moody's Collateralization Event has occurred and is continuing, and Party A has failed to comply with or perform any obligation to deliver collateral under the Credit Support Annex and 30 Local Business Days or more have elapsed since the last time that no Moody's Collateralization Event had occurred and was continuing. Any event which constitutes an Additional Termination Event pursuant to this Section 1(h)(i)(b) shall not occurred; constitute an Event of Default (unless such event constitutes a failure to post collateral pursuant to the terms of the Credit Support Annex in breach of Part 5(b)(4)).
(c) A Fitch Collateralization Event has occurred and is continuing and Party A has failed to comply with or perform any obligation to be complied with or performed by Party A in accordance with the "Downgrade Provisions" as set forth in Part 5(b)(2) and a Ratings Event has neither occurred nor is continuing. Any event which constitutes an Additional Termination Event pursuant to this Section 1(h)(i)(c) shall not constitute an Event of Default (unless such event constitutes a failure to post collateral pursuant to the terms of the Credit Support Annex in breach of Part 5(b)(4)).
(d) A Ratings Event has occurred and is continuing and Party A has failed to comply with or perform any obligation to be complied with or performed by Party A in accordance with the “Downgrade Provisions” as set forth in Part 5(b)(4) and, provided furtherin the case of a Moody's Ratings Event, that(i) at least one Eligible Replacement has made a Live Bid to be the transferee of a transfer to be made in accordance with the terms hereof and/or (ii) at least one entity that satisfies the Hedge Counterparty Ratings Requirements is able to provide an Eligible Guarantee in respect of all of Party A’s present and future obligations under this Agreement subject to the satisfaction of the S&P Ratings Condition. The failure by Party A to comply with or perform any obligation (other than the obligation to post collateral pursuant to the terms of the Credit Support Annex) to be complied with or performed by Party A in accordance with the “Downgrade Provisions” as set forth in Part 5(b)(4) will constitute an Additional Termination Event and not an Event of Default.
(ii) The Pooling and Servicing Agreement dated as of 1 April, 2007 among Credit Suisse First Boston Mortgage Securities Corp. as Depositor, DLJ Mortgage Capital, Inc. as Seller, Xxxxx Fargo Bank, N.A. as Servicer, Select Portfolio Servicing, Inc. as Servicer and Modification Oversight Agent, Xxxxxxx Fixed Income Services Inc. as Credit Risk Manager, and U.S. Bank National Association as Trustee for Home Equity Asset Trust 2007-3, as amended and supplemented from time to time (the PSA or the Pooling and Servicing Agreement) or other transaction document is amended or modified (other than an amendment or modification solely to accommodate replacement agents to the transaction , e.g., Servicer, Credit Risk Manager) without limiting the foregoingprior written consent of Party A, where such consent is required under the terms of the PSA (such consent not to be unreasonably withheld). For all purposes hereunder, including in the Credit Support Annex and each Confirmation, “Trustee” shall mean the trustee for the Supplemental Interest Trust under the PSA.
(iii) The termination of the Trust pursuant to Article IX of the PSA, provided, however, that notwithstanding the provisions of Section 6(b)(iv) of the this Agreement, Counterparty shall also have the right to designate an Early Termination Date with respect to the Additional Termination Event described in clause (ii) below if Counterparty (x) provides a certificate that includes a representation that Counterparty is not, as of the date of such certificate, aware of any material non-public information concerning itself or the Shares (where “material” shall have the meaning set forth in paragraph 5(o) below) and (y) satisfies such other conditions, including making additional representations and warranties, relating to securities law and other issues as requested by the Calculation Agent:
(i) if at any time Dealer is unable, or reasonably determines that it is inadvisable, to hedge its obligations pursuant to this Transaction in the public market without registration under the Securities Act or as a result of any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer);
(ii) if at any time an Early Termination Date is designated with respect to the transaction relating to the Convertible Notes described in the confirmation between the parties hereto regarding the Bond Hedge Transaction dated November 6, 2018 (Reference Number(s): [____]) (the “Bond Hedge Transaction”) or the Bond Hedge Transaction is otherwise cancelled or terminated prior to its expiration for any reason; or
(iii) if at any time Dealer receives a Par Value Notice, unless the Calculation Agent shall have determined that the applicable Par Value Event would not result in the amount of the Premium being less than the aggregate par value of the Maximum Amount of Shares following such event (a “Par Value ATE”); provided that, notwithstanding anything to the contrary in the Agreement, Dealer shall either party may designate an Early Termination Date in respect of this Additional Termination Event.
(iv) Upon the occurrence of a Par Value ATE no later than Swap Disclosure Event (as defined in Part 5(v) below) Party A has not, within 10 days after such Swap Disclosure Event, complied with any of the anticipated record or other effective date provisions set forth in Part 5(v)(iii) below. For all purposes of such event specified this Agreement, Party A shall be the sole Affected Party with respect to the occurrence of an Additional Termination Event described in the Par Value Noticethis Part 1(h)(iv).
Appears in 1 contract
Samples: Swap Schedule (Credit Suisse First Boston Mortgage Securities Corp)
Additional Termination Events. The occurrence of any of the following shall constitute be an Additional Termination Event with respect to Counterparty (which (1) Counterparty shall be the sole Affected Party and (2) the this Transaction shall be the sole Affected Transaction; provided that with ):
(a) An Amendment Event occurs, in which case the entirety of this Transaction shall be subject to termination.
(b) A Repayment Event occurs, in which case this Transaction shall be subject to termination only in respect to any of the following Additional Termination Events described in clauses (i) or (ii) below, Dealer may choose principal amount of Reference Notes that cease to treat one or more parts of the Transaction as the sole Affected Transaction and either to terminate each such part on different days or to calculate the amount owing be outstanding in connection with or as a result of such Additional Termination Repayment Event by reference to a Share price determined over a period not to exceed 50 Exchange Business Days, and, upon termination of an Affected Transaction, a Transaction with a Number of Warrants equal to the unaffected number of Warrants shall be treated for all purposes as the Transaction, which shall remain in full force and effect (and, for the avoidance of doubt, if the principal amount of Reference Notes that cease to be outstanding is less than the total principal amount outstanding of Reference Notes, then the terms of this Transaction shall be continue to apply, subject to all relevant provisions the terms and adjustments as if an Additional Termination Event had not occurred; and, provided further, that, without limiting the foregoing, notwithstanding the provisions of Section 6(b)(iv) of the Agreement, Counterparty shall also have the right to designate an Early Termination Date with respect to the Additional Termination Event described in clause (ii) below if Counterparty (x) provides a certificate that includes a representation that Counterparty is not, as of the date of such certificate, aware of any material non-public information concerning itself or the Shares (where “material” shall have the meaning conditions set forth in paragraph 5(oherein).
(c) below) and (y) satisfies such other conditions, including making additional representations and warranties, relating to securities law and other issues as requested The transactions contemplated by the Calculation Agent:
(i) if at any time Dealer is unable, or reasonably determines that it is inadvisable, Underwriting Agreement shall fail to hedge its obligations pursuant to this Transaction in the public market without registration under the Securities Act or close as a result of any legalbreach by Counterparty of its obligations thereunder, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer);in which case the entirety of this Transaction shall terminate automatically.
(iid) if If at any time an Early Termination Date is designated with respect all, or any portion, of the securities, property or other assets into which (or for which) the Reference Notes are convertible (or exchangeable) consists of securities, property or other assets other than ordinary or common shares that are publicly quoted, traded or listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ National Market System (or their respective successors), the inability of Deutsche due to the market conditions, illiquidity, illegality, lack of availability of market participants or otherwise, to establish, re-establish, unwind or maintain any hedging transaction relating to the Convertible Notes described necessary or desirable in the confirmation between normal course of Deutsche’s business of hedging the parties hereto regarding price and market risk of entering into and performing under this Transaction, in which case the Bond Hedge entirety of this Transaction dated November 6, 2018 (Reference Number(s): [____]) (the “Bond Hedge Transaction”) or the Bond Hedge Transaction is otherwise cancelled or terminated prior shall be subject to its expiration for any reason; or
(iii) if at any time Dealer receives a Par Value Notice, unless the Calculation Agent shall have determined that the applicable Par Value Event would not result in the amount of the Premium being less than the aggregate par value of the Maximum Amount of Shares following such event (a “Par Value ATE”); provided that, notwithstanding termination. Notwithstanding anything to the contrary in the AgreementAgreement or the Definitions, Dealer shall designate an Early Termination Date Counterparty may require, by written notice to Deutsche, any amount owed by Deutsche to Counterparty in respect connection with termination of a Par Value ATE no later than the anticipated record Transaction to be paid in the type of securities, property or other effective date assets into which (or for which) the Reference Notes are convertible (or exchangeable) at the time of such event specified termination (the value of such securities, property or other assets to be based on their fair market value on the date the Transaction is terminated as determined by the Calculation Agent in good faith and in a commercially reasonable manner). In addition if the Par Value Notice.transactions contemplated by the Underwriting Agreement shall fail to close for any reason other than those set forth in clause (c) above, then the entirety of this Transaction shall terminate automatically and no payments or deliveries shall be required hereunder. As used in this Confirmation:
Appears in 1 contract
Samples: Confirmation (Cephalon Inc)
Additional Termination Events. The occurrence (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of any which a Notice of Conversion that is effective as to Counterparty has been delivered by the relevant converting Holder:
(A) Counterparty shall, within three Scheduled Trading Days of the following Conversion Date for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”), and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); [; provided that, any “Early Conversion Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall be deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation;]40provided[, further,] that the provisions of this Section 9(i)(i) shall not apply to any Affected Convertible Note (i) with respect to which Counterparty has made an “Exchange Election” (1as such term is defined in the Indenture) pursuant to Section [14.12]41 of the Indenture and (ii) that has been accepted by the designated financial institution pursuant to Section [14.12]42 of the Indenture, except to the extent that Counterparty notifies Dealer, within five Scheduled Trading Days of the then applicable conversion settlement date determined pursuant to Section [14.02(a)]43 of the Indenture, that (x) such financial institution has failed to pay or deliver, as the case may be, the consideration due upon conversion of such Affected Convertible Note, or (y) such Affected Convertible Note is subsequently resubmitted to Counterparty for conversion in accordance with the terms of the Indenture;
(B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be no earlier than the later of (x) one Scheduled Trading Day following the Conversion Date for such Early Conversion and (y) the date on which Counterparty provides the written notice described in Section 9(i)(i)(A) above) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes [minus the “Affected Number of Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Affected Convertible Notes (and for the purposes of determining whether any Options under this Confirmation or under the Base Call Option Confirmation will be among the Affected Number of Options hereunder or under, and as defined in, the Base Call Option Confirmation, the Affected Convertible Notes specified in such Early Conversion Notice shall be allocated first to the Base Call Option Confirmation until all Options thereunder are exercised or terminated)]44 and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty shall be were the sole Affected Party with respect to such Additional Termination Event and (2z) the terminated portion of the Transaction shall be were the sole Affected Transaction; provided that the amount payable with respect to any such termination shall not be greater than (1) the Applicable Percentage, multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the following Additional Termination Events described in clauses sum of (i) or the amount of cash paid (if any) to the “Holder” (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note and (ii) below, Dealer may choose the number of Shares delivered (if any) to treat one or more parts of the Transaction “Holder” (as such term is defined in the sole Affected Transaction and either to terminate each such part on different days or to calculate the amount owing in connection with such Additional Termination Event by reference to a Share price determined over a period not to exceed 50 Exchange Business Days, and, upon termination Indenture) of an Affected Transaction, a Transaction with a Number Convertible Note upon conversion of Warrants equal such Affected Convertible Note (including for such purposes taking into account any applicable adjustments to the unaffected number of Warrants shall be treated for all purposes “Conversion Rate” (as defined in the Transaction, which shall remain in full force and effect and, for the avoidance of doubt, shall be subject Indenture) pursuant to all relevant provisions and adjustments as if an Additional Termination Event had not occurred; and, provided further, that, without limiting the foregoing, notwithstanding the provisions of Section 6(b)(iv) [14.03]45 of the Agreement, Counterparty shall also have the right 40 Insert for Additional Call Option Confirmation. 41 Include cross-reference to designate an Early Termination Date with respect Indenture section containing provisions for exchange in lieu of conversion. 42 Include cross-reference to Indenture section containing provisions for exchange in lieu of conversion. 43 Include cross-reference to Indenture section specifying conversion settlement date. 44 Insert for Additional Call Option Confirmation. 45 Include cross-reference to Indenture section(s) governing make-whole adjustments to the Additional Termination Event described in clause (ii) below if Counterparty (x) provides a certificate that includes a representation that Counterparty is not, as of the date of such certificate, aware of any material non-public information concerning itself or the Shares (where “material” shall have the meaning set forth in paragraph 5(o) below) and (y) satisfies such other conditions, including making additional representations and warranties, relating to securities law and other issues as requested by the Calculation Agent:
(i) if at any time Dealer is unable, or reasonably determines that it is inadvisable, to hedge its obligations pursuant to this Transaction in the public market without registration under the Securities Act or as a result of any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer);
(ii) if at any time an Early Termination Date is designated with respect to the transaction relating to the Convertible Notes described in the confirmation between the parties hereto regarding the Bond Hedge Transaction dated November 6, 2018 (Reference Number(s): [____]) (the “Bond Hedge Transaction”) or the Bond Hedge Transaction is otherwise cancelled or terminated prior to its expiration for any reason; or
(iii) if at any time Dealer receives a Par Value Notice, unless the Calculation Agent shall have determined that the applicable Par Value Event would not result in the amount of the Premium being less than the aggregate par value of the Maximum Amount of Shares following such event (a “Par Value ATE”); provided that, notwithstanding anything to the contrary in the Agreement, Dealer shall designate an Early Termination Date in respect of a Par Value ATE no later than the anticipated record or other effective date of such event specified in the Par Value NoticeConversion Rate.
Appears in 1 contract
Additional Termination Events. The occurrence of any following Additional Termination Events will apply, in each case with respect to Party B as the sole Affected Party (unless otherwise provided below):
(i) Each of the following shall constitute an Additional Termination Event with respect to which (1) Counterparty shall be the Party A as sole Affected Party:
(a) An S&P Collateralization Event has occurred and is continuing and Party A has failed to comply with or perform any obligation to be complied with or performed by Party A in accordance with the "Downgrade Provisions" as set forth in Part 5(b)(2) and (2) the Transaction shall be the sole Affected Transaction; provided that with respect to any of the following Additional Termination Events described in clauses (i) or (ii) below, Dealer may choose to treat one or more parts of the Transaction as the sole Affected Transaction and either to terminate each such part on different days or to calculate the amount owing in connection with such Additional Termination a Ratings Event by reference to a Share price determined over a period not to exceed 50 Exchange Business Days, and, upon termination of an Affected Transaction, a Transaction with a Number of Warrants equal to the unaffected number of Warrants shall be treated for all purposes as the Transaction, has neither occurred nor is continuing. Any event which shall remain in full force and effect and, for the avoidance of doubt, shall be subject to all relevant provisions and adjustments as if constitutes an Additional Termination Event pursuant to this Section 1(h)(i)(a) shall not constitute an Event of Default.
(b) A Moody's Collateralization Event has occurred and is continuing, and Party A has failed to comply with or perform any obligation to deliver collateral under the Credit Support Annex and 30 Local Business Days or more have elapsed since the last time that no Moody's Collateralization Event had occurred and was continuing. Any event which constitutes an Additional Termination Event pursuant to this Section 1(h)(i)(b) shall not occurred; constitute an Event of Default (unless such event constitutes a failure to post collateral pursuant to the terms of the Credit Support Annex in breach of Part 5(b)(4)).
(c) A Fitch Collateralization Event has occurred and is continuing and Party A has failed to comply with or perform any obligation to be complied with or performed by Party A in accordance with the "Downgrade Provisions" as set forth in Part 5(b)(2) and a Ratings Event has neither occurred nor is continuing. Any event which constitutes an Additional Termination Event pursuant to this Section 1(h)(i)(c) shall not constitute an Event of Default (unless such event constitutes a failure to post collateral pursuant to the terms of the Credit Support Annex in breach of Part 5(b)(4)).
(d) A Ratings Event has occurred and is continuing and Party A has failed to comply with or perform any obligation to be complied with or performed by Party A in accordance with the “Downgrade Provisions” as set forth in Part 5(b)(4) and, provided furtherin the case of a Moody's Ratings Event, that(i) at least one Eligible Replacement has made a Live Bid to be the transferee of a transfer to be made in accordance with the terms hereof and/or (ii) at least one entity that satisfies the Hedge Counterparty Ratings Requirements is able to provide an Eligible Guarantee in respect of all of Party A’s present and future obligations under this Agreement subject to the satisfaction of the S&P Ratings Condition. The failure by Party A to comply with or perform any obligation (other than the obligation to post collateral pursuant to the terms of the Credit Support Annex) to be complied with or performed by Party A in accordance with the “Downgrade Provisions” as set forth in Part 5(b)(4) will constitute an Additional Termination Event and not an Event of Default.
(ii) The Pooling and Servicing Agreement dated as of January 1, 2007 among Credit Suisse First Boston Mortgage Securities Corp. as Depositor, DLJ Mortgage Capital, Inc. as Seller, Xxxxx Fargo Bank, N.A. as Servicer, Select Portfolio Servicing, Inc. as Servicer and Modification Oversight Agent, Xxxxxxx Fixed Income Services Inc. as Credit Risk Manager, and U.S. Bank National Association as Trustee for Home Equity Asset Trust 2007-1, as amended and supplemented from time to time (the PSA or the Pooling and Servicing Agreement) or other transaction document is amended or modified (other than an amendment or modification solely to accommodate replacement agents to the transaction , e.g., Servicer, Credit Risk Manager) without limiting the foregoingprior written consent of Party A, where such consent is required under the terms of the PSA (such consent not to be unreasonably withheld). For all purposes hereunder, including in the Credit Support Annex and each Confirmation, “Trustee” shall mean the trustee for the Supplemental Interest Trust under the PSA.
(iii) The termination of the Trust pursuant to Article IX of the PSA, provided, however, that notwithstanding the provisions of Section 6(b)(iv) of the this Agreement, Counterparty shall also have the right to designate an Early Termination Date with respect to the Additional Termination Event described in clause (ii) below if Counterparty (x) provides a certificate that includes a representation that Counterparty is not, as of the date of such certificate, aware of any material non-public information concerning itself or the Shares (where “material” shall have the meaning set forth in paragraph 5(o) below) and (y) satisfies such other conditions, including making additional representations and warranties, relating to securities law and other issues as requested by the Calculation Agent:
(i) if at any time Dealer is unable, or reasonably determines that it is inadvisable, to hedge its obligations pursuant to this Transaction in the public market without registration under the Securities Act or as a result of any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer);
(ii) if at any time an Early Termination Date is designated with respect to the transaction relating to the Convertible Notes described in the confirmation between the parties hereto regarding the Bond Hedge Transaction dated November 6, 2018 (Reference Number(s): [____]) (the “Bond Hedge Transaction”) or the Bond Hedge Transaction is otherwise cancelled or terminated prior to its expiration for any reason; or
(iii) if at any time Dealer receives a Par Value Notice, unless the Calculation Agent shall have determined that the applicable Par Value Event would not result in the amount of the Premium being less than the aggregate par value of the Maximum Amount of Shares following such event (a “Par Value ATE”); provided that, notwithstanding anything to the contrary in the Agreement, Dealer shall either party may designate an Early Termination Date in respect of this Additional Termination Event.
(iv) Upon the occurrence of a Par Value ATE no later than Swap Disclosure Event (as defined in Part 5(v) below) Party A has not, within 10 days after such Swap Disclosure Event, complied with any of the anticipated record or other effective date provisions set forth in Part 5(v)(iii) below. For all purposes of such event specified this Agreement, Party A shall be the sole Affected Party with respect to the occurrence of an Additional Termination Event described in the Par Value Noticethis Part 1(h)(iv).
Appears in 1 contract
Additional Termination Events. The (i) Unless otherwise specified in a Confirmation, the occurrence of any of the following events shall constitute be an Additional Termination Event Event:
(A) Standard & Poor's Ratings Services, a division of the XxXxxx-Xxxx Companies, Inc. ("S&P") or Xxxxx'x Investors Service, Inc. ("XXXXX'X") rates the creditworthiness of Party A's unsecured and unsubordinated debt, deposit or letter of credit obligations below investment grade (investment grade being a long-term rating of at least BBB+ for S&P and Baa1 for Xxxxx'x, and a short-term rating of A-1 from S&P) and Party A fails to make a Permitted Transfer (as defined in
(a) of Part 6 of this Schedule) in accordance with respect the provisions of Part 1(i)(iii) of this Schedule.
(B) [RESERVED]
(ii) For purposes of the right to which (1) Counterparty shall terminate under Section 6(b)(iv), Party A will be the sole Affected Party and (2) the Transaction shall be the sole Affected Transaction; provided that with respect to for any of the following Additional Termination Events described in clauses above. Notwithstanding which party is the Affected Party for any Additional Termination Event, upon the occurrence of an Early Termination Date for any Additional Termination Event, Party A shall make the calculations under Section 6(e) of this Agreement as though it were the party that is not the Affected Party for purposes of Section 6(e)(ii)(1) of this Agreement, provided that any Market Quotation for any Transaction terminated pursuant to Clause (A) of subparagraph (i) or (ii) below, Dealer may choose to treat one or more parts of above shall be the Transaction as the sole Affected Transaction and either to terminate each such part on different days or to calculate the amount owing in connection with such Additional Termination Event by reference to Reference Market-Maker's price for entering into a Share price determined over a period not to exceed 50 Exchange Business Days, and, upon termination of an Affected Transaction, a Replacement Transaction with a Number of Warrants equal to creditworthy counterparty in which the unaffected number of Warrants shall be treated for all purposes Reference Market-Maker would take the side that Party B had taken in the Terminated Transaction, known as the Transaction, which shall remain "offered side". Party B agrees to give written notice to each of S&P (for so long as any Certificates (as defined in full force the Pooling and effect and, Servicing Agreement) are deemed outstanding under the Pooling and Servicing Agreement and rated by S&P) and Moody's (for so long as any Certificates are deemed outstanding under the avoidance of doubt, shall be subject to all relevant provisions Pooling and adjustments as if Servicing Agreement and rated by Moody's) in the event it declares an Additional Termination Event had not occurred; and, provided further, that, without limiting the foregoing, notwithstanding the provisions of Section 6(b)(iv) of the Agreement, Counterparty shall also have the right to designate an Early Termination Date with respect to the Additional Termination Event described in clause (ii) below if Counterparty (x) provides a certificate that includes a representation that Counterparty is not, as of the date of such certificate, aware of any material non-public information concerning itself or the Shares (where “material” shall have the meaning set forth in paragraph 5(o) below) and (y) satisfies such other conditions, including making additional representations and warranties, relating to securities law and other issues as requested by the Calculation Agent:
(i) if at any time Dealer is unable, or reasonably determines that it is inadvisable, to hedge its obligations pursuant to this Transaction in the public market without registration under the Securities Act or as a result of any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer);
(ii) if at any time an Early Termination Date is designated with respect to the transaction relating to the Convertible Notes described in the confirmation between the parties hereto regarding the Bond Hedge Transaction dated November 6, 2018 (Reference Number(s): [____]) (the “Bond Hedge Transaction”) or the Bond Hedge Transaction is otherwise cancelled or terminated prior to its expiration for any reason; or
(iii) if at any time Dealer receives a Par Value Notice, unless the Calculation Agent shall have determined that the applicable Par Value Event would not result in the amount of the Premium being less than the aggregate par value of the Maximum Amount of Shares following such event (a “Par Value ATE”); provided that, notwithstanding anything to the contrary in the Agreement, Dealer shall designate designates an Early Termination Date in respect the event of a Par Value ATE no later than credit downgrade event with respect to Party A as provided in subparagraph (i)(A) above.
(iii) In the anticipated record event either S&P or other effective date Moody's rates the creditworthiness of Party A's unsecured and unsubordinated debt, deposit or letter of credit obligations below investment grade as provided in Part 1(i)(i)(A) above and Party A fails to make a Permitted Transfer of the Affected Transactions within thirty days of the occurrence of such event specified credit downgrade event, then, beginning on the Over-Collateralization Commencement Date and continuing until Party A has made a Permitted Transfer of the Affected Transactions, Party A shall transfer to Party B's Custodian under the Credit Support Annex an amount of Eligible Collateral having a Value at least equal to the greatest of (x) Party A's Exposure under the Affected Transactions, (y) the amount of the next payment due from Party A to Party B under the Affected Transactions, or (z) one percent of the Transactional Notional Amount (as hereinafter defined). The posting of such collateral by Party A shall have the effect that no Additional Termination Event under Part 1(i)(i)(A) shall exist with respect to the Affected Transactions unless Party A has not made a Permitted Transfer of the Affected Transactions within 60 days after the occurrence of such credit downgrade event. Party A shall continue to post collateral following such 60 day period in accordance with the Par Value Notice.terms of this Agreement until the earlier to occur of consummation of a Permitted Transfer of the Affected Transactions or termination of this Agreement. At all times following the occurrence of an Over-Collateralization Commencement Date, Party A will continue to use commercially reasonable efforts to find a
Appears in 1 contract
Samples: Isda Master Agreement (Popular ABS Mortgage Pass-Through Trust 2006-A)
Additional Termination Events. The occurrence Notwithstanding anything to the contrary in this Confirmation:
(i) If an event of any default with respect to Counterparty that results in an acceleration of the following Convertible Notes pursuant to the terms of the Indenture occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the Indenture, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to which such Additional Termination Event, (1A) Counterparty shall be deemed to be the sole Affected Party and Party, (2B) the Transaction shall be the sole Affected Transaction; Transaction and (C) Dealer shall designate, at its own election or at Counterparty’s request, an Exchange Business Day (which Exchange Business Day shall be on or as promptly as reasonably practicable after the occurrence of such acceleration) as an Early Termination Date pursuant to Section 6(b) of the Agreement.
(ii) Following any repurchase of Convertible Notes (whether pursuant to Section 15.02 of the Indenture in connection with a Fundamental Change (as defined in the Indenture) or otherwise), Counterparty may notify Dealer of such repurchase and the aggregate principal amount of Convertible Notes so repurchased and cancelled (any such notice, a “Repurchase Notice”). The receipt by Dealer from Counterparty of any Repurchase Notice shall constitute an Additional Termination Event as provided that in this Section 9(j)(ii). Upon receipt of any such Repurchase Notice, Dealer shall designate an Exchange Business Day following receipt of such Repurchase Notice (which Exchange Business Day shall be on or as promptly as reasonably practicable after the related settlement date for the repurchase of such Convertible Notes) as an Early Termination Date with respect to any the portion of this Transaction corresponding to a number of Options (the “Repurchase Options”) equal to the lesser of (A) the aggregate principal amount of such Convertible Notes specified in such Repurchase Notice, divided by USD 1,000 and (B) the Number of Options as of the following date Dealer designates such Early Termination Date and, as of such date, the Number of Options shall be reduced by the number of Repurchase Options. Any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to this Transaction and a Number of Options equal to the number of Repurchase Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination Events described in clauses Event and (i3) or (ii) below, Dealer may choose to treat one or more parts the terminated portion of the Transaction were the sole Affected Transaction.
(iii) The receipt by Dealer from Counterparty, within the applicable time period set forth under “Notice of Exercise” above, of any Notice of Exercise in respect of Options that relates to Convertible Notes as to which additional Shares would be added to the Conversion Rate pursuant to Section 14.03 of the Indenture in connection with a “Fundamental Change” (as defined in the Indenture) shall constitute an Additional Termination Event as provided in this Section 9(j)(iii). Upon receipt of any such Notice of Exercise, Dealer shall designate an Exchange Business Day following such Additional Termination Event (which Exchange Business Day shall be on or as promptly as reasonably practicable after the related settlement date for such Convertible Notes) as an Early Termination Date with respect to the portion of this Transaction corresponding to a number of Options (the “Make-Whole Conversion Options”) equal to the lesser of (A) the number of such Options specified in such Notice of Exercise and (B) the Number of Options as of the date Dealer designates such Early Termination Date and, as of such date, the Number of Options shall be reduced by the number of Make-Whole Conversion Options. Any payment hereunder with respect to such termination (the “Make-Whole Unwind Payment”) shall be calculated pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to this Transaction and a Number of Options equal to the number of Make-Whole Conversion Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (3) the terminated portion of the Transaction were the sole Affected Transaction and either to terminate each such part on different days or to calculate the amount owing in connection with such Additional Termination Event by reference to a Share price determined over a period not to exceed 50 Exchange Business Days, and, upon termination of an Affected Transaction, a Transaction with a Number of Warrants equal to the unaffected number of Warrants shall be treated for all purposes as the Transaction, which shall remain in full force and effect (and, for the avoidance of doubt, shall be subject in determining the amount payable pursuant to all relevant provisions and adjustments as if an Additional Termination Event had not occurred; and, provided further, that, without limiting the foregoing, notwithstanding the provisions of Section 6(b)(iv) 6 of the Agreement, the Calculation Agent shall not take into account any adjustments to the Option Entitlement that result from corresponding adjustments to the Conversion Rate pursuant to Section 14.03 of the Indenture); provided that the amount of cash deliverable in respect of such early termination by Dealer to Counterparty shall also have not be greater than the right to designate an Early Termination Date with respect to the Additional Termination Event described in clause (ii) below if Counterparty product of (x) provides a certificate that includes a representation that Counterparty is not, as of the date of such certificate, aware of any material non-public information concerning itself or the Shares (where “material” shall have the meaning set forth in paragraph 5(o) below) Applicable Percentage and (y) satisfies such other conditions, including making additional representations and warranties, relating the excess of (I) (1) the number of Make-Whole Conversion Options multiplied by (2) the Conversion Rate (after taking into account any applicable adjustments to securities law and other issues as requested the Conversion Rate pursuant to Section 14.03 of the Indenture) multiplied by (3) a price per Share determined by the Calculation Agent:
Agent over (iII) if at any time Dealer is unablethe aggregate principal amount of such Convertible Notes, or reasonably determines that it is inadvisable, to hedge its obligations pursuant to this Transaction in the public market without registration under the Securities Act or as a result of any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed determined by law or have been voluntarily adopted by Dealer);
(ii) if at any time an Early Termination Date is designated with respect to the transaction relating to the Convertible Notes described in the confirmation between the parties hereto regarding the Bond Hedge Transaction dated November 6, 2018 (Reference Number(s): [____]) (the “Bond Hedge Transaction”) or the Bond Hedge Transaction is otherwise cancelled or terminated prior to its expiration for any reason; or
(iii) if at any time Dealer receives a Par Value Notice, unless the Calculation Agent shall have determined that in a commercially reasonable manner. Counterparty may irrevocably elect, if so designated in its Notice of Exercise to Dealer as set forth above, to receive the applicable Par Value Event would not result Make-Whole Unwind Payment in the amount Shares, in which case, in lieu of the Premium being less than the aggregate par value of the Maximum Amount of Shares following making such event (a “Par Value ATE”); provided that, notwithstanding anything to the contrary in the AgreementMake-Whole Unwind Payment as set forth above, Dealer shall designate an Early Termination Date deliver to Counterparty, within a commercially reasonable period of time after such designation as determined by Dealer (taking into account existing liquidity conditions and Dealer’s hedging and hedge unwind activity or settlement activity in respect connection with such delivery) a number of Shares equal to such Make-Whole Unwind Payment divided by a Par Value ATE no later than price per Share determined by the anticipated record or other effective date of such event specified Calculation Agent in the Par Value Noticegood faith and in a commercially reasonable manner.
Appears in 1 contract
Samples: Call Option Transaction (American Equity Investment Life Holding Co)
Additional Termination Events. Will apply to Seller and to Counterparty and Seller and Counterparty shall each be the Affected Party. The occurrence of any of the following events shall constitute an Additional Termination Event with respect Event: (a) The Business Combination fails to which close on or before the Outside Date (1as defined in the Merger Agreement) (as such Outside Date may be amended or extended from time to time); and(b) The Merger Agreement is terminated prior to the closing of the Business Combination; and (c) If it is, or, as a consequence of a change in law, regulation or interpretation, it becomes or will become, unlawful for the Seller or the Counterparty to perform any of its obligations contemplated by the Transaction; and Notwithstanding the foregoing, Counterparty’s obligations set forth under the captions, “Reimbursement of Legal Fees and Other Expenses,” and “Other Provisions — (d) Indemnification” shall survive any termination due to the occurrence of either of the foregoing Additional Termination Events. Upon any termination that occurs following the closing of the Business Combination due to paragraph (c) above, Counterparty shall be obligated to promptly accept for redemption all of Seller’s Shares in exchange for the sole Affected Party and (2) the Transaction Redemption Price; provided that, any amount owed by Counterparty shall be reduced by any Prepayment Amount previously paid. Except as set forth in the sole Affected Transaction; provided that with respect to any of the following Additional Termination Events described immediately preceding sentence, in clauses (i) all other circumstances no further payments or (ii) below, Dealer may choose to treat one or more parts of the Transaction as the sole Affected Transaction and either to terminate each such part on different days or to calculate the amount owing in connection with such Additional Termination Event by reference to a Share price determined over a period not to exceed 50 Exchange Business Days, and, upon termination of an Affected Transaction, a Transaction with a Number of Warrants equal to the unaffected number of Warrants deliveries shall be treated for all purposes as due by either Seller to Counterparty or Counterparty to Seller in respect of the Transaction, which including without limitation in respect of any settlement amount, breakage costs or any amounts representing the future value of the Transaction, and neither party shall remain in full force and effect have any further obligation under the Transaction and, for the avoidance of doubt and without limitation, no payments will have accrued or be due under Sections 2, 6 or 11 of the ISDA Form. For the avoidance of doubt, Counterparty as referenced in this paragraph shall be subject to all relevant provisions and adjustments as if an Additional Termination Event had only mean ARRW, not occurred; and, provided further, that, without limiting the foregoing, notwithstanding the provisions of Section 6(b)(iv) of the Agreement, Counterparty shall also have the right to designate an Early Termination Date with respect to the Additional Termination Event described in clause (ii) below if Counterparty (x) provides a certificate that includes a representation that Counterparty is not, as of the date of such certificate, aware of any material non-public information concerning itself or the Shares (where “material” shall have the meaning set forth in paragraph 5(o) below) and (y) satisfies such other conditions, including making additional representations and warranties, relating to securities law and other issues as requested by the Calculation Agent:
(i) if at any time Dealer is unable, or reasonably determines that it is inadvisable, to hedge its obligations pursuant to this Transaction in the public market without registration under the Securities Act or as a result of any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer);
(ii) if at any time an Early Termination Date is designated with respect to the transaction relating to the Convertible Notes described in the confirmation between the parties hereto regarding the Bond Hedge Transaction dated November 6, 2018 (Reference Number(s): [____]) (the “Bond Hedge Transaction”) or the Bond Hedge Transaction is otherwise cancelled or terminated prior to its expiration for any reason; or
(iii) if at any time Dealer receives a Par Value Notice, unless the Calculation Agent shall have determined that the applicable Par Value Event would not result in the amount of the Premium being less than the aggregate par value of the Maximum Amount of Shares following such event (a “Par Value ATE”); provided that, notwithstanding anything to the contrary in the Agreement, Dealer shall designate an Early Termination Date in respect of a Par Value ATE no later than the anticipated record or other effective date of such event specified in the Par Value NoticeTarget.
Appears in 1 contract
Samples: Otc Equity Prepaid Forward Transaction (Arrowroot Acquisition Corp.)
Additional Termination Events. The occurrence (i) Notwithstanding anything to the contrary in this Confirmation, if an event of any default with respect to Counterparty occurs that results in the acceleration of the following Convertible Notes pursuant to the terms of the Convertible Notes as set forth in Section 6.01 of the Indenture, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to which such Additional Termination Event, (1A) Counterparty shall be deemed to be the sole Affected Party and Party, (2B) the Transaction shall be the sole Affected Transaction; provided that with respect Transaction and (C) Dealer shall be the party entitled to any designate an Early Termination Date pursuant to Section 6(b) of the Agreement. 10 To be included for broker-dealer. 25 (ii) Promptly (and in any event within five Scheduled Trading Days) following Additional Termination Events described in clauses (i) or any repurchase (ii) below, Dealer may choose to treat one or more parts of the Transaction as the sole Affected Transaction and either to terminate each such part on different days or to calculate the amount owing in connection with such Additional Termination Event by reference to a Share price determined over a period not to exceed 50 Exchange Business Days, and, upon termination of an Affected Transaction, a Transaction with a Number of Warrants equal to the unaffected number of Warrants shall be treated for all purposes as the Transaction, which shall remain in full force and effect andwhich, for the avoidance of doubt, shall be includes any exchange transaction) of Convertible Notes, including without limitation pursuant to Article 15 of the Indenture in connection with a “Fundamental Change” (as defined in the Indenture), or (ii) any conversion of the Convertible Notes in exchange for delivery of any property or assets of Issuer or any of Issuer’s subsidiaries (howsoever described) (other than the delivery of conversion consideration pursuant to the terms of the Indenture) (such events, a “Repurchase Event”), Counterparty may notify Dealer in writing of such Repurchase Event and the number of Convertible Notes subject to all relevant provisions such Repurchase Event (any such notice, a “Repurchase Notice”). Notwithstanding anything to the contrary in this Confirmation, the receipt by Dealer from Counterparty of (x) any Repurchase Notice, within the applicable time period set forth in the preceding sentence, and adjustments (y) a written representation and warranty by Counterparty that, as if of the date of such Repurchase Notice, Counterparty is not in possession of any material non-public information regarding Counterparty or the Shares, shall constitute an Additional Termination Event had not occurred; andas provided in this paragraph. Upon receipt of any such Repurchase Notice and the related written representation and warranty, provided further, that, without limiting Dealer shall promptly designate an Exchange Business Day following receipt of such Repurchase Notice (which Exchange Business Day shall be on or as promptly as reasonably practicable after the foregoing, notwithstanding related repurchase settlement date for the provisions of Section 6(b)(ivrelevant Repurchase Event) of the Agreement, Counterparty shall also have the right to designate as an Early Termination Date with respect to the Additional Termination Event described portion of this Transaction corresponding to a number of Options (the “Repurchase Options”) equal to the lesser of (A) the number of such Convertible Notes specified in clause such Repurchase Notice and (iiB) below if Counterparty (x) provides a certificate that includes a representation that Counterparty is not, the Number of Options as of the date Dealer designates such Early Termination Date and, as of such certificatedate, aware the Number of any material non-public information concerning itself or the Shares (where “material” Options shall have the meaning set forth in paragraph 5(o) below) and (y) satisfies such other conditions, including making additional representations and warranties, relating to securities law and other issues as requested be reduced by the Calculation Agent:
(i) if at any time Dealer is unable, or reasonably determines that it is inadvisable, number of Repurchase Options. Any payment hereunder with respect to hedge its obligations such termination shall be calculated pursuant to this Transaction in Section 6 of the public market without registration under the Securities Act or Agreement as a result of any legal, regulatory or self-regulatory requirements or related policies and procedures if (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer);
(ii1) if at any time an Early Termination Date is had been designated with respect to the transaction relating to the Convertible Notes described in the confirmation between the parties hereto regarding the Bond Hedge Transaction dated November 6, 2018 (Reference Number(s): [____]) (the “Bond Hedge Transaction”) or the Bond Hedge Transaction is otherwise cancelled or terminated prior to its expiration for any reason; or
(iii) if at any time Dealer receives a Par Value Notice, unless the Calculation Agent shall have determined that the applicable Par Value Event would not result in the amount of the Premium being less than the aggregate par value of the Maximum Amount of Shares following such event (a “Par Value ATE”); provided that, notwithstanding anything to the contrary in the Agreement, Dealer shall designate an Early Termination Date in respect of a Par Value ATE Transaction having terms identical to this Transaction and a Number of Options equal to the number of Repurchase Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination Event, (3) no later than adjustment to the anticipated record or other effective date of such event specified “Conversion Rate” (as defined in the Par Value NoticeIndenture) for the Convertible Notes has occurred pursuant to any Excluded Provision, (4) the corresponding Convertible Notes remaining outstanding as if the circumstances related to the Repurchase Event had not occurred, (5) the relevant Repurchase Event and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, and (6) the terminated portion of the Transaction were the sole Affected Transaction.
Appears in 1 contract
Samples: Call Option Transaction (Ionis Pharmaceuticals Inc)
Additional Termination Events. The occurrence of any of the following shall constitute be an Additional Termination Event with respect to Counterparty (which (1) Counterparty shall be the sole Affected Party and (2) the this Transaction shall be the sole Affected Transaction; provided that with ):
(a) An Amendment Event occurs, in which case the entirety of this Transaction shall be subject to termination.
(b) A Repayment Event occurs, in which case this Transaction shall be subject to termination only in respect to any of the following Additional Termination Events described principal amount of Reference Notes in clauses (i) or (ii) below, Dealer may choose excess of $800,000,000 that cease to treat one or more parts of the Transaction as the sole Affected Transaction and either to terminate each such part on different days or to calculate the amount owing be outstanding in connection with or as a result of such Additional Termination Repayment Event by reference to a Share price determined over a period not to exceed 50 Exchange Business Days, and, upon termination of an Affected Transaction, a Transaction with a Number of Warrants equal to the unaffected number of Warrants shall be treated for all purposes as the Transaction, which shall remain in full force and effect (and, for the avoidance of doubt, if the principal amount of Reference Notes that cease to be outstanding is less than $920,000,000, then the terms of this Transaction shall be continue to apply, subject to all relevant provisions the terms and adjustments as if an Additional Termination Event had not occurred; and, provided further, that, without limiting the foregoing, notwithstanding the provisions of Section 6(b)(iv) of the Agreement, Counterparty shall also have the right to designate an Early Termination Date with respect to the Additional Termination Event described in clause (ii) below if Counterparty (x) provides a certificate that includes a representation that Counterparty is not, as of the date of such certificate, aware of any material non-public information concerning itself or the Shares (where “material” shall have the meaning conditions set forth in paragraph 5(o) below) and (y) satisfies such other conditions, including making additional representations and warranties, relating to securities law and other issues as requested by the Calculation Agent:herein).
(ic) if at any time Dealer is unable, or reasonably determines that it is inadvisable, The Option Exercise shall fail to hedge its obligations pursuant to this Transaction in the public market without registration under the Securities Act or close as a result of any legalbreach by Counterparty of its obligations thereunder, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer);in which case the entirety of this Transaction shall terminate automatically.
(iid) if If at any time an Early Termination Date is designated with respect all, or any portion, of the securities, property or other assets into which (or for which) the Reference Notes are convertible (or exchangeable) consists of securities, property or other assets other than ordinary or common shares that are publicly quoted, traded or listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ National Market System (or their respective successors), the inability of Deutsche due to the market conditions, illiquidity, illegality, lack of availability of market participants or otherwise, to establish, re-establish, unwind or maintain any hedging transaction relating to the Convertible Notes described necessary or desirable in the confirmation between normal course of Deutsche’s business of hedging the parties hereto regarding price and market risk of entering into and performing under this Transaction, in which case the Bond Hedge entirety of this Transaction dated November 6, 2018 (Reference Number(s): [____]) (the “Bond Hedge Transaction”) or the Bond Hedge Transaction is otherwise cancelled or terminated prior shall be subject to its expiration for any reason; or
(iii) if at any time Dealer receives a Par Value Notice, unless the Calculation Agent shall have determined that the applicable Par Value Event would not result in the amount of the Premium being less than the aggregate par value of the Maximum Amount of Shares following such event (a “Par Value ATE”); provided that, notwithstanding termination. Notwithstanding anything to the contrary in the AgreementAgreement or the Definitions, Dealer shall designate an Early Termination Date Counterparty may require, by written notice to Deutsche, any amount owed by Deutsche to Counterparty in respect connection with termination of a Par Value ATE no later than the anticipated record Transaction to be paid in the type of securities, property or other effective date assets into which (or for which) the Reference Notes are convertible (or exchangeable) at the time of such event specified termination (the value of such securities, property or other assets to be based on their fair market value on the date the Transaction is terminated as determined by the Calculation Agent in good faith and in a commercially reasonable manner). In addition if the Par Value Notice.Option Exercise shall fail to close for any reason other than those set forth in clause (c) above, then the entirety of this Transaction shall terminate automatically and no payments or deliveries shall be required hereunder. As used in this Confirmation:
Appears in 1 contract
Samples: Confirmation (Cephalon Inc)
Additional Termination Events. The occurrence (i) Notwithstanding anything to the contrary in this Confirmation, if an event of any default with respect to Counterparty occurs under the terms of the following Convertible Notes as set forth in Section 6.01 of the Indenture that results in an acceleration of the Convertible Notes pursuant to the terms of the Indenture, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to which such Additional Termination Event, (1A) Counterparty shall be deemed to be the sole Affected Party and Party, (2B) the Transaction shall be the sole Affected Transaction; Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement.
(ii) Promptly following (x) any repurchase and cancellation of Convertible Notes pursuant to Article 15 of the Indenture in connection with a “Fundamental Change” (as defined in the Indenture), Counterparty shall notify Dealer in writing of such repurchase and cancellation and the number of Convertible Notes so repurchased and cancelled or (y) any repurchase and cancellation of Convertible Notes not described in clause (x) above, Counterparty may notify Dealer in writing of such repurchase and cancellation and the number of Convertible Notes so repurchased and cancelled (any such notice in (x) or (y), a “Repayment Notice”). Notwithstanding anything to the contrary in this Confirmation, the receipt by Dealer from Counterparty of (a) any Repayment Notice, within the applicable time period set forth in the preceding sentence, and (b) a written representation and warranty by Counterparty that, as of the date of such Repayment Notice, Counterparty is not in possession of any material non-public information regarding Counterparty or the Shares, shall constitute an Additional Termination Event as provided that in this Section 9(i)(ii). Upon receipt of any such Repayment Notice and the related written representation and warranty, Dealer shall promptly designate an Exchange Business Day following receipt of such Repayment Notice (which in no event shall be earlier than the related settlement date for such Convertible Notes) as an Early Termination Date with respect to any the portion of this Transaction corresponding to a number of Options (the “Repurchase Options”) equal to the lesser of (A) the number of such Convertible Notes specified in such Repayment Notice [minus the number of “Repurchase Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Convertible Notes] and (B) the Number of Options as of the following date Dealer designates such Early Termination Date and, as of such date, the Number of Options shall be reduced by the number of Repurchase Options. Any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to this Transaction and a Number of Options equal to the number of Repurchase Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination Events described in clauses Event and (i3) or (ii) below, Dealer may choose to treat one or more parts the terminated portion of the Transaction were the sole Affected Transaction.
(iii) Notwithstanding anything to the contrary in this Confirmation, the receipt by Dealer from Counterparty, within the applicable time period set forth opposite “Notice of Exercise” in Section 2, of any Notice of Exercise in respect of Options that relate to Convertible Notes as to which additional Shares would be added to the “Conversion Rate” (as defined in the Indenture) pursuant to Section 14.03 of the Indenture in connection with a “Make-Whole Fundamental Change” (as defined in the Indenture) shall constitute an Additional Termination Event as provided in this Section 9(i)(iii). Upon receipt of any such Notice of Exercise, Dealer shall designate an Exchange Business Day following such Additional Termination Event (which Exchange Business Day shall in no event be earlier than the related settlement date for such Convertible Notes) as an Early Termination Date with respect to the portion of the Transaction corresponding to a number of Options (the “Make-Whole Conversion Options”) equal to the lesser of (A) the number of such Options specified in such Notice of Exercise [minus the number of “Make-Whole Conversion Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Convertible Notes] and (B) the Number of Options as of the date Dealer designates such Early Termination Date and, as of such date, the Number of Options shall be reduced by the number of Make-Whole Conversion Options. Any payment hereunder with respect to such termination (the “Make-Whole Unwind Payment”) shall be calculated pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the number of Make-Whole Conversion Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (3) the terminated portion of the Transaction were the sole Affected Transaction and either to terminate each such part on different days or to calculate the amount owing in connection with such Additional Termination Event by reference to a Share price determined over a period not to exceed 50 Exchange Business Days, and, upon termination of an Affected Transaction, a Transaction with a Number of Warrants equal to the unaffected number of Warrants shall be treated for all purposes as the Transaction, which shall remain in full force and effect (and, for the avoidance of doubt, shall be subject in determining the amount payable pursuant to all relevant provisions and adjustments as if an Additional Termination Event had not occurred; and, provided further, that, without limiting the foregoing, notwithstanding the provisions of Section 6(b)(iv) 6 of the Agreement, Counterparty the Calculation Agent shall also have the right to designate an Early Termination Date with respect not take into account any adjustments to the Additional Termination Event described Option Entitlement that result from corresponding adjustments to the “Conversion Rate” (as defined in clause (iithe Indenture) below if Counterparty pursuant to Section 14.03(a) of the Indenture); provided that the Make-Whole Unwind Payment shall not be greater than the product of (x) provides a certificate that includes a representation that Counterparty is not, as of the date of such certificate, aware of any material non-public information concerning itself or the Shares (where “material” shall have the meaning set forth in paragraph 5(o) below) Applicable Percentage and (y) satisfies such other conditionsthe excess of (I) (1) the number of Make-Whole Conversion Options, including making additional representations multiplied by (2) the “Conversion Rate” (as defined in the Indenture, and warrantiesafter taking into account any applicable adjustments to the Conversion Rate pursuant to Section 14.03(a) of the Indenture), relating to securities law and other issues as requested multiplied by (3) a market price per Share determined by the Calculation Agent:
Agent in a commercially reasonable manner over (iII) if at any time Dealer is unablethe aggregate principal amount of such Convertible Notes, or reasonably determines that it is inadvisable, to hedge its obligations pursuant to this Transaction in the public market without registration under the Securities Act or as a result of any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed determined by law or have been voluntarily adopted by Dealer);
(ii) if at any time an Early Termination Date is designated with respect to the transaction relating to the Convertible Notes described in the confirmation between the parties hereto regarding the Bond Hedge Transaction dated November 6, 2018 (Reference Number(s): [____]) (the “Bond Hedge Transaction”) or the Bond Hedge Transaction is otherwise cancelled or terminated prior to its expiration for any reason; or
(iii) if at any time Dealer receives a Par Value Notice, unless the Calculation Agent shall have determined that the applicable Par Value Event would not result in a commercially reasonable manner. Counterparty may irrevocably elect in the amount relevant Notice of the Premium being less than the aggregate par value Exercise to receive any Make-Whole Unwind Payment in Shares, in which case, in lieu of the Maximum Amount making such Make-Whole Unwind Payment as set forth above, Dealer shall deliver to Counterparty, within a commercially reasonable period of time after such designation as determined by Dealer (taking into account existing liquidity conditions and Dealer’s hedging and hedge unwind activity or settlement activity in connection with such delivery) a number of Shares following equal to (A) such event Make-Whole Unwind Payment, divided by (B) a “Par Value ATE”)price per Share determined by the Calculation Agent in good faith and in a commercially reasonable manner; provided that, notwithstanding anything to the contrary in Section 9(l), Counterparty may elect to receive a Make-Whole Unwind Payment in Shares only if Counterparty represents and warrants to Dealer in writing on the Agreement, Dealer shall designate an Early Termination Date in respect of a Par Value ATE no later than the anticipated record or other effective date of such event specified election that Counterparty is not in possession of any material non-public information regarding Counterparty or the Par Value NoticeShares.
Appears in 1 contract
Additional Termination Events. The occurrence of any of the following shall constitute an Additional Termination Event with respect to which (1) Counterparty shall be the sole Affected Party and (2) the Transaction shall be the sole Affected Transaction; provided that with respect to any of the following Additional Termination Events described in clauses (i) or (ii) below, Dealer may choose to treat one or more parts of the Transaction as the sole Affected Transaction and either to terminate each such part on different days or to calculate the amount owing in connection with such Additional Termination Event by reference to a Share price determined over a period not to exceed 50 Exchange Business Days, and, upon termination of an Affected Transaction, a Transaction with a Number of Warrants equal to the unaffected number of Warrants shall be treated for all purposes as the Transaction, which shall remain in full force and effect and, for the avoidance of doubt, shall be subject to all relevant provisions and adjustments as if an Additional Termination Event had not occurred; and, provided further, that, without limiting the foregoing, notwithstanding the provisions of under Section 6(b)(iv5(b)(v) of the Agreement, Counterparty shall also have the right to designate an Early Termination Date with respect to the Additional Termination Event described in clause (ii) below if Counterparty (x) provides a certificate that includes a representation that Counterparty is not, as of the date of such certificate, aware of any material non-public information concerning itself or the Shares (where “material” shall have the meaning set forth in paragraph 5(o) below) and (y) satisfies such other conditions, including making additional representations and warranties, relating to securities law and other issues as requested by the Calculation Agent:.
(i) if at any time Dealer is unable, or reasonably determines that it is inadvisable, to hedge its obligations pursuant to this Transaction in the public market without registration The occurrence of an Optional Termination under the Securities Act or as a result of any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer);
(ii) if at any time an Early Termination Date is designated with respect to the transaction relating to the Convertible Notes described in the confirmation between the parties hereto regarding the Bond Hedge Transaction dated November 6, 2018 (Reference Number(s): [____]) (the “Bond Hedge Transaction”) or the Bond Hedge Transaction is otherwise cancelled or terminated prior to its expiration for any reason; or
(iii) if at any time Dealer receives a Par Value Notice, unless the Calculation Agent shall have determined that the applicable Par Value Event would not result in the amount Section 10.01 of the Premium being less than the aggregate par value of the Maximum Amount of Shares following such event (a “Par Value ATE”); provided that, notwithstanding Pooling and Servicing Agreement. Notwithstanding anything to the contrary in the Agreement, Dealer shall designate an the Early Termination Date with respect to this Additional Termination Event shall be the Optional Termination Date designated under the Pooling and Servicing Agreement.
(ii) Any of the Grantor Trust Agreement, the Pooling and Servicing Agreement or any other instrument or agreement relating to the issuance of the Class 5 A-3 Floating Rate Certificates (collectively, the "Transaction Documents") shall have been amended or modified without the prior written consent of Party A if the result of such amendment or modification is (a) to increase or reduce or change the priority of payment of any amount stated to be payable by either party under the Transaction; (b) accelerate or postpone the scheduled date of any payment under the Transaction, (c) affect the calculation of any amount that would have been payable upon an early termination of the Transaction, (d) release a party from any of its obligations under the Transaction; or (e) modify any of the definitions in respect any of the Transaction Documents which would have the affect of any of the foregoing.
(iii) 30 days following a Downgrade Event if Party A has not taken action that prevents the downgrading of the Class 5 A-3 Floating Rate Certificates below the rating of such Certificates by Xxxxx'x Investors Service, Inc. ("Moody's") immediately prior to the Downgrade Event.
(iv) A payment default on the Class 5 A-3 REMIC Certificates that is caused by the failure of a Par Value ATE no later than party to the anticipated record or other effective date of Pooling and Servicing Agreement to make a payment when due, provided that any cure period for such event specified default provided in the Par Value NoticePooling and Servicing Agreement has expired.
(v) The termination or dissolution of the Trust for any reason whatsoever, including a termination pursuant to Section 9.01 of the Grantor Trust Agreement.
Appears in 1 contract
Samples: Isda Master Agreement (Credit Suisse First Boston Mortgage Securities Corp)
Additional Termination Events. The occurrence (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of any which Counterparty has delivered an Early Conversion Notice (as defined below):
(A) the giving of the following such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); provided that any such Early Conversion Notice shall contain an acknowledgment by Counterparty of its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act and the rules and regulations thereunder, in respect of the delivery of such Early Conversion Notice; provided further that the provisions of this Section 10(i)(i) shall not apply to any Affected Convertible Note (i) with respect to which Counterparty has elected the “Exchange in Lieu of Conversion” option pursuant to Section 14.12 of the Indenture and (1ii) that has been accepted by the designated financial institution pursuant to Section 14.12 of the Indenture, except to the extent that Counterparty notifies Dealer, within ten Scheduled Trading Days of the then applicable conversion settlement date determined pursuant to Section 14.02(c) of the Indenture, that (x) such financial institution has failed to pay or deliver, as the case may be, the consideration due upon conversion of such Affected Convertible Note, or (y) such Affected Convertible Note is subsequently resubmitted to Counterparty for Early Conversion in accordance with the terms of the Indenture;
(B) upon receipt of any Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be on or as promptly as reasonably practicable after the related conversion settlement date for such Early Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes (as defined below) and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction (and, for the avoidance of doubt, the provisions of Section 10(m) shall apply to any amount that is payable by Dealer to Counterparty pursuant to this Section 10(i)(C) as if Counterparty were not the Affected Party);
(D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and
(E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options.
(ii) Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the Indenture and such event of default results in the Convertible Notes being accelerated and declared due and payable, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party and Party, (2B) the Transaction shall be the sole Affected TransactionTransaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement (which Early Termination Date shall be on or as promptly as reasonably practicable after Dealer becomes aware of the occurrence of such acceleration).
(iii) Within five Scheduled Trading Days following any Repayment Event (as defined below), Counterparty may notify Dealer of such Repayment Event and the aggregate principal amount of Convertible Notes subject to such Repayment Event (any such notice, a “Repayment Notice”); provided that with respect to any such Repayment Notice shall contain an acknowledgement by Counterparty of its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the following Additional Termination Events described Exchange Act and the rules and regulations thereunder, in clauses (i) or (ii) below, Dealer may choose to treat one or more parts respect of the Transaction delivery of such Repayment Notice and shall remake the representation set forth in Section 8(f) hereof as of the sole Affected Transaction and either to terminate each date of such part on different days or to calculate the amount owing in connection with such Additional Termination Event Repayment Notice. The receipt by reference to a Share price determined over a period not to exceed 50 Exchange Business Days, and, upon termination Dealer from Counterparty of an Affected Transaction, a Transaction with a Number of Warrants equal to the unaffected number of Warrants any Repayment Notice shall be treated for all purposes as the Transaction, which shall remain in full force and effect and, for the avoidance of doubt, shall be subject to all relevant provisions and adjustments as if constitute an Additional Termination Event had not occurred; andas provided in this Section 10(i)(iii). Upon receipt of any such Repayment Notice, provided further, that, without limiting Dealer shall designate an Exchange Business Day following receipt of such Repayment Notice (which Exchange Business Day shall be on or as promptly as reasonably practicable after the foregoing, notwithstanding related repurchase settlement date for the provisions of Section 6(b)(ivrelevant repayment event) of the Agreement, Counterparty shall also have the right to designate as an Early Termination Date with respect to the Additional Termination Event described portion of the Transaction corresponding to a number of Options (the “Repayment Options”) equal to the lesser of (A) the aggregate principal amount of such Convertible Notes specified in clause such Repayment Notice, divided by USD 1,000, and (iiB) below if Counterparty (x) provides a certificate that includes a representation that Counterparty is not, the Number of Options as of the date Dealer designates such Early Termination Date and, as of such certificatedate, aware the Number of any material non-public information concerning itself or the Shares (where “material” Options shall have the meaning set forth in paragraph 5(o) below) and (y) satisfies such other conditions, including making additional representations and warranties, relating to securities law and other issues as requested be reduced by the Calculation Agent:
number of Repayment Options. Any payment hereunder with respect to such termination (ithe “Repayment Unwind Payment”) if at any time Dealer is unable, or reasonably determines that it is inadvisable, to hedge its obligations shall be calculated pursuant to this Transaction in Section 6 of the public market without registration under the Securities Act or Agreement as a result of any legal, regulatory or self-regulatory requirements or related policies and procedures if (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer);
(ii1) if at any time an Early Termination Date is had been designated with respect to the transaction relating to the Convertible Notes described in the confirmation between the parties hereto regarding the Bond Hedge Transaction dated November 6, 2018 (Reference Number(s): [____]) (the “Bond Hedge Transaction”) or the Bond Hedge Transaction is otherwise cancelled or terminated prior to its expiration for any reason; or
(iii) if at any time Dealer receives a Par Value Notice, unless the Calculation Agent shall have determined that the applicable Par Value Event would not result in the amount of the Premium being less than the aggregate par value of the Maximum Amount of Shares following such event (a “Par Value ATE”); provided that, notwithstanding anything to the contrary in the Agreement, Dealer shall designate an Early Termination Date in respect of a Par Value ATE no later than Transaction having terms identical to the anticipated record or other effective date Transaction and a Number of such event specified in Options equal to the Par Value Notice.number of Repayment Options, (2) Counterparty were
Appears in 1 contract
Samples: Base Call Option Transaction (Brookdale Senior Living Inc.)
Additional Termination Events. The occurrence (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of any which a “Notice of Conversion” (as defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant converting Holder:
(A) Counterparty shall, within five Scheduled Trading Days of the following “Conversion Date” (as defined in the Indenture) for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”) and the anticipated settlement date, and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); provided that any such Early Conversion Notice shall contain an acknowledgment by Counterparty of its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act and the rules and regulations thereunder, in respect of the delivery of such Early Conversion Notice; provided further that the provisions of this Section 10(i)(i) shall not apply to any Affected Convertible Note (i) with respect to which Counterparty has elected the “Exchange in Lieu of Conversion” option pursuant to Section 14.12 of the Indenture and (1ii) that has been accepted by the designated financial institution pursuant to Section 14.12 of the Indenture, except to the extent that Counterparty notifies Dealer, within ten Scheduled Trading Days of the then applicable conversion settlement date determined pursuant to Section 14.02(c) of the Indenture, that (x) such financial institution has failed to pay or deliver, as the case may be, the consideration due upon conversion of such Affected Convertible Note, or (y) such Affected Convertible Note is subsequently resubmitted to Counterparty for Early Conversion in accordance with the terms of the Indenture;
(B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be on or as promptly as reasonably practicable after the related conversion settlement date for such Early Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes minus the “Affected Number of Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Affected Convertible Notes and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction (and, for the avoidance of doubt, the provisions of Section 10(m) shall apply to any amount that is payable by Dealer to Counterparty pursuant to this Section 10(i)(C) as if Counterparty were not the Affected Party);
(D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and
(E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options.
(ii) Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the Indenture and such event of default results in the Convertible Notes being accelerated and declared due and payable, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party and Party, (2B) the Transaction shall be the sole Affected TransactionTransaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement (which Early Termination Date shall be on or as promptly as reasonably practicable after Dealer becomes aware of the occurrence of such acceleration).
(iii) Within five Scheduled Trading Days following any Repayment Event (as defined below), Counterparty shall notify Dealer of such Repayment Event and the aggregate principal amount of Convertible Notes subject to such Repayment Event (any such notice, a “Repayment Notice”); provided that with respect to any such Repayment Notice shall contain an acknowledgement by Counterparty of its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the following Additional Termination Events described Exchange Act and the rules and regulations thereunder, in clauses (i) or (ii) below, Dealer may choose to treat one or more parts respect of the Transaction as the sole Affected Transaction and either delivery of such Repayment Notice. Any Repayment Notice delivered to terminate each such part on different days or to calculate the amount owing in connection with such Additional Termination Event by reference to a Share price determined over a period not to exceed 50 Exchange Business Days, and, upon termination of an Affected Transaction, a Transaction with a Number of Warrants equal Dealer pursuant to the unaffected number of Warrants Base Call Option Confirmation shall be treated for all purposes as deemed to be a Repayment Notice pursuant to this Confirmation and the Transactionterms of such Repayment Notice shall apply, which mutatis mutandis, to this Confirmation. The receipt by Dealer from Counterparty of any Repayment Notice shall remain in full force and effect and, for the avoidance of doubt, shall be subject to all relevant provisions and adjustments as if constitute an Additional Termination Event had not occurred; andas provided in this Section 10(i)(iii). Upon receipt of any such Repayment Notice, provided further, that, without limiting Dealer shall designate an Exchange Business Day following receipt of such Repayment Notice (which Exchange Business Day shall be on or as promptly as reasonably practicable after the foregoing, notwithstanding related repurchase settlement date for the provisions of Section 6(b)(ivrelevant repayment event) of the Agreement, Counterparty shall also have the right to designate as an Early Termination Date with respect to the Additional Termination Event described in clause portion of the Transaction corresponding to a number of Options (iithe “Repayment Options”) below if Counterparty equal to the lesser of (A) (x) provides a certificate the aggregate principal amount of such Convertible Notes specified in such Repayment Notice, divided by USD 1,000, minus (y) the number of “Repayment Options” (as defined in the Base Call Option Confirmation), if any, that includes a representation that Counterparty is notrelate to such Convertible Notes (and for the purposes of determining whether any Options under this Confirmation or under the Base Call Option Confirmation will be among the Repayment Options hereunder or under, and as defined in, the Base Call Option Confirmation, the Convertible Notes specified in such Repayment Notice shall be allocated first to the Base Call Option Confirmation until all Options thereunder are exercised or terminated), and (B) the Number of Options as of the date Dealer designates such Early Termination Date and, as of such certificatedate, aware the Number of Options shall be reduced by the number of Repayment Options. Any payment hereunder with respect to such termination (the “Repayment Unwind Payment”) shall be calculated pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the number of Repayment Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination Event,(3) no adjustments to the Conversion Rate have occurred pursuant to an Excluded Provision, (4) the corresponding Convertible Notes remain outstanding, (5) the relevant Repayment and any material non-public information concerning itself conversions, adjustments, agreements, payments, deliveries or the Shares (where “material” shall have the meaning set forth in paragraph 5(o) below) acquisitions by or on behalf of Counterparty leading thereto had not occurred and (y6) satisfies such other conditions, including making additional representations and warranties, relating to securities law and other issues as requested by the Calculation Agent:
terminated portion of the Transaction were the sole Affected Transaction. “Repayment Event” means that (i) if at any time Dealer is unable, Convertible Notes are repurchased or reasonably determines that it is inadvisable, to hedge its obligations pursuant to this Transaction redeemed (whether in the public market without registration under the Securities Act connection with or as a result of a fundamental change, howsoever defined, or for any legalother reason) by Counterparty or any of its subsidiaries, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer);
(ii) if at any time an Early Termination Date is designated with respect Convertible Notes are delivered to the transaction relating to Counterparty in exchange for delivery of any property or assets of Counterparty or any of its subsidiaries (howsoever described), (iii) any principal of any of the Convertible Notes described is repaid prior to the final maturity date of the Convertible Notes ( other than as a result of an acceleration of the Convertible Notes that results in an Additional Termination Event pursuant to Section 10(i)), or (iv) any Convertible Notes are exchanged by or for the benefit of the “Holders” (as defined in the confirmation between Indenture) thereof for any other securities of Counterparty or any of its subsidiaries (or any other property, or any combination thereof) pursuant to any exchange offer or similar transaction. For the parties hereto regarding avoidance of doubt, any conversion of Convertible Notes (whether into cash, Shares, “Reference Property” (as defined in the Bond Hedge Transaction dated November 6, 2018 (Reference Number(s): [____]) (the “Bond Hedge Transaction”Indenture) or any combination thereof) pursuant to the Bond Hedge Transaction is otherwise cancelled or terminated prior to its expiration for any reason; or
(iii) if at any time Dealer receives a Par Value Notice, unless the Calculation Agent shall have determined that the applicable Par Value Event would not result in the amount terms of the Premium being less than the aggregate par value of the Maximum Amount of Shares following such event (Indenture shall not constitute a “Par Value ATE”); provided that, notwithstanding anything to the contrary in the Agreement, Dealer shall designate an Early Termination Date in respect of a Par Value ATE no later than the anticipated record or other effective date of such event specified in the Par Value NoticeRepayment Event.
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Additional Termination Events. The occurrence (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of any which a “Notice of Conversion” (as such term is defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant converting Holder:
(A) Counterparty may, at its option, within five Scheduled Trading Days of the following Conversion Date for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”), and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i)[, and any Early Conversion Notice delivered to Dealer pursuant to the Base Call Option Confirmation shall be deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]36; provided that any such Early Conversion Notice shall contain a representation by Counterparty that the representations set forth in Section 8(c) are true and correct as of the date of such Early Conversion Notice; provided further that the provisions of this Section 9(j)(i) shall not apply to any Affected Convertible Note (i) with respect to which Counterparty has elected the “Exchange in Lieu of Conversion” option pursuant to Section [14.02(j)] of the Indenture and (1ii) that has been accepted by the designated financial institution pursuant to Section [14.02(j)] of the Indenture, except to the extent that Counterparty notifies Dealer, within five Scheduled Trading Days of the then applicable conversion settlement date determined pursuant to Section [14.02(c)] of the Indenture, that (x) such financial institution has failed to pay or deliver, as the case may be, the consideration due upon conversion of such Affected Convertible Note, or (y) such Affected Convertible Note is subsequently resubmitted to Counterparty for conversion in accordance with the terms of the Indenture;
(B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange 35 Include if applicable for Dealer. 36 Include in Additional Call Option Confirmation only. Business Day shall be no earlier than the later of (x) one Scheduled Trading Day following the Conversion Date for such Early Conversion and (y) the date on which Counterparty provides the written notice described in Section 9(j)(i)(A) above) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes [minus the “Affected Number of Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Affected Convertible Notes (and for the purposes of determining whether any Options under this Confirmation or under the Base Call Option Confirmation will be among the Affected Number of Options hereunder or under, and as defined in, the Base Call Option Confirmation, the Affected Convertible Notes specified in such Early Conversion Notice shall be allocated first to the Base Call Option Confirmation until all Options thereunder are exercised or terminated)]37 and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction;
(D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and
(E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options.
(ii) Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section [6.01]38 of the Indenture, and such event of default results in the Convertible Notes becoming or being declared due and payable pursuant to the terms of the Indenture, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party and Party, (2B) the Transaction shall be the sole Affected Transaction; provided that with respect to any of the following Additional Termination Events described in clauses (i) or (ii) below, Dealer may choose to treat one or more parts of the Transaction as the sole Affected Transaction and either to terminate each such part on different days or to calculate the amount owing in connection with such Additional Termination Event by reference to a Share price determined over a period not to exceed 50 Exchange Business Days, and, upon termination of an Affected Transaction, a Transaction with a Number of Warrants equal to the unaffected number of Warrants (C) Dealer shall be treated for all purposes as the Transaction, which shall remain in full force and effect and, for the avoidance of doubt, shall be subject to all relevant provisions and adjustments as if an Additional Termination Event had not occurred; and, provided further, that, without limiting the foregoing, notwithstanding the provisions of Section 6(b)(iv) of the Agreement, Counterparty shall also have the right party entitled to designate an Early Termination Date with respect pursuant to the Additional Termination Event described in clause (iiSection 6(b) below if Counterparty (x) provides a certificate that includes a representation that Counterparty is not, as of the date of such certificate, aware of any material non-public information concerning itself or the Shares (where “material” shall have the meaning set forth in paragraph 5(o) below) and (y) satisfies such other conditions, including making additional representations and warranties, relating to securities law and other issues as requested by the Calculation Agent:
(i) if at any time Dealer is unable, or reasonably determines that it is inadvisable, to hedge its obligations pursuant to this Transaction in the public market without registration under the Securities Act or as a result of any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer);
(ii) if at any time an Early Termination Date is designated with respect to the transaction relating to the Convertible Notes described in the confirmation between the parties hereto regarding the Bond Hedge Transaction dated November 6, 2018 (Reference Number(s): [____]) (the “Bond Hedge Transaction”) or the Bond Hedge Transaction is otherwise cancelled or terminated prior to its expiration for any reason; orAgreement.
(iii) if at Within five Scheduled Trading Days following any time Dealer receives Repayment Event (as defined below), Counterparty (1) shall (solely to the extent that such Repayment Event results directly from a Par Value Notice, unless the Calculation Agent shall have determined that the applicable Par Value Event would not result “Fundamental Change” (as defined in the Indenture) or pursuant to a redemption of Convertible Notes pursuant to Article 16 of the Indenture), and (2) otherwise, may, at its option, notify Dealer of such Repayment Event and the aggregate principal amount of the Premium being less than the aggregate par value of the Maximum Amount of Shares following Convertible Notes subject to such event Repayment Event (any such notice, a “Par Value ATERepayment Notice”); provided thatthat in the case of clause (2) only, notwithstanding anything any such Repayment Notice shall contain an acknowledgement by Counterparty of its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act and the 37 Include in Additional Call Option Confirmation only. 38 Include cross-reference to the contrary in the Agreement, Dealer shall designate an Early Termination Date in respect Indenture section containing events of a Par Value ATE no later than the anticipated record or other effective date of such event specified in the Par Value Noticedefault.
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Additional Termination Events. The occurrence (i) Notwithstanding anything to the contrary in this Confirmation, if an event of any default with respect to Counterparty occurs under the terms of the following Convertible Notes as set forth in Section 6.01 of the Indenture that results in an acceleration of the Convertible Notes pursuant to the terms of the Indenture, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to which such Additional Termination Event, (1A) Counterparty shall be deemed to be the sole Affected Party and Party, (2B) the Transaction shall be the sole Affected Transaction; Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement.
(ii) Promptly following any repurchase and cancellation of Convertible Notes, including without limitation pursuant to Article 15 of the Indenture in connection with a “Fundamental Change” (as defined in the Indenture), Counterparty shall notify Dealer in writing of such repurchase and cancellation and the number of Convertible Notes so repurchased and cancelled (any such notice, a “Repurchase Notice”). Notwithstanding anything to the contrary in this Confirmation, the receipt by Dealer from Counterparty of (x) any Repurchase Notice, within the applicable time period set forth in the preceding sentence, and (y) a written representation and warranty by Counterparty that, as of the date of such Repurchase Notice, Counterparty is not in possession of any material non-public information regarding Counterparty or the Shares, shall constitute an Additional Termination Event as provided that in this Section ý9(i)(ii). Upon receipt of any such Repurchase Notice and the related written representation and warranty, Dealer shall promptly designate an Exchange Business Day following receipt of such Repurchase Notice (which in no event shall be earlier than the related settlement date for such Convertible Notes) as an Early Termination Date with respect to any the portion of this Transaction corresponding to a number of Options (the “Repurchase Options”) equal to the lesser of (A) the number of such Convertible Notes specified in such Repurchase Notice [minus the number of “Repurchase Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Convertible Notes] Include in Additional Call Option Confirmation. and (B) the Number of Options as of the following date Dealer designates such Early Termination Date and, as of such date, the Number of Options shall be reduced by the number of Repurchase Options. Any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to this Transaction and a Number of Options equal to the number of Repurchase Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination Events described in clauses Event and (i3) or (ii) below, Dealer may choose to treat one or more parts the terminated portion of the Transaction were the sole Affected Transaction.
(iii) Notwithstanding anything to the contrary in this Confirmation, the receipt by Dealer from Counterparty, within the applicable time period set forth opposite “Notice of Exercise” in Section 2, of any Notice of Exercise in respect of Options that relate to Convertible Notes as to which additional Shares would be added to the Conversion Rate (as defined in the Indenture) pursuant to Section 14.03 of the Indenture in connection with a “Make-Whole Fundamental Change” (as defined in the Indenture) shall constitute an Additional Termination Event as provided in this Section ý9(i)(iii). Upon receipt of any such Notice of Exercise, Dealer shall designate an Exchange Business Day following such Additional Termination Event (which Exchange Business Day shall in no event be earlier than the related settlement date for such Convertible Notes) as an Early Termination Date with respect to the portion of the Transaction corresponding to a number of Options (the “Make-Whole Conversion Options”) equal to the lesser of (A) the number of such Options specified in such Notice of Exercise [minus the number of “Make-Whole Conversion Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Convertible Notes] Insert in Additional Call Option Confirmation only. and (B) the Number of Options as of the date Dealer designates such Early Termination Date and, as of such date, the Number of Options shall be reduced by the number of Make-Whole Conversion Options. Any payment hereunder with respect to such termination (the “Make-Whole Unwind Payment”) shall be calculated pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the number of Make-Whole Conversion Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (3) the terminated portion of the Transaction were the sole Affected Transaction and either to terminate each such part on different days or to calculate the amount owing in connection with such Additional Termination Event by reference to a Share price determined over a period not to exceed 50 Exchange Business Days, and, upon termination of an Affected Transaction, a Transaction with a Number of Warrants equal to the unaffected number of Warrants shall be treated for all purposes as the Transaction, which shall remain in full force and effect (and, for the avoidance of doubt, shall be subject in determining the amount payable pursuant to all relevant provisions and adjustments as if an Additional Termination Event had not occurred; and, provided further, that, without limiting the foregoing, notwithstanding the provisions of Section 6(b)(iv) 6 of the Agreement, the Calculation Agent shall not take into account any adjustments to the Option Entitlement that result from corresponding adjustments to the Conversion Rate (as defined in the Indenture) pursuant to Section 14.03(a) of the Indenture); provided that the amount of cash payable in respect of such early termination by Dealer to Counterparty shall also have not be greater than the right to designate an Early Termination Date with respect to the Additional Termination Event described in clause (ii) below if Counterparty product of (x) provides the Applicable Percentage and (y) the excess of (I) (1) the number of Make-Whole Conversion Options, multiplied by (2) the Conversion Rate (as defined in the Indenture, and after taking into account any applicable adjustments to the Conversion Rate pursuant to Section 14.03(a) of the Indenture), multiplied by (3) a certificate that includes market price per Share determined by the Calculation Agent in a representation commercially reasonable manner over (II) the aggregate principal amount of such Convertible Notes, as determined by the Calculation Agent in a commercially reasonable manner. Counterparty may irrevocably elect in the relevant Notice of Exercise to receive any Make-Whole Unwind Payment in Shares, in which case, in lieu of making such Make-Whole Unwind Payment as set forth above, Dealer shall deliver to Counterparty, within a commercially reasonable period of time after such designation as determined by Dealer (taking into account existing liquidity conditions and Dealer’s hedging and hedge unwind activity or settlement activity in connection with such delivery) a number of Shares equal to (A) such Make-Whole Unwind Payment, divided by (B) a price per Share determined by the Calculation Agent in good faith and in a commercially reasonable manner; provided that Counterparty is not, as of may elect to receive a Make-Whole Unwind Payment in Shares only if Counterparty represents and warrants to Dealer in writing on the date of such certificate, aware election that Counterparty is not in possession of any material non-public information concerning itself regarding Counterparty or the Shares (where “material” shall have the meaning set forth in paragraph 5(o) below) and (y) satisfies such other conditions, including making additional representations and warranties, relating to securities law and other issues as requested by the Calculation Agent:
(i) if at any time Dealer is unable, or reasonably determines that it is inadvisable, to hedge its obligations pursuant to this Transaction in the public market without registration under the Securities Act or as a result of any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer);
(ii) if at any time an Early Termination Date is designated with respect to the transaction relating to the Convertible Notes described in the confirmation between the parties hereto regarding the Bond Hedge Transaction dated November 6, 2018 (Reference Number(s): [____]) (the “Bond Hedge Transaction”) or the Bond Hedge Transaction is otherwise cancelled or terminated prior to its expiration for any reason; or
(iii) if at any time Dealer receives a Par Value Notice, unless the Calculation Agent shall have determined that the applicable Par Value Event would not result in the amount of the Premium being less than the aggregate par value of the Maximum Amount of Shares following such event (a “Par Value ATE”); provided that, notwithstanding anything to the contrary in the Agreement, Dealer shall designate an Early Termination Date in respect of a Par Value ATE no later than the anticipated record or other effective date of such event specified in the Par Value NoticeShares.
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Additional Termination Events. The occurrence of any of the following shall constitute an Additional Termination Event with respect to which (1) Counterparty shall be the sole Affected Party and (2) the Transaction shall be the sole Affected Transaction; provided that with respect to any of the following Additional Termination Events described in clauses (i) or (ii) below, Dealer may choose to treat one or more parts of the Transaction as the sole Affected Transaction and either to terminate each such part on different days or to calculate the amount owing in connection with such Additional Termination Event by reference to a Share price determined over a period not to exceed 50 Exchange Business Days, and, upon termination of an Affected Transaction, a Transaction with a Number of Warrants equal to the unaffected number of Warrants shall be treated for all purposes as the Transaction, which shall remain in full force and effect and, for the avoidance of doubt, shall be subject to all relevant provisions and adjustments as if an Additional Termination Event had not occurred; and, provided further, that, without limiting the foregoing, notwithstanding the provisions of Section 6(b)(iv) of the Agreement, Counterparty shall also have the right to designate an Early Termination Date with respect to the Additional Termination Event described in clause (ii) below if Counterparty (x) provides a certificate that includes a representation that Counterparty is not, as of the date of such certificate, aware of any material non-public information concerning itself or the Shares (where “material” shall have the meaning set forth in paragraph 5(o) below) and (y) satisfies such other conditions, including making additional representations and warranties, relating to securities law and other issues as requested by the Calculation Agent:
(i) if at any time Dealer is unable, or reasonably determines that it is inadvisable, to hedge its obligations pursuant to this Transaction in the public market without registration under the Securities Act or as a result of any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer);
(ii) if at any time an Early Termination Date is designated with respect to the transaction relating to the Convertible Notes described in the confirmation between the parties hereto regarding the Bond Hedge Transaction dated November as of September 6, 2018 (Reference Number(s): [____]) 2017 (the “Bond Hedge Transaction”) or the Bond Hedge Transaction is otherwise cancelled or terminated prior to its expiration for any reason; or
(iii) if at any time Dealer receives a Par Value Notice, unless the Calculation Agent shall have determined that the applicable Par Value Event would not result in the amount of the Premium being less than the aggregate par value of the Maximum Amount of Shares following such event (a “Par Value ATE”); provided that, notwithstanding anything to the contrary in the Agreement, Dealer shall designate an Early Termination Date in respect of a Par Value ATE no later than the anticipated record or other effective date of such event specified in the Par Value Notice.
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Samples: Warrant Transaction (Qiagen Nv)
Additional Termination Events. The occurrence (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of any which a “Notice of Conversion” (as defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant converting Holder:
(A) Counterparty shall, within five Scheduled Trading Days of the following “Conversion Date” (as defined in the Indenture) for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”) and the anticipated settlement date, and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); provided that any such Early Conversion Notice shall contain an acknowledgment by Counterparty of its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act and the rules and regulations thereunder, in respect of the delivery of such Early Conversion Notice; provided further that the provisions of this Section 10(i)(i) shall not apply to any Affected Convertible Note (i) with respect to which Counterparty has elected the “Exchange in Lieu of Conversion” option pursuant to Section 14.12 of the Indenture and (1ii) that has been accepted by the designated financial institution pursuant to Section 14.12 of the Indenture, except to the extent that Counterparty notifies Dealer, within ten Scheduled Trading Days of the then applicable conversion settlement date determined pursuant to Section 14.02(c) of the Indenture, that (x) such financial institution has failed to pay or deliver, as the case may be, the consideration due upon conversion of such Affected Convertible Note, or (y) such Affected Convertible Note is subsequently resubmitted to Counterparty for Early Conversion in accordance with the terms of the Indenture;
(B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be on or as promptly as reasonably practicable after the related conversion settlement date for such Early Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction (and, for the avoidance of doubt, the provisions of Section 10(m) shall apply to any amount that is payable by Dealer to Counterparty pursuant to this Section 10(i)(C) as if Counterparty were not the Affected Party);
(D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and
(E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options.
(ii) Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the Indenture and such event of default results in the Convertible Notes being accelerated and declared due and payable, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party and Party, (2B) the Transaction shall be the sole Affected Transaction; provided that with respect to any of the following Additional Termination Events described in clauses (i) or (ii) below, Dealer may choose to treat one or more parts of the Transaction as the sole Affected Transaction and either to terminate each such part on different days or to calculate the amount owing in connection with such Additional Termination Event by reference to a Share price determined over a period not to exceed 50 Exchange Business Days, and, upon termination of an Affected Transaction, a Transaction with a Number of Warrants equal to the unaffected number of Warrants (C) Dealer shall be treated for all purposes as the Transaction, which shall remain in full force and effect and, for the avoidance of doubt, shall be subject to all relevant provisions and adjustments as if an Additional Termination Event had not occurred; and, provided further, that, without limiting the foregoing, notwithstanding the provisions of Section 6(b)(iv) of the Agreement, Counterparty shall also have the right party entitled to designate an Early Termination Date with respect pursuant to the Additional Termination Event described in clause (iiSection 6(b) below if Counterparty (x) provides a certificate that includes a representation that Counterparty is not, as of the date of such certificate, aware of any material non-public information concerning itself or the Shares Agreement (where “material” shall have the meaning set forth in paragraph 5(o) below) and (y) satisfies such other conditions, including making additional representations and warranties, relating to securities law and other issues as requested by the Calculation Agent:
(i) if at any time Dealer is unable, or reasonably determines that it is inadvisable, to hedge its obligations pursuant to this Transaction in the public market without registration under the Securities Act or as a result of any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer);
(ii) if at any time an which Early Termination Date is designated with respect to shall be on or as promptly as reasonably practicable after Dealer becomes aware of the transaction relating to the Convertible Notes described in the confirmation between the parties hereto regarding the Bond Hedge Transaction dated November 6, 2018 (Reference Number(s): [____]) (the “Bond Hedge Transaction”) or the Bond Hedge Transaction is otherwise cancelled or terminated prior to its expiration for any reason; oroccurrence of such acceleration).
(iii) if at Within five Scheduled Trading Days following any time Repayment Event (as defined below), Counterparty shall notify Dealer receives a Par Value Notice, unless of such Repayment Event and the Calculation Agent shall have determined that the applicable Par Value Event would not result in the aggregate principal amount of the Premium being less than the aggregate par value of the Maximum Amount of Shares following Convertible Notes subject to such event Repayment Event (any such notice, a “Par Value ATERepayment Notice”); provided thatthat any such Repayment Notice shall contain an acknowledgement by Counterparty of its responsibilities under applicable securities laws, notwithstanding anything to and in particular Section 9 and Section 10(b) of the contrary in Exchange Act and the Agreement, Dealer shall designate an Early Termination Date in respect of a Par Value ATE no later than the anticipated record or other effective date of such event specified in the Par Value Notice.rules and
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Additional Termination Events. The occurrence of any following Additional Termination Events will apply, in each case with respect to Party B as the sole Affected Party (unless otherwise provided below):
(i) Each of the following shall constitute an Additional Termination Event with respect to which (1) Counterparty shall be the Party A as sole Affected Party:
(a) An S&P Collateralization Event has occurred and is continuing and Party A has failed to comply with or perform any obligation to be complied with or performed by Party A in accordance with the "Downgrade Provisions" as set forth in Part 5(b)(2) and (2) the Transaction shall be the sole Affected Transaction; provided that with respect to any of the following Additional Termination Events described in clauses (i) or (ii) below, Dealer may choose to treat one or more parts of the Transaction as the sole Affected Transaction and either to terminate each such part on different days or to calculate the amount owing in connection with such Additional Termination a Ratings Event by reference to a Share price determined over a period not to exceed 50 Exchange Business Days, and, upon termination of an Affected Transaction, a Transaction with a Number of Warrants equal to the unaffected number of Warrants shall be treated for all purposes as the Transaction, has neither occurred nor is continuing. Any event which shall remain in full force and effect and, for the avoidance of doubt, shall be subject to all relevant provisions and adjustments as if constitutes an Additional Termination Event pursuant to this Section 1(h)(i)(a) shall not constitute an Event of Default.
(b) A Moody's Collateralization Event has occurred and is continuing, and Party A has failed to comply with or perform any obligation to deliver collateral under the Credit Support Annex and 30 Local Business Days or more have elapsed since the last time that no Moody's Collateralization Event had occurred and was continuing. Any event which constitutes an Additional Termination Event pursuant to this Section 1(h)(i)(b) shall not occurred; constitute an Event of Default (unless such event constitutes a failure to post collateral pursuant to the terms of the Credit Support Annex in breach of Part 5(b)(4)).
(c) A Fitch Collateralization Event has occurred and is continuing and Party A has failed to comply with or perform any obligation to be complied with or performed by Party A in accordance with the "Downgrade Provisions" as set forth in Part 5(b)(2) and a Ratings Event has neither occurred nor is continuing. Any event which constitutes an Additional Termination Event pursuant to this Section 1(h)(i)(c) shall not constitute an Event of Default (unless such event constitutes a failure to post collateral pursuant to the terms of the Credit Support Annex in breach of Part 5(b)(4)).
(d) A Ratings Event has occurred and is continuing and Party A has failed to comply with or perform any obligation to be complied with or performed by Party A in accordance with the “Downgrade Provisions” as set forth in Part 5(b)(4) and, provided furtherin the case of a Moody's Ratings Event, that(i) at least one Eligible Replacement has made a Live Bid to be the transferee of a transfer to be made in accordance with the terms hereof and/or (ii) at least one entity that satisfies the Hedge Counterparty Ratings Requirements is able to provide an Eligible Guarantee in respect of all of Party A’s present and future obligations under this Agreement subject to the satisfaction of the S&P Ratings Condition. The failure by Party A to comply with or perform any obligation (other than the obligation to post collateral pursuant to the terms of the Credit Support Annex) to be complied with or performed by Party A in accordance with the “Downgrade Provisions” as set forth in Part 5(b)(4) will constitute an Additional Termination Event and not an Event of Default.
(ii) The Pooling and Servicing Agreement dated as of March 1, 2007 among Credit Suisse First Boston Mortgage Securities Corp. as Depositor, DLJ Mortgage Capital, Inc. as Seller, Xxxxx Fargo Bank, N.A. as Servicer, Select Portfolio Servicing, Inc. as Servicer and Modification Oversight Agent, Xxxxxxx Fixed Income Services Inc. as Credit Risk Manager, and U.S. Bank National Association as Trustee for Home Equity Asset Trust 2007-2, as amended and supplemented from time to time (the PSA or the Pooling and Servicing Agreement) or other transaction document is amended or modified (other than an amendment or modification solely to accommodate replacement agents to the transaction , e.g., Servicer, Credit Risk Manager) without limiting the foregoingprior written consent of Party A, where such consent is required under the terms of the PSA (such consent not to be unreasonably withheld). For all purposes hereunder, including in the Credit Support Annex and each Confirmation, “Trustee” shall mean the trustee for the Supplemental Interest Trust under the PSA.
(iii) The termination of the Trust pursuant to Article IX of the PSA, provided, however, that notwithstanding the provisions of Section 6(b)(iv) of the this Agreement, Counterparty shall also have the right to designate an Early Termination Date with respect to the Additional Termination Event described in clause (ii) below if Counterparty (x) provides a certificate that includes a representation that Counterparty is not, as of the date of such certificate, aware of any material non-public information concerning itself or the Shares (where “material” shall have the meaning set forth in paragraph 5(o) below) and (y) satisfies such other conditions, including making additional representations and warranties, relating to securities law and other issues as requested by the Calculation Agent:
(i) if at any time Dealer is unable, or reasonably determines that it is inadvisable, to hedge its obligations pursuant to this Transaction in the public market without registration under the Securities Act or as a result of any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer);
(ii) if at any time an Early Termination Date is designated with respect to the transaction relating to the Convertible Notes described in the confirmation between the parties hereto regarding the Bond Hedge Transaction dated November 6, 2018 (Reference Number(s): [____]) (the “Bond Hedge Transaction”) or the Bond Hedge Transaction is otherwise cancelled or terminated prior to its expiration for any reason; or
(iii) if at any time Dealer receives a Par Value Notice, unless the Calculation Agent shall have determined that the applicable Par Value Event would not result in the amount of the Premium being less than the aggregate par value of the Maximum Amount of Shares following such event (a “Par Value ATE”); provided that, notwithstanding anything to the contrary in the Agreement, Dealer shall either party may designate an Early Termination Date in respect of this Additional Termination Event.
(iv) Upon the occurrence of a Par Value ATE no later than Swap Disclosure Event (as defined in Part 5(v) below) Party A has not, within 10 days after such Swap Disclosure Event, complied with any of the anticipated record or other effective date provisions set forth in Part 5(v)(iii) below. For all purposes of such event specified this Agreement, Party A shall be the sole Affected Party with respect to the occurrence of an Additional Termination Event described in the Par Value Noticethis Part 1(h)(iv).
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Additional Termination Events. The occurrence of any of the following shall constitute an Additional Termination Event with respect to which (1) Counterparty shall be the sole Affected Party and (2) the Transaction shall be the sole Affected Transaction; provided that with respect to any of the following Additional Termination Events described in clauses (i) or (ii) belowEvents, Dealer Bank may choose to treat one or more parts part of the Transaction as the sole Affected Transaction and either to terminate each such part on different days or to calculate the amount owing in connection with such Additional Termination Event by reference to a Share price determined over a period not to exceed 50 Exchange Business DaysTransaction, and, upon termination of an the Affected Transaction, a Transaction with a Number of Warrants equal to the unaffected number of Warrants shall be treated for all purposes as the Transaction, which shall remain in full force and effect and, for the avoidance of doubt, shall be subject to all relevant provisions and adjustments as if an Additional Termination Event had not occurred; and, provided further, that, without limiting the foregoing, notwithstanding the provisions of Section 6(b)(iv) of the Agreement, Counterparty shall also have the right to designate an Early Termination Date with respect to the Additional Termination Event described in clause (ii) below if Counterparty (x) provides a certificate that includes a representation that Counterparty is not, as of the date of such certificate, aware of any material non-public information concerning itself or the Shares (where “material” shall have the meaning set forth in paragraph 5(o) below) and (y) satisfies such other conditions, including making additional representations and warranties, relating to securities law and other issues as requested by the Calculation Agent:
(i) if at any time Dealer (x) Bank is unable, or reasonably determines that it is inadvisable, based upon the advice of counsel, to hedge its obligations pursuant to this the Transaction in the public market without registration under the Securities Act or as a result of any legal, regulatory or self-regulatory requirements or related policies and procedures applicable to it (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by DealerBank); or (y) Bank determines in its reasonable discretion that Bank or its affiliates would incur a materially increased cost in establishing, re-establishing or maintaining a full hedge of the equity price risk (including for the avoidance of doubt, the volatility risk) in respect of the Transaction; provided , however, that the scheduled exercise or scheduled expiration of call options on the Shares (with a Trade Date of even date herewith) sold by Bank to Counterparty in accordance with the terms of such call options shall not provide the sole basis for the occurrence of such Additional Termination Event pursuant to this sub-clause (y);
(ii) if the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” becomes the “beneficial owner” (as these terms are defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of Counterparty’s capital stock that is at any the time an Early Termination Date is designated with respect entitled to vote by the transaction relating to the Convertible Notes described holder thereof in the confirmation between the parties hereto regarding the Bond Hedge Transaction dated November 6, 2018 election of Counterparty’s board of directors (Reference Number(s): [____]) (the “Bond Hedge Transaction”) or the Bond Hedge Transaction is otherwise cancelled or terminated prior to its expiration for any reason; orcomparable body);
(iii) if at the consolidation or merger of Counterparty with or into any time Dealer receives other “person” (as this term is used in Section 13(d)(3) of the Exchange Act), or the sale, lease, transfer, conveyance or other disposition, in one or a Par Value Noticeseries of related transactions, unless of all or substantially all of Counterparty’s assets and those of Counterparty’s subsidiaries taken as a whole to any “person” (as this term is used in Section 13(d)(3) of the Calculation Agent shall have determined Exchange Act), other than (x) any transaction that the applicable Par Value Event would does not result in any reclassification, conversion, exchange or cancellation of outstanding shares of Counterparty’s capital stock; and pursuant to which the amount holders of 50% or more of the Premium being less than total voting power of all shares of Counterparty’s capital stock entitled to vote generally in elections of directors immediately prior to such transaction have the aggregate par value right to exercise, directly or indirectly, 50% or more of the Maximum Amount total voting power of all shares of Counterparty’s capital stock entitled to vote generally in elections of directors of the continuing or surviving person (or any parent thereof) immediately after giving effect to such transaction; or (y) any merger primarily for the purpose of changing Counterparty’s jurisdiction of incorporation and resulting in a reclassification, conversion or exchange of the outstanding Shares following such event solely into shares of common stock of the surviving entity;
(iv) the first day on which a majority of the members of board of directors of Counterparty are not “Par Value ATEcontinuing directors”). “Continuing directors” means, as of any date of determination, any member of board of directors of Counterparty who (x) was a member of the board of directors on the Trade Date; provided that, notwithstanding anything or (y) was nominated for election or elected to the contrary in board of directors with the Agreement, Dealer shall designate an Early Termination Date in respect approval of a Par Value ATE no later than majority of the anticipated record continuing directors who were members of the board at the time of new director’s nomination or other effective date of such event specified in the Par Value Notice.election;
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Samples: Warrant Transaction Confirmation (Covanta Holding Corp)
